?The look-back method of calculating how much Family and Medical Leave Act (FMLA) time off an employee has used during a 12-month period is the best way for employers to prevent FMLA leave abuse. The look-back method is the most commonly used of the four optional methods provided in the FMLA regulations, though it can be the most administratively difficult, as well.
Using the look-back method, also called the rolling method, the employer will review the last 12 months from the date of the request for FMLA leave, add all FMLA time the employee has used during that time period and subtract that total from the employee’s 12-week leave allotment.
For employers that use the look-back method, every time an individual takes FMLA leave—continuous, intermittent or reduced schedule—the employer determines the individual’s leave entitlement by offsetting the weeks of FMLA leave based on what was used in the preceding 12-month period, said Tracy Billows, an attorney with Seyfarth in Chicago.
“Many think an employer looks back once and then is done,” she said. However, under the rolling method, individuals could be accruing leave throughout their time off, she explained.
Four Different Methods
The FMLA provides eligible employees of covered employers with the right to take unpaid leave for specific family or medical reasons while continuing group health coverage under the same conditions as if they had not taken leave. Under the FMLA, eligible employees may take up to 12 workweeks of leave in a 12-month period to care for themselves or a covered family member, or employees can take 26 workweeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness.
Employers may choose one of four methods to determine the 12-month period in which the 12 workweeks of leave occur, using either:
- The calendar year.
- Any fixed 12-month period, such as a fiscal year or the worker’s employment anniversary date.
- The 12-month period measured forward from the date that the employee’s first FMLA leave begins.
- A rolling 12-month period measured backward from the date an employee uses any FMLA leave.
“Employers must apply whichever method they choose consistently and uniformly to all employees,” said Shira Blank, an attorney with Epstein Becker Green in New York City.
Under the first two methods, an employee could take 12 weeks of FMLA leave at the end of the year and then another at the beginning of the following year for a consecutive total of 24 weeks—so-called stacked leave, she noted.
“Using the 12-month period measuring-forward method, whereby an employee’s 12-month leave period begins on their first day of leave, employees can still stack leaves by taking any FMLA time left at the end of the 12-month period and then taking more leave at the beginning of the next 12-month period,” said Anne-Marie Welch, an attorney with Clark Hill in Birmingham, Mich.
Look-Back Method
The look-back method is the most confusing to administer due to the need to recalculate leave entitlement as prior leave taken rolls off, but this method avoids stacking leave and helps curb FMLA abuse, Welch said.
The U.S. Department of Labor provided the following example of how the look-back method works: “If an employee used four weeks beginning Feb. 1, 2008, four weeks beginning June 1, 2008, and four weeks beginning Dec. 1, 2008, the employee would not be entitled to any additional leave until Feb. 1, 2009. However, beginning on Feb. 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 Feb. 1, 2009. The employee would also begin to recoup additional days beginning on June 1, 2009, and additional days beginning on Dec. 1, 2009.”
Using the rolling method, employers need to calculate whether the employee is entitled to take FMLA leave each time that leave is requested, Blank said. “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,” she said.
The method can be confusing for the employee and the employer, Blank said.
“It can be confusing for the employee because the employee may need a specific amount of leave on one date but be ineligible because of the requisite look-back period,” Blank said. “For instance, in the example above, even if the employee needs six weeks of leave for a serious health condition on Feb. 1, 2009, they would only be able to take four weeks of FMLA-protected leave.”
Some states, such as Wisconsin, require employers to use the calendar-year method for measuring state leave eligibility, said Stacy Bunck, an attorney with Ogletree Deakins in Kansas City, Mo. “As a result, it can create an administrative headache to simultaneously calculate state leave entitlement in Wisconsin while using the rolling/look-back method under the FMLA,” she said.
Employers can’t use the 12-month lookback period for an employee who is taking leave to care for a covered service member with a serious illness or injury, Welch said. The single 12-month period for military caregiver leave instead starts on the first day the employee takes leave for this reason and ends 12 months later.
ADA Obligations
Employers should remember that regardless of the method used for calculating the 12-week period for FMLA leave, they must abide by their obligations under the Americans with Disabilities Act (ADA), state and local disability laws, and state family leave laws, Blank said.
“Accordingly, even if an employee who requires leave has exhausted their FMLA-protected leave, the employer is still obligated to engage in the interactive process and provide the employee with a reasonable accommodation, which may also be job-protected leave,” she said.
