How much? Amount of Leave an Eligible Employee May Take….Part 3

So because Jarrod has been writing these and because I was not paying attention I published part 3 of this series as part 2.  So this one, which is labeled part 3 should really be part 2 . . . OK now even I’m confused, but if you are following these closely they are going to look out of order.  Don’t worry, its all here.  Steve.

The employer must choose one of the 29 CFR § 825.200(b) options to apply to all employees of the business, and may only change options after providing all of its employees 60-day notice. That is, unless the employer is a multi-State employer in a State which has a family and medical leave statue, then in those States, the employer must comply with the State requirement and may choose any of the other options to apply to the rest of the employees in other states. Employers must also make sure that any change does not deprive an eligible employee of its full 12 weeks of leave.

(1) Employers will be allowed to choose any one of the alternatives in paragraph (b) of this section for the leave entitlements described in paragraph (a) of this section 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.

(2) An exception to this required uniformity would apply in the case of a multi-State employer who has eligible employees in a State which has a family and medical leave statute. The State may require a single method of determining the period during which use of the leave entitlement is measured. This method may conflict with the method chosen by the employer to determine any 12 months for purposes of the Federal statute. The employer may comply with the State provision for all employees employed within that State, and uniformly use another method provided by this regulation for the leave entitlements described in paragraph (a) for all other employees.

29 CFR § 825.200(d)

But what if an employer fails to choose one of the options listed?

(e) If an employer fails to select one of the options in paragraph (b) of this section for measuring the 12-month period for the leave entitlements described in paragraph (a), 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 § 825.200(e)

So basically, if the employer doesn’t choose an option, the employee, individually, gets to use the most beneficial option for them. This can be confusing because an employer can end up with a lot of different 12-month periods calculated in different ways. Thankfully, an employer can remedy this for all future employees by providing a 60-day notice to all employees of the employer’s option. However, during that 60-day period any eligible employees taking leave may still use the option most beneficial to them.