Make sure you define the FMLA ‘calendar’ — or a court might do it for you
October 14, 2008 by Sam NarisiPosted in: Best Practices, FMLA, In this week's e-newsletter, Latest News & Views
There are a few ways companies can define a “year” for calculating FMLA leave. But if the method you’re using isn’t clearly spelled out, an employee may have more leeway to sue for denied leave.
As HR knows, companies have the option of calculating leave entitlement based on:
- the calendar year (January to December)
- a year based on another fixed date (like the employee’s date of hire), or
- a rolling year, counting backwards from the date an employee needs leave.
In one recent court case, an employee took leave beginning in December and hadn’t returned to work by the middle of March — taking almost 14 weeks of leave. The company terminated her, and she sued.
The court ruled in the employee’s favor. Why? The company never spelled out, in its handbook or to the employee once she asked for leave, how the year of eligibility would be calculated. She argued she should be able to use the calendar year method — thereby getting 12 weeks in December and another 12 starting in January.
Bottom line: If companies don’t make the rules clear, courts will let employees use whichever method benefits them most.
Cite: Spencer v. Marygrove College
Tags: calendar year, eligibility, FMLA, rolling 12-month period
October 15th, 2008 at 12:22 pm
Just a heads up that some states mandate the method to use. For instance, in Wisconsin we are required to use the calendar year.
October 15th, 2008 at 1:07 pm
Just curious. My employer (in WA State) never gave me any information about the calender dates and there is no information on any walls in our corporate office stating the laws etc. When I mentioned my leave to HR she stated that I was covered under FMLA but never said anything further. I did give copies of the documents from the hospital to verify that I was leaving for valid reasons, but never filled out any forms etc.. Is this normal or did they not comply with the rules? They have also informed me upon my return (the first day back) that my position may be downsized or written off at some point.. can they do that?
October 15th, 2008 at 2:59 pm
One Calendar that this article didn’t mention is that FMLA can be measured going forward from the first day of leave, which is how I handle FMLA.
In response to T’s questions, it is not mandatory that your employer provide you medical certification forms, since you already provided them documentation that they have deemed sufficient. The employer should inform you, better if in writing how FMLA works and that they will designate your leave as eligible under FMLA. I would ask the employer to provide you documentation that allows for the leave and the dates that you are on the leave , so they cannot later say you didn’t provide it. Unfortunately layoffs are things that occur and the employer can eliminate positions if necessary, however, if they lay you off and then hire someone else to do your job or a similar job then they could be at risk. My thoughts are you have an uneasy feeling with your employer and perhaps should go to someone more senior to ensure that the employer’s policies and procedures are being followed.
October 15th, 2008 at 3:04 pm
Just a clarification of my response - the employer MUST inform you in writing how FMLA works. I also forgot to mention that they should have postings in the office regarding FMLA rights.