Regulations & Policies

Human Resources

I. OBJECTIVE AND PURPOSE OF POLICY

This Policy describes the University's policies and procedures for taking Family and Medical Leave Act ("FMLA") leave. The FMLA provides eligible employees with unpaid, job-protected leave to care for themselves or specified family members for certain qualifying events. This Policy incorporates by reference the FMLA statute and its implementing regulations found at 29 C.F.R. § 825.

For special eligibility and usage rules regarding Emergency FMLA Leave provided under the Families First Coronavirus Response Act, please click here: ffcra employee paid leave webpage.

For information about additional forms of leave that may be available, please see the Hours of Work, Benefits and Leave Requirements Policy, 4.0120P.

II. Employee Eligibility for FMLA

To be eligible to take FMLA, an employee (including OPS employees) must meet the following three criteria:

1. The employee must have worked for the University for at least 12 months. These months generally are not required to be consecutive; however, a break of seven years or more may reset this eligibility requirement;
2. The employee must have worked at least 1,250 hours in the rolling 12-month period prior to the leave.¹ The 1,250 hours include only those hours actually worked; hours provided through paid leave and unpaid leave, including FMLA leave, are not included; and
3. The employee must work at a location where the University has at least 50 employees within 75 miles of the employee's worksite. Although the FMLA sets forth this eligibility criteria, the University has decided that employees who work at a location that does not meet this criteria will still be eligible for FMLA benefits.

III. Qualifying Reasons for FMLA Leave

General Requirements

An eligible employee may take up to 12 weeks of unpaid, job-protected leave in a rolling 12-month period for the following reasons:

1. The birth of a child and to bond with the newborn child within one year of birth.
2. The placement with the employee of a child for adoption or foster care and to bond with the newly placed child within one year of placement.
3. A serious health condition that makes the employee unable to perform the essential functions of his or her job.
4. To care for the employee's spouse, child, or parent who has a serious health condition.
5. For qualifying exigencies related to the foreign deployment of a military member who is the employee's spouse, child, or parent.

Eligible employees may take up to 26 weeks of leave in a single 12-month period to care for a covered servicemember with a serious injury or illness if the employee is the spouse, child, parent, or next of kin of the servicemember.

A "serious health condition" is an illness, injury, impairment, or physical or mental condition that involves either an overnight stay in a medical care facility or continuing treatment by a health care provider for a condition that either prevents the employee from performing the essential functions of the employee's job, or prevents the qualified family member from participating in work, school, or other daily activities. Subject to certain conditions, the continuing treatment requirement may be met by a period of incapacity of more than three (3) consecutive calendar days combined with at least two visits to a health care provider or one visit and a regimen of continuing treatment, or incapacity due to pregnancy, or incapacity due to a chronic condition. Other conditions may meet the definition of continuing treatment.

FMLA leave can be taken for more than one qualifying reason in the same 12-month period. For example, an employee could take 4 weeks of FMLA for their own serious health condition and another 8 weeks for the serious health condition of their spouse.

If an employee has any questions regarding eligibility, what constitutes a serious health condition, or any other question relating to FMLA and qualifying reasons for leave, they are encouraged to contact Human Resources at (904) 620-2903 or benefits.retirement@unf.edu for more information.

Requirements Related to Military Leave

For military exigency leave, the following are examples of qualifying reasons for taking such leave: attending certain military events, arranging for alternative childcare, addressing certain financial and legal arrangements, attending certain counseling sessions, caring for the parents of the military member on covered active duty and attending post-deployment reintegration briefings. Leave for military exigencies are subject to certain limits on duration depending on the qualifying reason.

For military caregiver leave, the following are examples of qualifying reasons for taking such leave:

• A serious injury or illness, or continuation of the same, that was incurred or aggravated when the covered veteran was a member of the Armed Forces and rendered the servicemember unable to perform the duties of the servicemember's office, grade, rank, or rating.
• A physical or mental condition for which the veteran has received a United States Department of Veterans Affairs Service-Related Disability Rating (VASRD) of 50% or more and the VASRD rating is based on the condition precipitating the need for military caregiver leave.
• A condition that substantially impairs the covered veteran's ability to secure or follow a substantially gainful occupation due to the service-related disability.
• An injury for which the veteran is enrolled in the Department of Veteran's Affairs Program of Comprehensive Assistance for Family Caregivers.

Under military caregiver leave, an eligible employee is entitled to a combined total of 26 weeks of leave for any FMLA-qualifying reason during the single 12-month period. For example, an eligible employee may, during the single 12-month period, take 16 workweeks of FMLA leave to care for a covered servicemember and 10 workweeks of FMLA leave to care for a newborn child. However, the employee may not take more than 12 weeks of FMLA leave to care for the newborn child during the single 12-month period, even if the employee takes fewer than 14 workweeks of FMLA leave to care for a covered servicemember.

A Note on the Rolling 12-Month Usage Period

When FMLA leave is taken for a qualifying event, the maximum amount of FMLA usage is determined in reference to a rolling 12-month period. The period is measured backward from the date an employee uses FMLA leave. Each time an employee takes FMLA leave, the remaining leave is the balance of the 12 weeks not used during the immediately preceding 12 months, so long as the employee remains eligible for FMLA use. For example, if an employee has taken eight weeks of leave during the past 12 months, an additional four weeks of leave could be taken. If an employee used four weeks beginning February 1, four weeks beginning June 1, and four weeks beginning December 1, the employee would not be entitled to any additional FMLA leave until the following February 1. Beginning that following February 1, the employee would again be eligible to take FMLA leave so long as they still met the eligibility requirements, recouping the right to take the leave in the same manner and amounts in which it was used in the previous year. Thus, the eligible employee would recoup and be entitled to use one additional day of FMLA leave each day for four weeks. The employee would also begin to recoup additional days beginning on June 1, and additional days beginning on December 1.

A Note on Spouses Who Are Both Employed by the University

If two eligible University employees are married, then their total amount of FMLA leave may be limited in certain circumstances:

1. When taking leave for bonding time with a healthy newborn child or with a healthy child placed for adoption or fostering with the employees, or to care for the employee's parent with a serious health condition, the spouses are limited to a combined total of 12 workweeks of leave in a 12-month period. However, if the child has a serious health condition, both spouses may each take up to 12 weeks of FMLA leave if needed to care for the child.
2. For military caregiver leave, the spouses are limited to a combined total of 26 workweeks in a single 12-month period to care for a covered servicemember with a serious injury or illness if each spouse is a parent, spouse, son or daughter, or next of kin of the servicemember.
3. If only one of the spouses is eligible for FMLA leave, that individual is entitled to the full period of available leave.
   • If a spouse uses a portion of his or her leave for an FMLA-qualifying reason that is subject to the combined 12-workweek limit, that employee has the remainder of his or her 12 workweeks of entitlement for leave for an FMLA-qualifying reason that is not subject to the combined limit.

A Note Regarding Certain Special Circumstances Regarding Children and Parents

A "child" under the FMLA is defined as a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under age 18, or age 18 or older and "incapable of self-care because of a mental or physical disability" at the time that FMLA leave is to commence. A child aged 18 or older is incapable of self-care because of a mental or physical disability if they are

1. disabled as defined by the Americans with Disabilities Act; and
2. require active assistance or supervision to provide daily self-care in three or more activities of daily living or instrumental activities of daily living.

These age and disability requirements do not apply for FMLA leave taken for a child in qualifying military exigencies or for military caregiver leave.

A person stands "in loco parentis" to a child if they have day-to-day responsibilities to care for and financially support a child or had such responsibility when the individual was a child. A biological or legal relationship is not necessary. FMLA leave may be taken for qualifying reasons to care for an individual who acted in loco parentis as a parent to the employee, or to care for a child for whom the employee is acting in loco parentis.

IV. Requesting FMLA Leave

The Request for Leave

An employee may request FMLA verbally or in writing. For fastest service, employees are encouraged to request FMLA leave by notifying the University's Human Resources Department of the need for such leave in writing by contacting benefits.retirement@unf.edu. If email is not an option, a verbal request may be made by contacting the Human Resources Department at (904) 620-2903. Employees do not have to share a medical diagnosis, but they must provide enough information so the University can determine if the leave qualifies for FMLA protection. This information could include, for example, that the employee is or will be unable to perform his or her job functions, that a family member cannot perform daily activities, or that hospitalization or continuing medical treatment is necessary. Employees must inform the University if the need for leave is for a reason for which the FMLA leave was previously taken or certified. Finally, the request for leave should indicate the dates or date range needed for leave, to the extent known; if unknown, a best estimate should be provided.

Once notified, the University will provide the employee with a Notice of Eligibility and Rights & Responsibilities under the FMLA. The University may also provide an employee with this Notice when it learns that an employee may qualify for FMLA leave, even if the employee has not specifically requested FMLA leave. If the employee is not eligible for FMLA leave (for example, they have not worked for the University for 12 months), the University will inform the employee accordingly and provide a reason for the ineligibility.

Providing Additional Information and Medical Certification

The University may require additional information to determine whether the eligible employee is taking FMLA leave for a qualified reason. The employee must provide enough information for the University to determine if the event qualifies for FMLA leave. As part of this process, the Employee must provide a medical certification, on a form provided by the University, with details from the Employee's medical provider regarding the need for leave. This certification is required when the leave is for the employee's own serious health condition, to care for a covered family member with a serious health condition, for a qualifying military exigency, or to care for a covered servicemember with a serious injury or illness. A complete and sufficient medical certification must be returned to the University within 15 calendar days of the employee receiving the initial Notice of Eligibility and Rights & Responsibilities under the FMLA. If the employee fails to return the completed medical certification on time, the requested FMLA leave will be denied unless there are extenuating circumstances preventing the certification from being returned.

If a medical certification is not in English, the employee must provide a written translation along with the completed certification.

Sometimes, a medical provider may fail to fully complete the medical certification document. It is the employee's responsibility to provide a complete and sufficient certification. If the provided medical certification is incomplete and insufficient, the University will notify the employee of the deficiencies and explain what additional information is needed in order to make the certification complete and sufficient. The employee must then return a complete and sufficient certification within 7 calendar days.

The University may request second and third opinions if there are reasons to doubt the validity of the medical certification.

Once the University determines that the need for leave qualifies under the FMLA, the University will notify the employee how much leave will be designated as FMLA leave.

Recertification

The University, under certain circumstances, may require an employee to recertify their need for FMLA leave when taken for their own serious health condition or for the serious health condition of a family member. Generally, a recertification may be requested every 30 days in connection with an absence. If a medical certification indicates that the minimum duration of the condition is more than 30 days, the University will typically wait until that duration expires before requesting a recertification. If the medical certification indicates the condition will last six months or longer, the University may request a recertification every six months in connection with an absence by the employee.

The University may request a recertification in a shorter time period if the employee requests an extension of FMLA leave; circumstances described by the previous certification have changed significantly; or if the University receives information that casts doubt upon the employee's stated reason for the absence or continuing validity of the certification.

The employee must provide a completed medical certification within 15 calendar days of receiving the recertification request, unless extenuating circumstances require an extension. The recertification shall be provided at the employee's expense.

V. Continuous and Intermittent FMLA Usage

Depending on the employee's need for medical leave and details provided in the medical certification, an employee may take leave in a continuous block, intermittently, or on a reduced schedule. An employee is entitled to take FMLA leave on an intermittent or reduced schedule basis when there is a medical need for such leave for an employee's own serious health condition; to care for a spouse, child, or parent with a serious health condition; or to care for a covered servicemember with a serious injury or illness. Intermittent leave is also permitted for the birth or care of a newborn child or for the placement with the employee of a child for adoption or foster care.

When taking leave intermittently, the employee may be temporarily transferred to an alternative position that better accommodates recurring periods of leave. During this time, the position's duties do not have to be equivalent to the employee's normal job duties. Once the leave is no longer needed, the employee will be restored to the same or equivalent job as the job that the employee left when the leave started.

The employee may take FMLA leave in periods of weeks, days, hours, or quarter-hour increments. The total number of hours that an eligible employee is entitled to take on an intermittent or reduced schedule basis depends on the specific hours the employee would have worked had the employee not taken FMLA leave. For example, if an employee had an actual workweek of 32 hours per week, they would be entitled to 384 hours of FMLA leave (12 workweeks x 32 hours per week) in a 12-month period. When an employee's schedule varies from week to week so much that it is not possible to determine how many hours the employee would have worked during the week had they not taken FMLA leave, the University may use a weekly average to calculate the employee's FMLA leave entitlement.

VI. Providing Notice Prior to Using FMLA Leave

When an employee requests FMLA leave, the employee must give at least 30 days advanced notice, unless the need for leave is not foreseeable. If a 30-day notice is not possible, the employee must provide notice as soon as practicable. The employee must indicate the begin and end date of the leave request. If intermittent leave is being requested and the occurrence of the qualifying event is unknown, the employee must provide their best estimate of the frequency of the need for leave.

The employee must discuss any planned absences for medical treatment with their supervisor and schedule the treatment during a time that will minimize disruption to department operations while out on leave whenever possible.

When requesting FMLA leave, employees will be required to continue to comply with their department and supervisor's requirements regarding use of leave. For example, call-out procedures may still be required for intermittent FMLA usage.

Failing to give timely notice prior to using FMLA leave, whether the leave is taken in one block or intermittently, may result in denial of FMLA leave for the requested absence.

VII. Pay Status While on FMLA Leave

FMLA leave is unpaid; however, if an employee has any accrued, unused paid sick or annual leave, the employee must use such paid leave concurrently with FMLA leave, even if the employee would prefer that the University delay the start and use of paid leave. Any accrued, unused compensatory time will be used first. Next, accrued sick leave time will be used, if the employee has both sick time and annual time available. For example, if an employee requests 8 weeks of FMLA leave and has 2 weeks of annual and 4 weeks of sick leave available, then the first 4 weeks of FMLA will be paid using sick leave hours, the next 2 weeks will be paid using annual leave hours, and the final 2 weeks will be unpaid.

Workers' compensation and short-term disability run concurrently with FMLA leave, provided the reason for the absence is due to an FMLA-qualifying serious health condition. However, because such leave is typically paid, the employee will not be required to use accrued paid leave, unless the employee requests to use such paid leave to supplement a shortfall between the disability benefit and the employee's full pay.

VIII. Benefits Continuation While on FMLA Leave

Employees on FMLA leave will continue to be eligible for group health insurance coverage as if they were not on leave. The employee continues to be responsible for paying their contribution to the insurance premium. If the employee has accrued, unused paid leave, then the deduction for the contribution will be made from the paid leave each pay period. If the employee has exhausted paid leave, then the employee must submit payment to continue insurance benefits to

Insurance Payment Lockbox Address

People First

Post Office Box 863477

Orlando, FL 32886-3477

If the employee's premium payment is more than 30 days late, health care coverage may be cancelled.

IX. Job Protections While on FMLA Leave

When an employee returns from FMLA leave, they will be restored to the same job that they held when the leave began or a job with equivalent pay, benefits, and other employment terms and conditions.

Although FMLA leave provides job protection for an adverse employment action relating to the use of FMLA leave, it does not guarantee continued employment if the employee's position would have been affected regardless of the use of FMLA leave. For example, an employee whose position is funded by a grant would not be returned to the position if the grant expired while the employee was on FMLA leave.

Certain exceptions for job protections also apply to "key employees" who take FMLA leave when required to prevent substantial and grievous economic injury to University operations.

The University will not interfere with an individual's FMLA rights or retaliate against someone for using or trying to use FMLA leave, for opposing any practice made unlawful by the FMLA, or being involved in any proceeding under or related to the FMLA. If you believe that your rights have been violated, please immediately contact the University's Human Resources Department by contacting (904) 620-2903 or benefits.retirement@unf.edu. If your concern arises from the Human Resources Department, then you may escalate your concern to the Vice President for Administration and Finance or through the UNF Ethics Hotline.

In addition, employees may file a complaint with the U.S. Department of Labor, Wage and Hour Division, or may bring a private lawsuit against the University. The FMLA does not affect any federal or state law prohibiting discrimination or supersede any state or local law or collective bargaining agreement that provides greater family or medical leave rights. For additional information from the U.S. Department of Labor Wage and Hour Division or to file a complaint, contact 1-866-4-USWAGE (1-866-487-9243; TTY 1-877-889-5627), www.dol.gov/whd.The Department of Labor's poster regarding the FMLA may be found at https://www.dol.gov/agencies/whd/posters/fmla. The University does not waive any rights to sovereign immunity or other applicable defenses in the event such a complaint or lawsuit is filed.

X. Returning to Work

Prior to returning to work, if an employee has taken FMLA leave for their own serious health condition, they must submit a complete and sufficient Fitness for Duty certification form from their medical provider to Human Resources. This form confirms the employee's ability to return to work and to perform the essential functions of their position, with or without reasonable accommodations. The employee is responsible for the cost of the Fitness for Duty certification.

If an employee is unable to return to work at the expiration of their FMLA leave period, they should contact their supervisor, Human Resources, and the ADA Compliance Office (if needed) to determine whether any other form of leave or accommodation may be available.

¹The FMLA mandates a notice that special "hours of service" requirements apply to airline flight crew employees; however, it is not anticipated that this applies to any UNF employees

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