|Approved by:||The President|
|History:||Issued -- June 1, 1994||-|
|Revised -- January 25, 2019|
|Last Reviewed -- January 25, 2019|
|Related Policies:||Leave Policy; Sick and Safe Leave Policy; faculty Temporary Disability (Sick Leave) Policy; Reasonable Accommodations for Employees with Disabilities Policy|
|Additional References:||Family and Medical Leave Act of 1993; D.C. Family and Medical Leave Act of 1990; FMLA Forms; OGC Summary of Federal Law; DC FMLA; DC Safe and Sick Leave Act|
|Responsible Official:||Associate VP/Chief Human Resources Officer, tel. 202-319-5050|
Federal and District of Columbia law require that faculty and staff employees be provided with leave for specific family or medical-related situations and for certain situations related to military service. In this policy these types of leave are referred to collectively as Family Medical Leave Act ("FMLA Leave").
FMLA Leave is unpaid but provides the employee with employment protection. At the same time, the University provides certain types of paid leave that can be used in concurrence with FMLA Leave so the employee may remain in paid status for at least part of their FMLA Leave. This policy summarizes the various types of FMLA Leave and how they work together with paid University leave.
Calculating FMLA Leave and paid University leave can be complex and situation dependent. Employees should contact the Office of Human Resources as soon as the need for FMLA Leave arises to determine how leave will work in their specific case.
A. Family Member under District of Columbia FMLA, consistent with University mission, means:
• A person related to the employee by blood, legal custody, or marriage;
• A foster child;
• A child who lives with an employee and for whom the employee permanently assumes and discharges parental responsibility; or
• A person with whom the employee shares or has shared, within the last year, a mutual residence and maintains a committed relationship.
These terms are further defined by the District of Columbia Municipal Regulations 4 DCMR Chapter 16.
B. Family Member under federal FMLA, consistent with University mission, means:
• An employee's spouse;
• An employee's son or daughter; or
• An employee's parent.
These terms are further defined by the Code of Federal Regulations 29 CFR Part 825.
C. Serious Health Condition means a physical or mental illness, injury or impairment that involves (a) inpatient care in a hospital, hospice, or residential health care facility, or (b) continuing treatment or supervision at home by a health care provider or other competent individual.
III. Employees Eligible for Leave under this Policy
All University faculty and staff employees are eligible for FMLA Leave if they have:
A. Worked for the University for at least 12 months. The 12 months of service need not be consecutive. However, if an employee has a break in service of more than seven years, prior periods of employment with the University will not be counted toward the 12 month service requirement unless the break was due to employee's military obligations;
B. Satisfied the hours requirements under the DC FMLA and/or the federal FMLA:
1. Under DC FMLA, work at least 1,000 hours without a break in service during the 12 months immediately preceding the request for leave (paid holiday, sick, and vacation time and military leave count in this calculation).
2. Under federal FMLA, work at least 1,250 hours during the 12 months immediately preceding the request for leave. Only actual hours worked are counted toward this calculation. Paid or unpaid leave are excluded from the hours worked calculation.
All periods of absence from work due to covered service under the Uniformed Services Employment and Reemployment Rights Act (USERRA) are counted in the length of service and hours of work when calculating FMLA eligibility.
If two family members are employees of the University in the same school, department or office, in which both employees have the same or interrelated duties and the absence of both employees would disrupt unduly the conduct of University business, the University may limit FMLA Leave to the extent permitted by law.
IV. Employment Protection
The term "Employment Protection" refers to how the individual's University position/job and benefits are maintained during the period that the individual uses FMLA leave.
A. Position Protection
Upon return from FMLA Leave, the employee is restored to the position of employment previously held or to an equivalent position with equivalent benefits, pay, seniority, and other terms and conditions of employment to the extent required by law. A medical release from the treating health care provider is required prior to an employee's return to work if the leave was for the employee's own Serious Health Condition.
B. Benefits Protection
As long as the employee is using University-provided paid sick or annual (vacation) leave as part of the FMLA Leave, benefit contributions will be made in accordance with University policies for sick or annual leave. Once the employee begins to use unpaid leave, benefits may be affected.
An employee does not lose benefits accrued at the time of the approved FMLA Leave. FMLA Leave will not count as a break in service for purposes of retirement eligibility.
An employee will continue to be eligible to participate in health insurance on the same basis as if the leave were not taken. The University's contribution to health insurance will continue during the approved leave period so long as the employee contribution continues.
Dependent Care and Flexible Spending Account (FSA) benefits may be affected by use of FMLA. Individuals should consult the Office of Human Resources for how such benefits may be affected in specific instances.
Unless an employee is using paid leave, the University will not contribute to the retirement plan(s) for any participating employee. The University will continue to contribute to life insurance for employees on approved FMLA Leave.
V. Types of Family and Medical Leave Act (FMLA) Leave
If leave is covered under both the DC Family and Medical Leave Act and the federal Family and Medical Leave Act, FMLA Leave will be granted under both Acts and will run concurrently.
A. DC FMLA
Under the DC FMLA, an eligible employee is entitled to 16 work weeks of Family Leave and 16 work weeks of Medical Leave during a 24 month period.
Family Leave can be taken for one or more of the following reasons:
• The birth of a child of the employee, but only during the first 12 months after the birth;
• The placement of a child with an employee for adoption or foster care, but only during the first 12 months after the placement;
• The placement of a child for whom the employee permanently assumes and discharges parental responsibility, but only during the first 12 months after the placement; and
• The care of an employee's Family Member with a Serious Health Condition.
Medical Leave can be taken for an employee's Serious Health Condition that makes the employee unable to perform the essential functions of his or her position.
B. Federal FMLA
Under the Federal Family and Medical Leave Act eligible employees are permitted up to a total of 12 work weeks of family and medical leave during a 12 month period for the following reasons:
• The birth of a child of an employee and to care for the child, but only during the first 12 months after the birth;
• The placement with an employee of a child for adoption or foster care and to care for the newly placed child, but only during the first 12 months after the placement;
• To care for a Family Member with a Serious Health Condition;
• A Serious Health Condition that makes the employee unable to perform the essential functions of his or her position.
Federal FMLA provides eligible employees with up to 26 workweeks of leave for Military Caregiver and Qualifying Exigency Leave as defined below.
An eligible employee is limited to a combined total of 26 workweeks of leave for any federal FMLA-qualifying reason during a single 12-month period.
A rolling 24-month or 12-month period, as applicable, measured backward from the date an employee uses any Family and Medical Leave, will be used to calculate the amount of leave an employee is eligible for in any given 24-month or 12-month period.
C. Military Caregiver and Qualifying Exigency Leave
1. Military Caregiver Leave
a. Military Member
Eligible employees are permitted up to 26 workweeks during a single 12 month period for military caregiver leave to care for a military member if the military member is their spouse, child, parent or "next of kin" (nearest blood relative).
A military member is defined as a current member of the Armed Forces, including a member of the National Guard or Reserves, or a veteran for up to 5 years after he or she leaves military service under any discharge other than dishonorable who is undergoing medical treatment, recuperation or therapy for a serious injury or illness. Serious illness or injury is as defined in 29 CFR § 825.127 as follows:
• For a current member of the Armed Forces or National Guard or Reserves an injury or illness that was incurred by the covered service member in the line of duty on active duty in the Armed Forces or that existed before the beginning of the member's active duty and was aggravated by service in the line of duty on active duty in the Armed Forces, and that may render the member medically unfit to perform the duties of the member's office, grade, rank or rating;
• In the case of a covered veteran, an injury or illness that was incurred or was aggravated by service on active duty in the Armed Forces and is:
o a continuation of a serious injury or illness that was incurred or aggravated when the covered veteran was a member of the Armed Forces and rendered the service member unable to perform the duties of the service member's office, grade, rank, or rating; or
o a physical or mental condition for which the covered veteran has received a U.S. Department of Veterans Affairs Service-Related Disability Rating (VASRD) of 50 percent or greater, and such VASRD rating is based, in whole or in part, on the condition precipitating the need for military caregiver leave; or
o a physical or mental condition that substantially impairs the covered veteran's ability to secure or follow a substantially gainful occupation by reason of a disability or disabilities related to military service, or would do so absent treatment; or
o an injury, including a psychological injury, on the basis of which the covered veteran has been enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.
Intermittent or reduced schedule leave may be taken for military caregiver leave.
b. Serious Injury or Illness
For current members of the Armed Forces, serious illness or injury is defined as a condition incurred in the line of duty on active duty in the Armed Forces or that existed before the beginning of the member's active duty and was aggravated by service in the line of duty on active duty in the Armed Forces and that may render the service member medically unfit to perform their duties.
For covered veterans, a serious injury or illness means an injury or illness that was incurred or aggravated in the line of duty on active duty in the Armed Forces and manifested itself before or after the member became a veteran.
2. Qualifying Exigency Leave
Eligible employees are permitted to take up to a total of twelve (12) weeks of unpaid Qualifying Exigency leave during a twelve (12)-month period if their spouse, son, daughter, or parent is on active duty, or has been notified of an impending call or order to active duty, or is on a foreign deployment.
Qualifying exigencies include the following: short-notice deployment; military events and related activities; childcare and school activities; financial and legal arrangements; counseling; rest and recuperation; post-deployment activities; parental care leave to care for a military member's parent who is incapable of self-care when the care is necessitated by the member's covered active duty; and additional activities to address other events which arise out of the covered service member's active duty or call to active duty status, provided the University and employee agree that such leave shall qualify as an exigency, and agree to both the timing and duration of such leave.
D. Intermittent or Reduced Schedule Leave
If certified as medically necessary by a health care provider, leave may be taken intermittently (taking leave in separate blocks of time for a single qualifying reason) or on a reduced schedule basis (temporarily reducing your usual weekly or daily work schedule) for a Serious Health Condition of an employee, family member, or covered service member. For the birth of a healthy child or placement of a healthy child for adoption or foster care, intermittent or reduced schedule leave may only be taken if both the employee and University agree in advance.
Employees are expected to make a reasonable effort to schedule intermittent or reduced schedule leave in advance, whenever possible, and at times that cause the least disruption to the University's operations.
The University reserves the right to transfer an employee who is on intermittent or reduced schedule leave, on a temporary basis, to an alternative schedule, location, or position for the which the employee is qualified and which better accommodates recurring periods of leave. For example, if an employee is scheduled to work on a particular shift, but takes intermittent leave the University can alter the employee's schedule to accommodate the University's need to have the necessary number of staff on any given shift.
E. Combining FMLA Leave with Paid University Leave
FMLA Leave "runs concurrently" with University paid sick or annual leave, which means that employees who are on FMLA Leave may, at the same time, be on University paid leave in accordance with University policies. Under DC FMLA, the employee may elect to use paid leave for unpaid leave, but is not required to do so. Paid leave works differently for faculty and staff, as described below.
1. Faculty Members
Regular Faculty Members do not accrue sick leave or annual leave. However, faculty may in some cases be eligible for paid leave during a period of FMLA Leave per the faculty Temporary Disability (Sick Leave) Policy. Faculty should consult with the Office of Human Resources, who will work with the faculty member and the Office of the Provost in administering the FMLA Leave and any University paid leave.
2. Staff Employees
Staff employees accrue sick leave and annual leave throughout the year. These forms of paid leave are used by the employee at the same time that they are on FMLA Leave. This system allows staff employees to continue receiving University pay for as long as possible while taking advantage of FMLA Leave under the law, which minimizes the effect on other University benefits such as health care and retirement.
When the staff employee begins a period of FMLA Leave, the employee shall begin using their accrued sick leave. Paid annual leave may be used following the permitted use of sick leave. If, after applicable leave is exhausted, the staff employee remains on FMLA Leave, the employee would continue on unpaid University leave of absence until their FMLA Leave is exhausted.
3. Medical Certification
When an employee requests FMLA Leave because of the employee's own Serious Health Condition, or the Serious Health Condition of a covered family member, the employee must provide appropriate medical certification to the Office of Human Resources. Medical certification should be provided in advance whenever possible. When advanced submission is not possible, the employee must submit the certification to Human Resources within 15 calendar days of a request.
Appropriate medical certification includes, at least, sufficient information to determine if the leave qualifies for FMLA and the anticipated duration of the leave. Failure to provide satisfactory medical certification may result in denial of leave until appropriate medical certification is provided.
Employees also may be required to provide a periodic medical recertification supporting the need for leave. The requested information must be provided to the Office of Human Resources within 15 calendar days of a request. If an employee fails to provide appropriate medical certification, the University may deny the employee continuation of leave.
a. Second and Third Opinions
The University may, at its expense, seek a second or third opinion on the status of an employee's health condition. The second opinion may not be given by a health care provider employed on a regular basis by the University, and the University cannot regularly contract or otherwise regularly use the services of the provider. If the opinions of the University's and the employee's health care provider differ, the University can require a third opinion at its expense. The third opinion should be from a health care provider agreed to by the employee and the supervisor. The third opinion is final and binding.
VI. Applying for Leave Under this Policy
Employees seeking FMLA leave must submit to the Office of Human Resources a completed application, available at http://humanresources.cua.edu/forms. Employees should submit their applications as soon as the need for the leave is foreseeable. When the leave is not foreseeable, the employee must provide notice to the Office of Human Resources as soon as practicable under the facts and circumstances.