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Family/Medical Leave of Absence

Policy #3.2020
Effective: 4/6/95

A Family/Medical Leave of Absence, FMLA, will be granted to an eligible employee who needs a leave of absence from work for one of the reasons covered by the federal law known as the Family and Medical Leave Act. Leaves will be without pay unless the employee is eligible for the paid benefit coverage described below. An eligible employee who takes FMLA leave will be guaranteed the right to return to his/her former position or an equivalent position if s/he remains in full compliance with the leave requirements, returns by the expiration date of the FMLA leave, is able to perform the essential functions of the position, and no independent cause for separation arises.

It is Lewis University’s policy to comply with all requirements of the FMLA, as amended, and its implementing regulations. In the event of a conflict or inconsistency between this policy and the FMLA and its regulations, the FMLA and its regulations will control.

Because the FMLA, its regulations, and this policy are very detail-oriented and specific, questions regarding the FMLA should be directed to the Office of Human Resources.

Eligibility
Employees, including regular part-time employees, are eligible for FMLA leave after being employed by Lewis for twelve months, provided they have worked at least 1250 hours in the twelve months before the requested leave would begin. For the purpose of counting the 12-month employment requirement, any portion of a week that the employee is on the payroll counts as a full week for FMLA eligibility. Employment does not have to have been continuous. Separate periods of employment in which the break in service exceeds seven (7) years will not be used to determine FMLA eligibility. Time in the military service covered under the Uniformed Services Employment and Reemployment Rights Act (USERRA) will count towards fulfilling the length of employment and hours of work requirements to be eligible for an FMLA leave.

For the 12 months immediately preceding the first day of the FMLA leave, the employee must have worked at least 1,250 hours. These hours must be actual work hours, not compensated hours. Hours using any type of paid time off benefits or holiday time do not count. The 1,250 hours worked requirement exists whenever an employee is applying for a new FMLA leave that has not been previously certified. The employee must have worked at least 1,250 actual work hours in the 12 months immediately preceding when the new leave would commence.

Finally, to be eligible, the employee must not have already taken 12 weeks of FMLA leave from the date the employee first took FMLA leave, provided that date was within the last 12 months.

Amount of Leave Available
For most types of leave, eligible employees can take up to twelve weeks of covered FMLA leave during the 12-month period used by the University to track leave. Note, however, that some forms of “qualifying exigency” leave are only available for shorter durations. Contact the Office of Human Resources for further detail about the availability of certain types of “qualifying exigency” leave.

For our plan purposes, the University will track leave in a 12-month period measured forward from the first day FMLA leave is used.

When an eligible employee takes FMLA leave to care for a family member injured during military duty (see more information on this type of leave below), the employee may take up to 26 weeks of leave during a single 12-month period that begins when the employee first goes out on leave for this purpose.

Covered Reasons for Leave
FMLA leave may be taken for any of the following reasons:

• the birth or adoption of a child, or the placement of a child with the employee in a foster care arrangement (leave for these purposes is available only during the first year following the child’s birth, adoption or foster placement);
  
  
• to care for a child, spouse, or parent who has a serious health condition;
  
  
• the employee’s own serious health condition;
  
  
• a qualifying exigency which occurs while the employee’s spouse, child, step-child, or parent is a member of a Reserve component or a retired member of the Regular Armed Forces or Reserves and is on active duty or on a Federal call to active duty. Qualifying exigencies to manage the servicemember’s affairs are described on the DOL form Certification of Qualifying Exigency for Military Family Leave, which is available from the Office of Human Resources; or
  
  
• to care for a covered servicemember with a serious injury or illness suffered in the line of active duty or an injury or illness that existed before the beginning of the member’s active duty and was aggravated by service in the line of duty on active duty in the Armed Forces. (See below for more information regarding this type of leave, for which an eligible employee may take up to 26 weeks of leave during a single 12-month period.)
  
  
• to care for a covered veteran with an injury or illness that was incurred or aggravated by the member in the line of duty on active duty in the Armed Forces and manifested itself before or after the member became a veteran, and is:
  
   (1) A continuation of a serious injury or illness that was incurred or aggravated when the covered veteran was a member of the Armed Forces and rendered the servicemember unable to perform the duties of the servicemember’s office, grade, rank, or rating; OR
  
  (2) A physical or mental condition for which the covered veteran has received a VA Service Related Disability Rating (VASRD) of 50 percent or greater and such VASRD rating is based, in whole or in part, on the condition precipitating the need for caregiver leave; OR
  
  (3) A physical or mental condition that substantially impairs the veteran’s ability to secure or follow a substantially gainful occupation by reason of a disability or disabilities related to military service or would do so absent treatment; OR
  
  (4) An injury, including a psychological injury, on the basis of which the covered veteran has been enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.

Definitions and Related Information
“Serious health condition” means an illness or injury that involves an overnight stay in a health care facility and any subsequent treatment in connection with such stay; or, continuing treatment by a health care provider including any one or more of the following

• a period of incapacity of more than 3 consecutive, full calendar days and subsequent treatment by a health care provider in-person two or more times within 30 days of the first day of incapacity;
  
  
• treatment by a health care provider in-person on at least one occasion which results in a regimen of continuing treatment;
  
• pregnancy and prenatal care;
  
  
• chronic condition which requires visits at least twice a year for treatment by a health care provider over an extended period of time and may cause episodic rather than a continuing period of incapacity;
  
  
• permanent or long-term conditions; or
  
  
• conditions requiring multiple treatments by a health care provider, including recovery time.

Except for Qualifying Exigency leave and Military Caregiver leave described below, “family members” are defined as the employee’s spouse, parent or son or daughter (under the age of 18 or incapable of self care due to a disability). For these two types of military-related leave, an eligible employee may take leave related to a child’s military call-up (exigencies) or military injury (caregiver leave) even if the child is 18 or older.

Military Caregiver Leave

• Military Caregiver Leave is FMLA leave to care for a covered servicemember who has suffered serious injury or illness in the line of active duty or an injury or illness that existed before the beginning of the member’s active duty and was aggravated by service in the line of duty.
  
  
• A “covered servicemember” means a current member of the Armed Forces, National Guard or Reserves who is undergoing treatment, recuperation, is in outpatient status, or is otherwise on the temporary disabled list for a serious injury or illness incurred in the line of duty. The definition of “covered servicemember” also includes covered veteran or an individual who was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran.
  
  
• An employee who has a qualified family relationship with a covered servicemember may take up to 26 weeks of leave during a single 12-month period. A qualified family relationship is a spouse, parent, child or next of kin. Contact the Office of Human Resources to determine if a qualified family relationship, such as “next of kin,” exists.
  
  
• The leave entitlement described in this paragraph applies on a per-covered servicemember, per-injury basis, such that an eligible employee may be entitled to take more than one leave if the leave is to care for a different covered servicemember or to care for the same servicemember with a subsequent serious illness or injury.
  
  
• An employee may have an FMLA leave for up to 12 weeks for one of the qualifying reasons covered above in the same 12-month period in which an FMLA leave is taken to care for a covered servicemember.
  
  
• No more than 26 weeks total of FMLA leave may be take within the single 12-month period that begins when an employee first takes Military Caregiver Leave.

The Office of Human Resources is responsible for coordinating all requests for FMLA leaves. Questions regarding eligibility status or whether your leave request is covered by the FMLA should be directed to the Office of Human Resources.

Process and Notification
An employee requesting FMLA leave must advise the University of his/her need for leave not less than 30 days prior to his/her scheduled leave. When it is not practicable under the circumstances to provide such advance notice, notice must be given “as soon as practicable”. The leave of absence shall be effective on the first day of the absence, regardless of pay status or the use of Short Term Disability Bank (STDB) or Paid Time Off (PTO) benefits. FMLA leave will run concurrently with STDB/PTO or other time off such as time off due to a compensable injury.

The University will provide notice to the employee of his or her eligibility for the requested leave within 5 business days of the request, as well as other information about the employee’s rights and responsibilities while taking FMLA leave, such as the necessity for providing Medical Certification, the concurrent use of available paid leave time, and the need to provide a fitness for duty certification upon returning to work from leave.

Medical and Other Required Certifications
In cases where an FMLA leave is for the employee’s own serious health condition, or for the employee to care for a spouse, child or step child, or parent who has a serious health condition, the employee must provide medical certification on the applicable Medical Certification form for employees (Form WH-380-E) or for family members (Form WH-380-F).

Employees seeking “qualifying exigencies” or “military caregiver” leave will also need to provide certification of the need for leave. Employees seeking a “qualifying exigency” leave will need to provide a completed Form WH-384, while employees seeking “military caregiver” leave will need to provide a completed Form WH-385.
The department will request the appropriate certification at the time an employee gives notice of the need for leave or within five (5) business days thereafter. Once requested, it is the employee’s responsibility to provide the department with the medical certification within 15 calendar days.

It is the employee’s responsibility to provide a complete and sufficient certification. If the certification is incomplete or insufficient, the employee will be given notice of the deficiencies with the certification and an additional 7 additional calendar days to provide a complete and sufficient certification. If the employee fails to do so, FMLA leave may be denied.

The Office of Human Resources reserves the right to contact the employee’s health care provider for clarification and/or authentication of an employee’s medical certification (including for certifications related to military care giving leave). For “qualifying exigency” leave certifications, the Office of Human Resources may contact third parties to verify meetings or appointments or the Department of Defense to verify the employee’s family member’s call-up or active duty status, but may not otherwise seek clarification or authentication.

The Office of Human Resources may also require a second opinion from a health care provider designated by the human resources office. The employee's department will pay the cost of the second opinion, if required.

If there is a difference between the employee’s original medical certification and the second opinion, the Office of Human Resources may require a third opinion from a mutually agreeable provider. Again, the employee's department will pay the cost of the third opinion. The third opinion will control.
Employees may be asked to recertify the need for the FMLA after 30 days from receipt of a past medical certification, in less than 30 days in certain circumstances such as a change in the employee's condition, or no less than every six (6) months.

No recertification or second or third opinions will be required for “qualifying exigencies” or “military caregiver” leave.

All medical certifications and related information that describe the health or medical history or condition of the employee or family members will be handled as confidential medical information. Such information will be stored in a locked file separate from the personnel file.

In all circumstances where certification is requested, it is the employee’s responsibility to provide the employer with timely, complete, and sufficient certification and failure to do so may result in delay or denial of FMLA leave.

Benefits

• Staff employees on a FMLA must exhaust accrued STDB benefits if the leave exceeds three full consecutive days off. Once STDB benefits have been exhausted, employees on leave may then utilize available PTO benefits, but are not required to do so. Employees who choose to use available PTO must follow all procedures for requesting and taking such PTO. The failure to do so will result in the inability to use PTO, but will not otherwise affect the employee’s right to take FMLA leave on an unpaid basis, provided the employee’s need for leave meets the requirements for FMLA coverage.
  
  Faculty may be off for up to twelve (12) weeks from the start of an FMLA period for an approved FMLA absence. If the FMLA absence is related to the faculty member’s own health condition and the faculty member does not return to work at the end of any approved FMLA leave, a personal leave of absence may be requested. If, however, the faculty member is fully disabled and unable to return to work, long term disability benefits will apply after the qualifying period of ninety (90) days.
  
  
• During a FMLA leave of absence under this policy, the University will maintain insurance coverage and its portion of the premium cost for the employee. During that period, the employee is responsible for paying his/her required premium contribution and for maintaining dependent coverage premiums, if applicable. If possible, payment arrangements should be made regarding employee contributions during the leave with the Office of Human Resources prior to the beginning of the FMLA leave.
  
  Should an employee not return from an approved FMLA leave, the university may seek reimbursement for premiums paid.

Denial/Termination of FMLA Leave of Absence
FMLA leave may be denied under any one of the following conditions: (1) the employee does not have one year of service with the University; (2) the employee has not worked 1250 hours in the twelve months preceding when leave would commence; (3) the employee’s leave request is not covered by the FMLA; (4) certification is not timely received by the University; (5) certification does not substantiate the need for leave for a covered FMLA condition or reason; or (6) the employee has already exhausted his FMLA leave entitlement in the relevant 12-month period.

Misrepresentations to Obtain Leave
An employee who knowingly misrepresents facts to obtain or continue an FMLA leave is subject to disciplinary action, up to and including termination.

Medical Release and Return to Work
Once released by his/her physician to return to work, the employee must immediately notify both his/her unit head and the Office of Human Resources so that appropriate steps may be taken to reinstate him/her to active status.

A written release to return to work from the physician must be submitted to the Office of Human Resources prior to the employee’s return to work. Any health care provider’s release that restricts the returning employee to light duty must specify the job-related activities in which the employee may/may not participate during the light duty period and the likely length of any such restriction. Return to such light duty must be approved by the unit head and in consultation with a representative of the Office of Human Resources.

If, at the end of the twelve-week period, the employee cannot return to work for any of the reasons stated below, one of the following courses of action may be taken.

• An employee who is considered by his/her physician to be unable to return to work may qualify for long-term disability benefits for as long as s/he is considered to be continuously and totally disabled for a minimum of ninety calendar days. Additional details may be obtained from the Office of Human Resources.
  
  
• An employee who requires a longer recuperative period, but is not disabled, may request an extension of the leave of absence. This request must be in writing, and a statement from the physician indicating the period of anticipated recuperation is required. Please note that extensions which increase the leave to more than twelve weeks are not covered by the Family & Medical Leave Act of 1993.

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