VI. 603 - Family and Medical Leave
Rev. 1-16-09, 2nd Rev. 5-1-11
It is the policy of the University to grant up to 12 weeks of Family and Medical Leave during a 12-month period to eligible employees, in accordance with the Family and Medical Leave Act of 1993 (FMLA) and up to 26 weeks of leave in any 12-month period, in accordance with the expansion of FMLA under the Support for Injured Service Members Act of 2007. The leave is unpaid. The University will require employees to use their eligible paid time off concurrent with the FMLA leave.
To qualify for Family and Medical Leave under this policy, the employee must meet all of the following conditions:
- The employee must have been employed at Drury University for a cumulative total of 12 months. The 12 months need not have been consecutive, although they must have been within 7 months unless related to protected military leave. For eligibility purposes an employee will be considered to have been employed for an entire week even if the was on the payroll for only part of the week or if the employee is on approved leave during the week.
- The employee must have worked at least 1,250 hours during the 12 month period immediately preceding the date when the leave is requested to commence.
Basic Family and Medical Leave
In accordance with the Family and Medical Leave Act, Drury University will allow eligible employees to take up to 12 weeks of unpaid, job-protected leave for the following reasons:
- The employee’s own serious health condition;
- To care for the employee’s child after birth, or placement for adoption or foster care (this type of leave must be completed within 12 months of the birth or placement); or
- To care for the employee’s spouse, son or daughter, or parent (not in-law) who has a serious health condition.
Military Family Leave Entitlements
Eligible employees may also use the FMLA for military family leave. There are two types:
Active Duty Family Leave for Qualifying Exigencies: Eligible employees with a spouse, son, daughter, or parent who has either been notified of an impending call or order to active military duty or who is already on active duty in the National Guard or Reserves in support of a contingency operation may use their 12-week leave entitlement to address certain qualifying exigencies related to the call-up or service. Qualifying exigencies include attending certain military events, arranging for alternative childcare, addressing certain financial and legal arrangements, attending certain counseling sessions, and certain post-deployment activities, issues arising from the military member’s short notice deployment (of 7 days or less) for a period of 7 days from notice, and up to 5 days to spend with a covered military member on short-term rest and recuperation leave during deployment. This type of leave would be counted toward the employee’s 12-week maximum of FMLA leave in a 12-month period.
Injured Service Member Family Leave: FMLA also includes a special leave entitlement that permits eligible employees (the spouse, son, daughter, parent, or “next of kin” of a member of the Armed Forces) to take up to 26 weeks during a single 12-month period to care for a covered servicemember with a serious injury or illness. “Next of kin” is defined as the closest blood relative of the injured or recovering service member. A covered service member is a current member of the Armed Forces, including a member of the National Guard or Reserves, who, because of a serious injury or illness incurred in the line of duty on active duty, is undergoing medical treatment, recuperation, or therapy; is in outpatient status; or is on the temporary disability retired list. A serious injury or illness is one incurred in the line of duty on active duty that may render that servicemember medically unfit to perform the duties of his or her office, grade, rank, or rating. FMLA leave used for other purposes will count against the 26 week entitlement such that an employee who uses 12 weeks for another purpose will have 14 remaining for injured servicemember leave.
How Leave May be Taken
Eligible employees may take up to 12 weeks of FMLA leave in a 12-month period (with the exception of an Injured Service Member Family Leave, which may be up to 26 weeks) in the following manner:
- As consecutive weeks;
- On an intermittent basis when medically necessary, or for qualifying exigencies. While not required by law, the University may, in its sole discretion, allow employees to take FMLA leave on an intermittent basis for the birth, adoption, or placement for adoption of a child. Intermittent leave may be taken in one hour increments. Employees must attempt to schedule intermittent leave so as to not disrupt normal University operations; or
- On a reduced-schedule when medically necessary or when mutually agreed upon by the University and the employee for the birth, adoption, or placement for adoption of a child;
Conditions of Leave
For purposes of calculating the 12 month entitlement period, Drury University will use a rolling 12 month period, measured forward, that begins on the date an employee first starts an FMLA leave. For employees married to each other and working at Drury University, a separate 12 weeks is allowed for each to care for their own serious illness, or for a seriously ill covered family member. For employees married to each other and working at Drury University, up to 12 combined weeks are allowed to care for their child following birth or placement for adoption or foster care. Leave to care for the employee’s child following birth or placement for adoption or foster care must be taken within 12 months of the birth or placement. Married employees may take up to a combined 26 weeks to care for a covered service member.
Employee requests for Family and Medical Leave should be initiated by the employee notifying Human Resources or their supervisor of his/her need to take FMLA leave, or by securing and submitting a Family and Medical Leave Request Form (available from the Human Resources Department).
The Human Resources Department will provide the employee with notice of his/her rights under the FMLA, a Family and Medical Leave Request Form, and a Medical Certification form.
- For The Employee’s Own Serious Health Condition: Human Resources will require employees, at their expense, to submit a Certificate of Health Care Provider form from the attending health care provider to substantiate the medical leave. The medical certification must be submitted to the Human Resources department no later than 15 calendar days after the University has requested such documentation. It is the employee’s responsibility to ensure the delivery of the medical certification form to Drury within the fifteen-day period. Failure to submit the required medical certification form within the fifteen-day period, barring extenuating circumstances, may result in an denial or delay of approval of the FMLA request.
- For Serious Health Condition of Child, Spouse, or Parent: Employees will be required to submit a Certification of Health Care Provider form from the attending health care provider that certifies that there is medical necessity for the leave if the request is for the medical care of a son, daughter, spouse, or parent. It is the employee’s responsibility to ensure the delivery of the medical certification form to Drury within the fifteen-day period. Failure to return the certification within the fifteen-day period can result in a delay or denial of the FMLA request. All sections of the form must be completed. For leave involving a serious health condition of the employee or a covered family member, the University has the option of requiring the employee to secure a second opinion from an independent medical provider selected by the University. The University will pay for the second opinion. If the two opinions conflict, the conflict may be resolved by a third opinion by a provider agreed to by the University and the employee which shall be considered final and binding. The University will pay for the third opinion.
- For the Birth or Adoption of a Child: Human Resources will not require medical certification if an employee is requesting FMLA leave in these circumstances; however, supporting documentation will be required. Please call the Human Resources office to determine what type of documentation is required for your specific situation. The same time requirements for submitting the documentation exist as for # 1 and #2 above.
- For a Qualifying Exigency: Employees will be required to submit a copy of the covered military member’s active duty orders and certification providing the appropriate facts related to the particular qualifying exigency for which leave is sought, including contact information if the leave involves meeting with a third party.
- For the Care of Seriously Ill or Injured Covered Service Member: Employees will be required to provide certification completed by an authorized healthcare provider or by a copy of an International Travel Order or Invitational Travel Authorization issued to any member of the covered service member’s family.
Inadequacy of Certification
Human Resources will notify employees in writing whenever medical certification or other documentation is incomplete. Employees will have an extension of seven (7) calendar days from the receipt of notification to correct the problem.
If the leave is extended past the initial medical certification and there is remaining FMLA leave time available for an employee to use, the University will require the employee to re-certify by submitting another medical certification form. The re-certification will be at the employee’s expense.
If a condition is certified for more than 30 days, the employer may request recertification at the earlier of the duration initially specified or every 6 months. The employer can request a recertification in less than 30 days if the employee requests an extension, if the circumstance described in the initial certification changes, or if the employer has information that casts doubt on the need for leave.
Recertification will not be required for qualifying exigency and covered servicemember leave.
Definition of Serious Health Condition
A serious health condition is an illness, injury, impairment, or physical or mental condition that involves either inpatient medical care or continuing treatment by a health care provider. In general, the continuing treatment requirements may be met by a period of incapacity of 3 consecutive full calendar days combined with two visits with a health care provider, the first of which must occur within 7 days of the first day of incapacity and the 2nd or which must occur within 30 days of the first day of incapacity; 3 days of incapacity plus one treatment by a health care provider within 7 days of the first day of incapacity and a regimen of continuing treatment; incapacity related to pregnancy or pre-natal care; incapacity due to a chronic condition that requires at least 20 provider visits per year and may involve episodes of incapacity; incapacity due to a permanent or long-term condition for which treatment may not be effective; or incapacity to receive multiple treatments for restorative surgery or for a condition that would likely result in greater than 3 days of incapacity absent treatment. Incapacity means inability to work, attend school, or perform other regular activities. Absent complications or inpatient care, cosmetic procedures, routine exams, treatments that could be initiated without a provider visit, the common cold, the flu, non-migraine headaches, earaches, stomach aches, minor ulcers and similar conditions are not covered serious health conditions.
The Employee’s Responsibilities
When the need for leave is foreseeable, the employee must provide 30 days advance notice to Human Resources of the need to take FMLA leave. When 30 days notice is not possible, the employee must provide notice as soon as practicable and generally must comply with Drury’s normal absence reporting procedures. Employees must provide sufficient information to determine if the leave may qualify for FMLA protection and the anticipated timing and duration of the leave. Sufficient information may include that the employee is unable to perform job functions, the family member is unable to perform daily activities, the need for hospitalization or continuing treatment by a health care provider, or circumstances supporting the need for military family leave. Employees also must inform Human Resources if the requested leave is for a reason for which FMLA leave was previously taken or certified. A family member may contact Human Resources if the employee member is medically unable to request a medical leave.
An employee on leave is required to report any change in his/her status, duration of leave, or intent to return. During leave, the university may require that an employee re-certify the medical condition that caused the employee to take leave when the university obtains information that casts doubt on the continuing validity of the employee’s original certification, when the employee requests an extension of leave, or when circumstances/duration of the leave change.
Continuation of Pay During FMLA Leave
FMLA was designed to allow employees the minimum benefit of taking an unpaid leave while having their job and benefits protected. The University allows and requires employees to be paid for certain FMLA qualifying events when they have accrued paid leave time available for use.
Paid FMLA: The University requires employees to use eligible paid time, concurrent with FMLA when they have accrued paid time off available. Accrued sick leave time may not be used during an FMLA leave for any purpose except for the employee’s own personal illness or injury. While on FMLA and using paid leave time, employees will continue to accrue vacation and sick leave. Paid sick leave may not be used during an FMLA leave taken to provide care for an immediate family member with a serious health condition.
Unpaid FMLA: If employees do not have any paid leave time available, their FMLA leave will be on an unpaid basis. While on an unpaid FMLA leave employees will not accrue sick or vacation time.
Continuation of Benefits During FMLA Leave
For the duration of the approved Family and Medical Leave, Drury University will maintain the employee’s benefits at the same level and under the same conditions as if the employee had continued work. The employee is required to continue to pay his/her contribution to dependent insurance, dental insurance, or other elective benefit costs. The contribution will be deducted from the employee’s paycheck during leave if the employee is being paid by use of accrued paid time off. If the employee is not being paid during the leave, he/she will pay the cost by remitting a check payable to Drury University at the Human Resources Department by the 20th of each month. If the employee fails to make the required payment for dependent health insurance, dental insurance, and/or other elective benefits within 30 days of the date that such payment is due, those applicable coverages will be discontinued.
Other benefits normally provided to an employee shall be provided to the employee only if permitted by the plan document governing the provision of those benefits. While on unpaid leave, the employee will not accrue service credit for purposes relating to vacation accrual, sick leave accrual, or any other service related benefit. Use of FMLA leave cannot result in the loss of any employment benefit that accrued prior to the start of an employee’s leave.
The university has the right, upon the employee’s return from Family and Medical Leave, to refuse to reinstate any benefit or condition of employment that has been discontinued for other university employees. Should the employee not return to employment with the university, or return for less than a period of 30 days after the leave has ended, the employee shall owe the university the cost of any benefits provided during the entire duration of the Family and Medical Leave, including the employer contribution to the employee’s health benefits. No such amount shall be owed if there is a re-occurrence or onset of a serious health condition, or if, in the opinion of the university, there is a change of circumstances beyond the employee’s control. An employee who does not return to work after use of Family and Medical Leave for a period certified by a physician, or who does not return after use of twelve weeks of leave, shall be treated as having voluntarily terminated his/her employment.
Workers’ compensation absences will run concurrently with the 12-week FMLA entitlement if the work-related injury meets the FMLA “serious health condition” definition. If an employee will be compensated by workers’ compensation insurance during the work-related injury leave, the University will not require the employee to use accrued paid leave.
Designation of Leave
It is the University’s responsibility and right to designate a leave of absence as qualifying under the FMLA. If during an employee’s absence the University learns that the employee is off work for a reason that qualifies for FMLA, the University’s policy is to designate FMLA retroactively to the earliest possible date when the need for the leave began. Designation will be based on information from an employee, their representative, and/or the medical certification. The University will act upon letters and forms filed and processed in conjunction with leaves, workers’ compensation, and disability in making FMLA designations. Designation can occur the following two ways:
- By Employee Request: If an employee requests FMLA by submitting the FMLA Request form along with appropriate supporting documentation, the University will designate the leave a FMLA or non-FMLA as soon as possible, but generally within five (5) business days after receiving such a request. When the University designates FMLA retroactively, the employee’s accrued leave balances will be charged for work time missed back to the earliest possible date.
- Without Employee Request: The University, absent a specific request, may designate absences as FMLA based on available information. The University will attempt to notify employees of the designation of their absences verbally and will provide written confirmation of the leave designation by hand delivery or by US Mail to the employee’s last known address. Employees are responsible for providing the University with their current mailing address at all times.
Returning to Work
Before employees return to work from FMLA for reason of their own serious health condition, they are required to provide Human Resources with a doctor’s statement documenting that they are medically able to return to work. The university reserves the right to make additional medical inquiries and/or require follow-up examinations, at the university’s expense, to ensure that the staff member can perform the essential functions of his/her job.
The University will comply with FMLA requirements regarding the employee’s reinstatement either to the same position held when the FMLA leave began or to a position with equivalent pay, benefits, and other terms and conditions of employment.
Certain key employees may not have the right to job restoration.
Validity of Information
Any employee who provides false or misrepresented information or omits material information in order to obtain Family and Medical Leave benefits, shall be subject to disciplinary action, up to and including termination of employment.
All medical information relating to requests for Family and Medical Leave will be kept confidential by the university. Only those with a legitimate business necessity for the information will have access. If an employee disagrees with the administration of this FMLA policy, they should contact the Director of Human Resources. If the matter is not resolved to their satisfaction, they may appeal the matter to the V.P. for Administration. If they still feel that the matter is not resolved after appealing to the V.P. for Administration, then they may contact the Wage and Hour Division of the U.S. Department of Labor.