Wayne State University

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3.4.5.1 Family and Medical Leave Act Definitions

The following definitions were established by the Department of Labor and apply to all FMLA leaves:

Active Duty or Call to Active Duty Status

For purposes of exigency leaves, it means duty under a federal call or order to active (or notification of an impending call or order to active duty) in support of a contingency operation.

Adoption

Legally and permanently assuming the responsibility of raising a child as one's own.

As soon as practicable

As soon as both possible and practical, taking into account all of the facts and circumstances in the individual case. When an employee becomes aware of a need for FMLA leave less than 30 days in advance, it should be practicable for the employee to provide notice of the need for leave either the same day or the next business day.  In all cases, the determinations of when an employee could practicably provide notice must take into account the individual facts and circumstances.

Consecutive Leave

A consecutive FMLA leave is taken in one continuous block of time from the start of the leave until the end of the leave.

Covered Military Member

A current member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy for a serious illness or injury, or who is assigned to a military medical facility as an outpatient, or is otherwise on the temporary disability retired list, for a serious injury or illness incurred in the line of duty by the member in the line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member's office, grade, rank, or rating.

Covered Service Member

A current member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy for a serious illness or injury, or who is assigned to a military medical facility as an outpatient, or is otherwise on the temporary disability retired list, for a serious injury or illness incurred in the line of duty by the member in the line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member's office, grade, rank, or rating.

Family Member

"Family member" includes the employee's spouse, son, daughter, or parent (but not a parent "in-law"). A "spouse" means a husband or wife as defined or recognized under state law. A "son" or "daughter" is a biological, adopted, or foster child, 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 mental or physical disability" at the time that FMLA leave is to commence. A parent is a biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the employee when the employee was a son or daughter as defined above.

Foster care

Twenty four (24) hour care for children in substitution for, and away from, their parents or guardian.  Such placement is made by or with the agreement of the State as a result of a voluntary agreement between the parent or guardian that the child be removed from the home, or pursuant to a judicial determination of the necessity for foster care, and involves agreement between the State and foster family that the foster family will take care of the child.  Although foster care may be with relatives of the child, State action is involved in the removal of the child from parental custody.

Health Care Provider

A "health care provider" is:

  • A doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices;

  • Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice in the State and performing within the scope of their practice as defined under State law;

  • Nurse practitioners, nurse-midwives and clinical social workers who are authorized to practice under State law and who are performing within the scope of their practice as defined under State law;

  • Physician's assistants who are licensed and are performing within the scope of their practice as defined by State law

  • 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.

Hours Worked

FLSA defines "hours worked" as ordinarily all the time during which an employee is required to be on the employer's premises, on duty, or at an assigned workplace.

Incapable of Self-Care

The individual requires active assistance or supervision to provide daily self-care in three or more of the "activities of daily living" (ADLs) or "instrumental activities of daily living" (IADLs).  Activities of daily living include adaptive activities such as caring appropriately for one's grooming and hygiene, bathing, dressing and eating.   Instrumental activities of daily living include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc.

Intermittent Leave Or Reduced Leave Schedule

Intermittent leave is FMLA leave taken in separate blocks of time due to a single qualifying reason. Leave must be taken in at least one hour increments.

A reduced schedule leave is FMLA leave for a single qualifying reason that reduces an employee's usual number of working hours per workweek, or hours per workday. A reduced leave schedule is a change in the employee's schedule for a period of time, normally from full-time to part-time.

Intermittent leave or reduced scheduled leave may be taken because of one's own serious health condition, to care for a parent, son, or daughter with a serious health condition, or to care for a covered service member with a serious injury or illness. There must be a medical need for leave, and it must be that such medical need can be best accommodated through an intermittent or reduced leave schedule.

Intermittent leave or reduced schedule leave after the birth of a healthy child or placement of a healthy child for adoption or foster care may be taken only with the employer's approval.

Employees needing intermittent leave or reduced schedule leave for foreseeable medical treatment must work with their supervisor or designated person in the unit or department to schedule the leave so as not to unduly disrupt the employer's operation, subject to the approval of the employee's health care provider. In such cases, the employer may transfer the employee temporarily to an alternative job with equivalent pay and benefit that accommodates recurring periods of leave better than the employee's regular job.

Military Caregiver Leave

Leave may be taken for a covered service member with a "serious injury or illness" that is incurred in the line of duty on active duty that may render the service member medically unfit to perform the duties of his or her office, grade, rank or rating, or for a veteran that meets the "serious injury or illness" definition.  Leave can be taken for a covered service member (a) who is on the temporary disability retired list, (b) who is undergoing medical treatment, recuperation, or therapy for the serious illness or injury; or (c) who is assigned to a military medical treatment facility as an out-patient or is otherwise receiving out-patient care at a unit established for members of the armed forces.  This FMLA leave does not apply to care for former members of the armed forces who are on the permanent disability list.

"Needed to Care For"

Means that because of a qualifying reason, the family member or covered service member is unable to care for her/his own basic medical, hygienic, or nutritional needs or safety, or is unable to transport him/herself to the doctor. The term includes both physical and psychological care.  The term also includes providing psychological comfort and reassurance which would be beneficial to a family member or covered service member with a serious health condition who is receiving inpatient or home care.

The term also includes situations where the employee may be needed to cover for others who normally care for the family member or covered service member, or to make arrangements for changes in care, such as transfer to a nursing home. The employee need not be the only individual or family member available to care for the family member or covered service member.

Next of Kin Of A Covered Service Member

Generally, the nearest blood relative, other than the service member's spouse, parent, son, or daughter in the following order of priority:  blood relatives who have been granted legal custody of the service member; brothers and sisters; grandparents; aunts and uncles; and first cousins.

Outpatient Status

With respect to a covered service member, the status of a member of the Armed Forces assigned to either:

  1. A military medical treatment facility as an outpatient; or

  2. A unit established for the purpose of providing command and control of members of the Armed Forces receiving medical care as out-patients.

Physical or Mental Disability

Means a physical or mental impairment that substantially limits one or more of the major life activities of an individual (as defined under the ADA).

 

Persons "In Loco Parentis"

Include those with day-to-day responsibilities to care for and financially support a child, or, in the case of an employee, who had such responsibility for the employee when the employee was a child. A biological or legal relationship is not necessary.

Qualifying Exigency

The amendments to the FMLA introduce a new type of leave which has nothing to do with a person's serious health condition or the birth or adoption of a child, but instead is for "qualifying exigencies" arising out of the military service of a covered family member.  This leave is limited to 12 weeks in the normal FMLA 12 month period. Certification is required for leave taken due to a qualifying exigency.

"Qualified exigencies" are now defined to include the following:

  1. Short-notice deployment.  Issues that arise from the fact that a covered military member is called to active duty with notice of seven days or less prior to deployment.  This leave can be taken during the seven-day period only.

  2. Military events and related activities.  Leave to attend official military events related to active duty, or to attend family support or assistance programs and informational briefings related to the call to active duty.

  3. Childcare and school activities.  Leave to arrange for alternative child care for a child (as defined by the FMLA) of a covered service member, to provide childcare on an emergency basis (but not a routine, regular, or every day basis), to enroll a child of a covered service member in school, or to attend school meetings for the child of a covered service member which the leave is necessitated by the active duty or call to active duty of the covered service member.

  4. Financial and legal arrangements.  Leave to make financial or legal arrangements to address the covered service member's absence for military duty, or to act and the covered service member's representative for purposes of obtaining military service benefits.  Leave can only be taken to obtain military service benefits while the service member is away on active duty or within 90 days of termination of that active duty.

  5. Counseling.  Leave to attend counseling by someone other than a health care provider for the employee, the covered service member, or a child of the covered service member, provided that the need for counseling arises from the military service.

  6. Rest and recuperation.  Leave to spend time with a covered service member who is on a short-term, temporary, rest and recuperation leave during the period of deployment.  This leave is limited to five days for each military rest and recuperation visit.

  7. Post-deployment activities.  Leave to attend post-deployment functions, such as arrival ceremonies or reintegration briefings, that occur within ninety (90) days following the termination of active duty status, or to address issues that arise from the death of the covered service member, such as making funeral arrangements.

  8. "Additional activities".  These are not defined by either the FMLA or the regulations.  The regulations state that such leave is allowed "to address other events which arise out of the covered military member's active duty or call to active duty status provided that the employer and the employee agree that such leave shall qualify as an exigency, and agree to both the timing and duration of such leave".  In other words, granting leave for "qualified exigencies" for purposes other than those stated under "Qualified Exigencies" is at the discretion of the employer, though employers should keep in mind that courts and the DOL will give eligible employees the benefit of the doubt in coverage and enforcement disputes.

For "qualifying exigencies" leave, employers may not seek second or third opinions, demand recertification, or seek authentication or clarification as they can with traditional medical certification. For military caregiver leave, employers may seek authentication and/or clarification of the certification form, but may not seek second or third opinions or recertifications.

Where the employee's "qualifying exigency" involves meeting with a third party, such as for counseling, the employer may contact the third party without the employee's permission to verify the appointment and the nature of the meeting.  The employer may also contact the Department of Defense, again without the employee's permission, to verify the employee's family member's active duty or call to active duty status.

Reduced Schedule

A reduced leave schedule is an intermittent FMLA leave that reduces an employee's usual number of working hours per workweek, or hours per workday. The reduced hours are considered intermittent FMLA leave and are counted against the 12 weeks annual leave available under FMLA for a family or personal serious health condition or against the combined total of 26 weeks for a service member family leave taken during a 12 month period.

Rolling 12-Month Period

Calculate available leave by determining the amount of leave used by an employee for the 12 months prior to each day for which leave is requested and subtracting that number from the total number of days equal to 12 work weeks. This is referred to as the "rolling" method of calculation.

Serious Health Condition

An illness, injury, impairment or physical or mental condition that involves:

  1. Inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility, including any period of incapacity (for purposes of this section, defined to mean inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery there from), or any subsequent treatment in connection with such inpatient care; or

  2. Continuing treatment by a health care provider.  A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:

  • Incapacity and treatment.  A period of incapacity (i.e., inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery there from) of more than three (3) consecutive, full calendar days, and 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.  A regimen of continuing treatment includes, for example, a course of prescription medication or therapy requiring special equipment to resolve or alleviate the health condition (e.g., oxygen);
  • Pregnancy or prenatal care.  Any period of incapacity due to pregnancy, or for prenatal care.  Both the mother and father are entitled to FMLA leave for the birth of their child. The mother is entitled to FMLA leave for incapacity due to pregnancy, for prenatal care, or for her own serious health condition following the birth of the child.  The husband is entitled to FMLA leave if needed to care for his pregnant spouse who is incapacitated or if needed to care for her during her prenatal care, or if needed to care for the spouse following the birth of a child if the spouse has a serious health condition.  Both a mother and father are entitled to FMLA leave if needed to care for a child with a serious health condition.  FMLA leave to care for a pregnant woman is not available to a boyfriend or fiancé who is the father of the unborn child.
  • Chronic conditions. Any period of incapacity or treatment for such incapacity due to a chronic serious health condition.  A chronic serious health condition is one 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.); or
  1. Permanent or long-term conditions. 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; or

  2. Conditions requiring multiple treatments. Any period of absence to receive multiple treatments (including any period  recovery there from) 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 (3) consecutive, full calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), or kidney disease (dialysis).

For purposes of Section 2 above, treatment by a health care provider means an in-person visit to a health care provider.  The first in-person treatment visit must take place within seven (7) days of the first day of incapacity.

Whether additional treatment visits or a regimen of continuing treatment is necessary within the 30-day period shall be determined by the health care provider.

  1. Absences attributable to incapacity under paragraphs (b) (pregnancy or prenatal care) or (c) (chronic conditions) of this section qualify for FMLA leave even though the employee or the covered family member does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three consecutive full calendar days.  For example, an employee with asthma may be unable to report for work due to the onset of an asthma attack or because the employee?s health care provider has advised the employee to stay home when the pollen count exceeds a certain level. An employee who is pregnant may be unable to report to work because of severe morning sickness.

Serious Injury or Illness - Covered Service Member

In the case of a member of the Armed Forces, including a member of the National Guard or Reserves, an injury or illness incurred by a covered service member in the line of duty on active duty in the Armed Forces that may render the service member medically unfit to perform the duties of the member?s office, grade, rank, or rating. Covered service member does not include individuals retired or discharged from service, unless they are placed on the temporary disability retired list.

Son or daughter on Active Duty or Call to Active Duty Status

An employee's biological, adopted, or foster child, stepchild, legal ward, or a child for whom the employee stood in loco parentis, who is on active duty or call to active duty status, and who is of any age.

Son or Daughter of a Covered Service Member

A covered member's biological, adopted, or foster child, a stepchild, legal ward or a child for whom the covered service member stood in loco parentis and who is of any age.

Treatment For Purposes Of A Serious Health Condition

Includes, but is not limited to, examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations. A regimen of continuing treatment includes, for example, a course of prescription medication (e.g., an antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition (e.g., oxygen).  A regimen of continuing treatment that includes the taking of over-the-counter medications such as aspirin, antihistamines, or salves; or bed rest, drinking fluids, exercise, and other similar activities that can be initiated without a visit to a health care provider, is not, by itself, sufficient to constitute a regimen of continuing treatment for purposes of FMLA leave.

Conditions for which cosmetic treatments are administered (such as most treatments for acne or plastic surgery) are not serious health conditions unless inpatient hospital care is required or unless complications develop.

Unable To Perform The Essential Functions Of One's Position

Means the health care provider finds the employee is unable to work at all or is unable to perform any one or more of the essential functions of her/his position within the meaning of the Americans with Disabilities Act (ADA).  WSU has the option to provide a statement of the essential functions of the employee's job for the health care provider to review.