Q: What is the 12-month period for FMLA?
A: One of the items an employer must determine when they first become eligible as a federal Family and Medical Leave Act (FMLA)-covered employer is the 12-month period, or “leave year,” they will use to track FMLA leave. The regulations provide the employer with some options including a calendar year, or any fixed 12-month period (such as an anniversary year or a fiscal year), a period measured forward 12 months, or a “rolling” backward 12-month period. Our members most frequently use a calendar year or a “rolling” backward 12-month period.
The calendar year option is straightforward. The employee is eligible for up to 12 weeks of leave between January 1 and December 31 each year if they remain FMLA eligible. Available leave is not reduced by how much FMLA time the employee used in the previous calendar year. For example, an employee who has knee surgery in October 2024 may take up to 12 weeks of FMLA leave between October and December 2024. In January 2025, they may be eligible for additional leave, up to 12 weeks, even if for the same serious health condition. Employers may elect not to use the calendar year for FMLA leave as it can have a negative impact on business operations. For employers in Wisconsin, it is important to know that Wisconsin FMLA requires FMLA use to be calculated within the calendar year. Therefore, Wisconsin employers may elect to administer FMLA, both federal and state, within the calendar year while others choose to use a calendar year for Wisconsin FMLA and a different 12-month period for federal FMLA. This method is less generous for the employee and can be administratively challenging.
The other common, but somewhat complicated, 12-month period is the “rolling” backward method. For this method, at the time the employee requests FMLA leave, the employer must review the FMLA time used in the previous 12 months. If the employee has not used all available FMLA leave (up to 12 weeks in the previous 12 months), they may be eligible for additional leave time. This method can be difficult to administer, especially in cases where an employee is taking some FMLA leave intermittently and some continuously. In these cases, the employer may need to convert the time to hours rather than weeks (e.g., 480 hours for a regular full-time employee rather than 12 weeks or 60 days). The following scenario should help you understand how to utilize the “rolling” backward 12-month leave year.
Scenario: Jane is a full-time employee, she works 40.00 hours per week, and her scheduled workdays are Monday through Friday, 8.00 hours per day. She is eligible for 12 weeks (480.00 hours in her case) of federal FMLA only and her employer uses a “rolling” backward 12-month leave year. Jane was approved to use intermittent FMLA for her anxiety beginning Jan 30, 2023. Jane had never used FMLA leave before January 30, 2023. She was absent for full-day intermittent FMLA on the following dates: January 30, 2023, February 3, 2023, March 6, 2023, and May 25, 2023. On June 1, 2023, she gave birth to a child and was out from June 1, 2023, through August 17, 2023, using the remainder of the 12 weeks of available leave.
Additional Leave Request Example #1: Jane is diagnosed with a chronic condition and calls in requesting a full day intermittent FMLA absence on January 5, 2024. She does not have FMLA available because 480 hours have been exhausted between January 6, 2023, through January 5, 2024.
Additional Leave Request Example #2: Jane calls in for a full-day intermittent FMLA absence on May 22, 2024. She has FMLA available to her, as her FMLA used/taken amount will be 464.00 hours (less than the 480.00-hour maximum) between May 23, 2023, through May 22, 2024. The time used in January, February, and March would no longer be included in her balance since they have exceeded the 12-month “rolling” back period.
Additional Leave Request Example #3: Jane needs surgery and a continuous FMLA leave from July 1, 2024, through July 30, 2024. Jane has FMLA available to use as her FMLA used/taken amount is 480.00 hours or less on each day of this leave.
It is important to remember when using a “rolling” backward 12-month period, you must calculate the used/taken amount each time FMLA is requested or used to determine the amount of FMLA available. It is possible for an employee to exhaust FMLA mid-shift, where only part of a full day absence is FMLA.
If an employer decides they would like to adjust the 12-month period they had previously selected for their FMLA policy, a notification process is required. An employer wishing to change to another “leave year” is required to give at least 60 days' notice to all employees. The employer must also ensure employees retain the full benefit of up to 12 weeks of leave under whichever method affords the greatest benefit to the employee. This could result in employees being on two different types of 12-month periods during the transition.
It is difficult to recommend which 12-month period “leave year” an employer should utilize, as many factors must be considered. If you wish to talk through these factors, please contact the HR Hotline. Regardless of the method used, maintaining accurate and current FMLA request and use records is critical.
