How is the 12-week allotment calculated?

Question

My employer informed me that once I have logged 1250 hours for the past 12 month period, that I will begin accumulating FMLA time again. For example, I called off on FMLA on 02/17/2006 and they said as of 02/17/2007 I would get 8 hours back. Then the anniversary of my next FMLA related calloff I would get another 8 hours back. I understood FMLA that once I logged 1250 hours for the previous 12 months that the 12 week allotment started over again. So which is it? Thanks!

Answer 1

I think you (or possibly your employer) are confusing FMLA eligibility with FMLA leave allotment.

To be eligible to actually take FMLA leave, you have to work at a location that has at least 50 employees within 75 miles, AND have been employed by the employer for at least 12 months (not necessarily consecutively), AND have worked at least 1,250 hours within the 12 months immediately preceding the commencement of the leave.

But, you are only allotted up to 12 weeks of FMLA leave in any leave year (the12-month period your employer uses to calculate your eligibility for FMLA leave).

I think what your employer is doing is "rolling" the leave year, i.e., rather than declare a set leave year (such as June 1 through May 31, or Jan1 through Dec 31, etc.), and computing your eligibility requirements as they apply to that time frame, he/she is computing your eligibility requirements as they relate to each FMLA-covered leave of absence you take, like if you take leave on January 13, 2007, then they will look at January 13, 2006 through January 12, 2007, to determine your eligibility. If you next take leave on April 6, 2007, they'll look at April 6, 2006, through April 5, 2007, to determine eligibility for that leave of absence, and so on.... There has been a lot of litigation back and forth on this issue and sometimes, if the employer follows certain criteria, it's legal, and other times, it's not.

Look at Title 29 of the US Code of Federal Regulations, Part 825, for more information or contact the US Department of Labor's Wage and Hour Division (they enforce the FMLA). You can reach them toll-free at 1-866-4US-WAGE, or go online at www.dol.gov.

Hope this helps.