(October
2001)
Employers Must Explain Family Leave
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All employers with 50 or more
employees
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Immediately
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must notify employees about the method they use to calculate
the 12-month period during which employees can take federal family
leave. |
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Ninth U.S. Circuit Court of Appeals recently issued a ruling
regarding the federal Family & Medical Leave Act (“FMLA”)
in the case of Bachelder v. America West Airlines. The
Court held that employees who are not clearly notified about
the calculation method can choose whichever method gives them
the most family leave time.
Under
the FMLA, eligible employees are entitled to 12 workweeks
of leave during any 12-month period for their own illnesses,
to care for family members who are ill, or to care for a
newly born or adopted child. The U.S. Department of Labor’s
FMLA regulations permit employers to choose one of the following
methods to determine the 12-month leave period:
- The
calendar year;
- Any
other fixed 12-month “leave year,” such as a
fiscal year, or a year based on an employee’s “anniversary” date;
- The
12-month period measured forward from the date an employee’s
first FMLA leave begins; or,
- A “rolling” 12-month
period measured backward from the date an employee uses
any FMLA leave.
In
the Bachel case, the employer did not clearly define which
method would be used for determining the 12-month leave period.
In January, an employee who had taken a lengthy FMLA leave
during the middle of the preceding calendar year asked for
additional FMLA leave. The denied the request, noting that
it had been less than 12 months since the employee used up
her FMLA leave, and that she had no more FMLA time available.
The employee argued that because the employer did not identify
a method for measuring the 12-month leave year, she could
pick whatever method was most favorable to her. Accordingly,
she chose the calendar year method, which resulted in the
full 12 weeks of FMLA time being available. The Ninth Circuit
agreed with the employee.
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Employers
should review their FMLA policies to make sure it is very clear
which of the four methods is used to calculate FMLA leave.
If your policy is vague, choose a calculation method, revise
your policy to clearly identify it, and distribute the new
policy to all employees. The calculation method you choose
will become effective 60 days after you notify employees. Until
then, the method that is most beneficial to each particular
employee will apply. The transition to the new policy must
also take place in such a way that the employees retain the
full benefit of 12 weeks of leave under whichever method gives
the greatest benefit to the employee, particularly if you currently
have any employees out on FMLA leave.
This
material is a general overview of the subject matter, and
is not meant to provide professional opinions regarding any
specific case, matter, or set of facts, or to substitute
for the professional advice of Waag and Co. Instead, please
contact Susan S. Waag, Esq. for additional information. Use
of this information is allowed, provided that credit is given
to: Susan S. Waag, attorney; Waag and Co.; September 2001
Employer Bulletin; INFO@WaagandCo.com;
(805) 783-2300
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