Calculating Weeks for Leave

Calculating Weeks for Leave

“Twelve weeks” means the equivalent of twelve normally scheduled workweeks. For eligible employees working more or less than five days a week or working alternative work schedules, the number of working days constituting 12 weeks is calculated on a pro rata or proportional basis.

For a full-time employee working five, eight-hour days per week, 12 workweeks means 60 working eight-hour days of leave entitlement.
For an employee working half-time, 12 workweeks can mean 30 eight-hour days, 60 four-hour days or 12 workweeks of whatever is the employee’s normal half-time work schedule.
For an employee who normally works six eight-hour days, 12 workweeks means 72 working eight-hour days of leave entitlement.
If an employee takes leave on an intermittent or reduced work schedule, only the amount of leave actually used can be counted toward the 12 weeks of leave. For example, if an employee needs physical therapy that requires him/her to be absent from work two hours per week, only those two hours can be charged against the employee’s family and medical leave entitlement.

Family and Medical Leave Calculation Methods. You can choose any one of the following methods for determining the 12-month period in which the 12 workweeks of leave entitlement occurs:

Method One — The calendar year.
Method Two — Any fixed 12-month leave year, such as a fiscal year, or a year starting on an employee’s anniversary date.
Method Three — The 12-month period measured forward from the date an employee’s first family leave begins.
Method Four — A rolling 12-month period measured backward from the date an employee uses any family leave.

Under methods one and two, an employee is entitled to up to 12 workweeks of family leave at any time in the fixed 12-month period selected. An employee could take 12 workweeks of leave at the end of the year and 12 workweeks at the beginning of the following year, creating the potential for 24 straight workweeks of leave.

Calculation Method for Flight Crews. A special method for calculating leave usage exists for airline flight crews. This method was enacted by regulation effective March 8, 2013. An airline flight crew employee is entitled to 72 days of leave during any 12-month period for FMLA-qualifying reasons other than military caregiver leave and 156 days of leave during a single 12-month period for military caregiver leave.The regulations also provide that, if an airline flight crew employee takes leave intermittently or on a reduced schedule, the employer must account for the leave using an increment no greater than one day.

Holidays During Leave. If a holiday falls within a week used as family and medical leave, the week is counted as a week of family and medical leave. However, if an employee uses FMLA/CFRA leave in increments of less than one week, the holiday will not count against the employee’s FMLA/CFRA leave unless the employee was otherwise scheduled and expected to work during the holiday. If your business activity temporarily ceases and employees generally are not expected to report for work for one or more weeks (e.g., a school closing two weeks for the Christmas and New Year holidays or the summer vacation or an employer closing the plant for retooling or repairs), the days your activities have ceased do not count against the employee’s FMLA leave entitlement. Employees on unpaid FMLA/CFRA leave usually do not receive holiday pay if they are not working on the holiday. If your policy pays holiday pay during other leaves of absence, you should pay holiday pay during FMLA/CFRA. If an employee is on paid FMLA/CFRA leave, follow your policy regarding holiday pay during a paid leave.

Calculation Method for Military Caregiver Leave. For leave to care for an ill or injured covered service member, the employee can take up to 26 workweeks in a single 12-month period under the FMLA. For this military caregiver leave, the 12-month period begins on the first day of leave, regardless of how you calculate the 12-month period for other FMLA/CFRA leaves. If the employee does not take the entire 26 weeks of leave entitlement within the 12-month period, the employee forfeits the remaining amount of leave available.

Family and Medical Leave Calculation Method Notification. Explain the calculation method you choose in the FMLA/CFRA policy in your employee handbooks. If you do not clearly explain your calculation method to employees, you must give them whichever method provides the most family and medical leave time, as courts will apply the option most favorable to the employee. Under FMLA regulations, an employer that wants to change to another alternative is required to give at least 60 days’ notice to all employees. The transition must take place in such a way that the employees retain the full benefit of 12 weeks of leave under whichever method affords the greatest benefit to the employee. A new method cannot be implemented to avoid FMLA’s leave requirements under any circumstances.

In Bachelder v. America West Airlines, a case before the Ninth Circuit Court of Appeals, America West terminated an employee, in part, for taking too much leave after exhausting her FMLA entitlement for a rolling 12-month period. The court concluded that America West’s handbook policy, which stated that “employees are entitled to up to twelve calendar weeks of unpaid FMLA leave within any twelve month period,” did not sufficiently communicate the fact that America West uses the rolling method for calculating an employee’s eligibility for leave. The Ninth Circuit sent the case back to the lower court with instructions to calculate the employee’s leave under the calendar year method. This method gave the most benefit to the employee because, under this calculation, the employee’s leave was protected under the FMLA and the termination violated the FMLA’s provisions.