3.4.5 Family and Medical Leave Act
To set forth employees' rights to leave and procedures to be followed in accordance with the Family and Medical Leave Act of 1993 and University policy.
This policy covers all eligible university employees.
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.
Family and Medical leave will run concurrently with University paid leaves (sick leave, vacation leave, workers' compensation, short-term disability, etc.) and unpaid leaves. Where an employee's absence qualifies for FMLA leave, the employee is not permitted to take other leaves prior to taking FMLA leave (e.g. an employee may not elect to use their sick time in lieu of FMLA leave where the leave is FMLA-qualifying).
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. Employees covered by a CBA should also refer to their applicable CBA.
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/tcw/loa-fmla/fmla. First time users will need to register by providing their Access ID (e.g. zz1222), home postal (ZIP) code and home phone number.
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.
SITUATIONS COVERED BY FMLA LEAVE
Eligible employees are entitled to FMLA leave under the following situations:
- For the birth and care of a newborn child of the employee, anytime within the first 12 months of the birth of the child.
- For the placement of a child with the employee for adoption or foster care and to bond with that child anytime within the first 12 months of the placement of the child.
- To care for an employee's spouse/eligible partner, son, daughter, or parent with a serious health condition.
- Because of a serious health condition that makes the employee unable to perform the essential functions of his/her job.
- 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.
- 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.
A serious health condition means an illness, injury, impairment, or physical or mental condition that involves:
- In-patient care in a hospital, hospice or residential medical care facility, or
- Continuing treatment by a health care provider that includes one or more of the following:
- a period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or related period of incapacity relating to the same condition;
- any period of incapacity due to pregnancy or for prenatal care;
- any period of incapacity or treatment for such incapacity due to a chronic serious health condition;
- a period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective and for which the employee or family member is under the continuing supervision by a health care provider; or
- any period of absence due to multiple treatments (including any period of recovery from the treatments) for restorative surgery after an accident or other injury, or a condition that would likely result in a period of incapacity of more than three consecutive, full calendar days in the absence of medical intervention or treatment.
As noted, an employee taking leave for a serious health condition (or any other FMLA-qualifying event/condition) is prohibited from taking other types of paid or unpaid leave in lieu of FMLA time. Such leaves will run concurrently.
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.
INTERMITTENT FMLA LEAVE
Under some circumstances, FMLA leave may be taken on an intermittent basis or the employee may work a reduced schedule. These include:
- For the employee's own serious health condition when intermittent leave or a reduced schedule is medically necessary and the recommended care can best be provided through intermittent absences from work or a reduction in hours;
- To care for a family member with a serious health condition;
- To care for a covered servicemember with a serious injury or illness;
- To address a qualifying exigency.
If leave is taken after the birth or placement of a child with the employee for adoption or foster care, an employee may take the leave intermittently or on a reduced leave schedule only if the department agrees (unless medically required). Needs of the employee and the department should be balanced to achieve a workable arrangement and maximum benefits for both. Any such leave must conclude within 12 months after the birth or placement of the child.
Intermittent leave is leave taken in separate blocks of time due to an illness or injury and may include leave periods from a .25 hour increment or more to several days. Examples would 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.
Intermittent leave must be certified by a health care provider as necessary. An employee who takes intermittent leave for planned medical treatment must make a reasonable effort to schedule the treatment so as to avoid undue disruption to the department's/University's operations.
A reduced leave schedule reduces an employee's usual number of working hours per workweek, or hours per workday due to an illness or injury.
Where an employee takes intermittent/reduced schedule leave for foreseeable/planned medical treatments, the employee may be temporarily transferred to an alternate job with equivalent pay and benefits that accommodate recurring periods of leave better than the employee's regular job. At the conclusion of the employee's intermittent or reduced schedule leave, the employee will be restored to their original position or an equivalent position.
EMPLOYEE NOTICE REQUIREMENTS
Employees are required to provide WSU with timely notice of their need for a FMLA leave. The required timing for providing notice (including foreseeable and unforeseeable leave) and notification procedures are set forth below. If an employee fails to provide timely notice of the need for leave, their FMLA request may be delayed or denied, and general attendance policies may apply.
Once it has sufficient information to designate a particular leave as FMLA, WSU's TPA will provide the employee with a Designation Notice and the leave will be counted towards the employee's FMLA entitlement, regardless of how the employee has chosen to designate the absence. If an eligible employee's leave is FMLA-qualifying, the employee is prohibited from exhausting some or all of their paid leave prior to using their FMLA leave.
The following rules apply in giving notice to WSU of the need for FMLA leave:
- 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.
- 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 https://hr.wayne.edu/tcw/loa-fmla/fmla (NEW)
- Once the employee provides WSU with notice to make it aware that the employee may need an FMLA-qualifying leave, WSU will refer the employee to WSU's TPA to initiate the request for a FMLA leave, pursuant to the procedures set forth below. An employee has a duty to respond to WSU's TPA's questions so WSU's TPA can determine whether an absence is FMLA-qualifying.
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 whether the need for leave is foreseeable less than 30 days in advance, a lack of knowledge or approximately when leave will be required to begin or because of a change in circumstances, notice must be given as soon as practicable - typically the same day the leave becomes foreseeable or the next business day.
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 AN 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
For intermittent leave, the employee must specify that the absence is due to FMLA when requesting leave. Calling in as "sick" is not sufficient notice to trigger employer obligations under the FMLA.
Employees are expected to comply with WSU's/the department's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.
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's TPA 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:
- Whether the employee is eligible for FMLA leave;
- If not eligible, the reason or reasons why the employee is not eligible;
- The employee's rights and responsibilities for taking FMLA leave;
- The required deadline for providing certification to WSU's TPA.
EMPLOYEE CERTIFICATION REQUIREMENTS
Certification may be required to verify an employee's need for FMLA leave for their own serious health condition, to care for a family member with a serious health condition or for military family leave. At the time an employee gives WSU's TPA notice of the need for such 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.
The employee seeking leave 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/
While a certification will not be requested when leave is sought to bond with a healthy newborn child or a child placed for adoption or foster care, documentation may be requested to confirm the family relationship.
A. Notification of Incomplete or Insufficient Certification
WSU's TPA 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 Recertification
WSU may request an employee to provide a recertification every 30 days in connection with an absence by the employee. Where an employee's certification indicates that the minimum duration of the serious health condition is more than 30 days, WSU may request a recertification in connection with the employee's absence after the minimum duration of the serious health condition has expired or every six months, whichever period is shorter.
WSU may request additional certification in less than 30 days if the employee requests an extension of leave; the circumstances described by an initial certification have changed significantly; or WSU has received information that causes it to doubt the employee's stated reason for absence or the continuing validity of the existing medical certification.
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 or deny the taking of FMLA leave to an employee who fails to provide a certification within the required time or who fails to provide a complete and sufficient certification despite an opportunity to cure deficiencies.
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 certifications are authentic and sufficient.
For foreseeable leave, where the employee is required to provide at least 30 day 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's TPA 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 AND FITNESS-FOR-DUTY CERTIFICATION
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 an FMLA leave for their own serious health condition(s) that renders them unable to perform their job will be required to present a return to work (fitness-for-duty) certification indicating that the employee is able to resume work and can perform the essential functions of the job. Failure to provide a requested medical certification may result in delay of job restoration until the certification is provided.
A fitness-for-duty certification is not required for intermittent leave. If, however, WSU has a reasonable belief that the employee's return to work presents a significant risk of harm to the employee or to others, WSU may require a fitness-for-duty medical certification up to once every 30 days.
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 – Charging and Recording Time
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 and the employee's available paid time off. Unless a CBA provides differently, the following rules apply:
- Employees who take FMLA leave because of their own serious health condition or to give birth to a child (excluding time to bond with a healthy newborn child or a child placed for adoption or foster care), must concurrently use all available paid leave before being eligible for unpaid leave in the following order: The appropriate time codes include FI (FMLA Illness), FV (FMLA Vacation), FP (FMLA Holiday) and FA (FMLA Absence without Pay). Upon receiving a FMLA decision, depending upon the FMLA approval date, a revised timesheet may need to be submitted to payroll.
- Accrued Illness Banks
- Vacation Banks
- Other paid time off (such as Any Purpose, Special Needs, and/or Floating Holidays days)
The appropriate time codes include FI (FMLA Illness), FV (FMLA Vacation), FP (FMLA Holiday) and FA (FMLA Absence without Pay). Upon receiving a FMLA decision, depending upon the FMLA approval date, a revised timesheet may need to be submitted to payroll.
- Employees who take a service member family leave; or leave to bond with a healthy newborn child or a child placed for adoption or foster care; or to care for a seriously ill spouse, child, or parent must concurrently use all accrued vacation and Any Purpose days before being eligible for unpaid leave. For AAUP members, please refer to language in your CBA.
The appropriate time codes would include FV (FMLA Vacation) and FA (FMLA Absence without Pay). Upon receiving a FMLA decision, depending upon the FMLA approval date, a revised timesheet may need to be submitted to payroll.
D. Maintenance of Health Benefits.
An employee may continue medical, dental, and vision 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.
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, unless the employee was scheduled and expected to work on the holiday and used FMLA leave for that day.
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.
SUPERVISOR, BUSINESS MANAGER, OR DESIGNATED PERSON in UNIT
THIRD PARTY ADMINISTRATOR (TPA)
RELATED UNIVERSITY/BOARD POLICIES
EFFECTIVE DATE: 2/21/2022
REVISED DATE: 2/18/2022
REVIEWED DATE: 2/21/2022
TO BE REVIEWED, AT A MINIMUM, EVERY THREE YEARS AND/OR REVISED AS NEEDED BY: Associate Vice President (AVP) and Chief Human Resources Officer (CHRO)
NEXT REVIEW BY DATE: 2/20/2025
Date of previous version is unknown