Support Staff Family Medical Leave Act Policy & Procedure

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 Department of Labor (DOL) has revised this regulation to provide that a service break of seven years or more need not be counted in determining whether an employee has been employed for at least 12 months.

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.

January 28, 2008, President Bush signed the National Defense Authorization Act, which included an amendment to the FMLA to provide leave for service members and their families under certain circumstances. Portions of these amendments went into effect immediately. However, because the amendments allowed for FMLA leave for certain "qualified exigencies" but did not provide any definition of that phrase, that portion of the amendments did not go into effect until interpreting regulations were issued. The DOL then sought comment on both the newly proposed revisions to the existing regulations and the statutory amendment regarding service members and their families. These new regulations are effective January 16, 2009.

On October 28, 2009 President Obama signed into law the National Defense Authorization Act for Fiscal Year 2010 (H.R. 2647). In section 565, the legislation makes important changes to the Family and Medical Leave Act (FMLA).

Specifically, military caregiver leave has been expanded so it may be used to care for veterans undergoing treatment, recuperation or therapy for an injury, as long as the veteran was a member of the Armed Forces, National Guard or Reserves within five years of requiring care. The amendments also expand military caregiver leave so that employees may use it to care for a covered service member’s serious injury or illness incurred because service on active duty aggravated an existing or preexisting injuries. Previously, the act only allowed caregiver leave for serious illnesses or injuries incurred on active duty.

The legislation also expands the use of qualifying exigency leave. Under the new law, qualifying exigency leave will now cover family members of the regular Armed Forces deployed to a foreign country, in addition to current coverage of family members of the Guard or Reserves.

Covered situations:

• 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,
• 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,
• to care for an employee's spouse, child, or parent with a serious health condition, or
• because of a serious health condition that makes the employee unable to perform the essential functions of his/her job.
• Qualifying exigencies Employees are eligible to take FMLA leave because of a qualifying exigency when the covered military member is on active duty or call to active duty status in support of a contingency operation as either:
  • A member of a regular component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country.
  • A member of the reserve components or a retired member of the regular Armed Forces or Reserves.
• Military caregiver leave Leave may be taken for a covered service member defined as either:
  • A member of a regular component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country with a serious injury or illness;
  • A member of a reserve component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country under a call or order to active duty with a serious injury or illness.

Serious injury or illness is defined as either:

• An injury or illness that is incurred in the line of duty on active duty that may render the service member medically unfit to perform the duties of his or her office, grade, rank or rating. Leave can be taken for a covered service member (a) who is on the temporary disability retired list, (b) who is undergoing medical treatment, recuperation, or therapy for the serious illness or injury; or (c) who is assigned to a military medical treatment facility as an outpatient or is otherwise receiving outpatient care at a unit established for members of the armed forces;
• A veteran 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 five years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy.

General information:

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

Procedure

Employee:

Department:

• 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.
• Whenever possible, an employer must designate an FMLA-qualifying leave as FMLA before the leave begins. If an employer does not designate leave as required, the employer may retroactively designate leave as FMLA leave with appropriate notice to the employee as required, provided that the employer's failure to timely designate leave does not cause harm or injury to the employee. In all cases where leave would qualify for FMLA protections, an employer and an employee can mutually agree that leave be retroactively designated as FMLA leave
• Once the employer has acquired knowledge that the leave is being taken for an FMLA-qualifying reason, the employer must promptly (within five 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 Notice of Eligibility and Rights and Responsibilities and Designation Notice 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, covered family member, qualifying exigency, or for military family leave certification.
• If an employee fails to give 30 days notice for a foreseeable leave with no reasonable excuse for the delay, the department may ask for a reason and the employee must give an explanation. The regulations then give the example of an employee whose medical appointment has been changed, indicating that notice should be given on the same day as the change unless it is after business hours, in which case such notice could be given the following day.
• A department must require an employee's FMLA leave be supported by medical certification issued by a health care provider or qualified agency. The department must allow at least 15 calendar days after notifying the employee that certification is required. If the information on the certificate is unclear, incomplete or insufficient the employer must state in writing what additional information is necessary to satisfy the certification requirement by using the Notice of Eligibility and Rights and Responsibilities and Designation Notice. The employer must then give the employee seven calendar days to cure any deficiency. If the employee fails to do so, the employer can deny the leave. If an employer questions the adequacy of a medical certification provided under the FMLA, it may not request additional information from that health care provider, except for clarification or authentication purposes. The new revisions allow the MSU Human Resources FMLA Coordinator to contact the medical provider directly for these purposes. In addition, the new revisions clarify the definitions of "authentication" and "clarification". The former refers only to requesting verification that the information on the form was authorized by the health care provider who signed it. No additional medical information may be requested, and the employee's permission is not needed. "Clarification" refers to requests to decipher handwriting or to understand the meaning of a response. Again, no additional medical information can be obtained. An employee can choose not to allow the employer to seek clarification, but then the employer may deny the leave if the certification is unclear. The direct supervisor may not contact the health care provider; rather the FMLA Coordinator in Human Resources will contact the health care provider when appropriate.
• To report FMLA qualifying absences for an employee or a covered family member's serious health condition on the EBS Portal, 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 as FMLA on the EBS Portal. 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 EBS Portal. 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 EBS Portal. 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.
• 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. The department retains the medical certification in a separate confidential medical file for three years.
• 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.
• The revised regulations allow an employer to seek recertification every six months even if the nature of the condition is such that it could last longer. In addition, the DOL has ruled that an employer may ask for new certification (as opposed to recertification) after one year of eligibility. Wage and Hour Division Opinion Letter FMLA 2005-2A, 9/14/05. At that time, the employer may ask for new medical certification, not simply recertification, and may seek a second or third medical opinion if appropriate. The employer may also reassess eligibility, such as whether the employee meets the 1,250 hour requirement.
• 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.
• 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 and perform the essential functions of the employee's job; however, an employee's return to the payroll may not be delayed pending fitness-for-duty certification. An employer may delay restoration to employment until an employee submits a required fitness-for-duty certification. The MSU Human Resources FMLA Coordinator may contact the employee's health care provider for purposes of clarifying and authenticating the fitness-for-duty certification.
• 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.
• 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 Disabilities Act), and state law, and may include altering an existing job to better accommodate the employee's need for intermittent or reduced leave.
• 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.
• A department may not use absences that qualify as FMLA leave as a negative factor in employment actions.
• 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.
  • 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.
  • 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.

MSU Human Resources:

1. FMLA leave is recorded through the EBS Portal.

2. Employees and departments may view FMLA balances on the Quota Balance Report through the EBS Portal.

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.

Refer questions to: MSU Human Resources Benefits(telephone 517-353-4434)