The FMLA entitles eligible employees of covered employers to take up to twelve weeks of unpaid, job-protected leave in a twelve month period for any of the following reasons:
- Birth of a child and to care for the newborn child within one year of birth;
- Placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
- To care for the employee's spouse, child, or parent who has a serious health condition;
- Employee's own serious health condition that makes the employee unable to perform his or her job;
- Any qualifying exigency arising out of the fact that the employee's spouse, son, daughter, or parent is a covered military member on “covered active duty;”
- An employee can qualify for up to twenty-six workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember's spouse, son, daughter, parent, or next of kin (military caregiver leave).
To be eligible for FMLA protections, an employee must have worked for the employer for at least one year, have worked at least 1,250 hours for that employer over the past 12 months, AND the employer must have at least 50 employees within 75 miles of where you work. Additionally a worker can not have exhausted the 12 week allowance for a 12 month period.
How the 12 month period is calculated is up to the employer using one of four methods, because the FMLA does not specify. However, an employer may not change their calculation method without providing employees a sixty day notice, and the transition period can not leave employees without their full benefit to leave entitlement under the method affording the greatest benefit to the employee. Also, if an employer fails to explicitly select one of the four methods described below, the employer must use the 12-month period that is most beneficial to the employee.
The Four Methods of Calculating the Twelve Month Period
1. The calendar year - January 1 through December 31
2. Any fixed 12-month period - For example a fiscal year or a year starting on an employee's anniversary.
3. The 12-month period measured forward - 12-month period measured forward from the first date an employee takes FMLA leave. The next 12 month period would begin the first time FMLA is taken after completion of the prior 12 month period. For example, an employee who takes FMLA leave beginning on July 9, 2014 12 month period would run through July 8, 2015.
4. A “rolling” 12-month period measured backward - 12-month period measured backward from the date the employee takes any FMLA leave. Under this method, which is commonly used by employers, each time an employee takes FMLA their entitlement is based on the preceding 12-month period.
- Example 1: An employee who requests 3 weeks of FMLA leave on July 31, 2014 must look at the period of August 1, 2013 through July 31, 2014 to see how much, if any, leave has been used. If no leave was used after August 1, 2013, then 12 weeks is available.
- Example 2: An employee requests two weeks of FMLA to begin on November 1, 2014. The look back period goes to November 2, 2013. The employee took FMLA for 4 weeks beginning January 1, 2013, 4 weeks beginning March 1, 2013, and 3 weeks beginning June 1, 2013 for a total of 11 weeks in the 12-month period. Therefore, the employee only has one week of leave available until January 1, 2015 as the days of her previous January leave “roll off” the leave year.
A worker who prevails in a claim that she was wrongfully denied FMLA leave has several potential remedies, including back wages with interest for time missed as a result of an FMLA violation (such as termination for excessive absenteeism), benefits or other compensation denied or lost to the worker, any actual monetary losses sustained by the worker as a direct result of the violation (such as the cost of providing care the worker was unable to provide a sick family member as a result of the wrongful denial), the potential that those amounts could be doubled, and equitable relief such as employment, reinstatement, and promotion. A worker who was wrongfully denied FMLA time should recover attorney fees, costs incurred for experts, and reasonable costs of the lawsuit as well.
The statute of limitations (the time period after which a legal claim can, under most circumstances, no longer be brought to court) is two years, absent a "willful" violation, in which case the SOL is three years. A violation is willful if the employer knew or showed reckless disregard for whether its conduct was prohibited by the law. It is always best to be safe regarding statutes of limitations!
The North Carolina employment law attorneys at Edelstein & Payne have experience litigating FMLA issues, and are available for counseling and representation.
This article is based in part upon Worker's Rights materials provided by Edelstein & Payne partner Vanessa Lucas.