Setting Up FMLA Policy

Good Afternoon, We are reaching the point where we have to provide an FMLA policy. We are in NYS and we are curious if there are other employers in NYS who are small business   who have implemented an FMLA policy. If so, what method of calculating FMLA have you chosen as I don't see a specific ruling for NYS, thus I understand we can use any of the 4 Federal tracking methods. Also what do most employers require as far as using their PLT, (we clump all time as PLT) do you require them to use a portion of that as part of their FMLA?  Any guidance you can give me would be greatly appreciated.


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  • As you note, there are 4 methods for tracking federal FMLA. The methods for calculating the FMLA 12-week limit may be based on:<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />

    1. The calendar year;
    2. Any fixed 12-month period (such as a fiscal year, year required by state law, or year that begins with
    an employee’s anniversary date);
    3. A 12-month period, measured forward, that begins on the date an employee first starts the FMLA
    leave; or
    4. A “rolling” 12-month period, measured backward, from the date an employee last used any FMLA

    A primary advantage shared by the first two methods is that recordkeeping and administration may be easier. This is because the methods used are consistent for all employees and may easily be linked with other systems, such as attendance, that are on the same schedule.

    A major disadvantage to employers that use the first three methods just described is that each allows “stacking” of leave time by employees. This means that employees theoretically could take 24 weeks in a row; for example, the last 12 weeks of a calendar year and the first 12 weeks of the next calendar year. Such a protracted leave is not allowed under the fourth method, rolling calculation of leave. This method avoids any possibility of stacking, but may be more difficult to administer.

    Under the third method (where the 12-month period is measured forward from the date of an employee’s first FMLA leave), 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 leave is taken after completion of any previous 12-month period.

    Note: Under the rolling 12-month method, each time the employee takes FMLA leave, the remaining balance in the leave entitlement is equal to the portion of the 12-week leave entitlement that was not used in the immediately preceding 12 months. The rolling period provides a snapshot that changes daily of the preceding 12-month period.

    Example of rolling method. If an employee has taken 8 weeks of leave during the past 12 months, an additional 4 weeks of leave could be taken. If an employee used 4 weeks beginning February 1, 2013, 4 weeks beginning June 1, 2013, and 4 weeks beginning December 1, 2013, the employee would not be entitled to any additional leave until February 1, 2014.

    However, beginning on February 1, 2014, the employee would again be eligible to take FMLA leave, recouping the right to take the leave in the same manner and amounts in which it was used in the previous year. Thus, the employee would recoup (and be entitled to use) 1 additional day of FMLA leave each day for 4 weeks, commencing February 1, 2014. The employee would also begin to recoup additional days beginning on June 1, 2014, and additional days beginning on December 1, 2014.

    Employers using the rolling 12-month period may need to calculate whether the employee is entitled to take FMLA leave each time that leave is requested, and employees taking FMLA leave on such a basis may fall in and out of FMLA protection based on their FMLA usage in the prior 12 months. As demonstrated in the example above, if the employee needs 6 weeks of leave for a serious health condition commencing February 1, 2014, only the first 4 weeks of the leave would be FMLA-protected.

    Generally employers require employees to "take" accrued paid leave concurrently with unpaid FMLA leave in order to limit the amount of leave that may be taken during a 12-month period. Employers may require the employee to substitute accrued paid leave for unpaid FMLA leave pursuant to the employer’s established policies for use of paid leave.


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