Human Resource Blog

Duration of FMLA allowed 12 month calendar or otherwise

As an employer, may we chose to allow either a 12 month period from first onset of FMLA or are we required to allow 12 month by calendar year?

As an employer, you choose the method of tabulating FMLA from 4 different allowable systems designated by the U.S. Department of Labor or DOL, including 12 months from the first day that the employee takes FMLA.

There is no requirement that the employer use the calendar year as the basis for tabulating FMLA. It is legal to do so, however, very few employers use this method. That is because if you are using the calendar year, an employee could take FMLA during the last 12 weeks of 2010 and then again during the first 12 weeks of 2011, resulting in 24 weeks of continuous FMLA. That was never the intention of the FMLA law, and is a major staffing problem for many employers. Fewer than 10% of employers allow that type of leave.

The four acceptable methods of tabulating FMLA in order of popularity are:

1) The rolling backward method, beginning on the first day of the most recent FMLA leave, and counting backwards one year to determine how much FMLA the employee has used
2) The rolling forward method, beginning with the first day the employee used FMLA and counting forward one year
3) The calendar year
4) Beginning on another specific date annually, such as the employee's anniversary date or the beginning of the company's fiscal year

An employer can change the method of tabulating FMLA, however, it does not apply to employees who are currently approved for FMLA until their current FMLA leave or year ends. The method that is in use on the first day the employee takes FMLA is the method that applies to that employee for one year, or until the 12 weeks of FMLA are exhausted, whichever comes first. Suppose ABC Corp tabulates FMLA based on the calendar year. Employee Mary takes intermittent FMLA for migraines beginning in January 2010. In June 2010, the company switches to the rolling-backward method of tabulating FMLA. That method will apply to any employee who takes leave after June 1, but it will not apply to Mary until her current FMLA year ends in December 2010.

Read more about this at: http://www.dol.gov/whd/opinion/FMLA/2005/2005_11_17_3A_FMLA.htm