Legal Question in Medical Leave in Georgia

Do you have to work a full year before you can take another family medical leave act? I work in the school system and had to take 23 days last year in 2009 for surgery. Now I am having trouble with my knee and may need surgery. I took the leave starting on August 31 and used 23 days. I have 37 days left. Will the time roll over after the last day I took the FMLA last year or does it roll over? Any help would be great.


Asked on 8/17/10, 5:29 pm

1 Answer from Attorneys

Phillip M. Cook Cook Legal Services, LLC

I thought this might be helpful to you:

HOW TO CALCULATE THE FMLA ROLLING YEAR METHOD

The Family and Medical Leave Act ("FMLA:) regulations define four different methods that an employer may use to determine the amount of FMLA leave an employee has used within a 12-month period under the Act. The most commonly used (and often the most confusing) method that employers use is what 29 CFR 825.200(b)(4) calls the “rolling” method.

The regulations state that “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 occur:

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 any employee’s first FMLA leave begins.

4. A “rolling” 12-month period measured backward from the date an employee uses any FMLA leave.

The “rolling” method is also commonly known as the “look-back” method by HR professionals. Using this method, the employer will look back over the last 12 months from the date of the request, add all FMLA time the employee has used during the previous 12 months and subtract that total from the employee’s 12-week leave allotment.

Step 1: Determine FMLA time needed

Review the employee’s request for leave and determine the duration of the leave.

Step 2: Determine FMLA time previously taken

Review the employee’s attendance record for the 12 months preceding the start of the FMLA request and total the amount of FMLA leave the employee has taken in the last 12 months.

Step 3: Determine FMLA time left in 12-month period

Subtract the total amount of FMLA leave taken in the last 12 months from the 12 weeks the employee is entitled to in any 12-month period. This can be done in full weeks, fractions of weeks, days or even hours, depending upon how the leave was used.

Step 4: Determine total FMLA time available for this request

If the employee has not taken any FMLA in the previous 12 months, the result from step 2 is 12, and the employee has the full 12 weeks available to use (see example #1).

If the employee has taken FMLA in the previous 12 months but the current leave requested will not extend into the one-year anniversary of the start of the previous leave, the result from step 3 will be the amount of leave the employee has available to use (see example #2).

If the employee has taken FMLA in the previous 12 months and the current leave requested will extend beyond the one-year anniversary of the start of the previous leave, the previous leave will “drop off” of the 12-month look-back one day at a time, thereby “rolling” off from the FMLA time already taken onto the FMLA time now available. The result from step 3, plus any time that will roll off from the previous year, will be the amount of leave the employee has available to use (see example #3).

EXAMPLES

In all scenarios below, the employee normally works eight hours per day, Monday through Friday.

EXAMPLE 1:

Scenario: Jane has worked full-time for ABC Company for three years. Jane is pregnant and wishes to take 12 weeks of FMLA leave beginning on June 1st.

Actions:

1. HR pulls Jane’s attendance record for the last 12 months (May 31st – June 1st of the previous year). It shows that Jane has not taken any FMLA leave in the last 12 months.

2. Since there is no FMLA leave to deduct from Jane’s 12-week entitlement, Jane is entitled to the full 12 weeks of FMLA leave for the birth of her baby.

EXAMPLE 2:

Scenario: The HR department has been notified that Bob was in a car accident over the weekend. HR contacts his wife and learns that Bob was seriously injured and will require surgery with three weeks recovery time.

Actions:

(1.) HR pulls Bob’s attendance record for the last 12 months. It shows:

a. Bob’s wife had a baby 8 months ago and Bob took 2 weeks of FMLA leave for this event.

b. Bob’s newborn child experienced a serious health condition 3 months ago, and Bob used 4 weeks and 3 days of FMLA leave for this event.

(2.) HR adds the two FMLA events that have occurred in the last year. The two events total 6 weeks and 3 days (6 3/5 weeks) of FMLA leave used in the last 12 months.

(3.) HR subtracts the 6 3/5 weeks from Bob’s total 12-week FMLA allotment. Bob has 5 2/5 weeks of FMLA left to use while he recovers from his surgery, so the 3 weeks requested is covered.

EXAMPLE 3:

Scenario: Mary’s son has leukemia. She has notified the HR department that she will need to take two days off per week to take her son to chemotherapy. The chemotherapy is expected to last a total of five weeks, for a total of 10 days (or two weeks) of FMLA time.

Actions:

(1.) HR pulls Mary’s attendance record for the last 12 months. Her record shows:

a. Mary used 7 weeks of FMLA leave starting 11 months ago because of her son’s illness.

b. Mary suffered a broken leg herself 5 months ago and took 2 weeks of FMLA, and then used another 1.5 weeks of FMLA intermittently for physical therapy and follow-up doctor’s appointments.

(2.) HR adds the FMLA events that have occurred in the last 12 months. The FMLA time taken in the last 12 months totals 10.5 weeks.

(3.) HR subtracts the 10.5 weeks from Mary’s total 12-week allotment. Mary has 1.5 weeks (or 7.5 days) of FMLA left in this 12-month period.

(4.) HR determines that the request to use intermittent FMLA leave will extend past the 12-month anniversary of her previous leave, thereby rolling 7 weeks of leave taken previously off of the 12-month look-back calendar one day at a time, giving Mary the available 10 days of FMLA time she needs for this leave request.

Best of luck.******The above does not establish an attorney-client relationship and is intended for informational purposes only.*******

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Answered on 8/23/10, 3:48 am


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