Family and Medical Leave Act
The Family and Medical Leave Act of 1993 (FMLA), as amended, requires employers with 50 or more employees to provide eligible employees with unpaid leave. There are two types of leave available: the basic 12-week leave entitlement (Basic FMLA Leave) and the military family leave entitlements (Military Family Leave) described in this policy.
Eligibility for FMLA Leave
Employees are eligible for FMLA leave if:
- They have worked for the College for at least 12 months (the 12 months need not be consecutive); and
- Have worked at least 1,250 hours during the 12-month period before commencement of the leave (hours paid, but not worked, and unpaid leave will not be counted in determining the 1,250 hours of service); and
- Work at a location where the College employs at least 50 employees within a 75 mile radius of the worksite.
Basic FMLA Leave
Employees who meet the eligibility requirements described above are eligible to take up to 12 weeks of unpaid leave during any 12-month period for any of the following reasons:
- The birth of the employee’s child and/or to care for the child during the first 12 months following birth;
- The placement of a child with the employee for adoption or foster care and/or to care for the child during the first 12 months following placement;
- To are for an employee’s spouse, child, or parent who has a serious health condition; or
- For a serious health condition that makes the employee unable to perform their job, including incapacity due to the employee’s pregnancy, prenatal medical or childbirth.
The relevant 12-month period used to determine eligibility for Basic FMLA Leave will be calculated on a rolling basis, measured backwards from the date the employee uses any such leave.
When both spouses are both employed by the College, they are limited to a combined total of 12 weeks of leave during any 12-month period if the leave is taken:
- For the birth of the employees’ child or to care for the child after birth;
- For placement of a child with the employees for adoption or foster care, or to care for the child after placement; or
- To care for an employee’s parent with a serious health condition.
Serious Health Condition
A serious health condition is an “illness, injury, impairment, or physical or mental condition” that requires (1) inpatient care or (2) continuing treatment:
1. “Inpatient Care” is an overnight stay in a hospital, hospice, or residential medical-care facility and any resulting period of incapacity or treatment.
2. “Continuing treatment” is defined as one of the following:
a period of incapacity of more than 3 consecutive calendar days and (i) treatment 2 or more times by a health care provider within 30 days of the first day of incapacity (unless extenuating circumstances exist); or (ii) treatment by a health care provider which results in a regimen of continuing treatments
- The first treatment visit must take place within 7 days of the first day of incapacity.
- Treatment by a health care provider also requires an in-person visit to the health care provider.
- a period of incapacity due to pregnancy or for prenatal care;
- a period of incapacity or treatment for a chronic serious health condition which requires periodic visits for treatment (at least 2 visits per year) by a health care provider;
- a period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective; or
- a period of absence to receive multiple treatments for (i) restorative surgery after an accident or injury or (ii) an injury or condition which would result in incapacity of more than 3 consecutive calendar days if left untreated.
Ordinarily, unless complications arise, the common cold, flu, earaches, upset stomach, ulcers, headaches other than migraines, routine dental problems, etc. do not qualify as serious health conditions. In addition, routine medical examinations are not considered serious health conditions, and neither are voluntary cosmetic treatments, unless inpatient care is required or complications develop.
The terms spouse, parent, child (son or daughter) are defined in accordance with the FMLA. If you have any questions regarding these definitions, please contact The Office of Human Resources.
Military Family Leave
There are two types of Military Family Leave available: Qualifying Exigency Leave and Covered Servicemember Leave.
Qualifying Exigency Leave – Employees meeting the eligibility requirements may be entitled to use up to 12 weeks of their Basic FMLA Leave entitlement to address certain qualifying exigencies.
Leave may be used if the employee’s spouse, son, daughter, or parent (the “military member”) is on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces. The term “covered active duty” is defined in accordance with the FMLA. If you have any questions about what constitutes a “covered active duty,” please contact The Office of Human Resources.
Qualifying exigencies may include:
- Short-notice deployment (up to 7 days of leave);
- Attending certain military events and related activities;
- Arranging for alternative childcare and attending certain school meetings;
- Addressing certain financial and legal arrangements;
- Spending time with a covered servicemember who is on short-term rest and recuperation leave (up to 15 calendar days of leave);
- Caring for a military member’s parent who is incapable of self-care, when such care is necessitated by the member’s covered active duty (i.e., arranging for alternative care, providing care on an immediate need basis, admitting or transferring the parent to a care facility, attending meetings with staff at a care facility, etc.);
- Attending certain counseling sessions;
- Attending post-deployment activities that occur up to 90 days after the termination of the covered servicemember’s active duty status or to address that arise from the death of a covered servicemember while on (covered) active duty status; and
- Other activities arising out of the servicemember’s active duty or call to (covered) active duty status which are agreed upon by the College and the employee.
The relevant 12-month period used to determine eligibility for Qualifying Exigency Leave will be calculated on a rolling basis, measured backwards from the date the employee uses any such leave.
Covered Servicemember Leave (a.k.a. “Military Caregiver Leave”) – There is also a special leave entitlement that permits employees who meet the eligibility requirements for FMLA leave to take up to 26 weeks of unpaid leave during a single 12-month period to care for an immediate family member (spouse, child, parent) or next of kin (nearest blood relative) who is a covered servicemember.
A “covered servicemember,” as it applies to this form of leave, is: (1) a current member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness; or (2) a covered veteran who is undergoing medical treatment, recuperation or therapy for a serious injury or illness. The terms “covered veteran” and “serious injury or illness” are defined in accordance with the FMLA. If you have any questions about what constitutes a “covered veteran” or a “serious injury or illness,” please contact The Office of Human Resources.
The 12-month period for Covered Servicemember Leave is defined as the 12-month period measured forward from the date an employee’s first FMLA leave to care for the covered servicemember begins. In other words, the single 12-month period begins on the first day the eligible employee takes FMLA leave to care for a covered servicemember and ends 12 months after that date, regardless of the method used by the College to determine the employee’s 12 workweeks of leave entitlement for other FMLA-qualifying reasons. During this 12-month period, an eligible employee’s FMLA leave entitlement is limited to a combined total of 26 workweeks of leave for any FMLA-qualifying reason.
In cases where both spouses are employed by the College, the combined total of leave taken to care for a covered servicemember may not exceed 26 weeks in a single 12-month period.
Employee’s Responsibilities When Requesting FMLA Leave
If the need for leave is foreseeable, the employee must notify their supervisor and/or Department and/or Division Head, and The Office of Human Resources at least 30 days before the FMLA leave begins. When 30 days’ notice is not possible, the employee must give notice as soon as practicable (or within 1 or 2 business days) of learning of the need for leave, except in extraordinary circumstances. Failure to provide such notice may be grounds for delaying the start of the FMLA leave or denying the request for leave.
If the need to use FMLA leave is not foreseeable, the employee must notify their supervisor(s) and The Office of Human Resources as soon as practicable (or within 1 or 2 business days). Employees are expected to provide notice in accordance with this Policy, as well as the College’s usual and customary notice requirements, which means that notice of the need for unforeseeable FMLA leave should ordinarily be given prior to the start of the employee’s workday, absent unusual circumstances. Failure to provide such notice may be grounds for delaying the start of the FMLA leave or denying the request for leave.
The employee will be requested to complete the appropriate medical certification form which can be obtained from The Office of Human Resources. Furthermore, when submitting a request for leave, the employee must provide sufficient information for the College to determine if the leave might qualify for FMLA leave, and also provide information on the anticipated date when the leave would start, as well as the anticipated duration of the leave.
Employer Responsibilities
When an employee requests leave, the College will inform the employee whether they are eligible for leave under the FMLA and provide the employee with written notice of their rights and responsibilities. The College will also inform the employee whether the leave will be designated as FMLA-protected, and if so, provide information on the amount of leave that will be counted against the employee’s 12 or 26 week entitlement.
Medical Certification
The College will require that an employee’s request for leave to care for the employee’s spouse, son, daughter, or parent with a serious health condition, or due to the employee’s own serious health condition that makes the employee unable to perform the functions of the employee’s position, be supported by written medical certification issued by an appropriate health care provider providing the medical attention. Additionally, if an employee is requesting either Qualifying Exigency Leave or Military Caregiver Leave, the employee must also provide appropriate certification.
When the employee requests leave, the College will notify the employee of the requirement for certification and when it is due. The employee must provide the requested certification to the College within 15 calendar days after the College’s request, unless to do so is not practicable despite the employee’s diligent, good faith efforts. Failure to provide requested certification in a timely manner may result in denial of leave until it is provided.
The employee certification must be complete and sufficient. In the event that the certification is deficient, the College will advise the employee, in writing, what additional information is necessary to make the certification complete and sufficient. The employee will be given 7 calendar days (unless not practicable despite the employee’s diligent, good faith efforts) to cure any such deficiency. If the deficiencies are not cured in the resubmitted certification, the College may deny the taking of FMLA leave.
The College may require verification of the need for leave by requesting that the employee obtain a second or third medical opinion. Failure to obtain the second and/or third medical opinion(s), where applicable, will result in the result in denial of FMLA leave. Where permissible, the College may also require subsequent medical recertification and/or an annual certification. Failure to provide requested certification within 15 days, unless it is not practicable to do so despite the employee’s diligent, good faith efforts, may result in the delay of further FMLA leave.
Intermittent Leave
Leave because of a serious health condition involving an employee or an employee’s spouse, child, or parent, or either type of Military Family Leave may be granted on an intermittent basis (in separate blocks of time due to a single health condition) or on a reduced-schedule leave (reducing the number of hours worked per workweek or workday) when necessary because of the nature of the medical condition and the scheduling of medical treatments.
Leave may not be taken on an intermittent basis or on a reduced work schedule when used to care for the employee’s own child during the first year following birth, or to care for a child placed with the employee for foster care or adoption, unless both the College and the employee have expressly agreed to such leave in writing. However, when FMLA is running concurrently with New York Paid Family Leave (“PFL”), employees are permitted to take leave intermittently (in full day increments) to bond with a new child following the birth, adoption or placement in foster care.
When planning medical treatment, employees must consult with the College and make reasonable efforts to schedule leave so as not to unduly disrupt the College’s operations.
If leave is unpaid, the College will reduce an exempt employee’s salary based on the amount of time actually taken. In addition, while an employee is taking recurring leave on an intermittent or reduced-schedule basis for foreseeable, planned medical treatments, the College may temporarily transfer or assign the employee to another position or an alternative position that better accommodates the recurring leave and which has equivalent pay and benefits.
Maintenance of Health Benefits
While an employee is on leave, the College will maintain the employee’s health benefits as if the employee continued to be actively employed. Specifically, the employee will be required to continue to pay for his/her group medical premium during the FMLA leave. In addition, the employee will be given the opportunity to choose continuation coverage under the COBRA regulations if they have not returned to work at the end of the 12-week period.
If paid leave is substituted for unpaid FMLA leave, the College will deduct the employee’s group medical premium as a regular payroll deduction. If leave is unpaid, the employee will be responsible for continuing to pay the premium by mailing it on a monthly basis to the College. The College will inform the employee of when the payment is due.
The employee’s coverage and the coverage of all enrolled dependents will be terminated if the payment of the employee’s premium is more than 30 days late. If the payment is more than 15 days late, the College will send the employee a letter to this effect. If the College does not receive the payment for outstanding benefit premium within 15 days after the date of that letter, the employee’s coverage will terminate for non-payment of his/her insurance premium.
The employee has a five (5) day grace period to submit payment after which coverage will be discontinued if payment is not received and will result in the loss of their COBRA rights. There are no provisions for reinstating the employee’s coverage after the COBRA rights have been lost.
Substitution of Accrued Paid Leave
Employees on unpaid FMLA leave will not accrue paid time off (including vacation, personal, or sick time) and are required to substitute all forms of available accrued available paid time off (vacation or personal) for their unpaid leave, except where prohibited by law. The substitution of available paid time off for unpaid leave time does not extend the 12-week leave period. Furthermore, in no case can the substitution of paid time off for unpaid leave time result in the receipt of more than 100% of an employee’s normal wages. An employee’s FMLA leave runs concurrently with other types of leave or paid time taken during the FMLA leave.
Employees who are on a leave of absence that is covered by payments such as disability benefits, Paid Family Leave or Workers’ Compensation benefits will not be required to substitute accrued paid time off while receiving these benefit payments. However, the College and the employee may agree to supplement the disability, Paid Family Leave or Workers’ Compensation benefits with available paid time off (up to 100% of the employee’s regular wages) to the extent permitted by state law. Any leave of absence taken pursuant to an applicable disability law, short-term disability, Paid Family Leave, or Workers’ Compensation law will be run concurrently with FMLA leave where the reason for leave qualifies under both laws.
Reporting While on Leave
While on leave, employees may be required to contact The Office of Human Resources to report on their status and intent to return to work. In addition, the employee must give notice as soon as practicable, within 2 business days, if the dates of the leave change, are extended, or were unknown initially.
Return to Work at the Conclusion of FMLA Leave
Prior to the exhaustion of FMLA leave, employees will be responsible for notifying The Office of Human Resources, in writing, regarding their intention to return to work.
An employee (whose leave was occasioned by the employee’s own serious health condition that made the employee unable to perform their job) will be required to present medical certification from the health care provider that they are able to return to work. This certification must specifically address the employee’s ability to perform the essential functions of their job. Failure to provide such medical certification may result in delay or denial of reinstatement.
Whenever possible, employees who return at the end of the approved leave time will be restored to the position they held when the leave began. If the same position is not available, the employee will be restored to an equivalent position with equivalent pay, benefits, and other terms and conditions of employment. An exception to this policy of restoration may be made with respect to “key employees” (i.e., salaried employees in the top 10% of the College’s payroll).
Fraud
An employee who fraudulently obtains FMLA leave or who uses FMLA in a fraudulent manner is subject to disciplinary action, up to and including termination.
FMLA Posting
In accordance with federal law, the College posts a notice summarizing the provisions of the FMLA, including enforcement of the law.