How Does It Work?
The FMLA covers the following situations:
- Birth of a child, and to care for the newborn child;
- Placement of a child with the employee for adoption or foster care;
- Care for the employee’s spouse, child*, or parent with a serious health condition;
- A serious health condition that makes the employee unable to perform the functions of the employee’s job;
- A qualifying exigency as defined by the Department of Labor arising out of the fact that the spouse, son, daughter, or parent (the “service member”) of the employee is on covered active duty or has been notified of an impending call to order to covered active duty;
- To care for a spouse, son, daughter, parent or next of kin (the “service member”) who is a current member or veteran of the Armed Forces or National Guard or Reserves and who has an illness or injury incurred in the line of duty.
*A child for the purposes of Family Medical Leave (FML) is defined as a biological, adopted, or foster child, a stepchild, a legal ward or a child of a person standing in loco parentis, who is under age 18; or age 18 or older and incapable of self-care because of a mental or physical disability at the time that FML is to commence.
The FMLA provides for different types of leave depending on the situation. Leave may be taken in continuous, full-time periods or may be taken intermittently or on a reduced schedule when medically necessary or for a qualifying exigency due to a call to covered active duty.
Intermittent: When intermittent or reduced schedule leave is needed to care for an immediate family member or the employee’s own condition, and is for planned medical treatment, the employee must consult with the supervisor and make a reasonable effort to schedule treatment so as not to unduly disrupt the department’s work.
With appropriate certification the University will grant an eligible employee FML leave for up to 90 calendar days or 480 hours for intermittent leave during a 12-month rolling period. (If the employee works less than full-time, the amount of leave time is pro-rated according to the employee’s appointment.)
One exception: The one exception is that a total of 26 weeks is allowed to care for a spouse, son, daughter, parent or next of kin (the “service member”) who is a current member or veteran with illness or injury incurred in the line of duty while in the Armed Forces or National Guard or Reserves. No more than 26 weeks, total, of any type of FML may be used during one single 12-month period.
The “year” used by the University under the FMLA is a rolling back year. Using the “rolling back” method, the University will determine an employee’s eligibility for leave by reviewing the 12 months prior to the date leave is requested. The employee is eligible for any balance of leave not used during the previous 12 month period.
Employee “A” requested FML for maternity leave beginning July 3, 2016. Based on HR records, employee “A” has one year of continuous service, has worked 1,250 regular hours in the year prior to July 3, 2016, and has taken 3 weeks of FML due to early pregnancy complications on February 5, 2016. Due to employee “A’s” prior usage of FML (3 weeks) in the one year prior to July 3, 2016, she was approved for 9 weeks of FML beginning July 3, 2016.
The law contains provisions on employer coverage; employee eligibility, entitlement of leave, maintenance of health benefits during leave and job restoration after leave. In other words, the law provides protection of employment and benefits.
FML leave is unpaid. The University requires employees to use, concurrently with FML leave, applicable paid leave including sick leave, vacation, PTO or EEI. The paid time used for an FML purpose will count toward the 12 (26-military service member) weeks or 480 hours of FML leave entitled under the FMLA.
During the 90 days of FML, the following use of sick and vacation leave applies:
If the purpose of the leave is your own serious illness, you will be required to use any accrued sick leave, subject to the University’s sick leave policy. Thereafter, you may take accrued vacation. During maternity leave, up to six weeks of accrued sick leave must be taken, if available. However, sick leave may not be used to extend maternity leave beyond 90 calendar days. Paid sick leave will not normally exceed six weeks during maternity leave. Thereafter, you may take accrued vacation.
If the purpose of the leave is to care for a seriously ill family member, you may take up to 480 hours (60 work days) of paid sick leave for an approved full or intermittent FML.
If the purpose of the leave is to care for your spouse who is recuperating from childbirth, adoption or the foster care placement of a child, up to six weeks of accrued sick leave may be taken, if available. Thereafter, you may take accrued vacation.
If the purpose of the leave is due to the active military duty of a family member, you may take accrued vacation. If the purpose of the leave is to provide care of a covered service member, you may take up to 480 hours (60 work days) of paid sick leave with approved for full or intermittent FML.
If you are absent due to illness during a holiday, if eligible, you will be granted holiday pay in lieu of sick/vacation pay. If you are in an unpaid status on the scheduled day before and the scheduled day after the holiday during a leave of absence, you will not be paid for a holiday which occurs during your absence.
Unless you have accrued sick leave or vacation, any FML will be unpaid. If you take FML, you will not receive a refund of TRS retirement contributions since a return to work is anticipated.
During the 90 days of FML, the following use of PTO applies:
If the purpose of the leave is your own serious illness, maternity leave or for the care of your spouse who is recuperating from childbirth, you will be required to first use 40 hours of PTO. Thereafter, PTO use is voluntary. However, employees may not use PTO hours (if available) to extend maternity leave beyond 90 calendar days.
If the purpose of the leave is to care for a seriously ill family member, the birth or adoption of a child, to care for a newborn child or the foster care placement of a child; due to the active duty status of a family member, or to provide care of a covered service member, you must use PTO.
Unless you have PTO available and either elect or are required to utilize it, any FML will be unpaid.
Employees hired prior to October 1, 2010, may have Extended Employee Illness (EEI) hours. If applicable, these hours may be used when all three of the following conditions are met:
1. only for your own illness or injury, AND
2. after the first 40 consecutive hours of an illness/injury or leave for pregnancy (based on FTE) AND
3. with your treating physician’s certification.
You must present a return-to-work release in order to return to work at the end of continuous FML leave. The FMLA provides for 12 (90 calendar days) (26-military service member) weeks of leave each calendar year. If you are totally or partially unable to return to work at the end of FML leave, you should contact Human Resources as soon as possible to discuss what options may be available, such as an extension of leave or long term disability. If you extend the leave of absence beyond the allowed 12 (90 calendar days) (26-military service member) weeks of FML, it will be as a Personal Leave of Absence. While on personal leave, if you have paid time available (i.e. sick, vacation or PTO) the employee premiums for the USA Health & Dental Plan and additional life insurance, if applicable, will be deducted from your paycheck. However, once you have exhausted your available paid time and are in an unpaid status, you will be required to pay the full monthly premium (employee and employer contributions) in order to continue your employee benefits.
Yes, if the injury or illness meets the requirements of the FMLA and the definition of a serious health condition.
Yes, as long as the notice is “unequivocal” or definite. One form of an unequivocal notice is when you submit a written letter for resignation. In that case you would have the options to continue coverage through COBRA following termination of employment. However, failure to pay the required premiums while on leave, which results in the cancellation of your USA Health & Dental Plan coverage, will cause you to forfeit your rights under COBRA. There is also no right to reinstatement once you have provided “unequivocal” or definite notice that you will not return.
No, such a request will automatically count as FML leave. The University requires that any illness or condition that requires the employee to be absent from work for more than 2 weeks be treated as FML until it is proven not to qualify for it.
Yes, the University may place you on FML if the University knows or has reason to know you are absent due to a qualifying medical reason.
No, all groups of employees have the same rights under the FMLA. However, the University leave policies that outline how employees may be paid during their time off may differ depending on the employee category.
If both employees work for the University and meet the eligibility requirements for FML then both will be eligible to a combined total of 12 (90 calendar days) (26-military service member) weeks of FML for birth, adoption, foster care, to care for a parent or due to any qualifying exigency arising out of the fact that the spouse, son, daughter or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed forces in support of a contingency operation. If the leave is requested for the employee’s own serious health condition, the care of the other spouse, or the care of a sick child, each employee is eligible for to up to 90 calendar days of leave.
The University is required to designate and track FML leave even if you have sufficient sick leave to cover the leave of absence. Remember that the sick leave and FML run concurrently.