FMLA Abuse and the “Rolling Back” method of
12-Week Entitlement Calculation
Scott D. Macdonald, Esq., SPHR, SHRM-SCP
What’s the best 12-month calculation method to use? Let’s examine that backwards: What’s the worst one to use?
The 2000 U.S. DOL Survey of employees asked leave-takers who used leave for health-related reasons (excluding disability due to pregnancy) if the condition required a doctors care or overnight hospital stay. It is worth noting that 99.1 percent of leave-takers who took leave under FMLA to address their own or a family member’s serious health condition reported that the condition required a doctors care. Furthermore, 67.0 percent indicated that they (or their family member) were in the hospital overnight. When asked to give the health condition, responses included heart attack, cancer, depression, and a variety of surgeries.
What’s more, of the six categories of “serious health condition” defined in Section 825.112, only one—chronic conditions—lends itself to significant abuse. Is the potential abuse you are trying to prevent hypothetical, or do you actually have a problem in your organization that you need to address? Why implement a calculation method that is overly cumbersome to administer based upon the premise that it’s the least “employee-friendly”, or for hypothetic abuse of a very small (single digit) percentage of employees who potentially might try to abuse FMLA leave?
As Paul Falcone, Vice President, Employee Relations, at Time Warner Cable in Los Angeles and a prolific writer on HR topics, stated in 2010, in his experience, about 3 to 5 percent of employees cause problems with FMLA, and that’s just a cost of doing business. “Manage the 95 percent,” he says, and sooner or later the abuse will catch up to the others. Source: BLR’s HR Daily Advisor.
The Rolling Back method of calculation may cause your organization to have to add a day, a portion of a day, an hour or even a fraction of an hour for each and every day an employee took leave during the previous 12 months. As a result, an employee may go in and out of FMLA-protected leave from one day to the next, depending on whether the leave was taken in a block of time or intermittently. Further complicating this issue is that an employee also may go in and out of eligibility if, as a result of having taken leave, the employee no longer meets the 1,250 service hour requirement. As a result, the 12-month entitlement period may change on a daily basis, and you may be required to send a new Eligibility Notice each time the employee’s eligibility for FMLA changes.
So ask yourself if it’s really worth having to calculate and recalculate each employee’s FMLA leave balance potentially on a daily basis, just to prevent either a hypothetical problem or one that involves such a small percentage of employees (who are likely to be problems for other reasons as well).