Family and Medical Leave

Policy 1308
Family and Medical Leave

Date of Current Revision: May 2018
Primary Responsible Officer: Director of Human Resources

1. PURPOSE

It is the objective of James Madison University to provide eligible employees with up to 12 workweeks (60 workdays; 480 work hours) of paid or unpaid, job-protected family or medical leave for specified family and medical reasons in a 12-month period with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to:

Twelve workweeks of paid or unpaid, job-protected family or medical leave in a 12-month period 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 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.
to care for a spouse or a parent who has a serious health condition that involves inpatient care in a hospital, hospice or residential medical care facility.
due to a serious personal health condition/ illness 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 (ADA).
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.

2. AUTHORITY

The Board of Visitors has been authorized by the Commonwealth of Virginia to govern James Madison University. See Code of Virginia § 23.1-1600; § 23.1-1301. The Board has delegated the authority to manage the university to the president.

STATE OR FEDERAL STATUTE AND/OR REGULATIONS
The Family and Medical Leave Act, 29 USC 2601, et seq., mandates that employers with more than 50 employees allow up to 12 or 26 weeks of leave for employees who qualify under certain circumstances.

3. DEFINITIONS

Active Duty
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.

Eligible Employee
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.

NOTE: 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
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
Unpaid job-protected leave for up to 12 workweeks or 480 hours (26 workweeks if the provisions of section 6.6.1(a) apply) for the reasons specified in this policy in conformance with the federal Family and Medical Leave Act (FMLA).

Health Care Benefits
The health insurance program covering eligible employees.

Health Care 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 health care services to 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. This also includes Christian Scientist practitioners listed with the First Church of Christ, Scientist in Boston, although an employee or family member may be required to submit to a medical examination for a second or third opinion (not treatment) from a non-Christian Science practitioner.

Intermittent Leave Schedule
A leave schedule permitting 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.

Key Employee
A salaried FMLA-eligible employee who is among the highest paid 10 percent of all the employees employed by the employer within 75 miles of the employee's agency or facility.

Leave Year
The Department of Human Resource Management (DHRM) has established January 10 – January 9 of the following year as the leave year, including the FMLA leave year.

Military Caregiver Leave
Military caregiver leave allows an eligible employee who is the spouse, son, daughter, parent, or “next of kin” (closest living blood relative) of a covered veteran with a serious injury or illness to take up to a total of 26 workweeks of unpaid leave during a “single 12-month period” to provide care for the veteran.

Parent
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.

Serious Health Condition/ Illness
An illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.

The most common serious health conditions that qualify for FMLA leave are:

conditions requiring an overnight stay in a hospital, hospice or other residential medical care facility.
conditions that incapacitate an employee or family member (for example, unable to work or attend school) for more than three consecutive, full calendar days and require ongoing medical treatment (either multiple appointments with a health care provider, or a single appointment and follow-up care such as prescription medication).
chronic conditions that cause any periods when the employee or family member is incapacitated and require treatment by a health care provider at least twice a year and recur over an extended period of time.
pregnancy (including prenatal medical appointments, incapacity due to morning sickness, and medically required bed rest).
permanent or long-term conditions that cause a period of incapacity for which treatment may not be effective, but which require the continuing supervision of a health care provider.

Son or Daughter
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).

Spouse
Husband or wife as recognized in accordance with Executive Order #30, Marriage Equality in the Commonwealth of Virginia.

4. APPLICABILITY

This policy applies to all eligible university employees.

5. POLICY

The university complies with the Family and Medical Leave Act by providing leave to eligible employees for a qualifying condition under the circumstances described in the law.

6. PROCEDURES

6.1 When requesting family and medical leave for a qualifying condition, the university requires employees to:

provide as much notice to the employer as is reasonable and practicable. A 30-day advance notice is reasonable when the need for leave is foreseeable.
complete the Request for Family and Medical Leave form.
complete the Notice of Eligibility and Rights & Responsibilities form.
provide a health care provider's certification of the medical condition of the person affected, to include contact information for the health care provider, the date when the serious condition/qualifying event began, the probable duration of the serious health condition, appropriate medical facts about the condition, and recommended leave type (intermittent/reduced schedule or continuous).

6.2 Second and Third Opinions

The university may require, at its own expense, a second opinion from its designated or approved health care providers (this health care 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 health care provider designated or approved jointly by the employee and the university.
The opinion of the third health care provider shall be considered final and binding upon the employer and the employee.

6.3 Recertification of Current Leave

The university may require an employee to report periodically during the leave period on his or her leave status and intention to return to work, and to provide subsequent recertification on a reasonable basis.
The university typically reviews each on-going FMLA case quarterly; however, requests for recertification every 30 days and only when the employee is actually absent or has requested to be absent are considered reasonable according to the Family and Medical Leave Act.
Long-term or chronic illnesses will require a new medical certification at the first absence of each new leave year.

6.3.1 JMU reserves the right to review each current FMLA case on an individual basis to determine if recertification is necessary when:

the employee requests an extension to the currently approved leave period.
the circumstances for which the previous certification was issued have changed significantly.
credible information provided casts doubt on the employee’s stated reason for the absences.

6.4 Restoration to Position

At the end of family and medical leave, employees normally are to be reinstated as follows:

The university normally must restore employees to the positions they held (or to an equivalent position) when the leave of absence began unless they are key employees (as defined) in a position that needed to be filled during their absences.
If the previous position has been filled, employees are entitled to restoration to equivalent positions. The standard of equivalence requires comparability and correspondence to duties, terms, conditions and privileges of the employee’s previous position.
The university can require employees to report periodically on their status and intent to return to work and can require certification from health care providers that employees are able to return to work.

6.4.1 If an employee is determined to be a key employee, he or she may be denied restoration when one of the following factors exists:

the university shows that denying restoration "is necessary to prevent substantial and grievous economic injury" to the university's operations.
the university notifies the employee that restoration will be denied at the time the university determines that grievous economic injury would occur.
the employee already has begun the leave and elects not to return to employment within a reasonable time after receiving the university's notice.

6.5 Status of Benefits during Family and Medical Leave
The university will continue to contribute the employer portion of the health insurance premiums of salaried employees who are on leave under the Family and Medical Leave Act as itemized below:

When employees are using paid leave or being paid through a disability plan as appropriate under the provisions of FMLA, the payroll deductions of the employee’s portion of the premiums continue.
When employees are on leave without pay under the provisions of FMLA, their premium contributions will be handled as if they were on leave without pay.

6.5.1 Employees who are on leave under FMLA will pay the same portion of their health insurance premiums as they would if they were not on leave.

Premiums are due to Payroll Services by the first day of each month of coverage.
If employees fail to make premium payments, the university will follow the same procedures to terminate coverage as they would if employees failed to pay premiums while on leave without pay.
If employees fail to return to work at the end of leave under FMLA, the university may recover from them the commonwealth's share of premiums paid during the period of leave. 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 conditions that entitle them to leave to care for themselves or for a family member; or
- other circumstances beyond the employee's control.

EXAMPLES: If an employee fails to return to work secondary to a disabling condition, the university will not seek reimbursement for the commonwealth's contributions for health insurance coverage during the period of leave.

If an employee fails to return to work at the end of FMLA leave because of his or her acceptance of other employment, the university has the authority to seek recovery of the university’s contributions for health insurance coverage during the period of leave.

6.5.2 Performance Increases
Employee eligibility for performance increases will be determined in accordance with performance pay policies and procedures that address leave with and without pay.

6.5.3 Life Insurance
The university will continue to pay life insurance premiums as long as the employee is using paid leave while employees are on family and medical leave. The university will pay for up to 12 weeks if the employee is on a FMLA approved leave without pay.

6.5.4 Leave Accrual
Classified employees will continue to accrue annual leave up to 90 consecutive days. Classified employees will not accrue leave hours during any period of leave without pay.

6.5.6 Retirement

Retirement contributions will be made for any pay period in which qualifying compensation has been received by the employee.
Retirement contributions will not be made for any pay period in which no qualifying compensation has been received by the employee (i.e., the employee was on leave without pay for the entire pay period).

6.5.7 Classified Employee Next Annual Leave Anniversary
When more than 14 consecutive calendar days of unpaid family and medical leave have been taken, an employee will be placed on inactive service status and their next annual leave anniversary date will be advanced according to the length of time taken on unpaid family and medical leave.

6.6 Time Frames for Use of FMLA
Eligible full-time employees may take up to 12 workweeks (26 workweeks if the provisions of section 6.6.1(a) apply) (60/130 workdays; 480/1040 hours) of family and medical leave in the FMLA year (January 10 - January 9). The time missed from work for FMLA leave cannot exceed 12 or 26 weeks in the FMLA year.

6.6.1 FMLA for Eligible Full-Time Employees
Eligible full-time employees may take up to 12 workweeks (60 workdays; 480 work hours) of paid or unpaid family and medical leave for the following reasons:

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 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,
to care for a spouse or a parent who has a serious health condition that involves inpatient care in hospital, hospice or residential medical care facility; or continuing treatment by a health-care provider.
due to a serious personal health condition/illness 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 (ADA).
an employee who commences leave as the result of a workers’ compensation claim may have that time counted toward his or her 12 workweeks of family and medical leave.
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.

6.6.1(a) Eligible full-time employees may take up to 26 weeks (130 workdays; 1,040 work hours) 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 in a single 12-month period.

6.6.2 FMLA for Eligible Part-Time Employees
Eligible part-time employees may take up to 12 weeks (480 work hours) of family and medical leave in the FMLA year for the reasons listed in 6.6.1. Eligible part-time employees may take up to 26 weeks of family and medical leave in a single 12-month period for the reasons listed in 6.6.1(a). Actual hours taken will be counted on a prorated basis corresponding to the percentage of hours the employees normally are scheduled to work during the 365-day period prior to the date family and medical leave is to begin.

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, if intermittent leave is taken, the employee may take up to 300 hours of family and medical leave in a leave year.

6.7 Restricted Use of Family and Medical Leave
Family and Medical 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.

6.7.1 When both spouses work for the university, the full amount of leave may be limited to a combined total of 12 workweeks, if the leave is taken for the birth of the employee’s son or daughter or to care for the child after birth; for placement of a son or daughter 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 use a portion of the total 12-week FMLA leave entitlement for one of the above purposes, the spouse would each be entitled to the difference between the amounts each has taken individually and 12 weeks for FMLA leave for a purpose other than those listed in this section. The mother may incur a period of disability in the case of pregnancy and childbirth. This period would be considered FMLA leave for her own serious health condition and would not be subject to the combined limit.

When both spouses work for the university, the full amount of leave may be limited to a combined total of 26 weeks to care for a child, parent or nearest blood relative with an illness or injury incurred in the line of duty while active in the Armed Forces.

6.8 Paid Leave
Classified employees have the option of using paid leave, as appropriate under each particular leave policy, for absences covered under family and medical leave (except in cases of intermittent or reduced schedule, see 6.9). The university may designate such leave as family and medical leave if it meets the conditions described above.

6.8.1 Employees who are approved for FMLA leave may use up to 33% of their personal sick leave hours held at the beginning of the FMLA leave to care for a spouse, child or parent. Consistent with existing policy, agencies may require certification of need before granting family and medical leave.

6.8.2 Non-VSDP employees NOTE: Other leave policies have not changed as a result of implementing this policy. For example, employees still are eligible to use only up to 48 hours of sick leave for short-term family illnesses in a leave year. This applies only to full-time classified employees and part-time classified employees.

If classified employees use their accrued paid leave balances for purposes described in this policy, then the university is required to provide only the number of unpaid work days that, when combined with the number of days of other leave taken, equal a total of 60/130 work days or 480/1040 work hours.

Non-VSDP EXAMPLE: A classified employee uses six days of sick leave and 15 days of annual leave to care for a parent who has a serious health condition. The university must allow him or her to take 39 days of unpaid leave.

6.8.3 Instructional, administrative & professional and eligible part-time faculty members not participating in VSDP are eligible to receive 12 weeks of paid time off with peer coverage for the conditions listed above.

6.9 Intermittent Leave or Reduced Schedule
Employees may take intermittent leave or work a reduced schedule not to exceed 480/ 1040 hours for full-time employees as follows:

When medically necessary because of an eligible employee's own serious health condition/illness or the serious health condition/illness of a child, spouse or parent, or other qualifying event an employee may take family or medical leave on an intermittent leave basis or a reduced schedule as indicated below:
- Intermittent Leave Schedule: A leave schedule permitting 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.
- NOTE: Employees may be required to provide medical certification that intermittent leave is necessary.
- Reduced Schedule: A leave schedule permitting the employee to reduce the typical number of hours worked per workweek or per workday.
Classified 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.
Classified employees do not accrue leave when they fall into a time loss status during intermittent family and medical leave.
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.
Eligible employees may take up to 26 weeks (1,040 hours) of FMLA for reasons listed in 6.6.1 (a).

7. RESPONSIBILITIES

Employees are responsible for submitting a request for family and medical leave at least 30 days before the anticipated beginning of the family and medical leave, unless emergencies or unforeseen events preclude such advance notice to his/ her supervisor.

Human Resources is responsible for:

reviewing all requests for the eligibility to take up to 12 or 26 workweeks of family leave during the leave year for the reasons stated in this policy.
determining whether a physician’s certification must be required for leave that is requested for an employee's serious health condition.
qualifying a family member's serious health condition or Military Caregiver leave before granting family and medical leave.
notifying key employees before they begin family and medical leave that they may be denied restoration to their positions as outlined in this policy.
informing supervisors and managers regarding necessary restrictions on work duties and necessary accommodations where appropriate.
providing information, where appropriate, to government officials investigating compliance with FMLA (or other pertinent laws).
keeping and preserving records pertaining to obligations under FMLA.
- 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 documents (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 designation of leave as FMLA leave, including any written statement from the university or employee of the reasons for the designation and for the disagreement.
  - 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:
    1. Supervisors and managers may be informed regarding necessary restrictions on the work or duties of an employee and necessary accommodations;
    2. First aid and safety personnel may be informed (when appropriate) if the employee’s physical or medical condition might require emergency treatment; and
    3. Government officials investigating compliance with FMLA (or other pertinent law) shall be provided relevant information upon request.
  All departments, offices and employees that generate, receive or maintain public records under the terms of this policy are also responsible for compliance with Policy 1109-Records Management.

8. SANCTIONS

Sanctions will be commensurate with the severity and/or frequency of the offense and may include termination. This includes employees who willfully attempt to take family and medical leave for conditions other than those allowed by this policy as well as supervisors who do not adhere specifically to this policy when dealing with FMLA related matters.

9. EXCLUSIONS

Certain employees, as described above, are not covered by the Family and Medical Leave Act. These include, for instance, employees who have been employed at the university for less than 12 months.

10. INTERPRETATION

The authority to interpret this policy rests with the president and is generally delegated to the director of human resources.

Previous version: August 2015
Approved by the President: May 2002