The Family and Medical Leave Act (FMLA) of 1993 is a federal law which helps employees balance their work responsibilities with their family and medical needs. The Act sets national standards for employers when providing leave for such purposes. It is expected employers and employees alike will benefit since there is a documented correlation between family stability, increased job satisfaction, reduced absenteeism and tardiness among workers.
The Act requires that eligible employees be allowed to take unpaid leave, or paid leave if earned, for a period of up to12 workweeks in any 12-month period in the event of the birth of a child or the placement of a child for adoption or foster care; because the employee is needed to care for a family member (child, spouse/MSU-recognized same-sex domestic partner, or parent) with a serious health condition; or because an employee's own serious health condition makes her/him unable to perform the essential functions of her/his job. The Act provides for this leave to be taken intermittently, or the employee may work a reduced leave schedule in some cases when such arrangements meet the medical necessity of the employee.
NOTE: For additional information about placing non-academic staff on leave for FMLA, see the MSU Policies and Procedures manual under leave of absence with pay, leave of absence without pay, and sick leave.
Which employees are eligible to take FMLA leave?
In what situations must MSU grant family and medical leave?
What does spouse/MSU-recognized same-sex domestic partner, parent, and son or daughter mean for purposes of qualifying for FMLA leave?
What is a serious health condition/and continuing treatment by a health care provider?
What does it mean that an employee is needed to care for a family member?
What does it mean that the employee is unable to perform the essential functions of her/his position?
What is meant by the medical necessity for an intermittent or reduced leave schedule?
What is a health care provider?
How much FMLA leave may an employee take?
Is FMLA leave paid?
Is a support staff employee required to designate paid leave as FMLA leave and count it against her/his FMLA leave entitlement?
Does FMLA leave have to be taken all at once, or can it be taken in parts?
May an employee be transferred to an alternative position in order to accommodate intermittent leave or a reduced leave schedule?
How does one determine the amount of FMLA leave used when an employee takes leave intermittently or on a reduced leave schedule?
How does a supervisor determine whether leave is FMLA leave and when must the determination be made?
What information must be provided to an employee going on FMLA leave?
What are the requirements for an employee to furnish notice of a need for an FMLA leave?
What are an employee's responsibilities when scheduling FMLA leave?
What recourse do departments have if an employee fails to provide the required notice?
When must an employee provide medical certification to support an FMLA leave request and what information is requested?
Is it possible to obtain second and third opinions?
Under what circumstances must a department request subsequent recertifications of medical conditions to support leave requests?
Is an employee entitled to health and dental benefits while using FMLA leave?
How may employees on FMLA leave pay their share of health or dental benefit premiums, and what are the consequences if they fail to make timely payments?
What notice and information must be required regarding an employee's return to work?
If an employee has a work-related injury or illness, is lost time and time missed for medical appointments counted as FMLA?
What are an employee's rights to return to work from FMLA leave?
Are there any limitations on a department's obligation to reinstate an employee?
What records must be kept to comply with the FMLA and who keeps the records?
How is FMLA to be recorded?
How are employees who exercise their rights protected?
How can an employer manage absenteeism if the employee continues to claim leave taken is covered by FMLA?
How do employees learn of their FMLA rights and obligations, and what can MSU require of an employee?
What can employees do if they believe their rights under FMLA have been violated?
Where can an employee file a complaint of FMLA violations?
What if an employer provides more generous benefits than required by FMLA?
How does FMLA affect federal and state anti-discrimination laws?
Who do I contact regarding FMLA questions?
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.
- For birth of an employee's child including prenatal doctor visits and to care for the newborn;
- For placement with the employee of a child for adoption or foster care*;
- To care for the employee's spouse/MSU-recognized same-sex domestic partner, child, or parent with a serious health condition;
- Because of a serious health condition that makes an employee unable to perform the essential functions of her/his job.
FMLA leave applies equally to male and female employees. FMLA leave may begin before the actual date of a child's birth, or before the actual placement of a child for adoption or foster care. The source of an adopted child is not a factor in determining eligibility for leave. Entitlement to leave for a birth or placement for adoption or foster care expires at the end of the 12-month period beginning on the date of the birth or placement.
*Foster care is defined as 24-hour care for children in substitution for, and away from, their parents or guardian.
a. Spouse/MSU-recognized same-sex domestic partner: a husband, wife, or MSU-recognized same-sex domestic partner as defined or recognized under MSU Policies & Procedures and state law for purposes of marriage.
b. Parent: a biological parent or an individual who stands or stood in loco parentis (those persons with day-to-day responsibilities to care for and financially support a child, or those who had responsibilities for the employee when the employee was a child; a biological or legal relationship is not necessary) to an employee when the employee was a child. This does not include parents-in-law.
c. Son or daughter: a biological, adopted, or foster child; a stepchild; a legal ward; or a child of a person standing in loco parentis who is either under age 18, or age 18 or older and incapable of self-care due to a mental or physical disability.
- Incapable of self-care: the individual requires active assistance or supervision to provide daily self-care in several of the activities of daily living, e.g., caring appropriately for one's grooming and hygiene, bathing, dressing and eating, or instrumental activities of daily living, e.g., cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc.
- Physical or mental disability: a physical or mental impairment that substantially limits one or more of the major life activities of an individual. Regulations under the Americans with Disabilities Act (ADA) define these terms.
A. For purposes of FMLA, serious health condition entitling an employee to FMLA leave means an illness, injury, impairment, or physical or mental condition that involves:
(1) Inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility, including any period of incapacity (for purposes of this section, defined to mean inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom), or any subsequent treatment in connection with such inpatient care; or
(2) Continuing treatment by a health care provider. A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:
(i) A period of incapacity (i.e., inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom) of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:
(a) Treatment two or more times by a health care provider, by a nurse or physician's assistant under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist under orders of or on referral by, a health care provider); or
(b) Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.
(ii) Any period of incapacity due to pregnancy, or for prenatal care.
(iii) 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 by a health care provider, or by a nurse or physician's assistant under direct supervision of a health care provider;
(b) Continues over an extended period of time (including recurring episodes of a single underlying condition); and
(c) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).
(iv) A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective. The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider. Examples include Alzheimer's, a severe stroke, or the terminal stages of a disease.
(v) Any period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), or kidney disease (dialysis).
B. Treatment for purposes of paragraph A. of this section includes, but is not limited to, examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations. Under paragraph A. (2) (i) (b), a regimen of continuing treatment includes, for example, a course of prescription medication (e.g., an antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition (e.g., oxygen). A regimen of continuing treatment that includes the taking of over-the-counter medications such as aspirin, antihistamines, or salves; or bed rest, drinking fluids, exercise, and other similar activities that can be initiated without a visit to a health care provider, is not, by itself, sufficient to constitute a regimen of continuing treatment for purposes of FMLA leave.
C. Conditions for which cosmetic treatments are administered (such as most treatments for acne or plastic surgery) are not serious health conditions unless inpatient hospital care is required or unless complications develop.
Ordinarily, unless complications arise, the following are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave:
- the common cold,
- the flu,
- ear aches,
- upset stomach,
- minor headaches,
- minor ulcers,
- routine dental problems, or
- periodontal disease.
Restorative dental or plastic surgery after an injury or removal of cancerous growths are serious health conditions provided all the other conditions of this regulation are met.
Mental illness may be a serious health condition, but only if all the conditions of this section are met.
D. Substance abuse may be a serious health condition if the conditions of this section are met. However, FMLA leave may only be taken for treatment for substance abuse by a health care provider or by a provider of health care services on referral by a health care provider. On the other hand, absence because of the employee's use of the substance, rather than for treatment, does not qualify for FMLA leave.
E. Absences attributable to incapacity under paragraphs A. (2) (ii) or (iii) qualify for FMLA leave even though the employee or the immediate family member does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three days. For example, an employee with asthma may be unable to report for work due to the onset of an asthma attack or because the employee's health care provider has advised the employee to stay home when the pollen count exceeds a certain level. An employee who is pregnant may be unable to report to work because of severe morning sickness.
Departments must require medical certification of a serious health condition.
It means that because of a serious medical condition, the family member is unable to care for her/his own basic medical, hygienic, or nutritional needs or safety, or is unable to transport him/herself to the doctor. The term also includes providing psychological comfort and reassurance which would be beneficial to a child, spouse/MSU-recognized same-sex domestic partner or parent with a serious health condition. The term also includes 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. An employee's intermittent leave or a reduced leave schedule may also be necessary when a family member's condition is intermittent or 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.
It means the health care provider finds the employee is unable to work at all or is unable to perform any one or more of the essential functions of her/his position within the meaning of the Americans with Disabilities Act (ADA). MSU has the option to provide a statement of the essential functions of the employee's job for the health care provider to review.
For intermittent leave or leave on a reduced schedule, there must be a medical need (as distinguished from voluntary treatments and procedures) and it must be that such medical need can be best accommodated through an intermittent or reduced leave schedule.
There should be an attempt to schedule intermittent leave or leave on a reduced schedule so as not to disrupt a department's operations. A department may assign an employee to an alternative position with equivalent pay and benefits that better accommodate the employee's intermittent or reduced leave schedule.
A health care provider is:
- a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the state in which the doctor practices;
- podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice in the state and performing within the scope of their practice as defined under state law;
- nurse practitioners, nurse-midwives and clinical social workers who are authorized to practice under state law and who are performing within the scope of their practice as defined under state law;
- Christian Science practitioners listed with the First Church of Christ Scientist in Boston, Massachusetts; and
- any health care provider from whom the University's health care plans will accept certification of the existence of a serious health condition.
An eligible employee is entitled to a total of 12 workweeks of leave during any 12-month period for any one, or more, of the reasons specified under situations required to grant FMLA leave. MSU will define the 12-month period as the fiscal year (July 1 through June 30). This definition will be applied consistently and uniformly to all support staff employees.
FMLA leave is concurrent with existing maternity and other paid/unpaid leaves of absence taken for FMLA reasons. For example, employees are not entitled to an additional 12 weeks of FMLA leave for birth of a child after the conclusion of a 12-week maternity leave provided under existing policies/contracts.
FMLA leave is not provided beyond an off-date or the end of a temporary appointment.
The Act does not require an employer to provide paid leave for a situation in which the employer would not normally provide paid leave (current contract/policy provisions for paid leave do not change). The Act allows an employee to use paid leave (e.g., vacation) to cover FMLA absences in some circumstances.
As in the past, support staff are required to use any accrued sick leave in the case of maternity or their own serious health condition and count it in the 12 weeks of leave permitted under FMLA. Short-term absences that are not serious health conditions do not count toward the 12 weeks of FMLA leave. Use of accrued sick leave, for the serious health condition of a family member (up to the limits specified in bargaining unit agreements), is required and counted toward the 12 weeks of leave permitted under the FMLA. Sick time used for the illness of a family member that is not a serious health condition does not count toward the 12 weeks of FMLA leave.
An employee may choose to use other paid leave (vacation/personal) for all or part of any otherwise unpaid FMLA leave. These hours are counted toward the 12 weeks of leave permitted under the FMLA. If an employee uses paid leave under situations which do not qualify as FMLA leave, the leave does not count toward the 12 weeks of FMLA leave.
Employees may request the use of compensatory time for an FMLA-qualifying absence. If an employee uses compensatory time, the absence may not be considered FMLA leave, even if it is for an FMLA-qualifying reason.
Leave may be taken intermittently or on a reduced leave schedule under the following circumstances:
- If leave is taken after the birth or placement of a child for adoption or foster care, an employee may take the leave intermittently or on a reduced leave schedule only if the department agrees. Needs of the employee and the department should be balanced to achieve a workable arrangement and maximum benefits for both.
- If leave is for a serious health condition of a family member or for an employee's own serious health condition, leave may be taken intermittently or on a reduced leave schedule when medically necessary.
Intermittent leave is leave taken in separate blocks of time due to a single illness or injury and may include leave periods from an hour or more to several weeks. Examples would include leave taken on an occasional basis for medical appointments or leave taken several days at a time spread over a period of six months, such as for chemotherapy.
A reduced leave schedule reduces an employee's usual number of working hours per workweek, or hours per workday.
The 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 ADA), and state law and may include altering an existing job to better accommodate the employee's need for intermittent or reduced leave.
Only the amount of leave actually taken may be counted toward the 12 weeks of leave (e.g., if an employee who normally works five days a week takes off one day, the employee uses eight (8) hours of FMLA leave; if a full-time employee who normally works 8-hour days, instead works 4-hour days under a reduced leave schedule, the employee uses 20 hours of FMLA leave each week). Where an employee normally works a part-time schedule or variable hours, the amount of leave is determined on a pro rata or proportional basis (e.g., if an employee who normally works 30 hours per week works only 20 hours a week under a reduced leave schedule, ten hours of FMLA leave for each week is used). If an employee's schedule varies from week to week, a weekly average of hours worked over the 12 months prior to the beginning of the leave period would be used to calculate the employee's normal workweek.
An employee requesting leave should be asked the reasons for the leave so the department can determine whether the leave qualifies under FMLA. In all situations, it is the department's responsibility to designate leave, paid or unpaid, as FMLA-qualifying, based only on information provided by the employee (Request for Leave of Absence (Support Staff) should be utilized for notification).
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:
- If the employee was absent for an FMLA reason and the employer did not learn the reason for the absence until the employee's return, the employer may, upon the employee's return to work, promptly (within 2 business days of the employee's return to work) designate the leave retroactively with appropriate notice to the employee.
- If the employer knows the reason for the leave but has not been able to confirm that the leave qualifies under FMLA, or where the employer has requested medical certification which has not yet been received or the parties are in the process of obtaining a second or third medical opinion, the employer should make a preliminary designation, and so notify the employee, at the time leave begins, or as soon as the reason for the leave becomes known.
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.
Where an employee does not provide information regarding the reason for the leave, FMLA leave may be delayed.
Once the employer is aware the leave is being taken for an FMLA-qualifying reason, the employer must promptly (within two [2] business days, absent extenuating circumstances) notify the employee 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 paydate. 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 is required for the use of FMLA for themselves or a covered family member. If the FMLA leave being requested is for the purpose of adoption or providing foster care, the employee must provide documentation from the granting agency.
A department must require that an employee's request for leave to care for her/his seriously-ill spouse/MSU-recognized same-sex domestic partner, son, daughter, or parent, or for the employee's own serious health condition be supported by medical certification issued by the health care provider
Departments are expected to promptly answer questions from employees concerning their FMLA rights and responsibilities under the FMLA.
An employee must provide her/his 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 or by telephone, or other electronic means. The department should inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee and obtain the necessary details of the leave to be taken. Notice may be given by the employee's family member (e.g., a spouse/MSU-recognized same-sex domestic partner) if the employee is unable to do so personally. The Request for Leave of Absence (Support Staff) should be used for an employee's notice of a need for FMLA leave.
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.
If an employee fails to give 30 days notice for 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 the employee had actual notice of the FMLA requirements. This condition would be satisfied by proper posting of the FMLA Posting Requirements at the employee's worksite. 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. Furthermore, the need for leave and the approximate date must have been clearly foreseeable to the employee 30 days in advance of the leave. The department's policies and procedures for requesting FMLA leave and any other leave without pay must be uniformly applied.
A department must require that an employee's request for leave to care for her/his seriously-ill spouse/MSU-recognized same-sex domestic partner, son, daughter, or parent, or for the employee's own serious health condition be supported by medical certification issued by the health care provider. The Certification of Physician or Practioner describes the maximum amount of information that can be requested of a health care provider. The department must allow at least 15 calendar days after notifying the employee that certification is required. At the time a department requests certification, they must advise an employee of the consequences for failing to provide adequate certification. If the certification is incomplete, the employee must be provided a reasonable opportunity to adequately complete the certification. If the certification is unclear, only a health care provider representing the University may contact the employee's health care provider, with the employee's permission, for purposes of clarification and authentication of the medical certification. Departments should retain the completed Certification of Physician or Practitioner in a separate confidential medical file for three (3) years.
An employee may be required to obtain a second opinion, at the department's expense, if reasonable doubt exists as to the validity of a medical certification. MSU is permitted to designate the health care provider to furnish the second opinion, but the selected health care provider cannot be employed on a regular basis by MSU (i.e., MSU may not regularly contract with or otherwise regularly utilize the services of the health care provider furnishing the second opinion). If the first and second opinions differ, an employee may be required to obtain certification from a third health care provider again at the department's expense. This third opinion shall be final and binding. The third health care provider must be designated and approved jointly by MSU and the employee. Pending receipt of a second or third medical opinion, the employee is provisionally entitled to benefits of the Act.
A department must request recertification every six months, but not more often 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.
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 circumstances listed above applies.
During any FMLA leave, MSU must maintain the employee'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. MSU Human Resources Benefits will make necessary arrangements to continue this coverage.
Except as required under the Consolidated Omnibus Budget Reconciliation Act (COBRA), MSU's obligation to maintain health or dental benefits ceases if and when an employee informs the department of her/his intent not to return from leave (including at the start of the leave if the department is so informed before the leave starts). It is important that departments process appropriate paperwork immediately when an employee gives notice of plans not to return from FMLA leave. (For support staff: Submit a Personnel Action Notice (PAN form) terminating the employee.)
Any share of health or dental plan premiums which had been paid by the employee prior to the leave must continue to be paid by the employee during the leave. MSU Human Resources Benefits will make arrangements with employees to continue premium payments. In some cases, MSU may recover its share of health and dental plan premiums if the employee fails to return to work from unpaid leave for at least 30 calendar days. If the employee portion of the premium is not paid, coverage will be cancelled.
When an employee is unable to return to work because of the continuation, recurrence, or onset of a serious health condition or certain circumstances beyond the control of the employee, thereby preventing MSU from recovering its share of health or dental premium payments, MSU may require medical certification of the employee's or family member's serious health condition.
A department may require an employee to report periodically on her/his status and intent to return to work. This reporting requirement may not be discriminatory and must take into account all of the relevant facts and circumstances related to the employee's leave situation.
In situations where an employee discovers after beginning leave that 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.
As a condition of restoring an employee from FMLA leave occasioned by employee's own health condition, the department must require certification from her/his health care provider that the employee is able to resume work, however, no second or third fitness-for-duty certifications may be required. This policy or practice must be uniformly applied to all similarly-situated employees (i.e., same occupation, same serious health condition) and must comply with state or local laws, terms of a Collective Bargaining Agreement, or requirements of ADA. When clarification of a fitness-for-duty certification is determined to be necessary, an employee's return to work cannot be delayed while inquiry is made.
An employer is precluded from requiring an employee to return to work prematurely in a "light duty" assignment instead of taking FMLA leave, if the employee remains unable to perform any one or more of the essential functions of the original position and the employee has not exhausted her/his full FMLA leave entitlement in the 12-month period. However, if the employee declines to return to "light duty," she/he may no longer qualify for Workers' Compensation benefits.
Days one to seven (1 - 7) (Accident Time) of a work-related disability are counted against the 12-week FMLA entitlement as long as the disability is FMLA-qualifying and the employee had prior notification of the designation. Lost time after the seventh (7th) day of the work-related disability is also counted as FMLA when the employee is receiving Workers' Compensation. Time missed for medical appointments related to a Workers' Compensation injury or illness qualifying as a serious health condition should be counted as FMLA.
Upon return from FMLA leave, an employee is entitled to be returned to the same position held when leave commenced, or to an equivalent position with equivalent benefits, pay and other terms and conditions of employment.
Currently, positions are held for employees on standard length maternity leaves consistent with the FMLA provisions. If an employee is no longer qualified for her/his position, the employee shall be given a reasonable opportunity to fulfill any requirements of the position that may have expired during the leave (e.g., license, special course, etc.). The department's obligations may be governed by ADA if the employee is unable to perform the position duties due to a physical condition. An employee may request to be restored to a different shift, schedule, or position which better suits the employee's personal needs on return from leave subject to the department's approval. However, an employee cannot be induced by the department to accept a different position against the employee's wishes. An employee who fraudulently obtains FMLA leave is not protected by FMLA's job restoration or maintenance of health or dental benefits provisions.
An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period. In order to deny restoration to employment, a department must be able to show an employee would not otherwise have been employed at the time reinstatement is requested. 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. (FMLA leave will not be provided beyond an off-date or the end of a temporary appointment.)
FMLA requires that employers shall keep the following records pertaining to their obligations under the Act for 3 years.
- Basic payroll and identifying employee data, including name, address, occupation, rate or basis of pay and terms of compensation, daily and weekly terms of hours worked per pay period, additions to or deductions from wages, and total compensation paid. Hours worked records need not be kept for employees who are not covered by or are exempt from Fair Labor Standards Act. (Payroll Office and Department)
- Dates FMLA leave is taken by employees and designated in records as FMLA leave. This includes written record of intermittent or reduced leave schedules. (Department for temporary/on-call supportstaff; MSU Human Resources for regular support staff)
- If FMLA leave is taken in increments of less than one (1) full day, the hours of the leave. (Department for temporary/on-call support staff; MSU Human Resources for regular support staff)
- Copies of employee request for leave furnished to the department and copies of all supporting documents and specific notices given to employees. (Department)
- Any documents (including written and electronic records) describing employee benefits or policies and practices regarding the taking of paid and unpaid leaves. (MSU Human Resources)
- Premium payments of employee benefits. (MSU Human Resources Benefits)
- Records of any dispute between MSU and an employee regarding designation of leave as FMLA leave. (Department)
- Records and documents relating to request for FMLA and Department Notification, medical certifications, recertifications or medical histories of employees or their family members, shall be maintained in separate files/records and treated as confidential medical records. (Department)
Departments are responsible for documenting and maintaining for three (3) years, records of paid and unpaid FMLA leave and reduced work schedules related to the FMLA. Department responsibilities also include the determination of 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.
For support staff, FMLA will be recorded using the Web-based or unit-level absence reporting system. To report FMLA-qualifying absences on the Attendance System or through unit level absence reporting systems for an employee's serious health condition, use all available contractual sick leave credits first. 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 time 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 is reported on the bottom section of the Other Leave Taken section in the FMLA Leave box. 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, but should be converted to sick leave by processing a new PAN form.
MSU is prohibited from interfering with, restraining, or denying exercise of (or attempts to exercise) any rights provided by the Act or from discharging or in any other way discriminating against any person for opposing or complaining about any unlawful practice under the Act.
- Interfering with: the exercise of an employee's rights would include refusing to authorize FMLA leave, discouraging an employee from using such leave, or manipulation to avoid responsibilities under FMLA.
- Discriminating against: includes requiring written notice or certification for use of paid leave if not normally required, not granting the same benefits as any other employee on a leave without pay, or using the taking of FMLA leave as a negative factor in employment actions. MSU is prohibited from inducing an employee to waive her/his rights under the Act. Individuals are protected from retaliation for opposing any practice which is unlawful under the Act. They are similarly protected if they oppose any practice which they reasonably believe to be a violation of the Act or regulations.
An employer is required to request medical certification and recertification in connection with FMLA-qualifying serious health conditions. If the employee does not provide the medical certification, the absence is not FMLA leave. The employer may also require documentation from the employee to confirm family relationships. In addition to the basic concept that the 12 weeks of leave mandated by FMLA may be unpaid, these requirements should serve to discourage the inappropriate use of FMLA leave.
Departments are required to post and keep posted on the premises, in conspicuous places, a copy of FMLA Posting Requirements explaining the Act's provisions and providing information concerning the procedures for filing complaints or violations of the Act. Departments who fail to post the required notice cannot take any adverse action against an employee, including denying FMLA leave, for failing to furnish the department with advance notice of a need to take FMLA leave. The department shall be responsible for providing the information required by the notice provisions of this regulation in a language in which the employees are literate.
An employee, or another person on their behalf, can file a complaint with the Secretary of Labor, or file a private lawsuit pursuant to Section 107 of the FMLA. A lawsuit must be filed within two (2) years after the last action which the employee contends was in violation of the act, or three (3) years if the violation was willful. If a violation is found, an employee may receive wages, employment benefits, or other compensation denied or lost, etc., depending on the severity and nature of the violation.
A complaint may be filed in person, by mail or telephone, with the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, and should be filed within a reasonable time of when the employee discovers her/his rights have been violated under FMLA.
MSU will observe any benefit program or plan that provides greater family or medical leave rights to employees than the rights established by FMLA. Conversely, the rights established by the Act may not be diminished by any employment benefit program or plan.
Nothing in FMLA modifies or affects any federal or state law prohibiting discrimination on the basis of race, religion, color, national origin, sex, age or disability. If an employee is a qualified individual with a disability within the meaning of the ADA, the department must make reasonable accommodations.
For Support Staff, Faculty/Academic Staff and Executive Managers:
MSU Human Resource Services
Telephone: (517) 353-4330
Email: records@hr.msu.edu
For Graduate Assistants:
The Office of Planning and Budgets
Telephone: (517)355-9273
Email: boettchi@msu.edu
For Students:
Student Employment Office
Telephone: (517)355-9520
Email: seo@csp.msu.edu