(a) Except in the case of leave to care for a covered servicemember
with a serious injury or illness, 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;
(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; and,
(5) Because of any qualifying exigency arising out of the fact that
the employee's spouse, son, daughter, or parent is a covered military
member on active duty (or has been notified of an impending call or
order to active duty) in support of a contingency operation.
(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 described in paragraph (a) of this section 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 under paragraph (a) begins; or,
(4) A "rolling" 12-month period measured backward from the date
an employee uses any FMLA leave as described in paragraph (a).
(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, 2008, four weeks beginning June 1, 2008, and four weeks
beginning December 1, 2008, the employee would not be entitled to any
additional leave until February 1, 2009. However, beginning on February
1, 2009, the employee would again be eligible to take FMLA leave,
recouping the right to take the leave in the same manner and amounts in
which it was used in the previous year. Thus, the employee would recoup
(and be entitled to use) one additional day of FMLA leave each day for
four weeks, commencing February 1, 2009. The employee would also begin
to recoup additional days beginning on June 1, 2009, and additional
days beginning on December 1, 2009. Accordingly, employers using the
rolling 12-month period may need to calculate whether the employee is
entitled to take FMLA leave each time that leave is requested, and
employees taking FMLA leave on such a basis may fall in and out of FMLA
protection based on their FMLA usage in the prior 12 months. For
example, in the example above, if the employee needs six weeks of leave
for a serious health condition commencing February 1, 2009, only the
first four weeks of the leave would be FMLA-protected.
(d)(1) Employers will be allowed to choose any one of the
alternatives in paragraph (b) of this section for the leave
entitlements described in paragraph (a) 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 the leave entitlements described
in paragraph (a) 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 for the leave
entitlements described in paragraph (a), 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) An eligible employee's FMLA leave entitlement is limited to a
total of 26 workweeks of leave during a "single 12-month period" to
care for a covered servicemember with a serious injury or illness. An
employer shall determine the "single 12-month period" in which the
26-weeks-of-leave-entitlement described in this paragraph occurs
using the 12-month period measured forward from the date an employee's
first FMLA leave to care for the covered servicemember begins.
See Sec. 825.127(d)(1).
(g) During the "single 12-month period" described in paragraph
(f), an eligible employee's FMLA leave entitlement is limited to a
combined total of 26 workweeks of FMLA leave for any qualifying reason.
See Sec. 825.127(d)(2).
(h) 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 an employee is using FMLA leave in increments of less than
one week, the holiday will not count against the employee's FMLA
entitlement unless the employee was otherwise scheduled and expected to
work during the holiday. Similarly, 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.
[73 FR 68086, Nov. 17, 2008]
