A couple of weeks ago we started a “B2B” (Back-2-Basics) series, because there will always be somebody new to this industry.  We can’t let all the new kids have the fun! To give you FMLA / Leave junkies a little reading material, we are also going to run a series called “Simple, NOT Simple” where I will take a concept that you initially think is simple (after all you are the one donning the FMLA crown), but after a slightly deeper dive, it reminds you why there are so many FMLA ideas that keep us entertained. You may want to go grab a cup of tea or a good latte before sitting down with this one.

You figured out which employees to extend FMLA Benefits to {because you read “B2B Covered Employee”}.  You know who is or isn’t eligible {due to your review of “E is for Eligibility”}.  A commendable job was done communicating eligibility (as you followed the info in the “Seriously” series.} and designating the leave is behind you (thanks to a quick little blog-ette called of D is for Designation).  

Now is the time to kick back and relax, but I’m afraid it’s a little like surviving your mid-term exam schedule – before you know it, you still have to deal with finals!!!  Assuming this employee is like a large number of FMLA users, this is not a once and done situation for the employee or the family member. Just as you put your feet up and get an umbrella in your drink, you are going to have to re-check their eligibility.  

Say wha?!  That is correct, at some point – sooner than you may think, you will need to reassess the employee file for hours worked.  You think “Surely, that is a whole year away.”  Just to complicate things a bit more, it is all depending on which calendar tracking method your company uses.  The first time you checked the eligibility of an employee, it was simply the first time they had an absence for an FMLA qualified reason.  The ‘ya-but’ moment (you know, that point when somebody clarifies and starts with “Ya, but….”) is that eligibility must be checked as of the FIRST instance of leave for a QUALIFIED REASON in the APPLICABLE 12-MONTH PERIOD.  This rule also has to be followed when you ‘re-check’ eligibility.  You’re not sure how that works? Let’s back into it by asking these questions:  

  • Is this an existing or a new qualified reason?
  • Is the reason for leave qualified under the reasons for using FMLA?
  • What is the applicable 12 month period for this employee?
  1. First ask yourself the easy question.  Is this need for leave a new reason or related to an existing reason we already have on record?  If it is new, then eligibility is not being re-checked, but simply checked for the first time if they have worked 1250 hours in the 12 months prior to the leave date.  
  1. Now take a moment to determine if the reason for leave is qualified.  Because you had to go through this process when they first took an absence, I am not going to walk you through that in detail.  However, if you could use a bit of a refresher, pop over to the DOL’s Employer Guide, Pg. 23 before doing a full review of 825.112.
  1. The final piece – what is the applicable 12-month period — is an issue you didn’t have to consider with the first absence they’d ever taken.  Their first absence focuses more on whether they have worked 1250 hours in the past 12 month, regardless of the tracking of usage. Now that you have identified the reason for leave is related to a previous absence and that it qualifies as an FMLA reason, your next task is to identify which 12 month period the company uses.  Is it Rolling Forward? Rolling Back? Calendar Tracking? Fixed? Interestingly, this is the one area that Rolling Forward and Rolling Back apply one set of rules; however Calendar Tracking and Fixed apply a different set of rules. I will explain how each works.

    1. Rolling Forward:  The first time you established eligibility started the ‘applicable 12 month period’.  If you have subsequent absences, you simply ask “Are we within 12 months of when the eligibility was originally identified?”  If yes, then you may not re-check eligibility, as you’re not in a new 12 month period. If yes, then it is time to re-check eligibility.  
    2. Rolling Backward:  Only for purposes of checking eligibility, this method is the same as Rolling Forward.  How an employee may use time and if they have any available is a story for a different day.  As for the absence in question, apply the Rolling Forward question sequence.
    3. Calendar Tracking:  Although this may feel not quite right, I assure you that you already know this one.  The start of the Calendar Tracking method is obviously January 1st of each year.  Therefore, on the first absence on or following January 1st you should be re-checking the eligibility status of an employee.  I know….I know…you’re saying “But what if I just deemed them eligible in December?”  Yup, them too. Any ‘applicable 12 month period’ is January to December. Eligibility is to be checked for the first absence of the calendar year.  This applies to both intermittent and continuous leaves, even if the continuous leave crossed over the start of the new calendar year.
    4. Fixed Tracking:  Absolutely all of the same rules apply to Fixed as to Calendar. The only difference is the start of the 12-month period.  Maybe the company basis it on their fiscal year of July 1st.  Then that would be the day that starts the 12-month period.  

Next time your employer discusses with you changing the company tracking methodology from Rolling to Fixed/Calendar because “it would be so much easier and more advantageous to everybody”, this might be a solid example to bring up to explain why that may not be the case!

Now you may polish the jewels in your crown, finish your latte, and head out about your day!  In the wise words of Queen Elizabeth II, Let’s not take ourselves too seriously. None of us has a monopoly on wisdom.  I hope this was helpful and to see you here again.