Family and Medical Leave

It is the University’s objective to provide eligible employees with up to 12 weeks of unpaid family or medical leave because of the birth of a child or the placement of a child with the employee for adoption or foster care, because the employee is needed to care for a family member (child, spouse, or parent) with a serious health condition, or because the employee's own serious health condition makes him or her unable to do his or her job.
 

I. EMPLOYEES TO WHOM POLICY APPLIES

This policy applies to full-time and part-time classified salaried employees, University staff, and salaried research assistants.

 
II. DEFINITIONS

A. Eligible employees
  1. Classified salaried employees, University staff, and salaried research assistants who have been employed by the State for: (1) at least 12 months; and (2) at least 1,250 hours during the 12 months before the start of the leave.

  2. Wage employees who have been employed by the University for: (1) at least 12 months; and (2) at least 1,250 hours during the 12 months before the start of the leave.

NOTE: The required 1,250 hours do not have to be worked during consecutive months. However, the 1,250 hours of work requirement applies to the 12 months immediately preceding the start of the leave.

B. Employment benefits
All benefits provided by the University to salaried employees including group life insurance, health insurance, annual and sick leave, educational benefits, and retirement contributions.

C. Family and medical leave
A leave without pay (or use of an employee's accrued leave) for up to 12 workweeks during a calendar year for the reasons specified in this policy in conformance with the federal Family and Medical Leave Act (FMLA) of 1993.

D. Health care benefits
The health insurance program covering eligible employees.

E. Health care provider
Health care providers include the following:

  1. doctors of medicine or osteopathy who are authorized to practice medicine or surgery (as appropriate) by the state in which the doctors practice;

  2. any other person determined by the Secretary of the Department of Labor to be capable of providing health care services; and

  3. others capable of providing health care services to include only podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners and nurse-midwives authorized to practice in the state and performing within the scope of their practice as defined under state law. This also includes Christian Scientist practitioners listed with the First Church of Christ, Scientist in Boston, although an employee or family member may be required to submit to a medical examination for a second or third opinion (not treatment) from a non-Christian Science practitioner.

F. Key position
A position within the highest paid 10 percent of all the state's employees and University staff, working within 75 miles of the employee's agency/facility.

G. Parent
Biological parent or individual who stood in place of the parent of the employee and was charged with the duties and responsibilities of the parent.

H. Son or daughter
A biological, adopted or foster child, a stepchild, or legal ward, or a child of a person standing in place of the parent. The child must either be under age 18 or be age 18 or older and incapable of self-care because of a mental or a physical  disability.

I. Spouse
Husband or wife as recognized under the laws of the Commonwealth for the purpose of marriage.

J. Serious health condition/illness
An illness, injury, impairment or physical or mental condition that involves: (1) inpatient care in a hospital, hospice, or residential medical care facility; or (2) continuing treatment by a health care provider.

III. WHEN IS FAMILY AND MEDICAL LEAVE ALLOWED

A. Time frames for use of FMLA
Eligible full-time employees may take up to 12 workweeks (60 workdays; 480 work hours) of family and medical leave (FMLA) in a calendar year. The time missed from work due to FMLA cannot exceed 12 weeks in a calendar year.

B. FMLA for full-time employees
Eligible full-time employees may take up to 12 workweeks (60 workdays; 480 work hours) of unpaid family and medical leave per calendar year for the following reasons:

  1. the birth of a child (to be taken within 12 months of the child's birth);

  2. the placement of a child with the employee for adoption or foster care (to be taken within 12 months of date of placement);

  3. in order to care for a child, a dependent son or daughter over 18 years of age who is incapable of self-care because of a mental or physical disability, a spouse, or a parent who has a serious health condition that involves:

   a. in-patient care in a hospital, hospice, or residential medical care facility; or

   b. continuing treatment by a health care provider.

  4. because of a serious personal health condition that renders the employee unable to perform the functions of his or her position. The University may request certification that the employee is unable to work at all or is unable to perform any of the essential functions of the employee's position within the meaning of the Americans with Disabilities Act. Also, an employee who goes on leave without pay - workers' compensation may have that time counted towards his or her 12 weeks of FMLA.

C. FMLA for eligible part-time employees
Eligible part-time employees may take up to 12 weeks of family and medical leave in a calendar year for the reasons listed in III(B) above. Actual hours taken will be counted on a prorated basis corresponding to the percentage of hours they normally are scheduled to work during a calendar year.

EXAMPLE:
A part-time employee works 25 hours per week year-round. During any 12-week period, she works a total of 300 hours. Therefore, if intermittent leave is taken, she may take up to 300 hours of family and medical leave in a calendar year.

D. FMLA for eligible wage employees
Eligible wage employees may take up to 12 weeks of family and medical leave in a calendar year for the reasons listed in section III (B) above. Actual hours taken will be counted on a pro-rated basis corresponding to the percentage of hours they normally are scheduled to work during the 365-day period prior to the date family and medical leave is scheduled to begin.

IV. RESTRICTED USE OF FAMILY AND MEDICAL LEAVE

A. Family and medical leave may not be used for short-term conditions for which treatment and recovery are brief, such as minor illnesses and out-patient surgical procedures with expected brief recuperating periods. It does not provide for the intermittent care of a child for such commonplace illnesses as colds and flu.

B. When both parents of a child work for the University, the full amount of leave may be limited to a combined total of 12 workweeks in a 12-month period when the leave is for the birth, adoption, or foster care placement of a child.

V. PAID LEAVE

A. Leave time that qualifies as family and medical leave may be paid leave or unpaid leave. Paid leave can be designated as family and medical leave in two ways: (1) the employee requests to use paid leave (annual, compensatory, overtime, or sick) during a family and medical leave period: and (2) the University designates paid leave taken as family and medical leave, when it qualifies. The University must notify the employee of this designation within two working days of the University deciding to designate paid leave as family and medical leave.

  1. Personal Illness – Employees may use all available annual, compensatory, overtime, family personal, and sick leave during the FMLA-designated leave period.
  2. Family Reasons – Employees may us all available annual, compensatory, family personal, overtime, and 33% of available sick leave hours during the FMLA-designated leave period taken for family reasons.

NOTE: Other leave policies have not changed as a result of implementing this policy. For example, employees still are entitled to use only up to six days of sick leave for short-term family illnesses in a calendar year.

B. When employees exhaust paid leave under Family and Medical Leave, they must be allowed to take unpaid leave for the balance of the 12-month period.

EXAMPLE:
An employee uses three days of sick leave and 18 days of annual leave to care for a parent who has a serious health condition, a total of 21 days. The University must allow him to take 39 days of unpaid leave if he requests such.

VI. INTERMITTENT LEAVE OR LEAVE ON REDUCED SCHEDULE

Employees may take intermittent leave or work a reduced schedule, not to exceed 480 hours for full-time employees, as follows.

A. When medically necessary because of an eligible employee's own serious health condition or the serious health condition of a child, spouse or parent, an employee may take family or medical leave on an intermittent leave basis or a reduced schedule as indicated below.

  1. intermittent leave schedule - a leave schedule permitting the employee to take leave periodically for a few hours a day (less than eight hours), or for a few days, on an as-needed basis.
NOTE: Employees may be required to provide medical certification that intermittent leave is necessary.

2. reduced schedule - a leave schedule permitting the employee to reduce his or her usual number of hours worked per workweek or per workday.

B. Employees who must take intermittent leave or work a reduced schedule may either use their available paid leave balances as permitted by each specific leave policy or take unpaid family and medical leave.

C. Employees do not accrue annual and sick leave when they are on leave without pay status during family and medical leave.

D. If approval is granted by University management in advance, an employee may take leave intermittently or on a reduced schedule to care for a newborn child, or a child that has been placed with the employee for adoption or foster care.

E. When the conditions noted in section VI (A) above are applicable, the University can temporarily transfer the employee to another position that better accommodates the intermittent leave or reduced schedule as long as the new position carries equivalent pay and benefits.

VII. FAMILY AND MEDICAL LEAVE NOTIFICATION/SCHEDULING

A. Employee responsibility
An employee should submit a written request for family and medical leave at least 30 days before the anticipated beginning of the family and medical leave, unless emergencies or unforeseen events preclude such advance notice.

B. University actions

  1. The University must grant an eligible employee's request to take up to 12 workweeks of family leave during a calendar year for the reasons stated in section III(B) above.

  2. The University may require certification for leave that is requested for an employee's serious health condition or for his or her family member's serious health condition before granting family and medical leave.

  3. The University must notify key employees before they begin family and medical leave that they may be denied restoration to their positions as discussed in section IX(B) below.

VIII. CERTIFICATION OF NEED FOR LEAVE

A. The University may require that a request for family and medical leave be supported by a health care provider's certification of the medical condition of the person affected to include the date when the serious condition began, the probable duration of the condition, and other appropriate facts as detailed below.

  1. A family illness request requires a statement that the employee is needed to care for a child, spouse or parent, and must include the estimated time needed.

  2. A personal illness request requires a statement that the employee is unable to perform the essential functions of his or her job as defined by the Americans with Disabilities Act.

  3. An intermittent leave or reduced schedule request necessitated by an employee's own health condition must include a statement of the medical necessity for the leave and the expected duration.

  4. An intermittent leave or reduced schedule requested for the care of an employee's family member requires a statement that the employee's leave is "needed to care for" the family member, the expected duration, the expected treatment dates and the schedule of intermittent leave or reduced leave. The term "needed to care for" includes:

   a. the medical certification provisions encompassing both physical and psychological care, and it includes situations where, for example, because of a serious health condition, the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor, etc. The term also includes providing psychological comfort and reassurance which would be beneficial to a seriously ill child or parent receiving inpatient care;
   b. situations where the employee may be needed to fill in for others who are caring for the family member, or to make arrangements for changes in care, such as transfer to a nursing home; and
   c. an employee's intermittent leave or a reduced schedule necessary to care for a family member includes not only a situation where the family member's condition itself is intermittent, but also where the employee is only needed intermittently, such as where other care is normally available, or care responsibilities are shared with another member of the family or a third party.

NOTE: When possible, the employee should provide certification in advance of, or at the commencement of, the requested leave. When that is not possible, certification must be provided reasonably soon after the leave begins.

B. Second and third opinions

  1. The University may require, at their own expense, a second opinion from their designated or approved health care providers. (This health care provider cannot be one who is employed by the University on a regular basis.)
  2. When the second opinion differs from the first, the University may, at their own expense, require a third opinion from a health care provider designated or approved jointly by the employee and the University. The opinion of the third health care provider shall be considered final and binding upon the employer and the employee.

C. The University may require an employee to report periodically during the leave period on his or her leave status and intention to return to work, and to provide subsequent re-certifications on a reasonable basis.
NOTE: Requests for re-certification every four to six weeks are considered reasonable.

IX. RESTORATION TO POSITION

A. At the end of family and medical leave, employees normally are to be reinstated as follows:

  1. Original position – the University normally must restore employees to the positions they held (or to equivalent positions) when the leaves began unless they held key positions (as defined in section IX(B) below) which needed to be filled during their absences.

  2. Equivalent position - if previous positions have been filled, employees are entitled to restoration to equivalent positions.
- standard of equivalence: requires comparability and correspondence to duties, terms, conditions, and privileges of the employees' previous positions.

  3. Conditions upon restoration of job position – the University can require their employees to report periodically on their status and intent to return to work, and can require certification from health care providers that employees are able to return to work.

B. If an employee's position is determined to be key (within the highest paid 10 percent of the state's employees who work within 75 miles of the University), he or she may be denied restoration when:

  1. the University shows that denying restoration "is necessary to prevent substantial and grievous economic injury" to the University's operations;

  2. the University notifies the employee that restoration will be denied at the time the University determines that grievous economic injury would occur; and

  3. the employee already has begun the leave and elects not to return to employment within a reasonable time after receiving the University's notice.

X. STATUS OF BENEFITS DURING FAMILY AND MEDICAL LEAVE

A. The University will continue to contribute to the health insurance premiums of salaried employees who are on leave under the Family and Medical Leave Act as discussed below.

  1. When employees are using paid annual or sick leave under the provisions of FMLA, the payroll deductions of their portions of the premiums continue.

  2. When employees are on leave without pay under the provisions of FMLA, their premium contributions will be handled as if they were on leave without pay.

B. Employees who are on leave under FMLA will pay the same portion of their health insurance premiums as they would if they were not on leave.

  1. Premiums are due to the University by the first day of each month of coverage.

  2. If employees fail to make premium payments, the University will follow the same procedures to terminate coverage as they would if employees failed to pay premiums while on leave without pay.

  3. If employees fail to return to work at the end of leave under FMLA, the University may recover from them the Commonwealth's share of premiums paid during the period of leave. However, there will be no recovery of premiums if employees fail to return to work as a result of:

   a. the onset, recurrence, or continuation of serious health conditions that entitle them to leave to care for themselves or for a family member; or

   b. other circumstances beyond the employee's control.
  
EXAMPLES:
- If an employee fails to return to work secondary to a disabling condition, the University will not seek reimbursement for the Commonwealth's contributions for health insurance coverage during the period of leave.
- If an employee fails to return to work at the end of FMLA leave because of his or her acceptance of other employment, the University should seek to recover the Commonwealth's contributions for health insurance coverage during the period of leave.

C. Incentive increases
Employee eligibility for incentive increases will be determined in accordance with Incentive Pay Plan policies and procedures which address leave with and without pay.

D. Life insurance
The University will continue to pay life insurance premiums while employees are on family and medical leave.
 
E. Leave accrual
Employees will not accrue annual or sick leave hours during any period of leave without pay.

F. Retirement

1. Retirement contributions (including the component to fund the health credit) will be made for any pay period in which qualifying compensation has been received by the employee.

2. Retirement contributions will not be made for any pay period in which no qualifying compensation has been received by the employee (i.e., the employee was on leave without pay for the entire pay period).

G. Other

1. Service credit toward sick leave payout
Employees' periods of unpaid family and medical leave exceeding 14 consecutive calendar days are not credited as service time toward the required five years of continuous state service which employees must have in order to receive payment for sick leave balances when they separate from state employment.

2. Next Annual Leave Anniversary Dates
When more than 14 consecutive calendar days of unpaid family and medical leave are taken, employees will be placed on inactive service status and their next annual leave anniversary dates will be advanced according to the length of time taken on unpaid family leave.

3. Family and medical leave without pay should be keyed in the Integrated Human Resource Management System (IHRMS) when more than 14 consecutive calendar days for FMLA without pay are taken.
 

XI. MANAGEMENT OF FMLA RECORDS

A. The University must make, keep and preserve records pertaining to their obligations under FMLA.

B. Records must be kept for at least three years.

C. Required records must include the information listed below.

  1. Basic payroll and identifying employee data, including: name, address, and occupation; rate or basis of pay and terms of compensation; daily and weekly hours worked per pay period; additions to or deductions from wages; and total compensation paid.

  2. Leave designated as FMLA leave, both paid and unpaid, and the dates employees took it. (If FMLA leave is taken in increments of less than a day, the hours must be noted.)

  3. Copies of employees' notices of leave furnished to the University.

  4. Any documents (including written and electronic records) describing employee benefits or University policies and practices regarding the taking of paid and unpaid leaves.

  5. Records of premium payments.

  6. Records of any dispute between the University and an employee regarding designation of leave as FMLA leave, including any written statement from the University or employee of the reasons for the designation and for the disagreement.

D. Records and documents relating to medical certifications, re-certifications or medical histories of employees or employees' family members are to be maintained in separate files/records and treated as confidential medical records except:

  1. supervisors and managers may be informed regarding necessary restrictions on work duties and necessary accommodations;

  2. first aid and safety personnel may be informed (when appropriate) if the employee's physical or medical condition might require emergency treatment; and

  3. government officials investigating compliance with FMLA (or other pertinent law) shall be provided relevant information upon request.