12 Weeks start over?
HCCADC
204 Posts
When does the 12 weeks start again? Is it the 1st day that the ee took FMLA or is it the last day of the FMLA leave? For example: I have an ee who is taking intermittent leave. She started in February 2005, she has not used up her 12 weeks yet. If she finishes the 12 weeks in Oct 2005, would the 12 week leave start again in Feb 2006 or Oct 2006? Thanks!
Comments
It all depends on how the employer’s defined its FMLA "year. The regulations provided for four distinct choices:
1.A calendar year.
2.A fixed 12-month period to coincide with the employer's fiscal year.
3.A 12-month period measured forward from the date an employee first uses FMLA, or,
4.A "rolling" 12-month period measured backward from the date an employee uses any FMLA.
Most employers that I know prefer the “rolling” 12-month period – it prevents “double-dipping. That is, if prevents an employee from stacking a 12-week stretch at the end of one year against another 12-week stretch at the beginning of another year and in the process yielding the employee 24-weeks of leave. See 825.200 of the regulations for a complete overview of your options.
Geno
Your person started using FML in February and used it all up by October. The 12 weeks are all gone at this point.
Starting in Feb 06, this person will start earning back her 12 weeks. She will basically get back a day on the anniversary dates of her usage of FML.
So if she used a day on February 10th 2005, she will earn that one day back on Febrary 10th 2006. But only that one day.
So if she used 10 days in February, she will earn back those 10 days one year later. She would not earn back any more days until the one year anniversary of the usage of each day.
Make sense?
If the employee took the first day of FMLA in February, that's when the 12 week clock started for that year. And, that's the exact day one year later, when the clock starts over.
When the clock starts, the ee has 12 weeks during that year. There's no need to view or explain it as a "day at a time earnings formula." She is very simply entitled to the federally stated leave amount.
If Marc's explanation were accurate, then the FMLA approval letter I write that employee, in February, upon her subsequent application, would state: (something like) Your application for leave is approved as FMLA. Effective February (whatever) you have one day of FMLA to take.
Only an accountant could come up with that logic. x:-)
The 12 week measuring backward method sounds insane; however, the feds have described it to me as being the SAME as the 12 week measuring forward method, which is the only one that makes sense for the employer.
Don, my explanation does work but if you need it, here is the official explanation in the DOL regulations excerpted from 29 CFR 825.200 (c):
"...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, 1994, four weeks beginning June 1, 1994, and four weeks
beginning December 1, 1994, the employee would not be entitled to any additional leave until February 1, 1995. However, beginning on February 1, 1995, the employee would be entitled to four weeks of leave, on June 1 the employee would be entitled to an additional four weeks, etc...."
Your letter approving FML would not be accurate if you said this person could take all 12 weeks starting from that first day in February. You would be giving more than the law requires if you did so. The case cited indicated the leave was utilized from February to October - we don't know how much leave was used in each of those 10 months, but measuring backward would tell you.
x:-)
I think we've (me included) confused the original questioner. Simply block out a 12 month period of the calendar which begins with the first occasion of FMLA, even if one day...and ending 364 days later. That's a stand alone period of time during which the employee can take 12 weeks. 365 days after that first day of FMLA in the calendar you created above, the whole shootin' match starts over again. And the next 12 month period begins on the next date of FMLA after you closed out the prior year.
Yes, the rolling method is the most difficult to track, however in post #3, the original poster indicated that is the method they were using, thus the explanation.
We use the rolling method and I notice a couple of other poster said the do also. Despite the extra difficulty tracking, I like the rolling method - it spreads out the 12 weeks of 12 months, unlike some of the other methods where the 12 weeks can come back to back and hamstring an ER with temps and/or spreading workload amongst coworkers while a position is protected.
Don D. - If you had an EE that used 2 weeks in June and then used 2 weeks in March, 4 weeks in April and 4 weeks in May, would you give them another 12 weeks starting in June? From you explanation, that's how I interpreted it.
Geno, SPHR
For whatever its worth.....our company follows the rolling calendar method and we compute and track the leave as Marc has stated and as supported by the regulation language.