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Leave of Absence – Family and Medical Leave and Servicemembers Leave

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POLICY

Aurora University will grant up to 12 weeks of family and medical leave during any 12-month period to eligible employees, in accordance with the Family and Medical Leave Act of 1993 (FMLA) and up to 26 weeks of leave in any 12-month period in compliance with the expansion of FMLA under The Support for Injured Servicemembers Act of 2007, and any amendments to those Acts. The leave may be paid, unpaid or a combination of paid and unpaid leave, depending on the circumstances of the leave and as specified in this policy.

FORMS

• Request for Leave of Absence
• Certification of Health Care Provider for Employee's Serious Health Condition Family and Medical Leave Act (WH-380-E)
• Certification of Health Care Provider for Family Member's Serious Health Condition Family and Medical Leave Act (WH-380-F)
• Certification of Qualifying Exigency for Military Family Leave Family and Medical Leave Act (WH-384)
• Certification for Serious Injury or Illness of Covered Servicemember - for Military Family Leave Family and Medical Leave Act (WH-385)
• Designation Notice Family and Medical Leave Act (Form WH-382)

PROCEDURE

1. General Requirements and Definitions
   1. To qualify to take family or medical leave under this policy, the employee must meet all of the following conditions:
      1. The employee must have worked for the university for 12 months or 52 weeks. The 12 months or 52 weeks need not have been consecutive. For eligibility purposes, an employee will be considered to have been employed for an entire week even if the employee was on the payroll for only part of the week or if the employee is on leave during the week.
         1. While the12 months need not be consecutive, the university will not count employment prior to a continuous break in service of seven years or more.
         2. An exception will be made if the lapse was due to military obligations or approved leave where written agreement outlined the university's intent to rehire the employee.
         3. If the employee is on leave at the time the 12 month provision is met, the period of time prior to meeting eligibility does not count against the FMLA leave.
      2. The employee must have worked at least 1,000 hours during the 12-month period immediately before the date when the leave is requested to commence. The principles established under the Fair Labor Standards Act (FLSA) determine the number of hours worked by an employee. The FLSA does not include time spent on paid or unpaid leave as hours worked. Consequently, these hours of leave are not be counted in determining the 1,000 hours eligibility test for an employee under FMLA.
      3. The employee must work in an office or work site where 50 or more employees are employed by the university within 75 miles of that office or work site. The distance is to be calculated by using available transportation by the most direct route.
   2. Medical necessity means medical need for intermittent or reduced schedule leave versus voluntary treatment and procedures. If leave is intermittent or a reduced schedule, the employee's health care provider (HCP) must state that such leave is medically necessary, and explain why.
   3. Certification of the serious health condition shall include the date when the condition began, its expected duration, and a brief statement of treatment.
      1. For medical leave for the employee's own medical condition, the certification must also include:
         1. The HCP's name, contact information, type of practice/specialization;
         2. The approximate date the condition began and the probable duration;
         3. Medical facts sufficient to support the need for leave;
         4. Sufficient information on the employee's inability to perform essential job duties. Nature of restrictions, likely duration of such inability;
         5. If intermittent/reduced schedule leave for planned treatment, why there is medical necessity for leave and estimate of dates and duration of treatment/recovery periods
         6. If there may be unforeseeable episodes of incapacity, why there is medical necessity for leave and estimate of frequency and duration of episodes of incapacity.
      2. For a family member who is seriously ill, the certification must include a statement that the patient/family member requires assistance and that the employee's presence would be beneficial or desirable.
      3. If certification or recertification is returned but is incomplete or insufficient, the university must provide written notice of the specific information needed and give the employee seven calendar days to cure the deficiencies (unless seven days is not practicable under the particular circumstances despite the employee's diligent, good faith efforts.)
   4. Duration of period of incapacity for acute conditions: A period of incapacity exists if
      1. Duration of incapacity lasts more than three full consecutive calendar days,
      2. An in-person treatment occurs at least once within seven days of the first day of incapacity, and
      3. Either is a regimen of continuing treatment initiated by the HCP during the first treatment or a second in-person visit for treatment (the necessity of which is determined by the HCP) within 30 days of the first day of incapacity.
2. Type of Leave Covered
   To qualify as FMLA leave under this policy, the employee must be taking leave for one of the reasons listed below:
   1. The birth of a child and/or in order to care for that child.
   2. The placement of a child for adoption or foster care and to care for the newly placed child.
   3. To care for a spouse, domestic partner, child or parent with a serious health condition.
   4. The serious health condition of the employee:
      1. A serious health condition is one that makes the employee unable to perform the function of the position AND
         1. Requires inpatient care at a hospital, hospice or residential medical care facility, including any period of incapacity or any subsequent treatment in connection with such inpatient care, or a condition that requires continuing care by a licensed health care provider, AND/OR
         2. Illnesses of a serious and long-term nature, resulting in recurring or lengthy absences. Generally, a chronic or long-term health condition that would result in a period of three consecutive days of incapacity with the first visit to the health care provider within seven days of the onset of the incapacity and a second visit within 30 days of the incapacity would be considered a serious health condition. For chronic conditions requiring periodic health care visits for treatment, such visits must take place at least twice a year.
   5. The university will require an employee to provide a doctor's certification of the serious health condition. The certification process is outlined in Sections VII and VIII, below.
   6. If an employee takes paid sick leave for a condition that progresses into a serious health condition and the employee requests unpaid leave as provided under this policy, the university may designate all or some portion of related leave taken as FMLA, to the extent that the earlier leave meets the necessary qualifications.
   7. Qualifying exigency leave for families of members of the National Guard and Reserves when the covered military member is on active duty or called to active duty in support of a contingency operation.
      1. Covers an employee whose spouse, son, daughter or parent either has been notified of an impending call or order to active military duty or who is already on active duty. An employee may take up to 12 weeks of leave for reasons related to or affected by the family member's call-up or service. The qualifying exigency must be one of the following:
         1. Short-notice deployment activities;
         2. Military events and related activities;
         3. Childcare and school activities; (to make alternate childcare arrangements or to provide childcare of a military member's child on an urgent, immediate need basis, e.g. when military duty disrupts preexisting arrangements.
         4. Financial and legal arrangements;
         5. Counseling activities;
         6. Rest and recuperation activities; (an employee may take FMLA leave for such purposes up to five days for each instance of rest and recuperation)
         7. Post-deployment activities; and/or
         8. Additional activities provided it arises out of the military member's active duty/call to active duty, the university and employee mutually agree that such leave shall be considered a qualifying exigency and the university and employee mutually agree on both the timing and duration of the leave.
      2. The leave may commence as soon as the individual receives the call-up notice. Son or daughter for this type of FMLA leave is defined the same as for child for other types of FMLA leave except that the person does not have to be a minor.
      3. Employees may not take leave if the family member is in the Regular Armed Forces except certain retired members of the Regular Armed Services.
      4. Applies only to Federal (not State) call to active duty.
      5. Employees requesting this type of FMLA leave must provide proof of the qualifying family member's call-up or active military service before leave is granted.
   8. Military Caregiver leave (also known as covered servicemember leave) to care for an injured or ill servicemember.
      1. This leave may extend up to 26 weeks in a 12-month period for an employee whose spouse, son, daughter, parent or next-of-kin is injured or recovering from an injury suffered while on active military duty and who is unable to perform the duties of the servicemember's office, grade, rank or rating. Next-of-kin is defined as the closest blood relative of the injured or recovering servicemember.
      2. An employee is also eligible for this type leave when the family servicemember is receiving medical treatment, recuperation or therapy, even if the servicemember is on "temporary disability retired list."
      3. Employees requesting this type of FMLA leave must provide certification of the family member or next-of-kin's injury, recovery, or need for care. This certification is not tied to a serious health condition as for other types of FMLA leave.
      4. This is the only type of FMLA leave that may extend an employee's leave entitlement beyond 12 weeks to 26 weeks. Other types of FMLA leave are included with this type of leave totaling the 26 weeks.
   9. Amount of Leave
      1. An eligible employee can take up to 12 weeks for the FMLA circumstances A through E above under this policy during any 12 month period. The university will measure the 12 month period as a rolling 12-month period measured backward from the date an employee uses any leave under this policy. Each time an employee takes leave, the university will compute the amount of leave the employee has taken under this policy in the last 12 months and subtract it from the 12 weeks of available leave. The balance remaining is the amount of leave the employee is entitled to take at that time.
      2. An eligible employee can take up to 26 weeks for the FMLA circumstance outlined in Section H above (military caregiver leave) during a single 12 month period. For this military caregiver leave, the university will measure the 12 month period as a rolling 12 month period measured forward. FMLA leave already taken for other FMLA circumstances will be deducted from the total of 26 weeks available.
      3. If a husband and wife both work for the university and each wishes to take leave for the birth of a child, adoption, or placement of a child in foster care, or to care for a parent (but not a parent in-law) with a serious health condition, the husband and wife may only take a combined total of 12 weeks of leave. If a husband and wife both work for the university and each wishes to take leave to care for a covered injured or ill servicemember, the husband and wife may only take a combined total of 26 weeks leave.
3. Employee Status and Benefits During Leave
   1. While an employee is on leave, the university will continue the employee's health benefits during the leave period at the same level and under the same conditions as if the employee had continued to work.
   2. If the employee chooses not to return to work for reasons other than a continued serious health condition of the employee or the employee's family member or a circumstance beyond the employee's control, the university will require the employee to reimburse the amount the university paid for the employee's health insurance premium during the leave period.
   3. Under current university policy, the employee pays a portion of the health care premium. While on paid leave, the university will continue to make payroll deductions to collect the employee's share of the premium. While on unpaid leave, the employee must continue to make this payment, either in person or by mail. The payment must be received in Human Resources by the 15th day of each month. If the payment is more than 30 days late, the employee's health care coverage may be dropped for the duration of the leave. The university will provide 15 days notification prior to the employee's loss of coverage.
   4. If the employee contributes to a life insurance or disability plan, the university will continue making payroll deductions while the employee is on paid leave. While the employee is on unpaid leave, the employee may request continuation of such benefits and pay their portion of the premiums; or the university may elect to maintain such benefits during the leave and pay the employee's share of the premium payments. If the employee does not continue these payments, the university may discontinue coverage during the leave. If the university maintains coverage, the university may recover the costs incurred for paying the employee's share of any premiums whether or not the employee returns to work.
4. Employee Status after Leave
   1. Generally, an employee who takes leave under this policy will be able to return to the same position or a position with equivalent status, pay, benefits and other employment terms. The position will be the same or virtually identical in terms of pay, benefits and working conditions. The university may choose to exempt certain key employees from this requirement and not return them to the same or similar position.
   2. An employee who takes leave under this policy may be asked to provide a fitness for duty (FFD) clearance from the healthcare provider. This requirement will be included in the university's response to the FMLA request.
5. Use of Paid and Unpaid Leave
   1. An employee who is taking FMLA leave because of the employee's own serious health condition or the serious health condition or the serious health condition of a family member may use all paid vacation, personal or sick leave prior to using unpaid leave. Paid leave will run concurrently with FMLA leave.
   2. Medical leave for the birth of the child and for an employee's serious health condition, including workers' compensation leave (to the extent that it qualifies), will be designated as FMLA leave and will run concurrently with FMLA.
   3. An employee who is using military FMLA leave for a qualifying exigency or for FMLA military caregiver leave may use paid vacation and personal leave (or paid sick leave if applicable) prior to unpaid leave. Paid leave will run concurrently with FMLA leave.
6. Intermittent Leave or a Reduced Work Schedule
   1. The employee may take FMLA leave in 12 consecutive weeks, may use the leave intermittently (take a day periodically when needed over the year) or, under certain circumstances, may use the leave to reduce the work week or work day, resulting in a reduced hour schedule. In all cases, the leave may not exceed a total of 12 work weeks (or 26 work weeks to care for an injured or ill servicemember over a 12-month period).
   2. The university may temporarily transfer an employee to an available alternative position with equivalent pay and benefits if the alternative position would better accommodate the intermittent or reduced schedule in instances of when leave for the employee or employee's family member is foreseeable and for planned medical treatment, including recovery from a serious health condition or to care for a child after birth, or placement for adoption or foster care.
   3. For the birth, adoption, or foster care of a child, the university and the employee must mutually agree to the schedule before the employee may take the leave intermittently or work a reduced work hour schedule. Leave for birth, adoption, or foster care of a child must be taken within one year of the birth or placement of the child.
   4. If the employee is taking leave for a serious health condition or because of the serious health condition of a family member, the employee should try to reach agreement with the university before taking intermittent leave or working a reduced work hour schedule. If this is not possible, then the employee must prove that the use of the leave is medically necessary. The university may require certification of the medical necessity as discussed in Sections VII, VIII, IX and X.
7. Certification of a Serious Health Condition of the Employee
   1. The university will require certification for the employee's serious health condition. The employee must respond to such a request within 15 days of the request or provide a reasonable explanation for the delay. Failure to provide certification may result in a denial of continuation of leave. Medical certification will be provided using the DOL Certification of Health Care Provider for Employee's Serious Health Condition (linked to this policy, also available at http://www.dol.gov/esa/whd/forms/WH-380-E.pdf),
   2. The university may directly contact the employee's health care provider for verification or clarification purposes using a health care professional, an HR professional, leave administrator or management official. The university will not use the employee' s direct supervisor for this contact. Before the university makes this direct contact with the health care provider, the employee will be given an opportunity to resolve any deficiencies in the medical certification. In compliance with HIPAA Medical Privacy Rules, the university will obtain the employee's permission for clarification of individually identifiable health information.
   3. The university has the right to ask for a second opinion if it has reason to doubt the certification. The university will pay for the employee to get a certification from a second doctor, which the university will select. If necessary to resolve a conflict between the original certification and the second opinion, the university will require the opinion of a third doctor. The university and the employee will mutually select the third doctor, and the university will pay for the opinion. This third opinion will be considered final. The university may deny FMLA leave to an employee who refuses to release relevant medical records to the health care provider designated to provide a second or third opinion. The employee will be provisionally entitled to leave and benefits under the FMLA pending the second and/or third opinion.
8. Certification for the Family Member's Serious Health Condition
   1. The university will require certification for the family member's serious health condition. The employee must respond to such a request within 15 days of the request or provide a reasonable explanation for the delay. Failure to provide certification may result in a denial of the continuation of leave. Medical certification will be provided using the DOL Certification of Health Care Provider for Family Member's Serious Health Condition (available linked to this policy, and at http://www.dol.gov/esa/whd/forms/WH-380-F.pdf)
   2. The university may directly contact the employee's health care provider for verification or clarification purposes using a health care professional, an HR professional, leave administrator or management official. The university will not use the employee' s direct supervisor for this contact. Before the university makes this direct contact with the health care provider, the employee will be given an opportunity to resolve any deficiencies in the medical certification. In compliance with HIPAA Medical Privacy Rules, the university will obtain the employee's permission for clarification of individually identifiable health information.
   3. The university has the right to ask for a second opinion if it has reason to doubt the certification. The university will pay for the employee to get a certification from a second doctor, which the university will select. If necessary to resolve a conflict between the original certification and the second opinion, the university will require the opinion of a third doctor. The university and the employee will mutually select the third doctor, and the university will pay for the opinion. This third opinion will be considered final. The university may deny FMLA leave to an employee who refuses to release relevant medical records to the health care provider designated to provide a second or third opinion. The employee will be provisionally entitled to leave and benefits under the FMLA pending the second and/or third opinion.
9. Certification of Qualifying Exigency for Military Family Leave
   1. The university will require certification of the qualifying exigency for military family leave. The employee must respond to such a request within 15 days of the request or provide a reasonable explanation for the delay. Failure to provide certification may result in a denial of continuation of the leave. This certification will be provided using the DOL Certification of Qualifying Exigency for Military Family Leave (available linked to this policy and at http://www.dol.gov/esa/whd/forms/WH-385.pdf).
10. Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave
    1. The university will require certification for the serious injury or illness of the covered servicemember. The employee must respond to such a request within 15 days of the request or provide a reasonable explanation for the delay. Failure to provide certification may result in a denial of continuation of leave. This certification will be provided using the DOL Certification for Serious Injury or Illness of a Covered Servicemember (available linked to this policy and at http://www.dol.gov/esa/whd/forms/WH-385.pdf).
11. Recertification
    1. The university may require recertification for the serious health condition of the employee or the employee's family member no more frequently than every 30 days and only when circumstances have changed significantly, or if the employee receives information casting doubt on the reason given for the absence, or if the employee seeks an extension of his or her leave. Otherwise, the university may request recertification for the serious health condition of the employee or the employee's family member every six months in connection with an FMLA absence. The university may provide the employee's health care provider with the employee's attendance records and ask whether the need for leave is consistent with the employee's serious health condition.
12. Procedure for Requesting FMLA Leave
    1. All employees requesting FMLA leave must provide verbal or written notice of the need for the leave to Human Resources. Within five business days after the employee has provided this notice, Human Resources will complete and provide the employee with the DOL Notice of Eligibility and Rights (available linked to this policy and at http://www.dol.gov/esa/whd/fmla/finalrule/WH381.pdf).
    2. When the need for the leave is foreseeable, the employee must provide the university with at least 30 days' notice. When an employee becomes aware of a need for FMLA leave less than 30 days in advance, the employee must provide notice of the need for the leave either the same day or the next business day upon first becoming aware of a need. When the need for FMLA leave is not foreseeable, the employee must comply with the university's usual and customary notice procedural requirements for requesting leave, absent unusual circumstances.
13. Designation of FMLA Leave
    1. Within five business days after the employee has submitted the appropriate certification form, Human Resources will complete and provide the employee with a written response to the employee's request for FMLA leave using the DOL Designation Notice (available linked to this policy and at http://www.dol.gov/esa/whd/forms/WH-382.pdf).
14. Intent to Return to Work From FMLA Leave
    1. On a basis that does not discriminate against employees on FMLA leave, the university may require an employee on FMLA leave to report periodically on the employee's status and intent to return to work.

Employees with questions regarding coverage under this FMLA policy or under the university policy HR-331 Sick Leave With Pay or under university policy HR -106 Americans with Disabilities Act should consult with Human Resources.