Wayne State University

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Policies-8

3.4.5 Family and Medical Leave Act

POLICY

Wayne State University (WSU) is a covered employer under Title I of The Family and Medical Leave Act (FMLA) of 1993. The FMLA is a federal law enacted to help employees balance their work and family life and to promote the stability and economic security of families. It allows eligible employees to take job-protected unpaid leave, or substitute appropriate paid leave if the employee has earned it, for up to a total of 12 work weeks during a 12-month period for a family or personal serious health condition which qualifies under FMLA, or a combined total of 26 weeks during a single 12-month period if a service member family leave is taken.

It was intended that the Act accomplish these purposes in a manner that accommodates the legitimate interests of employers.

This document describes WSU's FMLA leave policy. It does not alter, amend or diminish any leave provisions that may be provided by any Collective Bargaining Agreement (CBA) entered into by WSU.  WSU will provide leave under and according to whichever statutory provision or CBA provides the greater rights to its employees.

A Third Party Administrator (TPA) will administer WSU?s FMLA policy in accordance with these provisions and the applicable provisions of any CBA in effect with WSU.  In all instances relating to administering this policy, the TPA acts as the designated representative of WSU.

Full details of FMLA, relevant definitions and the Department of Labor (DOL) regulations can be found at the TPA's website, http://www.fmlasource.com/, or at http://www.hr.wayne.edu/esc.

Employee Eligibility:

Employees who have worked for WSU for a total of 12 months (may have been intermittent) during the seven (7) years prior to the date FMLA leave is to begin, and have at least 1,250 work hours during the 12-month period immediately before the beginning of FMLA leave, are eligible for FMLA.

Whether an employee has worked the minimum 1,250 hours of service in the previous 12 months is determined according to the principles established under the Fair Labor Standards Act (FLSA) for determining compensable hours of work.

The 1,250 hours requirement is counted only for hours actually worked and does not count hours spent on vacation, sick and personal leave, short and long-term disability, workers' compensation, etc.

An exempt employee under FLSA (i.e., bona fide executive, administrative and professional employees), for whom only exception time records are kept, will be presumed to have worked at least 1,250 hours in the previous 12 months unless WSU can clearly demonstrate that the employee did not meet the 1,250 hour requirement.

WSU uses a rolling 12-month period for all employees to determine whether an employee has worked 1,250 hours in the previous year to be eligible for FMLA leave.

Under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), an employee returning from fulfilling his or her National Guard or Reserve military obligation shall be credited with the hours of service that would have been performed but for the period of military service in determining whether the employee worked the 1,250 hours of service.   In order to determine the hours that would have been worked during the period of military service, the employee's pre-service work schedule can generally be used for calculations.

Covered Situations For FMLA Leave:

Employees are entitled to FMLA leave under the following situations:

  1. For the birth and care of a newborn child of the employee, anytime within the first 12 months of the birth of the child.

  2. For the placement of a child for adoption or foster care with the employee, anytime within the first 12 months of the placement of the child.

  3. To care for an employee's spouse/eligible partner, son, daughter, or parent with a serious health condition.

  4. Because of a serious health condition that makes the employee unable to perform the essential functions of his/her job.

  5. Because of a qualifying exigency relating to a family member's active military duty or call to active duty status in support of a contingency operation.

  6. For military caregiver leave related to care of a spouse, son, daughter, parent, or next of kin of either a current covered service member who has, or is recuperating from, a serious illness or injury incurred in military service that renders the service member medically unfit to perform the duties of his or her office, grade, rank or rating, or for a veteran who required medical treatment, recuperation or therapy.

Amount of Leave:

For FMLA leave under categories 1 through 5 above, an eligible employee can take a total of 12 workweeks of FMLA leave during any 12-month period.

For FMLA leave under category 6 above, an eligible employee can take a total of 26 workweeks of FMLA leave during a single 12-month period.  The 26 workweeks of leave are decreased by FMLA leave taken by the employee for other qualifying reasons.  In other words, 26 workweeks is the maximum amount of leave available to an employee to care for a covered service member and for all other FMLA reasons.

Spouses employed by WSU can take a combined total of 12 workweeks of leave for categories 1 through 3 during any 12-month period.  When spouses use a portion of the combined 12 workweeks for any of categories 1 through 3 above, the spouses can each take the difference between the amount he or she has taken individually and 12 workweeks of FMLA leave for other purposes. For example, if each spouse took 6 weeks of leave to care for a healthy newborn child, each could use the additional 6 weeks due to his or her own serious health condition.

Spouses employed by WSU can take a combined total of 26 workweeks during a single 12-month period for FMLA leave under category 6, with the same limitations as stated above.

Employee Notice Requirements:

The following rules apply in giving notice to WSU of the need for FMLA leave:

  1. Employees must notify their supervisor, business manager or designated person in the unit of the need for FMLA leave in accordance with their unit or department's usual and customary practice. An employee need not share specific personal information (diagnosed illness/injury). An employee calling in "sick" is not sufficient notice of the need for FMLA leave.

  2. Employees must notify WSU's TPA of the need for FMLA leave.  This can be done on the TPA's website: http://www.fmlasource.com/, which can also be reached through at link at http://www.hr.wayne.edu/esc.

  3. Once the employee provides WSU with notice sufficient to make it aware that the employee needs an FMLA-qualifying leave, if it is necessary to have more information, WSU will be expected to inquire further of the employee. An employee has a duty to respond to WSU's questions so WSU can determine whether an absence is potentially FMLA-qualifying.  Alternatively, the employee can sign a Medical Release so that WSU can obtain the necessary information directly from the applicant's health care provider.

  • Amount of Notice Required For Foreseeable Leave.

An employee must provide WSU with at least 30 days advance notice before FMLA leave is to begin if the need for the leave is foreseeable. If 30 days' notice is not practicable, such as because of a lack of knowledge of approximately when leave will be required to begin or because of a change in circumstances,  notice must be given as soon as practicable.

When planning medical treatment, the employee must consult with his/her supervisor or designated person in the unit or department and make a reasonable effort to schedule the treatment so as not to unduly disrupt the employer's operations, subject to the approval of the health care provider.

The employee shall advise his/her supervisor or designated person in the unit or department as soon as practicable if dates of scheduled leave change or are extended, or were initially unknown.

  • Amount of Notice Required For Unforeseeable Leave

If the need for FMLA leave is unforeseeable, notice must be given by the employee as soon as practicable under the facts and circumstances of the particular case.  It generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time required by WSU?s usual and customary notice requirements applicable to such leave.

Employer Notice Of Eligibility And Rights And Responsibilities:

When an employee requests FMLA leave, or when WSU acquires knowledge that an employee's leave may be for an FMLA-qualifying reason, WSU will provide to the employee a Notice of Eligibility and Rights and Responsibilities.  Absent extenuating circumstances, this Notice will be given within five (5) business days of an employee notifying WSU of the need for FMLA leave. This Notice will indicate the following:

  1. Whether the employee is eligible for FMLA leave;
  2. If not eligible, the reason or reasons why the employee is not eligible;
  3. The employee's rights and responsibilities for taking FMLA leave;
  4. The required deadline for providing certification to WSU's TPA.

Employee Certification Requirements:

At the time an employee gives WSU's TPA notice of the need for leave, or within five (5) business days of receiving said notice, WSU's TPA will request that the employee furnish a complete and sufficient certification of the need for leave.

An employee who desires FMLA status must provide the requested certification to WSU's TPA within fifteen (15) days after the request was made, unless it is not practicable under the particular circumstances to do so despite the employee?s diligent, good faith efforts or unless the employer provides more than fifteen (15) calendar days to return the certification.

Appropriate certification forms are available at: (http://www.fmlasource.com/).

A. Notification Of Incomplete Or Insufficient Certification.

WSU shall notify the employee whenever WSU finds a certification incomplete or insufficient, and shall state in writing what additional information is necessary to make the certification complete and sufficient. A certification is incomplete if WSU receives a certification, but one or more of the applicable entries have not been completed. A certification is insufficient if WSU receives a complete certification, but the information provided is vague, ambiguous, or non-responsive.

WSU will provide the employee with seven (7) calendar days to cure any deficiency. If the deficiencies specified by WSU are not cured in the resubmitted certification, WSU may deny the taking of FMLA leave.

B. Second Opinion.

If WSU has reason to doubt the validity of a medical certification, it may require the employee to obtain a second opinion at WSU's expense. Pending receipt of the second medical opinion, the employee is temporarily entitled to the benefits of the Act, including maintenance of group health benefits. If the certifications do not ultimately establish the employee's entitlement to FMLA leave, the leave shall not be designated as FMLA leave and may be treated as paid or unpaid leave under WSU's established leave policies or under any relevant CBA.

C. Third Opinion.

If the opinions of the employee's and the employer's designated health care providers differ, WSU may require the employee to obtain certification from a third health care provider, again at WSU's expense. This third opinion shall be final and binding.

D. Annual Medical Certification.

Where the employee's need for leave due to the employee's own serious health condition, or the serious health condition of the employee's covered family member, lasts beyond a single leave year, WSU may require the employee to provide a new medical certification in each following leave year. Such new medical certifications are subject to the rules for authentication and clarification set forth above, including second and third opinions.

E. Request For Additional Certification Where WSU Has Reason To Question The Appropriateness Of Leave Or Its Duration.

WSU may request additional certification at some later date if it later has reason to question the appropriateness of the leave or its duration. The employee must provide the requested certification to WSU's TPA within fifteen (15) calendar days after the employer's request, unless it is not practicable under the particular circumstances to do so despite the employee's diligent, good faith efforts, or unless the employer provides more than fifteen (15) calendar days to return the requested certification.

Consequences For Failure To Comply With Notice And/or Certification Requirements:

Where an employee does not notify the supervisor, business manager or designated person in the unit, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.

WSU may also delay the taking of FMLA leave to an employee who fails to provide a complete and sufficient certification on a timely basis.

It is the employee's responsibility either to furnish a complete and sufficient certification or to furnish the health care provider providing the certification with any necessary authorization from the employee or the employee's family member in order for the health care provider to release a complete and sufficient certification to the employer to support the employee's FMLA request.  This provision will apply in any case where an employer requests a certification permitted by these regulations, whether it is the initial certification, a recertification, a second or third opinion, or a fitness for duty certificate, including any clarification necessary to determine if such certification are authentic and sufficient.

For foreseeable leave, where the employee is required to provide at least 30 days notice of foreseeable leave and does not do so, WSU may delay the taking of FMLA.  The employee shall explain the reasons why such notice was not practicable upon a request from WSU for such information.

For unforeseeable leave, an employee has an obligation to respond to WSU's questions designed to determine whether an absence is potentially FMLA-qualifying. Failure to respond to reasonable WSU inquiries regarding the leave request may result in denial of FMLA protection if WSU is unable to determine whether the leave is FMLA-qualifying.

Employer Responsibility For Providing Designation Notice:

WSU is responsible, in all circumstances, for determining whether an employee leave from work is an FMLA-qualifying event, and if so, for designating the leave as FMLA and for giving notice of the designation to the employee.

When a requested FMLA leave is approved, WSU's TPA will notify the employee that the requested leave is designated as FMLA-protected and will inform the employee of the amount of leave that will be counted against the employee's FMLA leave entitlement.

If additional information is needed to determine if the employee's FMLA leave request can be approved, WSU's TPA will notify the employee what additional information is requested and the deadline for providing that information.

When a requested FMLA leave is denied, WSU's TPA will notify the employee that the requested leave is denied and the reason for the denial.

Return to Work

WSU may require an employee on FMLA leave to report periodically on the employee's status and intent to return to work. WSU's policy regarding such reports will not be discriminatory and will take into account all of the relevant facts and circumstances related to the individual employee's leave situation.

An employee who takes a leave under this policy will be returned to the same or an equivalent position with the same benefits and terms of employment.

An employee's use of FMLA leave will not result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave.

Employees returning from a medical FMLA leave may be required, when appropriate, to present medical certification of fitness for duty. Failure to provide a fitness for duty certification may result in a denial of job reinstatement until the certification is provided.

General Information:

A. Equal Application.   

The right to take FMLA leave applies equally to male and female employees. A father, as well as a mother, can take family leave for the birth, placement for adoption, or foster care of a child.

B. Absolute Right For Qualifying Reasons.

Eligible employees have an absolute right to FMLA leave, which means leave may not be denied for FMLA-qualifying circumstances.

C. Paid/Unpaid Leave.  

FMLA leave may be paid, unpaid or a combination of paid and unpaid depending upon the circumstances and as specified in this policy or a particular CBA. FMLA leave is concurrent with existing maternity leave, workers' compensation absence due to an on-the-job injury or illness (provided it also qualifies as a serious health condition), and other paid/unpaid leaves of absence taken for FMLA reasons.  Unless a CBA provides differently, the following rules apply:

  1. Employees who take leave because of their own serious health condition or to give birth to a child, must use paid leave before being eligible for unpaid leave in the following order:
    1. Accrued Illness Banks
    2. Vacation Banks
    3. Personal Business Time (where applicable)
  2. Employees who take a service member family leave or a leave for the birth, adoption or foster care of a child or to care for a seriously ill spouse, child, or parent, must use all accrued vacation and personal business time respectively before being eligible for unpaid leave.
  3. Sick leave used for short-term illnesses or absences (i.e., less than 3 days) that are not qualifying FMLA events will not be counted as FMLA leave.

D. Maintenance of Health Benefits.

An employee may continue medical and dental benefits under the same conditions and at the same cost as if the employee had continued to work. Payroll deduction of benefit premiums will continue while the employee is on paid FMLA leave. Benefit premiums due during unpaid FMLA leave will be billed to the employee.

If an employee chooses not to return to work for reasons other than a continued serious health condition, WSU will require the employee to reimburse the university the amount the university paid for the employee?s health insurance during the leave.

E. Holidays.

Holidays will be counted as FMLA leave if the employee is on FMLA leave the entire week in which the holiday falls.  If the employee takes FMLA leave for less than a full workweek in which a holiday falls, the holiday does not count as FMLA leave.

Enforcement And Protection:

FMLA makes it unlawful for any employer to: (1) Interfere with, restrain, or deny the exercise of any right provided under FMLA; or (2) Discharge or discriminate against  any person for opposing any practice made unlawful  by FMLA or for involvement in any proceeding under or relating to FMLA.

The U.S. Department of Labor is authorized to investigate and resolve complaints of violations. An eligible employee may bring a civil action against an employer for violations.

Interaction With Collective Bargaining Agreements And With State And Federal Anti-Discrimination Laws

Nothing in this policy modifies affects or diminishes any rights provided to employees under an existing CBA. WSU will provide leave under and according to whichever statutory provision or CBA provides the greater rights to its employees.

Nothing in this policy modifies affects or diminishes any Federal or State law prohibiting discrimination on the basis of race, religion, color, national origin, sex, age, or disability.

These FMLA leave provisions are wholly distinct from WSU?s reasonable accommodation obligations under the ADA or regulations issued under that Act.

ADA's "disability" and FMLA's "serious health condition" are different concepts, and must be analyzed separately.  If an employee is a qualified individual with a disability within the meaning of the ADA, WSU will make reasonable accommodations, etc., barring undue hardship, in accordance with the ADA.  At the same time, WSU will afford the employee his or her FMLA rights.

PROCEDURE

Responsibility

Action

Employee

  1. Notify supervisor, business manager or designated person in unit and notify WSU's TPA with sufficient information to indicate need for FMLA-qualifying leave:

    • --at least thirty (30) day notice when illness is
    • foreseeable;
    • --as soon as practicable when illness is not
    • foreseeable;
  2. Submit to WSU's TPA a complete and sufficient medical certification within fifteen (15) business days of request for same.

  3. When appropriate, provide a "fitness-for-duty" certification to WSU's TPA before returning to work from leave.

Supervisor, Business Manager or Designated Person in Unit

  1. Contact TPA if employee is absent from work more than three (3) consecutive work days due to illness.  Work days are defined as days an employee is normally scheduled to work.

  2. Notify TPA when unit receives notice from employee sufficient to indicate need for FMLA-qualifying leave.

  3. Verify employee timesheets are accurately coded in accordance with the information provided in the "Designation Notice" and approve employee time sheets.

Risk Manager

  1. Contact TPA and business manager, supervisor or designated person in unit if an employee has been approved for Workers' Compensation.

Third Party Administrator

  1. Administer FMLA in accordance with Family and Medical Leave Act of 1993, WSU's FMLA leave policy, and/or any applicable CBA.

  2. Immediately notify the supervisor, business manager or designated person in employee's unit that employee has applied for FMLA.

  3. Review employee certification information.

  4. Provide employee with "Notice of Eligibility and Rights and Responsibility FMLA" form within five (5) business days after employee requests FMLA leave, absent extenuating circumstances.

  5. Within five (5) business days of receipt of notice, request employee to provide complete and sufficient certification within fifteen (15) business days.

  6. Provide employee and business manager with written "Designation Notice" for FMLA leave within five (5) business days of receiving complete and sufficient certification, absent extenuating circumstances.

  7. Manage leave in accordance with the parameters outlined in the "Designation Notice".