Family and Medical Leave (FMLA)

General

Under this policy, Eastern Mennonite University will grant up to 12 weeks (or up to 26 weeks of military caregiver leave to care for a covered service member with a serious injury or illness) during a 12-month period to eligible employees. The leave may be for a total of 12 weeks (or 26 weeks of military caregiver leave) during a 12-month period beginning the day the leave begins. 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. EMU will comply with the regulation as revised effective January 16, 2009.

Eligibility

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 company for 12 months or 52 weeks. The 12 months or 52 weeks need not have been consecutive. Separate periods of employment will be counted, provided that the break in service does not exceed seven years. Separate periods of employment will be counted if the break in service exceeds seven years due to National Guard or Reserve military service obligations or when there is a written agreement stating the employer’s intention to rehire the employee after the service break.
2. The employee must have worked at least 1,250 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 should not be counted in determining the 1,250 hours eligibility test for an employee under FMLA.
3. The employee must work in a worksite where 50 or more employees are employed by the company within 75 miles of that office or worksite.

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 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, child or parent with a serious health condition.*
4. The serious health condition* of the employee (including workers’ compensation).
5. 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. 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 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,
2. military events and activities,
3. child care and school activities,
4. financial and legal arrangements,
5. counseling,
6. rest and recuperation,
7. post-deployment activities and
8. additional activities that arise out of active duty, provided that the employer and employee agree, including agreement on timing and duration of the leave.

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.) This type of leave would be counted toward the employee’s 12-week maximum of FMLA leave in a 12-month period.

6.     Military caregiver leave (also known as covered servicemember leave) to care for an ill or injured servicemember. This leave may extend to up to 26 weeks in a single 12-month period for an employee to care for a spouse, son, daughter, parent or next of kin covered servicemember with a serious illness or injury incurred in the line of duty on active duty. Next of kin is defined as the closest blood relative of the injured or recovering servicemember.

*Serious Health Condition: An employee may take leave because of a serious health condition that makes the employee unable to perform the functions of the employee's position. A serious health condition is defined as a condition that 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.

This policy covers 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.

Unpaid Leave

While the 12 weeks (or 26 weeks for servicemember care) are without remuneration, an employee may elect to use accumulated vacation, personal or sick pay at the time the leave begins. Use of paid leave will run concurrently with FMLA. Accumulated sick leave may only be used to care for an immediate family member (child and/or spouse).

An employee who is using military FMLA leave for a qualifying exigency must use all paid vacation and personal leave prior to being eligible for unpaid leave.

EMU Employed Spouses

If both husband and wife are employed by EMU the aggregate leave that spouses are entitled to is 12 weeks if the leave is taken for birth of child or adoption/foster care.

Intermittent or Reduced Leave Schedule

If medically necessary or with mutual agreement between EMU and the employee, leave may be taken on an intermittent basis rather than all at once, or the employee may work a part-time schedule. EMU may require the employee to transfer temporarily to a position that better accommodates recurring periods of leave and has equivalent pay and benefits.

Procedure for Requesting FMLA Leave

All employees requesting FMLA leave must provide verbal or written notice of the need for the leave to the HR director. Within five business days after the employee has provided this notice, the HR director will complete and provide the employee with the DOL Notice of Eligibility and Rights.

When the need for the leave is foreseeable, the employee must provide the employer 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. When the need for FMLA leave is not foreseeable, the employee must comply with the company’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.

Certification for Serious Health Condition

The company will require certification for the employee’s serious health condition or the serious health condition of a family member. 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 or the DOL Certification of Health Care Provider for Family Member’s Serious Health Condition.

The company may directly contact the employee’s health care provider or the employee’s family member’s health care provider for verification or clarification purposes using a health care professional, an HR professional, leave administrator or management official. The company will not use the employee’s direct supervisor for this contact. In compliance with HIPAA Medical Privacy Rules, the company will obtain the employee’s or the employee’s family member’s permission for clarification of individually identifiable health information.

The company has the right to ask for a second opinion if it has reason to doubt the certification. The company will pay for the individual to get a certification from a second doctor, which the company will select. The company may deny FMLA leave to an employee if there is a refusal to release relevant medical records to the health care provider designated to provide a second or third opinion. If necessary to resolve a conflict between the original certification and the second opinion, the company will require the opinion of a third doctor. The company and the employee will mutually select the third doctor, and the company will pay for the opinion. This third opinion will be considered final. The employee will be provisionally entitled to leave and benefits under the FMLA pending the second and/or third opinion.

Certification of Qualifying Exigency for Military Family Leave

The company 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 leave. This certification will be provided using the DOL Certification of Qualifying Exigency for Military Family Leave.

Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave

The company 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 Covered Servicemember.

Designation of FMLA

Within five business days after the employee has submitted the appropriate certification form, the HR director will complete and provide the employee with a written response to the employee’s request for FMLA leave using the DOL Designation Notice.

Recertification/Certification

The company may request 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 employer 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 company 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.

An employee who takes leave under this policy may be asked to provide a fitness for duty (FFD) clearance from the health care provider. This requirement will be included in the employer’s response to the FMLA request.

Employee Status and Benefits During Leave

1. Restoration to position -- The employee will be restored to the same or equivalent position with equivalent pay, benefits and other terms of employment.
2. Loss of benefits -- The leave shall not result in loss of any accrued employment benefits, i.e. vacation, sick leave.
3. Limitations -- Restored employee will not accrue employment benefits, i.e. vacation, personal and sick leave, during leave.
4. Exemption for highly compensated employees (among the highest paid 10%)-- EMU may deny restoration if such denial is necessary to prevent substantial and grievous economic injury to EMU.
5. Maintenance of health benefits -- EMU will maintain the employee's health benefits while the employee is on leave on the same conditions as coverage would have been provided if the employee had been continuously employed during the entire leave period. If the employee was contributing to their health benefits, the employee must continue to make their contributions. If the employee is taking paid leave, the amount will be deducted from their pay. If the employee is taking unpaid leave, they must make arrangements with payroll before their leave commences or as soon as possible after their leave begins.

Family and Medical Leave Act of 1993 (Revised 1/16/09)

The EMU policy is intended to include all mandated provisions in the federal law and is intended to be interpreted consistently with those provisions.

Approved by President’s Cabinet, May 6, 2009