The University and its employees have all of the rights and responsibilities established by the Family and Medical Leave Act (FMLA) to the extent provided by law. Amended in 2008, the FMLA provides eligible employees with two types of leave: (1) the basic 12-week leave entitlements (Basic FMLA Leave); and (2) the military family leave entitlements (Military Family Leave).
Employees are eligible for FMLA leave is they have been employed by the University for twelve (12) months and have worked 1,250 hours or more during the twelve-month period immediately preceding the leave.
Basic FMLA Leave
The FMLA provides that an eligible employee is entitled to take up to a total of twelve (12) work weeks of leave during a twelve-month period for one or more of the following reasons:
- for a serious health condition that makes the employee unable to perform his or her job (including absences covered by Workers’ Compensation, NYS Disability, and paid sick days);
- to care of a spouse, child, or parent who has a serious health condition; and/or
- the birth of the employee’s newborn child and/or to care for the newborn child during the first 12 months following birth; or
- the placement of a child with the employee for adoption or foster care and/or to care for the child during the first 12 months following placement.
The University uses a “rolling” twelve-month period measured backwards from the date an employee requests FMLA leave to determine an employee’s leave entitlement for Basic FMLA Leave.
For purposes of Basic FMLA Leave, “son” or “daughter” means a biological, adopted or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under age 18, or age 18 or older and incapable of self-care because of a physical or mental disability.
Serious Health Condition
A serious health condition is an illness, injury or condition that requires “inpatient care” that involves an overnight stay in a medical care facility or “continuing treatment” by a health care provider for a condition that prevents the employee from performing the functions of the employee’s job, or prevents the eligible parent, son or daughter from participating in school or other daily activities.
“Continuing treatment” is established in several ways, including: a period of incapacity of 3 or more consecutive calendar days plus two visits to a health care provider or one visit and a regiment of continuing treatment; incapacity due to pregnancy; or incapacity due to a chronic health condition. Other circumstances may also qualify for continuing treatment needed to establish a serious health condition.
The Basic FMLA Leave related to the serious health condition of an employee or a family member may be scheduled on an intermittent or reduced schedule basis when medically necessary (e.g., to receive recurring physical therapy or chemotherapy treatment). However, an employee taking foreseeable leave on an intermittent or reduced-schedule basis for planned medical treatment may be temporarily assigned to another position with equivalent pay and benefits that better accommodates the leave.
In the case of Basic FMLA Leave related to the serious health condition of the employee or a family member, the employee must make a reasonable effort to schedule planned medical treatments so as not to unduly disrupt the operation of the University and, if possible, must request a leave for planned medical treatments at least 30 days in advance. When 30 days notice is not possible, the employee must give notice as soon as practicable within 1 or 2 business days of learning of the need for leave, except in extraordinary circumstances. Failure to provide such notice may be grounds for delaying the start of FMLA leave or denying the request for leave. Employees may be asked to provide medical certification of the serious health condition requiring the Basic FMLA Leave.
In general, FMLA leaves are unpaid, unless otherwise stated in this Policy. When leave is taken because of the serious health condition of the employee or a family member. the employee must (except as may otherwise be required by applicable law):
- use as part of the leave any accrued sick time; and
- use accrued vacation benefit time to which the employee is otherwise entitled (i.e., use up allowable paid and unpaid leave days concurrently).
The University reserves the right to run FMLA Leave concurrently with any time off from work that the employee may take for his/her own injuries that may be covered pursuant to Workers’ Compensation or applicable state disability laws.
In the case of FMLA Leave related to care of a newborn or child placed with an employee for adoption or foster care, the employee must make the leave request at least 30 days in advance, or as close to 30 days as possible. If both parents work at the University. they are entitled to a combined total of 12 weeks leave in the twelve-month period immediately following the birth or placement of the child.
When FMLA Leave is taken to care for a newborn or child placed with a staff employee for adoption or foster care, the staff employee must use any accrued paid vacation benefit time to which he or she is otherwise entitled as part of the leave, i.e., must use up allowable paid and unpaid leave days concurrently.
Military Family Leave
The National Defense Authorization Act amended the FMLA to create new leave categories for families of military servicemembers. The two new FMLA leave entitlements are (1) “Qualifying Exigency Leave” and (2) “Military Caregiver Leave”.
The same eligibility criteria that apply to employees for Basic FMLA Leave are also applied to employees for Military Family Leave.
Qualifying Exigency Leave – Employees meeting the eligibility requirements may be entitled to use up to 12 weeks of their Basic FMLA Leave entitlement to address certain qualifying exigencies.
Leave may be used if the employee’s spouse, son, daughter or parent is on active duty or called to active duty status in the National Guard or Reserves in support of a contingency operation, or if the individual is called to active duty and is a returned member of the Regular Armed Forces or Reserves. An employee whose family member is on active duty or called to active duty status in support of a contingency operation as a member of the Regular Armed Forces is not eligible to take leave because of qualifying exigency. Qualifying exigencies may include:
- Short notice deployment (up to 7 days of leave);
- Attending certain military events and related activities;
- Arranging for alternative childcare and attending certain school meetings;
- Addressing certain financial and legal arrangements;
- Spending time with a covered servicemember who is on short-term rest and recuperation leave (up to 5 days of leave);
- Attending certain counseling activities;
- Attending post-deployment activities that occur up to 90 days after the termination of the covered servicemember’s active duty status; and
- Other activities arising out of the servicemember’s active duty or call to active duty status which are agreed upon by the University and the employee.
The relevant 12-month period used to determine eligibility for Qualifying Exigency Leave will be calculated on a rolling basis, measured backwards from the date the employee uses any such leave.
Military Caregiver Leave – There is also a special leave entitlement that permits employees who meet the eligibility requirements for FMLA leave to take up to 26 weeks of unpaid leave during a single 12-month period to care for an immediate family member (spouse, child, parent) or next of kin (nearest blood relative) who is a covered servicemember.
A “covered servicemember” is a current member of the Armed Forces, including a member of the National Guard or Reserves, who has incurred a serious injury or illness in the line of duty while on active duty that may render the servicemember medically unfit to perform the duties of his or her office, grade, ranking or rating, and for which he or she is undergoing medical treatment, recuperation or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list.
The 12-month period for Military Caregiver Leave is defined as the 12-month period measured forward from the date an employee’s first FMLA leave to care for the covered servicemember begins. During this 12-month period, an eligible employee’s FMLA leave entitlement is limited to a combined total of 26 workweeks of leave for any FMLA qualifying reason.
In cases where a husband and wife are both employed by the University, the combined total of leave taken to care for a servicemember may not exceed 26 weeks in a single 12-month period.
In the case of leave to care for a family member who is wounded while on active duty, leave may be taken as an unpaid leave, intermittently or as a reduced schedule basis when medically necessary (e.g., to receive recurring physical therapy or chemotherapy treatment). However, an employee taking foreseeable leave for planned medical treatment on an intermittent or reduced schedule basis may be temporarily assigned to another position with equivalent pay and benefits that better accommodates the leave.
- The employee must make a reasonable effort to schedule planned medical treatments so as not to unduly disrupt the operation of the University and, if possible, must request a leave for planned medical treatments at least 30 days in advance. When 30 days notice is not possible, the employee must give notice as soon as practicable. Employees may be asked to provide medical certification, or other appropriate verification, in order to be approved for the leave.
- When leave is taken to care for a family member that is wounded, the employee must (except as may otherwise be required by applicable law):
- use as part of the leave any accrued sick time; and
- use accrued vacation benefit time to which the employee is otherwise entitled (i.e.. use up allowable paid and unpaid leave days concurrently).
Maintenance of Benefits
The same group health benefits will be provided during the FMLA leave that were provided before the FMLA leave; employees who are responsible for a portion of the required contributions must continue to make those payments. If an employee’s portion of the required contribution is more than 30 days late, coverage may be canceled if payment is not received after adequate notice has been provided.
Return To Work
Whenever possible, employees who return to work at the end of approved FMLA leave will be restored to their previous position with equivalent pay, benefits and other terms and conditions of employment. An exception to this restoration provision may be made with respect to “key employees” (e.g., salaried employees in the top 10% of the University’s payroll).
In accordance with federal law, the University shall post a notice summarizing the main provisions of the FMLA, including enforcement of the law. A copy of the notice posting is also attached to this Policy.
Links to Procedures and Related Information
Amended: May 2011
Date: February 1993
Date: February 2012