The Essential Guide to Family & Medical Leave

chapter 6 | how much leave can an employee tAke? | 103
Choosing a Leave Year Method
Be sure to define “leave year” in your company’s written FMLA policy
and clearly describe which of the four methods the company will use.
(See Appendix B for a sample FMLA policy, and Chapter 2 for a general
discussion of the FMLA leave information your company should provide
employees.) If your company’s chosen method is not stated in its policies,
employees will be allowed to use the method most favorable to them,
whether or not it’s the best method for the company.
If, after reading this, your company decides to choose a new calculation
method, it can do so. However, if employees are on leave or have requested
leave, the company must provide 60 day’s notice of the change of method
to all employees. During that 60-day period, the employee can continue to
utilize the method of his or her choice. Once the 60 days has passed, your
company may begin using its selected method for all FMLA leaves. (29
C.F.R. § 825.200(e).)
Policy Alert
Your policy determines the leave year. If your company does not select
a leave year calculation method, uses different methods with different
employees, or changes methods without proper notice, each employee
will get to choose his or her favored method.
Applying the Leave Year Consistently
Regardless of which method your company uses to calculate the leave year,
it must use the same method for all employees who request FMLA leave. It
cannot choose different methods for different employees. If one department
uses a different method from another and an employee sues to challenge the
method used, a court will use the method most beneficial to the employee.
However, some states require employers to use a particular method
for calculating the leave year under their own medical leave laws. If your
company has employees in a state with this type of law, it must apply the
method required in that state. However, if your company does business in
other states that don’t have this same requirement, it is free to use a different