Description

Eligible employees may be entitled to unpaid leave under the federal Family Medical Leave Act (FMLA) for specified family, medical and military related reasons. Paid leave may have to be substituted for unpaid leave in certain cases. The following is a summary of the University's and employee's rights and obligations under the FMLA. Please contact the Office of Human Resources if you have any questions.

Eligibility

To be eligible for FMLA benefits, an employee must have been employed by the University for at least twelve months (employment periods prior to a break in service of seven or more years need not be counted unless the break is occasioned by fulfillment of employee’s National Guard, Reserve or military obligation), and been employed by the University for at least 1,250 hours during the 12-month period previous to the start of the leave. The employee must also be employed at a work site with at least 50 employees working within 75 miles of that work site.

Qualifying Leave Reasons

The University will grant FMLA leave to eligible employees for the following reasons:

Basic Leave Entitlement

1. The employee's serious health condition; 
2. The birth and care of the employee's child*; 
3. Placement (with the employee) and care of a child for adoption or foster care*; 
4. Care of the employee's spouse, child, or parent with a serious health condition.

* Leave for the birth and care, or placement and care of a child must conclude within 12 months of the birth or placement of the child. FMLA applies equally to male and female employees.

Military Family Leave Entitlement

1. Qualifying Exigency Leave: for Qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent, or next of kin is on active duty status, or call to active duty status, as a member of the National Guard, Reserves or regular military in support of a contingency operation
2. Military Caregiver Leave: to care for a covered servicemember (spouse, son, daughter, parent, or next of kin) with a serious injury or illness incurred in the line of duty while on active duty.

Definitions

• Parent: The biological parent of an employee or an individual who stands or stood in loco parentis to an employee when the employee was a child.
• Child: A biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is under 18 years of age or 18 years of age or older and incapable of self-care because of a mental or physical disability
• Serious Health Condition: An illness, injury, impairment, or physical or mental condition that involves either:

1. Inpatient care (i.e. an overnight stay) in a hospital, hospice or residential medical care facility, including any period of incapacity (i.e. inability to work, attend school, or perform other regular daily activities) or subsequent treatment in connection with such inpatient care; or
2. Continuing treatment by a health care provider which includes:

1. 1. 1. A period of incapacity lasting more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity involving the same condition, involving:
      2. treatment two or more times by a health care provider or treatment by a health care provider (i.e. in-person visits, the first within 7 days and both within 30 days of the first day of incapacity): or
      3. one treatment by a health care provider (i.e., an in-person visit within 7 days of the first day of incapacity) with a a regimen of continuing treatment (e.g. prescription medication, physical therapy); or
      4. Any period of incapacity due to pregnancy or prenatal care; or
      5. Any period of incapacity or treatment for such incapacity due to a chronic serious health condition that requires periodic visits for treatment by a health care provider (at least twice a year); continues over an extended period of time; and may cause episodic rather than continuing incapacity (e.g., asthma, diabetes, epilepsy, etc.); or
      6. A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer's, severe stroke, terminal stages of a disease). or
      7. Any period of absence to receive multiple treatments by a health care provider either for restorative surgery after an accident or injury or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment (e.g., chemotherapy for cancer, physical therapy for severe arthritis, or dialysis for kidney disease).

• Qualifying Exigency (Military related leave)

Includes:

• • Issues arising from a covered military member’s short notice deployment (i.e. deployment on seven or less days of notice) for a period of seven days from the date of notification;
  • Military events and related activities, such as official ceremonies, programs, or events sponsored by the military or family support or assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross that are related to the active duty or call to active duty status of a covered military member;
  • Certain childcare and related activities arising from the active duty or call to active duty status of a covered military member, such as arranging for alternative childcare, providing childcare on a non-routine, urgent, immediate need basis, enrolling or transferring a child in a new school or day care facility, and attending certain meetings at a school or a day care facility if they are necessary due to circumstances arising from the active duty or call to active duty of the covered military member;
  • Making or updating financial and legal arrangements to address a covered military member’s absence;
  • Attending counseling provided by someone other than a health care provider for oneself, the covered military member, or the child or the covered military member, the need for which arises from the active duty or call to active duty status of the covered military member;
  • Taking up to five days of leave to spend time with a covered military member who is on short-term temporary, rest and recuperation leave during deployment;
  • Attending to certain post-deployment activities, including attending arrival ceremonies, reintegration briefings and events, and other official ceremonies or programs sponsored by the military for a period of 90 days following the termination of the covered military member’s active duty status, and addressing issues arising from the death of a covered military member;
  • Any other event that the employee and employer agree is a qualifying exigency.

Notice Requirements

Employees seeking FMLA leave should provide their supervisors and the University's Office of Human Resources at least 30 days prior written notice of the proposed leave. If leave is foreseeable less than 30 days in advance, the employee must provide notice as soon as practicable – generally, either the same or next business day.

Where advance notice is not possible, or when the need for leave is not foreseeable, such as in the event of a medical emergency, notice should be given as soon as practicable under the facts and circumstances of the particular case. Absent unusual circumstances, employees must comply with usual and customary notice and procedural requirements for requesting leave. Failure to give advance notice where foreseeable may delay or postpone the commencement of the leave. Please see the Office of Human Resources for the applicable forms.

Certification of Serious Health Condition

If FMLA leave is based on a serious health condition, whether it involves the employee or a family member (parent, spouse, child, or next of kin in the case of Military Caregiver Leave), employees must provide sufficient information for employer to reasonably determine whether FMLA may apply. Medical certification from a health care provider will be required. Failure to provide such certification may result in a delay or denial of the employee's leave. When an employee seeks leave due to an FMLA-qualifying reason for which the employer has previously provided the employee FMLA-protected leave, the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave.

In addition, when returning to work from a leave taken because of the employee's own serious health condition, the employee will be required to provide medical certification that the employee is fit to return to work, including any limitations or accommodations that are medically required.

Certification for Military Family Leave Entitlements

If FMLA leave is based on a military qualifying exigency, employees may be required to provide support by a copy of the covered military member’s active duty orders and certification providing the appropriate facts related to the particular qualifying exigency for which leave is sought, including contact information if the leave involves meeting with a third party.

If FMLA leave is based on a military caregiver leave, employees may be required to provide certification completed by an authorized health care provider or by a copy of an Invitational Travel Order (ITO) or Invitational Travel Authorization (ITA) issued to any member of the covered servicemember’s family.

Length of Leave

For Basic Leave Entitlement reasons 1 through 4 and Military Qualifying Exigency Leave (reason 5): Eligible employees may be entitled to up to twelve (12) weeks of unpaid leave during any 12-month period (which period is measured backward from the date an employee uses any FMLA leave). Each time an employee takes FMLA leave the remaining leave entitlement equals the balance of the 12 weeks that has not been used during the immediately preceding 12 months.

Where both spouses are employed by the University, they are jointly entitled to a combined 12 weeks of FMLA leave for the birth and care of their newborn child, or for the care and placement with them of a child for adoption or foster care.

In certain circumstances employees may take intermittent leave or leave on a reduced leave schedule. Intermittent leave or leave on a reduced schedule for the birth and care or placement and care of a child for adoption or foster care will be allowed only with the University's prior written approval. Intermittent leave or leave on a reduced schedule may be taken whenever medically necessary to care for a seriously ill family member or because of the employee's own serious health condition.

For Military Caregiver Leave (reason 6): Eligible employees may be entitled to up to twenty-six (26) weeks of unpaid leave during any 12-month period (which period is measured backward from the date an employee uses any FMLA leave). Eligible employees are the spouse, son, daughter, parent, or next of kin of a current member of the Armed Forces, including a member of the National Guard or Reserves with a serious injury or illness. Each time an employee takes FMLA leave (including Basic Leave Entitlement reasons 1-4 and Military Qualifying Exigency Leave reason 5) the remaining leave entitlement equals the balance of the 26 weeks that has not been used during the immediately preceding 12 months.

Spouses employed by the same employer are limited to a combined total of 26 workweeks in a single 12-month period if the leave is to care for a covered servicemember with a serious injury or illness, and for the birth and care of a newborn child, for placement for a child for adoption or foster care, or to care for a parent who has a serious health condition.

In certain circumstances employees may take intermittent leave or leave on a reduced leave schedule. When leave is needed for planned medical treatment, the employee must make a reasonable effort to schedule treatment so as not to unduly disrupt the employer’s operation. Intermittent leave or leave on a reduced schedule for the birth and care or placement and care of a child for adoption or foster care will be allowed only with the University's prior written approval. Intermittent leave or leave on a reduced schedule may be taken whenever medically necessary to care for a seriously ill family member, covered servicemember,because of the employee's own serious health condition, or for a qualifying exigency arising out of the active duty status or call to active duty of a covered servicemember.

Substituting Paid Leave

When an employee takes FMLA leave for their own serious health condition, and is designated by a healthcare provider, the university will substitute any accrued paid sick leave or applicable short term/maternity disability leave as per current policy for any (otherwise) unpaid FMLA leave. If sick leave or applicable short term/maternity disability leave are exhausted, the university will substitute accrued paid vacation leave as per current policy for all or part of any (otherwise) unpaid FMLA leave. Any FMLA leave remaining after applicable sick, disability and vacation leaves are exhausted will be unpaid leave.  Any SPU paid leave benefits applied during an FMLA leave will run concurrently with federal and state leave laws.

See Sick Leave - Staff policy, Short-Term Disability/Maternity policy, and Vacation-Staff policy.

In the case of military Qualifying Exigency, the university will substitute accrued paid vacation for all or part of any (otherwise) unpaid FMLA.

The University is responsible for designating if an employee's use of paid leave counts as FMLA leave based on the information provided by the employee. Paid leave that is substituted for unpaid leave will be counted toward the 12 weeks of FMLA leave (or 26 weeks in the case of a covered servicemember).

Benefits During Leave

During any FMLA leave, the University will maintain the employee's medical, dental, vision, flexible spending, life and disability insurance coverage on the same conditions that coverage would have been provided if the employee had been continuously employed during the entire leave period. The University and the employee will each continue to pay their portion of the benefit costs. In some instances, the University may recover premiums it paid to maintain health coverage for an employee who fails to return to work from FMLA leave.

During a continuous FMLA leave, sick leave and vacation leave will continue to accrue only during that portion of the leave which is paid by means of a substitution (i.e., short term disability, maternity leave, sick days, vacation days). During any continuous unpaid FMLA leave (not paid by a substitution), sick leave and vacation leave will not accrue. For those persons returning from any continuous unpaid FMLA leave, accrual of vacation leave and sick leave will resume the first of the month which follows or coincides with the date the individual returns to active work. Where the FMLA leave is taken on an intermittent basis or as a reduced-schedule, sick leave and vacation leave will continue to accrue during the leave for any hours worked or paid by means of substitution.

Returning from Leave

Employees returning from leave will be reinstated to the same or equivalent position, with equivalent pay, benefits, and other terms and conditions of employment. Failure to return to work may result in termination. Under specified and limited circumstances where restoration to employment will cause substantial and grievous economic injury to the University's operations, the University may refuse to reinstate certain highly paid "key" employees. A "key" employee is a salaried eligible employee who is among the highest paid ten percent of employees within 75 miles of the work site.

In addition, an employee's use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave, nor be counted against the employee under a "no fault" attendance policy. If such a benefit is, however, based on the achievement of a specified goal such as hours worked, products sold, or perfect attendance, and the employee has not met the goal due to FMLA leave, payment may be denied unless it is paid to an employee on equivalent leave status for a reason that does not qualify as FMLA leave.

An employee has no greater right to restoration or to other benefits and conditions of employment than if the employee had been continuously employed.

Unlawful Acts and Enforcement

It is unlawful for any employer to interfere with, restrain, or deny the exercise of any right provided by FMLA. It is also unlawful for an employer to discharge or discriminate against any individual for opposing any practice, or because of involvement in any proceeding, related to FMLA.

The Wage and Hour Division of the Department of Labor investigates complaints. If violations cannot be satisfactorily resolved, the US Department of Labor may bring action in court to compel compliance. Individuals may also be able to bring a private civial action against an employer for violations.

Other Leave Arrangements

If an employee is ineligible for leave under FMLA, the employee may be entitled to a leave of absence under the University's established policies addressing leaves of absence. The determination of whether an employee qualifies for FMLA leave will be made at the time leave is requested.

For More Information

A poster has been placed in the Office of Human Resources which includes further details regarding eligibility and other requirements of the law. Additional information can be obtained by contacting the Office of Human Resources. For further information click here.