Thursday, October 11, 2018
Managing medical leave under the Family Medical Leave Act (FMLA) can seem like a daunting prospect for your employer groups. The scenarios are familiar – the new receptionist is taking leave after having a baby; a long-time bookkeeper is taking leave to care for his ailing mother; the service manager is reducing his hours because of a chronic illness – but it can be challenging to understand and administer these policies.
For a lot of employers, one of the FMLA’s most confusing provisions is determining the applicable 12-month period in which employees can take up to 12 weeks of protected leave.
The FMLA offers four methods of determining this 12-month period, each with its own pros and cons:
Measuring by calendar year is the most straightforward method: the year begins on January 1, and ends on December 31, and employees can take 12 weeks of leave during this time. One issue to consider with this approach is that employees can potentially take up to 24 weeks at one time, if the first 12 weeks encompass the final 12 weeks of the calendar year, and the second 12 weeks begin when the new year starts. This can present challenges to business continuity depending on the employee’s role.
Like the calendar year method, this method begins counting the year on a fixed date, and ends 12 months later. The employer could, for example, choose to begin this period on the employee’s hire date, or align it with the fiscal year. Also, there could be state-specific laws that determine the required date to use under this method.
As with the calendar year method, this method presents the same potential challenge to business continuity.
Under this method, the 12-month period begins on the first day the employee takes FMLA leave. If FMLA leave is taken after that 12 months ends, their next 12-month period begins on the first day of that leave.
Here’s an example of how this works:
Jenny takes 12 weeks of FMLA-qualified leave beginning April 1, 2018, which starts the clock on her 12-month period and makes the end date March 30, 2019. In September of 2019, she begins a new 12 weeks of FMLA leave, and a new 12-month period begins. She is now in a 12-month period which will end in September of 2020.
This doesn’t entirely negate the challenge to business continuity outlined above – Jenny could have taken four weeks of leave in April 2018, then another 8 weeks in February and March of 2019 followed by 12 more weeks in April 2019, stacking a total of 20 weeks of leave. It does limit this risk somewhat, in that the amount of available leave left in the 12-month period will be reduced by the amount of the leave taken at the beginning of the period.
FMLA regulations require this method to be used when the qualifying reason for the leave is to care for a covered military servicemember with a qualifying exigency.
While the first three methods of determining FMLA are straightforward, measuring forward from an identified start date, the rolling method, which measures backward from any date an employee takes any FMLA leave, can be more confusing.
To use this method, it is necessary to add up all FMLA leave the employee has taken in the past 12 months and subtract that total from the allotted 12 weeks. You may hear this method referred to as the “look back” method, as you are looking back over the previous 12 months.
Consider this example:
James takes six weeks of leave beginning April 1, 2018. He takes another four weeks of leave in July 2018, and two more in October 2018. He is not entitled to any additional leave until April 2019, when he will begin recouping days. He would recoup additional days in July 2019, and more still in October 2019, assuming he does not take additional leave.
In this scenario, James would have no available leave in March 2019, but would begin recouping days April 1, 2019. So, if James needed additional leave in September 2019, you would look back over the previous 12 months, and subtract the two weeks of FMLA leave taken in October 2018, leaving your employee with 10 weeks of leave available.
This method can take some time and effort to administer properly – the employee’s allotment of available time must be recalculated continually based on the 12 months preceding that day.
State law can expand employee access to unpaid, job-protected leave. It is, therefore, important to take into account all applicable state laws governing protected leave, and ensure leave policies comply with both the FMLA and state law. For more information about the FMLA, visit the Department of Labor’s website: https://www.dol.gov/whd/fmla/.