(a) An eligible employee's FMLA leave entitlement is limited to a
total of 12 workweeks of leave during any 12-month period for any one,
or more, of the following reasons:
(1) The birth of the employee's son or daughter, and to care for the
newborn child;
(2) The placement with the employee of a son or daughter for
adoption or foster care, and to care for the newly placed child;
(3) To care for the employee's spouse, son, daughter, or parent with
a serious health condition; and,
(4) Because of a serious health condition that makes the employee
unable to perform one or more of the essential functions of his or her
job.
(b) 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 occurs:
(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; or,
(4) A ``rolling'' 12-month period measured backward from the date an
employee uses any FMLA leave (except that such measure may not extend
back before August 5, 1993).
(c) Under methods in paragraphs (b)(1) and (b)(2) of this section an
employee would be entitled to up to 12 weeks of FMLA leave at any time
in the fixed 12-month period selected. An employee could, therefore,
take 12 weeks of leave at the end of the year and 12 weeks at the
beginning of the following year. Under the method in paragraph (b)(3) of
this section, an employee would be entitled to 12 weeks of leave during
the year beginning on the first date FMLA leave is taken; the next 12-
month period would begin the first time FMLA leave is taken after
completion of any previous 12-month period. Under the method in
paragraph (b)(4) of this section, the ``rolling'' 12-month period, each
time an employee takes FMLA leave the remaining leave entitlement would
be any balance of the 12 weeks which has not been used during the
immediately preceding 12 months. For example, if an employee has taken
eight weeks of leave during the past 12 months, an additional four weeks
of leave could be taken. If an employee used four weeks beginning
February 1, 1994, four weeks beginning June 1, 1994, and four weeks
beginning December 1, 1994, the employee would not be entitled to any
additional leave until February 1, 1995. However, beginning on February
1, 1995, the employee would be entitled to four weeks of leave, on June
1 the employee would be entitled to an additional four weeks, etc.
(d)(1) Employers will be allowed to choose any one of the
alternatives in paragraph (b) of this section provided the alternative
chosen is applied consistently and uniformly to all employees. An
employer wishing to change to another alternative is required to give at
least 60 days notice to all employees, and 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. Under no circumstances may a new method be implemented in
order to avoid the Act's leave requirements.
(2) An exception to this required uniformity would apply in the case
of a multi-State employer who has eligible employees in a State which
has a family and medical leave statute. The State may require a single
method of determining the period during which use of the leave
entitlement is measured. This method may conflict with the method chosen
by the employer to determine ``any 12 months'' for purposes of the
Federal statute. The employer may comply with the State provision for
all employees employed within that State, and uniformly use another
method provided by this regulation for all other employees.
(e) If an employer fails to select one of the options in paragraph
(b) of this section for measuring the 12-month period, the option that
provides the most beneficial outcome for the employee will be used. The
employer may subsequently select an option only by providing the 60-day
notice to all employees of the option the employer intends to implement.
During the running of the 60-day period any other employee who needs
FMLA leave may use the option providing the most beneficial outcome to
that employee. At the conclusion of the 60-day period the employer may
implement the selected option.
(f) For purposes of determining the amount of leave used by an
employee, the fact that a holiday may occur within the week taken as
FMLA leave has no effect; the week is counted as a week of FMLA leave.
However, if for some reason the employer's business activity has
temporarily ceased 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/New Year
holiday or the summer vacation or an employer closing the plant for
retooling or repairs), the days the employer's activities have ceased do
not count against the employee's FMLA leave entitlement. Methods for
determining an employee's 12-week leave entitlement are also described
in Sec. 825.205.
