How Much FMLA Leave is Available and When Can It Be Taken?

Eligible employees are entitled to 12 workweeks of leave during any 12-month period, for most FMLA leaves. An eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember is entitled to a total of 26 workweeks of leave during a single 12-month period to care for the servicemember who has a serious injury or illness incurred in the line of duty on active duty in the Armed Forces. Leave may be taken intermittently or on a reduced leave schedule when medically necessary.

How is the 12-month period calculated? Employers may choose any of the following methods for determining the 12-month period in which the 12 weeks of leave entitlement may occur:

1. calendar year method;

2. leave year method —any fixed 12-month “leave year,” such as a fiscal year, a year required by state law, or a year starting on the employee's anniversary date;

3. measuring forward method —the 12-month period measured forward from the date any employee's first FMLA leave begins —an employee is entitled to 12 weeks of leave during the year beginning on the first date FMLA leave is taken and the next 12-month period begins the first time FMLA leave is taken after completion of any previous 12-month period; or

4. rolling or measuring backward method —a “rolling” 12-month period measured backward from the date an employee uses any FMLA leave. This is a snapshot of the 12-month period that changes daily (i.e., as each new day is added to the 12-month period, one day from 12 months ago is eliminated).

Under the calendar year or leave year methods, employees can “stack” leaves by taking 12 weeks of leave at the end of the year and 12 weeks at the beginning of the following year. As a result, many experts recommend using the rolling method because it clearly does not allow stacking of back-to-back leave entitlements. Under the rolling method, each time an employee takes FMLA leave, his or her remaining leave entitlement is any balance of the 12 weeks that has not been used during the immediately preceding 12 months.

Must the chosen method apply to all employees? An employer must apply its chosen method consistently and uniformly to all employees. However, an exception exists for multistate employers operating in a state that has its own family leave statute mandating use of a particular method. Those employers may comply with the state provision for all employees working in that state, and uniformly use another method under FMLA for all of its other employees.

Can an employer change methods? Yes, but employers must give all employees at least sixty days' notice before changing methods.

Are a husband and wife who work for the same employer each entitled to 12 weeks? It depends on why the leave is taken. A husband and wife who work for the same employer are each entitled to 12 weeks of leave for their own serious health conditions. They can also take 12 weeks each in order to care for their sick child or for each other.

When the leave is taken to care for a sick parent, a married couple is limited to a total of 12 weeks. Their leave is similarly limited to 12 weeks when the leave is taken to care for a healthy infant or adopted child.

Are a husband and wife who work for the same employer each entitled to 26 weeks of servicemember family leave? A husband and wife who work for the same employer are entitled to a total of 26 weeks of leave during the single 12-month period if the leave is required to care for an injured or ill servicemember. Leave may also be limited to a total of 26 weeks when the leave is a combination of leave used to care for an injured or ill servicemember and all other FMLA leave.

Combined leaves limit. An eligible employee is entitled to a combined total of 26 workweeks of leave in a single 12-month period in order to care for an injured servicemember and for all other FMLA leave purposes.

Must leave be taken all at one time? Not always. Leave taken during noncontinuous periods is referred to as intermittent leave. Leave can be taken in this manner when medically necessary. However, leave may not be taken intermittently for a birth or placement of a child with an employee for adoption or foster care unless the employer agrees to the arrangement.

Can leave be taken on a reduced leave schedule or part-time basis? Like intermittent leave, an employee may take leave on a reduced leave schedule only when medically necessary. A reduced leave schedule is one that reduces an employee's usual number of hours, either on a daily or weekly basis.

How does that affect an employee's leave entitlement? By taking leave on a reduced leave schedule, an employee does not reduce total leave entitlement beyond the amount of leave actually taken.

Can an employer place an employee in an alternative position? When an employee wishes to take leave intermittently or on a reduced leave schedule for planned medical treatment, an employer can require that the employee take a temporary transfer to an available alternative position. The employee must be qualified for the position, which must:

• have equivalent pay and benefits; and
• be better suited to accommodating recurring periods of leave than the employee's regular position.

Teachers hoping to take leave intermittently or on a reduced leave schedule may be forced to choose between taking a temporary alternative position or continuous leave of a particular duration.

Are there any limits on when parental leave may be taken? Yes. Although employees need not take parental leave at the time of a child's birth or placement with an employee, their right to parental leave expires 12 months after the child's birth or placement.

Unless an employee and employer agree otherwise, parental leave may not be taken intermittently or on a reduced schedule. That means an employee must take all parental leave at one time and the employee cannot work on a reduced leave schedule during the leave period, unless there is a specific agreement with the employer.

Does an employer have any say as to when leave can be taken? Employees who request leave for planned medical treatment must make a reasonable effort to schedule treatment so as not to unduly disrupt the employer's operations. Scheduling of planned medical treatments is subject to the health care provider's approval.

Are there special rules for teachers? Employees of public and private elementary and secondary schools are generally extended the same rights as other eligible employees. However, there are special rules about when instructional employees may take family and medical leave. These rules recognize the need to

Reprinted with permission. © CCH