Rolling 12 mos- when eligibilty begins

Catbert46

Good afternoon HR Heroes;
I have an employee in GA who took FML leave from 10-17-06 to 12-27-06. She is now being written out from 10-5-07 to 1-14-08. I have heard two opinions and would like yours.
#1 - She would only be eligible for the remainder of the twelve weeks (8 days) until 12-27-07, since she came back to work at that time then the rolling 12 starts again on that date.
#2 - She takes the 8 remaining days which takes her to 10-17-07, then we have to give her back 8 hours per day of the FML used. So she would get 8 use 8 and so on until she again hits the full twelve weeks which happens to be on 12-27-07.

#1 says she wouldn't be eligible to get the 8 hours per day back unless she was actively at work.

#2 says that it doesn't matter whether or not she is actively at work.

I bow to your wisdom and knowledge on this one. Both make sense. Help!

NeedCoffee

Well, both #1 and #2 are kind of correct, but not entirely. It all depends on what your company has chosen for its method of calculating leave. What method have you used in the past?

A. calendar year
B. any 12 month period year, such as by 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

Under "C", your employee has 12 weeks to use between 10/07/06 and 10/06/07. Beginning 10/07/07, they would then have another 12 weeks to use.

Under "D", your employee would use any remaining leave until 10/06/07. On 10/07/07, they would have to work 8 hours to get 8 hours.

Hope that made sense. "D" doesn't allow for "piggybacking" of leave, meaning they can't take 12 weeks from one year and 12 weeks from the other year back to back. We use option "D". It's not as easy to administer, but protects the employer a little more.

Make sure you follow your precedents and maintain consistency. If you have never encountered 2 FMLAs like this, look at your FMLA notice - does it have your calculation method? If not, you may want to take this time to decide on a method and communicate it to employees. Don't you love FMLA?

Catbert46

We actually use D also. I thought they couldn't use it that way but my atty interpreted the word "uses" differently. Believing that we did have to give the credit even if they were not actively employed. Do you know specifically which part of the reg addresses that? I would love to show him and see if I can get him to interpret it the same way.

NeedCoffee

Give this a shot:

29 CFR 825.200

29 CFR 825.205

Good luck!

There also may be a thread laying around here that has a better citation. Do a search during the last 6 months, keywords fmla, rolling, etc.

Catbert46

You Rock!! Thanks!

stilldazed

If you have a copy of the Fed Reg version of the FMLA legislation, point your attorney to the discussion about how to determine the amount of FMLA time left available. Unless I misunderstand the discussion, there is no reference that the employee must work 8 to get 8, or maybe I misunderstood your prior direction. I read it as (and we administer it as) as one day falls off the 12 weeks used, one day is added on to the time available.

Example: Worker is out 2/1/06 thru 4/30/06 & uses 9 weeks. Worker is out again 6/1/06 thru 6/27/06 and uses 3 weeks. 12 Weeks are exhausted within 12 months. Worker needs to be out again 12/1/06 thru 3/31/07. Using the rolling backward method, look backward from 12/1/06 to 12/1/05 and determine that 12 weeks were designated/used. There is no FMLA time left to designation until 2/1/07. Looking back 2/1/07 to 2/1/06, 12 weeks have been used, thus none left to designate. However, as of 2/2/07, one day is available for designation, and so on until the worker returns to work 3/31/07. If your company has been generous enough to allow the LOA until 2/1, the rest of the absence could be covered without the worker having to return to work, one day at the time.

My apologies if I misread something, but I'd really like to hear your attorney's finding as well as input from others.

best wishes

Catbert46

No and thanks for the follow up. That is the way my attorney interpreted it. I am obviously mistaken in my understanding. I understood/misunderstood that the employee had to be actively at work to get the add back. This particular situation is that the employee gets 8 days as the remainder of the twelve weeks from the previous year. But since the last absence begain on 10-17-06, then on 10-17-07 the employee gets one day back and so on until they have again exhausted a 12 week period. Which again in this case is 12-27-07. The employee however is written out currently until 1-14-08. So I think I was the one who did not correctly interpret the reg.