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| 1. |
Summary
Enacted in 1993, the Family and Medical Leave
Act entitles eligible employees to take job-protected,
unpaid (or paid) leave for up to a total of
12 workweeks in a 12-month period for the
birth of the employee’s son or daughter
and to care for the newborn child; for the
placement of a son or daughter with the employee
for adoption or foster care; to care for the
employee’s spouse, parent, son or daughter
with a serious health condition; or when the
employee is unable to work due to the employee’s
own serious health condition.
The National Defense Authorization Act
for FY 2008 expanded the FMLA to allow eligible
employees of covered employers to take FMLA
qualifying leave because of any qualifying
exigency arising out of the fact that the
spouse, or a son, daughter, or parent of
the employee is on active duty (or notified
of an impending call or order of active
duty) in the Armed Forces in support of
a contingency operation. The NDAA also provides
that an eligible employee who is the spouse,
son, daughter, parent or next of kin of
a covered servicemember shall be entitled
to a total of 26 workweeks of leave during
a single 12-month period to care for the
servicemember.
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| 2. |
Eligible Employees - An
employee who has been employed with Southwestern
Community College for at least 12 months and
who has been employed for at least 1,250 hours
of service during the 12-month period immediately
preceding the commencement of the leave is
entitled to: A total of 12 workweeks, paid
or unpaid, leave during any 12-month period
for one or more of the reasons listed below.
| a. |
For the birth of a child and to care
for the child after birth, provided
the leave is taken within a 12-month
period following birth. |
| b. |
For the employee to care for a child
placed with the employee for adoption,
provided the leave is taken within a
12-month period following adoption. |
| c. |
For the employee to care for the employee’s
child, spouse, or parent, where that
child, spouse, or parent has a serious
health condition; or |
| d. |
Because the employee has a serious
health condition that makes the employee
unable to perform the functions of the
employee’s position. |
| e. |
Because of any qualifying exigency
arising out of the fact that the 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) in support
of a contingency operation. |
Leave without pay beyond the 12-week period
or for employees not covered under the Family
and Medical Leave Policy will be administered
under other provisions of this policy. A
total of 26 workweeks, paid or unpaid, in
a “single 12-month period” to
care for a covered servicemember with a
serious injury or illness.
| a. |
Eligible employee must be the spouse,
son, daughter, or parent, or next of
kin of a covered servicemember. |
| b. |
The “single 12-month period”
begins on the first day the eligible
employee takes FMLA leave to care for
a covered servicemember and ends 12
months after that date, regardless of
the method used by the employer to determine
the employee’s 12 workweeks of
leave entitlement for other FMLA-qualifying
reasons. If an eligible employee does
not take all of his or her 26 workweeks
of leave entitlement to care for a covered
servicemember during this “single
12-month period,” the remaining
part of his or her 26 workweeks of leave
entitlement to care for the covered
servicemember is forfeited. |
| c. |
Leave entitlement is to be applied
on a per-covered servicemember, per-injury
basis; employee is limited to taking
no more than 26 workweeks of leave in
each “single 12-month period.” |
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| 3. |
Definitions
| a. |
Active duty or call to active
duty – duty under a call
or order to active duty (or notification
of an impending call or order to active
duty) in support of a contingency operation
pursuant to Sections 688, 12301(a),
12302, 12304, 12305, and 12406 of Title
10 of the United States Code, chapter
15 of Title 10 of the United States
Code, or any other provision of law
during a war or during a national emergency
declared by the President or Congress
so long as it is in support of a contingency
operation. |
| b. |
Covered servicemember –
a current 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 otherwise on the temporary disability
retired list, for a serious injury or
illness incurred in the line of duty
on active duty. |
| c. |
Next of kin of a covered servicemember
– the nearest blood relative other
than the covered servicemember’s
spouse, parent, son, or daughter, in
the following order of priority: Blood
relatives who have been granted legal
custody of the covered servicemember
by court decree or statutory provisions,
brothers and sisters, grandparents,
aunts and uncles, and first cousins,
unless the covered servicemember has
specifically designated in writing another
blood relative as his or her nearest
blood relative for purposes of military
caregiver leave under the FMLA. When
no such designation is made, and there
are multiple family members with the
same level of relationship to the covered
servicemember, all such family members
shall be considered the covered servicemember’s
next of kin and may take FMLA leave
to provide care to the covered servicemember,
either consecutively or simultaneously.
When such designation has been made,
the designated individual shall be deemed
to be the covered servicemember’s
only next of kin. |
| d. |
Parent - A biological,
adoptive, step or foster father or mother,
or any other individual who stood in
loco parentis (a person who is in the
position or place of the parent) to
the employee when the employee was a
child son or daughter as defined below.
This term does not include parents “in
law.” |
| e. |
Parent of a covered servicemember
– a covered servicemember’s
biological, adoptive, step or foster
father or mother, or any other individual
who stood in loco parentis to the covered
servicemember. This term does not include
parents “in law.” |
| f. |
Serious health condition
- an illness, injury, impairment, or
physical or mental condition that involves
either inpatient care in a hospital,
hospice, or residential medical care
facility, or that involves continuing
treatment by a health care provider. |
| g. |
Serious injury or illness
– an injury or illness
incurred by a covered servicemember
in the line of duty on active duty that
may render the servicemember medically
unfit to perform the duties of the member’s
office, grade, rank, or rating. |
| h. |
Son or daughter –
a biological, adopted, or foster child,
a stepchild, a legal ward, or a child
of a person standing in loco parentis,
who is either under age 18 or age 18
or older and “incapable of self-care
because of a mental or physical disability”
at the time that FMLA leave is to commence. |
| i |
Son or daughter of a covered
servicemember – a covered
servicemember’s biological, adopted,
or foster child, stepchild, legal ward,
or a child for whom the covered servicemember
stood in loco parentis, and who is of
any age. |
| j. |
Son or daughter on active
duty or call to active duty status
– the employee’s biological,
adopted, or foster child, stepchild,
legal ward, or a child for whom the
employee stood in loco parentis, who
is on active duty or call to active
duty status, and who is of any age. |
| k. |
Spouse - a husband
or wife as defined or recognized under
State law for purposes of marriage in
the State where the employee resides,
including common law marriage in States
where it is recognized. |
| l. |
Qualifying exigency
– 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, as defined
in §825.126 of the Family and Medical
Leave Act. |
| m. |
Workweek - A workweek
is defined as the number of hours an
employee is regularly scheduled to work
each week. |
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| 4. |
Leave Charges
| a. |
a. For the birth of a child, the employee
may choose to exhaust available vacation
and/or sick leave, or any portion, or
go on leave without pay; except that
sick leave may be used only during the
period of disability. This applies to
both parents. |
| b. |
For the adoption of a child, the parents
may choose to exhaust available vacation
leave, or any portion, or go on leave
without pay. |
| c. |
For the illness of an employee’s
child, spouse, parent, or to care for
a covered servicemember with a serious
injury or illness, the employee may
choose to exhaust available sick and/or
vacation leave, or any portion, or go
on leave without pay. |
| d. |
For the employee’s illness,
the employee shall exhaust available
sick leave and may choose to exhaust
available vacation leave, or any portion,
before going on leave without pay. If
the illness extends beyond the 60-day
waiting period required for short-term
disability, the employee may choose
to exhaust the balance of available
leave or begin drawing short-term disability
benefits. |
| e. |
For the qualifying exigency arising
out of the fact that the 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) in support
of a contingency operation, the employee
may choose to exhaust available vacation
leave, or any portion, or go on leave
without pay. |
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| 5. |
Intermittent Leave or Reduced Work
Schedule
| a. |
Pursuant to this policy, the employee
may not take leave intermittently or
on a reduced work schedule for the birth
of a healthy child and birth-related
child care or for the adoption of a
healthy child unless the employee and
college agree otherwise. |
| b. |
When medically necessary, the employee
may take leave intermittently or on
a reduced schedule to care for the employee’s
child, spouse or parent who has a serious
health condition, to care for a covered
servicemember with a serious injury
or illness, or because the employee
has a serious health condition. If such
leave is foreseeable, based on planned
medical treatment, the college may require
the employee to transfer temporarily
to an available alternative position
for which the employee is qualified
and that has equivalent pay and benefits
and better accommodates recurring periods
of leave. |
| c. |
Leave due to a qualifying exigency
may be taken on an intermittent or reduced
leave schedule basis. |
| d. |
When an employee is on a reduced work
schedule, the time not worked is counted
against the total 12 workweeks. |
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| 6. |
Employee Responsibility
The employee shall apply in writing to the
appropriate vice president or dean for leave
requested under this policy as follows:
| a. |
Birth or adoption - the employee shall
give the college no less than 30 days’
notice, in writing, of the intention
to take leave, subject to the actual
date of the birth or adoption. If the
date of the birth or adoption requires
leave to begin in less than 30 days,
the employee shall provide such notice
as is practicable. |
| b. |
Planned Medical Treatment –
when planning medical treatment, the
employee must consult with the employer
and make a reasonable effort to schedule
the treatment so as not to disrupt unduly
the employer’s operations, subject
to the approval of the health care provider.
The employee must give 30 days advance
notice before FMLA leave is to begin
if the need for the leave is foreseeable.
If the need for leave is not foreseeable,
the employee must provide notice to
the employer as soon as practicable
under the facts and circumstances of
the particular case. |
| c. |
The employee shall be deemed to have
applied for leave under this policy
when:
| i. |
The employee is on approved
leave, but has not given written
notice of the intent to take family
or medical leave to the supervisor. |
| ii. |
The employee utilizes leave
for any purpose whether with or
without pay for a period in excess
of 30 days, and |
| iii. |
The basis for the leave falls
within the scope of this policy. |
In these cases, the college shall notify
the employee that time spent on paid
leave or leave without pay during the
30-day period is a part of the 12 workweeks
of leave. |
| d. |
If the employee will not return to
work after the period of leave, the
college should be notified in writing
immediately. Failure to report at the
expiration of the leave, unless an extension
has been requested, may be considered
as a resignation.
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| 7. |
Certification
| a. |
For leave pursuant to this policy,
the college may require that a claim
for leave because of adoption be supported
by reasonable proof of adoption. |
| b. |
The college may require that a claim
for leave because of a serious illness
of the employee, the employee’s
child, spouse, or parent, or a serious
injury or illness of a covered servicemember,
be supported by a doctor’s certification
which includes the following:
| i. |
The date on which the serious
health condition began. |
| ii. |
The probable duration of the
condition. |
| iii. |
The appropriate medical facts
regarding the condition. |
| iv. |
A statement that the leave is
needed to care for the child,
spouse, parent, or a covered servicemember,
and an estimate of the amount
of time that is needed; or that
the employee is unable to perform
the functions of the position,
whichever applies. |
| v. |
Where certification is necessary
for intermittent leave for planned
medical treatment, the dates on
which the treatment is expected
to be given and the duration of
the treatment. |
| vi. |
For care of a covered servicemember:
whether the injury or illness
was incurred in the line of duty
on active duty must be certified. |
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| c. |
The college may require the employee
requesting leave for the first time
because of a qualifying exigency arising
out of the active duty or call to active
duty status of a covered military member
to provide a copy of the covered military
member’s active duty orders or
other documentation issued by the military
which indicates that the covered military
member is on active duty or call to
active duty status in support of a contingency
operation, and the dates of the covered
military member’s active duty
service. |
| d. |
Where the college has reason to doubt
the validity of the certification, the
college may require the employee to
get the opinion of a second doctor designated
or approved by the college. Where the
college opinion differs from the opinion
in the original certification provided,
the college may require the employee
to get the opinion of a third doctor
designated or approved jointly by the
employer and the employee. The third
option is final and is binding on the
college and the employee. The college
may require that the employee obtain
subsequent recertifications on a reasonable
basis. |
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| 8. |
Benefits and Protections
During FMLA leave, group health plan
benefits must be maintained on the same basis
as coverage would have been provided if the
employee had been continuously employed during
the FMLA leave period. Therefore, any share
of group health plan premiums which had been
paid by the employee prior to FMLA leave must
continue to be paid by the employee during
the FMLA leave period.
Upon return from FMLA leave, most employees
must be restored to their original or equivalent
positions with equivalent pay, benefits,
and other employment terms.
Use of FMLA leave cannot result in the
loss of any employment benefit that accrued
prior to the start of an employee’s
leave. |
| 9. |
Unlawful Acts by Employers
FMLA makes it unlawful for any employer to:
| a. |
Interfere with, restrain, or deny
the exercise of any right provided under
FMLA; |
| b. |
Discharge or discriminate against
any person for opposing any practice
made unlawful by FMLA or for involvement
in any proceeding under or relating
to FMLA. |
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| 10. |
Enforcement
An employee may file a complaint with the
U.S. Department of Labor or may bring a private
lawsuit against an employer. FMLA does
not affect any Federal or State law prohibiting
discrimination, or supersede any State or
local law or collective bargaining agreement
which provides greater family or medical
leave rights.
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