When do my 12 weeks of FMLA leave "renew?"

Question:

My family and I have had a rough year health wise. My elderly mother was laid up for weeks with pneumonia in April, my son broke his leg in August, and I've just discovered I will need back surgery soon. I've already taken eight weeks of FMLA leave this year, and my doctor predicts I'll be unable to work for at least six weeks following my back surgery. I know I only get 12 weeks of FMLA leave per year. Should I schedule my surgery for January, to make sure I have my full 12 weeks available?

Answer:

Your strategy might not work. An employee's 12 weeks of leave under the federal Family and Medical Leave Act (FMLA) don't automatically renew at the beginning of the calendar year. The FMLA gives employers four options for calculating the leave year. Depending on which method your company uses, your time off might be limited for now.

For most types of leave, the FMLA gives employees the right to take up to 12 weeks of unpaid time off in a 12-month period. (The FMLA also entitles employees to take up to 26 weeks of time off to care for a family member who was injured in military service, but it doesn't sound like this applies in your situation.) There are four ways an employer may calculate the 12-month period. How much leave you have available to use will depend on which of the following methods your employer uses:

  • The employer may use the calendar year, which would mean that your 12-week entitlement would renew on January 1, as you imagined.
  • The employer may use another fixed 12-month period, such as the company's fiscal year or the 12 months that begin with the anniversary of the employee's hire date. Under this system, your right to leave will depend on what date the employer uses.
  • The employer may use a 12-month period that starts on the first day an employee takes FMLA leave. In this situation, you will only have five weeks of leave left to use until the anniversary of the first date you took FMLA leave, in April. On that date, your 12-week entitlement will renew.
  • The employer may use a 12-month period that looks back from the date your leave starts. When you take leave for your surgery, your employer would look at the 12 months immediately prior to that date and calculate how much leave you have already used. Whatever is left will be available to you. Under this system, your available leave would also be limited.

Savvy employers tend to use the last method, looking backwards. It's the only method that doesn't create the potential for an employee to take more than 12 weeks of leave at once.

Your employer must choose a leave-year calculation method and use it consistently for everyone. And, your employer should notify employees of the chosen method in its written FMLA policy. If an employer doesn't announce its calculation method, employees are free to use whichever of the four methods is most favorable to them, no matter what the employer wants.

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