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Interim Family and Medical Leave Act Process

Introduction
Key Changes
Former Process
New Process
New Leave Entitlements - Military
New FMLA Forms/Cover Letters
Substitution of Paid Leave (Table)

Introduction

The Department of Labor (DOL) has issued new regulations for the Family and Medical Leave Act (FMLA), which took effect January 16, 2009. These regulations make significant changes to the existing rules for types of FMLA leave, particularly regarding notice requirements and medical certifications. In addition they address new leave entitlements related to family members in the military.

The new regulations will have an impact on existing policy and collective bargaining agreement (CBA) provisions governing leaves. As such, the Office of the President is working on revising policy language to incorporate the new regulations. Until policy and CBAs are updated, please contact your assigned Labor and Employee Relations Analyst regarding the interpretation and application of the new FMLA regulations.

In an effort to assist departments in administering the new FMLA regulations, below is the interim process to follow regarding the administration of leave for the serious health condition of an employee or qualified family member, including a description of when and how to use new forms. Additionally, in order to highlight the changes between how FMLA was formerly administered and how it is currently administered with the new regulations, the University’s former process is outlined.

Key Changes

Definition of “serious health condition”: The definition “continuing treatment by a health care provider” has been clarified to require that the two visits must occur within 30 days, and the first visit must occur within seven days of the first day of incapacity, absent extenuating circumstances.

Definition of “continuing treatment by a health care provider”: has been clarified to require that the visit must occur within seven days of the first day of incapacity. (Please note: implementation of this definition at the University is still under review and not yet determined.)

Definition of “periodic treatment” of a chronic serious health condition: is defined as at least twice a year. (Please note: implementation of this definition at the University is still under review and not yet determined.)

Qualifying exigency: The final rule defines “qualifying exigencies” as: short-notice deployment; military events and related activities; childcare and school activities; financial and legal arrangements; counseling; rest and recuperation; post-deployment activities; and additional activities. This leave is for employees who have a spouse, parent, son or daughter (a “covered military member") who is on active duty or (federal) call to active duty in support of a contingency operation when they are members of the National Guard or the Reserves or are a retired member of the regular armed services. A covered military member does not include a member of the regular armed forces.

Intermittent or reduced schedule leave: The final regulations make clear that employers must account for intermittent or reduced schedule leave using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave, provided it is not greater than one hour.

Substitution of paid leave: Employers may apply their normal leave policies to the substitution of all types of paid leave for unpaid FMLA leave.

Light duty: The time an employee voluntarily works in a light-duty assignment does not count as FMLA leave.

Employer notice requirements: Employers now have to notify employees of their eligibility to take FMLA leave within five business days (was two), absent extenuating circumstances. Employers now also have five business days in which to notify employees of whether or not leave is designated as FMLA leave, absent extenuating circumstances.

Employee notice requirements: Employers may require employees to follow their usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances, so long as the employer’s usual reporting procedure is not more stringent than the FMLA allows.

Medical certification: Employers (e.g., HR professionals, leave administrators, management officials) may now contact the employee’s health care provider directly and without the employee’s consent; however, the employee’s direct supervisor is prohibited from making contact. Contact with the health care provided may be made only to authenticate or clarify the medical certification, but not to ask for new information.

Former Process

Steps:

Upon notice from an employee that s/he requires leave for a FMLA-qualifying reason or if an employee calls in sick three (3) consecutive days, the department should immediately determine whether the employee meets the employment criteria for eligibility (12 months/1,250 hours).
If the employee is not eligible, the department should immediately notify the employee and discuss other options that may be available, such as a personal leave.
If the employee is eligible, the employee should be sent a provisional designation letter notifying the employee that the leave has been temporarily designated as leave under the FMLA until a conclusive determination can be made. The employee should also be provided with Family and Medical Leave packet which includes the FMLA certification form and Leave of Absence Request form. The provisional designation letter and FMLA forms should be sent to the employee within two days of notice of the need for leave.
If the FMLA certification form or a doctor’s note which provides sufficient information is returned, the department should send a letter to the employee confirming the designation of the leave as FMLA-qualifying leave and continue to track the leave.
If no certification or insufficient documentation is returned, a fifteen (15) day follow-up letter is sent.

New Process

Steps:

If employee calls in sick for three full consecutive days, there is no longer an obligation under the new regulations to provisionally designate the leave. Instead, follow steps 2 and 3 below.
If the employee informs his/her supervisor of the need for a foreseeable leave (e.g. at least thirty (30) days notice for conditions such as an expected birth or planned medical treatments for the employee or eligible family member) or unforeseeable (see footnote 1 below) leave, but does not provide documentation from a qualified health care provider, the department completes the Notice of Eligibility and Rights and Responsibilities form ("Eligibility Notice") within five (5) business days.

a. If the employee does not qualify for FMLA, the department completes Part A – Notice of Eligibility to inform the employee that they do not qualify (see footnote 2 below) for FMLA leave. The department must indicate at least one reason why the employee does not qualify for FMLA. At this point the process ends, unless there is a dispute at which point the regulations require that there be an attempt to resolve the dispute through documented discussions.
b. If the employee qualifies for FMLA, the department completes Part A – Notice of Eligibility to inform the employee that they qualify for FMLA protected leave. In addition, the department must complete Part B – Rights and Responsibilities for Taking FMLA Leave of the Eligibility Notice (see footnote 3 below) and sends both the Eligibility Notice and the appropriate Certification of Health Care Provider form for either the employee’s own serious health condition or for a family member (see footnote 4 below) and the Leave of Absence Request form within five (5) business days. The employee has fifteen (15) calendar days to complete the Certification of Health Care Provider form. However, this fifteen-day time period may be extended if the employee is unable to timely return the form despite his/her good faith efforts.
c. If the employee returns a complete and sufficient Certification of Health Care Provider form, the department sends the Designation Notice (see footnote 5 below) within five (5) business days. The Designation Notice informs the employee of the designation of the leave and the amount of FMLA leave they will be using, if known.
d. If the employee returns an incomplete or insufficient Certification of Health Care Provider form, the department sends the Designation Notice within five (5) business days, informing the employee of the deficiencies. The employee should attempt to return complete and sufficient information within seven (7) calendar days.

i. If the employee does not return the Certification of Health Care Provider form or returns an incomplete and/or insufficient form, the department sends a Designation Notice within five (5) business days, informing the that FMLA leave is not approved (see footnote 6 below).
ii. If the employee returns a complete and sufficient Certification of Health Care Provider form, the department sends a Designation Notice within five (5) business days, designating the leave as FMLA (see 2.c above).

Note: there is no longer a need to provisionally designate FMLA leave as the leave is only designated once the employer has enough information.

If an employee initially presents documentation from a qualified health care provider that provides sufficient (see footnote 7 below) information to make a determination that the leave is FMLA protected, the department sends the Eligibility Notice, the Designation Notice designating the leave as FMLA, and the Leave of Absence Request form within five (5) business days.

Footnotes:

1. If giving 30 days’ notice is not practicable, such as with unexpected medical treatments, an employee is required to notify the department as soon as practicable. In most cases this means that when an employee is aware of the need for leave, the employee should be able to provide notice on either the same or next business day.

2. To qualify for FMLA leave, an employee must have been worked for the University at least 12 months and have worked 1,250 hours prior to the date FMLA leave begins to qualify for FMLA leave. The 12-month period of employment need not be consecutive.

3. This notice includes information such as the employee’s right to substitute paid leave, the FMLA 12 month period and continuity of benefits – See Substitution of Paid Leave Table.

4. There are now two separate Health Care Provider forms – one for an employee’s own serious health condition and the other for a serious health condition of a family member.

5. This “designation notice” must specify the number of hours, days or weeks that will be designated as FMLA leave. When the exact amount of leave needed may be unknown (e.g. intermittent leave), the employee has the right to request their leave balances once in a 30-day period.

6. If the Certification of Health Care Provider form in not returned or continues to provide insufficient information, the Disability Management Department may contact the Health Care Provider with a release from the employee in order to authenticate or clarify the medical certification, but not ask for new information. Contact your assigned Disability Management Analyst to discuss this option.

7. The regulations state that “sufficient information” may include information that: an employee is unable to perform the functions of the job; the employee is pregnant or has been hospitalized overnight or whether the employee or family member is under the continuing care of a health care provider.

New Leave Entitlements - Military

Under the new law, FMLA-eligible employees will now be entitled to the following:

Family Leave Due to a Call to Active Duty - This benefit provides 12 workweeks of unpaid FMLA leave due to a spouse, son, daughter or parent being on active duty or having been notified of an impending call or order to active duty in the Armed Forces. Leave may be used for any “qualifying exigency” arising out of the service member’s current tour of active duty or because the service member is notified of an impending call to duty in support of a contingency operation. This leave is for employees who have a spouse, parent, son or daughter (a “covered military member") who is on active duty or (federal) call to active duty in support of a contingency operation when they are members of the National Guard or the Reserves or are a retired member of the regular armed services. A covered military member does not include a member of the regular armed forces.

Caregiver Leave for an Injured Service member - This benefit provides 26 workweeks of unpaid FMLA leave during a single 12-month period for a spouse, son, daughter, parent, or next of kin caring for a recovering service member. A recovering service member is defined as a member of the Armed Forces who suffered an injury or illness while on active-duty that may render the person unable to perform the duties of the member’s office, grade, rank or rating.

If an employee requests leave for either of the above mentioned events, departments should contact their assigned Labor and Employee Relations Analysts.

New FMLA Forms/Cover Letters

Substitution of Paid Leave Table

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 Technical 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 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.

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Interim Family and Medical Leave Act Process

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