How do I Calculate a Year for FMLA Purposes?
Q: We do not have a written policy on how we calculate a year for FMLA purposes. Is it better to have one or not to?
|*Frequently, questions come into the MEA Expert Hotline that require legal interpretation. For these questions, MEA relies on Powell Trachtman Logan Carrle & Lombardo, P.C. and its attorneys to support our responses. This question was answered with interpretation from Michael Kulakowski, Esq., of Powell Trachtman Logan Carrle & Lombardo, P.C.|
A: Employers should have written FMLA policies for two important reasons (as it relates to the specific issue here: determining the “12-month period” of FMLA leave entitlement).
First both employer and employees should be clear about which method the employer has chosen to calculate leave; otherwise, the employer risks claims of disparate treatment.
Second, if the employer does not have a clear policy on the method it uses to calculate the entitlement period (or if an employer fails to select one of the four options in advance) FMLA regulations provide as follows:
The employer must use whichever method is most beneficial for each particular employee who requests leave. As specially explained in the FMLA regulations, this could include, for example, allowing an employee to take 12 weeks of leave at the end of one calendar year, and then another 12 weeks at the beginning of the following calendar year (if that’s what turns out to be the most beneficial for that particular employee).
Finally, it is important to note that FMLA regulations require that employers provide 60 days’ notice to its employees before changing its current method of calculating leave entitlement.
The below summary of pertinent FMLA regulations may also be helpful.
Summary of FMLA Regulations
An employer is permitted to choose any one of the following four methods for determining the “12-month period” of leave entitlement:
- The calendar year;
- 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;
- The 12-month period measured forward from the date of an employee’s first FMLA leave;
- A “rolling” 12-month period measured backward from the date an employee uses any FMLA leave
Note: FMLA regulations provide a long and complex explanation (with examples) regarding the difference between (3) and (4); suffice to say that they are quite similar and, in any event, it’s not important to understand the difference unless the employer actually chose (3) or (4) as its method for counting leave entitlement.
29 CFR Section 825.200(b)
Employers are allowed to choose any one of the alternatives above, “provided the alternative chosen is applied consistently and uniformly to all employees. An employer wishing to change to another alternative is required to give at least 60 days’ notice to all employees, and the transition must take place in such a way that the employees retain the full benefit of 12 weeks of leave under whichever method affords the greatest benefit to the employee. Under no circumstances may a new method be implemented in order to avoid the Act’s leave requirements.” 29 CFR Section 825.200(d)(1).
If an employer fails to select one of the options for measuring the 12-month period for the leave entitlements, “the option that provides the most beneficial outcome for the employee will be used. The employer may subsequently select an option only by providing the 60-day notice to all employees of the option the employer intends to implement. During the running of the 60-day period any other employee who needs FMLA leave may use the option providing the most beneficial outcome to that employee. At the conclusion of the 60-day period the employer may implement the selected option.” 29 CFR Section 825.200(e).
MEA’s goal is to provide current, detailed and useful information to HOTLINE callers, but our responses do not constitute legal advice about what you should or should not do in a particular situation. You should always consult legal counsel, in the context of a confidential attorney-client relationship, before taking any action that could have legal implications for you or your business. If legal services are needed, MEA members are entitled to a discounted fee arrangement with the Powell Trachtman law firm, which serves as MEA’s general counsel. For more information, contact Michael G. Trachtman at firstname.lastname@example.org.