Most employees are aware that they have protections under the federal Family and Medical Leave Act (FMLA) to take leave from work under certain circumstances. Acceptable reasons include treatment of your own serious health condition or to care for a family member with a serious health condition. This post provides information as to the qualifying conditions necessary to receive FMLA leave and the amount of leave that may be available to you.


In order to benefit from the federal protection, you must meet certain prerequisites:

1. You must have worked for the employer for at least 1,250 hours within the last 12 months1

2. Your employer must have 50 or more employees within a 75-mile radius

3. If you work for the state government, generally speaking, you do not have federal protection if taking leave for your own serious health condition. (See Self-Care Right Under Federal FMLA Reduced in Recent U.S. Supreme Court Decision.)

Assuming you meet these prerequisites and qualify for protection under the FMLA, you are entitled to 12 workweeks of unpaid leave during any 12-month period (“leave year”). 29 U.S.C. § 2612(a)(1).

Employers Are Allowed to Define the Leave Year

The law permits your employer to choose how it would like to define the 12-month, leave year period so long as your employer applies its method “consistently and uniformly to all employees.” 29 C.F.R. § 825.200(d)(1). This means that your employer may use any fixed period (such as the calendar year, fiscal year, or the employee’s date of hire), or it may implement a “’rolling’ 12-month period measured backward from the date an employee uses any FMLA leave” to calculate the leave year. 29 C.F.R. § 825.200(b). If an employer decides to modify the method for calculating a leave year, it must give all employees at least a 60-day notice of the change, and the transition from one method to another must not detriment the employees’ rights to a full 12 weeks of leave. 29 C.F.R. § 825.200(d)(1).

The Rolling Year

Unlike a fixed-year period, which begins and ends on a certain date, under the rolling year method, the 12-month period used to determine whether or not you have available FMLA leave is continuously changing. The employee may fall in and out of FMLA protection based on his previous leave usage. “[E]ach time an employee takes FMLA leave the remaining leave entitlement would be any balance of the 12 weeks which has not been used during the immediately preceding 12 months.” See 29 C.F.R. § 825.200(c). Under this “look back” or “rolling backward” method, the employer looks back 12 months from the date the employee requests leave to calculate the amount of leave available.

This method can be particularly confusing for employees who take intermittent, reduced, or partial leave because their FMLA leave entitlement is based on when they took FMLA leave the previous year. Consider the following examples:

Example 1: Sue requests leave to treat her own serious health condition beginning June 11, 2012. Previously, Sue took FMLA leave from February 7, 2011 to May 2, 2011 (12 weeks). How much FMLA leave may Sue take?

Answer: 12 weeks. Under the rolling method, Sue should look back from the date of her leave request, which is June 11, 2012. Between June 11, 2011 and June 11, 2012, Sue has not used any FMLA time, so she is entitled to take the full 12 weeks.

Example 2(a): Sue requests FMLA intermittent leave beginning June 11, 2012, to care for her baby with a serious health condition. Sue had a baby nine months ago, August 15, 2011, and took eight weeks protected leave for this event. Sue returned to work October 10, 2011. How much leave is Sue entitled to now?

Answer: Four weeks. Between June 11, 2011 and June 11, 2012, Sue has taken eight weeks of leave. Therefore, Sue has four workweeks of FMLA leave time remaining.

Example 2(b): Same set of facts as Example 2(a), except this time Sue and her husband discuss the matter and decide that Sue’s husband will care for the sick child until Sue has “earned back” her full 12 weeks of leave. When will Sue be eligible for 12 weeks of FMLA leave?

Answer: October 10, 2012. Sue used eight weeks of leave between August 15, 2011 and October 10, 2011. Sue has not taken any additional FMLA leave since October 10, 2011. Looking back from October 10, 2012 to October 10, 2011, Sue has not taken any FMLA leave, so she is entitled to the full 12 weeks as of that date.

Example 3(a): Disregard the facts from the previous examples. Sue requests FMLA intermittent leave beginning June 11, 2012, for her own serious health condition. In December 2011, Sue was forced to take intermittent leave to treat this same serious health condition. Specifically, Sue took FMLA leave December 6, 8, 14, 22, and 23, 2011. Sue typically works eight hour days, five days per week. How much leave is Sue entitled to?

Answer: 11 weeks. Looking back from June 11, 2012 to June 11, 2011, Sue has taken five days (Dec. 6, 8, 14, 22, 23), or one workweek, of FMLA leave. Therefore, Sue has 11 weeks of FMLA leave remaining.

Example 3(b): Same set of facts as Example 3(a); however, Sue would like to know when she will “earn back” her full 12 weeks of leave. When will Sue be eligible for 12 weeks of FMLA leave?

Answer: After December 23, 2012. If Sue does not take any additional FMLA leave, then beginning December 6, 2012, the first day Sue took FMLA leave the previous year, Sue will start to “earn back” more FMLA leave time. If Sue were to work every day from December 24, 2011 through December 23, 2012, then as of December 24, 2012, Sue would be eligible for the full 12 weeks of FMLA leave. Put simply, if Sue looks back from December 24, 2012 to December 24, 2011, Sue has not taken any FMLA leave, so she is entitled to the full 12 weeks at that time.

When you or someone you know suffers from a serious health condition, it is extremely important to understand the protections you have under state or federal law. For more information about your medical leave rights under the Wisconsin or Federal FMLA, see the Know Your FMLA Rights Handbook or call Hawks Quindel, S.C. for a free consultation with an experienced employment law attorney.

1 Eligibility for FMLA is measured based on the 12 months immediately preceding the commencement of leave for each qualifying condition. 29 C.F.R. § 825.11. Distinct from the rolling calendar year method used for purposes of calculating remaining leave weeks available, the employee remains “eligible” for FMLA leave 12 months forward from the point eligibility is established.

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