Does my 12 weeks of FMLA leave renew at the beginning of each year?

Learn more about FMLA leave and the various methods employers may use to calculate the leave year.

Question: My spouse is having a baby at the end of October. I've asked for FMLA leave, and I want to take as much time off as I can. The company's HR director told me I can take 12 weeks off total, so I'll need to be back at work by the end of January. Is this correct? I thought the FMLA gives me the right to take 12 weeks off every year. Doesn't that mean that I get 12 more weeks of leave starting on January 1?

Answer: It depends on how your employer counts time off. You are correct that the federal Family Medical Leave Act (FMLA) gives eligible employees the right to take 12 weeks off to bond with a new child. You are also correct that the FMLA allows 12 weeks of leave in a 12-month period. But this 12-month period doesn't have to coincide with the calendar year.

The FMLA gives employers four ways to count the 12-month period (also called the "leave year") for FMLA purposes. Employers may use the calendar year. They may also used any other fixed 12-month period that starts on the same date each year, such as the beginning of the company's fiscal year, the anniversary of the employee's hire date, and so on.

Most employers don't use either of these methods, however. The reason is exactly what you point out: Employees who are eligible for leave toward the end of the leave year could take more than 12 weeks off in a row. In your situation, for example, you would be eligible to take nine or ten weeks off for the birth of your child and afterwards in this calendar year, then immediately add 12 weeks to your total on New Year's Day. Rather than the 12 weeks contemplated by the FMLA, this would give more than 20 weeks of leave on end. Most employers would prefer not to hold an employee's position open -- and continue the employee's insurance, as the FMLA requires -- for so long.

Some employers use a third method called "counting forward." In this system, the 12-month period officially begins on the first day an employee takes FMLA leave. The employee has 12 weeks of leave, total, to use during that 12 months. Then, if an employee needs FMLA leave after the initial leave year ends, the employee's next leave year begins on the first day of the employee's next FMLA leave. This system can create the same problems as the first two. If, for example, an employee used eight weeks of FMLA leave starting on June 1, she would have until May 31 of the following year to use her remaining four weeks. If she used those four weeks in May, her next leave year would start on June 1, giving her 12 more weeks of leave that she could use immediately.

The only leave year calculation that doesn't allow employees to stack their leave rights is called the "rolling year" method. Not surprisingly, most employers with savvy HR departments use this method.

Here's how it works: When an employee takes FMLA leave, the leave year is measured backward from the employee's first day off. Each time the employee takes leave, any part of the 12-week entitlement that wasn't used in the past 12 months is available to the employee. If you haven't used any FMLA leave before, you would be entitled to 12 weeks off. But if, for example, you had already used six weeks of FMLA leave six months ago, you would only have six weeks to use. Six months later, you would be eligible for six more weeks of leave.

Employers are required to use the same method of counting the leave year for all employees, and they must notify employees of that method in their written FMLA materials. If the employer doesn't have a policy that states how it calculates the leave year, employees may use whichever of these four methods is the most favorable to them. So, check your company's written FMLA policy and other materials to find out how it calculates the leave year and whether other options might be available to you.

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