Family and Medical - FMLA Leave
Responsible University Officer(s):
- Vice President for Human Resources
- Director of Total Compensation
In accord with federal law, the University provides to eligible employees a leave of absence pursuant to the provisions under the Family and Medical Leave Act (FMLA).
Reasons for FMLA Leave
Eligible faculty and staff are able to use up to a total of 12 weeks of leave in any fiscal year with proper medical or other documentation for the following types of absences:
- An employee's own serious health condition
- The serious health condition of an employee's immediate family member
- Caring for a newborn or newly-placed adopted child or foster child
- Qualifying exigency arising out of an employee's immediate family member who is a covered servicemember on covered active duty
Eligible faculty and staff who are immediate family members or next of kin of covered servicemembers are able to use up to a total of 26 weeks of leave during a single 12-month period to care for the servicemember with a serious illness or injury incurred or aggravated in the line of duty.
All types of University faculty and staff members, including graduate assistants and student employees, are eligible for FMLA leave if they have worked at the University for at least 12 months. These 12 months need not be consecutive; however, if an employee has had a break in University service of greater than seven years, prior periods of employment will not be counted subject to certain exceptions.
In addition, to be eligible, employees must have worked at least 1,250 hours in the 12 months preceding commencement of the leave. Employees returning from Uniformed Services Employment and Reemployment Rights Act (USERRA)-covered service are credited with hours of service that would have been performed but for the USERRA-covered service.
Protections of FMLA Leave
An employee returning to work following an FMLA leave will be able to return to the same job or an equivalent position. Any benefits, seniority, etc., in place immediately before the leave will be reinstated provided that the employee returns to work the first work day following the end date of the FMLA leave or any approved extended leave up to 30 days following the FMLA leave.
Substitution of Paid Leave
An employee is required to use, concurrently with the FMLA leave, the following paid leaves in the order listed: (1) sick leave available for use, as defined by the contract, rule, or policy governing the reason for the leave; (2) accrued compensatory time, if available; and (3) vacation leave in excess of 10 days to which the employee is entitled. Where the FMLA leave is paid as a workers’ compensation absence, then the employee is not required to use other forms of paid leave. An eligible employee has a right to take FMLA leave even if unqualified to take paid leave.
Provisions and Terms
For purposes of the FMLA leave, union-represented employees are first covered by FMLA language as stated in their respective collective bargaining agreements:
- Unit 3 Service Maintenance & Labor (Teamsters Local 320)
- Unit 6 Clerical & Office (Locals 3800 and 3801 AFSCME Council 5)
- Unit 7 Technical (Locals 3937 and 3801 AFSCME Council 5)
- Unit 9 University Education Association (UEA) – UMD and UMC Faculty
Documentation and Record Keeping
Responsible administrators/supervisors must provide employees who request or are placed on a FMLA-qualifying leave with appropriate notification. FMLA notification provides the specific obligations and expectations of the FMLA leave and any consequences of failure to meet the obligations. In addition, responsible administrators/supervisors must provide employees with notice regarding whether the leave is or is not being designated as FMLA leave. The FMLA emphasizes record keeping and notifying employees of their rights. The law requires that specific "payroll" information be recorded and maintained on individuals who take FMLA leaves. This data is subject to audit by the Department of Labor.
To confirm a qualifying family relationship exists, the University may require employees requesting leave to provide reasonable documentation, such as a birth certificate, court document, or written statement by the employee indicating the family relationship.
REASON FOR POLICY
This policy implements Board of Regents Policy: Employee Work-Life and Personal Leaves. The University provides a family and medical (FMLA) leave in accordance with federal laws and regulations. FMLA is intended to allow employees to balance their work and family life by taking reasonable unpaid leave for a serious health condition, for the birth or adoption of a child, and for the care of an immediate family member who has a serious health condition or who is called to certain active duty status in the Armed Forces. The Act is intended to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity.
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- Authorized Health Care Provider
- A doctor of medicine or osteopathy who is authorized to practice medicine or surgery by the state where they practice. The definition also includes: podiatrists, dentists, clinical psychologists, optometrists, chiropractors (related to spinal manipulation), nurse practitioners, nurse-midwives, clinical social workers, physician assistants, and listed Christian Science practitioners. These professionals, including health care providers practicing in a country other than the United States, must be authorized to practice in that state/country and must be performing within the scope of their practice as defined under state law.
- Covered Servicemember
- A current member of or member on the temporary disability retired list of the Armed Forces, including the Regular Armed Forces and National Guard or Reserves. This term also includes any veteran who was discharged or released under conditions other than dishonorable up to five years prior to the start date of FMLA leave. For military caregiver leave, the covered servicemember's serious injury or illness eligible for FMLA leave are described in 29 CFR 825.309.
- Employee's Parent
- A biological, adoptive, step or foster father or mother or an individual who stands or stood in loco parentis to an employee when the employee was a child.
- Employee's Son or Daughter
- The employee’s biological, adopted, or foster child, stepchild, legal ward, or a child of the employee standing in loco parentis who is either under the age of 18 or age 18 or older and incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence. For FMLA leave related to qualifying exigency or military caregiver, the child may be of any age and capacity of self-care is inapplicable.
- Employee's Spouse
- The employee’s husband or wife as recognized under Minnesota law.
- Immediate Family Member
- The employee’s spouse, son or daughter, or parent.
- Next of Kin
- The nearest blood relative to the covered servicemember other than the spouse, parent, son, or daughter. In some cases, there is an only next of kin, such as where court decree or statutory provisions grant legal custody or the servicemember has specifically designated this individual in writing.
- Qualifying Exigency
- One of the following situations where an immediate family member (a) is deployed to a foreign country as a member of the Regular Armed Forces or (b) is on or receives a federal call to active duty to a foreign country or in support of a contingency operation as a member of the Reserves or a retired member of the Regular Armed Forces or Reserves:
- Short-notice deployment activities (limited to seven calendar days of FMLA leave): to address any issues arising from the impending call or order to active duty if the military servicemember receives seven or less calendar days notice prior to the date of deployment;
- Military events and related activities: to attend any official military-sponsored ceremony, program, or event or certain family support or assistance programs and informational briefings related to the call or active duty;
- Childcare and school activities of the military servicemembers’ child: to make alternative childcare arrangements, to provide childcare on an urgent, immediate need basis, to enroll in or transfer schools or daycare facilities, or to attend meetings with school or daycare staff;
- Financial and legal arrangements: to make or update financial or legal arrangements to address the military servicemember’s absence and/or to act as the military servicemember’s representative before a federal, state, or local agency for purposes of obtaining, arranging, or appealing military service benefits;
- Counseling activities: to attend counseling provided the need arises from the call to or active duty status, it is provided by someone other than a healthcare provider, and it is for the employee, the military servicemember, or the servicemember’s child;
- Rest and recuperation activities (limited to 15 workdays per instance): to spend time with the military servicemember who is granted short-term, temporary rest and recuperation leave;
- Post-deployment activities: to attend military-sponsored, official ceremonies or programs or to address issues that arise from the death of the military servicemember while on active duty status;
- Parental care of the military servicemember's parent who is incapable of self-care; to make alternative care arrangements, to provide care on an urgent, immediate basis, to admit to or transfer care facilities, or to attend meetings with care facility staff; and
- Additional activities: to address other issues provided the need arises out of the military servicemember’s call to or active duty status and the University and supervisor/responsible administrator agree that the leave is considered qualifying exigency and upon the timing and duration of the leave.
- Serious Health Condition
- An illness, injury, impairment, or physical or mental condition that involves one of the following:
- Hospital Care: Inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility, including any period of incapacity or subsequent treatment in connection with or consequent to such inpatient care.
- Absence Plus Treatment: A period of incapacity of more than three consecutive, full calendar days (including any subsequent treatment or period of incapacity relating to the same condition), that also involves:
- Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse or physician's assistant under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider, or
- Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.
- Pregnancy: Any period of incapacity due to pregnancy or for prenatal care.
- Chronic Conditions Requiring Treatments: A chronic condition which
- Requires periodic visits (at least twice a year) for treatment by a health care provider or by a nurse or physician's assistant under direct supervision of a health care provider; and
- Continues over an extended period of time (including recurring episodes of a single underlying condition); and
- May cause episodic rather than a continuing period of incapacity (e.g. asthma, diabetes, epilepsy, etc.)
- Permanent/Long-Term Conditions Requiring Supervision: A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective. The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider. Examples include Alzheimer's, a severe stroke, or the terminal stages of a disease.
- Multiple Treatments (Non-Chronic Conditions): Any period of absence to receive multiple treatments (including any period of recovery) by a health care provider or by a provider of health care services under orders of, or on referral 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, full calendar days in the absence of medical intervention or treatment such as cancer (chemotherapy, radiation, etc.) severe arthritis (physical therapy), kidney disease (dialysis).
- Notify the supervisor of a need for foreseeable FMLA leave with at least 30 days notice whenever possible, so as not to unduly disrupt the department's operation.
- Notify the supervisor of a need for unforeseeable FMLA leave as soon as practicable.
- Provide medical or other certification to the supervisor/responsible administrator to support any FMLA leave.
- Responsible Administrators/Supervisors
- Provide employees with FMLA notifications and forms.
- Determine and communicate to the employee a determination on eligibility and designation of FMLA leaves.
- Administer FMLA leaves.
- Keep appropriate documentation in accord with the terms of this policy and its procedures.
- Office of Human Resources
- Advise supervisors/responsible administrators on FMLA leave management
- Inform employees of FMLA leave provisions and requirements.
- Board of Regents Policy: Employee Work-Life and Personal Leaves
- Required documentation: Copies of required documentation may be printed from the Forms section of this policy.
- Other Policy Sources: Specific contract, policy, or rule language pertaining to leaves for an employee. Refer to those that are applicable to the specific employee group.
- Statutes: 29 U.S.C. Sec. 2601 et. seq. Also relevant are federal regulations issued by the U.S. Department of Labor.
- March 2013 - Policy updated to comply with U.S. Department of Labor’s Final Rules. Revisions include:
- Expanding military “qualifying exigency” to include parental care activities, increase rest and recuperation leave maximum to 15 days, and clarify covered active duty;
- Crediting USERRA-covered service absence towards hours worked for leave eligibility;
- Clarifying “covered servicemember” to include veterans and modifying the definition of their serious injuries and illnesses.
- Eliminating University Forms UM1702 and UM1703 and replacing with reliance on federal-provided forms for military family leave.
- January 2010 - Policy updated to comply with 2010 National Defense Authorization Act. Revisions include:
- Expansion of military caregiver leave (including in revised form UM1702) to encompass certain veterans;
- Expansion of definition of "qualifying exigency" (including in revised form UM1703) to include members in the Regular Armed Forces who are deployed to foreign countries.
- February 2009 - Policy updated to comply with final regulations issued by the U.S. Department of Labor. Revisions include:
- Providing military family FMLA leave related to a qualifying exigency;
- Providing military family FMLA leave related to acting as a caregiver;
- Clarifying calculation of 12 months University employment;
- Clarifying all University employees are able to take FMLA leaves if they meet the eligibility criteria;
- Clarifying confirmation of family relationship documentation;
- Adding definitions of "covered servicemember," "immediate family member," "next of kin," and "qualifying exigency;" and
- Clarifying definitions of "authorized health care provider," "employee's parent," "employee's son or daughter," "employee's spouse," and "serious health condition."
- December 2007 - Policy converted to the new University-wide format for administrative policies.
- October 2006 - Removed confusing eligibility language under Official Language, Section G, Graduate Assistants.
- March 2004 - Clarification in language with relation to use of sick and vacation leave, updated HRMS information and minor edits, and clarifications made. Two new forms added:
- UM 1602 Family and Medical Leave Act (FMLA): Certification for Birth/Care of Newborn (pdf)
- UM 1603 Family and Medical Leave Act (FMLA): Certification of Adoption or Foster Care Placement (pdf)
- January 2004 - Minor clarifications in language. Added "Benefits" to Official Language - C. Benefits Reinstatement to clarify the focus of that section.
- March 2003 - Minor clarifications in language.
- July 2002 - Minor clarifications in language, additional information added under Frequently Asked Questions
- April 1995 - Final rules issued by the Department of Labor. Major changes include:
- Redefinition of serious illness and other terms, e.g., health care provider, and
- Requiring FMLA documentation be given to faculty and staff within two business days of request or immediately upon notification of FMLA leave instatement without employee request.
- April 1995 - Original FMLA policy for employees covered by a collective bargaining agreement or the date of contract signing.
- August 1993 - Original FMLA policy for employees not covered by a collective bargaining agreement.
- September 2002