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HR-407 Family and Medical Leave Act

Summary

The Family and Medical Leave Act (FMLA) is a federal law that provides employees the right to take a leave of absence for family, medical reasons, and leave for military families while maintaining job protection.


Policy

Per Collected Rules and Regulations (CRR) 340.010: Family and Medical Leave (Amended Bd. Min. 2-9-2020, effective 3-1-2020):

  1. Purpose. This policy describes provisions and resources supporting the University’s strong commitment to the Family and Medical Leave Act (FMLA), which provides eligible employees with job-protected unpaid leave for specified family and medical reasons.
  2. Scope. This policy applies to eligible faculty and staff employees of the University. Faculty, as well as other members of the University’s community, should refer to applicable Collected Rules and Regulations or other administrative resources for additional information regarding leaves of absence. This policy will not be construed to diminish or alter any faculty leave authorized by Section 340.070.B.2 of the Collected Rules and Regulations and the provisions of Section 340.070.B.2 shall control in the event of any inconsistency in this policy.
  3. Definitions
    1. Eligible Employee. An eligible employee is one who has been employed by the university for a total of at least twelve (12) months at the time of the leave of absence, and has actually worked at least 1,250 hours during the 12-month period immediately preceding the leave, regardless of the employee’s place of employment by the university. The 12-months of employment do not have to be consecutive. If the employee has a break in service that lasted seven (7) years or more, the time worked prior to the break will not count unless required by law (including but not limited to any requirement of the Uniformed Services Employment and Reemployment Rights Act (USERRA)).
    2. Serious Health Condition. A “serious health condition” means an illness, injury, impairment, or physical or mental condition that involves:
      1. Inpatient care (i.e., an overnight stay) in a hospital or other medical care facility (including any period of incapacity or any subsequent treatment in connection with such in-patient care);
      2. Period of incapacity of more than three (3) consecutive full calendar days, and any subsequent treatment or period of incapacity relating to the same condition that also involves: (1) Treatment by or under the orders of a health care provider on a least two (2) occasions within the first thirty (30) days of the incapacity; or (2) Treatment by a health care provider on at least one (1) occasion within the first seven (7) days of the incapacity which results in a regimen of continuing treatment under the supervision of a health care provider.
      3. Any period of incapacity due to pregnancy, or for prenatal care;
      4. Chronic serious health condition requiring periodic visits (defined as a least twice per year) for treatment by or under the supervision of a health care provider that continues over an extended period of time and may cause an episodic rather than a continuing period of incapacity;
      5. Permanent or long-term conditions requiring supervision for which treatment may not be effective; or
      6. Multiple treatments by a health care provider or under the supervision of a health care provider, either for restorative surgery after an accident or other injury, or for a condition that will likely result in a period of incapacity of more than three (3) consecutive calendar days in the absence of medical intervention or treatment.
    3. Key Employee. An employee who qualifies as a “key employee” may be denied restoration of employment after a period of FMLA leave if holding the employee’s position would cause substantial and grievous economic injury to the University’s operations, as defined by law. A “key employee” is an employee who is salaried and is among the highest-paid ten percent of all employees employed by the University within 75 miles of the place where the employee reports to work. A key employee will be given notice regarding denial of reinstatement and will be afforded other rights as required by the FMLA and its implementing regulations.
    4. Intermittent and Reduced Schedule Leave. Leaves taken to care for an employee’s covered family member, the employee’s own serious health condition, or to care for a qualified service member may be taken intermittently or on a reduced leave schedule when medically necessary, provided a health care provider certifies the expected duration and schedule of such leave. Leave for military exigency may also be taken intermittently or on a reduced leave schedule.

      Employees who are approved for intermittent FMLA leave must continue to comply with the normal call-in procedures to the extent possible. Employees taking intermittent or reduced schedule leave that is foreseeable based on planned medical treatment may be required to transfer temporarily to an available alternative position for which the employee is qualified and that has equivalent pay and benefits and better accommodates recurring periods of leave than the employee’s regular position.

      Intermittent leave and/or a reduced schedule leave may be taken for the birth or adoption of a child or placement with the employee of a child for foster care if approved by the employee’s direct supervisor and may not extend beyond 12-months after the birth, adoption, or placement of a child for foster care. If an employee needs leave intermittently or on a reduced leave schedule for planned medical treatment, then the employee must make a reasonable effort to schedule the treatment so as not to unduly disrupt the University’s operations.

  4. Policy
    1. Leave Entitlement. Subject to the requirements described in this policy, an eligible employee may take up to twelve (12) workweeks of leave in a 12-month period for one or more of the following reasons:
      1. The birth of a child or placement of a child with the employee for adoption or foster care; leaves for birth, adoption, or foster care must be taken with 12-months of the event;
      2. To care for the employee’s spouse, son or daughter, parent, sponsored adult dependent, or the child of a sponsored adult dependent with a serious health condition, as certified by a health care provider;
      3. For a serious health condition that makes the employee unable to perform the essential functions of the employee’s job; or
      4. For any qualifying exigency arising out of the fact that an employee’s spouse, son or daughter, parent, sponsored adult dependent, or a child of a sponsored adult dependent is a military member on covered active duty or call to covered active duty status in the Armed Forces in support of a contingency operation.

      The 12-month period is measured backward from the date the eligible employee uses any FMLA leave, and the leave entitlement is equal to the balance of the twelve (12) workweeks which has not been used during the immediately preceding 12 months.

      Spouses who are eligible employees may each take up to twelve (12) workweeks of leave in a 12-month period for FMLA-qualifying reasons, including leave to care for the employee’s parent with a serious health condition or for the birth of a child or placement of a child with the employee for adoption or foster care.

    2. Leave Entitlement to Care for a Covered Service Member. An eligible employee may also take up to 26 workweeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness, when the employee is the spouse, son or daughter, parent, sponsored adult dependent, child of a sponsored adult dependent, or next of kin of the covered service member. The single 12-month period for military caregiver leave is different from the 12-month period used for other FMLA leave reasons. The single twelve (12) month period for military caregiver leave begins on the first day the employee takes leave for this reason and ends 12 months later.

      Covered service members include:

      1. A current member of the Armed Forces (including a member of the National Guard or Reserves) who is undergoing medical treatment, recuperation, therapy, is in outpatient status, or is on the temporary disability retired list for a serious injury or illness; or
      2. A veteran of the Armed Forces (including the National Guard or Reserves) discharged within the five (5) year period before the family member first takes military caregiver leave to care for the veteran and who is undergoing medical treatment, recuperation, or therapy for a qualifying serious injury or illness. A veteran who was dishonorably discharged does not meet the FMLA definition of a covered service member.

      For a current service member, a serious injury or illness is one that may render the service member medically unfit to perform military duties. For a veteran, a serious injury or illness is one that rendered the veteran medically unfit to perform military duties, or an injury or illness that qualifies the veteran for certain benefits from the Department of Veterans Affairs or substantially impairs the veteran’s ability to work. For veterans, it includes injuries or illnesses that were incurred or aggravated during military service but that did not manifest until after the veteran left active duty.

      Military caregiver leave is available to an eligible employee once per service member, per serious injury or illness.

    3. Use of Paid Time While Away on FMLA Leave. The employee must use all available paid time as part of the FMLA leave. Once paid leave time is exhausted, FMLA leaves are without pay. For faculty paid family medical leave, see Section 340.070.B.2.
    4. University Notice of the Need for FMLA Leave. When the leave is foreseeable, the employee must provide thirty (30) days advance notice. Otherwise, the employee must notify the university as soon as practicable upon learning of the need for leave.
    5. Medical Certification. If the requested leave is for a serious health condition of the employee, the employee will be required to prove a health care provider’s certification providing information regarding the condition and inability to perform one or more essential functions of the job within fifteen (15) calendar days after the employer’s request. If the requested leave is to care for a covered family member, the employee will be required to provide, within fifteen (15) calendar days after the employer’s request, a health care provider’s certification providing information as to the serious health condition and stating that the employee is needed to care for the family member. The university may request subsequent re-certifications during the course of the leave in accordance with the limitations set forth in the FMLA regulations. Updated work absence statements from the healthcare provider are required for all leave extensions. Records and documents relating to medical certifications or re-certifications of employees or employees’ family members will be maintained as confidential medical records in Human Resources, subject only to the limited exceptions set forth in the FMLA regulations. FMLA may be denied if requested certifications are not provided within prescribed time limits.
    6. The Genetic Information Nondiscrimination Act of 2008 (GINA). GINA is a federal law that prohibits employers and other entities covered by GINA from requesting or requiring genetic information of employees or their family members. In order to comply with this law, the University asks that health care providers not provide any genetic information when responding to the request for medical information. Genetic information, as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
    7. Certification for Military Exigency Leave. The first time an employee requests leave because of a qualifying military exigency; the employee must provide a copy of the covered military member’s active duty orders or other documentation issued by the military. The documentation must indicate that the covered military service member is on active duty or called to active duty status in a foreign country and the dates of active duty service. The employee will need to supply such documentation again only if requesting leave for a different covered active duty or call to covered active duty status of the same or a different covered military member.
    8. Benefits. During the leave period, an employee is eligible to continue participation in the university’s employee benefit program (medical, dental, life, vision, accidental death, and long-term disability). In order for the coverage to be continued, the employee will be responsible for the employee’s portion of the cost.
    9. Return to Work. A health care provider’s statement will be required for return to work from the employee’s own serious health condition, including after the birth of a child. The return to work form must be presented before the employee may be returned to the work schedule. The return to work form must document the nature and duration of work restrictions if any. If the employee is able to return to work earlier than the date indicated, the employee will be required to notify the supervisor and/or the campus human resources office at least two (2) workdays prior to the date the employee intends to return for work.

      The department will return the employee to the same position held before the leave or an equivalent position. The employee will be provided the level of benefits and seniority held before the leave.

    10. Failure to Return to Work. If the employee fails to return to work following the expiration of the FMLA leave and has not requested an extension of the leave, the employee will be considered to have voluntarily resigned from the university as of the day the leave paperwork expired.

Further HR Policy Provisions

Additional HR-407 policy provisions below in accordance with CRR 340.010:

  1. Holidays will be counted against FMLA leave.
  2. University closures of a week or more (e.g., Summer & Winter Break) are not counted as FMLA.
  3. FMLA (12) twelve-week entitlement runs concurrently with a Workers’ Compensation absence when the injury is one that meets the criteria for a serious health condition.
  4. Compensation
    1. The administrative, service and support employees and certain non-regular academic employees as approved by the chancellor and president must use all available accrued paid time off as part of the FMLA leave. The following order will be submitted for paid leave, unless otherwise specified:
      1. Sick leave
      2. Vacation leave
      3. Personal leave
      4. Other as available (i.e., comp time)
      5. Once paid leave is exhausted, FMLA leaves are without pay.
    2. Faculty, as defined in 340.070, will receive two 12-weeks (defined as a cumulative total of 24 weeks) of paid FMLA leave in a six (6) year period. Such period will be based on the same method all FMLA leave is calculated. The following order will be submitted for paid leave, with no exceptions:
      1. Available balance of paid FMLA leave will be paid first;
      2. Once the 24 paid weeks of FMLA leave is exhausted, faculty must use the four (4) weeks of annual leave (defined as 20 days each year) per CRR 320.070.
      3. Once all paid leave is exhausted, FMLA leaves are without pay.
    3. Employees on a leave of absence with pay will receive holiday pay pursuant to HR-401. Holiday pay is not received when an employee is on a leave of absence without pay.
  5. Effective May 01, 2020, the 12-month period will be determined using the “rolling” method, under which the 12-month period is measured backward from the date the eligible employee uses any FMLA leave, and the leave entitlement is equal to the balance of the twelve (12) workweeks which has not been used during the immediately preceding 12 months.

See Also

HR-107 Attendance;
HR-217 Emergency Closure and Transition to Remote Operations Q&A;
HR-307 Workers’ Compensation;
HR-401 Holidays;
HR-402 Vacations;
HR-403 Personal Days;
HR-404 Sick Leave;
HR-408 Leaves of Absence;
HR-414 Shared Leave;
HR-415 Winter Break Leave Q&A; and
HR-416 Organ and Bone Marrow Donor Leave

FCCRA Paid Sick Leave and Paid Family and Medical Leave Request Form (PDF, 630KB)

Date Created: 09/26/1997
Updated: 02/09/2017; 03/01/2020; 07/01/2020;

Reviewed 2020-11-10