TOP TIP: Make Sure to Define Your FMLA Year

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As employers with 50 or more employees know, the Family and Medical Leave Act provides eligible employees with 12 weeks of leave in a 12-month period. The FMLA permits the employer to define the 12-month period. But what a recent case highlights is that if the employer does not do so, the employee is entitled to the 12-month period that is the most favorable to him or her.

Under the FMLA, the employer may choose among the following 12-month options:

  • A calendar year
  • Any fixed 12-month period, like a fiscal year
  • A 12-month period measured forward from the first date of leave
  • A “rolling” 12-month period looking backward from the first day of leave

The Department of Labor has created a fact sheet that sets out these options, with examples of how they work. Of the four, the rolling backward measurement is the one that most employers choose, as it prevents the “stacking” of leave available under other methods (e.g. under the calendar year method, the employee may take the last 12 weeks of the year off and then the first 12 weeks of the next year, which is a new FMLA 12-month period, for a total of 24 consecutive weeks). Notably, as the DOL fact sheet states: “If an employer fails to select one of the 12-month period methods discussed above, the employer must use the 12-month period method that is the most beneficial to the employee.”

In Stahl v. Susque View Home Nursing and Rehabilitation Center, the employee took more than 12 weeks of leave in the latter half of 2017. She then sought an extension of leave through mid-January of 2018, but her request was denied. She was then terminated when she did not return on December 30. It appears that there was some confusion about what 12-month period should apply, and the federal district court “inferred” that the calendar year was being used by the nursing home. Under that method, the employee was entitled to a new 12-week bank of FMLA leave on January 1, 2018, and therefore she should have been granted the requested leave.

So employers should ensure that their FMLA policies define which 12-month period applies. If an employer has not yet chosen a method of calculating the 12-month period, or if it wishes to change the period being used, it must give 60-days’ notice of the new 12-month period – and during that 60 days, the employee will be entitled to the “most beneficial” calculation!