Family and Medical Leave (FMLA)

Last Updated 09/13
Applies to Exempt and Non-Exempt Staff
Related Policies:


The University provides eligible employees with leave from work consistent with the provisions of the Family and Medical Leave Act of 1993 (FMLA). The Family and Medical Leave Act of 1993, updated January 16, 2009, entitles employees to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.

Eligibility

An exempt or non-exempt staff member who (1) has been employed by the University for at least twelve months and (2) has worked at least 1,250 hours during the 12-month period immediately preceding the commencement of the leave is eligible for FMLA.

The 12 months need not be consecutive. The University will count all months worked except those that were worked prior to a long break in service (7 years or longer) unless that break was due to National Guard or Reserve military service or was pursuant to a written agreement indicating the employee’s intent to return to work.

Only actual hours worked are included to determine eligibility. Vacation, sick, holiday and other hours not worked whether paid or unpaid do not count towards the 1,250 hour requirement. However, military service covered under the Uniformed Services Employment and Reemployment Rights Act (USERRA) will count towards fulfilling both eligibility requirements.

Qualifying Reasons

Eligible employees may take up to 12 weeks of Family and Medical Leave within a rolling 12 month period for the following reasons:

  • The employee’s own serious health condition, including pregnancy and birth-related conditions, that render the employee unable to perform the essential functions of his or her job,
  • The birth of the employee’s child and to care for that child,
  • The placement of a child with the employee for adoption or foster care and to care for that child,
  • To care for the employee’s spouse, child or parent who has a serious health condition,
  • To handle certain qualifying exigencies related to a spouse, child or parent’s active duty or call to active duty in support of a contingency operation.
    *To care for a spouse, child, parent or next of kin with a serious injury or illness incurred or exacerbated within 5 years of active duty in the Armed Forces (up to 26 weeks).

Definitions

Spouse – A husband or wife as defined or recognized by the State of Indiana.
Parent – A biological parent, adoptive parent, step-parent, or an individual who stood in loco parentis (in place of a parent) to an employee.
Child – A biological, adopted , or foster child, a stepchild, a legal ward or a child of an individual standing in loco parentis (in place of a parent) who is a) under the age of 18 or b) 18 years of age or older and incapable of self-care because of a mental or physical disability.

For purposes of Military Caregiver Leave and leave qualifying under the qualifying exigency military provision, there is not an age requirement.

Serious Health Condition – An illness, injury, impairment, or physical or mental condition that involves (1) an overnight stay in a hospital or medical care facility and any period of incapacity or subsequent treatment related to the same condition, or (2) continuing treatment by a health care provider. Continuing treatment may be established under any of the following circumstances:

  1. Short-term incapacity for more than three full consecutive calendar days that also involves one of the following:
    1. Treatment by a health care provider on at least one occasion with a continuing regimen of treatment under the health care provider’s supervision. The visit to the health care provider must be in-person within 7 days of the first day of incapacity.
    2. Treatment two or more times by a health care provider. The first visit to the health care provider must be in-person within 7 days of the first day of incapacity and the second treatment must take place within thirty days of the first day of incapacity and must be determined by the health care provider.
  2. Pregnancy or prenatal care;
  3. Chronic serious health condition (such as asthma, diabetes, epilepsy) which require periodic visits for treatment by a health care provider at least twice a year;
  4. Permanent or long-term incapacity (such as Alzheimer’s, severe stroke, terminal stages of a disease);
  5. Absence to receive multiple treatments for restorative surgery after an accident or injury or a condition that would likely result in an incapacity of 3 or more days if not treated (such as cancer, severe arthritis, kidney disease).

Qualifying Exigency – Specific activities arising out of the fact that a covered military member is on active duty, including issues related to short notice deployment, attendance at military events and related activities, arranging for or addressing childcare and school activities (but not routine childcare), making financial and legal arrangements, attending counseling, rest and recuperation with a covered service member, and attending post-deployment activities.
Next of Kin- the nearest blood relative other than the covered service member’s spouse, parent, son or daughter, in a set order of priority, unless another blood relative has been designated as next of kin. This applies to Military Caregiver Leave only.

Duration of Leave

Employees may be granted a maximum of twelve weeks of FMLA in any twelve-month period. The twelve-month period is a “rolling” twelve-month period measured backward from the date an employee uses any leave. An employee’s FMLA balance is equal to 12 weeks minus any FMLA time taken during the immediately preceding 12 months.

Leave for a newborn child or for adoption or foster care placement of a child must be complete within twelve months of the birth, adoption or placement. The leave cannot be taken intermittently or on a reduced schedule unless both the department and the individual agree on the schedule of intermittent or reduced leave. If both parents work for the University, a combined total of 12 weeks of leave during the 12-month period is permitted.

Leave for a serious health condition (for a seriously ill child, spouse or parent or the employee’s own condition) may be taken intermittently or on a reduced schedule but only if certified by a health care provider as needed for medical reasons.

Employees are obligated to remain in contact with their supervisors regarding their status during the FMLA leave as frequently as the supervisor deems appropriate and necessary under the circumstances. Employees must keep their supervisors informed about the day they intend to return to work. For employees who are approved for intermittent FMLA leave, contact with the supervisor and CareWorks USA must be made every day that the employee intends to use intermittent leave. For employees on an approved FMLA leave that extends more than 30 days, such contact must be made with the supervisor and CareWorks USA at a minimum of every 30 days. Failure to keep the department updated may result in corrective action.

The employee must make reasonable efforts to schedule the intermittent leave so as not to disrupt the operation of the department. The University may temporarily transfer employees to an available alternative position if an employee needs intermittent leave or leave on a reduced leave schedule that is foreseeable based on planned medical treatment for the employee, a family member, or a covered service member, including during a period of recovery from one’s own serious health condition, a serious health condition of a spouse, parent, son or daughter, or a serious injury or illness of a covered service member, or if the University agrees to permit intermittent or reduced schedule leave for the birth of a child or for placement of a child for adoption or foster care. In such cases, the alternative position shall have equivalent pay and benefits.

Pay During FMLA Leave

The Family and Medical Leave Act provides for unpaid leave time. The University requires employees to use available paid sick time, personal days and vacation days first for their own serious health condition, to the extent available, before the leave becomes unpaid. The following table indicates the use of paid time during leaves. Paid time is based on scheduled work hours.

Circumstances in Which Paid Time Must be Used during FMLA
Reason for Leave Sick Personal Vacation
Employee’s Own Serious Health Condition X X* X
Birth of a Child ( Mother) X ** X* X
Adoption, Foster Care Placement, or Birth/Care of a Child (Mother) X* X
Adoption, Foster Care Placement, or Birth/Care of a Child (Father ) X* X
Serious Health Condition of Spouse, Child or Parent X*** X* X
Military Qualifying Exigency X* X
Military Caregiver Leave X* X
Workers’ Compensation Optional Optional Optional

* Personal Days can only be used if time is available in an employee’s sick bank.
** Sick days until released to work by health care provider.
*** Five (5) days of accumulated sick leave is available for illness of immediate family member.

Any leave time approved as FMLA, whether paid or unpaid, is counted as part of the twelve-week Family and Medical Leave period. Time off for Workers Compensation is counted as FMLA.

Reinstatement

Before an employee can return to work from a FMLA for the employee’s own serious health condition, the employee must present a certification from his/her health care provider that s/he is able to return to work, and will be able to perform the essential functions of his/her job without posing a significant risk of harm to the employee or others.

The CareWorks USA Return-To-Work/Work Release form must be completed by the employee’s health care provider and returned to CareWorks USA prior to the employee returning to work. CareWorks USA will review and forward to the employee’s supervisor and Human Resources.

An employee returning from an approved FMLA will be restored to the same position that the employee held when the leave started, or to an equivalent position, with equivalent benefits, pay and other terms and conditions of employment. Any employee who chooses not to return to work upon release by their health care provider will be considered to have resigned their position effective the last day of the leave.

Extended Medical Leave

Any medical leave beyond the duration of an unpaid FMLA is considered an extended leave. Extended leave is unpaid and is only available for employees on leave due to their own serious health condition. An employee may continue to use any available paid sick or vacation time during the extended leave. When an employee goes on an unpaid extended leave, the department may post the employee’s position.
Employees returning from an extended unpaid leave are not guaranteed a position. However, they will be considered for any available position for which they are qualified at the time of release to return to work.

An employee who is not released to return to work by a health care provider within one year from the beginning of any medical leave will be separated from the University.

Military Caregiver Leave

FMLA provides up to 26 weeks of leave in a single 12-month period to an employee who is the spouse, son, daughter, parent, or next of kin of a covered service member. A covered service member is a current member of the Armed Forces, including a member of the National Guard or Reserves, who has a serious injury or illness incurred in the line of duty and is undergoing medical treatment, recuperation, or therapy; or is otherwise in outpatient status; or is on the temporary disability retired list.

For purposes of Military Caregiver Leave, a “single 12-month period” is defined as a rolling year beginning with the first day of the leave. An eligible employee is entitled to a combined total of 26 weeks of Military Caregiver Leave and leave for any other FMLA qualifying reason in a single 12-month period, provided that the employee may not take more than 12 weeks of leave for any other FMLA qualifying reason during this period. For example, in a single 12-month period, an employee could take 12 weeks of FMLA to care for a newborn child and 14 weeks of Military Caregiver Leave, but could not take 16 weeks of leave to care for a newborn child and 10 weeks of Military Caregiver Leave.

It is the employee’s responsibility to provide complete, sufficient, and timely certification when requesting leave.

Procedures

Request for Family and Medical Leave

The University partners with CareWorks USA to administer its FMLA program for exempt and non-exempt staff. Please click here for a brochure.

The procedures are as follows:

  • To obtain information regarding FMLA leave, to initiate a FMLA request, or to report time off related to an existing claim, employees must contact CareWorks USA at 1-888-436-9530 between 8:00 AM and 5:00 PM Eastern Time. Representative from CareWorks USA are also available outside of the core Service Center hours noted above.
  • Employees must submit completed paperwork by mail or fax to:
    CareWorks USA
    5555 Glendon Court
    Dublin, Ohio 43016
    Fax: 1-888-436-9535
  • Failure to provide the medical certification by the deadline provided in correspondence by CareWorks USA may result in a delay or denial of the FMLA request.
  • CareWorks USA will contact the employee directly about the status of the FMLA request.

Any faculty member requesting a FMLA must apply through the Office of Human Resources and the Office of the Provost and does not contact CareWorks USA. The Faculty Family and Medical Leave Policy can be viewed at http://facultyhandbook.nd.edu.

Employee Notice Requirements

In the event a FMLA leave is required for planned medical treatment, the course of treatment should be scheduled so as not to unduly disrupt the department’s operations. Employees should consult with their department prior to arranging appointments so that a schedule can be agreed upon that best suits both employee needs and the needs of the department. If the leave is foreseeable, 30 days prior written notice to the University is required. When 30 days notice is not practicable, employees must notify their supervisor and CareWorks USA as soon as practicable and must comply with the department’s normal call-in procedures. If an employee is absent due to a FMLA qualifying reason, s/he must contact CareWorks USA as soon as the employee becomes aware of the need for an absence. The employee must also call his/her supervisor. Failure to provide proper notice may result in delay or denial of the leave, and may result in an attendance or other policy violation and may lead to corrective action.

Medical Certification

When a FMLA leave is requested because of the employee’s own serious health condition, or the serious health condition of a covered family member, the University will request the employee to have his/her health care provider complete a medical certification form. The employee will have 15 calendar days to return the completed form. Correspondence to the employee from CareWorks, USA will advise the employee of the due date of the medical certification. The employee’s failure to provide a complete and sufficient medical certification could result in denial of leave, unless and until the complete and sufficient medical certification is provided.

The University reserves the right to request and obtain a second opinion of a serious health condition from a health care provider at the University’s expense. In the event that the first and second opinion differ, the University may request and obtain a third opinion. The third opinion would be binding.

Medical Certification During Extended Leave

Employees on extended medical leave must provide a medical certification to the Office of Human Resources upon request.

Continuation of Benefits

While on FMLA and for up to one year while on extended medical leave for personal illness, certain employee benefits will continue.
Specifically,

  • Benefits funded in full by the University such as base life insurance ($25,000), long-term disability insurance, and educational benefits continue during this period.
  • For the first six months of an employee’s own medical leave, the University subsidizes and the employee pays their regular share of the premium for their elected benefits.
  • For the second six months, the University subsidizes and the employee pays their regular share of the premium for their medical insurance. The employee continues to pay the full cost of supplemental and dependent life insurance. The employee will be offered COBRA for dental, vision and the Flexible Spending Account (for medical expenses), as applicable.
  • The Internal Revenue Code does not allow participation in the Dependent Care Flexible Spending Account while on medical leave. Dependent care expenses incurred during a medical leave are not eligible for reimbursement. An employee on an approved medical leave of absence may elect to change or suspend his/her Dependent Care election for the balance of the year. This change must be made through the Office of Human Resources.

Once an employee is in unpaid status, applicable premiums costs are to be paid through automatic withdrawal. Employees are asked to sign a Promissory Note form and Authorization for Electronic Withdrawal form to authorize the University to withdraw the premium from the designated account no later than the fifth of the each month. If the employee fails to make payment, sign the promissory note or discuss their situation, the University will have no choice but to terminate the benefits.


Related Links

  • For additional resources regarding the Family and Medical Leave Act, please visit the FMLA Resources page.

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