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12 Weeks of FMLA

The Family & Medical Leave Act (FMLA) requires companies with 50 or more employees to provide eligible employees with 12 weeks of unpaid leave to care for themselves or a child, spouse, or parent that has a serious health condition or to prepare for and be with a family member who has been called up to qualifying exigency military duty.  Additionally, eligible employees can receive up to 26 weeks of leave to care for an injured service-member.

12 weeks of leave sounds pretty straight-forward, but that’s not always the case.  Many companies have questions such as:

Is it total for every 12 months or for each incident?

If an employee who has used Family & Medical Leave Act (FMLA) leave to care for a child with a serious health condition and now needs an additional leave for their own serious health condition, what do we do?  Can we deny the leave?  How does this work?

The employee is entitled to a total of 12 weeks of leave in any 12 month period for a qualifying event(s).  So, for example, if the employee uses eight weeks for the birth of a child and an additional four weeks to care for a parent with a serious health condition, then depending on the method your company uses to calculate your 12 month period, she may not be eligible for additional time off for her own illness under FMLA.

The company must first look at its policy to determine how it is treating the 12 month period.  Is it a rolling 12 month period, a calendar year, a 12 month period forward from when leave is first used or a fixed 12-month leave year (such as a fiscal year)?  If the policy is silent on how the 12 month period is defined, then the company must select the method which is most beneficial to the employee.

If it is determined that the employee is not eligible for FMLA, it is recommended that the company consult with an employment law attorney to determine if a temporary leave of absence may be considered a reasonable accommodation for the employee’s own serious health condition under the Americans with Disabilities Act (ADA).

Why is it important to establish the 12 month period in order to calculate the 12 weeks of leave entitlement?

The FMLA regulations encourage employers to establish the 12 month period they will use to calculate leave entitlement. Specifically, the regulations allow for the company to select one of 4 methods of calculating this timeframe:

An employer is permitted to choose any one of the following methods for determining the 12-month period in which the 12 weeks of leave entitlement…:

(1) The calendar year;

(2) Any fixed 12-month leave year, such as a fiscal year, a year required by State law, or a year starting on an employee’s anniversary date;

(3) The 12-month period measured forward from the date any employee’s first FMLA leave under paragraph (a) begins; or,

(4) A “rolling” 12-month period measured backward from the date an employee uses any FMLA leave…”

It is important for companies to designate this timeframe because how you calculate those 12 weeks of leave hinges on the 12-month period.  For example, if the company adopts a calendar year basis for calculating leave, then an employee could technically take 12 back-to-back weeks of leave (totaling 24 straight weeks) depending on the timing of the serious health condition.  An employee may give birth to a child mid-October and take 12 weeks of leave.  Beginning with the new calendar year on January 1, she is automatically entitled to a new 12 week period of leave…which she may choose to take in the form of “family” leave, for the birth/placement of her child.

The 12-month period “rolling” backward is the most challenging to calculate, yet is the only method of calculating leave that doesn’t allow for an individual to stack back-to-back FMLA leaves.

The Department of Labor website has a fact sheet that describes these options in more detail.

My employee needs to be absent periodically for a chronic condition.  How does the company calculate his leave time?

FMLA regulations require you to prorate the amount of leave used against the workweek.  For example, if an individual normally works 40 hours a week and is absent for 8 hours 1/5 of a week would be counted against their FMLA entitlement. Employers must calculate intermittent absences in the smallest amounts they are able but in no less than one-hour increments.

For some employers it may be easier to convert the “workweek” into hours.  Although the regulations speak only in terms of weeks, as long as the company converts the 12 week entitlement into hours based on the individual’s typical work schedule, it should be acceptable. For example, a person normally working 42 hours a week, would receive 504 hours in their FMLA “bank”, while the person working a typical 40 hour week would receive 480.

Regulations only require employers to provide intermittent leave when there is a serious health condition.  However, they do not require an employer to provide intermittent leave in the case of birth or placement of a child.

FMLA can be a challenging law to administer.  However, the Department of Labor provides numerous fact sheets and guidance to employers on their website to help clarify the nuances of the law.

Our People Experts at EAF are knowledgeable about FMLA and can answer your organization’s pressing questions on this topic.  To learn more about EAF’s hotline, please call or email us at 407.260.6556/[email protected] or visit our website.


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EAF provides information about current developments in labor and employment law. This information is intended for educational purposes only and should not be considered legal advice. Questions requiring legal advice should be addressed to the attorney of your choice. EAF members may be able to obtain a legal interpretation through our FREE Legal Hotline.