Family and Medical Leave Act Policy

Policy number: 7.16

Policy section: Human Resources

Revised Date: January 2, 2019

1. Policy Statement

It is the policy of the University to comply with the mandates of the Family and Medical Leave Act ("FMLA"), as amended.

2. Purpose

FMLA provides up to twelve (12) weeks of unpaid leave each calendar year to eligible employees for specified family and medical reasons (“FMLA leave”), and up to twenty-six (26) weeks of unpaid leave each calendar year to care for a covered military service member (“military caregiver leave”).

3. Applicability

Employees are eligible for FMLA leave and military caregiver leave if they have been an employee of the University for at least one year, have worked at the University at least 1,250 hours over the previous 12 months, and work in a location with fifty (50) or more employees at that location or within seventy-five (75) miles of that location.

4. Exclusions

Key employees may be excluded from certain FMLA protections and will be notified of their key employee status at the time a leave request is made.

5. Department Administrative Rules, Procedures, and Guidelines

The Department of Human Resources, under the purview of the Vice President for Business and Finance, has oversight and administrative responsibility for this policy and shall promulgate departmental rules, procedures, and guidelines pursuant to this policy. Detailed administrative rules, procedures and guidelines can be found in Appendix A below.

6. Questions

Questions regarding this policy should be directed to the Department of Human Resources at benefitsu@smu.edu.

Appendix A: FMLA Procedures

Reasons for Taking FMLA Leave

1. The University will grant or designate unpaid FMLA Leave for an employee for any of the following reasons:
   1. To care for the employee’s newborn child or recently adopted child or a child recently placed in foster care with an employee.
   2. To care for the employee’s spouse, parent, or child (including step-relations) (“covered relatives”) who has a serious health condition, as defined by the FMLA.
   3. For an employee’s own serious health condition, as defined by the FMLA.
   4. Due to a qualifying exigency, as defined by the FMLA, when the employee’s spouse, parent, or child is: (i) a member of the regular Armed Forces who is deployed to a foreign country; or (ii) a member of the Reserves or National Guard who is deployed with the Armed Forces to a foreign country under a call or order to active duty (“qualifying exigency leave”).
2. Both Parents on Leave. Both a mother and father may take FMLA leave for the birth or adoption/foster placement of a child. However, if both the mother and father work for the University, their combined total FMLA leave may not exceed 12 weeks during a calendar year.

Reasons for Taking Military Caregiver Leave

1. The University will grant or designate unpaid Military Caregiver Leave to care for a covered service member while he or she undergoes medical treatment, recuperation, or therapy for a serious injury or illness. A “covered service member” is defined as the employee’s spouse, parent, child or next of kin who:
   1. Is a current member of the Armed Forces or on the temporary disability retired list, and who incurred a serious injury or illness, as defined by the FMLA, in the line of duty on active duty; or
   2. Is a veteran of the Armed Forces who incurred a serious injury or illness, as defined by the FMLA, in the line of duty on active duty, and who was discharged or released from service under conditions other than dishonorable at any time during the 5 years prior to the first date an eligible employee takes FMLA leave to care for that veteran.
2. Both Parents on Leave. If spouses are both employed by the University, both employees may take military caregiver leave, or a combination of military caregiver leave and FMLA leave, for a combined total of 26 weeks during a calendar year.

Advance Notice and Medical Certification Requirements

Employees who request FMLA Leave or Military Caregiver Leave must adhere to the following procedures:

1. The employee must provide to his/her supervisor and to the Department of Human Resources 30 days’ advance notice when the leave is "foreseeable." The University may delay the leave for up to 30 days after the request is made if this provision is not met.
2. If the leave is not "foreseeable," the employee must provide notice to the Department of Human Resources and his/her supervisor of the need for leave as soon as practicable. “As soon as practicable” generally means giving at least verbal notice to the University the same or next business day after learning of the need for leave.
3. The employee must provide to his/her supervisor and to the Department of Human Resources medical certification to support a request for leave because of his/her own serious health condition or that of a covered relative. The Department of Human Resources will provide the employee a form on which certification shall be provided. The employee must return the completed form to the Department of Human Resources within 15 days. If leave has been granted because of an employee’s serious health condition, the University may require a second or third opinion (at the University’s expense) before granting the leave. The University may also require a fitness for duty report for an employee to return to work after FMLA Leave has been taken.
4. An employee’s available earned vacation and sick leave time must be taken concurrently with FMLA Leave and/or Military Caregiver Leave. Upon exhaustion of available vacation and sick leave, the remainder of the employee’s FMLA Leave and/or Military Caregiver Leave will be unpaid. An employee’s vacation and sick leave time taken is counted as part of the employee’s leave.
5. The University may designate FMLA Leave or Military Caregiver Leave for an employee, even if the employee has not requested it, within two business days of the University’s receiving notice that an employee is absent because of an FMLA-qualifying reason.
6. The University may require periodic written documentation from an employee on FMLA Leave or Military Caregiver Leave regarding the employee’s status and intent to return to work. If an employee gives an unequivocal notice of intent not to return to work, the University’s obligations to maintain health benefits (except COBRA benefits) and to restore the employee to an equivalent position cease.
7. If necessary, leave may be taken intermittently (in separate blocks of time) or on a reduced work schedule (reducing the usual number of hours the employee works per workweek or workday). If a reduced work schedule is implemented, the University will pay hourly employees only for the hours actually worked. For salaried employees, the University will reduce employees’ salary accordingly.

Job Protection, Benefits, and Returning to Work

1. During FMLA Leave and Military Caregiver Leave, the employee’s health coverage will be maintained under the University’s group health plan.
2. Once the employee’s vacation leave and sick leave are exhausted, the employee may continue to be absent on unpaid FMLA Leave up to the total amount of 12 weeks per calendar year, or on unpaid Military Caregiver Leave up to the total amount of 26 weeks per calendar year. While on unpaid leave, however, the employee will no longer be on the University’s payroll. In such case, the University will continue to pay the employer’s portion of the employee’s group healthcare premiums, but the employee must pay the portion of such premiums that is ordinarily deducted from the employee’s payroll check.
3. Benefit contributions that accrue while an employee is on unpaid leave must be prepaid each month, unless the employee on unpaid leave requests, in a timely manner in writing to the Department of Human Resources, that he/she be allowed to make an advanced lump sum payment of benefit premiums due for the duration of the leave.
4. If an employee takes FMLA Leave because of his or her own serious health condition, the employee is required to provide a medical certification that he or she is fit to resume work. Employees may obtain return-to-work medical certification forms from the Department of Human Resources. The University will not permit the employee to return to work without the return-to-work medical certification form properly completed by the employee’s health care provider.
5. Upon return from FMLA Leave or Military Caregiver Leave, the employee will be restored to his/her same position, or to an equivalent position with equivalent pre-leave pay, benefits, and other employment terms if returning consistent with this policy.
6. Using FMLA Leave or Military Caregiver Leave will not cause an employee to lose any employment benefits that accrued prior to the start of an employee’s leave, except the paid vacation and sick leave that an employee was required to use concurrently with leave. While the employee is on leave, using paid vacation and sick leave benefits, the employee will be on the University’s payroll and will continue to accrue vacation and sick leave benefits as usual. Once the employee has exhausted his/her paid vacation and sick leave and is on unpaid leave, the employee will no longer be on the University’s payroll, and therefore will not continue to accrue vacation and sick leave benefits.

Exercise of FMLA Rights

The University will not:

1. interfere with, restrain, or deny the exercise of (or attempts to exercise) any right provided under FMLA.
2. discharge or discriminate against any person for opposing or complaining of any practice made unlawful by FMLA or for involvement in any legal proceeding or inquiry under or relating to FMLA.
3. retaliate against an employee for taking or requesting FMLA Leave or Military Caregiver Leave.

Reporting

Any employee experiencing or witnessing retaliation must report it to a supervisor. If an employee is uncomfortable making such a report to a supervisor or is not satisfied with how the report was handled, the employee should report the retaliation to the supervisor’s supervisor or to the Department of Human Resources.

FMLA and Discrimination Laws

FMLA does not affect any Federal or State law prohibiting discrimination, or supersede any State or local law, or other University leave policy which provides greater family or medical leave rights.

DOL Notice of Employee Rights and Responsibilities

Included below is a copy of the Department of Labor’s Notice to Employees of Rights under the FMLA. Employees who have questions relating to their rights and responsibilities under the FMLA are advised to consult this Notice and/or to request additional information from the Department of Human Resources.

Revised: January 2, 2019

Adopted: April 24, 2000