FMLA and twelve month period for eligibility

FMLA (Family and Medical Leave Act) medical leave is a huge source of employment litigation in Texas and around the nation. One of the major issues in FMLA leave and FMLA litigation is how the employer calculates eligibility for medical leave. FMLA protects medical leave for qualified medical conditions up to twelve weeks within a twelve month period. The Department of Labor recognizes four formulas for calculating FMLA eligibility within the twelve month period.

Which formula the employer adopts and how the employer implements that formula can greatly affect the employee’s rights under FMLA. That is especially true when the employee has taken FMLA leave in the recent past. The employer’s failure to apply the correct formula can result in an invalid rejection of the FMLA leave. That can result in claims against the employer for FMLA interference.

Today’s post will first address the four DOL formulas. Then we’ll discuss how employers commonly interfere with employee FMLA rights with regard to this eligibility calendar. If you believe your employer violated your FMLA rights then you should contact a Texas FMLA lawyer right away.

The Department of Labor’s Twelve Month Period Formulas

Under the Family and Medical Leave Act the employee has protected leave up to twelve weeks in a twelve month period. Assuming the employer is covered by FMLA and the employee met all of the other requirements for FMLA-protected leave. FMLA does not require the employee to adopt the calendar year as the twelve month period for FMLA leave.

One reason FMLA permits alternate formulas is to prevent leave the last twelve weeks of one year and the first twelve of the next. That would result in six months of an absence. That could be a burden for many employers.

Each time an employee requests FMLA leave, the employer must make a new determination of eligibility. Part of that determination includes applying the twelve month eligibility to see how much protected leave remains. That means each request for leave is a new opportunity for the employer to make an error in the calculation.

It also means the employee needs to carefully consider the use of FMLA leave to avoid exhausting it prematurely.

Employer’s duty to adhere to FMLA formula

The employer is free to adopt any one of the four available formulas; but when it chooses a formula it must adhere to its decision. The employer must apply the formula uniformly and accurately for each eligible employees. It cannot chose a formula to use for each request. It cannot change the formula on a whim. FMLA requires a change in the formula to be communicated to employees with at least sixty days prior notice and once a new formula has gone into effect the employer must give the employee leave calculated under whichever of the new or old formula that would give the employee more leave time until whatever time the old formula would no longer apply to new leave requests.

These notice and overlapping formula regulations can produce FMLA claims for the employees. I’ll address that in more detail below.

First, let’s take a look at those formulas:

1. Calendar Year

The employer may choose to establish the twelve month period to run from January 1 to December 31 each year. Under this formula, all prior leave is removed from the calculation on January 1. You can have employees take leave back-to-back at the end of one year and the beginning of the next.

2. Any fixed period of twelve consecutive months

The employer can select a different twelve month block than the calendar year. For example, the employer could run the twelve month period under its fiscal year or the deadline for benefits enrollment. The employer can set the same date for all employees or a particular event date for each employee.

That means the employer can set the anniversary of your hire date as the beginning of your twelve month period. Each employee will have a different twelve month period because each employee’s hire date is different but the employer must use that same event as the start date for all employees. It cannot give some employees a start date on their hire date and other employees some other event date.

Since employees become eligible for FMLA when they have completed one year of employment with 1,250 hours of service, if an event date is selected it is almost always going to be the anniversary of the employee’s date of hire.

3. Rolling twelve month period measured forward

Under this more complicated formula, no set schedule is determined for employees to start and end the twelve month period for FMLA leave. Instead, a new twelve month period begins on the first date of the employee’s initial FMLA leave and ends on the prior date the following year. If you take FMLA leave on December 1, 2013 then you begin a twelve month period that runs until November 30, 2014.

If you exhaust your twelve weeks of leave before December 1, 2014 then you cannot take more protected leave until you wait out the clock. On December 1, 2014 you start over.

However, if you don’t take leave again until February 1, 2015 then you start a new rolling twelve month period on February 1, 2015 not December 1, 2014. As a result, the rolling formula gives employees fewer opportunities to take FMLA leave than a fixed twelve month period formula.

4. Rolling twelve month period measured backward

This formula is extremely common and the least advantageous to the employee. This formula works just like the last formula except the employer looks backward to determine eligibility. Using our example above, if you want to take leave on December 1, 2013 then your employer looks at how much FMLA leave you used since December 2, 2012.

Each day of FMLA leave in that backward-looking year is deducted from the leave you can take on December 1, 2013 forward, even though the December 1, 2013 leave period will go past the twelve month period the employer reviewed. That allows the employer to gain the same benefit of the rolling formula explained above but the employer also gets to take out credit in a twelve month period for the time you are on FMLA leave. Let’s look at a more complex example that shows how this formula really works.


Let’s keep our same December 1, 2013 leave date. If you took December 2, 2012 to December 31, 2012 as FMLA leave then you will have roughly eight weeks you can take. Let’s say you take all eight weeks and your leave ends on January 31, 2014. You then request more leave on February 1, 2014. Your employer looks back twelve months to February 2, 2013. The December 2012 leave has rolled off the calculation because it is more than twelve months in the past. You have the most recent eight weeks, which gives you four more weeks. If you burn through that four weeks by February 28, 2014 then you now have the full twelve weeks of protected leave used up.

New FMLA leave eligibility in this example

You will have to wait until the calendar advances and the most recent leave starts dropping off. On December 1, 2014 you will have one day of FMLA leave available. The next day, two days of available leave and so on. On March 1, 2015 you will have no FMLA leave in the last twelve months so you can take all twelve weeks again, assuming you took no leave in December 2014, January 2015, or February 2015. So you really get a clean slate every twelve months plus whatever amount of FMLA leave you took in the prior twelve months.

In this example, we took all the leave so it will be fifteen months before you start fresh with twelve weeks of available leave. Remember in the forward-looking formula you had a fresh run of twelve weeks on December 1, 2013 and when you took that leave you would start over with twelve more weeks on December 2, 2014.

Now if you take FMLA leave in smaller blocks throughout the year, such as intermittent FMLA, then you will always have small blocks of FMLA leave peppered through the last twelve months and you may not have enough time left to take a large block of leave if you need to. You can also run out of available FMLA leave quicker.

It’s a real danger for people with chronic health conditions who may need to see a physician on a regular basis or has to receive multiple surgeries over time. If your employer violates your FMLA rights you have remedies under the statute.

Common Ways Employers Interfere with Your FMLA Rights with these Formulas

As you can see, these formulas create opportunities for incorrect calculations of available leave time, especially when the rolling formulas are involved. Employers can interfere with your FMLA rights by not applying the right formula or incorrectly applying the right formula. Here are some common ways that happens:

1. Employer discriminates against the employee by ignoring the employer’s chosen formula and applies one that will deny FMLA leave.

Sometimes the employer has a formula addressed in its employee handbook but decides to use a different formula so it can deny leave. For example, the employer’s policy may describe a calendar formula; but the employer decides to apply a rolling formula so it can cut you off of taking multiple periods of FMLA leave.

2. Employer fails to understand its own policy.

Sometimes the employer has made legitimate efforts to describe and follow a particular formula. However, the HR employees may not understand the formula, has been taught to use a different formula, or just does whatever they did at the last job and unintentionally applies the wrong formula.

3. Employer uses the wrong rolling formula.

The employer may have adopted a forward-looking rolling formula but HR uses a backward-looking formula when it determines eligibility and assures the employee that is the same formula or that it’s just the way it’s always done. Sometimes both formulas produce the same result (if FMLA leave has not been taken in the past twelve months); but sometimes they do not. It doesn’t matter what HR normally does or has always done. Whatever policy has been presented to employees is the one the employer must follow.

4. Failing to use both the old and new formula when an overlap occurs from changing formulas.

To the extent leave has been taken or requested before a change in formula goes into effect, the employer must apply both the old and new formula and give the employer the more favorable result until the old formula would no longer apply. Continuing to use our example above, if leave was taken in December 2012 on a forward-looking rolling formula and in July 2013 a backward-looking formula is adopted, the December 1, 2013 leave must be calculated under both formulas and the employee should get the forward-looking formula.

However, once you get to January 1, 2014 the old formula no longer applies because you do not have any leave in the past twelve months to include in any formula. The old formula does not continue as an alternate formula forever.

5. Accidental errors in math.

Sometimes the employer just miscalculates the numbers. It should be an easy fix by reviewing the math.

What happens when Texas employer miscalculates FMLA eligibility for an ineligible employee?

It’s trickier when the employee is ineligible but the employer incorrectly informs the employee that he or she is eligible. Whether a claim exists depends on what happens after the employer informs the employee of the erroneous eligibility. If the employee takes leave and the employer makes no effort to punish the employee then nothing happens.

The employee gained the benefit of additional leave time at no harm. On the other hand, if the employee then takes leave and the employer discovers its mistake and punishes the employee then the employee has a claim for FMLA retaliation against the employer.

The employer will assert FMLA’s protections do not apply. Courts routinely agree the employer cannot let the employee take what the employer said is protected leave and then punish the employee for taking the leave. (This is known as equitable estoppel.) To let the employer take back FMLA certification after the employee made arrangements for leave or is on leave defeats the employer’s obligation to calculate eligibility. The employer could approve all certifications up front and then later circle back and fire anybody who was ineligible. Not a great result under the law.

Another wrinkle occurs when the employer certifies an ineligible employee as eligible and then realizes the mistake before the leave. The particular facts will determine whether the employee relied upon the employers first incorrect certification. The more harm suffered undoing plans made for the leave the more likely the employee can enforce the original certification. However, this is particularly dangerous if the employer discharges the employee and the employee cannot prove detrimental reliance.

If Your Employer Interfered with Your FMLA Rights

If your employer interferes with your FMLA rights it is important that you consult with an employment lawyer. You likely have a limited time period between receiving the rejection and when you need to take leave. During that period, your attorney can review whether your employer improperly rejected your leave request.

It’s usually better to receive FMLA leave than not receive medical care or take leave and lose your job. Sometimes employers are unwilling to do the right thing and correct their error. In those cases, pursuing your FMLA claims against your employer may be your only choice.

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