How do you calculate FMLA eligibility? Tell workers now


An employer is out $312,000 after a court ruled it wrongfully terminated a worker for not returning to work after exhausting his FMLA leave. The problem: The worker claimed he didn’t know his leave was exhausted because his employer didn’t tell him.
Under the Family Medical Leave Act (FMLA), there are four methods to calculate an employee’s 12-week leave entitlement:

  • The calendar year method
  • Using some other defined and fixed 12-month period
  • Basing calculations on the 1st day an employee uses FMLA leave, and
  • The rolling 12-month year.

In a recent lawsuit, a judge ruled an employee was not informed that his company used the rolling 12-month calculation method.
The worker requested FMLA leave from April 27, 2005 through June 27, 2005 for a non-work-related injury.
On June 17, he returned to work with a doctor’s note asking to extend his leave until mid-July. But instead of getting an extension, he was terminated.
The employer said his leave expired June 13. His absence from work June 13 to 16 was unexcused, he was told.
He sued, claiming his leave should’ve been extended until July 14.
Calendar v. rolling
Had the employer used the calendar year method to calculate the worker’s FMLA entitlement, he would’ve kept his job. But it used the rolling method, under which his leave expired June 13.
In his lawsuit, the worker claimed he was never notified that his leave would be calculated using the rolling method.
A judge agreed and ruled that he is entitled to back pay and attorney fees, which have been estimated to be $312,000, according to a report on BusinessInsurance.com.
A brief notice to the employee explaining how his leave entitlement would be calculated, as well as how much leave he had remaining, would’ve saved the company a bundle.
How the rolling method works
The rolling 12-month calculation is the most advantageous and burdensome for employers.
It works like this: Say an employee used four weeks of leave beginning March 1, 2011, four weeks beginning July 1, 2011 and four weeks beginning November 1, 2011. The employee would not be allowed any additional leave until March 1, 2012.

But the employee would only be eligible for four weeks of leave until July 1, when he’d be entitled to another four weeks. The employee would then recoup additional leave time on November 1.
Tracking the leave like this is far more burdensome than using a fixed calendar year calculation method. But it prevents employees from double-dipping and taking more than 12 weeks of continuous leave, which the calendar year method could potentially allow.
Cite: Thom v. American Standard, Inc.