Effective Date: 3/1/2006
These procedures are intended to comply with federal law and regulations regarding the Family & Medical Leave Act of 1993 (FMLA), and may be updated from time to time as needed.
In general, eligible employees are entitled to up to 12 workweeks of job-protected leave in a given 12-month period for any of the following purposes:
§ The employee's own serious health condition -- including on-the-job injury or occupational disease covered by Workers' Compensation -- which causes the employee to be unable to perform the functions of his or her job
§ The care of a family member (spouse, parent, or dependent child) with a serious health condition
§ The birth and care of a newborn child
§ The legal placement of a child with the employee for adoption or foster care
A husband and wife who work for the same institution may be limited to a combined total of 12 weeks of leave during any 12-month period if such leave is taken for birth, adoption or foster placement.
Eligibility. To be eligible for FMLA leave, an employee must have worked for the University System of Georgia for both:
§ At least 12 months (total, not necessarily the last 12 months), AND
§ At least 1,250 hours during the 12-month
period immediately preceding the commencement of
the
leave
Serious Health Condition. A "serious health condition" under the law is a physical or mental illness or injury that requires either:
§ Inpatient care, or
§ Continuing treatment by a healthcare provider
Unpaid Leave. FMLA leave is unpaid (employers are not required to grant such leave as paid time off). However, employees may elect to utilize -- or the institution may require that employees utilize -- their accrued paid sick leave and/or annual leave, as appropriate, for such absences.
Benefits Continuation During Leave. Whether utilizing paid or unpaid time, employees may continue their insurance benefits during FMLA leave by paying their portion of the premium.
Rolling Year. The University System of Georgia uses a "rolling" 12-month period (rather than a fixed calendar, fiscal, or academic year) to determine eligibility for, and availability of, leave time under FMLA.
Advance Notice & Documentation of Need for Leave. To be entitled to leave, employees must give at least 30 days advance notice, or as much notice as possible and practicable. Documentation of the need for leave may be required by the institution by having the healthcare provider complete the "FMLA Certification of Health Condition" provided in the University System of Georgia's "Procedures Regarding Family & Medical Leave under FMLA."
Institutions have the right to designate as FMLA leave any time off that qualifies as such, even if the time is not specifically requested as FMLA leave per se by the eligible employee. The institution should review employee absences of 3 days or more to determine whether FLMA time should be designated.
Continuous & Intermittent Leave. Leave for one's own serious health condition, or for the care of a family member with a serious health condition, may be taken on a continuous basis -- or on an intermittent basis in increments as small as one hour -- if medically indicated. Institutions have the discretion to determine whether to allow intermittent leaves for birth, adoption, or foster placement -- or whether such leaves must be continuous.
Job Reinstatement. An employee generally has a right to return to the same position, or an equivalent position in terms of pay, benefits, and working conditions. Certain "key employees" may be denied job restoration if they are among the highest-paid 10% of employees and if such denial is necessary to prevent substantial and grievous economic injury to the operations of the employer.
Returning To Work After FMLA Leave. Employees may be required to present a fitness-for-duty clearance from their healthcare provider before being reinstated to active duty upon completion of FMLA leave for their own serious health condition.
Employees are expected to return to work by the end of the approved FMLA leave. If the employee does not return -- and if failure to return is not due to a continued or new documented qualifying serious health condition -- the employee may be required to reimburse the institution for the employer portion of the health coverage premiums that it paid on the employee's behalf during the leave.
If An Employee Is Unable To Return To Work. If an employee is not able to return to work by the end of the approved FMLA leave, he or she still may be eligible to request additional personal leave under other University System of Georgia policies. The granting of such additional leave is at the discretion of the institution. In no case may all leaves combined exceed 12 months. If an employee does not return and is not granted additional leave, employment ends on the last day of the approved FMLA Leave.
The following definitions and procedures are derived from the Code of Federal Regulations (29 CFR 825). Employees and supervisors should consult with their institution's Human Resources office for additional information or clarification.
1. Eligible Employee
§ To be "eligible" for FMLA leave, an employee must have worked for the institution
§ for at least 12 months (not necessarily the past twelve months), AND
§ for at least 1,250 hours during the
12-month period immediately preceding the
commencement of the
leave
This includes part-time and temporary employees, as well as regular employees, who meet both of the above criteria.
2. Family Member
a. Spouse
§ the employee's legal husband or wife as
defined or recognized under State law for
purposes of
marriage in the State where the employee resides
b. Parent
§ a biological parent of the employee
§ an individual who stands or stood "in
loco parentis" to an employee by providing primary
day-to-day care and
financial support when the employee was a child
§ does not include "parents-in-law"
c. Child
§ the employee's biological son or daughter under the age of 18
§ a legally-adopted son or daughter under the age of 18
§ a foster child, stepchild or ward under the age of 18, legally placed with the employee
§ any such child over the age of 18 if the
child is incapable of self-care due to a mental
or physical
disability
§ "incapable of self-care" means requiring active assistance or supervision to provide daily self-care in three or more basic or instrumental "activities of daily living," such as grooming & hygiene, bathing, dressing, eating, cooking, taking public transportation, etc.
§ a "physical or mental disability" is one that substantially limits one or more major life functions as defined under the Americans with Disabilities Act (ADA)
3. Serious Health Condition
An illness, injury, impairment, or physical or mental condition that involves:
a. Inpatient care (i.e., an overnight stay or longer) in a hospital, hospice, or
residential care facility, and any subsequent treatment, or
b. "Continuing treatment" by a health care provider for a serious health
condition, involving --
§ a period of incapacity of more than 3 consecutive calendar days AND
§ treatment 2 or more times by a healthcare provider, or
§ treatment at least once by a healthcare provider, with a continuing regimen of treatment
§ any period of incapacity due to pregnancy or for prenatal care
§ any period of incapacity due to a
chronic serious health condition and visiting
treatment for
recurring or episodic conditions
§ to provide care for permanent or long-term conditions
§ recovery from treatment associated with a serious health condition
4. Care of a family member
§ encompasses both physical and psychological care
§ includes situations where the employee
may be needed to fill in for others who are caring for
the
family member
§ may include intermittent leave
5. Time limits for birth or placement of a child
§ Entitlement expires at the end of the
12-month period that began on the date of the birth or
placement. Any such FMLA leave must be concluded within this one-year
period.
6. Intermittent Leave or Reduced Work Schedule
§ There must be a medical need for leave
which can be best accommodated through an
intermittent or
reduced work schedule
§ Employees must attempt to schedule leave
or reduced work so as not to disrupt the
employer's
operations
§ The employer may assign the employee to
an alternative position with equivalent pay &
benefits that
better accommodates the employee's intermittent leave or reduced
work
schedule
§ May include leave periods of an hour or more, up to several weeks
§ Only the amount of leave actually taken
is counted toward the 12 weeks of eligibility. For
example:
§ an employee who normally works 5 days
per week and takes off 1 day per week as
intermittent FMLA leave
is charged 1/5 of a week of FMLA leave
§ an employee who normally works 8-hour
days, but who works half-days under a FMLA
reduced work schedule would
be charged 1/2 week of FMLA leave
§ The granting of intermittent leave or a
reduced work schedule for well-child care after the birth,
adoption, or placement of a child is at the discretion of the institution.
7. Health care provider
The following individuals licensed/authorized to practice in the State in which they practice, and performing within the scope of their practice as defined under State law;
§ a doctor of medicine or osteopathy authorized to practice medicine or surgery
§ podiatrists
§ dentists
§ clinical psychologists
§ optometrists
§ chiropractors (limited to treatment
consisting of manual manipulation of the spine to correct a
subluxation as demonstrated by X-ray to exist)
§ nurse practitioners
§ nurse-midwives
§ clinical social workers
§ Christian Science practitioners listed
with the First Church of Christ Scientist in Boston,
Massachusetts; and
§ any health care provider from whom the
University's health care plans will accept certification
of the
existence of a serious health condition
8. Rolling twelve month calendar
§ The retrospective 12-month period as
measured backward from the date the employee is
using any FMLA
leave.
§ To determine if an employee is eligible for FMLA leave during any given week on a "rolling year" basis, one looks back over the 12 months immediately preceding that week -- and if the employee has not utilized the equivalent of 12 weeks of FMLA-qualifying leave in the 12 months prior to the date in question, then the employee is eligible for that week of leave (assuming all other eligibility criteria are met). In utilizing a rolling year, this analysis may be conducted each week to determine continued eligibility.
9. Week
§ The fact that a holiday may occur within
the week taken as FMLA leave has no effect; the
week is counted
as a week of FMLA leave
§ If the institution's business operations
have ceased, and employees are generally not
expected to report
for work for one or more days (e.g., during the winter holiday
break),
those days do not count against the employee's FMLA
entitlement
10. Medical certification
§ Documentation may be required from a health
care provider that an employee's request for leave (for the employee's own serious
health condition or for the care of a family member) is
medically supported.
§ The University System of Georgia uses a sample Certification form that incorporates all the allowable questions found on their website.
§ Employees must provide the requested
certification to the employer within the time frame
requested
(the institution must allow at least 15 calendar days after its request), unless
it is
not practicable to do so despite the employee's diligent,
good-faith efforts.
§ The institution may request
certification at some later date if there is reason to question
the
appropriateness of the leave or its
duration.
§ Supervisors may not contact
healthcare providers directly to request additional
information,
but should consult with their institution's HR
office if assistance is needed, and arrangements
may be made for
a health care provider representing the institution to contact the
employee's
provider, with permission, for clarification and
authentication.
§ An institution that has reason to doubt
the validity of a medical certification may require the
employee
to obtain a second opinion at the employer's expense.
§ Under some circumstances, subsequent re-certification may be required.
EXAMPLES & FREQUENTLY
ASKED QUESTIONS
Q1. I've used FMLA Leave in the past year for my own serious health condition. Am I also entitled to another 12 weeks to care for a seriously ill family member, since it's for a different reason?
No. All FMLA-qualifying leave is cumulative, up to a maximum of 12 weeks in any 12-month period. The federal regulations state that an employee may be off "for up to a total of 12 workweeks in any 12 months because of the birth of a child and to care for the newborn child; because of the placement of a child with the employee for adoption or foster care; because the employee is needed to care for a family member (child, spouse, or parent) with a serious health condition; or because the employee's own serious health condition makes the employee unable to perform the functions of his or her job."
Q2. Are both male and female employees entitled to time off for the birth or adoption of a child? How may sick and vacation time be utilized?
Yes. Birth mothers may be entitled to time off for their own serious health condition (pregnancy -- including prenatal care, medical incapacity related to pregnancy, and post-birth recovery), and may use accrued sick leave for such time off.
A husband may be entitled to time off to care for his pregnant wife (if there are periods of her pregnancy or post-birth recovery in which she is incapacitated and requires his care) and he may use accrued sick leave for such time off.
Beyond those circumstances, time off to make adoption arrangements, or to "bond" with a healthy newborn or newly-adopted child, does not allow for use of accrued sick time; however, either parent may utilize accrued vacation time, or take time off without pay if no vacation time is available, for such a purpose. Such time must be taken within the 12 months immediately following the birth or adoption. USG institutions may require that such "bonding" time off be taken as a single continuous period rather than as intermittent leave.
Q3. May I terminate an employee who is out on FMLA leave?
An employer may not take any adverse action against an employee for
taking FMLA leave; however, a personnel action/decision that would have happened
if the employee had continued to work may happen while the employee is on FMLA
leave.
For example, if an employer decides that a reduction-in-force is necessary and the employee taking FMLA leave legitimately falls within the group of employees to be laid off, the employee may be laid off even while taking FMLA leave. If the employee is laid off, the employer's obligations under FMLA stop as of the effective date of the layoff.
Q4: How is the 12-month period calculated under FMLA?
Employers may select one of four options for determining the 12-month period:
· The calendar year;
· Any fixed 12-month "leave
year" such as a fiscal year, a year required by state law, or a year
starting
on the employee’s "anniversary" date;
· The 12-month period measured forward from the date any employee’s first FMLA leave begins; or
· A "rolling" 12-month
period measured backward from the date an employee uses FMLA
leave.
The University System of Georgia uses the “rolling” year option.
Q5 : Does the law guarantee paid time off?
No. The FMLA only requires unpaid leave. However, the law permits an employee to elect -- or the employer to require the employee -- to use accrued paid leave, such as vacation or sick leave, for some or all of the FMLA leave period. When paid leave is substituted for unpaid FMLA leave, it may be counted against the 12-week FMLA leave entitlement if the employee is properly notified of the designation when the leave begins.
Q6: Does Workers’ Compensation leave count against an employee’s FMLA leave entitlement?
Yes. FMLA leave and Workers’ Compensation leave may run at the same time, provided the reason for the absence is due to a qualifying serious illness or injury and the employer appropriately notifies the employee that the leave will be counted as FMLA leave.
Q7: Can the employer count leave taken due to pregnancy complications against the 12 weeks of FMLA leave for the birth and care of my child?
Yes. An eligible employee is entitled to a total of 12 weeks of FMLA leave in a 12-month period. If the employee has to use some of that leave for another reason, including a difficult pregnancy, it may be counted as part of the 12-week FMLA leave entitlement.
Q8: Can the employer count time on maternity leave or pregnancy disability as FMLA leave?
Yes. Pregnancy disability leave or maternity leave for the birth of a child would be considered qualifying FMLA leave for a serious health condition and may be counted in the 12 weeks of leave so long as the employer appropriately notifies the employee of the FMLA designation.
Q9: If an employer fails to tell employees that the leave is FMLA leave, can the employer count the time they have already been off against the 12 weeks of FMLA leave?
Courts have differed regarding whether FMLA time may be designated retroactively. In general, the employee should be notified in writing as soon as it is determined by the institution that an absence qualifies and is being considered as FMLA leave.
Q10: Who is considered an immediate "family member" for purposes of taking FMLA leave?
An employee’s spouse, children (son or daughter), and parents are immediate family members for purposes of FMLA. The term "parent" does not include a parent "in-law". The terms son or daughter do not include individuals age 18 or over unless they are "incapable of self-care" because of mental or physical disability that limits one or more of the "major life activities" as those terms are defined in regulations issued by the Equal Employment Opportunity Commission (EEOC) under the Americans With Disabilities Act (ADA).
Q11: May I take FMLA leave for visits to a physical therapist, if my doctor prescribes the therapy?
Yes. FMLA permits you to take leave to receive "continuing treatment by a health care provider," which can include recurring absences for therapy treatments such as those ordered by a doctor for physical therapy after a hospital stay or for treatment of severe arthritis.
Q12: Which employees are eligible to take FMLA leave?
Employees are eligible to take FMLA leave if they have worked for their employer for at least 12 months, and have worked for at least 1,250 hours over the previous 12 months, and work at a location where at least 50 employees are employed by the employer within 75 miles.
Q13: Do the 12 months of service with the employer have to be continuous or consecutive?
No. The 12 months do not have to be continuous or consecutive; all time worked for the employer is counted.
Q14: Do the 1,250 hours include paid leave time or other absences from work?
No. The 1,250 hours include only those hours actually worked for the employer. Paid leave and unpaid leave, including FMLA leave, are not included.
Q15: How do I determine if I have worked 1,250 hours in a 12-month period?
Your individual record of
hours worked would be used to determine whether 1,250 hours had been worked in
the 12 months prior to the commencement of FMLA leave. As a rule of thumb, the
following may be helpful for estimating whether this test for eligibility has
been met:
· 24 hours worked in each of the 52 weeks of the year; or
· Over 104 hours worked in each of the 12 months of the year; or
· 40 hours worked per week for more than 31 weeks (over seven months) of the year.
Q15: Do I have to give my employer my medical records for leave due to a serious health condition?
No. You do not have to provide detailed diagnostic information or actual medical records. The employer may, however, request that, for any leave taken due to a serious health condition, you provide a medical certification from your healthcare provider confirming that a serious health condition exists.
Q16: Can my employer require me to return to work before I exhaust my leave?
Subject to certain limitations, your employer may deny the continuation of FMLA leave due to a serious health condition if you fail to fulfill any obligations to provide supporting medical certification. The employer may not, however, require you to return to work early by offering you a light duty assignment.
Q17: Are there any restrictions on how I spend my time while on leave?
Employers with established policies regarding outside employment may uniformly apply those policies to employees on FMLA leave. Otherwise, the employer may not restrict your activities. The protections of FMLA will not, however, cover situations where the reason for leave no longer exists, where the employee has not provided required notices or certifications, or where the employee has misrepresented the reason for leave.
Q18: Can my employer make inquiries about my leave during my absence?
Yes, they may make inquiries of you. Your employer may ask you questions to confirm whether the leave needed or being taken qualifies for FMLA purposes, and may require periodic reports on your status and intent to return to work after leave. Also, if the employer wishes to obtain another opinion, you may be required to obtain additional medical certification at the employer’s expense, or rectification during a period of FMLA leave. The employer may have a healthcare provider representing the employer contact your healthcare provider, with your permission, to clarify information in the medical certification, or to confirm that it was provided by the health care provider. The inquiry may not seek additional information regarding your health condition or that of a family member.
Q19: Can my employer refuse to grant me FMLA leave?
If you are an "eligible" employee who has met FMLA’s notice and certification requirements (and you have not exhausted your FMLA leave entitlement for the year), you may not be denied FMLA leave.
Q20: Will I lose my job if I take FMLA leave?
Generally, no. It is unlawful for any employer to interfere with or restrain or deny the exercise of any right provided under this law. Employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under "no fault" attendance policies. Under limited circumstances, an employer may deny reinstatement to work - but not the use of FMLA leave - to certain highly paid, salaried ("key") employees.
Q21: Are there other circumstances in which my employer can deny me FMLA leave or reinstatement to my job?
In addition to denying reinstatement in certain circumstances to "key" employees, employers are not required to continue FMLA benefits or reinstate employees who would have been laid off or otherwise had their employment terminated had they continued to work during the FMLA leave period as, for example, due to a general layoff. Employees who give unequivocal notice that they do not intend to return to work lose their entitlement to FMLA leave. Employees who are unable to return to work and have exhausted their 12 weeks of FMLA leave in the designated "12 month period" no longer have FMLA protections of leave or job restoration.
Under certain circumstances, employers who advise employees experiencing a serious health condition that they will require a medical certificate of fitness for duty to return to work may deny reinstatement to an employee who fails to provide the certification, or may delay reinstatement until the certification is submitted.
Q22: Can my employer fire me for complaining about a violation of FMLA?
No. Nor can the employer take any other adverse employment action on this basis. It is unlawful for any employer to discharge or otherwise discriminate against an employee for opposing a practice made unlawful under FMLA.
Q23: Under what circumstances is leave designated as FMLA leave and counted against the employee's total entitlement?
It is the employer's
responsibility to designate leave taken for an FMLA reason as FMLA leave. The
designation must be based upon information furnished by the employee. Leave
should not be designated as FMLA leave after the leave has been completed and
the employee has returned to work, except if
· The employer is awaiting
receipt of the medical certification to confirm the existence of a
serious
health condition;
· The employer 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 employer 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.
Q24: Can my employer count FMLA leave I take against a no-fault absentee policy?
No.