FMLA Dilemma

Rockie · June 2002

We have an employee who was hospitalized today for a pregnancy related issue and will be out until after the birth. I will start her FMLA today.

We use a rolling 12 month period. She was out starting last July 18 for three week for foot surgery. According to today's calculations, she has 9 weeks available to her. Her next 12 week time frame will start on July 18. Am I allowed to count this 5 week time period between now and July 18 as part of her overall 12 weeks or does she get to start entirely over on July 18 and get a total of 17 weeks?

This calculation of time can be very confusing when these "overlap issues" come up.

Don D · June 2002

12 weeks between July 18, 2001 and July 17, 2002. Another 12 weeks between July 18,2002 and July 17, 2003.

Rockie · June 2002

So....Don...my worst nightmare is coming true! We would have to give her 16 weeks? AHHHHH! Not the answer I was looking for.

Don D · June 2002

Actually I think it's 17 in a row. 5 during the current rolling year and then 12 in the next. But, are you certain she wants to be out all that time? She may surprise you and just miss a total of 6 weeks plus a few days prior to delivery. Worst case scenario is 17. But then you're clear for the following 40 weeks.

Catherine · June 2002

We use a rolling FMLA year that is defined in our policies as a "12-month period measured backward from the date an employee uses any FMLA leave. This means that 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."

Under our policy, this means that she would be able to use the 5 weeks, then you measure it from each day of leave backwards for 12 months. The effect is that your employee would have 12 weeks, total. I believe you'll find this definition of a "rolling" year on the DOL website and in the Code of Federal Regulations.

You may review CFR 825.200 found at: [url]http://www.access.gpo.gov/nara/cfr/waisidx_98/29cfr825_98.html[/url]

If your policies define "rolling" differently, though, you'll probably have to stick with that.

Good luck!

Dottie · June 2002

[font size="1" color="#FF0000"]LAST EDITED ON 06-13-02 AT 07:40AM (CST)[/font][p]So, let me make sure I understand -- the employee would use the remaining 9 weeks of leave, taking her up to August 14. Then, would she have to wait another 12 months before being eligible for any additional leave? We have a similar "rolling" policy, but have never had to apply it. I thought I understood it, but this conversation has me second guessing myself.

Catherine · June 2002

[font size="1" color="#FF0000"]LAST EDITED ON 06-13-02 AT 09:17AM (CST)[/font][p]Not exactly. In this case, she would end up getting 12 weeks, but you measure backwards one year from each day of leave. Make sense? By the time she uses up her nine weeks of remaining leave, which would be somewhere around August 5th, you count the leave taken in the preceding 12 months, so you're considering August 5th (approximately) to August 5th, which means she probably only has a few days counting against her from her last FMLA absence. It means that in any given 12 month period, an employee cannot take more that 12 weeks, which is the benefit of the "rolling" year.

tfevergrn · June 2002

So does this mean from Aug 5, 2002 back to August 5, 2001 the employee would have alteady used 9 weeks and therefore would only have 3 weeks left. I thought I umderstood this but Catherine makes a good point.

Don D · June 2002

I agree with a substantial number of others, including lawyers, some associate editors on this forum, that there is no practical difference in the rolling forward and the rolling backwards calculations systems. You can cook the popcorn in a microwave or over gas heat and it tastes the same.

njjel · June 2002

I recently attended an HR seminar and the instructor advised those of us who use a rolling forward basis that it would work like this:

On July 19th of this year the employee would have 9 weeks and one day of FMLA leave to her credit. On July 20th the employee would have 9 weeks and two days of FMLA leave to her credit, etc.

However, because the employee won't be working on July 19th, do they still get to accrue the leave time??

Catherine · June 2002

FMLA leave doesn't really accrue the way vacation or sick leave might. As long as they meet the hours worked requirement of 1250 hours in the last 12 months, the absence shouldn't affect their eligibility for leave.

jmssr · July 2002

Don't forget she also hasa to work 1250 hours to be eligible for the next FMLA.

FMLA Dilemma

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