3.34 / Family and Medical Leave Act

  1. Purpose

    The purpose of this policy is to provide guidance and assistance regarding implementation of the Family and Medical Leave Act of 1993 (FMLA), as amended.

  2. Preamble

    The FMLA provides eligible employees with job-protected leave for certain qualifying events or circumstances. Those events or circumstances may involve the employee's own health event or circumstance, or may involve the health needs of the employee's family member. Additionally, the FMLA may provide eligible employees with job-protected leave for certain exigencies related to military service or the health needs of a covered member of the Armed Forces.

  3. Definitions

    1. Child

      Biological, adopted, foster, or stepchild or legal ward, or child of a person standing "in loco parentis" by providing day-to-day care and financial support, where the child is under age 18, or age 18 or older and incapable of self care because of a mental or physical disability.

    2. Continuing Treatment by a Health Care Provider

      Continuing Treatment by a Health Care Provider means any one of the following:

      1. A period of incapacity of more than three consecutive full calendar days, and any subsequent treatment or period of incapacity relating to the same condition that also involves either treatment two or more times within 30 days, or treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

      2. Any period of incapacity due to pregnancy or prenatal care.

      3. Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which requires periodic visits (i.e., at least twice per year) for treatment by a health care provider, which continues over an extended period of time, and may cause episodic rather than a continuing period of incapacity.

      4. Permanent or long-term conditions.

      5. Conditions requiring multiple treatments.

    3. Covered Active Duty

      Means duty of a Covered Service Member during deployment to a foreign country. This term, as applied to members of the reserve component of the Armed Services, shall mean covered active duty as defined by federal law.

    4. Covered Service Member

      Means a 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 a veteran who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness and who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy.

    5. Incapacity

      Inability to work, attend school, or perform other regular daily activities due to the serious health condition, treatment for such condition, or recovery from such condition.

    6. Inpatient Care

      An overnight stay in a hospital, hospice, or residential medical care or any subsequent treatment in connection with the inpatient care.

    7. Next of Kin

      The nearest blood relative other than the Covered Service Member's spouse, parent, son or daughter, in the following order of priority: blood relatives who have been granted legal custody of the Service Member by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins, unless the covered Service Member has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave under the FMLA.

    8. Parent

      A biological, adoptive, step or foster parent, or other person who stood "in loco parentis" to a child by providing day-to-day care and financial support. In-laws are not covered by this policy.

    9. Qualifying Exigencies

      Relate to the active or impending duty of Covered Service Member, including attending certain military events, arranging or providing for alternative child care or school, addressing certain financial and legal arrangements, addressing issues arising from short-term deployment, attending certain counseling sessions, and attending post-deployment reintegration briefings.

    10. Spouse

      A legal spouse or a common law spouse.

    11. Serious Health Condition

      An illness, injury, impairment, or physical or mental condition that involves Inpatient Care (definition E above) or Continuing Treatment by a Health Care Provider (definition B above).

    12. Treatment

      Includes (but is not limited to) examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, dental examinations, over-the-counter drugs, or bed rest.

    13. Service Member

      For purposes of this policy, a Service Member is a Covered Service Member as defined above.

  4. Policy

    The FMLA requires employers to provide 12 weeks of unpaid leave to eligible employees for qualifying family and medical reasons, i.e., birth or adoption of a child or relating to a serious health condition, or for certain exigencies for Covered Service Members, or up to 26 weeks to care for a covered current Service Member who has a serious injury or illness incurred in the line of duty.

    Leave taken pursuant to the FMLA may be taken in continuous full-time periods or may include a reduced or intermittent schedule when medically necessary, or for a qualifying exigency due to a call to active duty. When intermittent or reduced schedule leave is needed to care for an immediate family member or for the employee's own illness and is for planned medical treatment, the employee must consult with the employee's supervisor and make a reasonable effort to schedule treatment so as not to unduly disrupt the business of the employee's department or unit.

    1. Employee Eligibility

      An employee is eligible for FMLA leave if he or she has:
      1. Been employed by the University or the State of Kansas for 12 months, and

      2. Worked at least 1,250 hours during the 12 months prior to the start of FMLA leave.

      For purposes of this policy, full-time employment is considered to be 2,080 hours per year. An employee returning from fulfilling his or her National Guard or Reserve military obligation will be credited with the hours of work that would have been performed during the period of military service.
    2. Reasons for Leave

      The FMLA allows eligible employees to take leave for the following qualifying events or circumstances:

      1. Family Leave

        An employee may take family leave for the following events or circumstances:

        1. Birth and care of a child during the first year.

        2. Adoption or foster placement of a child and care during first year.

        3. Care for an employee's spouse, child, or parent with a diagnosed serious health condition.

        Amount of Leave: Employees taking family leave may take up to twelve (12) weeks of family leave during a 12-month period.

        Leave for birth, adoption of a child, or placement of a foster child must be taken in one single period and must be taken within one year of the birth or placement of the child. If both parents work for WSU and request leave for birth or placement of a child, care of that child in the first year, or care for a parent with a serious health condition, the 12-week leave period for both employees is combined. Parents do not each have 12 weeks of FMLA available for those situations.

      2. Medical Leave

        An employee may take leave for his or her own diagnosed Serious Health Condition.

        Amount of Leave: Employees taking medical leave for their own Serious Health Condition may take up to twelve (12) weeks of medical leave during a 12-month period.

      3. Service Member Leave

        1. Exigency - Employees with a spouse, son, daughter, or parent who is on Covered Active Duty, or who has been notified of an impending call or order to Covered Active Duty, may use leave to address certain Qualifying Exigencies relating to such covered active duty.

          An employee whose family member is on active duty or called to active duty as a member of the Regular Armed Forces is not eligible to take leave because of Qualifying Exigencies.

          Amount of Leave: An employee may take up to twelve (12) weeks of medical leave during a 12-month period.

        2. Injury or Illness - Employees may also take leave to care for a Covered Service Member who has a serious injury or illness incurred in the line of duty that may render the Service Member medically unfit to perform his or her own duties and for which the Service Member is undergoing medical treatment, recuperation, or therapy; or is an outpatient status; or is on the temporary disability retired list.

          In order to care for the Covered Service Member the employee must be the spouse, son, daughter, parent or Next of Kin of the Service Member.

          Amount of Leave: An employee may take up to twenty-six (26) weeks of leave per Service Member or per injury/illness during a 12-month period, beginning on the first day of leave.

  5. Procedures

    1. Notice and Documentation

      1. Notice - When the need for leave is foreseeable, the employee must notify the Office of Human Resources (OHR) within 30 days of the anticipated date of leave. When the need for leave is not foreseeable, the employee must notify OHR as soon as practicable. An employee requesting leave must provide enough information for the requested leave so as to allow the University to determine whether the leave qualifies under FMLA.

      2. Information to be provided - The employee must provide to OHR complete and sufficient medical or military documentation in support of a request for FMLA leave. Failure to provide such documentation may result in the denial or delay of FMLA. The University may seek a second or third opinion of medical documentation, and may also request reasonable updates of supporting documentation. The employee may also be required to provide documentation of the familial relationship to support Service Member leave.

      3. Notification of eligibility - The University will notify the employee in writing if the employee is eligible for FMLA and, if so, whether the requested leave will be counted as FMLA leave, or if it is determined that the leave is not FMLA-protected. In certain circumstances the University may designate an absence as FMLA even if the employee did not request FMLA. The University may not retroactively designate an absence as FMLA unless the reasons for the absence were not known to the University at the time leave began.

      4. An employee taking FMLA leave must comply with their department's established call-in procedures appropriate for the situation. When calling in, employees must also inform their department if the requested leave or absence is for a reason for which FMLA was previously taken or certified.

      5. An employee on leave for his or her own medical condition must present a medical release to return to work, including medical certification that the employee is able to perform the essential functions of the position. Failure to submit a sufficient and complete release may delay the employee's return to work.

      6. Employees are encouraged to review their rights and responsibilities under the FMLA at http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf

    2. Paid versus Unpaid Leave

      1. FMLA does not provide for paid leave. However, employees may be paid during a FMLA covered absence(s) in accordance with applicable University policy and memorandums of understanding.

      2. Employees eligible for FMLA will be required to use accumulated leave concurrently with FMLA. Leave benefits may be sick leave (and/or shared leave) and/or vacation leave. Sick leave (including that acquired under the shared leave policy), compensatory leave and vacation leave must all be exhausted before the employee will be placed on unpaid leave (leave without pay).

    3. Continuation of Insurance Benefits During Unpaid Leave

      1. During approved leave, paid or unpaid, the University will continue to pay the employer's share of the employee's medical and dental insurance plan(s). If the employee is responsible for a share of the premium(s) through payroll deduction, the employee must continue to pay his or her share during any unpaid leave.

      2. Life insurance, long-term disability and waiver of annuity contribution benefit may be continued at employee expense under the leave without pay rules. If leave is due to an employee's illness, life insurance, long-term disability and waiver of annuity contribution benefit coverage may be continued through the policy provisions. Contributions to KPERS and the Board of Regents Mandatory Retirement Plan cannot continue during a period of unpaid FMLA or other form of unpaid leave.

    4. Return to Employment After FMLA Leave

      1. At the end of FMLA leave, an employee must be restored to the job he or she left or one with equivalent benefits, pay and "other terms and conditions of employment."

      2. The FMLA contemplates that there may be situations when an employee cannot return to employment during or after leave. Termination of employment may occur, for example, while an employee is on leave if there is a layoff or reduction in force, or cause that would otherwise support dismissal, if the employee's job would have been lost if he or she was actively working. Similarly, termination of employment may occur if the employee is unable to perform one or more of the essential functions of the position, with or without reasonable accommodation, after the leave is over.

  6. Implementation

    This policy shall be included in the WSU Policies and Procedures Manual and shared with appropriate constituencies of the University.

    The Vice President for Finance and Administration shall have primary responsibility for publication, dissemination and implementation of this University policy.