Under methods one and two, an employee is entitled to up to 12 workweeks of leave at any time in the fixed 12-month period selected. An employee could take 12 workweeks of leave at the end of the year and 12 workweeks at the beginning of the following year, creating the potential for 24 straight workweeks of leave.

Example: An employer uses a fiscal year of June 1 through May 31 as the 12-month period. An employee uses 12 weeks in March, April and May of 2022. On June 1, 2022 (the beginning of the new fiscal year and new 12-month period for FMLA), the employee again has up to 12 weeks of CFRA and/or FMLA leave available.

Under method three, an employee is entitled to 12 workweeks of leave during the year beginning on the first date family leave is taken; the next 12-month period begins the first time family leave is taken after completion of any previous 12-month period.

Example: An employee takes four weeks of CFRA/FMLA beginning on August 1, 2022. The employee

can use up to an additional eight weeks of leave during the rest of the 12-month period - which will end on July 31, 2023. If the employee used all 12 weeks beginning on August 1, 2022, all CFRA/FMLA would have been exhausted until the next 12-month period begins on August 1, 2023.

Under method four, each time an employee takes family and medical leave, the remaining leave entitlement is any balance of the 12 workweeks not used during the immediately preceding 12 months.

Example: The employee requests two weeks of FMLA leave to begin on November 1. The employer looks back 12 months (from November 1 back to November 2 of the previous year) and sees that the employee took four weeks of FMLA leave beginning January 1, four weeks beginning March 1, and three weeks beginning June 1. The employee has taken 11 weeks of FMLA leave in the 12-month period and only has one week of FMLA-protected leave available. After taking that one week in November, the employee can next take FMLA leave beginning January 1, as the days of the employee’s previous January leave “roll off” the leave year.

• Apply whatever method you choose consistently and uniformly to all employees. If an employer fails to select one of the four methods for measuring the 12-month period, the method that provides the most beneficial outcome for the employee will be used.1

12-Month Leave Entitlement Period for FMLA Military Caregiver Leave

For leave to care for an ill or injured covered servicemember, the employee can take up to 26 workweeks in a single 12-month period under the FMLA. For this military caregiver leave, the 12-month period begins on the first day of leave, regardless of how you calculate the 12-month period for other FMLA/CFRA leaves.

If the employee does not take the entire 26 weeks of leave entitlement within the 12-month period, the employee forfeits the remaining amount of leave available.2

Notice to Employees of 12-Month Leave Entitlement Period

• Explain the calculation method you choose in the CFRA/FMLA policy in your employee handbooks. If you do not clearly explain your calculation method to employees, you must give them whichever method provides the most family and medical leave time, as courts will apply the option most favorable to the employee.3

Under both FMLA and CFRA regulations, an employer that wants to change to another alternative 12-month leave entitlement period is required to give at least 60 days’ notice to all employees. The transition must take place in such a way that the employees retain the full benefit of 12 weeks of leave under whichever method affords the greatest benefit to the employee. A new method cannot be implemented to avoid CFRA or FMLA’s leave requirements under any circumstances.

1. 29 CFR sec. 825.200(e); 2 CCR sec. 11090(b)

2. 29 CFR sec. 825.127(c)

3. Bachelder v. America West Airlines, 259 F.3d 1112 (9th. Cir. 2001)