Thoughts On The FMLA

1. EMPLOYER DESIGNATION OF 12 MONTH PERIOD. As you know, the FMLA allows an employee a 12 week period of unpaid leave for the birth of a child, to care for a family member with a serious health condition, due to the employee's own serious health condition, or to place a son or daughter for adoption or foster care. The 12-week leave period is the total amount allowed during any 12 month period. The regulations allow the employer to designate methods for determining the 12 month period in which the 12 weeks of leave entitlement occurs. Specifically, the employer can choose one of four methods:

(a) The calendar year;

(b) 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);

(c) The 12-month period measured forward from the date any employee's first FMLA leave begins; or

(d) A "rolling" 12-month period measured backward from the date an employee uses any FMLA leave.

At first glance, it would not appear to matter which method the employer adopts; however, it is to the employer's advantage to understand the implications of these methods.

If the employer selects methods under paragraphs (a) or (b), an employee could end up taking 12 weeks of leave at the end of the designated year and then 12 weeks at the beginning of the following year. For example, in the calendar year method, the employee could take October through December off in the one year, and January through March off in the following year. Likewise, if the chosen method was a fiscal year from April to April, the employee could take 12 weeks from January through March of the first year, and April through June of the following year. In effect, the employee gets to take advantage of the method chosen and can take twenty-four weeks (yes, six months in a row) and be entitled to do so under the FMLA. Thus, we strongly recommend that employers not choose the first two methods allowed under the Act.

Under the third method of subparagraph (c), an employee could not take twenty-four consecutive weeks, because the employee must wait what amounts to nine months after he or she first took leave under the FMLA before being eligible for another 12 weeks of leave. For example, if the employee takes 12 weeks of leave from June through August of the first year, the employee would not be eligible to take his or her next leave of absence under FMLA until June of the following year.

Perhaps the most favored method among employers is the "rolling" 12 month period under subsection (d). Under this method, 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 preceding 12 months. For example, if an employee took eight weeks of leave, an additional four weeks of leave could be taken. As further explained in the regulations, if the employee used four weeks beginning February 1, four weeks beginning June 1, and four weeks beginning December 1, the employee would not be entitled to any additional leave until February 1 of the following year. However, beginning that following February, the employee would be entitled to four weeks of leave only, and would not be entitled to another four weeks until the following June. While this may create headaches to bookkeepers in the human resource departments, it will save the employer time and money in the long run. Since employers must designate leave under the FMLA anyway, employers would be wise to keep separate files or documents on FMLA time taken by each employee in order to track when the employee would be entitled to leave the following year.

Should an employer bother with selecting one of these methods? Absolutely yes, because the regulations further provide that if an employer fails to select one of the options, whatever option provides the most beneficial outcome for the employee will be used. Whatever method is chosen must be applied consistently and uniformly to all employees. If an employer has a certain method in place but wishes to choose another, the employer must 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 no circumstances may a new method be implemented to avoid the act's leave requirements. During the 60 day notice period of changing the method, any employee who needs FMLA leave may use the option which provides the most beneficial outcome to that employee. At the conclusion of the 60 day notice period, the employer may then implement the selected option.

Finally, when counting the leave, holidays that occur within a week taken as FMLA leave have no effect, and the week will be counted as a full week of leave. However, if the employer's business activity temporarily ceases so that employees are not expected to report to work for one or more weeks, the days that the employer's activities have ceased do not count against the employee's FMLA leave entitlement.

2. DISABILITY LEAVE TAKEN FOR THE BIRTH OF A CHILD. If an employee must take time off due to complications from pregnancy, such leave would be considered a serious health condition under the FMLA. While the employee would qualify for temporary disability benefits (and hence the leave would be paid), the employer may still designate the leave as FMLA leave and count the leave as running concurrently for purposes of both the benefit plan and the FMLA leave entitlement. If the requirements to qualify for the employer's temporary disability plan are more stringent than those of the FMLA, the employee must meet those stringent requirements or else choose not to meet those requirements and instead receive no payments from the plan and use unpaid FMLA leave or substitute available accrued paid leave.

3. WORKERS' COMPENSATION ABSENCES. If an employee receives an injury on or off the job which qualifies as a serious health condition under the FMLA, the employer may designate the leave as FMLA leave, and this time may run concurrently with a workers' compensation absence. It does not matter that the employee is being paid workers' compensation benefits; the FMLA leave will still be counted. If a health care worker treating an employee for the workers' compensation injury certifies that the employee can return to a light duty job but not to the same or equivalent job, the employee may decline the employer's offer of a "light duty job." As a result, while the employee may lose workers' compensation payments, he or she is still entitled to remain on unpaid FMLA leave until the 12 week entitlement is exhausted. As of the date that the workers' compensation benefits cease, the employee may elect or the employer may require the use of accrued paid leave. The employer must give notice when the employee is entitled
to FMLA leave.