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Supervisor’s Guide to the Family and Medical Leave Act (FMLA)

This guide provides a broad overview of the 1993 Federal Family and Medical Leave Act. The Department of Labor released final regulations in January 1995. This landmark legislation is complex and impacts almost all University of California employees. Most University personnel policies and collective bargaining agreements have been modified to incorporate the requirements of this legislation. However, please refer to the appropriate personnel policy or union contract for specific language on Family and Medical Leave. Your Labor & Employee Relations Specialist is available for technical assistance at 476-3905.

Information on administering Family and Medical Leave may be found here: FMLA process document and associated forms.

INTRODUCTION

Important: These guidelines provide only an overview of the Family and Medical Leave Act of 1993 (FMLA). Specific language on family and medical leave in University personnel policies and collective bargaining agreements control the application of FMLA rights and obligations for University employees. Please refer to the appropriate personnel policy or collective bargaining agreement that applies to the employee:

 

Non-exclusively represented employees under personnel policies:

 

Exclusively represented employees under collective bargaining agreements:

American Federation of State, County and Municipal Employees (AFSCME)

 

Coalition of University Employees (CUE)

 

University Professional and Technical Employees (UPTE)

 

California Nurses Association (CNA)

 

San Francisco Building and Trades Council (SFBTC)

 

American Federation of Teachers (AFT)

 


American Federation of Teachers (AFT)

 

Federated University Police Officers Association (FUPOA)

 

Information in this Guide includes excerpts from the Final FMLA Regulations issued by the Department of Labor (29 C.F.R.) in January, 1995. The Family and Medical Leave Handbook, Thompson Publishing Group, c. 1994, and University personnel policies and collective bargaining agreements are also referenced.

 

THE FAMILY AND MEDICAL LEAVE ACT

The FMLA is federal law which mandates employers to provide eligible employees with up to 12 weeks of unpaid family and medical leave per year, and to restore to those employees the same or equivalent position upon their return. An employer must maintain coverage under its group health plan for any employee who is out on family and medical leave for the duration of the leave but not to exceed 12 workweeks in the calendar year. An employer is only required to maintain coverage on the same conditions as it would have been provided if the employee had been con-tinuously employed during the entire leave period. The Department of Labor enforces the FMLA.

The California Family Rights Act of 1991 (CFRA) is the state counterpart to FMLA. Like FMLA, CFRA provides eligible employees with up to 12 weeks of unpaid family and medical leave in the calendar year. Coverage by FMLA and CFRA will run concurrently, except in the case of a leave taken for disability due to pregnancy, childbirth or a related medical condition (see Pregnancy Disability Leave).

Rights to family and medical leave under both FMLA and CFRA are summarized in the following pages. This Guide is intended to provide managers and supervisors with a basic understanding of the law in order to properly administer personnel policies and contract language that specifically address family and medical leave.

 

ELIGIBILITY

 

 

LEAVE ENTITLEMENT PERIOD

 

 

CIRCUMSTANCES UNDER WHICH LEAVE MUST BE GRANTED

 

Family member is defined to include “Domestic Partner” for the following labor contracts and Personnel Policy:

     
  1. University Professional and Technical Employees  
  2. Health Care Professionals  
  3. Research Support Professionals  
  4. Technical Employees Unit  
  5. American Federation of Teachers  
  6. Professional Librarian Unit  
  7. Non Senate Instructional Unit  
  8. Personnel Policies for Staff Members

 

 

INTERMITTENT LEAVE

 

 

DEFINITION OF A SERIOUS HEALTH CONDITION

The FMLA’s definition of the term “serious health condition” is very broad and is intended to cover a variety of physical and mental conditions. A serious health condition is defined as an illness, injury, impairment, or physical or mental condition that involves:

 

Examples of a serious health condition may include but are not limited to:

 

Examples of what is not a serious health condition are short-term conditions requiring only brief treatment and recovery. Barring serious complications, examples include:

 

Substance Abuse as a Serious Health Condition is covered under the FMLA provided that the conditions of a “serious health condition” are met (e.g., when stay in an inpatient facility is required). However, FMLA leave may only be taken for treatment for substance abuse by a health care provider or by a provider of health care services on referral by a health care provider. On the other hand, absence because of the employee’s use of a substance, rather than for treatment, does not qualify for FMLA leave.

 

DEFINITION OF A HEALTH CARE PROVIDER

 

EMPLOYEE NOTICE REQUIREMENTS

 

 

EMPLOYER NOTICE REQUIREMENTS

When an employee provides verbal or written notice of the need for FMLA leave OR when the employer determines leave is for FMLA purposes and should be recorded as such, the employer is obligated to provide written notice to the employee describing the employee’s obligations and explaining the consequences of failure to meet the obligations.

The University has prepared a UC Family and Medical Leave Packet that meets these notice requirements. It is recommended that departments provide employees with a copy of the packet within 2 business days of learning of an employee’s need for FMLA leave and instruct employees on what is required before FMLA leave is approved. A copy is attached to these Guidelines. It is also recommended that the UC Family and Medical Leave Packet be sent to any employee who is out of work for more than three days.

Departments are required to post on departmental bulletin boards a copy of Your Rights Under The Family and Medical Leave Act of 1993 (Department of Labor, June 1993). The Department of Labor can impose a $100 fine for each failure to post at a worksite. A copy is attached to these guidelines.

 

DESIGNATION OF LEAVE

It is always the Employer’s obligation to designate leave as FMLA leave. The Employer’s notification to an employee of a FMLA designation may be oral. However, the employer must confirm the FMLA designation in writing no later than the next regular payday. If the employer requires that paid leave be counted as FMLA leave, the employer must inform the employee within 2 business days that the paid leave will count as FMLA leave and against the 12 workweek entitlement.

The Leave of Absence Request form in the UC Family and Medical Leave Packet meets the notification requirements.

The employer may not designate the leave retroactively unless: (1) the employee has been out of work and the employer does not learn of the reason for leave until after the employee returns (no later than 2 business days after return to work); or (2) the employer has provisionally designated leave as FMLA leave and is awaiting receipt of medical certification or other documentation.

If either party designates the leave as FMLA leave after the leave has begun (e.g., an employee requests an extension of paid leave with unpaid leave), the paid leave period may be retroactively counted as FMLA leave as long as it qualified as FMLA.

 

 
Example: Jim takes sick leave for bronchitis that turns into bronchial pneumonia, a serious health condition. Jim gives notice of the need for an extension of sick leave or disability leave without pay, the entire leave period (paid and unpaid) may be counted as FMLA leave.

If an absence which does not originally qualify as FMLA leave later develops into an FMLA qualified absence, the portion of the leave which qualifies under FMLA may be counted as FMLA leave.

 

 
Example: Joe takes a two week vacation for a ski trip and suffers a severe accident requiring hospitalization beginning the second week, the second week of the vacation may be counted as FMLA leave.

 

SUBSTITUTION OF PAID LEAVE

The FMLA allows an eligible employee to elect (or an employer to require) that certain accrued leave be substituted for the 12 weeks of unpaid leave mandated by the Act. If the employer requires that paid leave be counted as FMLA leave, the employer must inform the employee within 5 business days that the paid leave will count as FMLA leave and against the 12 workweek entitlement.

University personnel policies and collective bargaining agreements have varying requirements on the use of paid leave for family and medical leave purposes. The following charts highlight the differences in these varying requirements:

University Policy

Employee’s own Serious Health Condition

Family Illness Leave

Parental Leave

Personnel Policies for Staff Members (PPSM)

Employee may use accrued sick leave and/or vacation leave. Supplemental and/or extended sick leave may be used during a family and medical leave granted to an employee who is receiving temporary disability payments under the Workers’ Compensation Act.

Employee may use up to thirty (30) calendar days of accrued sick leave to the extent permitted by Staff Policy 42.D.1. Accrued vacation may be used except that an employee shall be required to use at least 10 percent of accrued vacation prior to taking a family illness leave without pay if the employee's vacation accrual balance is at the maximum.

Employee may use accrued vacation during a family and medical leave granted to care for a newborn, adopted, or foster care child, except that an employee shall be required to use at least 10 percent of accrued vacation prior to taking a parental leave without pay if the employee’s vacation accrual balance is at the maximum.

Bargaining Unit

Employee’s own Serious Health Condition

Family Illness Leave

Parental Leave

Service Unit (AFSCME)

An employee on leave for his/her own serious health condition, shall use accrued sick leave in accordance with the University's disability plan or as provided under Article 44, Work Incurred Injury or Illness. Employees not eligible for University disability benefits and who are not on leave due to a work-incurred illness or injury shall use all accrued sick leave prior to taking medical leave without pay. An employee may elect to use accrued compensatory time off in accordance with Article 12 - Hours of Work prior to beginning FMLA leave. An employee may also use accrued vacation before taking a FMLA leave without pay. However, if the employee's vacation leave accrual is at maximum, the employee will be required to use at least 10% of the vacation leave credit prior to taking leave without pay.

An employee on approved Family Illness Leave may elect to use accrued compensatory time off in accordance with Article 12 - Hours of Work prior to beginning FMLA leave. An employee may, at the discretion of the University, elect to use accrued vacation time before taking a FMLA leave without pay. If the employee's vacation leave accrual is at maximum the employee will be required to use at least 10% of the vacation leave credit prior to taking leave without pay. Up to 5 days of accrued sick leave per year may be substituted for Family Illness Leave granted under this section pursuant to Article 36 - Sick Leave, Section B.3.b. 

An employee on an approved Parental Leave may elect to use accrued compensatory time off in accordance with Article 12 - Hours of Work prior to beginning FMLA leave. An employee may elect to use accrued vacation time before taking a FMLA leave without pay. If the employee's vacation leave accrual is at maximum, the employee will be required to use at least 10% of the vacation leave credit prior to taking leave without pay. 

Patient Care TechnicalU nit (AFSCME)

An employee on leave for his/her own serious health condition, shall use accrued sick leave in accordance with the University's  disability plan or as provided under Article 44 - Work Incurred Injury or Illness. Employees not eligible for University disability 
benefits and who are not on leave due to a work incurred illness or injury shall use all accrued sick
leave prior to taking medical leave without pay. An employee may elect to use accrued compensatory time off in accordance with Article 12 - Hours of Work prior to beginning FMLA leave. An employee may also use accrued vacation before taking a FMLA leave without pay.  However, if the employee's vacation leave accrual is at maximum, the employee will be required to use at least 10% of the vacation leave credit prior to taking leave without pay.
An employee on approved Family Illness Leave may elect to use accrued compensatory time off in accordance with Article 12 - Hours of Work prior to beginning FMLA leave. An employee may, at the discretion of the University, elect to use accrued vacation time before taking a FMLA leave without pay. If the employee's vacation leave accrual is at maximum the employee will be required to use at least 10% of the vacation leave credit prior to taking leave without pay. Up to five (5) days of accrued sick leave per year may be substituted for Family Illness Leave granted under this section pursuant to Article 36 - Sick Leave, Section B.3.b.
An employee on an approved Parental Leave may elect to use accrued compensatory time off in accordance with Article 12 - Hours of Work prior to beginning FMLA leave. An employee may elect to use accrued vacation time before taking a FMLA leave without pay. If the employee's vacation leave accrual is at maximum, the employee will be required to use at least 10% of the vacation leave credit prior to taking leave without pay.
(CUE)

Employee must use sick leave in accordance with UC disability plan. If not eligible for UC disability or on leave for a work-incurred injury or illness, must use all sick leave prior to LWOP. May use CTO prior to beginning FMLA leave. If sick leave is exhausted, must use vacation prior to taking LWOP.

Employee may elect to use CTO prior to beginning FMLA leave. Employee must use accrued vacation prior to taking FMLA leave without pay. Employee may use up to 30 days of sick leave per year to care for parent, spouse, same- or opposite-sex domestic partner, child(ren) (including the child of a same- or opposite-sex domestic partner), brother, sister, grandparent, grandchildren, father-in-law, mother-in-law, son-in-law, daughter-in-law, or step-relatives; or any other person for whom the employee has a personal obligation who is residing in the employee's household.

Employee may use CTO prior to beginning FMLA leave. Employee must use vacation prior to taking FMLA leave without pay.  Sick leave cannot be used for FMLA parental leave.

Nurses Unit (CNA)

A nurse on leave for her/his own serious health condition shall use accrued sick leave in accordance with the University's disability plan or as provided in Article 22, Work Incurred Injury or Illness. Nurses not eligible for University disability benefit and not on leave due to a work-incurred injury or illness shall use all accrued sick leave prior to being in unpaid status. If sick leave is exhausted, a nurse may elect to use accrued vacation time prior to being in unpaid status.

A nurse on Family Care Leave for Family Illness may use sick leave up to thirty (30) calendar days sick leave to care for the ill family member; pursuant to Article 19, Sick Leave, §E., and/or s/he may elect to use accrued vacation time prior to being in unpaid status.

A nurse on Family Care Leave for Child Caring Leave may elect to use accrued vacation time prior to being on unpaid status.

Technical and Residual Health Care Professional Units (UPTE)

An employee's own serious health condition: An employee shall use accrued sick leave in accordance with the University's disability plan requirements; or if not eligible for University disability benefits and not on leave as a result of a work-incurred injury or illness, shall use all accrued sick leave prior to taking leave without pay; or if on leave due to a work-incurred injury or illness, may use accrued sick leave as provided in Article 45 - Work Incurred Injury or Illness.

An employee on leave for her/his own serious health condition shall use accrued vacation time prior to taking leave without pay, if all accrued sick leave has been exhausted.

Employee may use sick leave in accordance with Article 39 - Sick Leave, Section B.3., and shall use accrued vacation time prior to taking leave without pay.

An employee on Parental Leave shall use accrued vacation time prior to taking leave without pay.

Research Support Professional/Staff Research Associate Unit (UPTE)

An employee's own serious health condition:
An employee shall use accrued sick leave in accordance with the University's disability plan requirements; or if not eligible for University disability benefits and not on leave as a result of a work-incurred injury or illness, shall use all accrued sick leave prior to taking leave without pay; or
if on leave due to a work-incurred injury or illness, may use accrued sick leave as provided in Article 45 - Work Incurred Injury or Illness.

 An employee on leave for her/his own serious health condition shall use accrued vacation time prior to taking leave without pay, if all accrued sick leave has been exhausted.

Employee may use sick leave in accordance with Article 39 - Sick Leave, Section B.3., and shall use accrued vacation time prior to taking leave without pay.

An employee on Parental Leave shall use accrued vacation time prior to taking leave without pay.

SPECIAL NOTE:COMPENSATORY TIME OFF (CTO) IS A PROBLEM

The final FMLA Regulations issued by the Department of Labor in January, 1995 include a provision stating that employers may not require employees to use accrued CTO during a family and medical leave. Although an employee may request to use his or her accrued CTO for a family and medical leave purpose,if the employer permits the employee to use CTO for FMLA, the time period during which CTO is used cannot be counted against the employee’s 12workweek entitlement to family and medical leave.

PREGNANCY DISABILITY LEAVE

As stated previously,leave under FMLA and CFRA will run concurrently except in the case of aleave taken for disability due to pregnancy, childbirth or a related medical condition. The reason for this is that CFRA’s definition of a"serious health condition" excludes any disability due to pregnancy,childbirth or a related medical condition. A separate provision of the California Fair Employment and Housing Act (FEHA) applies in such situations and provides an employee with up to four months of pregnancy disability leave (PDL) and a guarantee of reinstatement to her position if she returns during that time. PDL and FMLA will run concurrently for at least the first 12 workweeks of the pregnancy related disability. Upon termination of the pregnancy disability leave (a maximum of 4 months), an employee is entitled, if eligible, to up to 12 additional workweeks ofleave under CFRA to care for or bond with the newborn child. In this situation, eligibility for CFRA is determined at the beginning of the pregnancy disability leave. Thus, in California, an employee may be entitled to up to 7 months of leave (4 months of PDL and 3 months of leave under CFRA).

Under FMLA and CFRA,an employer is obligated to continue providing health benefits during aleave up to a maximum of 12 workweeks in the calendar year on the same conditions they would have been provided had the employee been continuously employed during the leave period. As stated previously, if FMLA and CFRA do not run concurrently, as is the case during a pregnancy disability leave, and an employee requires leave under CFRA after having exhausted FMLA leave, the employer is not obligated to provide health benefits beyond 12 workweeks in the calendar year.

Up to 4 months pregnancy disability
+  Up to 3 months family and medical leave
Possible maximum of 7months

RETURN TO WORK CERTIFICATION
  • Departments may require medical certification from a health care provider that an employee is able to return to work following FMLA due to employee’s own serious health condition only where they have a uniformly-applied policy or practice that requires all similarly-situated employees to provide such certification.
  • Departments are strongly encouraged to uniformly and consistently require all employees returning from FMLA leave to complete the "Return to Work Medical Certification" form.
  • If an employee’s health care provider is recommending accommodation or light duty uponreturn from FMLA, contact your Labor & Employee Relations Analyst for technical assistance.
RECERTIFICATION
  • Employer may request recertification of a serious health condition if circumstances described by the previous certification have changed significantly(e.g., the duration or frequency of absences, the severity of the condition, complications), or the employer receives information whichcasts doubt upon the employee’s stated reason for the absence.
  • Recertification of a serious health condition where FMLA leave is being taken intermittently is a complicated issue. Check with your Labor and Employee Relations Analyst before you require such recertification.
  • Contact your Labor& Employee Relations Analyst for technical assistance.
REINSTATEMENT
  • Employee who ison pregnancy disability leave (PDL) and returns to work within 4months and immediately following termination of the leave, is entitledto be reinstated to the same position.
  • If the PDL is combined with an additional 12 weeks of family and medical leave for purposes of caring for a newborn, the employee is entitled to return to the same or equivalent position held prior to the leave.
  • For all other FMLA purposes, employees are entitled to reinstatement to the same or equivalent position held prior to the leave.
  • Equivalent position includes same pay, benefits, shift, or schedule held by the employee prior to the leave.
  • The date of reinstatement is determined when the leave is granted unless an extension is granted and a new reinstatement date is determined.
  • If an extension is needed, the employer may require employee to provide reasonable notice,within 2 business days, of the changed circumstances.
PRIVACY OF MEDICAL INFORMATION
  • Records and documents relating to medical certifications, recertification or medical histories of employees or employees’ family members must be treated as confidential medical records.
  • The only persons who can obtain access to these confidential records are: (a) supervisors and managers who need to be informed of restrictions on the work or duties of an employee and necessary accommodations; (b) first aid and safety personnel if an employee’s physical or medical condition might require emergency treatment; and (c) government officials investigating compliance with the FMLA.
EMPLOYER RECORDKEEPING REQUIREMENTS
  • Records must be kept for no less than 3 years and include:
    • Basic payroll and identifying employee data
    • Dates FMLA leave is taken
    • If leave was taken in less than full day increments, the hours of the leave
    • Copies of notices provided to the employer from the employee requesting leave
    • Copies of notices provided to the employee from the employer outlining the provisions of the leave
  • Medicalcertifications of medical histories of employees or employees’ family members must be maintained in separate file under FMLA regulations.

ENFORCEMENT AND PENALTIES

Family and Medical Leave Act

California Family Rights Act

The FMLA is enforced by the Department of Labor.

Employee may bringsuit in state or federal court within two years of the alleged violationor within three years if the violations is willful, or may file acomplaint with the Department of Labor. However, the filing of a complaintwith the Department of Labor is not a prerequisite to a lawsuit.

Employee may recoverlost compensation and benefits, or any other actual monetary losses up toa sum equal to 12 weeks wages, and interest. An employee may receiveequitable relief, such as reinstatement, promotion, or employment. Anemployee also may receive liquidated damages equal to the monetarydamages, and reimbursement of costs, attorneys’ fees and expert witnessfees.

The CFRA is enforced by the California Department of Fair Employment & Housing (DFEH) inthe same way the Fair Employment and Housing Act is enforced.

Employee must file acomplaint with the DFEH within one year of the alleged violation. Theemployee may rely on administrative remedies or may request a right to sueletter and file a lawsuit in state court within one year of receipt of theright to sue letter.

Employer may beordered to cease and desist, or to hire, reinstate or upgrade employees,with back pay, and interest to pay actual damages (including emotionaldistress) to a maximum of $50,000, or to pay administrative fines withinthe same $50,000 maximum for egregious circumstances. If a lawsuit isfiled, employee may recover unlimited damages, court costs and attorneys’fees.

RETALIATION
DOCUMENT PACKET
Family and Medical Leave

Documents in the Family and Medical Leave Packet are intended to help your department:

Click on the links to download a copy of each document in Adobe Acrobat format.

FML Department Checklist
The purpose of this checklist to assist your department in evaluating leave requests and administering Family and Medical Leave.

Leave of Absence Request Form
This form serves several purposes:

  1. It can be used by an employee to request leave for any purpose and to specify preferred pay options during the leave.
  2. It is used by the department to document approval or denial of leave, and whether the leave is to be considered Family and Medical leave. It also provides a record of the pay status during the leave.
  3. It provides essential documentation for continuation of employee benefits during a Family and Medical Leave.

Your Rights and Obligations under the Family and Medical Leave Act of 1993
This document is used to inform an employee of her or his rights under the Family and Medical Leave Act of 1993. When an employee provides notice of the need for leave for reasons covered by FMLA, the University must provide the employee with this notice or its equivalent pursuant to 29 C.F.R. § 825.301.

Family and Medical Leave Certification
Provides documentation of the employee¹s need for the leave. Employees must provide this to their health care provider, who should return it to the department. If leave is due to an employee¹s own serious health condition, a copy of the employee¹s job description should be attached.

Family and Medical Leave Return to Work Certification
Provides documentation that the employee is able to return to work. A job description should be attached to this when it is provided to the employee. Keep in mind that certification of an employee¹s ability to return to work may be required only where a department has a uniformly-applied policy or practice that requires all similarly-situated employees to provide such certification.

Record of Reduced Work/Intermittent Leave Schedule
This should be used for the purposes of recording reduced schedule or intermittent family and medical leaves for exempt employees.

Family and Medical Leave Benefits Checklist
Provides information for employees about their benefits while they are on Family and Medical leave

For more information about Family and Medical Leave,