Designating FMLA Timing

05.25.2022
HR & Safety

Employers across Connecticut are months into adopting the new rules in Connecticut’s Family and Medical Leave Act, which applies to nearly every employer across the state.

While the statute mandates the qualifying reasons for leave, it does give employers the discretion to choose how to measure the 12-month period used to designate the leave. 

Carmody Torrance Sandak & Hennessey attorneys Nick Zaino and Vincent Farisello shared their insights during a May 11, 2022 HR Hotline Live webinar.

Connecticut’s Family and Medical Leave Act provides eligible employees with up to 12 weeks of unpaid leave during a 12-month period. 

An employer can choose one of four options to determine the 12-month period: 

  • A calendar year
  • Any fixed 12-month period, such as a fiscal year or a 12-month period measured forward from the employee’s first date of employment
  • A 12-month period measured forward from the employee’s first day of leave taken
  • A rolling 12-month period measured backwards from the date the employee takes leave

Employers may select any of these four methods, but must apply it uniformly to all employees.

Employers who have a written policy about FMLA should include how the 12-month period is determined. 

Carmody Torrance Sandak & Hennessey attorneys Nick Zaino and Vincent Farisello shared their insights during a May 11, 2022 HR Hotline Live webinar

Rolling Back Method 

Employment lawyers generally recommend employers use the rolling back method for calculating the 12-month period. 

Not only does this method prevent stacking across calendar years, but it is also the method used by the Connecticut Paid Leave Authority, the agency that manages state-sponsored paid FMLA benefits

Using the same method minimizes complications when an employee receives paid benefits from the Authority at the same time that the employee receives unpaid leave from their employer.

With this method, each time an employee takes Connecticut FMLA leave, the remaining unused leave entitlement would be the balance of the 12 weeks which was not used during the immediately preceding 12 months.  

For example, Employee Bob takes two weeks of Connecticut FMLA leave from June 1 through June 14. 

Employment lawyers generally recommend using the rolling back method for calculating the 12-month period.

This is the first time he has taken leave. Then, on Oct. 1, he applies for leave again for a separate qualifying reason. 

On Oct. 1, the employer “looks back” 12 months to count the number of weeks he’s taken so far. 

In this example, Bob has taken two weeks of leave in the last 12 months, so he has 10 weeks remaining, which he uses from Oct. 1 through Dec. 9. 

Then again, on March 1 of the following year, he requests Connecticut FMLA leave again. 

On March 1, the employer “looks back” 12 months and sees that Bob has used his entire 12-week entitlement in the last 12 months. He will not be eligible for leave again until May 1. 

This method is “rolling” because the 12-month period is recalculated (backward) each time leave is requested.

Fixed Time Method 

Many employers have also chosen to use a fixed time method. 

Typically employers say it simplifies the administration process. It is also an easy method for employees to understand.

There is concern that during a fixed period leave can be stacked.

There is some concern however, that during a fixed period leave can be stacked. 

Farisello, a partner at Carmody Torrance, explained this may allow an employee to take two years’ worth of qualified leave over one long leave period. 

In a calendar year policy for example, an employee could begin a qualified leave in October and not return until the end of March. 

Documenting Leave Periods

No matter which time frame an employer uses, the time off for leave begins accumulating the first day an employee is out. 

Some employers have found it is taking longer than 15 days for an employee to return the medical certification forms. 

Time off for leave begins accumulating the first day an employee is out.

While this often falls on the medical provider, the employee is responsible under the law, and leave will still begin the first day the person is out, assuming the paperwork ultimately supports an FMLA-qualifying leave of absence. 

If an employee begins leave on May 1, but does not submit the form until May 15, the leave should still be counted as beginning on May 1. 

There is no formal provision for an FMLA extension when the 12-week period ends.

Strategic Approach

Attorneys generally suggest that employers have a strategy for managing leaves of absence. 

“As an employee is getting closer to the end of their FMLA leave, employers should stay in touch to make sure the employee knows they are expected to be back at work on a specific day,” Carmody Torrance partner Zaino said.

It shows the employee is being relied upon and that it matters that they come back on a certain date. It also shows you are engaging in the interactive process.

Courts have held that an extended leave of absence may be a reasonable accommodation.

If the employee says they need more time than FMLA allows, they are continuing in that discussion.

While the FMLA statute clearly provides 12 weeks of job-protected leave, attorneys caution employers to always be thinking about the federal Americans with Disabilities Act and Connecticut’s Fair Employment Practices Act, which require that employers provide “reasonable accommodations” for employees who have a disability. 

Federal and state courts have held that an extended leave of absence may, in some circumstances, be a reasonable accommodation.  

While the statutes do differ, employers often have to work between multiple statutes to ensure that all laws are followed.

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