Family and Medical Leave Act (FMLA) of 1993 and DPU Medical Leave
FMLA Eligibility – Employees who have worked at least one year (does not have to be continuous but separation cannot exceed seven (7) years unless the break-in-service was due to National Guard or Reserve Military service obligations) and for at least 1250 hours over the prior 12 months.
DPU Medical Leave Eligibility – All full-time, benefit status employees
Reasons for FMLA Leave
An eligible employee may take FMLA leave of up to 12 weeks per leave year (26 weeks in the case of leave to care for a seriously-ill family member who is member of the Armed Forces, National Guard or Reserves on active duty or on the Temporary Disability Retired List (TDRL) or who is a veteran discharged or released under conditions other than dishonorable discharge up to five years prior to the date the employee’s military caregiver leave begins and whose injury or illness occurred or was aggravated in the line of duty) for any of the following reasons:
- to care for the employee’s newborn child, or to care for a child newly placed in the employee’s custody through adoption or foster care, for a period of up to one year after such birth or placement; or
- to care for the employee’s spouse, same-sex domestic partner, child, or parent who has a serious health condition; or
- to care for a spouse, same-sex domestic partner, son or daughter, parent or next of kin who is a covered military service member with a serious injury or illness, or
- for the employee’s own serious health condition, if that condition makes the employee unable to perform his or her job duties, or
- due to a qualifying exigency arising out of the fact that your spouse, same-sex domestic partner, son or daughter, or parent is on covered active duty (limited to members deployed to a foreign country) or call-to-active-duty status, or
- to care for a military member’s parent (not necessarily the parent of the employee) who is incapable of self-care when the care is necessitated by the military member’s covered active duty (care may include arranging for alternative care, providing care on an immediate need basis, admitting or transferring the military member’s parent to a care facility, or attending meetings with staff at a care facility).
Leave taken may be continuous or intermittent for a medically-related leave. Leave can only be taken continuously for a non-medically-related leave (with the exception of Rest and Recreation leave under the qualifying exigency leave category), unless agreed upon by the employee’s supervisor. Any leave taken by an eligible employee for one or more of these reasons in combination will be counted against that employee’s annual FMLA leave entitlement.
FMLA Leave Year Defined
For the purposes of this policy, the leave year will be determined by a “rolling” 12-month period measured backward from the date the employee first takes time off for an FMLA qualified leave (except in the case of leaves to care for a seriously ill or injured covered military service member or veteran, in which case by law the leave must be measured forward from the date the employee first takes off).
Serious Health Condition Defined
For the purpose of determining whether an eligible employee or his or her non-military spouse, same-sex domestic partner, child or parent has a serious health condition, such a condition includes any injury, illness, impairment, or physical or mental condition that either requires inpatient care in a medical facility (i.e., overnight hospitalization) and/or continuing treatment by a healthcare provider (i.e., treatment two or more times which must take place within a 30-day period) or for a chronic condition (i.e., requires periodic visits for treatment of a least twice a year).
For the purposes of determining whether a military (active duty) spouse, same-sex domestic partner, son or daughter, parent or next of kin has a serious health condition, such condition includes any injury, illness, impairment, or physical or mental condition, incurred or aggravated, by the individual in the line of duty while on active duty and which renders the individual medically unfit to perform the duties of the individual’s office, grade, rank or rating,
For the purposes of determining whether a covered veteran spouse, same-sex domestic partner, son or daughter, parent or next of kin has a serious health condition, such condition includes:
1) a continuation of a serious injury or illness that was incurred or aggravated when the covered veteran was a member of the Armed Forces and rendered the service member unable to perform the duties of the service member’s office, grade, rank or rating,
2) a physical or mental condition for which the covered veteran has received a VA Service Related Disability Rating (VASRD) of 50 percent or greater and such VASRD is based, in whole or in part, on the condition precipitating the need for caregiver leave,
3) a physical or mental condition that substantially impairs the veteran’s ability to secure or follow substantially gainful occupation by reason of a disability or disabilities related to military service or would do so absent treatment, or
4) an injury, including a psychological injury, on the basis of which the covered veteran has been enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.
Next of Kin Defined
The term is defined as the “nearest blood relative” of the employee in the following order of priority: 1) blood relative designated in writing by the service member as next of kin, 2) blood relative granted legal custody of the service member by court decree or statutory provision, 3) brothers and sisters, 4) grandparents, 5) aunts and uncles, and 6) first cousins.
Qualifying Exigency Defined
A qualifying exigency is a non-medical activity that is directly related to the covered military member’s active duty or call to active duty status. For an activity to qualify as an exigency, it must fall within one of seven categories of activities or be mutually agreed to by the University and the employee (including agreement on timing and duration of such a leave). The seven categories are: 1) short-notice deployment (leave permitted up to seven days if the military member receives seven or less days’ notice of a call to active duty), 2) military events and activities, 3) certain temporary childcare arrangements and school activities (but not ongoing childcare), 4) financial and legal arrangements, 5) counseling by a non-medical counselor (such as a member of the clergy), 6) rest and recuperation (leave permitted up to fifteen days when the military member is on temporary rest and recuperation leave), and 7) post-deployment military activities.
Compensation for FMLA Leave
Under the law, FMLA leave is unpaid. However, under DePauw University’s Medical Leave policy, employees enjoy the benefit of receiving certain kinds of paid leave in substitution for unpaid leave. However, such paid leave is still counted towards and runs concurrently with the employee’s 12 (or 26) weeks of FMLA leave granted for the leave year.
For Birth/Adoption of a Child: An hourly (nonexempt) full-time, benefit eligible employee is required to use accumulated vacation and personal time prior to the commencement of unpaid leave. A salaried (exempt) full-time, benefit eligible non-faculty employee is required to use accumulated vacation time for the same purpose.
For Leave for a Qualifying Exigency: An hourly (nonexempt) full-time, benefit eligible employee is required to use accumulated vacation and personal time prior to the commencement of unpaid leave. A salaried (exempt) full-time, benefit eligible non-faculty employee is required to use accumulated vacation time for the same purpose.
For Care of Spouse, Same-Sex Domestic Partner, Child, Parent or Next of Kin: An hourly (nonexempt) full-time, benefit eligible employee is required to use up to 10 days of accumulated sick leave and in addition is required to use all remaining accumulated vacation and personal time to care for a seriously ill spouse, same-sex domestic partner, child, parent or next of kin prior to the commencement of unpaid leave. A salaried (exempt) full-time, benefit eligible non-faculty employee will be granted up to 10 days under salary continuance in addition to the required use of all remaining accumulated vacation time for the same purpose. A full-time, benefit eligible faculty member may use up to 10 days of salary continuance only under the same circumstances.
For Serious Illness of the Employee (including pregnancy):
For Hourly (nonexempt) Full-Time, Benefit Eligible Employees - The employee is required to use accrued sick time; once exhausted, then personal time, compensatory time, and vacation time are to be used at rates based on his/her regular work schedule (an exception is made if the use of sick time rather than personal/compensatory/vacation will penalize the employee (for example, if the employee has accrued the maximum vacation time)). During a paid medical leave, benefits continue as though the employee is actively working. Benefits include but are not limited to :
- The employee will continue to accrue sick and vacation time based upon pay period hours reported.
- The employee will be paid for holidays occurring during his/her regular schedule.
- Health insurance contributions made by the employee will be deducted from pay issued.
- The employee will remain an active participant in the retirement program(s).
A full-time, benefit eligible, hourly employee on medical leave will be eligible for wage continuance for a period of up to eight (8) weeks when the medical condition is due to pregnancy and/or delivery.
- The employee must have completed the initial 90-day new employee introductory period required for all newly hired hourly employees.
- Wage continuance will only be available during the time when the employee is normally scheduled to work.
- The employee will be eligible for wage continuance as long as it is medically necessary for the employee to be released from work due to pregnancy and/or delivery. The actual length of time will be determined by the information provided in the physician’s statement. The leave can be continuous, part-time or intermittent. The maximum wage continuance period is eight (8) weeks.
- All benefits continue as though the employee is actively working.
Unpaid medical leave begins when the employee has exhausted all available paid time. The benefits affected for an employee on unpaid medical leave include but may not be limited to:
- The employee will not accrue vacation and sick time.
- The employee will not be paid for holidays.
- The employee may continue participation in the group health insurance program during a medical leave. The University will continue to pay the employer portion of the group health insurance only if the employee makes arrangements for payment of the employee portion.
- All employer retirement plan contributions will be discontinued.
For Salaried Full-Time Benefit Eligible Employees – A salaried employee will be considered in salary continuance at full pay up to 180 calendar days when it is medically necessary for the employee to be away from work. The salary continuation period will run concurrently with the Family and Medical Leave Act (FMLA) of 1993 leave period. During the salary continuance period all benefits continue as though the employee is actively working.
After 180 calendar days, salary continuation will cease. Non-faculty employees will then use accrued vacation leave until it is exhausted. The employee may apply for Long Term Disability (LTD) benefits. Long Term Disability (LTD) benefits provide a substitute for the lost salary if the certified disability qualifies under the Long Term Disability (LTD) policy. Refer to your LTD insurance policy LTD insurance policy for additional information.
Unpaid medical leave begins when the employee has exhausted all available paid time whether the employee is approved for LTD coverage or not. The benefits affected for an employee on unpaid medical leave include but may not be limited to:
- The employee will not accrue vacation time.
- The employee will not be paid for holidays.
- The employee may continue participation in the group health insurance program during the unpaid leave. The University will continue to pay the employer portion of the group health insurance premium only if the employee makes arrangements for payment of the employee portion.
- All employer retirement plan contributions will be discontinued.
Duration of Leave, Job Benefits and Job Protection
For the duration of the FMLA leave (which, whether continuous, part-time or intermittent, will not exceed the equivalent of twelve (12) work weeks in a rolling calendar year based upon the first day of FMLA leave (except in the case of leave to care for a seriously ill military service member where the leave may be for as much as 26 weeks), the University must maintain the employee’s health coverage under any “group health plan”. The employee continues to be responsible for the employee portion of the group health insurance premium. Under the University Medical Leave policy, the employee is permitted to extend his/her personal medical leave to a full twelve (12) months and the group health insurance coverage can be extended until the end of that time period (again, so long as the employee continues to be responsible for payment of the employee portion of the group health insurance premium).
Upon return from FMLA leave, employees must be restored to their original or equivalent positions with equivalent pay, benefits, and other employment terms (except in specific and limited cases where the reinstatement of certain highly-paid “key” employees would result in substantial and grievous economic injury to the employer). The use of FMLA leave cannot result in the loss of any employment benefit that accrued prior to the start of an employee’s leave. After the exhaustion of the FMLA leave, (i.e., for the balance of the University authorized twelve (12) month personal Medical Leave) the University cannot guarantee reinstatement of the employee upon completion of the approved leave of absence. Nonetheless, the University will make every effort to return the employee to the same or a comparable job, subject to budgetary restrictions, the University’s need to fill vacancies, and the University’s ability to find qualified temporary replacements.
If an employee is unable to return to work after 12 months, the employee will be terminated.
Request for Medical Leave
A medical leave is defined as an absence of more than five (5) consecutive work days due to illness, injury or other disability (including pregnancy) as supported by a physician’s certification. The medical leave will run concurrently with the twelve (12) weeks under the Family and Medical Leave Act (FMLA) of 1993.
An employee who expects to be absent from work for more than five (5) consecutive work days due to medical reasons, must submit a written request for medical leave to his/her supervisor at least thirty (30) days before the anticipated commencement of the leave.
In the case of an emergency or when 30-days’ notice cannot otherwise be provided, the employee or a member of the employee’s immediate family must notify the employee’s supervisor as soon as possible. A written leave request should follow the verbal request by no more than five (5) days.
The employee must also send a copy of the request for medical leave to the Human Resources Office.
The employee’s request for medical leave must be supported by a physician’s certification of the medical need for leave.
Physician’s Certification Requirement
A physician’s certification is required for any period which exceeds an absence of five (5) consecutive days; however, the supervisor reserves the right to request a physician’s statement for absence periods of five (5) days or less.
The employee must contact the Human Resources Office for the Certification by Health Care Provider form which must be completed by the employee’s health care provider and returned to the Human Resources office within 15 days. Please refer to the Certification by Health Care Provider form for additional information.
If the completed certification form is not received by the Human Resources Office within 15 days, the employee’s absence may be considered “unexcused” and appropriate disciplinary action may be taken. In addition, no payment for wage continuance, salary continuance, vacation, sick, personal, or compensatory time will be issued.
The employee may also be required to submit to an examination at the University’s expense by a physician selected by the University before the leave of absence will be approved
During a medical leave, the employee must provide the University with periodic physician certifications. Such certifications should be provided after each physician’s visit (but the University may choose to require recertifications to be provided with a frequency not to exceed thirty (30) days between such certifications.
Certification for Qualifying Exigency
The University will require the employee to provide a copy of the covered military member’s active duty orders the first time the employee requests exigency leave. This information need only be provided once for each separate call to active duty. Further documentation which must be supplied in order to support the request includes:
- A statement, signed by the employee, of the facts supporting the leave request and including any available documentation such as a copy of a meeting notice announcement, appointment or copy of a bill of service.
- The approximate date the qualifying exigency commenced or will commence.
- If the request is for a specific period of time, the beginning and end dates of the absence.
- If the request is for intermittent or reduced schedule basis, an estimate of the frequency and duration of the exigency.
- If the exigency involves meeting with a third party or entity, contact information for the third party or entity and a brief description of the purpose of the meeting.
Authorization of Medical Leave of Absence
The Human Resources office will send written notification to the employee and the employee’s supervisor indicating the approval or denial of the request for medical leave within five (5) days of receipt. For an approved medical leave, the employee will also receive a Continuation of Benefits While on Leave notification which includes information about the employee’s health insurance, flexible benefit plan, life insurance, and LTD insurance, when applicable.
Extension of Medical Leave
If circumstances require an extension of the leave for any reason, the employee must provide the University the appropriate documentation including, in the case of a personal medical leave, a physician’s certification attesting to the employee’s continued medical condition and inability to work. The maximum duration of a medical leave, however, will be twelve (12) months.
Return to Work
The employee is required to present a completed Release to Return to Work form from his/her health care provider prior to being restored to employment. This statement must indicate the employee’s ability to work including any work-related restrictions and their duration. If this statement is not received, the employee’s return to work may be delayed until the statement is provided.
Unlawful Acts by Employers
FMLA makes it unlawful for any employer to:
- interfere with, restrain, or deny the exercise of any right provided under the FMLA;
- discharge or discriminate against any person for opposing any practice made unlawful by the FMLA or for involvement in any proceeding under or relating to the FMLA.
Enforcement of the FMLA
The U.S. Department of Labor is authorized to investigate and resolve complaints of violations.
An eligible employee may bring civil action against an employer for violations.
The FMLA does not affect any Federal or State law prohibiting discrimination, or supersede any State or local law or collective bargaining agreement which provides greater family and medical leave rights.
The employee should contact the Human Resources Office as soon as a leave of absence is anticipated. This applies for any paid or unpaid leave (a leave is defined as any absence that exceeds five (5) consecutive days).