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Is your FMLA leave policy clearly defined?

February 24, 2016

By Anthony Kaylin, courtesy of SBAM Approved Partner ASE

The Family Medical Leave Act leave can be very confusing for employers to administer. In particular, problems can develop around the method the employer uses for defining its 12-month period; for example, an employee can have time off stacked from one FMLA reporting period to the next if a calendar year is used. 

In Caggiano v. Illinois Department of Corrections (Northern District of Illinois, 1/29/16), Michael Caggiano took FMLA leave in 2011 to care for his mother, who was suffering from recurrent breast cancer and severe chronic obstructive pulmonary disease. He took FMLA leave from April 3, 2011, through April 15, 2011, and from October 11, 2011, to December 7, 2011.  In December he was granted additional time off, which was not FMLA time, for care of his mother.

In 2012, Caggiano did not report to work on April 7 through 10, 2012, because again he was caring for his mother.  He requested to have that time off covered by FMLA leave.  His supervisor both acknowledged the request and that he had recently met the yearly 1,250-hours requirement necessary to be eligible for FMLA leave.  She requested him to provide the FMLA paperwork and she would review it.

In the meantime, his supervisor asked the timekeeper to calculate Caggiano’s  total hours worked starting from April 7, 2011, the date when he took his first FMLA leave.  The timekeeper came back and told the supervisor that Caggiano did not meet the 1,250-hour requirement until April 15, 2012; therefore, Caggiano was not an eligible employee for FMLA leave for the requested dates in April 2012.  She denied Caggiono’s  FMLA leave request.

The Illinois Department of Corrections (IDOC) initiated disciplinary procedures against Caggiano for absenteeism in violation of the attendance policy.  Caggiano was eventually terminated for excessive absenteeism.

Caggiano sued IDOC. IDOC moved for summary judgement, arguing that Caggiano was not eligible for FMLA leave since he had not worked the 1,250 hours. Caggiano disputed the assertion, arguing that he was eligible for the leave since he had worked more hours than necessary through overtime and working through lunch.  He alleged that he could not leave his work station because the facility where he worked was understaffed. He would eat lunch in the dayroom with inmates instead of in the regular breakroom.

As the trial judge noted, the FMLA entitles an eligible employee to twelve workweeks of leave during any twelve-month period for certain qualifying reasons, including the need to care for a parent suffering from a serious health condition. 

IDOC agreed that Caggiano was entitled to sixty calendar days of leave. IDOC did maintain an FMLA policy, but it apparently failed to inform employees how it defined the 12-month FMLA period. Given that circumstance, the court chose to observe the 12-month option that provided the most beneficial outcome for the employee, in this case the calendar year. Therefore, Caggiano would be entitled to an additional 12 weeks FMLA leave assuming he met the 1,250 calculation as of January 1, 2012. Hence, the question was whether Caggiano was an “eligible” employee starting in January 2012, and the case was sent back to the trial court to determine if he was an eligible employee.

Under the FMLA, there are four methods to calculate time off:

  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.

It is important for the FMLA policy to identify its specific method of calculation.  Failure to do so will entitle the employee to the most favorable calculation.  With respect to the first three methodologies, these methods do not prevent “stacking,” which means an employee can take FMLA leave for a subsequent FMLA leave year right after leave taken during the previous year.

Probably the best and most common method for tracking employee leave is a “rolling” 12-month period measured backward from the date an employee uses any FMLA leave.  HR would “look back” over the last 12 months, add up all the FMLA time the employee has used during the previous 12 months and subtract that total from the employee’s 12-week leave allotment. Therefore, when calculating an employee’s available FMLA leave, the employee’s remaining available balance is 12 weeks minus whatever portion of FMLA leave the employee used during the 12 months preceding that day.

Although this method has some administrative inconvenience, it is the best method when defending misuse of FMLA leave.   Most important, an eligible employer must specifically state this in its FMLA policy.  If an employer wants to change to this method, regardless whether one is identified in the policy or not, under law it must give 60 days’ notice to the employee of this change.

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