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HR-407 Family and Medical Leave Act Q&As

1. How does the University define a year?
Prior to May 1, 2020: The year is defined as starting every 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 they use the total amount, will not be eligible for another such leave for a period of one year from the FMLA begin date.

On and after May 1, 2020: The year is defined as the 12-month period measured backward from the date an employee uses FMLA. With this “rolling” method, each time an employee uses FMLA, the remaining leave entitlement is the balance of the 12 weeks which has not been used during the immediately preceding 12 months. An example of how the new calculation method works is below:

2. Is the definition of a year the same for Military Caregiver Leave?
No, the 12-month period for Military Caregiver Leave is measured forward from the date an employee’s leave to care for the covered service member begins.

3. Can a break in service have an effect on FMLA eligibility?
Yes. If the employee has a break in service that lasted seven years or more, the time worked prior to the break will not count unless the break is due to service covered by the Uniformed Services Employment and Reemployment Rights Act (USERRA), or there is a written agreement, including a collective bargaining agreement, outlining the employer’s intention to rehire the employee after the break in service.

4. What is the effect of a holiday on FMLA leave entitlement?
A week in which a holiday occurs will be counted against FMLA leave. For example, if an employee is approved & absent for FMLA from July 1 through July 15, the Independence Day observed holiday is included in the days counted towards the employees FMLA leave entitlement. A week in which a holiday occurs will be counted against FMLA leave.

5. What is the effect of Winter Break, Emergency Closures or other seasonal shut downs?
If the institution is closed and employees are not expected to work for one or more weeks, such weeks may not be counted against an employee's leave entitlement.

6. For whose illnesses can FMLA leave be taken?
FMLA leave may be taken for an employee’s illness or that of an employee's child, spouse, Sponsored Adult Dependent (including a child of a Sponsored Adult Dependent) or parent (not parent-in-law). Military Caregiver Leave may be taken for a spouse, Sponsored Adult Dependent, child, parent or next of kin of a covered service member who is recovering from a serious illness or injury sustained in the line of duty on active duty or that existed before the veteran’s active duty and was aggravated by service in the line of duty on active duty.

7. What is the definition of a child?
A child means a biological, adopted or foster child; the child of a Sponsored Adult Dependent; a stepchild; a legal ward; or a child of a person standing in loco parentis. Additionally, the child must be either under 18 years of age or 18 years of age or older and “incapable of self-care because of mental or physical disability” at the time FMLA leave is to commence.

8. What is the definition of a 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.

9. What is the definition of “Next of Kin” for military caregiver leave?
Next of Kin is the service member’s nearest blood relative in the following order of priority:

  1. One designated blood relative (in writing); if none, then
  2. All blood relatives with legal custody; if none, then
  3. All brothers and sisters; if none, then
  4. All grandparents; if none, then
  5. All aunts and uncles; if none then
  6. All first cousins.
     

10. What is the definition of “Qualifying Exigencies”?
Qualifying Exigencies arise when the immediate family member of an employee is on covered active duty in the Armed Forces or has been notified of an impending call or order to covered active duty. Categories of qualifying exigencies for FMLA purposes include:

  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
  8. Additional activities that arise out of the covered military member’s covered active duty or call to covered active duty status as approved by FMLA regulations.
     

11. 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.

12. 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.

13. 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.

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 recertification (some of which may be at the University’s expense) may be required. Additional periodic reports during FMLA leave regarding the employee's status and intent to return to work may also be required. Medical certification, provided by the military, is required for leave to care for a covered veteran 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, a copy of the covered military member’s active duty orders and certification providing the appropriate facts related to the qualifying exigency may be necessary. Please contact the FMLA Administrator to determine what certification will be required based on the circumstances of the leave requested.

15. May the FMLA administrator contact the health care provider to clarify information in the medical certification?
The FMLA administrator may, with an authorization that is compliant with the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 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 or third medical opinion at the employer's expense.

16. Is a response required when an employee provides notice of a need for an FMLA leave?
Yes. The FMLA administrator 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.

17. What if an employee needs time off but does not want to use FMLA?
The University has the responsibility to designate a qualifying leave as FMLA, even when the employee does not request FMLA. The University's designation must be made before the leave starts, before an extension of leave is granted or at such time the University attains sufficient information as to the employee's reason for taking the leave.

18. Is FMLA leave paid or unpaid?
Accrued paid time off must be used when appropriate for any FMLA qualifying purpose. 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.

19. How may intermittent leave be structured?
Intermittent leave may be taken in blocks of time or by reducing weekly or daily schedules. An employee who takes such leave must make a reasonable effort to schedule such leave so as not to unduly disrupt University operations.

20. 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 Human Resources.

21. 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, 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.

22. 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.

23. What job restoration is required?
Upon return from FMLA leave an employee must be restored to their 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 during any period of unpaid FMLA leave.

Date Created: 09/26/1997
Updated: 08/01/2001; 11/01/2001; 09/01/2002; 06/01/2008; 01/16/2009 01/19/2017; 10/01/2019; 02/08/2020

Reviewed 2020-02-27