What is a 12-month period under FMLA?

FMLA regulations state that an employee is entitled to 12 weeks of leave in a 12-month period. Employers often assume that the 12-month period is a calendar year. However, employers are given four options from which to choose. The method an employer chooses can have a significant impact on FMLA administration and eligibility.

Employers may choose to have a policy that defines a 12-month FMLA period as follows:

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.
   

(1) and (2) The calendar and fixed leave year methods are fairly clear. They enable an employee to use another full 12 weeks at the start of a new 12-month period, regardless of how much FMLA the employee has used in the preceding 12 months. Some refer to this as "stacking" leave, and this can be a negative result of using this method. On the flip side, an employee who uses up all of his or her leave early in the defined year will not be eligible for more FMLA leave until the new year rolls around, whereas under the other methods, an employee would continue earning leave as he or she works.

(3) and (4) The measuring forward and rolling back methods avoid leave stacking but can be somewhat administratively cumbersome. They also have the potential to provide indefinite FMLA when used intermittently. An example would be where an employee has a condition requiring him or her to use only small, occasional increments of leave.

When measuring forward, an employer determines the available FMLA amount by measuring from the first date FMLA leave began. For example, Mr. Bean began his FMLA leave on Aug. 1, 2011, and he is using it intermittently to care for his wife. When Mr. Bean asks for an update on how much leave he has left on Sept. 1, 2011, the employer looks at how much leave he has used between Aug. 1, 2011 and Sept. 1, 2011. Since Mr. Bean has until Aug. 1, 2012, to use his entire 12 weeks and so far, he's only used two days, he's entitled to another 58 days. 

For the rolling backwards method, each time an employee requests more FMLA leave, the employer uses that date and measures 12 months back from it. An employee would be eligible for remaining FMLA leave he or she has not used in the preceding 12-month period. For example, Mrs. Green requests additional FMLA leave on July 31, 2011. Regardless of when Mrs. Green began her FMLA leave, her employer uses July 31 for measuring because that is the date when she asks for additional leave. From July 31, 2010, to July 31, 2011, the employer determines Mrs. Green has used seven days of leave.

When determining the amount of intermittent FMLA leave available, employers should use the normal work schedule for the employee. For example, 12 weeks of FMLA for an employee who works five-day workweeks equals 60 days. If an employee normally works 40 hours per week with occasional exceptions, that's 480 hours of FMLA leave. If he or she works more than five days per week or consistently works overtime, those factors need to be included in the FMLA leave availability.

Failure to select a method - 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.

Changing a method - An employer wishing to change to an alternative method 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.

Covered Servicemember - An eligible employee's FMLA leave entitlement is limited to a total of 26 workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness. An employer shall determine the single 12-month period in which the 26-weeks-of-leave-entitlement using the 12-month period measured forward from the date an employee's first FMLA leave to care for the covered servicemember begins.

Some state family medical leave laws may restrict an employer's options for determining the 12-month period. Therefore, it is important to analyze the state requirement when determining the most appropriate 12-month period for the employer to use.