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5.9 Family and Medical Leave Act (FMLA)

Purpose

Rochester University has adopted this policy to implement the terms of the Family and Medical Leave Act of 1993 (FMLA). Eligible employees are entitled to FMLA on the terms and conditions stated in this policy, the regulation issued by the Department of Labor under the FMLA and in the University’s other applicable leave policies.

Scope

All eligible employees of Rochester University

Definitions

For purposes of this policy, the following definitions apply:

  • Eligible Employee – an individual who has been employed by the University for at least 12 months, has worked at least 1,250 hours during the 12-month period immediately preceding the commencement of the requested leave, and is employed at a worksite with at least 50 employees within 75 miles of that worksite
  • FMLA Leave – leave that qualifies under the Family and Medical Leave Act of 1993, as amended by the National Defense Authorization Act of 2008, Pub. L. 110-181, and the Department of Labor’s regulations and is designated by the University as so qualifying
  • Leave Year – the 12-month period measured backward from the date each employee’s FMLA leave commenced
  • Serious Health Condition – an illness, injury, impairment or physical or mental condition that involves either inpatient care or continuing treatment by a health care provider
  • Inpatient Care – an overnight stay in a hospital, hospice or residential medical care facility, including a period of incapacity or any subsequent treatment in connection with the inpatient care
  • Continuing Treatment – includes any one or more of the following:
    • A period of incapacity of more than three (3) consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:
      • Treatment by a health care provider two (2) or more times within 30 days of the first day of incapacity; or
      • Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of a health care provider;
    • A period of incapacity due to pregnancy or prenatal care;
    • A period of incapacity or treatment for such incapacity due to a chronic serious health condition;
    • A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective; or
    • Any period of absence to receive multiple treatments by a health care provider
  • Covered Service member – a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness
  • Covered Military Member – the employee’s spouse, son, daughter or parent on active duty or call to active duty status
  • Active duty or call to active duty – duty under a call or order to active duty (or notification of an impending call or order to active duty) in support of a contingency operation as either a member of the reserve components, or a retired member of the Armed Forces or Reserve
  • Serious Injury or Illness – in the case of a member of the Armed Forces, including a member of the National Guard or Reserves, means an injury or illness incurred by the member in line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating
  • Qualifying Exigency – one or more of the following circumstances:
    • Short-notice deployment – to address any issues that may arise due to the fact that Covered Military Member received notice of the deployment seven (7) or less calendar days prior to the date of deployment;
    • Military events and related activities – to attend any official ceremony, program, or event sponsored by the military that is related to the Covered Military Member’s active duty; or to attend family support or assistance programs and informational briefings sponsored by the military;
    • Child care and school activities – to arrange for alternative childcare; to provide childcare on an urgent or immediate basis; to enroll or transfer a child to a new school; and to attend meetings with school staff that are made necessary by the Covered Military Member’s active duty or call to active duty;
    • Financial and legal arrangements – to make or update financial or legal arrangements related to the Covered Military Member’s absence while on active duty; and to act as the Covered Military Member’s representative with regard to obtaining, arranging or appealing military
    • benefits;
    • Counseling – to attend counseling sessions related to the Covered Military Member’s deployment or active duty status;
    • Rest and recuperation – to spend up to five (5) days with a Covered Military Member who is on short-term, temporary rest and recuperation leave;
    • Post-deployment activities – to attend ceremonies and reintegration briefings for a period of 90 days following the termination of the Covered Military Member’s active duty status; and to address issues arising from the death of a Covered Military Member ; and/or
    • Other activities that the University and employee agree qualify as an exigency

Reasons for FMLA Leave

An Eligible Employee is entitled to a total of 12-weeks of unpaid leave during each Leave Year in the event of one or more of the following:

  • The birth, adoption or placement for foster care of a son or daughter of the employee and to care for such child. (Leave must be taken during the 12-month period following the birth or placement, and must be taken in a single consecutive period and may not be taken intermittently or on a reduced schedule)
  • A serious health condition of a qualifying family member, i.e. spouse, son, daughter or parent of the employee, if the employee is needed to care for such family member
  • A serious health condition of the employee that makes the employee unable to perform any one or more of the essential functions of his or her job
  • Any “qualifying exigency” arising out of the fact that an employee’s spouse, parent, son or daughter is on active duty or has been called to active duty in the Armed Forces in support of a contingency operation.

An Eligible Employee is entitled to a total of 26-weeks of unpaid leave during a single 12-month period to care for a parent, son, daughter, spouse or next of kin who is a Covered Service member, regardless of whether the employee has taken leave for another FMLA qualifying reason in the past 12-months. Any leave taken under one or more of these circumstances will be counted against the employee’s total entitlement to FMLA leave for that Leave Year.

Paid Leave Benefit Coordination with FMLA Leave

FMLA leave under this policy is unpaid leave. If paid sick time is available, the employee is required to exhaust all paid sick time upon the commencement of, and concurrently with, FMLA leave (unless the employee’s own serious health condition has caused the leave and the employee is receiving workers’ compensation benefits). Paid sick time will run concurrently with and be counted toward the employee’s total 12-week or 26-week period of FMLA leave.

Employees on leave that qualifies both as workers’ compensation leave and FMLA leave who are offered a light duty position will have the option of remaining on FMLA leave without pay (and foregoing the light duty position and additional workers’ compensation benefits) or accepting the light duty position. If the employee accepts the light duty position, then the employee’s right to job restoration (as described below) runs through the end of the applicable Leave Year. If the employee accepts light duty, then s/he retains the right to be restored to the same position the employee held at the time his or her FMLA leave commenced or to an equivalent position.

Intermittent or Reduced Scheduled Leave

FMLA leave may be taken intermittently or on a reduced work schedule basis. If FMLA leave is taken intermittently or on a reduced schedule basis, the University may require the employee to transfer temporarily to an available alternative position with an equivalent pay rate and benefits, including a part-time position, to better accommodate recurring periods of leave due to foreseeable medical treatment.

Every employee is obligated to make a reasonable effort to schedule medical treatment so as not to unduly interrupt University operations. Any employee who needs an intermittent or reduced schedule leave shall submit a FMLA Request Form and the proper medical certification, Form WH-380-E, regarding the need for such intermittent or reduced schedule leave. As in the case for other FMLA leaves, the University may require a second or third medical certification. Prior to the commencement of any intermittent or reduced schedule leave, the employee requesting intermittent or reduced scheduled leave must advise the University of the reasons why the intermittent/reduced scheduled leave is necessary and of the schedule for treatment, if applicable. The employee and University shall attempt to work out a schedule for such leave that meets the employee’s needs without disrupting University operations.

Employee Notice Requirement

Employees are required to provide the University with sufficient information to make it aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave. Sufficient information may include the following: that the employee is unable to perform his or her job functions; that the employee’s family member is unable to perform his or her daily activities; that the employee or his or her family member must be hospitalized or undergo continuing treatment; or the circumstances supporting the need for military family leave. When an employee seeks leave due to a FMLA-qualifying reason for which the University has previously provided FMLA-protected leave, the employee must specifically reference the qualifying reason for the leave and the need for “FMLA” leave.

If the need for leave is foreseeable, the employee is required to provide such notice to the Human Resources Department at least 30 days before the commencement of the leave, unless impracticable to do so under the circumstances, in which case notice must be given as soon as possible, generally the same or the next business day. The employee also must follow any University policy requiring advance notice, reasons for leave and anticipated start and duration of the leave. Failure to provide advance notice or follow University policy when the need for leave is foreseeable may result in delay or denial of FMLA leave. If the leave is not foreseeable, the employee must provide notice to the University of need for leave as soon as practicable, and must follow the University’s normal call-in procedures, as set forth in Section 5.2 and 5.4 of this Manual. Failure to follow University call-in procedures, absent unusual circumstances, will result in delay or denial of the leave.

In case of planned medical treatment for a serious health condition, the employee is required to make a reasonable effort to schedule the treatment so as not to disrupt the operations of the University.

Employees are required to give additional notice as soon as practicable whenever there is a change in the dates of scheduled leave. Rochester University requires that the employee’s health care provider complete a return to work certification that specifically addresses whether the employee is able to perform the essential functions of his or her job before the employee can return to work. If the University has a “reasonable safety concern,” it may also require periodic return to work certifications prior to the employee’s return from intermittent FMLA leave, up to once every 30 days. A “reasonable safety concern” means a reasonable belief of significant risk of harm to the individual employee or others.

Upon receiving sufficient notice of an employee’s need for FMLA-qualifying leave, Rochester University will notify the employee of his or her eligibility to take FMLA leave within five (5) business days of the request, absent extenuating circumstances.

Application and Medical Certification

A leave to care for the employee’s own serious health condition, or the serious health condition of a covered family member, must be supported by a medical certification completed by the health care provider for the employee or the covered family member. A qualifying exigency leave or a leave to care for a Covered Service member with a serious injury or illness must also be supported by a certification. Forms WH-380-E, WH-380-F, WH-384 and WH-385 are available on the RU Faculty/Staff portal.

The employee must return a complete and sufficient copy of the appropriate certification to the HR Department within 15 calendar days of receiving the certification, unless it is not practicable. If the employee returns an incomplete or insufficient certification, then the University shall advise the employee in writing what additional information is necessary to make the certification complete and sufficient. In order to cure the deficiency, the employee must then return a complete and sufficient certification to the HR Department within seven (7) calendar days. If the employee fails to cure a deficiency in a certification, or fails to return a certification, within the prescribed time period, the University may deny the leave.

A HR representative (other than the employee’s direct supervisor) may contact the employee’s health care provider to clarify or authenticate the medical certification submitted for leave for the employee’s own serious health condition or the serious health condition of a family member. If the University has reason to doubt the validity of a medical certification, the employee will be required to obtain a second or third opinion at Rochester University’s expense. Failure to comply with these certification requirements will result in the delay, denial or termination of leave.

An employee who will be on a FMLA leave for more than one (1) week is required to call a HR Representative weekly to report when and if the employee expects to return to work. The University may request recertification at any time during the course of the leave for the employee’s own serious health condition, if: (1) the employee requests an extension of leave; (2) the circumstances of the employee’s condition as described in the previous certification have changed significantly, or (3) if the University has reason to suspect that an employee on FMLA leave has fraudulently obtained the FMLA leave. If desired by Rochester University, a second or third certification in the manner provided above may be required. If the employee’s leave to care for his or her own serious health condition or that of a family member is expected to last more than 30 days, the University will require a new certification from the employee’s health care provider when leave is scheduled to expire, or every 6 months, whichever occurs earlier.

When the University learns of an FMLA reason for leave after a leave has commenced under another policy, the University will designate the leave as FMLA-qualifying from the commencement of the leave. Employees are required to cooperate in providing the HR department with information needed to make this determination.

Continuation of Group Health Benefits

Rochester University will maintain the employee’s coverage under a group health plan during the period of FMLA leave under the same terms and conditions as though the employee were actively working. During the leave, the employee will be required to continue to make all premium payments that he/she otherwise would have had to make if actively employed. Where feasible, the University will advise the employee concerning the necessary arrangements for such payments prior to the commencement of the leave. If the employee fails to return to work following the expiration of FMLA leave for a reason other than a serious health condition or circumstances beyond the employee’s control, Rochester University will be entitled to the repayment by the employee of any premiums paid by Rochester University during the leave. Failure to make timely premium payments may result in the termination of coverage. An employee on FMLA leave should deliver payment of the employee’s portion of such premium to the HR Department prior to the first work day of each month. Failure to make prompt payment of the employee’s portion of such premium may result in the loss of medical insurance coverage for the duration of the FMLA leave, but upon the employee’s return to work, the medical insurance will be restored as of the date that the employee returns. If the employee does not return from FMLA leave or returns to work, but does not remain an active employee for at least 30 days, Rochester University may seek to recover the amount paid for such insurance premiums from the employee.

An employee on FMLA leave shall be responsible for the payment of the full premium for all other insurance, pensions and other benefits. Failure of the employee to pay the entire premium for such items shall result in their lapse for the duration of the FMLA leave. If the employee returns from FMLA leave, all such insurance, pension and other benefits shall be restored without any break in service.

An employee shall not accrue any additional vacation, sick or other benefits based upon time worked for the time that he or she is on FMLA leave.

Return to Work / Fitness-for-Duty Certification

Consistent with University practice, before returning to work following a medical leave due to the employee’s serious health condition, the employee will be required to present a return to work certification from his/her health care provider that the employee is medically able to resume work and to perform the essential functions of his or her job. If the date on which an employee is scheduled to return to work from an FMLA leave changes, the employee is required to give notice of the change, if foreseeable, to the University within two (2) business days of the change.

Subject to the limitations below, an employee returning from FMLA leave will be restored to the position of employment held when the leave commenced or to an equivalent position. Job restoration may be denied if conditions unrelated to the FMLA leave have resulted in the elimination of the employee’s position or if the employee qualifies as a “key employee” (generally the highest paid 10% of the workforce). Key employees may be denied job restoration if it would cause substantial and grievous economic injury to the University, in which case the key employee will be notified of this decision.

In summary, upon expiration of a FMLA leave, an employee who returns to work shall be restored to the same or an equivalent job, if the employee shall have:

  • Called the Director of Human Resources in accordance with terms above;
  • Furnished the Director of HR with proper certifications and re-certifications in accordance with terms above;
  • Submitted to any second or third examination by a health care provider upon request of the University;
  • Furnished the Director of HR with a medical certification of the employee’s ability to return to work and to perform the essential functions of the job; and
  • Returned to work immediately upon expiration of the FMLA leave.

Failure to call the HR Department weekly, to provide the required medical recertification or to return to work immediately upon expiration of a FMLA leave may result in termination of the employee. Failure to furnish a fitness-for-duty certification of the employee’s ability to return to work and to perform the essential functions of the job may result in the delay of job restoration or the termination of the employee.

Employer Responsibilities

Covered employers must inform employees requesting leave whether they are eligible under FMLA. If they are, the notice must specify any additional information required as well as the employees’ rights and responsibilities. If they are not eligible, the employer must provide a reason for the ineligibility.

Covered employers must inform employees if leave will be designated as FMLA-protected and the amount of leave counted against the employee’s leave entitlement. If the employer determines that the leave is not FMLA-protected, the employer must notify the employee.

Unlawful Acts by Employers

FMLA makes it unlawful for any employer to:

  • Interfere with, restrain, or deny the exercise of any right provided under FMLA;
  • Discharge or discriminate against any person for opposing any practice made unlawful by FMLA or for involvement in any proceeding under or relating to FMLA.

Enforcement

An employee may file a complaint with the U.S. Department of Labor or may bring a private lawsuit against an employer. FMLA does not affect any Federal or State law prohibiting discrimination, or supersede any State or local law or collective bargaining agreement which provides greater family or medical leave rights.

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