intermittent leave and rolling calendar

pecohr

I need help with the following: we have an ee who has now exceeded her 12 weeks of FMLA utilizing intermittent leave. We use a rolling calendar year. Do I count forward from the time/date she first started using intermittent leave when determining or counting hours worked toward the next years available FMLA protection?

Thanks for your help.

stilldazed

We use a rolling calendar method of counting. I'm having a little trouble understanding your question, but I think we had an incident that is similar. An employee began an intermittent leave schedule (we'll say in Jan) and used 12 weeks before 12 months lapsed (we'll say in Aug). When the first absence in Sep came around that should have been FMLA, counting backwards reflected that 12 weeks had been exhausted within the 12-month period--i.e., no FMLA time left. Again in October, counting backwards reflected that 12 weeks hadexhausted--again no FMLA time left. It was not until the following Jan that some of the prior year's FMLA time started to drop out of the calculation, which allowed for more. However, the other issue was then whether the employee maintained 1,250 minimum workhour requirement. I've only had one like that, and I recall that it was very tedious and way more time consuming than I thought I had time for. We also found it to be an employee who was pushing the envelope on abusing the right. She got herself confused on FMLA vs. nonFMLA absences and tangled herself up in trying to ensure that our tracking records were correct. We took good notes, fortunately, and called her hand some. We reached a point where we started to put some pressure on her for nonFMLA absences, and she found another job elsewhere.

Don D

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Whether the leave is full time or intermittent has no effect on, nor is it affected BY, the calendar. The calendar starts its forward rolling motion precisely when the first hour of intermittent leave, or day of regular leave, is taken. And it expires 12 months to the day later, at which time the 12 weeks is a fresh, unused pool of entitlement.

The rolling 12 month calendar is a straight line, beginning precisely with the first hour taken and the length of that straight line is roughly 365 days. Any and all FMLA taken during that period of time, whether by the hour, the week or the day, is subtracted from the maximum entitlement of 480 hours and once the 480 hours have been taken, the employee has zero leave to take until that rolling 12 months expires, at which time it starts anew on the next subsequent hour or day of FMLA.

(edit: 480 - not 96 hours. See post no. 6 below)

Balloonman

Don,
A very nice clear and concise explanation.......and correct too....good job Dandy Don!
My $0.02 worth.
DJ The Balloonman

AnneHa

Don D - would you please explain the 96 hour time frame? I have been allowing 480 hours for FMLA and want to flog myself if I only had to allow 96!

Anne in Ohio

Don D

Oh my goodness. In my haste to post, I calculated 12 days, not 12 weeks. Please substitute your 480 for my 96. (Of course I did that to see if you were paying attention, right?) x:-)

stilldazed

Please tell me if I'm misunderstanding your explanation, but what you describe sounds like the "Option 3" method for calculating--"12-month period measured forward from the date any employee's first FMLA leave begins." The DOL handbook (Pg 101) describes that option in a way that sounds similar to your description: "An employee would be entitled to 12 weeks of leave during the year beginning on the first date FMLA leave is taken; the next 12-month period would begin the first time FMLA is taken after completion of any previous 12-month period."

The same handbook describes rolling 12-month calendar (Option 4) as "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."

I thought I had it, but now I'm not so sure. Rolling calendar is our method for calculating, and my understanding is that with each request, we must look backwards for eligibility and designated FMLA time that may have been used. As long as the employee continues to satisfy eligibility requirements, any time used within the last 12 months is subtracted from 12 weeks. The balance is what is available for the next 12-month period. That means that a some employees may have a balance of zero for a time into the future year if they have used much FMLA in the past year. Also, if the employee makes multiple requests within any 12-month period, the start date for the year will vary accordingly.

My handbook came compliments of an employee complaint about a year or so ago. I was encouraged by a local DOL rep to accept the free copy. Of course, I didn't turn it down.

Balloonman

No, at the first request the calendar for the year starts ticking. So lets say 2/1/04 they began the leave. Then once they use up the 12 weeks, if they do, they do not get another 12 weeks FMLA until 2/1/05. You do not restart the calendar with each leave even if for a different reason. This would be option 3 as described above. This, in my humble opinion is one of the better ways of doing it. If you go by calendar year, you could theoretically have an employee take leave Oct-Dec for say 2004 then take Jan-March for 2005 being out 24 weeks back to back.
My $0.02 worth.
DJ The Balloonman

Don D

Both methods result in the same amounts of entitlement leave for the employee. The only one you don't want to use is the calendar year method, which would result in an employee taking off the last 12 weeks in one year and the first 12 weeks in the next, for 24 straight weeks. Believe it or not, some employers choose that one.

stilldazed

Thanks to Balloonman and you. For right now, I think I have it, and we are administering correctly. That's not to say I won't need a refresher tomorrow!