FAMILY AND MEDICAL LEAVE POLICY
THE LEAVE POLICY
Wilkes University in accordance with the Family and Medical Leave Act of 1993 (FMLA) provides family and medical leaves of absence for designated qualifying events. This policy provides employees information concerning FMLA entitlements and obligations employees may have during such leaves. If employees have any questions concerning FMLA leave, they should contact the Benefits Coordinator in the Human Resources department.
FMLA leave is available to “eligible employees.” To be an “eligible employee,” an employee must: (1) have been employed by Wilkes University for at least 12 months (which need not be consecutive); (2) have been employed by Wilkes University for at least 1250 hours of service during the 12-month period immediately preceding the commencement of the leave; and (3) be employed at a worksite where 50 or more employees are located within 75 miles of the worksite.
The FMLA provides eligible employees with a right to leave, health insurance benefits and, with some limited exceptions, job restoration. The FMLA also entitles employees to certain written notices concerning their potential eligibility for and designation of FMLA leave.
A. Basic FMLA Leave Entitlement:
The FMLA provides eligible employees up to 12 workweeks of unpaid leave for certain family and medical reasons during a 12-month period. The 12-month period is determined based on a rolling 12-month period measured backward from the date an employee uses his/her FMLA leave. Leave may be taken for any one, or for a combination, of the following reasons:
- To care for the employee’s child after birth, or placement for adoption or foster care;
- To care for the employee’s spouse, son, daughter or parent (but not in-law) who has a serious health condition;
- For the employee’s own serious health condition (including any period of incapacity due to pregnancy, prenatal medical care or childbirth) that makes the employee unable to perform one or more of the essential functions of the employee’s job; and/or
- Because of any qualifying exigency arising out of the fact that an employee’s spouse, son, daughter or parent is a covered military member on active duty or has been notified of an impending call or order to active duty status in the National Guard or Reserves in support of contingency operation.
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 functions of the employee’s job, or prevents the qualified family member from participating in school or other daily activities. Subject to certain conditions, the continuing treatment requirement may be met by a period of incapacity of more than 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.
Qualifying exigencies may include attending certain military events, arranging for alternative childcare, addressing certain financial and legal arrangements, attending certain counseling sessions, and attending post-deployment reintegration briefings.
B. Additional Military Family Leave Entitlement (Injured Servicemember Leave)
In addition to the basic FMLA leave entitlement discussed above, an eligible employee who is the spouse, son, daughter, parent or next of kin of a covered servicemember is entitled to take up to 26 weeks of leave during a single 12-month period to care for the servicemember with a serious injury or illness. Leave to care for a servicemember shall only be available during a single-12 month period and, when combined with other FMLA-qualifying leave, may not exceed 26 weeks during the single 12-month period. The single 12-month period begins on the first day an eligible employee takes leave to care for the injured servicemember.
A “covered servicemember” 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 on the temporary retired list, for a serious injury or illness. A member of the Armed Forces would have a serious injury or illness if he/she has incurred an injury or illness in the line of duty while on active duty in the Armed Forces provided that the injury or illness may render the servicemember medically unfit to perform duties of the member’s office, grade, rank or rating.
C. Intermittent Leave and Reduced Leave Schedules
FMLA leave usually will be taken for a period of consecutive days, weeks or months. However, employees also are entitled to take FMLA leave intermittently or on a reduced leave schedule when medically necessary due to a serious health condition of the employee or covered family member or the serious injury or illness of a covered servicemember.
D. No Work While on Leave
Taking another job while on family/medical leave or any other authorized leave of absence is grounds for immediate termination, to the extent permitted by law.
E. Protection of Group Health Insurance Benefits
During FMLA leave, eligible employees are entitled to receive group health plan coverage on the same terms and conditions as if they had continued to work.
F. Restoration of Employment and Benefits
At the end of FMLA leave, subject to some exceptions including situations where job restoration of “key employees” will cause Wilkes University substantial and grievous economic injury, employees generally have a right to return to the same or equivalent positions with equivalent pay, benefits and other employment terms. Wilkes University will notify employees if they qualify as “key employees,” if it intends to deny reinstatement, and of their rights in such instances. Use of FMLA leave will not result in the loss of any employment benefit that accrued prior to the start of an eligible employee’s FMLA leave.
G. Notice of Eligibility for, and Designation of, FMLA Leave
Employees requesting FMLA leave are entitled to receive written notice from Wilkes University telling them whether they are eligible for FMLA leave and, if not eligible, the reasons why they are not eligible. When eligible for FMLA leave, employees are entitled to receive written notice of: 1) their rights and responsibilities in connection with such leave; 2) Wilkes University’s designation of leave as FMLA-qualifying or non-qualifying, and if not FMLA-qualifying, the reasons why; and 3) the amount of leave, if known, that will be counted against the employee’s leave entitlement.
Wilkes University may retroactively designate leave as FMLA leave with appropriate written notice to employees provided Wilkes University’s failure to designate leave as FMLA-qualifying at an earlier date did not cause harm or injury to the employee. In all cases where leaves qualify for FMLA protection, Wilkes University and employee can mutually agree that leave be retroactively designated as FMLA leave.
III. EMPLOYEE FMLA LEAVE OBLIGATIONS
A. Provide Notice of the Need for Leave
Employees who take FMLA leave must timely notify Wilkes University of their need for FMLA leave. The following describes the content and timing of such employee notices.
1. Content of Employee Notice
To trigger FMLA leave protections, employees must inform the Benefits Coordinator in the Human Resources department of the need for FMLA-qualifying leave and the anticipated timing and duration of the leave, if known. Employees may do this by either requesting FMLA leave specifically, or explaining the reasons for leave so as to allow Wilkes University to determine that the leave is FMLA-qualifying. For example, employees might explain that:
- a medical condition renders them unable to perform the functions of their job;
- they are pregnant or have been hospitalized overnight;
- they or a covered family member are under the continuing care of a health care provider;
- the leave is due to a qualifying exigency cause by a covered military member being on active duty or called to active duty status; or
- if the leave is for a family member, that the condition renders the family member unable to perform daily activities or that the family member is a covered servicemember with a serious injury or illness.
Calling in “sick,” without providing the reasons for the needed leave, will not be considered sufficient notice for FMLA leave under this policy. Employees must respond to Wilkes University’s questions to determine if absences are potentially FMLA-qualifying.
If employees fail to explain the reasons for FMLA leave, the leave may be denied. When employees seek leave due to FMLA-qualifying reasons for which Wilkes University has previously provided FMLA-protected leave, they must specifically reference the qualifying reason for the leave or the need for FMLA leave.
2. Timing of Employee Notice
Employees must provide 30 days advance notice of the need to take FMLA leave when the need is foreseeable. When 30 days notice is not possible, or the approximate timing of the need for leave is not foreseeable, employees must provide Wilkes University notice of the need for leave as soon as practicable under the facts and circumstances of the particular case. Employees who fail to give 30 days notice for foreseeable leave without a reasonable excuse for the delay, or otherwise fail to satisfy FMLA notice obligations, may have FMLA leave delayed or denied.
B. Cooperate in the Scheduling of Planned Medical Treatment (Including Accepting Transfers to Alternative Positions) and Intermittent Leave or Reduced Leave Schedules
When planning medical treatment, employees must consult with Wilkes University and make a reasonable effort to schedule treatment so as not to unduly disrupt Wilkes University’s operations, subject to the approval of an employee’s health care provider. Employees must consult with Wilkes University prior to the scheduling of treatment to work out a treatment schedule that best suits the needs of both Wilkes University and the employees, subject to the approval of an employee’s health care provider. If employees providing notice of the need to take FMLA leave on an intermittent basis for planned medical treatment neglect to fulfill this obligation, Wilkes University may require employees to attempt to make such arrangements, subject to the approval of the employee’s health care provider.
When employees take intermittent or reduced work schedule leave for foreseeable planned medical treatment for the employee or a family member, including during a period of recovery from a serious health condition or to care for a covered servicemember, Wilkes University may temporarily transfer employees, during the period that the intermittent or reduced leave schedules are required, to alternative positions with equivalent pay and benefits for which the employees are qualified and which better accommodate recurring periods of leave.
When employees seek intermittent leave or a reduced leave schedule for reasons unrelated to the planning of medical treatment, upon request, employees must advise Wilkes University of the reason why such leave is medically necessary. In such instances, Wilkes University and employee shall attempt to work out a leave schedule that meets the employee’s needs without unduly disrupting Wilkes University’s operations, subject to the approval of the employee’s health care provider.
C. Submit Medical Certifications Supporting Need for FMLA Leave (Unrelated to Requests for Military Family Leave)
Depending on the nature of FMLA leave sought, employees may be required to submit medical certifications supporting their need for FMLA-qualifying leave. As described below, there generally are three types of FMLA medical certifications: an initial certification, a recertification, and a return to work/fitness for duty certification.
It is the employee’s responsibility to provide Wilkes University with timely, complete and sufficient medical certifications. Whenever Wilkes University requests employees to provide FMLA medical certifications, employees must provide the requested certifications within 15 calendar days after Wilkes University’s request, unless it is not practicable to do so despite an employee’s diligent, good faith efforts. Wilkes University shall inform employees if submitted medical certifications are incomplete or insufficient and provide employees at least seven calendar days to cure deficiencies. Wilkes University will deny FMLA leave to employees who fail to timely cure deficiencies or otherwise fail to timely submit requested medical certifications.
With the employee’s permission, Wilkes University (through individuals other than an employee’s direct supervisor) may contact the employee’s health care provider to authenticate or clarify completed and sufficient medical certifications. If employees choose not to provide Wilkes University with authorization allowing it to clarify or authenticate certifications with health care providers, Wilkes University may deny FMLA leave if certifications are unclear.
Whenever Wilkes University deems it appropriate to do so, it may waive its right to receive timely, complete and/or sufficient FMLA medical certifications.
1. Initial Medical Certifications
Employees requesting leave because of their own, or a covered relation’s, serious health condition, or to care for a covered servicemember, must supply medical certification supporting the need for such leave from their health care provider or, if applicable, the health care provider of their covered family or service member. If employees provide at least 30 days notice of medical leave, they should submit the medical certification before leave begins. A new initial medical certification will be required on an annual basis for serious medical conditions lasting beyond a single leave year.
In the unlikely event where Wilkes University has reason to doubt initial medical certifications, it may require employees to obtain a second opinion at Wilkes University’s expense. If the opinions of the initial and second health care providers differ, Wilkes University may, at its expense, require employees to obtain a third, final and binding certification from a health care provider designated or approved jointly by Wilkes University and the employee.
2. Medical Recertifications
Depending on the circumstances and duration of FMLA leave, Wilkes University may require employees to provide recertification of medical conditions giving rise to the need for leave. Wilkes University will notify employees if recertification is required and will give employees at least 15 calendar days to provide medical recertification.
3. Return to Work/Fitness for Duty Medical Certifications
Unless notified that providing such certifications is not necessary, employees returning to work from FMLA leaves that were taken because of their own serious health conditions that made them unable to perform their jobs must provide Wilkes University medical certification confirming they are able to return to work and the employees’ ability to perform the essential functions of the employees’ position, with or without reasonable accommodation. Wilkes University may delay and/or deny job restoration until employees provide return to work/fitness for duty certifications. If an employee fails to return to work on the agreed upon return date, Wilkes University will assume the employee has resigned.
D. Submit Certifications Supporting Need for Military Family Leave
Upon request, the first time employees seek leave due to qualifying exigencies arising out of the active duty or call to active duty status of a covered military member, Wilkes University may require employees to provide: 1) a copy of the covered military member’s active duty orders or other documentation issued by the military indicating the covered military member is on active duty or call to active duty status and the dates of the covered military member’s active duty service; and 2) a certification from the employee setting forth information concerning the nature of the qualifying exigency for which leave is requested. Employees shall provide a copy of new active duty orders or other documentation issued by the military for leaves arising out of qualifying exigencies arising out of a different active duty or call to active duty status of the same or a different covered military member.
When leave is taken to care for a covered servicemember with a serious injury or illness, Wilkes University may require employees to obtain certifications completed by an authorized health care provider of the covered servicemember. In addition, and in accordance with the FMLA regulations, Wilkes University may request that the certification submitted by employees set forth additional information provided by the employee and/or the covered servicemember confirming entitlement to such leave.
E. Substitute Paid Leave for Unpaid FMLA Leave
Wilkes University requires employees to use all unused annual sick days, (if appropriate with the Sick Leave Policy), vacation and personal holidays during any FMLA leave. If an employee has exhausted all paid leave and is not receiving disability benefits through Wilkes University, the balance of the FMLA leave is unpaid.
The substitution of paid time for unpaid FMLA leave time does not extend the length of FMLA leave and the paid time will run concurrently with an employee’s FMLA entitlement.
Leaves of absence taken in connection with a disability leave plan or workers’ compensation injury/illness shall run concurrently with any FMLA leave entitlement.
Upon written request, Wilkes University will allow employees to use accrued paid time to supplement any paid disability benefits.
F. Pay Employee’s Share of Health Insurance Premiums
During FMLA leave, employees are entitled to continued group health plan coverage under the same conditions as if they had continued to work. Unless Wilkes University notifies employees of other arrangements, whenever employees are receiving pay from Wilkes University during FMLA leave, Wilkes University will deduct the employee portion of the group health plan premium from the employee’s paycheck in the same manner as if the employee was actively working.
If FMLA leave is unpaid, employees must pay their portion of the group health premium through a method determined by Wilkes University upon leave. Health insurance premiums will not be considered as pre tax while on unpaid leave.
Wilkes University’s obligation to maintain health care coverage ceases if an employee’s premium payment is more than 30 days late. If an employee’s payment is more than 15 days late, Wilkes University will send a letter notifying the employee that coverage will be dropped on a specified date unless the co-payment is received before that date. If employees do not return to work within 30 calendar days at the end of the leave period (unless employees cannot return to work because of a serious health condition or other circumstances beyond their control), they will be required to reimburse Wilkes University for the cost of the premiums Wilkes University paid for maintaining coverage during their unpaid FMLA leave.
Group Life and Long Term Disability Insurance benefits will continue for the period of the approved medical leave. Benefit accruals, such as vacation leave, sick leave and holiday benefits, will not continue during the approved medical leave period for which the employee receives less than "full" pay.
IV. COORDINATION OF FMLA LEAVE WITH OTHER LEAVE POLICIES
The FMLA does not affect any federal, state or local law prohibiting discrimination, or supersede any State or local law, which provides greater family or medical leave rights. For additional information concerning leave entitlements and obligations that might arise when FMLA leave is either not available or exhausted, please consult Wilkes University’s other leave policies or contact Human Resources.
V. QUESTIONS AND/OR COMPLAINTS ABOUT FMLA LEAVE
If you have questions regarding this FMLA policy, please contact the Benefits Coordinator in the Human Resources department. Wilkes University is committed to complying with the FMLA and, whenever necessary, shall interpret and apply this policy in a manner consistent with the FMLA.
The FMLA makes it unlawful for employers to: 1) interfere with, restrain, or deny the exercise of any right provided under FMLA; or 2) discharge or discriminate against any person for opposing any practice made unlawful by FMLA or involvement in any proceeding under or relating to FMLA. If employees believe their FMLA rights have been violated, they should contact the Human Resources Department immediately. Wilkes University will investigate any FMLA complaints and take prompt and appropriate remedial action to address and/or remedy any FMLA violation. Employees also may file FMLA complaints with the United States Department of Labor or may bring private lawsuits alleging FMLA violations.
VI. EXEMPTION FOR HIGHLY COMPENSATED EMPLOYEES
Wilkes University may choose not to return highly compensated employees (highest paid 10% of employees at a worksite or within 75 miles of that worksite) to their former or equivalent positions following a leave if restoration of employment will cause substantial economic injury to it. (This fact-specific determination will be made by Wilkes University on a case-by-case basis). Wilkes University will notify you if you qualify as a “highly compensated” employee, if the Organization intends to deny reinstatement, and of your rights in such instances.
Policy No. 601 Effective Date: 1/30/2009 Revision Date: 1/30/2009