Merrily We Roll Along
Computing FMLA Leave Time Using the “Rolling” Method
W. Gary Yeldell is an attorney practicing with the law firm of Harper Gerlach, PL, in Jacksonville, Florida. He can be reached at firstname.lastname@example.org.
Do you represent businesses with 50 or more employees? Are you general counsel for a company that has—or will someday have—50 or more employees? Do you like to wow your friends with an encyclopedic knowledge of all things relating to employment law? If so, this article is necessary reading.
You likely already know that (a) employees covered by the Family Medical Leave Act (FMLA) are eligible to take up to 12 weeks of FMLA leave in a year, and (b) there are four ways to determine what makes up a year under the FMLA (calendar year, fixed period, forward-measured period, and “rolling” method). But, do you know how to calculate the year if an employer has chosen the rolling method—arguably the most commonly used of the four methods? While most answer yes to this question, many don’t really know.
Take, for example, the following situation: Tom is out on 12 weeks of FMLA leave that began January 1. As a result, Tom does not come back to work until April. In December—only nine months later—Tom asks for 12 more weeks of FMLA leave starting January 1. The initial reaction of many would be to deny Tom’s request, and cite the fact that he’s used all of his time this year. The remainder of this article explains why this would be wrong.
Title 29, section 825.200(b) of the Code of Federal Regulations defines the “rolling” method as a “12-month period measured backward from the date an employee uses any FMLA leave.” This definition lacked clarity. So the drafters kindly included a hypothetical example of the rolling method in use in the regulations. Still, even with the example, many are still not clear exactly how the rolling method works.
The best way to understand the process is to picture a conveyor belt that rotates so slowly it takes the whole year for a block placed on the front of the belt to reach the end. As the conveyor rolls over at the end, the block falls off into a bucket under the end of the conveyor. Got the picture? Good.
OK, here’s how it works. The belt represents the passage of time and each block represents one day off. An employee is given only enough blocks to amount to 12 weeks’ time off. When the employee takes time off (whether it is a day, a month, or more) the corresponding number of blocks are taken out of the bucket and stacked in a vertical column on the front of the belt. The employee can keep taking his FMLA leave time until all of his blocks are out of the bucket and stacked on top of the conveyor belt. Once all blocks are on the conveyor, the employee cannot take any more FMLA time until one or more blocks fall off of the conveyor into the bucket.
When an employee takes FMLA leave, they become eligible for more leave on the anniversary of the day their first leave began. In the example with Tom, all 12 weeks of blocks were stacked in one column on the belt. They stayed there until the anniversary of his first day of leave, January 1. On that January 1, all of the blocks fell off of the belt and into the bucket. At that time, Tom was eligible for 12 more weeks off.
Some have complained that, intuitively, it seems like Tom is getting more than 12 weeks off in a year. However, keep in mind that the date the leave is approved is not the date the leave is actually taken. Picture the conveyor belt again. While an entire stack of blocks is put onto the belt the day the leave is commenced, each of the days—except for the first one—was actually taken sometime thereafter.
The key to the rolling method is to focus on total amount of leave in any one 12-month period. While it may seem confusing at first, the conveyor belt method is helpful to visualize the process. After some time, the rolling method will become second nature; until then, the illustration can help avoid calculation mistakes that often lead to improper denial of FMLA leave.
The Family and Medical Leave Act. 2006. PC #1620097B1290.
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