Fact Sheet #28H: 12-month period under the Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) provides job-protected leave from work for family and medical reasons.

This fact sheet explains the four options that employers may use to establish the 12-month period for taking FMLA leave for most leave reasons. (This fact sheet does not address the “single 12-month period” applied to military caregiver leave. See Fact Sheets #28M(a)-(b).)

ABOUT THE FMLA

The FMLA provides eligible employees of covered employers with job-protected leave for qualifying family and medical reasons and requires continuation of their group health benefits under the same conditions as if they had not taken leave. FMLA leave may be unpaid or used at the same time as employer-provided paid leave. Employees must be restored to the same or virtually identical position when they return to work after FMLA leave.

Eligible employees: Employees are eligible if they:

• Work for a covered employer for at least 12 months,
• Have at least 1,250 hours of service with the employer during the 12 months before their FMLA leave starts, and
• Work at a location where the employer has at least 50 employees within 75 miles.

Covered employers: Covered employers under the FMLA include:

• Private-sector employers who employ 50 or more employees in 20 or more workweeks in either the current calendar year or previous calendar year,
• Public agencies, including Federal, State, and local government employers, regardless of the number of employees, and
• Local educational agencies, including public school boards, public elementary and secondary schools, and private elementary and secondary schools, regardless of the number of employees.

The FMLA protects leave for:

• The birth of a child or placement of a child with the employee for adoption or foster care,
• The care for a child, spouse, or parent who has a serious health condition,
• A serious health condition that makes the employee unable to work, and
• Reasons related to a family member’s service in the military, including:
  • Qualifying exigency leave –- leave for certain reasons related to a family member’s foreign deployment, and
  • Military caregiver leave – leave when a family member is a current servicemember or recent veteran with a serious injury or illness.

For more information about the FMLA generally, see Fact Sheet #28.

DEFINING THE 12-MONTH PERIOD

Eligible employees may use up to 12 workweeks of FMLA leave in a defined 12-month period or “leave year” for the birth or placement of a child, care of a family member with a serious health condition, their own serious health condition, and qualifying exigencies related to a family member’s foreign deployment.

The 12-month period may be based on:

• The calendar year,
• Any fixed 12-month period, such as, a year starting on the employee’s anniversary date, a fiscal year, or a 12-month period required by state law,
• A 12-month period measured forward from the first date an employee takes FMLA leave, or
• A “rolling” 12-month period measured backward from the date an employee takes FMLA leave.

Examples:

• Kali works at a company that uses the calendar year for the FMLA leave year. All employees who are eligible for FMLA leave may use up to 12 workweeks of FMLA leave from January 1st through December 31st.
• Conner works at a business that uses its fiscal year as a fixed 12-month period that starts on October 1st and ends on September 30th for the FMLA leave period. All employees who are eligible for FMLA leave may use up to 12 workweeks of FMLA leave from October 1st through September 30th.
• Lucia works at an office that follows a 12-month period measured forward for the FMLA leave year. Lucia takes FMLA leave for the first time on November 6th. She may use up to 12 workweeks of leave during the 12-month period that begins November 6th and ends November 5th of the next year.
• At Patricia’s workplace, the 12-month period for FMLA leave is a rolling 12-month period measured backward from the date an employee takes leave. When Patricia begins FMLA leave on November 1st, her available FMLA leave is 12 workweeks less any FMLA leave she used in the previous 12 months.

The following timeline illustrates the rolling 12-month period measured backward for Patricia when she uses FMLA leave starting November 1st. Because Patricia’s FMLA leave will begin November 1st, the 12-month look back period is from November 2nd of the previous year through November 1st. During the 12-month look back period, Patricia used four workweeks of leave beginning January 1st, four workweeks beginning March 1st, and three workweeks beginning June 1st. Therefore, on November 1st, she has 1 week of FMLA leave available. If Patricia uses that week in November, she can next take FMLA leave beginning January 1st as the days of her previous January leave “roll off” the leave year.

EMPLOYER REQUIREMENTS

Employers may select any one of the four methods to establish the 12-month period, so long as they use the same 12-month period for all employees. The only exception is when an employer has eligible employees in more than one state. If a state law requires a specific method for determining the leave period, the employer may comply with the state provision for all employees within that state and use a different 12-month period for employees in other states.

If an employer fails to select one of the four methods discussed above, the employer must use the 12-month period that is the most beneficial to the employee.

If an employer intends to change to a different method for defining the 12-month period, the employer must give all employees notice at least 60 days in advance of the intended change. During the transition, the employer must make sure that employees continue to receive the full benefit of their leave entitlement under whichever of the two 12-month periods provides the greatest benefit to the employee.

An employer who has not established a 12-month period must provide employees with notice 60 days in advance of implementing one. During the 60-day transition period, the 12-month period that is the most beneficial to the employee applies. Under no circumstances may the 12-month period be changed to avoid the requirements of the FMLA.

Employers must inform eligible employees of the 12-month period in writing in the required Rights and Responsibilities notice. For more information about required employer notices, see Fact Sheet #28D.

ADDITIONAL INFORMATION

Eligible employees may use up to 26 workweeks of military caregiver leave in a single 12-month period. The single 12-month period for military caregiver leave begins on the first day the employee takes leave for this reason and ends 12 months later, regardless of the 12-month period for other types of FMLA leave. For more information about military caregiver leave for a current servicemember, see Fact Sheets #28M(a). For more information about military caregiver leave for a veteran, see Fact Sheet #28M(b).

ADDITIONAL PROTECTIONS

State Laws

Some States have their own family and medical leave laws. Nothing in the FMLA prevents employees from receiving protections under other laws. Workers have the right to benefit from all the laws that apply.

Protection from Retaliation

The FMLA is a federal worker protection law. Employers are prohibited from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right. Any violations of the FMLA or the FMLA regulations constitute interfering with, restraining, or denying the exercise of rights provided by the FMLA. For more information about prohibited employer retaliation under the FMLA, see Fact Sheet #77B and Field Assistance Bulletin 2022-2.

Enforcement

The Wage and Hour Division is responsible for administering and enforcing the FMLA for most employees. If you believe that your rights under the FMLA have been violated, you may file a complaint with the Wage and Hour Division or file a private lawsuit against your employer in court. State employees may be subject to certain limitations in pursuit of direct lawsuits regarding leave for their own serious health conditions. Most Federal and certain congressional employees are also covered by the law but are subject to the jurisdiction of the U.S. Office of Personnel Management or Congress.