All of you experts on the Family and Medical Leave Act, gather 'round!

The following is from a real lawsuit that was filed Wednesday in federal court in Indianapolis. 

The plaintiff -- we'll call her "Annabelle" -- was an FMLA case manager for a health care employer. Actually, according to her lawsuit, her title was "[Annabelle] RN, BSN, CHNw Leave Team Case Manager/Benefits Administration."

Yeah, and I am "Robin E. Shea, A.B., J.D., Esquire, Attorney at Law."

Anyway, Annabelle had been with this employer since 2002, but she was fired in January 2025, allegedly in retaliation for internally objecting to certain FMLA policies that the company adopted in January 2025 and also for complaining to the U.S. Department of Labor about those policies.

BACKGROUND

At this early stage, all we have is Annabelle's lawsuit. The employer has not yet had a chance to respond.

Here's what she says (my commentary is in green, in honor of the upcoming St. Patrick's Day holiday):

For many years, the employer used a fixed year for determining the amount of FMLA leave an employee was entitled to. You know how that works, right? Let's say your fixed year is a calendar year. That means on January 1 of each year, your FMLA-eligible employees get a bright, shiny new 12-week chunk of unexhausted FMLA leave. Even if they took 12 weeks of FMLA leave in October, November, and December of the prior year.

Annabelle's employer decided to use a third-party administrator starting in 2025. But Annabelle wasn't going to lose her job. Her employer told her that her services would still be needed.

The new TPA decided that it would transition from a fixed FMLA leave year to a rolling 12-month period. In my experience, this is what most employers choose because they don't care for the scenario in which an employee could end up with six solid months of FMLA-protected leave. With a rolling 12-month period, the employee who took FMLA leave in October-December of Year 1 would not be eligible for any more FMLA leave until October of Year 2.

The TPA also said that it would give to each FMLA-eligible employee at the company a new 12-week block of unused FMLA leave effective January 1, 2025. Regardless of how much FMLA leave the employee had taken in 2024. In other words, it appears that the TPA didn't immediately put a true "rolling" period into place.

Nice!

But not nice to Annabelle. She was upset about the change. She argued with her bosses, called the U.S. Department of Labor, and complained to the TPA. She also told some employees and the employees' supervisors that the changes might result in the loss of already-approved FMLA leave. (Again, this is what she has alleged in her lawsuit.)

Her employment was eventually terminated, and now she's suing the employer for retaliation.

FMLA BRAIN TEASER

Here is the brain teaser:

Annabelle claims that changing to the rolling 12-month leave year means that employees who were FMLA-eligible in 2024 may not be FMLA-eligible in 2025. I had to read that a few times because it made no sense to me.

As an example, Annabelle claimed that one employee -- we'll call her Elsie -- worked part-time in 2024 and just barely had enough hours in 2024 to meet the 1,250-hour requirement for FMLA eligibility. OK. In late 2024, Elsie was approved for FMLA leave starting in early 2025. Great. But Annabelle claimed that because of the changes from the TPA, Elsie might no longer be eligible for FMLA leave in 2025.

How so? (Please feel free to answer in the comments.)

BONUS BRAIN TEASER: Also, Annabelle says, the company is required to provide advance notice to the employees about the new FMLA leave year, and the TPA said it was not going to do so. Despite Annabelle's sincere and persistent entreaties that it do so.

Assuming what she alleges is true, is Annabelle correct that the employer/TPA violated the FMLA by failing (or refusing) to provide in late 2024 a notice of the changes that would take effect in 2025 and later? Again, please feel free to answer in the comments.

SPOILER ALERT (aka "ANSWERS") BELOW

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No. 1: Will Elsie become ineligible for FMLA leave in 2025 because the TPA changed leave years?

I say no.

It appears to me that Annabelle is confusing FMLA allotment with FMLA eligibility. Someone who administers the FMLA for a living ought to know that these are not the same thing.

The fixed-year-versus-rolling-year analysis applies when you are determining the amount of FMLA leave that an eligible employee has. 

But eligibility to take FMLA leave is a different question. To determine whether an employee is eligible for FMLA leave, you look at three things:

1. Has the employee been employed by the employer for at least 12 months? (The 12 months doesn't even have to be consecutive. An employee who worked for the employer six months in 2022, quit, and then was re-hired six months ago would meet the 12-month requirement.)
2. Has the employee worked at least 1,250 hours in the 12 months immediately before the date that the FMLA leave would start?
3. Does the employee work at a location that has at least 50 employees within a 75-mile radius? (This is not relevant to our discussion today, but it is a requirement for eligibility.)

Sorry to go "nerd" on you, but these eligibility requirements are addressed in the FMLA regulations at 29 C.F.R. Section 825.110 (scroll WAY down).

If the answer to all three of these questions is "yes," then the employee is eligible for FMLA leave. But that has nothing to do with the amount of FMLA leave that is available to the employee. Maybe the employee is eligible but already used up all of her available FMLA leave for the year.

Or maybe she wants the leave for a non-qualifying reason. In that case, her eligibility and allotment might be fine, but she still won't get the leave.

In other words, the TPA decision to use a different leave year did not affect anyone's eligibility for FMLA leave in the least. Since the 12-week allotment took effect for eligible employees on 1/1/25, presumably anyone who was eligible as of 1/1/25 was good. As long as Elsie was eligible that day (and it sounds like she was), then she should be fine.

No. 2: Does the change in leave years mean that Elsie will lose any of her FMLA allotment?

I say no.

Again, I apologize for the legalese, but the regulations governing the amount of leave to which an employee is entitled -- including the "leave year" -- are in 29 C.F.R. Section 825.200(d).

According to Annabelle, the TPA has already said that everybody who is FMLA-eligible gets a new bank of 12 weeks of FMLA leave for 2025, effective January 1. So if Elsie was eligible and approved to take FMLA leave in 2025, I don't see how she could have possibly suffered a reduction in her leave allotment as a result of the change.

No. 3: Did the TPA or employer violate the law by not providing 60 days' written notice of the change to the leave year?

Once again, I say no.

The FMLA regulations do require an employer to provide at least 60 days' prior notice to employees if it decides to change its FMLA "leave year." That's in the same section of the regs that I just linked three paragraphs ago. So Annabelle is correct about that much.

But I would expect the employer to argue that, in this situation, the notice deadline will not actually occur until 60 days before the end of 2025 (in other words, around next Halloween), since all eligible employees got the maximum allotment of FMLA leave effective 1/1/25. 

But, you may ask, what if the fixed leave year previously used by the employer wasn't a calendar year? Suppose it was, say, July 1 through June 30?

No biggie. In that case, I'd send out the notices 60 days before June 30 (in other words, by April 30). But the TPA shouldn't have had to send out the notices as early as January, by which time Annabelle had already been discharged.

Whether the employer retaliated against Annabelle remains to be seen. One can engage in legally protected activity even if they are mistaken about the law. But as far as whether this employer or its TPA actually violated the FMLA, I think the answer is a clear "No."