Archive for August, 2018

How much? Amount of Leave an Eligible Employee May Take….Part 1

This week Jarrod switches gears . . . 

In the past few posts we have been talking about the reasons why an eligible employee may take leave. Now we are switching gears to how much leave an eligible employee may take.

(a) Except in the case of leave to care for a covered servicemember with a serious injury or illness, an eligible employee’s FMLA leave entitlement is limited to a total of 12 workweeks of leave during any 12-month period for any one, or more, of the following reasons:

(1) The birth of the employee’s son or daughter, and to care for the newborn child;

(2) The placement with the employee of a son or daughter for adoption or foster care, and to care for the newly placed child;

(3) To care for the employee’s spouse, son, daughter, or parent with a serious health condition;

(4) Because of a serious health condition that makes the employee unable to perform one or more of the essential functions of his or her job; and,

(5) Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty status (or has been notified of an impending call or order to covered active duty).

29 CFR § 825.200(a)

In previous posts we have gone into more depth with each of the reasons discussed, but our focus here is not on those reasons. We are looking at the total amount of FMLA leave eligible employees may take. The standard, except in the case of leave to care for a covered servicemember with a serious injury or ilness, is that an eligible employee is entitled for up to 12 workweeks of FMLA leave during a 12-month period for most reasons. The employer has a few options for determining how that 12-month period is calculated.

(b) An employer is permitted to choose any one of the following methods for determining the 12-month period in which the 12 weeks of leave entitlement described in paragraph (a) of this section occurs:

(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 as described in paragraph (a).

29 CFR § 825.200(b)

All these options seem pretty easy to understand, but none the less, the regulators have taken it upon themselves to give us a couple lengthy run on sentences to make themselves clear.

(c) Under methods in paragraphs (b)(1) and (b)(2) of this section an employee would be entitled to up to 12 weeks of FMLA leave at any time in the fixed 12-month period selected. An employee could, therefore, take 12 weeks of leave at the end of the year and 12 weeks at the beginning of the following year. Under the method in paragraph (b)(3) of this section, an employee would be entitled to 12 weeks of leave during the year beginning on the first date FMLA leave is taken; the next 12-month period would begin the first time FMLA leave is taken after completion of any previous 12-month period. Under the method in paragraph (b)(4) of this section, the “rolling” 12-month period, each time an employee takes FMLA leave the remaining leave entitlement would be any balance of the 12 weeks which has not been used during the immediately preceding 12 months. For example, if an employee has taken eight weeks of leave during the past 12 months, an additional four weeks of leave could be taken. If an employee used four weeks beginning February 1, 2008, four weeks beginning June 1, 2008, and four weeks beginning December 1, 2008, the employee would not be entitled to any additional leave until February 1, 2009. However, beginning on February 1, 2009, the employee would again be eligible to take FMLA leave, recouping the right to take the leave in the same manner and amounts in which it was used in the previous year. Thus, the employee would recoup (and be entitled to use) one additional day of FMLA leave each day for four weeks, commencing February 1, 2009. The employee would also begin to recoup additional days beginning on June 1, 2009, and additional days beginning on December 1, 2009. Accordingly, employers using the rolling 12-month period may need to calculate whether the employee is entitled to take FMLA leave each time that leave is requested, and employees taking FMLA leave on such a basis may fall in and out of FMLA protection based on their FMLA usage in the prior 12 months. For example, in the example above, if the employee needs six weeks of leave for a serious health condition commencing February 1, 2009, only the first four weeks of the leave would be FMLA protected.

29 CFR § 825.200(c)

I know you didn’t read that. My eyes glazed over the first time I looked at that paragraph too. So let me break it down for you. Under (b)(1) or (b)(2) the employer sets a 12-month period within which employee gets to take the 12 weeks of leave in. At the end of that 12-month period, the leave renews and the employee can take another 12 weeks. (b)(3) is similar, except the date is not determined by the employer but by the date the employee first takes leave. Under (b)(4) the employee has a 12 week stock that replenishes on the anniversary of each date of leave taken.

 

Why? Care for a Covered Servicemember with a Serious Injury or Illness….Part 5

Heeeeeres Jarrod . . . Again.

Now what if spouses work for the same employer, can they each take 26 weeks to care for a covered servicemember or for other qualifying leave? This may seem fair because they’re separate people, but let’s take a look.

(f) Spouses who are eligible for FMLA leave and are employed by the same covered employer may be limited to a combined total of 26 workweeks of leave during the single 12-month period described in paragraph (e) of this section if the leave is taken for birth of the employee’s son or daughter or to care for the child after birth, for placement of a son or daughter with the employee for adoption or foster care, or to care for the child after placement, to care for the employee’s parent with a serious health condition, or to care for a covered servicemember with a serious injury or illness. This limitation on the total weeks of leave applies to leave taken for the reasons specified as long as the spouses are employed by the same employer. It would apply, for example, even though the spouses are employed at two different worksites of an employer located more than 75 miles from each other, or by two different operating divisions of the same company. On the other hand, if one spouse is ineligible for FMLA leave, the other spouse would be entitled to a full 26 workweeks of FMLA leave.

29 CFR § 825.127(f)

The answer to the above question is no. If both spouses are eligible for FMLA leave, and are employed by the same employer, they are entitled to a combined 26 workweeks (or 12 weeks if that is applicable) of leave within one 12-month period for the reasons listed including to care for a covered servicemember with a serious injury or illness.

Lastly, how should leave taken be designated by the employer?

(1)  In all circumstances, including for leave taken to care for a covered servicemember, the employer is responsible for designating leave, paid or unpaid, as FMLA-qualifying, and for giving notice of the designation to the employee as provided in § 825.300. In the case of leave that qualifies as both leave to care for a covered servicemember and leave to care for a family member with a serious health condition during the single 12-month period described in paragraph (e) of this section, the employer must designate such leave as leave to care for a covered servicemember in the first instance. Leave that qualifies as both leave to care for a covered servicemember and leave taken to care for a family member with a serious health condition during the single 12-month period described in paragraph (e) of this section must not be designated and counted as both leave to care for a covered servicemember and leave to care for a family member with a serious health condition. As is the case with leave taken for other qualifying reasons, employers may retroactively designate leave as leave to care for a covered servicemember pursuant to § 825.301(d).

29 CFR § 825.127(e)

Employee notice requirements under 29 CFR § 825.300 will be covered in a future post, and believe me you don’t want all that information crammed here anyway. Other than that, the crux of the language above basically says that in the event that care for a servicemember also qualifies as care for a family member with a serious health condition, the care needs to be designated as leave to care for a covered servicemember. The leave should not be designated as both leave to care for a servicemember and leave to care for a family member with a serious health condition.

That about wraps things up regarding circumstances when an eligible employee is entitled to leave. Next, we’ll be looking at the amount of leave employees may take under FMLA.

Why? Care for a Covered Servicemember with a Serious Injury or Illness….Part 4

OK another from Jarrod.  I’m really digging having this summer help.  And you need to pay attention here.  While we all really hope that this is not a type of leave that will come along very often in our workplaces, the amount of leave that an employee can take and the 12 month period we use to measure that leave are different from the normal 12 weeks and from the rolling 12 month period that I bet most of you use.

Because we now understand which eligible employees are qualified for leave to care for a servicemember, we can turn to how long those employees may take leave.

(e) An eligible employee is entitled to 26 workweeks of leave to care for a covered servicemember with a serious injury or illness during a single 12-month period.

29 CFR § 825.127(e)

Well that is easy to understand, but it still leaves us with a lot of questions. For example, when does that 12-month period start? And what if the employee doesn’t use all the 26 weeks?

(1) The single 12-month period described in paragraph (e) of this section begins on the first day the eligible employee takes FMLA leave to care for a covered servicemember and ends 12 months after that date, regardless of the method used by the employer to determine the employee’s 12 workweeks of leave entitlement for other FMLA-qualifying reasons. If an eligible employee does not take all of his or her 26 workweeks of leave entitlement to care for a covered servicemember during this single 12-month period, the remaining part of his or her 26 workweeks of leave entitlement to care for the covered servicemember is forfeited.

29 CFR § 825.127(e)

That answers both of those questions, 12 months from the date the employee starts FMLA leave and any unused workweeks are forfeited. But what if the employee cares for more than one servicemember, or what if that servicemember is subsequently seriously injured or acquires another serious illness?

(2) The leave entitlement described in paragraph (e) of this section is to be applied on a per-covered-servicemember, per-injury basis such that an eligible employee may be entitled to take more than one period of 26 workweeks of leave if the leave is to care for different covered servicemembers or to care for the same servicemember with a subsequent serious injury or illness, except that no more than 26 workweeks of leave may be taken within any single 12-month period. An eligible employee may take more than one period of 26 workweeks of leave to care for a covered servicemember with more than one serious injury or illness only when the serious injury or illness is a subsequent serious injury or illness. When an eligible employee takes leave to care for more than one covered servicemember or for a subsequent serious injury or illness of the same covered servicemember, and the single 12-month periods corresponding to the different military caregiver leave entitlements overlap, the employee is limited to taking no more than 26 workweeks of leave in each single 12-month period.

29 CFR § 825.127(e)

So regardless of the number of servicemembers cared for or subsequent injuries or illness, a single employee is still only entitled to take 26 workweeks of leave in one 12-month period. However, they may be entitled to take additional leave in subsequent 12-month periods due to care for other service members or subsequent injuries or illnesses. Now how does this interact with other, unrelated leave that an eligible employee is qualified to take under the FMLA?

(3) An eligible employee is entitled to a combined total of 26 workweeks of leave for any FMLA-qualifying reason during the single 12-month period described in paragraph (e) of this section, provided that the employee is entitled to no more than 12 workweeks of leave for one or more of the following: because of the birth of a son or daughter of the employee and in order to care for such son or daughter; because of the placement of a son or daughter with the employee for adoption or foster care; in order to care for the spouse, son, daughter, or parent with a serious health condition; because of the employee’s own serious health condition; or because of a qualifying exigency. Thus, for example, an eligible employee may, during the single 12-month period, take 16 workweeks of FMLA leave to care for a covered servicemember and 10 workweeks of FMLA leave to care for a newborn child. However, the employee may not take more than 12 weeks of FMLA leave to care for the newborn child during the single 12-month period, even if the employee takes fewer than 14 workweeks of FMLA leave to care for a covered servicemember.

29 CFR § 825.127(e)

Clear right . . . yea, clear as mud.  So let’s go over that again:  An employee is only eligible for a maximum of 26 workweeks of FMLA leave in a 12-month period, even if they are entitled to leave for reasons other than to care for a servicemember. Further, the employee can only take up to 12 weeks of FMLA leave for reasons not related to caring for the servicemember, and the remaining period of the 26 weeks must be used to care for the servicemember.