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.