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Policy # 88.0 Archived Version:
Family and Medical Leave

Revision date of this archived policy:
March 8, 2013

Note: This is not a current version of the policy. View current version. »

Purpose

Recognizing the occurrence(s) of serious health conditions which involve either the University employee or a qualified family member, the University provides unpaid Family Medical leave of up to 12 weeks in a 12 month period.

Policy

1) Any employee who has been a University employee (regular, temporary, faculty or student) for 12 months (not necessarily consecutive months, but within the last 7 years) and has worked at least 1,250 hours during the previous 12 month period may take up to 12 weeks of unpaid leave for a serious health condition involving the employee or a qualified family member during any 12 month period for any or all of the following reasons:

  1. Because of the birth of a child of the employee and in order to care for that child;
  2. Because of the placement of a child with the employee for adoption or foster care;
  3. In order to care for a spouse, child, or parent of the employee who has a serious health condition;
  4. Because of a serious health condition that makes the employee unable to perform the functions of his/her job; or
  5. Because of a qualifying exigency arising out of the fact that the employee's spouse, son, daughter, or parent is a military member on covered active duty in the Armed Forces.
  6. Twenty-six workweeks of leave during a single12-month period to care for a covered service member with a serious injury or linnes if the eligible employee is the servicemember's spouse, son, daughter, parent, or next of kin (military caregiver leave).

Note:  The 12 month period begins on the first day of the approved FMLA leave.

Note:  All periods of absence from work due to or necessitated by USERRA-covered service is counted in determining an employee's eligibility. 

2) Definitions

For purposes of this policy the following definitions shall apply:

“Parent”

The biological parent of an employee or an individual who stood in loco parentis to an employee when the employee was a child (minor).

Note: “In loco parentis” means that the employee has the day-to-day responsibilities for the care and financial support of a child or persons who had such a responsibility for the employee when the employee was a child. A biological or legal relationship is not necessary.

"Child"

A biological, adopted or foster son or daughter, a stepson or stepdaughter, a legal ward, or a son or daughter of a person standing in loco parentis, who is under 18 years of age or 18 years of age or older and incapable of self care because of a mental or physical disability as defined by the American with Disabilities Act (ADA) at the time that FMLA leave is to commence.

 

"Spouse"

A husband or wife.

“Covered Active Duty” 
Covered active duty for members of a regular component of the Armed Forces means duty during deployment of the member of the Armed Forces to a foreign country. “Covered Active duty” for members of the reservecomponents of the Armed Forces (members of the U.S. National Guard and Reserves) means duty during deployment of the member with the Armed Forces to a foreign country under a call or order to active duty in a contingency operation.

“Covered Servicemember”  
A member of the Armed Forces, including a member of the Armed Forces and a veteran of the Armed Forces , 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 illness.

"Covered Veteran"

A covered veteran is an individual who was discharged or released under conditions other than dishonourable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran.

Outpatient Status with respect to a covered servicemember, means the status of a member of the Armed Forces assigned to:

  1. a military medical treatment facility as an outpatient; or
  2. a unit established for the purpose of providing command and control of members of the Armed Forces receiving medical care as outpatients.

“Next of Kin” 
The nearest blood relative other than the covered servicemember’s spouse, parent, son, or daughter, in the following order of priority: blood relatives who have been granted legal custody of the covered servicemember by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins, unless the covered servicemember has specifically designated in writing another blood relative.

“Serious Injury or Illness for a servicemember”
In the case of a member of the Armed Forces including a member of the National Guard or Reserves, means an injury or illness incurred by the member in the line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating.

“Serious Injury or Illness for a covered veteran”

The injury or illness that was incurred or aggravated by the member in the line of duty in the Armed Forces and manifested itself before or after the member became a veteran, and is:

  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 servicemember’s office, grade, rank, or rating; OR
  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 rating is based, in whole or part, on the condition precipitating the need for caregiver leave; OR
  3. A physical or mental condition that substantially impairs the veteran’s ability to secure or follow a 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.

"Son or daughter on active duty or call to active duty status”
The employee’s biological, adopted, or foster child, stepchild, legal ward, or a child for whom the employee stood in loco parentis, who is on active duty or called to active duty status, and who is of any age.

“Leave because of a qualifying exigency”

Eligible employees may take FMLA leave while the employee’s spouse, son, daughter, or parent (the “covered military member”) is on active duty or called to active duty status as defined for one or more of the following qualifying exigencies:

  1. Short-notice deployment to address any issue that arises from the fact that a covered military member is notified of an impending call or order to active duty in support of a contingency operation seven or less calendar days prior to the date of deployment. Leave may begin on the day the covered military member is notified of an impending call or order to active duty in support of a contingency operation.
  2. Military events and related activities to attend any official ceremony, program, or event sponsored by the military that is related to the active duty. To attend family support or assistance programs and informational briefings sponsored or promoted by the military.
  3. Childcare and school activities to arrange for alternative childcare when the active duty or call to active duty status of a covered military member necessitates a change in the exisiting childcare arrangement for a child. To provide childcare on an urgent immediate need basis (but not on a routine, regular, or everyday basis). To enroll in or transfer a child to a new school or day care facility, when enrollment or transfer is necessitated by the active duty status of a covered military member. To attend meetings with staff at a school or daycare facility when such meetings are necessary due to circumstances arising from the active duty or call to active duty status of a covered service member.
  4. Financial and legal arrangements to make or update financial or legal arrangements to address the covered servicemembers absence while on active duty. To act as the covered military member’s representative before a federal, state, or local agency for purposes of obtaining, arranging, or appealing military service benefits.
  5. Counseling to attend counseling provided by someone other than a health care provider for oneself, for the covered service member, or for the child provided that the need for counseling arises from the active duty or call to active duty status of a covered military member.
  6. Rest and Recuperation To spend time with a covered military member who is on short term temporary, rest and recuperation leave during the period of deployment. Eligible employees may take up to fifteen days of leave for each instance.
  7. Post Deployment activities to attend arrival ceremonies.
  8. Parental Care may be taken to care for a military member’s parent who is incapable of self-care when the care is necessitated by the member’s covered active duty. Such care may include arranging for alternative care, providing care on an immediate need basis, admitting or transferring the parent to a care facility, or attending meetings with staff at a care facility.
  9. Additional activities to address other events which arise out of the covered military member’s active duty or call to active duty status provided that the employer and employee agree that such leave shall qualify as an exigency, and agree to both the timing and duration of such leave.

“Documenting Relationships”

For purposes of confirmation of family relationship, the employer may require the employee giving notice of the need for leave to provide reasonable documentation or statement of family relationship. This documentation may take the form of a simple statement from the employee, or a child’s birth certificate, a court document, etc.

Note: "Qualifying exigency leave" only is provided for family members of servicemembers in the reserve components of the military - not for servicemembers in the regular armed forces.

“Serious health condition”

An illness, injury, impairment or physical or mental condition that involves the following:

  1. Inpatient care in a hospital, hospice or residential medical care facility.
  2. Continuing treatment by a health care provider. A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:
    1. A period of incapacity for more than three consecutive calendar days and treatment that involves:
      1. Treatment two or more times by a health care provider within the first 30 days, the first visit occurring within the first 7 days, or
      2. Treatment by a health care provider on at least one occasion which results in a regiment of continuing treatment.
  3. A period of incapacity due to pregnancy or for prenatal care.
  4. A period of incapacity or treatment due to a chronic serious health condition, which:
    1. Requires periodic visits (defined as at least twice a year) for treatment by a health care provider,
    2. Continues over an extended period of time, and
    3. May cause episodic rather than continuing periods of incapacity.
  5. A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective. Examples include: alzheimer’s, a severe stroke or terminal stages of a disease.
  6. A period of absence to receive multiple treatments by a health care provider or by the provider of healthcare services under orders of or on referral by a health care provider, either for restorative surgery after an accident or injury, or for a condition that would likely result in a period of incapacity for more than three consecutive calendar days in the absence of medical intervention or treatment, such as cancer, severe arthritis or kidney disease.

Note: Unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraines, routine dental or orthodontia problems, periodontal disease, etc., are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave. Mental illness or allergies may be serious health conditions, but only if all the conditions of this section are met.

“Health Care Provider”

A health care provider is defined as:

  1. Doctor of medicine or osteopathy who is authorized to practice medicine or surgery by the state in which the doctor practices,
  2. A podiatrist,
  3. A dentist,
  4. A clinical psychologist,
  5. An optometrist,
  6. A chiropractor,
  7. A nurse practitioner,
  8. A nurse-midwife,
  9. A physician assistant,
  10. A Christian Scientist practitioner,
  11. A clinical social worker, or
  12. Other persons determined by the United States Secretary of Labor to be capable of providing health care services.

Note:  The federal law places restrictions on specific purposes under which chiropractors and Christian Science practitioners may be health care providers; an employee shall check with an official of Human Resources for an intrepretation before relying that these persons are health care providers. 

3) Leave taken for childbirth or placement (adoption, foster care, or legal guardianship) may be taken intermittently or on a reduced schedule, with the approval of the department head.   This leave may be taken only within 12 months of the date of birth or placement of the child.

  1. Leave taken for childbirth on an intermittent or reduced schedule shall be taken after the presumed six-week recovery period.
  2. A pregnant employee may take leave intermittently for prenatal examinations or her own condition, such as for periods of severe morning sickness.

4) Leave taken to care for a spouse, child or parent or for the serious health condition of the employee may be taken intermittently or on a reduced schedule when medically necessary.

5) Eligible employees may take FMLA leave on an intermittent or reduced schedule basis when medically necessary due to the serious health condition of a covered family member. If an employee needs leave intermittently or on a reduced leave schedule for planned medical treatment, then the employee must make a reasonable effort to schedule the treatment so as not to disrupt unduly the employer's operations.

6) If it is physically impossible for an employee using intermittent leave or working a reduced leave schedule to commence or end work mid-way through a shift,the entire period that the employee is forced to be absent is designated as FMLA leave and counts against the employee's FMLA entitlement. This must only be applied in only the most limited circumstances.

7) For employees who hold a full-time equivalent (FTE) of 0.5 or greater but less than 1.0, leave entitlement under this policy is calculated on a pro rata basis. If an employee’s work schedule varies from week to week, the average weekly hours worked during the 12 weeks prior to the start of the leave under this policy will be used to calculate the employee’s normal work schedule.

Note:  Granting an exempt employee (faculty and staff) Family and Medical Leave by the hour is not a violation of the employee's exempt status under the Fair Labor Standards Act.

8) A staff employee’s leave accruals shall be used concurrently with FMLA. The leave accruals shall be used as applicable under Human Resources Policy & Procedures (HRP&P) 82.0: Temporary Disability Leave (TDL) andHRP&P 80.0: Vacation Leave.

  1. Accrued balances of TDL and vacation leave, as applicable, shall be used prior to the employee being placed on FMLA without pay.
  2. Worker's Compensation shall be designated as FMLA, as applicable, and shall run concurrently with FMLA.

Note:  Light duty work is not available for non-work related illnesses or injuries.

Note: FMLA leave must be tracked using the smallest increment of time used for other forms of leave subject to a one hour maximum.

9) A faculty member's leave balances shall be used concurrently with FMLA. The leave balances shall be used as applicable under Governing Regulation (GR) X: Regulations Affecting Employment and Administrative Regulation II-1.1-7: Faculty Assignment and Vacation Leave Policy. Tenure-eligible faculty employees approved for FMLA may be eligible for a delay in the probationary period in accordance with GR X.B.1(c).

  1. Balances of TDL and vacation leave, as applicable, shall be used prior to the employee being placed on FMLA without pay.
  2. Workers' Compensation shall be designated as FMLA, as applicable, and shall run concurrently with FMLA.

10) In the case of childbirth or placement, the employee shall, when foreseeable, give the supervisor 30 days notice before the leave is to begin. If the birth or placement requires leave to begin in less than 30 days, the employee shall provide the supervisor with as much notice as possible.

Note:  In cases where a husband and wife are employees and employed in the same department, they may be required to share, at the discretion of the department, the 12 week FMLA entitlement for purposes of childbirth and/or adoption/foster care/legal guardianship. 

11) When leave is taken for planned medical treatment, the employee shall

  1. Make a reasonable effort to schedule the treatment so as not to disrupt the operations of the department;
  2. Provide the department with no less than 30 days notice, before the date the leave is to begin; and/or
  3. Provide as much notice as possible if the date of the treatment requires leave to begin in less than 30 days.

12) If an employee requests intermittent leave or leave on a reduced work schedule that is foreseeable based on planned medical treatment for the employee or family member, the department may require the employee to transfer temporarily to an available alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee's regular position.

Process

The responsibility for approving FMLA is delegated jointly to the appropriate dean or department head and the Human Resources Office of Employee Relations. The dean, department head, or designee shall be responsible for maintaining accurate records of FMLA leave in the University’s centralized resource information system.

Note: All conversations or discussions with the employee about FML eligibility must be documented.

1) An employee shall follow standard departmental policies or practices for notification of absence(s).

Note: Calling in “sick” without providing more information will not be considered sufficient notice for FMLA.

2) An employee requesting leave shall submit a completed FMLA application to the dean, department head, or designee in a timely manner (15 calendar days).

3) It is the responsibility of the dean or department head, or designee, to designate leave as FMLA and to notify the employee that the leave will count towards the employee’s 12 week entitlement. This notification shall be made within five working days of the employee’s request. The notification may be oral or written. If the notice is oral it shall be confirmed in writing no later than the following payday, unless the payday is less than one week, in which case the notice must be no later than the following payday.

4) If the department does not initially have enough information to make a determination as to whether the request qualifies as FMLA, the notice of this must be given to the employee within five working days of the time the department determines the request qualifies or does not qualify as FMLA. The employee then has seven working days to turn in additional information.

5) If the department learns that a leave is for FMLA purposes after the leave has begun, the leave may be retroactively counted as FMLA as follows:

  1. If the department did not learn a leave was a FMLA qualifying event until the employee returned to work, the department may retroactively, within two working days of the employee’s return to work, designate the leave as FMLA.
  2. If the leave taken for a FMLA qualifying event has not been designated as such and the employee wishes to designate the leave as FMLA, the employee shall notify the department within two working days of the employee’s return to work, that the leave is FMLA qualifying.
  3. A preliminary designation of FMLA may be made if the department knows the reason for the leave, but the information has not been confirmed or the department has requested additional clarification and the clarification has not been received. Upon receiving confirmation or clarification, the preliminary designation becomes final. If the additional information fails to confirm a FMLA qualifying event, the department shall withdraw the designation and provide written notice to the employee.

6) The department shall send the employee a written notice detailing specific expectations and obligations of the employee and explaining the consequences of failure to meet these obligations. The written notice shall include the following as appropriate:

  1. The leave will be counted against the employee’s 12 week FMLA entitlement.
  2. If the employee is not eligible for FMLA, the notice must state at least one reason why the employee is not eligible.
  3. The requirement that the employee provide medical certification of a serious health condition.
  4. The requirement that the employee’s accrued leaves will be applied as appropriate.
  5. The requirement that the employee make any premium payments to the Human Resources Office of Benefits to maintain benefits, and consequences of failure to make payments.
  6. Any requirement for the employee to provide a fitness for duty certification to return to work.
  7. If the employee is a “key” employee, and potential consequences that restoration to an equivalent position may be denied.
  8. The employee’s right to restoration to the same or equivalent position.
  9. The employee’s potential liability to pay health insurance premiums which were paid by the University during the employee’s unpaid FMLA, if the employee fails to return to work after taking FMLA.

7) If a dean or department head has reason to doubt the validity of the certification provided, they may require, at the expense of the department, that the employee obtain the opinion of a second health care provider, designated or approved by the dean or department head (the dean or department head may consult with the UK Medical Center Chief Medical Officer in designating a health care provider).

  1. The second health care provider may not be an employee of the University.
  2. If the second opinion differs from the first, the dean or department head may require, at the department’s expense, a third medical opinion, jointly designated and approved by the employee and the dean or department head.
  3. In a case where a third opinion is sought, that opinion shall be considered final and binding for both the employee and department.

8) An employee taking FMLA shall be entitled, upon return from FMLA, to

  1. Be restored by the department to the position they held when the leave commenced, or
  2. Be restored to an equivalent position with equivalent benefits and pay.

Note:  An equivalent position is one that is virtually identical to the employee's former position in terms of pay, benefits, and working conditions, including privileges, perquisites, and status.  It must involve the same or substantially similar duties and responsibilities which must entail substantially equivalent skill, effort, responsibility, and authority.

9) In accordance with GR X.B.2, the Provost shall determine Family and Medical Leave status for non-tenured faculty to ensure reinstatement to an equivalent position, including any delay of the probationary period.

10) If an employee is unable to perform the essential functions of their position because of a physical or mental condition, the employee has no right to restoration to another University position; however, the University’s obligation to the employee shall then be determined by the ADA.

Note: A dean or department head may require an employee on FMLA leave to report periodically on the employee's status and intent to return to work.  The position of an employee taking leave under this policy may be filled by a temporary employee only until the regular employee returns to work. However, the position of an employee taking leave under this policy may be filled by a regular employee only with the approval of the Human Resources Office of Employee Relations.

11) Upon recommendation of a dean or director, the President, the Provost or the appropriate Executive Vice President a decision may be made to deny restoration of employment to any employee who is in the highest paid 10% of all salaried employees, if the following circumstances exist:

  1. The action is necessary to prevent substantial economic injury to the University.
  2. The President, Provost or appropriate Executive Vice President notifies the employee of the University’s intent to deny restoration, and the reasons supporting the denial.
  3. The employee elects not to return to employment with the University after receiving such notice.

12) During FMLA, the status of an employee’s benefits are as follows:

  1. The University shall continue the employee’s health plan at the same level and conditions of coverage as if the employee had been in employment continuously for the duration of the leave.
  2. The University shall continue to cover the cost of the employer’s credit portion toward the employee’s health insurance plan.
  3. The University shall continue to cover the cost of the employee’s basic life insurance.
  4. The University shall continue to cover the cost of the employee’s enrollment in the long term disability plan.
  5. The employee shall make arrangements with the Human Resources Office of Employee Benefits to pay the cost of other benefits for which the employee would ordinarily be responsible during any period of paid or unpaid leave.

13) At the time an employee gives notice of intent not to return to work, the University’s obligation to provide any benefits stops.

14) The employee shall be obligated to repay the University any health insurance premium which the University paid for the employee, if the employee fails to return to work after FMLA. The employee is not obligated to repay the University any health insurance premium if the employee fails to return to work for the following reasons:

  1. The continuation, recurrence or onset of a serious health condition; or
  2. Other circumstances beyond the control of the employee.

15) If an employee fails to return to work after an approved FMLA, because of the continuation, recurrence or onset of a serious health condition, a department head may require supporting evidence as follows:

  1. A certification issued by the health care provider indicating the employee is needed to care for another qualifying individual and is therefore unable to return to work.
  2. A certification issued by the employee’s health care provider indicating the employee is unable to return to work.

16) When an employee is to return to work from FMLA, a dean or department head may require presentation of a certificate that the employee is able to resume his/her regular job duties.

17) To leave the University in good standing, an employee who is due to return to work from a FMLA shall give the required notice.

Form

Family Medical Leave Request Form
Family Medical Leave Request Form - Military
Family Medical Leave Request Form - Military/Exigency

Related Policies 
Governing Regulations, Part X - Regulations Affecting Employment 
AR 3:6 Faculty Assignment and Vacation Leave Policy

Archived Versions of this Policy

Previous version: revised 03-08-2013
Previous version: revised 07-08-2010
Previous version: revised 01-16-2009
Previous version: revised 08-19-2008
Previous version: revised 12-13-2007
Previous version: revised 04-01-2006
Previous version: revised 10-01-2003
Previous version: revised 04-23-1997