FMLA Policy

Highlight Box

U.S. Department of Labor FMLA Form WH-381
Employer Response to Employee Request for Family or Medical Leave

US Dept of Labor FMLA Form WH-380
Certification of Health Care Provider


 

Introduction

The Family and Medical Leave Act of 1993 (FMLA) applies to all eligible faculty and staff.
In summary, FMLA requires that an "eligible" employee must be granted in total up to twelve weeks of unpaid leave during any twelve-month rolling period for any of the following reasons:

1. QUALIFYING LEAVES:
1. Because of the birth of a son or daughter of the employee and in order to care for such son or daughter. 
2. Because of the placement of a son or daughter with the employee for adoption or foster care. 
3. In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition. 
4. Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.
5. Because of any qualifying exigency (as defined by the Department of Labor) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.
2. EXPIRATION OF ENTITLEMENT.  The entitlement to leave under sections 1 and 2 of paragraph 1, QUALIFYING LEAVES, for a birth or placement of a son or daughter shall expire at the end of the 12-month period beginning on the date of such birth or placement.
3. SERVICE MEMBER FAMILY LEAVE.  An eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered service member shall be entitled to a total of 26 work weeks of leave during a 12-month period to care for the service member. The leave described in this paragraph shall only be available during a single 12-month period. During the single 12-month period described in this paragraph 3, SERVICE MEMBER LEAVES, an eligible employee shall be entitled to a combined total of 26 workweeks of leave under paragraphs 1, QUALIFYING LEAVES,  and 3, SERVICE MEMBER LEAVES. Nothing in this paragraph shall be construed to limit the availability of leave under paragraph 1, QUALIFYING LEAVES, during any other 12-month period.

FMLA does not supersede any University policy or collective bargaining agreement that provides greater family or medical leave rights than the rights established under FMLA.  Conversely, FMLA provides that the rights established for employees under FMLA can not be diminished by any policy or agreement.

The leave granted under FMLA generally is a lesser benefit than that available under various University policies and collective bargaining agreements.  Because the University meets or exceeds FMLA requirements in many respects, this policy designates many existing types of leave as FMLA leave, so that the University leave and the FMLA leave run concurrently.

Officers of Instruction, Research and the Libraries should consult The Faculty Handbook for additional information about types of leave and benefits applicable to their situation.

 

A.  Eligibility

To be eligible for FMLA leave, an employee must have been employed by the University for at least 12 months, and have worked at least 1,250 hours during the 12-month period immediately preceding the commencement of the leave.

All periods of time when the employee was on the payroll, including casual and temporary employment, count toward determining whether the employee has been employed for at least 12 months.  Only periods of actual work time count toward the determination of whether the employee has worked at least 1,250 hours during the preceding 12 months.  Periods of paid or unpaid leave, holidays, etc. which are not work time for purposes of the Fair Labor Standards Act are excluded.

 

B.  The 12-Month Period

The 12 month period during which FMLA leave is calculated and during which FMLA leave may be taken is based on a rolling 12-month period.  Under this method of calculation, an employee may take up to twelve weeks of FMLA leave at any time during a 12-month rolling period.

 

C.  Spousal Coverage

In the event both spouses are Columbia employees, both spouses may use FMLA leave to a maximum of 12 weeks each.  In the event of service member family leave, both spouses may use FMLA leave to a maximum of 26 weeks each during the single 12-month period.

 

D.  Intermittent Leave

1. Illness
   
   An employee taking FMLA leave for his/her own serious health condition or to care for a seriously ill spouse, child or parent may take leave on an intermittent basis, or by reducing his/her scheduled work hours. The employee must provide certification from the health care provider caring for the employee and/or family member that leave must be taken in that manner. Intermittent leave will be taken in increments of whole hours.
   
   In the event an employee is granted intermittent FMLA leave or a reduced work schedule, due to his/her serious health condition or to care for a seriously ill family member, it is incumbent upon the department to keep track of lost work time and to deduct the time from an existing benefit or from salary, as appropriate. 
   
   Intermittent leave is limited to the equivalent of 12 weeks' work time.  The total number of hours of intermittent leave available to an employee is equal to 12 times the number of hours per week which the employee is normally scheduled to work, less any other FMLA leave taken in the same calendar year.
   
2. Birth, Adoption or Foster Care
   
   FMLA leave for birth, adoption, or foster care placement cannot be taken intermittently or on a reduced schedule of any kind without the written permission of the employee's department.
   

 

E.  Definitions

1. "Family Member"
   
   "Family member" is defined in FMLA to include the employee's spouse, son, daughter or parent (but not a parent "in-law").  A "son" or "daughter" is any child under 18 who is the biological child of the employee, who is adopted by the employee, or whom the employee supervises on a day-to-day basis and for whom the employee is financially responsible or who is an eligible dependent under the University's health benefits plan  (e.g., a step child or foster child.)  A "son" or "daughter" is also a child over 18 who is incapable of self-care because of a mental or physical disability.  A "parent" is any biological parent, or any individual who assumed day to day and financial responsibility for the employee when the employee was a child.
   
   Same-sex domestic partners will be treated as the employee's spouse for purposes of this policy, provided that they qualify for benefits coverage under the University's benefits program.
   
   The son or daughter of a same-sex domestic partner of a University employee will be treated as the employee's child for the purposes of this policy, provided that the child qualifies for benefits coverage under the University's benefits program.
   
   
2. "Serious Health Condition"
• A serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves:
1. inpatient care in a hospital, hospice or residential medical care facility or a subsequent treatment in connection with such inpatient care; or
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 (i.e., inability to work, attend school or perform regular daily activities) of more than three consecutive calendar days and any subsequent treatment or incapacity relating to the same condition.  This period of incapacity must also involve:
• treatment two or more times by a health care provider; or 
• treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the provider's supervision. 
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 with a health care provider; 
• continues over an extended period of  time; and 
• causes occasional rather than continuous periods of incapacity (e.g. asthma, diabetes, epilepsy, etc.)
4. A period of incapacity which is permanent or long term due to a condition for which treatment may not be effective, provided the employee is under the continuing supervision of a health care provider (e.g., Alzheimer's, stroke, terminal stage of a disease).
5. Any period of absence to receive multiple treatments (including a period of recovery there from) by a health care provider either for restorative surgery, or for a condition which, if untreated, would likely result in a period of incapacity for more than three consecutive days (e.g., chemotherapy, dialysis, physical therapy).
• A serious health condition does not include cosmetic treatments or cosmetic surgery unless hospitalization is required.  Common colds, flu, headaches, earaches, routine dental treatments, and similar conditions are not serious health conditions for FMLA purposes.  Treatments such as use of over-the-counter medications or bed rest, which can be initiated without visiting a physician, are generally not serious health conditions.
  
  
3. "Health Care Provider"
   
   "Health Care Provider" is defined as any physician, podiatrist, dentist, clinical psychologist, optometrist, nurse or midwife who is authorized to provide health care and is acting within the scope of his or her duties.  The rules also include "any health care provider that is recognized by the employer or accepted by the employer's group health plan (or equivalent program)".  Further, the rules specifically include clinical social workers as health care providers.
   
   
4. “Active Duty”
   
   The term “active duty” means duty under a call or order to active duty of members of the uniformed services as described in section 101(a)(13)(B) of title 10, United States Code. 
   
   
5. “Contingency Operation”
   
   A “contingency operation" is an action or operation against an opposing military force as described in section 101(a)(13)(B) of title 10, United States Code. 
   
   
6. “Covered Service member”
   
   The term “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.
   

 

F. Requesting Leave

Officers of Instruction, Research and the Libraries must request FMLA leave through their department chairs and deans, who will forward the request, and if necessary, a Personnel Action Form, to the Vice Provost for Academic Administration for authorization. Officers of administration and support staff must request FMLA leave through their supervisors, who will forward the request to department administrators for record-keeping purposes and, if necessary, completion and submission of the Personnel Action Form.

The following leaves will be designated as FMLA leave when eligible:

1. Paid medical leave for officers, and sick leave (paid or unpaid) for support staff, which exceeds seven calendar days. Worker compensation and non-occupational disability are included within this provision.
2. Personal leaves of absence without pay when used for FMLA purposes, regardless of duration.
3. Medical leaves for officers of instruction, research and the libraries.
4. Child care leaves, whether paid or unpaid.
5. All intermittent leave, when used for purposes of the employee's own illness or to care for a relative with a serious health condition.
6. Vacation or personal time when used for FMLA purposes.
7. Parental Work Load Relief for officers of instruction, research and the libraries.

Attached to this policy is a copy of U.S. Department of Labor Form WH-381, which should be used to designate leave as FMLA leave. A copy of the form must be provided to the employee, and a copy must be attached to the Personnel Action Form, when applicable. This form also may be accessed from the Department of Labor website at U.S. Department of Labor FMLA Form WH-381. Adobe Acrobat will automatically download to computers which do not have that software installed, in order to permit printing of the form.

Once an employee has exhausted the available FMLA leave in a 12-month period, the remaining leave is not considered FMLA leave.

The designation of whether leave is FMLA leave or not should be made BEFORE the leave commences, or the leave may not qualify as an employee's FMLA entitlement. However, if the University has insufficient information to designate FMLA leave before or during the leave, a post-leave retroactive designation can be made if the determination is made within two business days after the employee's return to work.

1. Foreseeable Leaves
   
   If the need for FMLA leave is foreseeable, the employee should provide notice to the supervisor at least 30 days in advance. If proper prior notice is not given, leave may be denied unless there is a reasonable excuse for the delay. If otherwise qualifying FMLA leave is denied for lack of notice, the University may designate leave to start 30 days after proper notice is given.
• NOTICE FOR LEAVE DUE TO ACTIVE DUTY OF FAMILY MEMBER — In any case in which the necessity for leave under the service member leave policy is foreseeable, whether because the spouse, or a son, daughter, or parent, of the employee is on active duty, or because of notification of an impending call or order to active duty in support of a contingency operation, the employee shall provide such notice to the employer as is reasonable and practicable.
2. Leaves Not Foreseeable
   
   If the need for family or medical leave is not foreseeable, notice must be given by the employee as soon as possible and practicable. Except in the case of extreme medical emergencies, employees are expected to advise their supervisor as soon as they know of the need for and expected duration of leave, and generally within two business days of the time they know of the need for leave. Notice may be given by telephone, e-mail, fax, or other similar methods.
   
3. Scheduling
   
   If the leave is for the planned medical treatment of the employee or a family member, or requires intermittent or reduced schedule leave, employees may be required by their supervisor to arrange a particular schedule or to reschedule appointments or treatments, subject to the consent of the health care provider.
   
4. Denial Of Leave
   
   An employee's failure to provide reasons sufficient to qualify for FMLA leave will result in the denial of the leave.
   

 

G.  Proof

Medical certification will be required from a health care provider in all cases involving either FMLA leave to care for a seriously ill spouse, child, or parent, or FMLA leave due to an employee's serious health condition.  At a minimum, a diagnosis and the underlying medical facts supporting the diagnosis, the plan of treatment and the prognosis of the illness and response to treatment are required.  The University also reserves the right to contact the health care provider for clarification.

Certification must be provided within 15 days, unless it is not practical under the circumstances.  Departments should utilize the attached form for Certification of Health Care Provider, U.S. Department of Labor Form WH-380. This form also may be accessed from the Department of Labor website at US Dept of Labor FMLA Form WH-380. Adobe Acrobat will automatically download to computers which do not have that software installed, in order to permit printing of the form.

If an employee wishes to maintain the confidentiality of the documentation, officers of administration and support staff may submit the documentation directly to the Benefits office via campus mail: Disability and Worker’s Compensation, Mail Code 8703.  Officers of instruction, research and the libraries may submit the documentation to: Vice Provost for Academic Administration, Mail Code 4326.

The University at its sole discretion may require a second opinion from an independent medical provider selected by the department with the expenses borne by the department where the employee works.  If the opinions of the employee's and the department's health care providers differ, then the department can require a third opinion at the department's expense which can be issued by a mutually agreed health care provider.

 

H.  Confidentiality

The University will keep confidential all information relating to requests for FMLA leave.  This information will only be disclosed to those with a need to know, and will be used only to make decisions in regard to the provisions of this policy.

 

I.  Substitution of Paid Leave

Paid leave may be substituted for unpaid leave, as described below.  If paid leave is substituted, it replaces the equivalent unpaid leave time.

Prior to the commencement of FMLA leave, an employee may elect to substitute earned vacation or personal time for otherwise unpaid FMLA leave, or the University may require an employee to use leave as set forth below, up to the full amount such accrued leave.

Paid sick leave may only be used in the case of leave for an employee's illness or serious health condition (including childbirth).

Employees must use available paid sick leave for their own medical condition.  Employees will not be required to use vacation or personal leave unless such leave would be forfeited under the University's personnel policies or applicable labor agreement.

 

J.  Benefits

1. The University is required to maintain its contribution toward medical coverage for up to the 12 weeks of FMLA leave at the same level as if the employee were actively at work.  For service member leave, the University will maintain its contribution toward medical coverage for up to 26 weeks of FMLA leave at the same level as if the employee were actively at work.  If employee contributions are required also, such contributions remain the employee's responsibility for payment.  At the employee's option, payment may be made either in advance, in a lump sum, or monthly, during the leave.
   
   Contributions for the pension plan (the University Retirement Plan) and tax-deferred annuities (the Voluntary Retirement Savings Plan, or VRSP) will continue to be made during periods of paid FMLA leave, but will not be made during periods of unpaid leave unless specified by collective bargaining agreement.  FMLA leave, whether paid or unpaid, will count toward vesting of pension benefits.
   
2. Employee contributions as outlined above may be made for continuation of any combination of the following:
• medical insurance
• dental insurance
• flexible spending accounts
• life insurance
• disability insurance
  
  Employees paying for coverage continuation on a monthly basis will be required to pay on the first of each month for that month's coverage.  A thirty-day grace period will be allowed for late payment.  At the expiration of such grace period, one reminder notice will be sent to the employee's last known address.  If payment is not received within 45 days from the first date for that payment, coverage will be canceled, effective as of the due date.
  
3. Any questions regarding health coverage during FMLA leave should be directed to the HR Benefits Service Center at 212-851-7000.
   
   All FMLA leave must be recorded by the Departmental Administrator (DA).  Leaves which require a Personnel Action Form will be denoted as FMLA leave in the comments box.  Intermittent leave without pay for salaried employees will be handled through use of the WEBSAF system.
   
   Employees represented by collective bargaining agreements which provide benefits through union benefit funds should direct questions to the HR Benefits Service Center at 212-851-7000.
   
4. Unpaid FMLA will not be considered "time worked" for purposes of computing overtime under the Fair Labor Standards Act, except to the extent required by University policy or collective bargaining agreements.
   

 

K.  Reinstatement

1. Employees taking leave for a serious health condition will be required to obtain medical clearance from their health care provider prior to returning to work.  The University may require additional clearance from University Health Services.
2. Upon return to active status, an employee who has been on FMLA leave is required to be reinstated in the same position or a position of equivalent grade and salary, unless the employee would have been terminated in the absence of any leave (e.g. layoff or termination of temporary appointment).

 

L.  Posting

The attached Family and Medical Leave Act Notice should be conspicuously posted on all bulletin boards normally used for such required postings.

 

M.  Advice

Please contact HR Employment, Employee Relations and Client Services at 212-851-0665, or CUMC Human Resources at 212-305-3819, in connection with all FMLA-type leave requests to ensure consistent compliance.