Family and Medical Leave Act – FMLA Policy

Policy Author:
Employee Engagement

Responsible Office – Department:
Employee Engagement

Effective Date of Policy:
May, 2021

This is a summary of the University’s current policy for implementing the Family and Medical Leave Act of 1993 (“FMLA”), as amended. The FMLA provides eligible employees with job-protected leave for qualifying events or circumstances, as described below.

I. Eligibility for Leave. An employee is eligible to take available FMLA leave if:

1. He or she has been employed by the University for at least 12 months (which need not be consecutive months) and has worked at least 1,250 hours (not including any paid leave time) during the twelve (12) month period immediately preceding the commencement of the leave. (Periods of prior employment where the break in service exceeds seven (7) years will not be used to determine FMLA eligibility. Under certain circumstances, time in the military service will count towards fulfilling the length of employment and hours worked requirement to be eligible for FMLA leave.)

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2. The University employs at least fifty (50) employees within seventy-five (75) miles of the employee’s worksite as of the date when the employee gives notice of the need for leave.

II. Types of FMLA Leave. An eligible employee is entitled to take available FMLA leave for one or more of the following:

1. New Child: Up to 12 weeks of leave during any 12-month period because of the birth of a son or daughter of the employee and in order to care for the newborn child, or because of the placement of a son or daughter with the employee for adoption or foster care.

• “Serious Health Condition” of Employee: Up to 12 weeks of leave during any 12-month period because of a “serious health condition” (as defined below) that makes the employee unable to perform the functions of their position.
• “Serious Health Condition” of Family Member: Up to 12 weeks of leave during any 12-month period in order to care for the employee’s spouse, or a son, daughter or parent (but not parent “in-law”) of the employee, if such family member has a “serious health condition” (as defined below).
• “Qualifying Exigency” for Family of Active Military Service Member: Up to 12 weeks of leave during any 12-month period because of any “qualifying exigency” arising from the employee’s spouse, son, daughter, or parent, who is a covered military member (member of the Armed Forces, U.S. National Guard, or Reserves), being on covered active duty (or being notified of an impending call or order to covered active duty) involving deployment to a foreign country. Qualifying exigency leave is not available where the call to covered active duty comes from the state rather than the federal government.
• “Serious Injury or Illness” of Military Service Member (“Military Caregiver Leave”): Up to 26 weeks of leave during a single 12-month period in order to care for:
  • a current member of the Armed Forces, including a member of the National Guard or Reserves, to whom the employee is the spouse, son, daughter, parent, or next of kin with a “serious injury or illness,” who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list; or
  • a veteran, to whom the employee is the spouse, son, daughter, parent, or next of kin, who is undergoing medical treatment, recuperation, or therapy for a “serious injury or illness” and who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy.

III. Definitions. The following definitions apply to certain terms used in this policy:

• “serious health condition” is an illness, injury, impairment, or physical or mental condition that involves either an overnight stay in a medical care facility, or “continuing treatment” by a health care provider for a condition that either prevents the employee from performing the functions of the employee’s job, or prevents the qualified family member from participating in school or other daily activities. Subject to certain conditions, the “continuing treatment” requirement may be met by a period of incapacity of more than 3 consecutive calendar days combined with at least two visits to a health care provider or one visit and a regimen of continuing treatment all within 30 days of the first day of incapacity, or incapacity due to a pregnancy or incapacity due to a chronic condition. Other conditions may also meet the definition of continuing treatment.
• “Qualifying exigencies” include: short-notice deployment, military events and related activities, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities, and additional activities as agreed upon by the University and the employee.
• “Serious injury or illness”:

1. In the case of a member of the Armed Forces (including a member of the National Guard or Reserves) means an injury or illness that was incurred by the member in the line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in line of duty in the Armed Forces) and that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating;

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2. In the case of a veteran who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the period of 5 years preceding the date on which the veteran undergoes medical treatment, recuperation, or therapy, means a qualifying injury or illness that was incurred by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that manifested itself before or after the member became a veteran.

• “Spouse” means a husband or wife as defined or recognized by applicable State law for purposes of marriage in the State in which the employee resides.
• “Parent” means a biological parent or an individual who stood in loco parentis to an employee when the employee was a child.
• “Son or daughter” Except with respect to Military Caregiver Leave, “son or daughter” means a biological, adopted, foster child, step child, legal ward, or child of a person standing in loco parentis, who is either under age 18, or age 18 or older and incapable of self-care because of a mental or physical disability. With respect to Military Caregiver Leave, “son or daughter” means the servicemember’s biological, adopted, or foster child, stepchild, legal ward, or a child for whom the servicemember stood in loco parentis, and who is of any age.
• “Next of kin of a covered servicemember” means the nearest blood relative other than the covered service member’s spouse, son, or daughter, as determined by applicable law.

IV. Amount of Leave Available.

1. For FMLA leave other than Military Caregiver Leave: Eligible employees are limited to a total of twelve (12) workweeks of FMLA leave during any 12- month period. Each 12-month period is a “rolling” twelve (12) month period, which is measured backwards from the date an employee uses FMLA leave.

• Leave for a new child (leave category (1) above) cannot be taken later than twelve (12) months after the birth or placement of the child, but may be taken before the actual date of birth under some circumstances. If two employees who are spouses are eligible for FMLA leave as a result of the birth or adoption of the same child, the employees will only be eligible to receive a total of twelve (12) weeks of leave between them based on the birth or adoption. Each individual employee remains eligible for the remaining portion of (12) weeks that they did not actually take for the birth or adoption of the child, which remaining portion may be taken for other forms of FMLA leave, including leave to care for the child if the child has a “serious health condition.”
• For Military Caregiver Leave: Eligible employees are limited to twenty-six (26) workweeks of FMLA leave during a single 12-month period, measured forward from the first day of the Military Caregiver Leave. If an eligible employee does not take a full 26 workweeks of leave within 12 months of the first day of leave, then the employee is not entitled to additional Military Caregiver Leave with respect to the same “serious injury or illness” by the same servicemember. No more than 26 workweeks of FMLA leave may be taken within any 12-month period even if an employee would otherwise be eligible for Military Caregiver Leave based on two different qualifying “serious injuries or illnesses.” If an eligible employee does not take all of his or her 26 workweeks of leave entitlement to care for a covered servicemember during the single 12-month period, the remaining part of his or her 26 workweeks of leave entitlement to care for the covered servicemember is forfeited.
• Leave because of a “serious health condition” of the employee or a family member or the “serious injury or illness” of a covered servicemember (leave categories (2), (3), or (5) above) can only be taken during such time as the employee or family member has a “serious health condition,” or the covered servicemember has a “serious injury, or illness,” as applicable. Leave because of a “qualifying exigency” for the family of an active duty military service member can only be taken during such time as the “qualifying exigency” exists.
• If two employees are spouses and are eligible for Military Caregiver Leave, the employees are limited to, at most, a combined total of 26 workweeks of leave to care for a covered servicemember with a “serious injury or illness” during the single 12-month period applicable with respect to the Military Caregiver Leave.

During any applicable 12-month period in which Military Caregiver Leave is taken, an employee is limited to a combined total of, at most, 26 workweeks of FMLA leave regardless of the type(s) of leave. (Only 12 of the 26 weeks total may be for a FMLA-qualifying reason other than to care for a covered servicemember.) During any applicable 12-month period in which Military Caregiver Leave is not taken, an employee is limited to a combined total of, at most, 12 workweeks of FMLA leave for all other types of leave.

V. FMLA Leave is Unpaid. The FMLA leave available to employees under this policy is always unpaid leave. [However, if paid leave is also available to an employee pursuant to a different applicable law or University policy, that paid leave must be taken concurrently with the FMLA leave. (See “Leaves To Be Taken Concurrently,” below.)]

VI. Benefits While on FMLA Leave.

1. Health Benefits: The University will maintain an employee’s health benefits during FMLA leave on the same terms and conditions as if the employee had been continuously employed during the entire leave period. If the employee normally pays some or all of the benefit costs, he or she must continue making those payments during the leave in order to maintain coverage. This may be done by payroll deduction to the extent the employee is taking paid leave concurrently with the FMLA leave. In all other cases, the employee must make payment arrangements with the University in advance of the leave, or as soon as possible after the leave begins if the leave is the result of an emergency, and must fully comply with those arrangements throughout the leave or risk termination of the health benefits. In the event that no alternative arrangement is made, the employee’s coverage will be continued during unpaid FMLA leave, and the employee must submit payment to the University on each payday to cover the portion of the employee’s health insurance premium that would have been payable on that day had the employee been working. If the employee fails to submit timely payment, the University may, but is not required to, terminate the employee’s health insurance coverage. If the University elects to continue the employee’s coverage, the employee continues to be liable for his or her health insurance premium on each payday. If FMLA leave expires and the employee does not return to work (normally for at least 30 calendar days), and does not have a valid excuse as defined by law, the University may recover any benefit payments it has made on the employee’s behalf during the leave.

• Pension or Retirement Vesting: FMLA leave will be treated as continuous service (i.e., no break in service) solely for purposes of vesting and eligibility requirements to participate in any applicable pension or other retirement program.
• No Other Benefits: Employees do not receive or accrue any other employment benefits while on unpaid FMLA leave, and accrue no seniority, unless this is specifically provided by a different University policy or applicable law. However, to the extent that an employee is taking paid leave concurrently with FMLA leave, any benefits or accruals which may be associated with that paid leave will be in effect for the duration of that paid leave.

VII. Return to Work. It is a basic assumption of both the FMLA and this policy that an eligible employee will request FMLA leave with the expectation of returning to work at the conclusion of the leave. An employee is only entitled to FMLA leave if it is his or her intention to return to work, and all employees who request leave are deemed to be making an express representation to the University that it is their intent to return. The University may periodically require employees who are on FMLA leave to report on their current status and plans for returning to work.

Upon returning from FMLA leave, an employee will either be restored to his or her prior position, with the same pay and benefits, or, in the University’s discretion, to an equivalent position which has equivalent benefits, pay, and other terms and conditions of employment. The FMLA contemplates that there may be legitimate business-related situations where an employee cannot return to employment during or after FMLA leave. Termination of employment may occur, for example, while an employee is on leave if there is a layoff or reduction-in-force or any cause that would otherwise support dismissal, if the employee’s job would have been lost if he or she was actively working. Similarly, termination of employment may occur if the employee is unable after the FMLA leave is over to perform one or more of the essential functions of the position, with or without reasonable accommodation, subject to the provisions and requirements of the Americans with Disabilities Act and any other applicable and similarly-intended state disability laws.

VII. Advance Notice by Employees. When the need for FMLA leave is foreseeable, employees must give the University at least thirty (30) days advance notice before taking the leave or the leave may be delayed. Shorter notice is allowed only to the extent necessary under the circumstances. If an employee is not able to give thirty (30) days of notice because the need for FMLA leave was not foreseeable, the employee must give notice of the need for leave as soon as practicable once the need for leave is known. Notice should be given to the office of Employee Engagement, and it must include sufficient factual information for the University to determine whether there are qualifying circumstances for leave. The Request for Leave of Absence Form must be completed, signed by the employee’s supervisor and returned to the Employee Engagement Office or hr@daemen.edu at least 30 days prior to the start of the leave if the need is foreseeable based on an expected birth, placement for adoption or foster care, planned medical treatment for a serious health condition of the employee or family member or planned medical treatment for a serious injury or illness of a covered servicemember. In addition, employees must also complete and submit a Certification of Health Care Provider for the employee or family member.

When the need for FMLA leave is foreseeable in advance, the employee must provide sufficient notice to make the University aware that the employee needs FMLA-qualifying leave, and must advise the University of the timing and duration of the leave. When an employee seeks FMLA leave due to a qualifying reason for which the employer has previously provided the employee with FMLA leave, the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave. In all cases, the employee has an obligation to respond to the University’s questions designed to determine whether an absence is potentially FMLA-qualifying.

Within five (5) days of receiving notice of requested FMLA leave from an employee, or as soon as possible under extenuating circumstances, the University will provide information about whether the employee is eligible for leave, and, if so, notice of the employee’s rights and responsibilities concerning the requested leave.

If FMLA leave is requested because of the “serious health condition” of the employee or a family member or the “serious injury or illness” of a covered military service member (leave categories (2), (3), or (5)), and the leave is based on planned, foreseeable medical treatment, the employee must make a reasonable effort to schedule the treatment to avoid unreasonable disruption of University operations, subject to the approval of the health care provider.

IX. Intermittent or Reduced Work Schedule Leave. In most cases, employees will take FMLA leave in a single, continuous block of time. Leave for a new child (leave category (1)) may be taken on an intermittent or reduced work schedule basis only if this is agreed to by the University, in its sole discretion. Employees may take intermittent or reduced work schedule leave if the leave is for a “qualifying exigency” due to family member’s active military duty (leave category (4)). Employees are entitled to take intermittent or reduced work schedule leave for the “serious health condition” of the employee or a family member or the “serious injury or illness” of a covered military service member (leave category (2), (3), or (5)), without the University’s consent only if the intermittent or reduced leave schedule is medically necessary. For example, if an employee with cancer needs to receive chemotherapy for three (3) hours every Wednesday afternoon, but is able to work the rest of the week, an intermittent (recurring) schedule of three hours of FMLA leave each week may be appropriate.

If an employee is eligible for FMLA leave on an intermittent or reduced work schedule basis that is foreseeable based on planned medical treatment, or if the employer agrees to permit intermittent or reduced schedule leave for the birth of a child or for placement of a child for adoption or foster care, the employee may be temporarily assigned to a different position which better accommodates the leave schedule and is equivalent to the employee’s normal position under the circumstances.

X. Medical Certifications. Employees who request leave because of a “serious health condition” of the employee or a family member (leave category (2) or (3)) will typically be required to submit a supporting certification by the relevant health care provider. Among other things, the certification must establish that the employee or family member does in fact have a “serious health condition” and that this condition requires the employee’s absence from work. If leave is being requested on an intermittent or reduced schedule, the certification must also establish the medical necessity for that schedule. The University may require subsequent re-certification throughout the period of FMLA leave for leave taken because of a “serious health condition” of the employee or a family member.

Certification forms are supplied by the Office of Employee Engagement. It is the employee’s responsibility to obtain a complete and sufficient certification from the healthcare provider and provide it to the University. The employee must make diligent efforts to submit the completed certification as soon as possible. The certification must be submitted no later than fifteen (15) calendar days after receiving the form unless circumstances require otherwise. If the University finds the certification to be deficient it may require that the employee cure the deficiency within seven (7) calendar days after notification by the University of the deficiency. If the certification is still unclear, the Office of Employee Engagement may, with the authorization of the employee, contact the employee’s health care provider to authenticate or clarify the certification. Under certain circumstances employees may be requested to authorize the University to communicate with the employee’s medical provider regarding the employee’s medical information or have the employee provide additional medical information. If an employee chooses not to provide the University with such authorization and does not otherwise clarify an unclear certification upon request, the employee’s request for FMLA leave may be denied.

If the University disagrees with the certification submitted by the employee requesting leave because of a “serious health condition” of the employee or a family member, the University may require a second opinion at the University’s expense. If the medical opinions conflict, the University and employee may mutually approve a third health care provider to render an independent opinion at the University’s expense, which opinion shall be binding. The University’s decision not to seek a second or third opinion will not necessarily prevent it from later challenging the employee’s eligibility for FMLA leave.

Employees who request leave because of a “qualifying exigency” due to a family member’s active military duty or Military Caregiver Leave (leave categories (4) and (5)) may also be required to submit an appropriate supporting certification. Under some circumstances, the University may be entitled to verify such certifications. In all instances in which certification is requested, it is the employee’s responsibility to provide the employer with complete and sufficient certification. Failure to do so may result in the denial of FMLA leave.

The University may require an employee to submit medical recertification of the continuing need for FMLA leave based on a “serious health condition” of the employee or a family member every thirty (30) days except in the following instances:

1. If the medical certification indicates that the minimal duration of the condition is more than thirty (30) days, the request for recertification must wait until that minimum duration expires.

• The University may request recertification in less than thirty (30) days if the request for leave exceeds the specified leave time on the previous medical certification form, or if either the duration or the frequency of the absences or the severity of the condition changes significantly, or if the University receives information that casts doubt on the employee’s stated reason for the absence or the continuing validity of the certification. If medical certification indicates that the employee will need intermittent or reduced schedule leave for a period in excess of six (6) months (e.g., for a lifetime condition), the University may request recertification every six (6) months in connection with an absence.

As with the initial medical certification, the medical recertification form must be submitted to the University within 15 calendar days of the request. Failure to provide requested medical recertification may mean that the leave will not be counted as FMLA leave and therefore not subject to the protections of the FMLA. In addition, the approval and pay status of the leave may be evaluated and modified.

The University will require certification of the employee’s ability to return to work following a leave necessitated by the employee’s own serious health condition. Failure to submit such documentation may delay the employee’s return to work.

XI. Leaves to be Taken Concurrently. To the extent that an employee is entitled to take unpaid FMLA leave pursuant to this policy, and under the same circumstances is also entitled to take one or more kinds of paid leave pursuant to other University policies or practices, FMLA leave and paid leave must be taken concurrently. As a result, employees may receive pay during some or all of their FMLA leave, depending upon whether and to what extent paid leave is otherwise available to them. If an employee fails to comply with the paid leave policy applicable to the paid leave that the employee is taking concurrently with FMLA leave, the employee may forfeit the right to take paid leave and thus the employee will only be entitled to unpaid FMLA leave.

Unpaid FMLA leave and paid leaves are available under the same circumstances as follows:

1. If the employee is entitled to take FMLA leave, and the employee is otherwise entitled to take some amount of paid vacation leave, sick/personal leave, disability leave, workers’ compensation leave, or other paid leave available under University policy or practice, both the FMLA and paid leaves must be taken concurrently.

• Taking leaves concurrently means that the leaves are used up simultaneously, with each leave continuing in full effect pursuant to the relevant University policy or practice for so long as the employee continues to be away from work and entitled to take that particular leave.

If an employee is entitled to take more than one kind of paid leave under the same circumstances as unpaid FMLA leave, the paid leaves must be used one at a time. The employee must use at least one type of available paid leave, for so long as at least one of them is still available, at all times when he or she is taking FMLA leave. Employees may decide the sequence in which paid leaves will be used unless this is determined by law or the relevant University policies or practices. Employees entitled to more than one form of available paid leave should advise the University of these decisions when requesting leave.

These rules apply regardless of whether the employee requests FMLA leave or available paid leave. In either case, the leaves must be taken concurrently in accordance with these rules. For example, if an employee requests paid disability leave and the disability period lasts eight (8) weeks, the employee must also take eight (8) weeks of unpaid, concurrent FMLA leave because of a “serious health condition” (leave category (3)). If the employee thereafter (within the same 12- month period) requests additional FMLA leave under this policy for care of a newborn child (leave category (1)), the employee’s remaining FMLA leave entitlement is now four (4) weeks. While taking the FMLA leave for the birth of the child, the employee must also take any paid vacation or sick/personal leave which may be otherwise available. If some paid vacation or sick/personal leave is still left at the end of the four (4) weeks, the employee may continue taking such leave until it is used up subject to the requirements of the University policy governing such leave.

If an employee takes leave under circumstances that qualify for FMLA leave, the University may designate the leave as FMLA leave regardless of whether the employee requests that the leave be so designated, and the above policy regarding FMLA leave will govern the leave.

• General Notice. General notice of employees’ rights and responsibilities under the FMLA is posted on Employee Engagement office bulletin board. Employees and applicants can also view these rights and responsibilities at any time by visiting the United States Department of Labor’s website at http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf.
• Enforcement. It is the policy of the University to comply in all aspects with the FMLA and with the U.S. Department of Labor’s regulations concerning the FMLA. It is unlawful for any person to interfere with, restrain or deny employees of any right provided under the FMLA. If any employee has a concern or complaint regarding the FMLA, the employee may contact the Employee Engagement Director. In addition, an employee may file a complaint with the U.S. Department of Labor or pursue privately available legal remedies.

XII. Forms and additional information. Refer to the Employee Benefits website page for more information about FMLA leaves, medical certification form, and the leave of absence request form.