4.18.7 Family and Medical Leave Act

A. Purpose

The purpose of this policy is to set forth guidelines and procedures to be followed in complying with the Family and Medical Leave Act (FMLA) of 1993 (to be referred to in this policy as "Act").

B. Authority/Persons Affected

Family and Medical Leave Act (FMLA) of 1993

Persons affected: All employees provided they have been employed for 12 months by the State of Texas, and have worked at least 1,250 hours during the 12-month period immediately preceding the commencement of leave.

C. Definitions

  1. Spouse/Dependent

    For purposes of the Act, spouse is defined in accordance with the applicable state law including common law marriages when recognized by the state. Unmarried domestic partners do not qualify for spouse status. Son or daughter is defined under the Act to include a child under 18 years or one who is 18 years or older who is incapable of self-care because of a mental or physical disability.

  2. Serious Health Condition

    A serious health condition is defined as an injury, impairment, or physical or mental condition that involves either: 1) inpatient care in a hospital, hospice or residential care facility, or 2) continuing treatment by a health care provider. The term "serious health condition" is intended to cover those conditions which affect one's health to the extent that in-patient care is required or continuing treatment by a provider of health care is necessary on a recurring basis for more than a few days for treatment or recovery. The Act is not intended to cover short term conditions for which treatment and recovery are brief.

    Examples of serious health conditions include heart attacks, heart conditions, most cancers and back conditions requiring extensive therapy or surgical procedures, strokes, respiratory conditions, appendicitis, pneumonia, emphysema, severe nervous disorders, injuries caused by serious accidents on or off the job, pregnancy, severe morning sickness, need for prenatal care, childbirth, and recovery from childbirth. A serious health condition includes treatment for a serious chronic condition which, if left untreated, would likely result in an absence of work for more than three days.

  3. Continuing Treatment by a Health Care Provider:

    Continuing treatment by a health care provider is defined as:

    1. a period of incapacity (inability to work, attend school, or perform other regular daily activities due to the serious health condition) for more than three consecutive calendar days, involving treatment two or more times by a health care provider, or treatment by a health care provider on at least one occasion that results in a regimen of continuing treatment under the health care provider's supervision;

    2. pregnancy or prenatal care, even if an employee does not receive treatment and even if the care does not last three days;

    3. a chronic serious health condition, defined as one that requires periodic visits for treatment by a health care provider, continues over an extended period of time, and may cause episodic rather than continuing incapacity (e.g., asthma, severe morning sickness);

    4. a permanent or long-term condition for which treatment may not be effective (e.g., Alzheimer's, severe stroke, terminal stages of a disease); and

    5. an absence to receive multiple treatments by a health care provider either for restorative surgery after an accident or injury or for a condition that would likely result in an incapacity of three or more days in the absence of medical treatment (e.g., cancer, severe arthritis).

      In addition to these five broad categories, also included are allergies or mental illness resulting from stress, but only when all of the other criteria of a serious health condition are met.

  4. Treatment

    Treatment includes, but is not limited to, examinations to determine if a serious health condition exists and evaluations of the condition. It does not include routine physical exams, routine eye exams, or routine dental exams. A course of prescription medicine or therapy would qualify as a "regimen of continued treatment," but over-the-counter medicines would not.

  5. Substance Abuse

    Treatment of substance abuse may be included under the Act in order to undergo treatment by a health care provider; however, absences because of an employee's use of a substance without treatment do not qualify for family leave. The inclusion of substance abuse does not prevent the employer from taking any employment action against an employee who is unable to perform the essential functions of the job provided the employer complies with the Americans with Disabilities Act (ADA) and does not take action against the employee because such employee exercises rights under the Act.

  6. Parental Leave

    An employee's entitlement to leave for the birth or placement of a child expires 12 months after the birth or placement. If both parents work for the University, regardless of whether they work at different work sites or different component institutions, the total amount of leave cannot exceed 12 weeks. This limitation applies only for those cases involving the birth or placement of a child. In cases involving sickness, this limitation does not apply.

  7. Intermittent and Reduced Schedule Leave

    Employees with a serious health condition or with a spouse, parent or child with a serious health condition (but not those taking leave due to the birth or placement of a child) are also entitled to take “intermittent” or “reduced schedule” leave, if the leave is medically necessary.

    Intermittent leave may also be taken for a serious health condition of a spouse, parent, son, or daughter, for the employee’s own serious health condition, or a serious injury or illness of a covered serve member which requires treatment by a health care provider periodically, rather than for one continuous period of time, and may include leave of periods from an hour or more to several weeks.

    “Intermittent leave” is defined as leave taken in separate blocks of time due to a single illness or injury, rather than for one continuous period of time, and may include leave for periods from one hour to several weeks. Examples include leave taken on an occasional basis for medical appointments, or leave taken several days at a time spread over a period of six months, such as for chemotherapy.

    “Reduced schedule leave” is defined as a leave schedule that reduces an employee’s usual number of working hours per work week or hours per work day. This type of leave might be used, for example, when an employee is recovering from a serious health condition, but is not strong enough to work a full-time schedule.

    If an employee takes an intermittent or reduced leave schedule, only the amount of leave actually taken may be counted toward the 12 weeks of leave to which an employee is entitled. Where an employee normally works a part-time schedule or variable hours, the amount of leave to which an employee is entitled is determined on a pro rata or proportional basis by comparing the new schedule with the employee’s normal schedule.

    When an employee has requested intermittent or reduced schedule leave, the University may transfer the employee to an alternative position with equivalent pay and benefits if the employee is qualified for the position, and if it better accommodates the recurring periods of leave more than the employee's current job.

  8. Military Caregiver Leave

    Leave taken to care for a covered service member with a serious injury or illness under the Family and Medical Leave Act of 1993.

    (The extension of military caregiver leave to family members of veterans with serious injuries or illnesses is pending the issuance of a final rule by the Department of Labor.)

  9. Covered Service Member

    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, or a covered veteran who is undergoing medical treatment, recuperation, or therapy
    for a serious injury or illness. 

  10. Covered Veteran

    An individual who was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care of the covered veteran.

  11. Covered Active Duty

    In the case of a member of the Regular Armed Forces, duty under a call or order to active duty (or notification of an impending call or order to covered active duty) during the deployment of the member with the Armed Forces to a foreign country; and, in the case of a member of the reserve components of the Armed Forces, duty under a call of order to active duty (or notification of an impending call or order to active duty during the deployment of the member with the Armed Forces to a foreign country under a Federal call or order to active duty).

  12. Reserve Components of the Armed Forces

    For purposes of qualifying exigency leave, reserve components of the Armed Forces includes: Army National Guard of the United States, Army Reserve, Navy Reserve, Marine Corps Reserve, Air National Guard of the United States, Air Force Reserve, and Coast Guard Reserve, and retired members of the Regular Armed Forces or Reserves who are called up in support of a contingency operation.

  13. Son or Daughter of a Covered Service Member

    A covered service member’s biological, adopted, or foster child, stepchild, legal ward, or a child for whom the covered service member stood in loco parentis, and who is of any age.

  14. Son or Daughter on Covered Active duty (or impending call or order to covered active duty)

    An employee’s biological, adopted, or foster child, stepchild, legal ward, or a child for whom the employee stood in loco parentis, who is on or has received notice of a call of order to covered active duty, and who is of any age.

D. Policy and Procedures

All University employees are eligible for up to 12 weeks of family leave per year for certain family reasons provided they have been employed for 12 months by the State of Texas, and have worked at least 1,250 hours during the 12-month period immediately preceding the commencement of leave.

It is the responsibility of the employee and/or supervisor to report the need for FMLA involving a serious or chronic health condition that would necessitate the employee being absent from work for three or more days to Human Resources. Notice should be given as soon as possible so the University can initiate the process of obtaining the necessary FMLA documentation and inform the employee of their rights and responsibilities under the Family and Medical Leave Act.

  1. Leave requirements
    1. A “qualified purpose” for FMLA leave is:
      1. Birth of son or daughter and care after such birth (during the child’s first year of life);
      2. Placement with an employee of a son or daughter for adoption or foster care (during the first year following placement);
      3. Serious health condition of spouse, child or parent of employee; or
      4. Serious health condition of employee (unable to perform essential job functions). v. Leave for birth or placement for adoption can be taken prior to the actual birth or adoption.
      5. Military Caregiver leave for any qualifying exigency, a Federal call to active duty, arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty of call to covered active duty status.
    2. Medical Examinations

      The University may require:

      1. Certification from the health care provider to support the leave request when an employee is taking leave to care for a family member, or due to his or her own serious health condition (U.S. Department of Labor Form WH-380 “Certification of Health Care Provider” is available from Human Resources). If the University does not agree with the medical certification, a second opinion at the University's expense may be obtained. If the two opinions disagree, a third opinion may be obtained at the University's expense and will be the final determination. There is no certificate requirement if an employee is taking leave for the birth of a child or placement of a child.

      2. Periodic recertification;

      3. Periodic reports during FMLA leave on the employee’s status and intent to return to work;

      4. Medical certification to show that intermittent leave is medically necessary;

      5. A fitness-for-duty certification to return to work; or

      6. Medical certification if an employee claims inability to return to work after the expiration of leave because of the continuation of a serious medical condition.

  2. PROCEDURES

    1. How the 12-Month Period is Calculated

      Eligible employees are entitled to take up to 12 work weeks of family leave during any 12-month period measured forward from the date the employee's first family leave begins.

    2. Notice by Employee to the University

      1. Employees must give at least 30 days of advance notice to the University of the need to take unpaid family leave, when it is foreseeable, for the birth or adoption of a child or for medical treatment. When it is not practicable to give such notice under any circumstances, such as premature birth or medical illness, the notice should be given as soon as practical within one to two business days of when the employee learns of the need for leave.

      2. An employee shall provide at least verbal notice sufficient to make the University aware that the employee needs FMLA leave, and the anticipated timing and duration of the leave. The employee need not expressly assert rights under the Act or even mention the FMLA, but may only state that leave is needed for an expected birth or adoption, for example. The University should inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee, and obtain the necessary details for the leave to be taken.

      3. An employee who has given notice under the Act and has provided the certification requirements, if needed, may not be denied family leave.

    3. Notice by University to the Employee

      It is the University’s responsibility to designate leave, paid or unpaid, as FMLA- qualifying, and to give notice of the designation to the employee (U.S. Department of Labor Form WH-381 “Employer Response to Employee Request for Family or Medical Leave” is available from Human Resources). Once the University has acquired knowledge that paid leave is being taken for an FMLA required reason, the University must notify the employee within two business days (absent extenuating circumstances) that the leave is designated and will be counted as FMLA leave.

    4. Requirement of Using Sick, Vacation, and Compensatory Leave

      With the exception of employees receiving workers’ compensation income benefits, employees are required to utilize all accumulated sick, vacation, and compensatory leave, if applicable, when taking leave under the Act. The 12-week entitlement may run concurrently with workers’ compensation leave, provided the employee is otherwise eligible for FMLA leave.

      The University is not permitted to count paid leave that was not for an Act leave purpose against an employee's family leave entitlement. For example, if an employee has taken sick leave on various occasions for a cough, cold, flu, or condition that is not an extended illness, those days may not be counted towards the 12-week entitlement under the Act. If, however, the employee is expecting the birth of a child and has taken leave prior to the birth for prenatal care, the employer may require the employee to use his or her sick and vacation leave, and limit the total amount of time away from the University to a total of 12 weeks. If applicable, the University must inform the employee that paid leave must be taken when an individual requests family leave.

    5. Premium Payments for Medical Insurance

      When an employee is on unpaid family leave, the University will continue to contribute its share of premium sharing for medical/dental insurance as if the employee had continued in employment during the leave. For example, if the employee normally has family medical coverage, the University will continue sharing the cost of the premiums with the employee at the family rate. The employee is required to pay his or her share of the premiums in the same manner required when working. An employee may pay his or her share of premiums of the health plan in any manner customarily used by the University.

    6. Failure of Employee to Pay Share of Insurance

      1. If the employee fails to pay a timely health plan premium, a 30-day grace period will be provided after the agreed upon date for which payment is due. If the employee does not make payment within 30 days, the University may cease to maintain the health coverage on the date the grace period ends. Prior to expiration of the grace period, the University will notify the employee of the discontinuation of insurance coverage.

      2. If the University discontinues health coverage as a result of non-payment of premiums, the employee's group health benefits must be restored to at least the same level and terms as were provided when leave commenced. Therefore, the returning employee shall not be required to meet any qualification requirements, such as a waiting period or pre-existing condition requirements, when the employee has failed to continue his or her health coverage for non-payment of premiums.

      3. If an employee fails to return to work after a period of unpaid family leave, and the University has paid for maintaining health coverage, the University is entitled to recover the premiums paid unless the reason the employee does not return to work is due to 1) continuation of a serious health condition that would entitle the employee to family leave, or 2) other circumstances beyond the control of the employee.

      4. An employee is considered to have returned to work after he or she has worked for a period of 30 calendar days. Therefore, an employee who returns to work for only one week and then departs is not considered to have returned to work for purposes of premium payments. The University may recover health insurance premium payments from certain sums due to the non-returning employee such as travel reimbursement checks, etc., provided that prior to the deduction of any amounts the Office of General Counsel is consulted to ensure that such deduction is appropriate.

    7. Returning Employee

      When an employee returns to work under the Act, he or she is entitled to be restored to the same position held when the leave started, or to an equivalent position with equivalent pay. An equivalent position is one that has the same pay, benefits, and working conditions, and involves the same or substantially similar duties and responsibilities and with the equivalent skill, effort, responsibility, and authority.

    8. Notice by Employer Requirement

      A notice will be posted to notify employees of their rights and responsibilities under the Act. The University must also supply to employees a notice describing the Act which is issued by the Department of Labor (Fact Sheet No. ESA 93-24 which is available from Human Resources).

    9. Rights of Employees

      Employees who exercise their rights under the Act are entitled to do so without restraint and shall not be subject to discharge or discrimination by the employer on the basis of exercising his or her rights under the Act. The employer may not discriminate against an individual for having filed charges, instituted any proceeding under or related to the Act, or given any information in connection with an inquiry or proceeding regarding the Act.

    10. Record Keeping Requirements

      1. The following records must be kept by the University regarding family leave:
        a) Books or records of no less than three years, which contain the basic payroll and identifying employee data, including name, address, occupation, rate of pay, terms of compensation, hours worked, additions and deductions to the wages, and total compensation.
        b) Dates FMLA leave is taken by an employee. The leave must be designated in the records as FMLA leave.
        c) Documentation of family leave taken in increments of less than one full day, as well as hours of the leave.
        d) Copies of the employee notices of leave furnished to the University under the Act, if in writing, and copies of all general and specific notices given to employees under the Act and copies of the regulations that were issued on June 4, 1993.
        e) Any documents describing employee benefits or University policies. This includes written and electronic records regarding the taking of paid and unpaid leave.
        f) Premium payments of employee benefits.
        g) Records of any dispute between the employee and the University regarding any designation of leave as FMLA leave, including any written statements from the University or employee and the reasons for the designation and disagreement.

      2. It should be noted that records and documents relating to medical certifications, recertification, and medical histories of the employee or employee's family members should be maintained in separate files and treated as confidential medical records. Therefore, these records do not go into the employee's personnel file. The medical information may be disclosed to supervisors and managers, if needed, regarding work restrictions; to the first aid and safety personnel if the employee's physical and medical conditions require medical treatment; and to government officials investigating compliance with the Act.

    11. Coordination with Other Leave Entitlement

      The Act regulations state that if an University provides more benefits than required by the Act, the Act will not restrict those benefits. Therefore, benefits such as the sick leave pool and extended disability leave, when available, may be used in conjunction with and count toward the 12 weeks of family leave. It should also be noted that the Act does not restrict or modify any federal or state anti-discrimination law or the employer's obligation to comply with the ADA.

E. Responsibilities

See Policy and Procedures section.

F. Review

This policy shall be reviewed by Human Resources every five years or as legislation changes.

ORIGINALLY APPROVED:  12/01/2001

LAST AMENDED:  05/22/2012

REVIEWED:  AY 2014-15