FMLA-88 — 12 month period and number of weeks available/Employer changing the 12 month period

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

December 13, 1996 FMLA-88

Dear
Name*,

This is in response to your letter of October 8, 1996, forwarding correspondence from Name*, about the
Family and Medical Leave Act of 1993 (FMLA). In her communication,
Name* expresses two concerns
about how much FMLA leave is available to an employee during a 12-month period and whether the
employer can change the 12-month period designated for FMLA leave purposes.

The FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid,
job-protected leave each year – with continued health insurance coverage maintained during the leave –
for specified family and medical leave reasons. Upon return from leave, the employee must be restored to
the same position or to an equivalent position with equivalent pay, benefits and other terms and
conditions of employment.

Private-sector employers are covered under FMLA if they have employed at least 50 employees during
20 or more calendar workweeks in the current or preceding calendar year. All public-sector employers are
covered under FMLA. Employees are eligible under FMLA if they have worked for a covered employer for
at least 12 months which need not be consecutive months, have worked at least 1,250 hours during the
12 months preceding the start of leave, and are employed at a worksite where the employer employs at
least 50 employees within 75 miles.

Unpaid FMLA leave must be granted to an eligible employee for any of the following reasons: (1) for the
birth of a son or daughter, and to care for the newborn child; (2) for placement with the employee of a son
or daughter for adoption or foster care, and to care for the newly placed child; (3) to care for the
employee’s spouse, son or daughter, or parent, who has a serious health condition; and (4) for a serious
health condition that makes the employee unable to perform his/her job.

An eligible employee’s FMLA leave entitlement is limited to a total of 12 workweeks of leave during any
12-month period for any one, or more, of the specified family and medical reasons previously mentioned.
An employer is permitted to choose any one of the following methods for determining the “12-month
period” in which the 12 weeks of leave entitlement occurs: (1) the calendar year; (2) any fixed 12-month
“leave year,” such as a fiscal year, a year required by State law, or a year starting on an employee’s
“anniversary” date; (3) the 12-month period measured forward from the date an employee’s first FMLA
leave begins; or (4) a “rolling” 12-month period measured backward from the date an employee uses any
FMLA leave. The method selected by the employer must generally be applied consistently and uniformly
to all employees. The employer is permitted to change to another method, but is required to provide at
least a 60 days notice to all employees. During the 60-day transition period, employees must retain the
full benefit of 12 weeks of leave under any one of the methods that would provide the greatest benefit to
the employee. Under no circumstances may a new method for determining the 12-month period be
implemented in order to avoid the FMLA’s leave requirements.

Name* communication indicates that she has taken, or will take, FMLA leave for two separate reasons,
i.e., for her own serious health condition due to complications from pregnancy and for the birth and care
of the newborn child. Assuming that the employer designated the week of leave taken in July because of
pregnancy complications as FMLA leave and she has not taken any other FMLA leave during 1996,
Name* would have 11 weeks of FMLA leave remaining if the employer chose as the method for
determining the 12-month period either the calendar year or the 12-month period measured forward from
the date the employee first took FMLA leave. If the calendar year determines the 12-month period for
FMLA leave purposes, as a new calendar year begins an eligible employee would be entitled to 12 weeks
of FMLA leave regardless of the amount of FMLA leave taken in the previous calendar year. Taking
FMLA leave for more than one reason in the designated 12-month period does not entitle the employee to
additional FMLA leave.

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U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

We have provided a general response to Name* concerns as her communication contained limited
information about her situation and the company’s policy. If she feels that her FMLA rights may have
been violated or wishes to discuss her situation further, she may contact our district office in Wilkes-Barre,
Pennsylvania, at the following address and telephone number: US Department of Labor, Employment
Standards Administration, Wage and Hour Division, 3329 Penn Place, 20 North Pennsylvania Avenue,
Wilkes-Barre, Pennsylvania 18701, telephone number (717) 826-6316. Enclosed for your constituent’s
information is the FMLA fact sheet which describes the provisions of this Act.

Sincerely,

Howard B. Ostmann
Office of Enforcement Policy
Family and Medical Leave Act Team

Enclosure

* Note: The actual name(s) was removed to preserve privacy in accordance with 5 U.S.C. 552 (b)(7).
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