Family Medical Leave Act (FMLA)
Effective Date: June 1, 2009
To allow employees time off for child care following the birth of a child or placement of a child for adoption or foster care; to care for a spouse, child or parent of the employee who has a serious health condition; or because of a serious healthcare condition that makes the employee unable to perform the essential functions of his/her position, or for eligible employees to take leave for a covered family member's service in the Armed Forces as identified in the policy.
An employee receives up to 12 weeks of unpaid leave per 12-month period for:
1. child care following the birth of a child or placement of a child for adoption or foster care;
2. in order to care for a spouse, child or parent of the employee who has a serious health condition;
3. because of a serious health condition that makes the employee unable to perform the essential functions of his/her position.
An employee has the absolute right to an intermittent leave or leave on a reduced leave schedule for the employee's serious health condition or to care for a family member with a serious health condition, if medically necessary. An employer may transfer an employee to an alternative position with equivalent pay and benefits that better accommodates the leave schedule.
An employee must be able to perform the essential functions of his/her position or an equivalent position upon return from FMLA leave or when requesting intermittent leave or leave on a reduced leave schedule. Reinstatement or transfer to a true light duty position (i.e., a make work job where essential job functions have been removed) is not required — but ADA may apply. Also, an employee has the absolute right to FMLA leave even if the employer offers the employee a light duty job (but in a workers' compensation situation, temporary total disability benefits would cease).
Revised Final Regulations under the Family and Medical Leave Act made effective on January 16, 2009, now entitles eligible employees to take leave for a covered family member's service in the Armed Forces.
Eligible employees may take Service Member leave for either (or both) of the following reasons:
" A "qualifying exigency" arising out of a covered family member's active duty or call to active duty in the Armed Forces in support of a contingency operation;
OR a leave duration up to 12 work weeks of leave during any 12-month period:
" To care for a covered family member ("next of kin") who has incurred an injury or illness in the line of duty while on active duty in the Armed Forces provided that such injury or illness may render the family member medically unfit to perform duties of the member's office, grade, rank or rating.
Leave Duration: Up to 26 workweeks of leave during a single 12-month period. (Leave may not exceed 26 weeks in a single 12-month period when it is combined with other FMLA-qualifying leave).
NOTE: Service Member FMLA runs concurrent with other leave entitlements provided under federal, state and local law.
COVERAGE AND ELIGIBILITY:
Private employers with 50 or more employees are "covered employers." An employee is eligible for FMLA leave if the employee:
1. Works at a worksite with 50 or more employees or for an employer who has 50 or more employees within 75 miles of that worksite;
2. Has worked for the employer for at least 12 months; and
3. Has worked at least 1,250 hours over the 12-month period prior to the date leave commences.
SERIOUS HEALTH CONDITION IS DEFINED AS (Including, but not limited to):
The College will grant leave for any condition defined as a serious health condition under the federal Family and Medical Leave Act and/or any applicable state law. In general, serious health conditions are conditions which require continuing medical treatment and which cause incapacitation for periods of three days or longer. Examples of serious health conditions include, without limitation:
1. Inpatient care - Any period of incapacity or any subsequent treatment in connection with such inpatient care.
2. Absence plus treatment by a health care provider - Any period of incapacity of more than three consecutive calendar days (and any subsequent treatment or period of incapacity relating to the same condition);
3. Treatment two or more times by a health care provider, nurse or physician's assistant or provider of health care services under orders from, or on referral by a health care provider; or
4. Treatment by a health care provider on one occasion that result in a regimen of continuing treatment under the supervision of a health care provider.
5. Pregnancy - Any period of incapacity due to pregnancy or for prenatal care.
6. Chronic Conditions Requiring Treatment - Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which:
(a) Requires periodic visits for treatment to a health care provider;
(b) Continues over an extended period of time; and
(c) May be episodic rather than a continuing period of incapacity. Examples include asthma, diabetes and epilepsy.
Permanent/Long Term Conditions Requiring Supervision - Any period of incapacity which is permanent or long term for which treatment may not be effective. Continuing supervision, but not active treatment, by a health care provider is required.
• Alzheimer's, a
• Severe stroke
• Terminal stages of a disease.
• Heart conditions requiring heart bypass or valve operations
• Back conditions requiring extensive therapy or surgical procedures
• Severe respiratory conditions
• Severe nervous disorders
• Injuries caused by serious accidents on or off the job
• Ongoing pregnancy, miscarriages, complications of illness related to pregnancy, such as severe morning sickness, the need for prenatal care, childbirth, and recovery from childbirth.
Multiple Treatments (Non-Chronic Conditions) - Any period of absence to receive multiple treatments by a health care provider for restorative surgery after an accident or injury, or for a condition that would result in an absence of more than three consecutive calendar days if left untreated.
Examples include chemotherapy for cancer, physical therapy for severe arthritis and dialysis for kidney disease.
NOTE: Fitness for duty certification upon return to work from an FMLA leave will be required.
An employer has an affirmative obligation to designate absences as FMLA leave. The FMLA requires very specific and detailed notice including:
1. Posting of FMLA poster.
2. FMLA policy in handbook or policy manual (if employer has such a handbook or manual).
3. Written guidance if no handbook or policy manual.
4. Written notice of FMLA rights and obligations to employees requesting leave (Department of Labor Employer Response to Employee's Request for Leave Form).
5. Written notice of designation of leave as FMLA leave.
6. Written/oral notice of medical certification and fitness for duty certification requirements.
7. Written notice of key employee designation.
Frequency of notice is generally dependent upon the type of FMLA leave take (continuous v. intermittent/reduced leave) and whether the employer's leave information changes.
EMPLOYEE NOTICE REQUIREMENT:
An employee needs not specifically state need for "FMLA leave" but only an FMLA leave qualifying reason. For leaves that are foreseeable, 30 days notice must be given to the employer.
For unforeseeable leaves, notice must be given as soon as practicable, usually verbal notification within one or two business days of when the need for leave becomes known.
For paid FMLA leave, the employer's notification requirements for the particular paid leave being substituted apply, even if less stringent.
1. Determine in consultation with the Department of Human Resources whether the employee meets the requirements to qualify under the Family Medical Leave Act (FMLA).
2. If the employee qualifies for FMLA, nform the employee that the leave (up to 12 weeks) will be designated as FML
3. Provide the employee with the following forms:
A. Leave Request form; and
B. Certification of Health Care Provider form with a copy of the employee's job description attached.
4. If request for leave is due to the employee's own serious health condition, notify the employee in writing or verbally within two (2) business days of the following information:
A. Eligibility for FMLA
B. Leave designation
C. Benefits options
D. Sick and/or vacation options
E. requirement for a return-to-work slip before returning to work.
Note: Record sick/vacation leave, as applicable and keep a log of each employee's leave designation assists in determining future eligibility.
1. Complete and return the Leave Request form along with the Certification of Health Care Provider form or statement from the physician.
2. Keep the department supervisor informed of any changes.
3. Obtain a return-to-work slip from the doctor to present to the department before returning to work.
Last updated June 1, 2009