Policies, Union Contracts, Handbooks > Support Staff Policies and Procedures

Family Medical Leave Act (FMLA)

Policy

Applies to:

Staff employed at the University for a total of 12 months (may have been intermittent employment) and having at least 1,250 work hours during the 12-month period immediately preceding the commencement of FMLA leave.

The 1,250 hours requirement is counted only for hours actually worked and does not count hours spent on vacation, sick, and personal leave, etc. However, under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), employees called to active (or National Guard) duty are entitled, upon their return to employment, to all the benefits of employment that they would have obtained if they had been continuously employed.

The Family and Medical Leave Act (FMLA) of 1993 is a federal law enacted to help employees balance their work and family life and to promote the stability and economic security of families. It allows eligible employees to take job-protected unpaid leave, or substitute appropriate paid leave if the employee has earned or accrued it, for up to a total of 12 workweeks during a 12- month period (July 1 - June 30) for a family or personal serious health condition which qualifies under FMLA.

Covered situations:

1. for birth of an employee's child, including prenatal doctor visits as well as caring for the newborn child, anytime within the first twelve months of the birth of the baby,
2. for placement of a child for adoption or foster care with the employee anytime within the first twelve months of the placement of the child,
3. to care for an employee's spouse/MSU-recognized same-sex domestic partner, child, or parent with a serious health condition, or
4. because of a serious health condition that makes the employee unable to perform the essential functions of his/her job.

General information:

1. Eligible employees have an absolute right to FMLA leave, i.e. leave may not be denied for FMLA-qualifying circumstances.
2. In certain cases, leave may be taken on an intermittent basis rather than all at once, or the employee may work a part-time schedule.
3. FMLA leave is not provided beyond an off date, layoff date, or the end of a temporary appointment.
4. An employee on FMLA leave is entitled to have health and dental benefits maintained while on leave as if the employee had continued to work instead of taking the leave.
5. An employee generally has a right to return to the same position or an equivalent position with equivalent pay, benefits, and working conditions at the conclusion of the leave.
6. FMLA leave is concurrent with existing maternity and other paid/unpaid leaves of absence taken for FMLA reasons. The FMLA does not require paid leave for a situation in which the employer would not normally provide paid leave.
7. For support staff, accrued paid sick leave hours will be used for qualifying FMLA events and counted toward the maximum allowed 12 weeks of FMLA leave, if the requirements for using accrued sick leave are met under the employee's collective bargaining agreement (i.e., providing physician's statement).  Use of accrued family sick leave credits for the serious health condition of a family member, up to the limits specified in the relevant collective bargaining agreement and sick leave and family medical leave act policy, is required and counted toward the maximum allowed 12 weeks of FMLA leave.  Sick leave used for short term illnesses or absences (i.e. less than 3 days) that are not qualifying FMLA events will not be counted as FMLA leave.  Please refer to the appropriate Collective Bargaining Agreements or Michigan State University's Policies and Procedures for additional information.
8. Once the employer is aware the leave is being taken for an FMLA-qualifying reason, the employer must promptly (within two business days, lacking extenuating circumstances) notify the employee that the leave will be designated as FMLA leave. The notification may be oral but must be confirmed in writing no later than the next regular payday. The Request for Leave of Absence (Support Staff) and Certification of Physician or Practitioner for FMLA must be used to provide the required written notice. The employer's failure to provide such notice excuses the employee from failure to comply with his/her obligations under the Act.
9. Employers shall maintain records pertaining to their obligations under the Act for three years.
10. An employee, or another person on their behalf, can file a complaint with the Secretary of Labor or file a private lawsuit pursuant to paragraph 107 of the FMLA.

For definitions of such terms and phrases as serious health condition, intermittent leave, health care provider, spouse/same-sex domestic partner, parent and child, and more detailed information see Frequently Asked Questions (FAQs) on The Family and Medical Leave Act of 1993, or contact MSU Human Resources Employee Records (517-353-4330 Ext. 131).
 

Procedure

Employee:

1. An employee must provide his/her department at least 30 days advance notice before FMLA leave is to begin if the need for the leave is foreseeable. If 30 days notice is not practicable due to lack of knowledge as to when leave will be required to begin, notice must be given as soon as practicable. "As soon as practicable" ordinarily would mean at least verbal notification within one or two business days of when the need for leave becomes known to the employee. An employee shall provide notice either in person, by telephone, or by other electronic means. Notice of the need for FMLA leave may be given by the employee's family member if the employee is unable to do so personally.
2. When planning medical treatment, the employee should consult with the department and make a reasonable effort to schedule the leave so as to minimize disruption of the department's operations, subject to the approval of the health care provider. In the case of a request for intermittent leave or leave on a reduced leave schedule, the employee and department shall attempt to work out a schedule which meets the employee's needs and minimizes disruption of the department's operations, subject to the approval of the health care provider.
3. The employee will be required to provide medical certification for leave requests.  This includes their own FMLA leave or for a covered family member.  The only circumstance were medical documentation is not required is for the placement of a child for adoption or foster care.  Then the employee must provide documentation from the granting agency.  Only the information on the Certification of Physician or Practitioner for FMLA form may be obtained from a health care provider. The employee will also be required to inform his/her department how he/she wishes to use his/her accrued time to cover the FMLA leave and the anticipated duration of the leave.
4. The employee will be required to provide medical documentation upon return from leave.

Department:

1. Departments are required to post and keep posted on the premises, in conspicuous places, a FMLA Posting Requirements notice and provide information concerning the procedures for filing complaints or violations of the Act.
2. Whenever possible, an employer must designate an FMLA-qualifying leave as FMLA before the leave begins. An employer cannot retroactively designate leave as FMLA where the employer has knowledge that a leave is FMLA-qualifying at the time the employee gives notice or takes leave and the employer does not tell the employee at that time that the leave is FMLA leave. The employer may designate the leave as FMLA leave prospectively as of the date of notification to the employee that the time is being charged as FMLA leave. An employer may not designate leave that has already been taken as FMLA leave after the employee returns to work with two exceptions: where the FMLA-qualifying reason is not learned until the employee returns to work, and where the employer has provisionally designated the leave as FMLA leave pending medical certification or second or third medical opinions. The employee is not entitled to the protections of the FMLA if the employee gives notice of the reason for the leave later than two days after returning to work.
3. Once the employer has acquired knowledge that the leave is being taken for an FMLA-qualifying reason, the employer must promptly (within two business days lacking extenuating circumstances) notify the employee that the leave will be designated as FMLA leave. The employer's notification to the employee of the FMLA designation may be oral but must be confirmed in writing no later than the next regular payday. The Request for Leave of Absence (Support Staff) is to be used to confirm the FMLA leave and to explain the specific expectations and obligations of the employee and any consequence of failure to meet these obligations.  This form must be used for any FMLA qualifying circumstance for the employee or covered family member. 
4. If an employee fails to give 30 days notice for a foreseeable leave with no reasonable excuse for the delay, the department may delay the taking of FMLA leave until at least 30 days after the date the employee provides notice. For the onset of an  employee's FMLA leave to be delayed due to lack of required notice, it must be clear that the employee had actual notice of the FMLA requirements. The health care provider will be the definitive judge of whether a delay in scheduling FMLA leave would have an adverse impact on the employee's health.
5. A department must require an employee's FMLA leave be supported by medical certification issued by a health care  provider. If the information on the certificate is unclear, a health care provider representing the University may obtain clarification (or authentication) with the employee's permission. The department should request it at the time the employee requests the leave, where practicable. The department must allow at least 15 calendar days after notifying the employee that certification is required. At the time a department requests certification, the employee must be advised of the consequences of failing to provide adequate certification. If the certification is incomplete, the employee must be provided a reasonable opportunity to adequately complete the certification.
6. To report FMLA qualifying absences for an employee or a covered family member's serious health condition on the Attendance System or through unit level absence reporting systems, use all available contractual sick leave credits first, if the employee has complied with the requirements for using sick leave under the relevant collective bargaining agreement (i.e., providing physician's statement).  If the employee has verified the usage of his/her vacation and personal leave, use these amounts next and if the employee is on unpaid leave for less than ten (10) days, the FMLA leave should be reported under FMLA Taken on the Attendance System. If the employee is on unpaid leave for more than ten (10) days, he/she must be placed on FMLA unpaid leave of absence by processing a Personnel Action Notice (PAN) form. This takes the employee off the payroll, but the department must still report FMLA-qualifying time without pay on the Attendance System. This time may be reported in the Original screen in FMLA PAN Leave box or in the Express Screen by selecting the FMLA PAN Leave drop down. The combination of paid and unpaid hours for FMLA cannot exceed 480 hours in a fiscal year. Once the employee has reached his/her maximum, a unit no longer needs to track and record this information on the Attendance System. However, if the employee has not returned to work, his/her leave is no longer FMLA and should be converted to sick leave by processing a new PAN form.
7. Departments are responsible for documenting and maintaining records of paid and unpaid FMLA leave and reduced work schedules related to the FMLA for three years. Department responsibilities also include determining employee eligibility and monitoring usage up to the maximum of 12 workweeks of FMLA leave during the fiscal year, i.e. July 1 through June 30.
8. The department retains the medical certification in a separate confidential medical file for three years. 
9. A department may request recertification at any reasonable interval, but not more than every 30 days, unless:
   • the employee requests an extension of leave,
   • circumstances described by the original certification have changed significantly, or
   • the department receives information that casts doubt upon the continuing validity of the certification.
10. If the original certification was for a period in excess of 30 days, no recertification may be requested prior to the end of that period unless one of the above circumstances applies. For chronic conditions, recertification is required every 6 months.  Exceptions may be made only if circumstances have changed significantly or the employer has reason to believe the employee was not absent for the reason indicated.
11. A department may require an employee to report periodically on his/her status and intent to return to work. The department must require an employee to provide certification from his/her health care provider that the employee is able to resume work; however, an employee's return to the payroll may not be delayed pending fitness-for-duty certification.
12. In situations where an employee discovers the circumstances have changed and the amount of leave originally anticipated is no longer necessary, the employee should give reasonable notice (a minimum of two days) to the employer where early return to work is foreseeable. An employee may not be required to take more leave than necessary to address the qualifying circumstances.
13. In case of intermittent or reduced-schedule FMLA leave, a department may require an employee to transfer temporarily to an available alternative position with equivalent pay and benefits or to a part-time job with the same hourly rate of pay and full-time benefits. Transfer to an alternative position may require compliance with any applicable Collective Bargaining Agreement, federal law (such as the Americans with Disibilities Act), and state law, and may include altering an existing job to better accommodate the employee's need for intermittent or reduced leave.
14. Upon return from FMLA leave, an employee is entitled to the same position held when the leave commenced, or to an equivalent position with equivalent benefits, pay and other terms and conditions of employment unless a department is able to show that an employee would not otherwise have been employed. If an employee was hired for a specific term or only to perform work on a distinct project, the department has no obligation to restore the employee if the employment term or project is over and the department would not otherwise have continued to employ the employee.
15. A department may not use absences that qualify as FMLA leave as a negative factor in employment actions.
16. Confidentiality is a basic FMLA tenet. As part of the leave approval process, the supervisor is required to inquire about the reasons for the leave sometimes in more depth than one usually would. Confidentiality becomes increasingly important and sensitive in these instances. Employees often share such information, either casually or formally, with other staff members. A supervisor must be aware that disclosure is the sole prerogative of the affected employee.
    1. Only persons in the decision-making chain who have a "need to know" have a right to this information. The issues of who is involved in decision making and therefore has a right to know, and the confidentiality of personal information, are serious concerns. Supervisors who are careless about information covered by the privacy provision may be held liable.
    2. To preserve an employee's privacy and protect the supervisor from charges of violating the privacy provision, supervisors must ensure all relevant conversations are kept confidential, and documentation is so marked and maintained in a separate confidential department file.

1. FMLA leave is recorded through the Attendance System.
2. Employees and departments may view FMLA balances on the Individual Summary Report through the Attendance System
3. During any FMLA leave, MSU will maintain an individual's health and dental benefits, if enrolled, at the same level and under the same conditions as coverage would have been provided if the employee had been continuously employed during the entire leave period.