Happy New Year!
For employers that permit employees to accrue 12 weeks of FMLA leave on a calendar year basis (or do not specify any other method in their policies), January 1, 2010 will mean a clean slate for any employees who may have exhausted their 12 weeks of FMLA leave in 2009. Even employees who exhausted their 12 weeks as recently as December 31 will automatically be eligible for FMLA leave as of January 1 so long as they worked 1,250 hours in the prior twelve month period and otherwise meet the eligibility requirements.
Employers that permit their employees to use 12 weeks of FMLA leave per calendar year should give serious thought to converting to a rolling 12-month accrual basis rolling backward from the date an employee uses any FMLA leave. Note, however, that under the Revised Regulations (Section 825.200(d)(1)) an employer wishing to change to another alternative is required to give at least 60 days notice to all employees, and 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. During the running of the 60-day notice period, an employee needing FMLA leave may use the option providing the most beneficial outcome to that employee. At the conclusion of the 60-day period, the employer may implement the new method of calculation.
Employers requiring assistance with revising their policies to reflect a change to a rolling accrual method should consult their counsel.