Family & Medical Leave Act (FMLA)

I. Purpose & Scope

This policy applies to all eligible employees, as defined, of the College of William & Mary, including the Virginia Institute of Marine Science (the university).  This policy ensures that the university complies with the Family and Medical Leave Act, which guarantees eligible employees with unpaid leave in certain situations.  This policy also helps maximize employees’ paid leave, by specifying how other university programs providing paid leave interact with unpaid leave provided under the Family and Medical Leave Act.  Any period of paid leave runs concurrently with the period of unpaid leave available under the Family and Medical Leave Act.

II. Definitions

• Duty under a call or order to Active Duty for members of uniformed services under a provision of law referred to in section 101(a)(13)(B) of title 10, United States Code.
• A biological, adopted or foster Child, stepchild or legal ward, or a child of a person standing in place of the parent. The child must either be under age 18 or be age 18 or older and incapable of self-care because of a mental or a physical disability. (Age does not apply for a child who is a Military service member, National Guard, or active reservist.)
• Eligible Employee is a part-time or full-time employee who has been employed by the university for at least 12 months and worked at least 1,250 hours during the 12 months prior to the start of the leave. The required 1,250 hours do not have to be worked during consecutive months. However, the 1,250 hours of work requirement applies to the 12 months immediately preceding the start of the leave date.
• Employment Benefits are all benefits provided by the university to eligible employees, including but not limited to accrued annual and sick leave, educational benefits, group life insurance, health insurance, retirement contributions, etc.
• Family and Medical Leave Act or FMLA is the federal law entitling eligible employees with up to 12 work weeks (26 workweeks if the provisions of section 6.6.1(a) apply) of unpaid leave during a calendar year for the reasons specified in this policy. See 29 U.S.C. § 2601 et. seq.
• HealthCare Benefits are the health insurance program(s) covering eligible employees.
• HealthCare Providers:
  • Doctors of medicine or osteopathy who are authorized to practice medicine or surgery (as appropriate) by the state in which the doctors' practice.
  • Any other person determined by the U.S. Secretary of Labor to be capable of providing health-care services.
  • Others capable of providing healthcare services include only chiropractors, clinical psychologists, clinical social workers, dentists, podiatrists, optometrists, nurse-midwives and nurse practitioners authorized to practice in the state and who are performing within the scope of their practice as defined under state law as well as any other health-care provider accepted by the group health plan.
• The university has established January 10 of each year to January 9 of the following year as the Leave Year, which is the same leave period designated by the Virginia Department of Human Resource Management (DHRM).
• Military Caregiver Leave allows an eligible employee who is the spouse, son, daughter, parent, or “next of "in” of a co"ered veteran with a serious health or pregnancy condition to take up to a total of 26 workweeks of unpaid leave during a “single 1"-month period” to provide care for the veteran.
• Parent is the biological parent or individual who stood in place of the parent of the employee and was charged with the duties and responsibilities of the parent.
• Pregnancy-Related Condition is any period of incapacity or treatment due to pregnancy, or for prenatal care.
• Serious Health Condition: is an illness, injury, impairment, or physical or mental condition that involves:
  • any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility
  • a period of incapacity requiring absence of more than three calendar days of work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider
  • any period of incapacity (or treatment, therefore) due to a chronic serious health condition (such as asthma, diabetes or epilepsy)
  • a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (for example, Alzheimer's disease)
  • any absences from work to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (such as chemotherapy, physical therapy, dialysis)
• Spouse is a husband or wife recognized as legally married.
• Staff means Operational employee and/or Professional employee.

III. Policy 

The university complies with the Family and Medical Leave Act by providing leave to qualified employees under the circumstances described in the law, and pursuant to the procedures specified below. FMLA leave runs concurrently with any paid leave available under other university or state leave programs or policies. FMLA leave may be taken for:

• The birth of a child (to be taken within 12 months of the child's birth).
• The placement of a child with the employee for adoption or foster care (to be taken within 12 months of the date of placement).
• To care for a child who is under age 18, or age 18 or older who is incapable of self-care because of a mental or physical disability,
• A spouse or a parent who has a serious health condition or pregnancy-related condition that involves inpatient care in a hospital, hospice or residential medical care facility; or continuing treatment by a health-care provider.
• A serious health condition or pregnancy-related condition that renders an employee unable to perform the functions of his or her position. The university may request certification that the employee is unable to work or is unable to perform any of the essential functions of the employee's position within the guidelines of the Americans with Disabilities Act.
• Any qualifying exigency arising out of the fact that the spouse, child or parent of the employee is called to active duty or has been notified of an impending call or order to active duty in the Armed Forces in support of a contingency operation.

FMLA leave may include intermittent leave or a reduced work schedule; see Section IV(G).

FMLA leave may not be used for short-term conditions for which treatment and recovery are brief, such as minor illnesses and outpatient surgical procedures with expected brief recuperating periods. It does not provide for the intermittent care of a child for such commonplace illnesses as colds and flu.

FMLA Leave & Available Paid Leave

The FMLA gives eligible employees the right to unpaid leave. Eligible university employees are entitled to paid leave, up to the employee’s accrued paid leave balance. Employees have the option of using paid leave available to them under university leave policies for absences covered under family and medical leave as follows and when the conditions specified in this policy are met:

• All employees who are eligible for accrued annual leave or paid time off under any applicable policy or the Faculty Handbook may use those accrued leave balances towards the employee’s period of approved FMLA;
• Staff employees who are enrolled in the Virginia Sickness and Disability Plan (“VSDP”) and are approved for FMLA leave may use up to 33% of their VSDP personal sick leave hours towards the employee’s period of approved FMLA leave;
• Employees who remain Classified and who participate in the Traditional Sick Leave Program may initially use up to 48 hours of their sick leave balance towards the employee’s period of approved FMLA leave. Thereafter, Classified employees may use 33% of their sick leave balance towards the employee’s period of approved FMLA leave; and
• Professional employees and Instructional Faculty may use up to 120 calendar days of their available paid leave balance towards the employee’s period of approved FMLA leave.

FMLA Leave for Eligible Full-Time Employees

Except as otherwise provided herein, eligible full-time employees may take up to 12 work weeks of unpaid FMLA leave in a calendar year, for specified reasons.

Therefore, if an employee has less than 12 work weeks of accrued paid leave available to him or her, the university is required to provide only the number of unpaid workdays which, when combined with the number of days of other paid leave taken, equal a total of 60 workdays or 480 work hours. In other words, the university designates paid leave available to an employee under applicable leave policies or programs as FMLA leave, if such paid leave is taken for conditions satisfying the FMLA, and the time missed from work for FMLA leave cannot exceed 12 weeks in a calendar year, unless military exceptions apply.

Eligible full-time employees may take up to 26 weeks of leave to care for a child, spouse, parent or nearest blood relative with an illness or injury incurred in the line of duty while active in the Armed Forces.

FMLA Leave for Eligible Part-Time Employees

The leave allowed under this policy for eligible employees is prorated to reflect the actual hours worked by an employee during the leave accrual period. EXAMPLE: A part-time employee works 25 hours per week year-round. During any 12-week period, the employee works a total of 300 hours. Therefore, the part-time employee may take up to 300 hours of family and medical leave in a calendar year. Part-time employees also have the option of using paid leave available to them under university leave policies for qualifying family and medical leave under the same conditions described above and subject to the prorated hours available to the part-time employee.

IV. Procedures

Requesting and Reviewing FMLA Leave Requests

An employee must provide as much notice to the university as is reasonable and practicable. A 14-day advance notice is reasonable when the need for leave is foreseeable.

In addition, employees must provide a healthcare provider's certification of the serious health condition or pregnancy-related condition of the person affected, which certification must include, in addition to verification of the condition, the date when the condition/qualifying event began, the probable duration of the health condition, and recommended leave type (intermittent/reduced schedule or continuous).  The university may require, at its own expense, a second opinion from its designated or approved healthcare providers (this healthcare provider cannot be one who is employed by the university on a regular basis).  When the second opinion differs from the first, the university may, at its own expense, require a third opinion from a healthcare provider designated or approved jointly by the employee and the university.  The opinion of the third healthcare provider shall be considered final and binding upon the university and the employee.

Human Resources will review the request and determine whether the employee and the condition is eligible for leave, and notify the employee of his or her eligibility status. The eligibility notice must be in writing and must:

• Be provided the first time the employee takes leave for an FMLA-qualifying reason in the designated 12-month leave year;
• Be provided within five business days of the initial request for leave or when the university acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason;
• If the employee is determined to be not eligible for FMLA leave, state at least one reason why; and
• Be accompanied by a written notice of the employee’s rights and responsibilities, including employee obligations concerning the use of FMLA leave and the consequences of failing to meet those obligations.

The eligibility notice is not required for FMLA absences for the same qualifying reason during the same leave year or for FMLA absences for a different qualifying reason where the employee’s eligibility status has not changed. If the employee requests leave for a different qualifying reason in the same leave year and the employee’s eligibility status has changed, the employer must notify the employee of the change in eligibility status within five business days. 

Recertification or Review of Current Leave

The university may require an employee to report periodically during the FMLA leave period on his or her leave status and intention to return to work, and to provide subsequent recertification on a reasonable basis.

If the employee’s need for FMLA leaves employees a single FMLA leave year, the university may require the employee to provide a new medical certification in each new FMLA leave year.

If the FMLA leave is within a single leave year, the university may request the employee to provide a recertification no more often than every 30 days and only in connection with an absence by the employee, unless:

• the employee requests an extension of leave,
• the circumstances described by the previous certification have changed significantly, or
• the university receives information that reasonably causes it to doubt the employee’s stated reason for the absence or the continuing validity of the existing medical certification.

If a certification indicates that the minimum duration of the serious health or pregnancy related condition is more than 30 days, the university must generally wait until that minimum duration expires before requesting recertification. However, in all cases, including cases where the condition is of indefinite duration, the university may request recertification for absences every six months. In general, the university may ask for the same information in recertification as that permitted in the original medical certification. However, the university may provide the health care provider with a record of the employee’s absences and ask if the employee's health or pregnancy-related condition and need for leave is consistent with the leave pattern.

The employee is responsible for paying for the cost of recertification. The university cannot require a second or third opinion for recertification.

In most circumstances, the university must allow the employee at least 15 calendar days to provide the recertification after the employer’s request. If the employee does not provide the supporting medical certification, the university may deny the continuation of FMLA leave due to a serious health or pregnancy-related condition.

Return to Work Duty Certification

An employee on medical leave due to a serious health or pregnancy-related condition under the direction of a physician, whether work or non-work related, must present a Return-to-Work Duty Certification form to Human Resources prior to returning to work unless the employee’s physician has previously released the employee to return to work on a date certain.  In general, a Return-to-Work Duty Certification may not be required for each absence taken on an intermittent or reduced leave schedule. A Return-to-Work Duty Certification will provide the date that the employee is released to return to work, a statement as to whether the employee can perform the essential functions of the job, with or without accommodation, and in a manner that does not pose a significant risk of harm to the health and safety of the employee or other members of the campus community. However, if the university has a reasonable belief that the employee’s return to work while on an intermittent or reduced leave schedule presents a significant risk of harm to the employee or to others, the employer may require a work duty certification up to once every 30 days.  In certain circumstances, the university may require an employee to undergo a Fitness for Duty Evaluation upon recommendation of the Diversity and Inclusion Office and consistent with the requirements of the Americans with Disabilities Act of 1990, as amended.

Restoration of Position

At the end of the FMLA leave period, employees normally are to be reinstated to the positions they held or to an equivalent position when the FMLA leave began, unless they are key employees as defined in the FMLA. If the previous position of a non-key staff member has been filled, the employee should be restored to an equivalent position. The standard of equivalence requires comparability and correspondence to duties, terms, conditions, and privileges of the employee's previous position.

If a staff employee does not return to work at the end of the applicable period of approved FMLA leave and if the staff employee does not have any available paid leave balances to extend his or her period of approved leave, the staff member’s period of protected job leave will end. In such case, if the employee does not return to work at the end of the approved period of leave, the university will terminate the staff member’s employment, and the staff member will no longer be eligible for reinstatement to his or her previous position or to an equivalent position.

Status of Benefits during FMLA Leave Period

Health Insurance

• The university will continue to contribute the employer portion of the health insurance premiums of salaried employees who are on FMLA leave as follows:
  • When employees are using paid annual or sick leave as appropriate under the provisions of FMLA, the payroll deductions of the employee’s portion of the premiums continue.
  • Whemployee'ses are on leave without pay under the provisions of FMLA, the employee is responsible for remitting the premium contributions to the university by the due date. If the premium contribution is not received, benefits will be discontinued.
  • Employees who are on FMLA leave will pay the same portion of their health insurance premiums as they would if they were not on leave.
• If employees fail to return to work at the end of the FMLA leave period, the university may recover from them the Commonwealth's share of premiums paid during thCommonwealth'save. However, there will be no recovery of premiums if employees fail to return to work as a result of the following:
  • The onset, recurrence or continuation of serious health or pregnancy-related conditions that entitle them to leave to care for themselves or for a family member; or
  • Other circumstances beyond the employee's control

Annual & Other Leave Accrual

Employees on paid leave will accrue leave in accordance with the applicable leave policy.

• Employees will not accrue leave hours during any period of leave without pay.
• When more than 14 consecutive calendar days of unpaid family and medical leave have been taken, an employee will be placed on an unpaid leave service status and his or her next annual leave anniversary date will be advanced according to the length of time taken on unpaid family and medical leave.

Use of Family and Medical Leave When Both Spouses Are University Employees

When both spouses work for the university, each spouse is eligible for up to 12 work weeks of unpaid leave in a calendar year for the birth of the employee’s child or to care for the child after birth; for placement of a child with the employee for adoption or foster care, or to care for the child after placement, or to care for the employee’s parent with a serious health condition; or because of any qualifying exigency (as defined the Department of Labor) arising out of the fact that the child, spouse or parent of the employee is called to active duty or has been notified of an impending call or order to active duty in the Armed Forces in support of a contingency operation.

When both spouses work for the university, paid leave is subject to the applicable leave policy for staff employees or the provisions of the Faculty Handbook for eligible faculty members.

Intermittent Leave or Reduced Schedule

Non-military employees may take intermittent leave or work a reduced schedule not to exceed 480 hours for full-time employees or the applicable pro-rated hours for part-time employees when medically necessary because of an eligible employee's own serious health or pregnancy-related condition or the serious health or pregnancy-related condition of a child, spouse or parent, or other qualifying event. Provided that intermittent leave does not cause an undue business hardship, an intermittent leave schedule may:

• • Permit the employee to take leave periodically for a few hours a day (less than eight hours), or for a few days, on an as-needed basis or
  • Permit the employee to reduce the typical number of hours worked per workweek or per workday.

Employees may be required to provide medical certification that intermittent leave is necessary.

Employees who must take intermittent leave or work a reduced schedule must first use their available paid leave balances as permitted by each specific leave policy or take unpaid family and medical leave once all accrued leave has been exhausted.

Staff employees do not accrue leave when they are on leave without pay.

When an employee takes leave to care for a newborn child, or because of the placement of a child with him or her for adoption or foster care, the employee may take leave intermittently or on a reduced schedule, if university management agrees on such an arrangement beforehand.

When the conditions noted in this policy are applicable, the university can temporarily transfer the employee to another position that better accommodates the intermittent leave or reduced schedule as long as the new position carries equivalent pay and benefits.

V. Responsibilities

Employees are responsible for:

• submitting a written request for family and medical leave to human resources at least 14 days before the beginning of the family and medical leave, unless emergencies or unforeseen events preclude such advance notice to human resources. Calling in “sick” is not sufficient to indicate a need for FMLA leave. "noti"ying Human Resources as soon as practicable if dates of scheduled FMLA leave change, are extended, or were initially unknown.
• providing medical certification of serious health or pregnancy-related conditions, re-certifications, and other documentation as may be required under this policy.
• Otherwise complying with this policy, including by requesting FMLA leave for conditions allowed by this policy and law.

Human Resources is responsible for:

• Reviewing requests for FMLA leave and determining employee eligibility for family and medical leave for the reasons stated in the policy;
• Keeping and preserving records pertaining to obligations under FMLA.[1]  Records and documents relating to medical certifications, recertification, or medical histories of employees or employees' family members are to be maintained in separate files/records and treated as confidential medical records except in the following instances:
  • Supervisors and managers may be informed regarding necessary restrictions on the work or duties of an employee and necessary accommodations;
  • First aid and safety personnel may be informed (when appropriate) if the employee’s physical or medical condition might require emergency treatment; and
  • Government officials investigating compliance with FMLA (or other pertinent laws) shall be provided relevant information upon request.

VI. University’s Commitment

The university will not interfere with, restrain, or deny the exercise of any right provided by the FMLA, nor will it discharge or discriminate against any individual for opposing any practice or involvement in any proceeding relating to the FMLA. The University recognizes the co-existence of state and/or local laws regarding family and medical leave. Where such laws apply and provide greater family and medical leave rights than the FMLA, the university will comply with those laws.

VII. Authority, Interpretation & Amendment

This policy is approved by the President. The President has delegated to the Senior Vice President for Finance and Administration the authority to revise or amend this policy.

The Office of Human Resources is responsible for the administration and implementation of this policy.

VIII. Related Policies

• Reasonable Accommodation Policy 

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[1] Records must be kept for at least three years. Required records must include the following:

• Basic payroll and identifying employee data including name, address and occupation; rate or basis of pay and terms of compensation; daily and weekly hours worked per pay period; additions to or deductions from wages; and total compensation paid.
• Leave designated as FMLA leave, both paid and unpaid, and the dates employees took it. (If FMLA leave is taken in increments of less than a day, the hours must be noted.)
• Copies of employees' notices of leave furnished to the university.
• Any employees including written and electronic records) describing employee benefits or university policies and practices regarding the taking of paid and unpaid leaves.
• Records of premium payments.
• Records of any dispute between the university and an employee regarding the designation of leave as FMLA leave, including any written statement from the university or employee of the reasons for the designation and the disagreement.