Seems like such a simple term, but it is complex and depends on the situation and calendar method.

Question: Could you clarify how to count the 12 weeks? Should it be since the first day of leave or per calendar year?

Answer:  This question is complicated because it depends on the employer’s calendar method. There are four calendar methods – let’s review each of them:

  • Calendar: Employers who use the calendar method count absences based on January to December of each year, and provide employees with a fresh 12 weeks of available leave as of January 1 of each year. This is regardless of whether employees used all (or any) of their time or not in the prior year. If an employee’s first absence of the year isn’t until December 28, they will get to use four days that calendar year. On January 1, they will then have a fresh new 12 weeks available to them, but the 11+ weeks they didn’t use in the prior year are gone – unused entitlement does not carry over to the subsequent year. On the other hand, if the employee used all 12 weeks of FMLA during October, November, and December, they would be allotted 12 weeks available beginning on January 1.
  • Fixed: Think of this method like the ‘Calendar,’ but the employer defines what the calendar time-frame is. For example, ‘Fiscal year’ is the most popular, but the fixed method could be any year-long period (e.g. November 1, 2021, through October 31, 2022).
  • Rolling Forward: This method is a 12-month period which is employee-specific, so it is not the same for all employees and can be very difficult to understand, track, and explain. The very first approved absence that an employee takes starts their 12-month window to use their available 12 weeks. Therefore, if an employee starts an approved FMLA absence on March 15, they have until March 14 of the following year to take their 12 weeks of leave. Note: That March 15 is a moving target, as the next 12-month period will be determined by their first approved date of absence after the March 14 period ends their 12 months.
    • Example:
      • March 15, 2021: Sarah’s first approved FMLA absence
      • March 14, 2022: End of Sarah’s one-year period to use 12 weeks
      • July 22, 2022: Sarah’s next approved FMLA absence
      • July 21, 2023: End of Sarah’s next one-year period to use 12 weeks
    • Like with the Calendar method, employees won’t accumulate unused time, but rather on the day after the end of the 12-month period, their available time is fully restored.
  • Rolling Backward: This method is the most difficult to track, but generally is the most advantageous to employers, also the most common. Under this method, for each day–or even hour– of leave that an employee uses, the employer looks backward one year to determine how much leave the employee has already used. The employee’s available leave equals 12 weeks minus any leave they already used in the previous one year.
    • Example:
      • March 15, 2021: Sarah’s first approved FMLA absence of 6 weeks. Since she’s never used FMLA leave, they know she has available time.
      • July 8, 2021: Sarah requests 4 weeks of FMLA time. The employer looks back at the window of July 9, 2020, to July 8, 2021, to determine the total number of weeks used. They see she used 6 weeks in March of 2021, so she has 6 weeks available.
      • January 21, 2022: Sarah requests another 4 weeks for FMLA time. Again, the employer looks back at the one-year window leading up to the start of the leave. Between January 22, 2021, and January 21, 2022, Sarah used 10 weeks. Therefore, she only has 2 weeks left. The first two weeks she requested can be approved, but the second two weeks would not be job-protected under the FMLA.
      • March 15, 2022: Sarah will start to regain 6 weeks of time, as it is one year after her first absence.
      • July 8, 2022: Sarah will start to regain 4 more weeks of time.
      • January 21, 2023: Sarah will start to regain 2 more weeks of time. Although her absence may have been the full 4 weeks requested, only two of them were designated under the FMLA.

The DOL has created resources that provide additional explanations and examples – check out their FMLA Employer’s Guide.

Common Q&As:

  1. Can you provide additional clarification regarding gaining back FMLA hours while still absent? Employees do not have to be actively at work to regain time. If they just so happen to be out on a leave of absence on the day they would have normally regained time, then that available time should still be restored. They only need to be an active employee (not terminated, laid off, etc.).
  2. How can an employer change to a rolling calendar year if the rules of the FMLA are set by the federal government? Also found on page 51 of the link provided above, the Feds just outlined the four options. It is up to the employers to choose, so long as they are consistent across all employees.

If you want more information on this topic, see section 825.200(b) through (h). in Electronic Code of Federal Regulations

What is Guardian doing?

Guardian continuously tracks and analyzes current and pending leave and accommodation legislation to determine potential impacts to our customers. In addition, Guardian monitors guidance from agencies such as the Department of Labor and EEOC and incorporates that guidance into our administration when appropriate.

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Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. Guardian does not provide legal services. Consult an attorney for legal advice on this or any other topic. GUARDIAN® is a registered service mark of The Guardian Life Insurance Company of America® ©Copyright 2021 The Guardian Life Insurance Company of America, New York, N.Y.

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