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Leaves (HR-400)

HR 407 Family and Medical Leave Act Q&As

1. When was the Family and Medical Leave Act (FMLA) amended to incorporate leave for family members of military personnel?

The revisions were effective January 28, 2008.

2. What does the FMLA provide to employees?

FMLA entitles eligible employees to take up to twelve (12) weeks of unpaid job protected leave for specified family and medical reasons in a 12 month period.  FMLA also provides up to 12 weeks of leave in that same 12 month period for eligible employees for a qualifying exigency due to a call to active duty in the Reserves or National Guard.  FMLA provides eligible employees up to 26 weeks of unpaid job protected leave in a 12 month period to care for a service member who is recovering from a serious illness or injury sustained in the line of duty on active duty and actively receiving medical treatment.  However, an eligible employee is limited to a total of 26 weeks of leave which includes the 12 weeks of general leave if needed in the same 12 month period. 

3. What is the definition of qualifying exigency?

A qualifying exigency is defined as (1) short-notice deployment, (2) military events and related activities, (3) childcare and school activities, (4) financial and legal arrangements, (5) counseling, (6) rest and recuperation, (7) post-deployment activities and (8) additional activities where the employer and employee agree to the leave.

4. For whom may a qualifying exigency leave be taken?

Qualifying exigency leave may be taken for the employee’s spouse, son, daughter (including children over the age of 18), or parent who has been notified of an impending call or order to active duty in the Reserves or National Guard.

5. What is the definition of general leave? 

General leave is defined as leave for the birth of an employee’s child(ren); adoption of a child by the employee, or official placement of a child with the employee for foster care; care of a son or daughter (less than age 18), spouse or parent having a serious health condition; and incapacity of an employee as a result of a serious health condition.

6. What is the definition of covered service member leave?

Covered service member leave is for an eligible employee to care for a covered service member who is recovering from a serious illness or injury sustained in the line of duty on active duty and who is actively receiving medical treatment. Former members, including retired members, of the Regular Armed Forces, the National Guard, or the Reserves are not considered covered service members.

7. How much notice is required for covered service member leave?

Employees seeking to use covered service member leave must provide 30 days advance notice of the need to take FMLA leave for planned medical treatment for a serious injury or illness of a covered service member.  If leave is foreseeable but 30 days advance notice is not practicable, the employee must provide notice as soon as practicable.

8. How does the University define year?

Year is defined as starting every twelve (12) months from the current or most recent FMLA begin date.  The employee may use the leave that is allowed during the year and, if he/she uses the total amount, will not be eligible for another such leave for a period of one (1) year from the FMLA begin date.

9. Is the definition of year the same for covered service member leave?

No, the 12-month period for covered service member leave is measured from the date an employee’s leave to care for the covered service member begins.

10. For whose illnesses can a Family Medical Leave be taken?

Family Medical Leave may be taken for an employee’s illness or that of an employee's son, daughter, spouse, or parent (not parent-in-law).  Service memberleave may be taken for a spouse, son, daughter, parent or nearest blood relative of a covered service member who is recovering from a serious illness or injury sustained in the line of duty on active duty and who is actively receiving medical treatment. 

11. What is the definition of son or daughter?

Son or daughter means a biological, adopted, or foster child; a stepchild; a legal ward; or a child of a person standing in loco parentis.

12. What is the definition of parent?

Parent means 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.

13. What notice does the University require?

Employees seeking to use FMLA leave are required to provide 30 days advance notice of the need to take family and medical leave when the need is foreseeable.  For unforeseen circumstances, the University requires as much notice as is practicable.

14. What certification does the University require?

Medical certification supporting the need for leave due to a serious health condition affecting the employee or an immediate family member is required.  Second and third medical opinions and periodic recertifications (some of which may be at the University’s expense) may be required.  The University may also require periodic reports during FMLA leave regarding the employee's status and intent to return to work.  Medical certification, provided by the military, is required for leave to care for a covered service member who is recovering from a serious illness or injury sustained in the line of duty on active duty and who is actively receiving medical treatment.  For a qualifying exigency, the University may require a copy of the covered military member’s active duty orders and certification providing the appropriate facts related to the qualifying exigency. 

15. Is a response required when an employee provides notice of a need for a FMLA leave?

Yes.  The University must provide the employee with notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations.  For information and assistance, Human Resource Services should be contacted. 

16. Who must designate a FMLA leave and when must it be so designated?

The University is responsible for designation of FMLA in all cases, and the University's designation must be made before the leave starts, or before an extension of a leave is granted, unless the University does not have sufficient information as to the employee's reason for taking the leave until after the leave commenced.  If the designation is oral, it must be confirmed, in writing, within five (5)workdays. 

17. Is FMLA leave paid or unpaid?

Both.  Accrued vacation and personal days must be used when appropriate for any FMLA qualifying purpose.  In addition, family sick leave (up to 12 days per year) must be used for a seriously ill immediate family member or service member and accrued sick leave must be used for the employee's own serious health condition.  Once this time is exhausted, the employee reverts to unpaid status for the remainder of the FMLA leave.  Employees with accrued compensatory leave may not be required to substitute such leave for FMLA leave.

18. What is the effect of a holiday or institutional shutdown on calculating the amount of leave the employee has used?

A week in which a holiday occurs will be counted against FMLA leave.  However, if the institution is temporarily closed and employees are not expected to work for one or more weeks (e.g., holiday and summer shutdowns), such weeks may not be counted against an employee's leave entitlement.

19. Should a leave of absence for work-incurred injury or illness be counted toward FMLA leave?

Yes, either the employee or the employer may choose to have the employee’s FMLA 12-week leave entitlement run concurrently with a Workers’ Compensation absence when the injury is one that meets the criteria for a serious health condition. However, if an employee has elected to receive worker’s compensation benefits, the employer cannot require the employee to substitute any paid vacation or other leave.

20. May the University contact the health care provider to clarify information in the medical certification?

The University may, with a HIPAA compliant authorization, contact the employee’s health care provider to clarify information provided, but not to seek additional information beyond the inquiries permitted on the form.   However, the employee’s direct supervisor may not contact the health care provider. If the University has reason to doubt the validity of a physician's certification, the University may require the employee to obtain a second medical opinion at the employer's expense.

21. How may intermittent leave be structured?

Intermittent leave may be taken in blocks of time or by reducing weekly or daily schedules.  FMLA leave may be taken intermittently whenever it is medically necessary to care for a seriously ill family member or because the employee is seriously ill and unable to work a full schedule.  Intermittent leave may also be taken for a qualifying exigency or for covered service member leave.  An employee who takes such leave must make a reasonable effort to schedule such leave so as not to unduly disrupt University operations.

22. How is "serious health condition" defined? 

A serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care, such as an overnight stay in a hospital, hospice or residential medical care facility or any subsequent treatment in connection with such inpatient care, or continuing treatment by a health care provider.

23. What is continuing treatment? 

Continuing treatment by a health care provider includes one or more of the following:  (1) a period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition that also involves treatment by a health care provider within certain specific timeframes, (2) any period of incapacity due to pregnancy or for prenatal care, (3) any period of incapacity or treatment due to a chronic serious health condition, (4) a period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective and for which the employee or family member is under the continuing supervision of a health care provider, or (5) any period of absence to receive multiple treatments by or under orders from a health care provider for restorative surgery or for a condition that would likely result in a period of incapacity of more than three, consecutive, full calendar days in the absence of medical intervention.

24. For FMLA purposes, who may be considered a "health care" provider?"

FMLA defines "health care provider" as a doctor of medicine or osteopathy who is authorized to practice medicine or surgery by the state in which the doctor practices; or any other person determined by the Secretary of Labor to be capable of providing health care services.  These include podiatrists, dentists, clinical psychologists, optometrists, physician assistants and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist)authorized to practice in the state and performing within the scope of their practice as defined under state law; nurse practitioners and nurse midwives, who provide diagnosis and treatment; Christian Science practitioners and clinical social workers. 

25. Does an employee maintain health benefits during FMLA leave?

Yes, the University is required to maintain its portion of health insurance coverage for an employee on FMLA leave whenever such insurance was provided before the leave was taken and on the same terms as if the employee had continued to work.  Arrangements must be made for employees to pay their share of health insurance premiums while on leave.   For information and assistance, employees should contact the Faculty and Staff Benefits Office.

26. How will FMLA leave affect my retirement eligibility or benefits?

For the purpose of vesting in the UM pension plan, no unpaid FMLA leave will be considered as service credit.  For the purpose of determining the amount of retirement benefits, a FMLA leave granted due to the injury or illness of an employee, will be considered service credit.  No FMLA leave will be considered as a break in service under the plan.

27. What job restoration is required?

Upon return from FMLA leave an employee must be restored to his/her original position, or to an equivalent position with equivalent pay, benefits, and other employment terms
and conditions.  In addition, an employee's use of FMLA leave cannot result in a loss of any employee benefit that the employee earned or was entitled to before the FMLA leave. 
This includes seniority and shift. Employees are not entitled to accrue seniority or employment benefits during any period of unpaid FMLA leave.

28. Does vacation and sick leave accrue during FMLA leave?

Vacation and sick leave continue to accrue during any paid leave status of at least 75 percent FTE.  However, the employee is not eligible to use accrual until he/she returns to work.  Personal days accumulate regardless of paid or unpaid leave status.  However, personal days are lost at the anniversary date if the employee is on a leave of absence at that time.

29. Can time off under FMLA lead to disciplinary action for excessive absenteeism?

Qualifying absences under FMLA will not be considered in calculating occurrences of absence that may lead to disciplinary action.

30. How will the Family Medical Leave be processed if the employee is less than 75 percent FTE?

Employees who are eligible for Family Medical Leave, but are not eligible for vacation, sick leave and personal days will have the leave recorded in the vacation/sick leave computing system

 

Date Created: 9/26/97

Last Updated: 01/23/09