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HR-407 Family and Medical Leave Act Q&As

1. What is the definition of a qualifying exigency?

A qualifying exigency is defined as (1) short-notice deployment, (2) military events and related activities, (3) childcare and related activities, (4) financial and legal arrangements, (5) counseling, (6) rest and recuperation, (7) post-deployment activities, (8) care of the military member’s parent and (9) additional activities where the employer and employee agree to the leave.

2. How does the University define a year?

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.

3. Is the definition of a year the same for Military Caregiver Leave? 

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

4. 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.

5. 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.

6. 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.

7. 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. 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 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, 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.

8. Is a response required when an employee provides notice of a need for an 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, contact Human Resources.

9. 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. If the designation is oral, it must be confirmed, in writing, within five workdays.

10. Is FMLA leave paid or unpaid?

Accrued sick, vacation and personal days 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.

11. 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.

12. 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.

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

The University 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 medical opinion at the employer's expense.

14. 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. 

15. 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.

16. 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.

17. 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. 

18. 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.

19. 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.

20. 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 during any period of unpaid FMLA leave.

21. Do 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 they return to work. Personal days accumulate regardless of paid or unpaid leave status. However, personal days are lost on the anniversary date if the employee is on a leave of absence at that time.

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. How will FMLA leave be processed if the employee is less than 75 percent FTE?

Employees who are eligible for FMLA 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: 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

Reviewed 2019-11-14