QUERY: Under the FMLA, eligible employees are entitled to 12 weeks of leave during a 12-month period. How is the 12-month period calculated?

RESPONSE: The following material is found in Ceridian's HR Compliance Reference System:

Under the Family and Medical Leave Act (“FMLA”) an employee is entitled to a total of 12 weeks of leave during any 12-month period.  An employer may choose any one of the following methods for determining the 12-month period for FMLA leave purposes:

• A calendar year, for example, January 1, 2007 through December 31, 2007.
• Any fixed 12-month period, such as a fiscal year, a year required by state law, or a year commencing on an employee’s start date.
• The 12-month period measured forward from the date any employee’s first FMLA leave begins.
• A rolling 12-month period measured backward from the date an employee uses FMLA leave. 

Under the calendar year and fixed 12-month methods, an employee would be entitled to up to 12 weeks of FMLA leave at any time in the fixed 12-month period selected. An employee could, therefore, take 12 weeks of leave at the end of the year and 12 weeks at the beginning of the following year.

Under the “measured backward” method, 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.

Under the “rolling” 12-month method, each time an employee takes FMLA leave the remaining leave entitlement would be any balance of the 12 weeks that the employee has not used during the immediately preceding 12 months.  For example, if an employee used four weeks beginning February 1, 2006, four weeks beginning June 1, 2006, and four weeks beginning December 1, 2006, that employee would not be entitled to additional leave until February 1, 2007. 

Because of the rolling nature of this method of calculating a 12-month period, beginning on February 1, 2006, the employee would be entitled to only four weeks of leave.  Then on June 1, 2007 the employee would be entitled to four more weeks and on December 1, 2007, four more weeks.

Employers may choose any one of the calculation alternatives provided the alternative chosen is applied consistently and uniformly to all employees.  An employer wishing to change to another alternative is required to give at least 60 days notice to all employees, and the transition must take place in such a way that the employees retain the full benefit of 12 weeks of leave under whichever method affords the greatest benefit to the employee.  Under no circumstances may a new method be implemented in order to avoid the act’s leave requirements.

An exception to the uniformity requirement exists for multi-state employers when one state may require a single method for calculating leave.  That employer must abide by the state law for all employees in that state but is free to choose another method for calculating a 12-month period for FMLA purposes for its employees in other states.

If an employer fails to choose an option for calculating the 12-month period, the option that provides the most beneficial outcome for the employee will be used.