Texas Woman's University
University Policy Manual
|
Policy Name: |
Family and Medical Leave Act
(FMLA) Policy |
|
Policy Number: |
3.24 |
|
Date Passed: |
August 1993 |
|
Date Reviewed: |
March 2007 |
|
Next Review:: |
March 2009 |
|
Signed By: |
Chancellor and President |
PURPOSE
The purpose of this Texas
Woman's University Operating (TWU OP) Policy
and Procedure is to establish guidelines for
administration of and compliance with the
use of leave time as it applies to the
Family and Medical Leave Act. The Family and
Medical Leave Act (FMLA) became effective
August 5, 1993.
POLICY/PROCEDURE
University employees are
eligible to take up to twelve (12) weeks of
family/medical leave within any fiscal year
(September 1 through August 31) and be
restored to the same or an equivalent
position upon return from leave, provided
that the employee has worked for State of
Texas for at least 12 months and for at
least 1,250 hours within the preceding
twelve (12) month period. The 1,250 hours
refers to hours actually worked and does not
include any paid time off. Leave without pay
may begin after all available applicable
paid leave has been exhausted and will be
included in the twelve weeks of FMLA.
Applicable Sick Pool benefits and leave
resulting from an on-the-job injury
[Workers' Compensation] and long and short
term disability leave will be included in
the twelve week period. Employees who are
not eligible for FMLA leave may be eligible
to use Parental Leave for the birth or
adoption of a child. (See Faculty Handbook:
Section C and Staff Handbook: Employee
Benefits)
An application for FMLA leave
must be completed and submitted with a
certification from the health care provider
to support the leave request when an
employee is taking leave to care for a
family member or due to his or her own
serious health condition. The certification
form that the health care provider must
complete is available from the Office Human
Resources. If the University does not agree
with the medical certification, a second
opinion may be obtained at the University's
expense. If the two opinions disagree, a
third opinion may be obtained at the
University's expense and will be the final
determination. The University may request
periodic certifications.
Definition of Terms:
For the purpose of this policy, the
following definitions apply.
Spouse/Child/Parent:
Spouse means a husband or
wife as defined in accordance with Texas
state law, including common law marriages.
Unmarried domestic partners do not qualify
for spousal status.
Daughter or son means
biological, adopted or foster child, a
stepchild, a legal ward, or a child of a
person standing in loco parentis, who is
under 18 years of age or 18 years of age or
older and incapable of self-care because of
a mental or physical disability.
Parent means the biological
parent of an employee or an individual who
stood in loco parentis to an employee when
the employee was a child.
Serious Health Condition:
"Serious health condition" means an illness,
injury, impairment, or physical or mental
condition that involves either:
Any period of incapacity or
treatment connected with inpatient care
(i.e., an overnight stay) in a hospital,
hospice, or residential medical-care
facility, and any period of incapacity or
subsequent treatment in connection with such
inpatient care; or continuing treatment by a
health care provider which includes any
period of incapacity (i.e., inability to
work, attend school or perform other regular
daily activities) due to:
(1) A health condition
(including treatment therefore, or recovery
there from) lasting more than three
consecutive days, and any subsequent
treatment or period of incapacity relating
to the same condition, that also
includes: treatment two or more times by or
under the supervision of a health
care provider; or one treatment by a health
care provider with a continuing regimen of
treatment; or
(2) Pregnancy or prenatal
care. A visit to the health care provider is
not necessary for each absence; or
(3) A chronic serious health
condition which continues over an extended
period of time, requires periodic visits to
a health care provider, and may involve
occasional episodes of incapacity (e.g.,
asthma, diabetes). A visit to a health care
provider is not necessary for each absence;
or
(4) A permanent or long-term
condition for which treatment may not be
effective (e.g., Alzheimer's, a severe
stroke, terminal cancer). Only supervision
by a health care provider is required,
rather than active treatment; or
(5) Any absences to receive
multiple treatments for restorative surgery
or for a condition which would likely result
in a period of incapacity of more than three
days if not treated (e.g., chemotherapy or
radiation treatments for cancer).
Continuing Treatment By a
Health Care Provider
A period of incapacity
(inability to work, attend school, or
perform other regular daily activities due
to a serious health condition) for more than
three consecutive calendar days, involving
treatment two or more times by a health care
provider, or treatment by a health care
provider on at least one occasion that
results in a regimen of continuing treatment
under the health care provider's
supervision;
Pregnancy or prenatal care,
even if an employee does not receive
treatment and even if the care does not last
three days;
A chronic serious health
condition, defined as 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 continuing capacity (e.g.,
asthma, severe morning sickness);
A permanent or long-term
condition for which treatment may not be
effective (e.g., Alzheimer's, severe stroke,
terminal stages of disease); or,
An absence to receive
multiple treatments by a health care
provider either for restorative surgery
after an accident or injury or for a
condition that would likely result in an
incapacity of three or more days in the
absence of medical treatment (e.g., cancer,
severe arthritis).
In addition to these five
broad categories, also included are
allergies or mental illness resulting from
stress, but only when all of the other
criteria of a serious health condition are
met.
Treatment
Treatment includes, but is
not limited to, examinations to determine if
a serious health condition exists and
evaluations of the condition. It does not
include routine physical exams, routine eye
exams, or routine dental exams. A course of
prescription medicine or therapy would
qualify as a "regimen of continued
treatment," but over-the-counter medicines
would not.
Substance Abuse
Treatment of substance abuse
by a health care provider may be included
under the Act; however, absences because of
an employee's use of a substance without
treatment do not qualify for FMLA leave. The
inclusion of substance abuse does not
prevent the University from taking any
employment action against an employee who is
unable to perform the essential functions of
the job provided the University complies
with the Americans with Disabilities Act
(ADA) and does not take action against the
employee because such employee exercises
rights under the Family and Medical Leave
Act.
"Needed To Care For"
“Needed to care for" a family
member encompasses: (1) physical and
psychological care; and (2) where the
employee is needed to fill in for others
providing care or to arrange for third party
care of the family member.
"Unable To Perform the
Functions of His/Her Job"
The phrase "unable to perform
the functions of his/her job" means an
employee is: (1) unable to work at all; or
(2) unable to perform any of the essential
functions of his/her positions. The term
"essential functions" is borrowed from the
Americans with Disabilities Act (ADA) to
mean "the fundamental job duties of the
employment position," and does not include
the marginal functions of the position.
Leave Period
The FMLA leave period is
defined in weeks, e.g. 12 weeks. The FMLA
leave period is prorated based on the
employee's percentage appointment, e.g. 12
weeks at 50 percent time for employees
appointed on 50 percent time appointments.
Leave for the Birth or
Placement of a Child
Leave for birth or placement
for adoption can be taken prior to the
actual birth or adoption. An employee's
entitlement to leave for the birth or
placement of a child expires twelve months
after the birth or placement, unless leave
begins prior to birth or placement, in which
case leave expires twelve months after the
first date of leave.
Spouses Employed by Same
Employer
If both parents work for the
University, regardless of whether they work
at different work sites or different
component institutions, the total amount of
leave cannot exceed twelve weeks between the
two employees. This limitation applies only
for those cases involving the birth or
placement of a child
or if leave is taken to care for a parent
with a serious health condition. In
cases involving illness of the employee,
this limitation does not apply.
Intermittent and Reduced
Schedule Leave
"Intermittent leave" is
defined as leave taken in separate blocks of
time due to a single illness or injury,
rather than for one continuous period of
time and may include leave for periods from
one hour to several weeks. Examples include
leave taken on an occasional basis for
medical appointments, or leave taken several
days at a time spread over a period of six
months, such as for chemotherapy.
"Reduced schedule leave" is
defined as a leave schedule that reduces an
employee's usual number of working hours per
work week or hours per work day. This type
of leave might be used, for example, when an
employee is recovering from a serious health
condition, and is temporarily not able to
work a full-time schedule based on physician
certification.
Employees with a serious
health condition or with a spouse, parent,
or child with a serious health condition are
entitled to take "intermittent" or "reduced
schedule" leave if the leave is medically
necessary. Leave for a newborn child or
for adoption or foster care placement of a
child must be complete within twelve months
of the birth, adoption or placement. The
leave cannot be taken intermittently or on a
reduced time basis unless both the
department and the individual agree on the
schedule of intermittent or reduced leave.
Leave because of a serious health condition
may be taken intermittently [in separate
blocks of time due to a single health
condition] or on a reduced leave schedule
[reducing the usual number of hours worked
per workweek or work day] if medically
necessary. A reduced schedule is subject to
availability depending on the business need
of the department or the University. If
leave is unpaid, the University will reduce
the employee's salary based on the amount of
time actually worked. In addition, while the
employee is on an intermittent leave or
reduced schedule, the University may
temporarily transfer the employee to an
alternate position which better accommodates
the recurring leave and which has equivalent
pay and benefits.
If an employee takes an
intermittent or reduced leave schedule, only
the amount of leave actually taken may be
counted toward the twelve weeks of leave to
which an employee is entitled. Where an
employee normally works a part-time schedule
or variable hours, the amount of leave to
which an employee is entitled is determined
on a pro rata or proportional basis by
comparing the new schedule with the
employee's normal schedule.
When an employee has
requested intermittent or reduced schedule
leave, the University may transfer the
employee to an alternative position with
equivalent pay and benefits if the employee
is qualified for the position, and if it
better accommodates the recurring periods of
leave more than the employee's current job.
Reason For Family/Medical
Leave:
Eligible faculty and staff may take
family/medical leave for any of the
following reasons:
(1) the birth of a child and
in order to care for such child;
(2) the placement of a child
with you for adoption or foster care;
(3) to care for a spouse,
son, daughter, or parent with a serious
health condition;
(4) the employee’s own
serious health condition which renders the
employee unable to perform the functions of
his/her position.
Leave because of reasons "1"
or "2" must be completed within the 12 month
period of the birth or placement, or within
12 months of the first date of leave. In
addition, spouses employed by the University
taking leave because of reasons "1" or "2"
or to care for an ill parent may only take a
combined total of twelve weeks leave during
any 12 month period.
Notice by Employee to the
University:
Employees must give at least thirty days of
advance notice to the University of the need
to take family or medical leave covered by
the FMLA, when it is foreseeable. When it is
not practicable to give such notice under
any circumstances, such as premature birth
or medical illness, the notice should be
given as soon as possible within one to two
business days of when the employee learns of
the need for leave.
An employee must provide at
least verbal notice sufficient to make the
University aware that the employee needs
FMLA leave and the anticipated timing and
duration of the leave. The employee need not
expressly assert rights under the Act or
even mention the FMLA, but may only state
that leave is needed for an expected birth
or adoption, for example. The University may
require more information about whether FMLA
leave is being sought by the employee, and
obtain the necessary certification for the
leave to be taken.
An eligible employee who has
given notice under the Act and has provided
the certification requirements may not be
denied FMLA leave, but leave may be delayed
if sufficient notice is not provided.
Request for Family/Medical Leave forms are
available from the Office of Human
Resources. Employees should use these forms
when requesting leave.
Notice by University to the
Employee:
It is the University's responsibility to
designate leave, paid or unpaid, as FMLA
qualifying and to give notice of the
designation to the employee. Once the
University has acquired knowledge that paid
leave is being taken for an FMLA required
reason, the University must notify the
employee within two business days (absent
extenuating circumstances) that the leave is
designated and will be counted as FMLA
leave.
Use of Accrued Leaves While
on FMLA:
With the exception of employees receiving
workers' compensation income benefits or
temporary disability benefits, employees are
required to utilize all accumulated vacation
and applicable sick leave, while taking
leave under the Act.
A holiday that occurs during
a week of FMLA leave is counted as part of
FMLA leave. However, if the University
closes for a week, for example during the
Christmas holidays, then that week would not
count toward an employee's FMLA leave.
The twelve-week entitlement
may run concurrently with workers'
compensation leave or leave while receiving
temporary disability benefit payments,
provided the employee is otherwise eligible
for FMLA leave. Employees who are on FMLA
leave and are receiving workers’
compensation benefits or temporary
disability benefit payments may use their
paid vacation or sick leave while on FMLA
leave.
Compensatory time may not be
used toward FMLA leave.
The University is not
permitted to count paid leave that was not
for an FMLA leave purpose against an
employee's FMLA leave entitlement. For
example, if an employee has taken sick leave
on various occasions for a cold, flu, or
condition that is not an extended illness,
those days may not be counted towards the
twelve-week entitlement under the Act. If,
however the employee is expecting the birth
of a child and has taken leave prior to the
birth for prenatal care, the employer may
require the employee to use sick and
vacation leave, and limit the total amount
of time away from the University to a total
of twelve weeks. If applicable, the
University must inform the employee that
paid leave must be taken when an individual
requests FMLA 1eave.
Medical Certification:
If an employee is requesting leave because
of their own or a covered relation's serious
health condition, the employee and the
relevant health care provider must supply
appropriate medical certification. Medical
Certification Forms may be obtained from the
Office of Human Resources. The form must be
returned to Human Resources within 15 days
after the leave is requested. Failure to
provide requested medical certification in a
timely manner may result in denial of leave
until the certification is provided. The
University, at its expense, may require an
examination by a second health care provider
designated by the University. If the second
health care provider's opinion conflicts
with the original medical certification, the
University, at its expense, may require a
third, mutually agreed upon, health care
provider to conduct an examination and
provide a final and binding opinion. The
University may require subsequent medical
recertification on a reasonable basis.
Medical certification is
required if an employee claims inability to
return to work after the expiration of leave
because of the continuation of a serious
medical condition.
Reporting While On Leave:
If an employee takes FMLA leave because of
their own serious health condition or to
care for a covered relation, the employee
must contact their supervisor on a regular
basis (twice per month) regarding the status
of the condition and their intention to
return to work. The supervisor is
responsible for reporting this information
to Human Resources.
Leave Is Unpaid:
Family/medical leave is unpaid leave after
applicable vacation and sick leave accruals
have been exhausted. Employees may apply for
sick leave from the Sick Leave Pool which,
if approved, will be included within the
FMLA period. Employees may be eligible for
short or long-term disability payments
and/or workers' compensation benefits under
the provisions of those insurance plans.
This leave time will also be included in the
12 week period of FMLA. The use of paid
leave time does not extend the 12 week leave
period.
Medical And Other Benefits:
During an approved family/medical leave, the
University will maintain the employee's
health insurance coverage that she/he had
while working. Upon returning to work
optional coverage can be automatically
reinstated. During periods of paid FMLA
leave the University will deduct the
employee's portion of the insurance premiums
as a regular payroll deduction. If the
employee's FMLA leave is unpaid, the
employee must pay their portion of the
premium directly to the state insurance
administrator, ERS. The employee's insurance
coverage will cease if the premium payment
is late. If the employee elects not to
return to work at the end of the FMLA leave
period, the employee may be required to
reimburse the University for the cost of the
premiums paid by the University for
maintaining coverage during the leave.
The University may recover
health insurance premium payments from
certain sums due to the non-returning
employee such as travel reimbursement
checks, etc. provided that prior to the
deduction, University Office of General
Counsel is consulted to ensure that such
deduction is appropriate.
An employee is not entitled
to State service credit for any full
calendar months of leave without pay taken
while on FMLA leave and vacation and sick
leave will not accrue during such periods of
unpaid leave. Further, any full calendar
months of leave without pay shall not be
included in the calculation of the six
continuous months of employment set forth in
Article V, (Section 1,4) and under the
Employee Vacations and Leaves, Article V
Section 8,1.(5) of the State Appropriations
Bill.
Returning From Leave:
If the employee takes leave because of their
own serious health condition, the employee
is required to provide medical certification
that the employee is fit to resume work.
Return to Work Medical Certification Forms
may be obtained form the Office of Human
Resources. Employees failing to provide the
Return to Work Medical Certification Form
will not be permitted to resume work until
it is provided.
Employees will be restored to
the same position held when the leave
started, or to an equivalent position with
equivalent pay. An equivalent position is
one that has the same pay, benefits, and
working conditions, and involves the same
substantially similar duties and
responsibilities and with the equivalent
skill, effort, responsibility, and
authority. A determination of whether a job
is equivalent to one held prior to FMLA
leave will be made by the University. The
University cannot guarantee that the
employee will be returned to his or her
original position.
Notice by Employer
Requirement:
A notice will be posted to advise employees
of their rights and responsibilities under
the Act. The University must also supply to
employees a notice describing the Act which
is issued by the Department of Labor (Fact
Sheet No. ESA 93-24 which is available from
the Office of Human Resources.)
Rights of Employees:
Employees who exercise their rights under
the Act are entitled to do so without
restraint and will not be subject to
discharge or discrimination by the employer
on the basis of exercising rights under the
Act. The employer may not discriminate
against an individual for having filed
charges, instituted any proceeding under or
related to the Act, or given any information
in connection with an inquiry or proceeding
regarding the Act.
Record-Keeping Requirements
The following records must be
kept by the University regarding family and
medical leave:
Records of no less than three
years, which contain the basic payroll and
identifying employee data, including name,
address, occupation, rate of pay, terms of
compensation, hours worked, additions and
deductions to wages, and total compensation.
Dates FMLA leave is taken by
an employee. The leave must be designated as
FMLA leave.
Documentation of FMLA leave
taken in increments of less than one full
day, as well as hours of the leave.
Copies of the employee
notices of leave furnished to the University
under the Act, if in writing, and copies of
all general and specific notices given to
employees under the Act.
Any documents describing
employee benefits or University policies.
This includes written and electronic records
regarding the taking of paid and unpaid
leave.
Premium payments of employee
benefits.
Records of any dispute
between the employee and the University
regarding any designation of leave as FMLA
leave, including any written statements from
the University or employee and the reasons
for the designation and disagreement.
Records and documents
relating to medical certification,
recertification’s, and medical histories of
the employee or employee's family members
must be maintained in files separate and
apart from the employee's personnel file and
treated as confidential medical records. If
necessary, medical information may be
disclosed to supervisors and managers
regarding work restrictions; to the first
aid and safety personnel if the employee's
physical and medical conditions require
medical treatment; and, to government
officials investigating compliance with the
Act.
Coordination with Other Leave
Entitlement:
The Act’s regulations state that if the
University provides more benefits than
required by the Act, the Act will not
restrict those benefits. Therefore, benefits
such as the sick leave pool, when available,
may be used in conjunction with and count
toward the twelve weeks of FMLA leave. It
should also be noted that the Act does not
restrict or modify any federal or state
anti-discrimination law or the employer's
obligation to comply with the Americans with
Disabilities Act.
POLICY REVIEW
The Vice President for
Finance and Administration will review this
Operating Policy with recommendations
forwarded through normal administrative
channels to the Chancellor and President.
ATTACHMENTS