FMLA: Guidelines
This document provides guidelines for employees requesting leave under the Family Medical Leave Act of 1993 (FMLA). The FMLA is a federal law that requires certain employers to allow eligible employees to take up to 12 weeks of unpaid job-protected leave during a 12-month period the serious health condition of the employee, the employee’s parent, child or spouse. Employees must apply for leave and for continuation of benefits on the forms provided and must give 30 days' notice when possible.
· Employees must provide appropriate certification if leave is being taken for a serious health condition
· Employees must provide medical certification of the serious health condition of a parent, spouse or child.
Serious health condition defined. A "serious health condition" is defined as "an illness, injury, impairment, or physical or mental condition that involves" either inpatient care or continuing treatment by a health care provider.
Medical certifications- An employer may require that the employee provide certification from a health care provider "in a timely manner" of the serious health condition of self, spouse, child, or parent, including a statement that the employee is needed to care for the family member. An employee may present medical certification that he is needed to provide physical care for a family member or to provide psychological "comfort and reassurance" for a child, spouse, or parent who is receiving inpatient or home care. An employee also will be considered as "needed to care for" those family members when making arrangements for changes in care, such as transfer of the family member to a nursing home.
If the employee fails to provide the medical certification required by the employer in a timely manner (at least 15 calendar days except where circumstances compel a longer time) the employer may delay the taking of leave until the medical certification is received. If the employee fails to provide the medical certification at all, any leave taken by the employee is not FMLA leave.
Regulations issued by the Department of Labor (DOL) to implement the FMLA define the term "continuing treatment" to include the following five scenarios:
(1) a period of incapacity of more than three consecutive calendar days involving two or more treatments, by or under the orders of a health care provider, or treatment by a health care provider on at least one occasion that results in a supervised regimen of continuing treatment (for example, prescription medications or specialized therapy);
(2) pregnancy (including severe morning sickness) and time needed for prenatal visits;
(3) a chronic health condition, such as asthma, diabetes, or epilepsy;
(4) a long-term condition such as Alzheimer's, a severe stroke, or the terminal stages of a disease; and
(5) restorative surgery after an accident or other injury, or a condition that is likely to result in a period of incapacity of more than three consecutive calendar days if left untreated, such as physical therapy for severe arthritis or chemotherapy for cancer.
(Note: any period of incapacity that is the result of pregnancy or a chronic serious health condition, such as morning sickness or an asthma attack, qualifies for FMLA leave even if the employee does not receive treatment from a health care provider or the absence does not last more than three days.)
What is not FMLA
Conditions that only require taking over-the-counter medications, such as aspirin and antihistamines, do not qualify for FMLA. In addition, the following are not considered serious health conditions:
· conditions that require drinking plenty of fluids or any similar activities that can be initiated without a visit to a health care provider, unless something more serious is involved;
· routine dental problems and periodontal disease;
· the common cold, flu, earache, upset stomach, minor ulcer, and headache (other than migraine); and
· cosmetic treatments (such as for acne or plastic surgery), unless inpatient hospital care is required or complications develop.
FMLA Eligibility
There are two requirements that an employee must meet for FMLA eligibility:
· The employee must have at least 12 months of service.
· The employee must have worked at least 1250 hours over the previous 12 months.
12 Months of Service
Once an employee has completed 12 months of service with an employer, the first FMLA eligibility requirement is satisfied for however long the employee works for that employer, even if the employee leaves and then returns. A break in service has no effect on fulfillment of this requirement.
1250 Hours Over the Previous 12 Months
The second requirement refers only to the 12 months prior to the requested leave period under FMLA, and time off the payroll is included in that 12 month period. Regardless of any prior service, if an employee is off for a period of time that brings the number of hours worked by the employee during the 12 months below 1250 hours, the employee will not be eligible for leave under FMLA.
Example
If an employee requests leave under FMLA on January 1, 2002 but worked 1210 hours during 2001 the employee would not be eligible.
Note: If after working another week the employee would have worked 1250 hours during the 12 months prior to January 8, the employee would be eligible.
Leave may not be designated as FMLA leave after the leave has been completed and the employee has returned to work, except if;
· the RF is awaiting receipt of the medical certification to confirm the existence of a serious health condition;
· the RF was unaware that leave was for an FMLA reason, and subsequently acquires information from the employee such as when the employee requests additional or extensions of leave; or,
· the RF was unaware that the leave was for an FMLA reason, and the employee notifies the employer within two days after return to work that the leave was FMLA leave.
Disruption of Operations
Employees must make a reasonable effort not to disrupt operations when leave is taken based on a serious health condition.
Continuation and Reinstatement of Benefits
Continuation of Benefits
Employers must allow employees to continue group health plan coverage at the same level and on the same terms prior to the leave, including dental and vision insurance benefits. This is applicable to continuous leave, as intermittent leave generally doesn’t compromise the benefits.
Research Foundation employees also have the option of continuing their life insurance coverage under the terms outlined in COBRA.
Reinstatement of Benefits
All employment benefits are immediately reinstated to the employee when on continuous leave, without waiting periods, regardless of whether the benefit was continued during leave, and are continued as if the employee had been in pay status during the leave period.
Payment of Premiums
During periods of unpaid approved leave under FMLA, an employee will be responsible for payment of the employee share of health insurance premiums. When on paid leave using accruals benefits are still paid for through payroll deduction. The employee may also elect to continue basic and/or optional life insurance coverage through payment of the full premium.
Premiums must be paid in advance while on leave. Full payment can be deducted from the last paycheck if payment of the health premium on a pre-tax basis is desired, or advance payments can be paid monthly or biweekly. If payment is not received within 30 days of the due date, coverage will be cancelled.
Employees Continuing on Leave Without Pay
An employee continuing on Leave Without Pay (LWOP) under the Research Foundation leave policy (a combined maximum of one year), should contact the office at the operating location that handles employee benefits for information on premium payment under LWOP. Generally the cost of health insurance will be the same as the COBRA rate.
Recovery of Premiums Paid If Employee Does Not Return to Work
If an employee does not return to work after leave under FMLA expires, the full share of the premium paid by the Research Foundation can be recovered. An exception is made if the employee does not return because of circumstances beyond the control of the employee.
Employee Options for Taking Leave
Employees may take leave under FMLA in the form of an unpaid absence from work for up to 12 weeks, or, with the approval of the supervisor and the Research Foundation Employee Services Coordinator, in one of the following ways:
Intermittent Leave/ Reduced Work Schedule
An employee may take leave intermittently or on a reduced work schedule if the leave is certified as medically necessary by a health care provider to care for a seriously ill family member or because of the employee’s own serious health condition. Intermittent or reduced schedule leave may be taken not only when the family member's condition is intermittent, but also when the employee is needed intermittently, such as when care responsibilities are shared with third parties.
An employee may not take leave intermittently or on a reduced work schedule because of a birth or placement of a child. Employees must understand that intermittent leave is not a reason to take time off whenever he or she pleases. A schedule of foreseeable medical appointments, or leave days must be worked out with the supervisor. Intermittent FMLA leave doesn’t absolve the employee of responsibility to contact the supervisor on a daily basis, if necessary.
Status of Exempt Employees On Reduced Work Schedule. Employees who are eligible for leave under FMLA and exempt from the overtime provisions of the Fair Labor Standards Act may be placed on unpaid FMLA leave on a reduced work schedule without affecting their exempt status. Therefore, an exempt employee’s salary may be reduced for absences of less than a day if she or he takes leave under FMLA for part of the workday. FMLA leave taken on an intermittent basis will be monitored down to the quarter hour if applicable. For example, if the accommodation for intermittent leave is to allow an employee with an illness 30 extra minutes in the morning to get to work, 30 minutes would be deducted from the overall allotment of 60 days, which totals 480 hours for an employee based on an 8 hour workday, or 450 hours for an employee based on a 7.5 hour workday. Therefore, each 30 minute increment can be deducted from the balance of FMLA leave. It is up to the employee’s supervisor to monitor the time use for the employee on FMLA. The Research Foundation policy is to deduct leave use from accruals in quarter day increments, however, under the FMLA the RF can deduct to the quarter hour, provided excellent records are maintained. An example of this type of record keeping would be:
For a five day work week an employee is arriving a half an hour late each day. Since the exempt timesheets are submitted on a monthly basis, and the total of the intermittent leave is 6 hours for the month, the 6 hours can be converted and subtracted from the employee’s accrual as follows:
6 hours/8 hours=.750 Thus .75 is deducted from the balance of the leave. If the employee had a balance of 21.68 days accrued leave the deduction for 6 hours of FMLA in that month would be 21.68 -.75=20.930.
Below is a table outlining how Accruals may be used during FMLA leave:
Purpose of Leave Accrued leave to be charged
Birth Of a Child Sick during period of employee disability, then Vacation or Personal
Adoption, Foster Care Vacation or Personal
Care for a Family Member Family Sick (maximum of 15 days), Vacation, or Personal
Employee’s Serious Health Condition Sick, then Vacation or Personal
If an employee is off of work for more then half of the pay period under FMLA, but is using sick or vacation accruals to keep them in full pay status then they would still accrue their vacation and sick. However, if the person was off of payroll, i.e. not in full pay status (unpaid FMLA leave) they wouldn't accrue. Example: Employee A. had 10 sick days and used them all in one pay period. They then applied for disability to run concurrently with FMLA leave. The pay period in which they used the 10 sick days would be an accruing pay period, but after the accruals were liquidated and while they were on disability they wouldn't accrue leave since they are in Unpaid Leave status. An employee using 12 weeks of unpaid leave covered under FMLA would not accrue. If a non-exempt employee were out of work and those days were going to be leave without pay, for example 6 days LWOP and 4 sick days in a pay period, they would not accrue because they were not in full pay status for the entire pay period.
Reinstatement
Employers must reinstate an employee to his or her former position or an equivalent position with equivalent pay, benefits, and other terms and conditions of appointment.
NOTE: FMLA leave cannot be approved beyond the appointment period.
NYS Disability
If a person takes NYS disability leave and is eligible for leave under FMLA, then all or some of the time spent on disability must also be counted concurrently as leave under FMLA.
Amount of Time Counted Concurrently
The maximum amount of time that must be counted concurrently is equal to the amount of leave the employee is entitled to under FMLA, that is, 12 weeks unless the employee has already taken some leave under FMLA during the appropriate 12-month period. If employee has taken some leave under FMLA, then the maximum amount of time that must be counted is equal to the remaining amount of leave to which the employee is entitled under FMLA.