South-Western Legal Studies in Business

Employer Can Pick Among Four Choices for Calculating FMLA Leave
Description The policy of an employer on how it calculated FMLA leave was legitimate, so an employee who wanted another method of counting FMLA leave, which would have been in her favor, had no claim against her employer for violating FMLA standards.
Topic Employment Law
Key Words Family and Medical Leave Act; Calculating Leave Time
C A S E   S U M M A R Y
Facts Hill worked for Underwood Hospital. In December 1999, she took 17 days of medical leave that counted as FMLA leave. In August, 2000, she requested leave due to stress. She obtained a note from her doctor saying that she should be given time off and she left work. As FMLA allows, the employer required Hill to obtain a second opinion. The second doctor also recommended she be given leave. In November, the hospital told her she must return by November 21, by which time she had used 98 days FMLA leave. In May, 2001, she had a foot problem and stopped working. Her doctor said she might be out until September. On June 13, her employment was terminated. She sued for violation of the FMLA.

Suit dismissed. "The FMLA allows employers some flexibility in how they calculate the twelve-month period in which an employee may take FMLA leave. An employer may choose between four options: (1) the calendar year; (2) any fixed 'leave year,' such as a fiscal year…; (3) a twelve month period counting forward from an employee's first day of leave taken; or (4) 'a rolling 12-month period measured backward from the date an employee uses any FMLA leave.'" The employer must have a policy about which method it uses, or the calculation most favorable to the employee will be used. The hospital uses the last method and had noted that fact in various employee publications. Based on that method, by the time Hill was fired she had used more than the twelve weeks permitted under the FMLA, so she was no longer protected by the statute and had no claim.

Citation Hill v. Underwood Memorial Hospital, --- F.Supp.2d --- (2005 WL 901014, D. N.J.)

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