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Family Leave Act (FMLA)

HROG Section:
Work/Life Benefits
Document Title:
Family Medical Leave
Initial Date Posted:
Sept. 1, 1997
Board Approval:
Applies To:
Employees and Dependents
Source:
District Human Resources
Related TASB Policy:
Last Date Revised:
March 7 , 2000
Spring 2008

Purpose

Under the Family Medical Leave Act (FMLA) 29 U.S.C. 2611, an employee who has been employed by the District for at least 12 months and for 1,250 hours during the previous 12-month period shall be entitled to a total of 12 work weeks of leave without pay, without loss of any employment benefit accrued prior to the beginning of the leave, during any 12-month period for one or more of the following reasons:

  • Because of the birth or adoption, including placement for foster care, of an employee's child and in order to care for the child, provided the leave is taken within 12 months of the birth, adoption or placement of the child. By written agreement between an employee and the District, this leave may be taken intermittently or on a reduced leave schedule.

  • To care for the employee's spouse, child or parent if the spouse, child or parent has a serious health condition.

  • Because of the employee's serious health condition that makes the employee unable to perform functions of his or her position.

Additionally, FMLA Leave time (as noted) may be awarded for the following reasons:

  • 26 weeks of leave to care for a family member who is injured while on active duty (caregiver leave); and 
  • 12 weeks of leave for urgent needs related to a family member’s current active military duty or a call to active military duty (active-duty leave).

Background

Definitions

The work year is defined as September 1 through August 31 of each year.

"Instructional Employees" are those whose principal function is to teach and instruct students in a class, a small group or an individual setting. This term does not include counselors or Learning Resource Center faculty.


A "serious health condition" that entitles an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves:

  • Inpatient care (i.e., an overnight stay) in a hospital, hospice or residential medical care facility, including any period of incapacitation (inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore or recovery there from) of any subsequent treatment in connection with such inpatient care;

  • Continuing treatment by a health care provider for a period of incapacity (as described above) for:

  • More than three consecutive calendar days, and any subsequent treatment or period of incapacitation relating to the same condition.

  • Pregnancy and/or prenatal care.

  • Treatment for such incapacity due to a chronic serious health condition (one that requires periodic visits for treatment by a health care provider, continues over an extended period of time, and may cause episodic rather than a continuing period of incapacity).

  • A condition for which treatment may not be effective and for which the employee or family member is under continuing supervision of health care provider (i.e., Alzheimer's, a severe stroke or the terminal stages of a disease).

  • The purpose of receiving multiple treatments 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, severe arthritis or kidney disease.

For FMLA leave purposes, a "health care provider" is defined as any of the following:

  • 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 verified by X-ray to exist) authorized to practice in the state (meaning that the provider must be authorized to diagnose and treat physical or mental health conditions without supervision by a doctor or other health care provider) and performing within the scope of their practice as defined by 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 who are listed with the First Church of Christ, Scientist in Boston, Massachusetts.

  • Any health care provider from whom an employer or the employer's group health plan's benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits.

  • A health care provider listed above who practices in a country other than the United States, who is authorized to practice in accordance with the law of that country, and who is performing within the scope of his or her practice as defined under such law.

Eligibility

Eligibility for Employee and Family Medical Leave

An employee must be employed least 12 months and 1,250 hours prior to the commencement of leave.  The 12 months do not have to be consecutive.  A rehired employee in a benefits eligible position may be eligible if the employee worked 12 months and 1,250 hours during the time of prior employment.

The employee may qualify for FMLA if unable to work at all due a serious medical condition and unable to perform any one of the essential functions of the position within the meaning of the American with Disabilities Act.

Employees may be approved to take medical leave for the birth, adoption or placement of a child.  This leave must be completed within 12 months of the birth, adoption or placement of the child.

Medical leave can be taken to care for a spouse, common-law spouse or significant other living in the household, a child under the age of 18 or over age 18 if the child is incapable of self care, biological parents or one individual that acted as a parent in place of the biological parents.   

Procedures

Medical Certification

If an employee fails to provide medical certification after being requested to do so, the leave may be denied until the certification is submitted.  The Human Resources office can deny the continuation of unforeseeable leave if the employee fails to comply with the requested certification.  Fifteen calendar days are given to comply or if due to a medical emergency, a reasonable timetable is given.

An employee who refuses to comply with the certification request is not entitled to FMLA until the requirement is met.  If the employee takes the leave it may be considered unapproved and the employee may be disciplined as appropriate under the policies and procedures of the DCCCD.

Employers are allowed to require periodic recertification of medical conditions to support leave, but no more than every 30 days under FMLA guidelines.

If the employee is using accrued sick leave or other paid leave for the entire duration of the illness, he may refuse to provide medical certification as this leave is not counted against the FMLA entitlement.  However, the employee must give reason for any absence that occurs and must provide Physician statements as deemed necessary by the Human Resources office and/or by the employee’s supervisor. 

Maintenance of Health Benefits

During any period that an eligible employee takes FMLA leave, the District shall maintain coverage under any "group health plan" for the duration of the leave at the level and under the conditions coverage would have been provided if the employee had continued in active duty with the District. Any share of group health plan premiums that had been paid by an employee before FMLA leave may continue to be paid by the employee during FMLA leave. Payment of the premium is due at the same time as if made by payroll deduction.

The District shall not require employees to use family and medical leave act concurrently with all applicable paid leave, and short-term disability leave.  Employees may use this leave after exhausting all applicable paid and short-term disability leave.  For use of family and medical leave with workers' compensation benefits, see Workers' Compensation.

Intermittent Leave

An eligible employee other than an instructional employee may take leave intermittently or on a reduced leave schedule when medically necessary to care for a spouse, parent or child or to receive planned medical treatment for the employee. The minimum leave increment is one hour.

An eligible instructional employee who requests leave to care for a spouse, parent or child; because of the employee's own serious health condition that is foreseeable based on planned medical treatment and who would be on leave for greater than 20 percent of the total number of work days in the period during which the leave would extend, may be required to choose either to: 

Take leave for periods of a particular duration, not to exceed the duration of the planned medical treatment; or

Transfer temporarily to an alternative position, if available, offered by the District for which the instructor is qualified and that has equivalent pay and benefits and better accommodates recurring periods of leave than the instructor's regular employment position.

Child Care/Adoption

The District may allow any of its employees to take intermittent leave for child care and/or adoption purposes, but only if an eligible employee complies with the 30 days' notice required for leave that is foreseeable.

Workers' Compensation

The District shall not require employees to use family and medical leave concurrently with workers' compensation leave when eligible.

Combined Leave for Spouses

If both spouses are employed by the District, each is treated as an independent employee for purposes of family leave.  This means that each one may qualify for up to 12 weeks of benefits under the family medical leave act. 

Notice by Employees Foreseeable

An employee shall provide at least 30 days' notice before FMLA leave is to begin if the need for leave is foreseeable based on the expected birth, placement for adoption or foster care or planned medical treatment for a serious health condition of the employee or of a family member. If 30 days' notice is not practicable, such an employee not knowing approximately when leave will be required to begin, a change in circumstances, or a medical emergency, notice must be given as soon as practicable.

"As soon as practicable" means as soon as possible and practical taking into account all of the facts and circumstances in the individual case. Ordinarily, it would mean at least verbal notification to the employer within one or two business days of when the need for leave becomes known to the employee.

Employee Responsibility

HR Responsibility

The approval process for FMLA is established and handled by the location Human Resources office. All correspondence related to the leave is tracked and monitored through the location. Original correspondence related to FMLA leave will be forwarded to the District Human Resources office after the employee has completed the leave and/or terminated.

Absence

Under the guidelines effective March 7, 2000, employees should be notified of eligibility for family medical leave when all paid leave has been exhausted and when the absence is related to treatment by a health care provider. This includes short-term, chronic, extended or permanent leave or physical therapy. This notification should occur after two days of leave without pay.

If the leave has been intermittent, the leave must be medically necessary and the employee must be unable to perform the duties presented in their generic job description during their normal work hours (physician’s appointment and/or therapy).

When the employer, supervisor or Human Resources office is made aware of the absence, it is not necessary for the employee to apply for the leave; however, employees should be made aware that advance notice is a requirement of the FMLA. However, if the Human Resources office learns that an employee absence qualifies as an FMLA leave, it may retroactively designate the entire absence as FMLA leave if, and only if, it so informs the employee before the employee returns to work.

With the notification, the Human Resources office should notify the employee in writing of their rights to FMLA and the maximum amount of time the employee has available under FMLA. The Human Resources office will request that the employee’s Physician completes a “Certification of Physician under the Family Medical Leave Act”.  Initial Physician’s statement is acceptable; however, the physician is required to complete the certification.  The employee is required to return the form to the location Human Resources office immediately.

It is the responsibility of the location Human Resources office to request and maintain appropriate documentation for each request and to make necessary system adjustments to affect payroll benefits and leave processing.

Leave Calculation and Tracking

Beginning on March 7, 2000, an employee is eligible to use accrued paid leave for an illness. As long as the employee is using paid leave, there is no FMLA entitlement. 

When the employee reaches a leave without pay status for a full month, the employee is eligible for the FMLA.  Eligibility includes 12 weeks or 60 working days of DCCCD unpaid leave.  Leave is calculated on a fiscal year basis (September through August), or a year commencing on the employee’s anniversary date, whichever comes first.

Integration of Benefits and Leave

An employee who has accrues paid leave must use all paid leave before using his FMLA entitlement.  When the employee exhausts all paid leave and enters a leave without pay status, the employee is entitled to FMLA. The employee is charged leave without pay until the FMLA expires or the employee returns to work, whichever comes first.

If eligible the employee may apply for the Catastrophic Sick Leave Pool.  If approved, this paid leave must be used before using the entitlement to FMLA.

The employee may apply for other forms of paid benefits such as short or long-term disability or workers compensation. These benefits are not affected by FMLA entitlement, as they are not paid leave by the DCCCD. See guidelines.

Continuation of Benefits 

An employee in a leave without pay status under FMLA group health coverage must be continued. There is no obligation for the employee to continue optional insurance coverages, however, these coverages can be continued if the employee pays applicable premiums. Employees must be advised that they can choose to continue optional coverages while in a leave without pay status.

An employee with a TEXFLEX election in the Dependent Care Reimbursement Account will have their deductions suspended  during leave without pay and/or an election in the  Health Care Reimbursement Account must continue to contribute by paying the monthly contribution by check or money order.

You must report the names and social security number to the District Service Center Payroll office for reporting purposes.

Exceptions To Policy

Individuals who were already on Family Medical Leave prior to March 7, 2000, should complete that leave under the old rules. The new rules should be applied to all those who leave begins on or after March 7, 2000.

Other Notes

Quick List for FMLA Processing:

  • Employee requests Family Medical Leave by completing the form and returning it to the location Human Resources office.

  • Employee is notified that the Medical Certification must be completed by a Licensed Physician and returned by the employee.

  • Medical Certification is reviewed for approval.

  • If approved, the FMLA entitlement is given and input into the Colleague system.

  • If not approved, the employee is notified by letter, form and documentation is forwarded to the District Human Resources office.

  • The Location notifies the employee in writing of the approval and requests monthly updates of the medical condition.

  • The Location notified the employees of the beginning and ending date of the 12 weeks entitlement.

  • The Location notifies the employee of continuation of benefits under UGIP ERS rules with cost. If the employee is participating in a TEXFLEX account, the employee may continue to make the contributions or waive contributing during the time of FMLA.  The location notifies the DSC Payroll office of the Leave without pay status with a copy of the FMLA Request and the Continuation of Benefits form.

  • The location notifies the employee of the guidelines to use to return to work.

  • If light duty is indicated by the Physician, the Location reviews the medical certification under ADA guidelines.

  • If the employee returns to work fully fit to resume the essential functions of the position, the position, all benefits, insurance, TEXFLEX DCRA and all compensation are reinstated.

  • If the employee can not return to work and is deemed totally disabled, the location should review the employee’s benefits concerning other options for continuation of insurance coverages, and/or offer COBRA.

  • If the employee is a full-time faculty or a full-time administrator, the position can be held until the employee’s contract expires, unless the Employee voluntarily terminates employment.  After the continuation of benefits period has expired, the employee should be offered COBRA.

  • If the employee is on workers compensation, the position may be held under Worker’s Compensation State Guidelines. After the continuation of benefit period has expired, the employee should be offered COBRA. 


    The location forwards all forms, paperwork, and documentation to the District Human Resources office. This file is kept separate from the employees’ human resources file.