Family and Medical Leave (FML) Act

A.

Eligibility

An employee is eligible for FML if the employee:

·

has at least 12 months of UC service (all prior University service and military leave granted by the University (need not be continuous), including service with and military leave granted by the Department of Energy Laboratories, shall be used to calculate the 12 month service requirement); and

·

has actually worked 1,250 hours during the 12-month period prior to the FML start date. Paid leave (e.g., vacation and sick leave) does not count towards hours actually worked.  (For employees granted military leave, all hours that would have been worked had the employee not been ordered to military duty shall be used to calculate 1,250 actual hours of work requirement.)

For FLSA exempt employees, departments should assume they are eligible for FML if they have 12 or more months of University service, unless there are written records that indicate they have worked less than the required 1,250 hours.

B.

Reasons for Leave

Employers are required to grant leave to eligible employees:

·

For the birth of a son or daughter, and to care for a newborn child. An expectant mother may take FML before the birth of the child for prenatal care or if her condition makes her unable to work

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For placement with the employee of a son or daughter for adoption or foster care. The employee may take FML before the actual placement if an absence from work is required for the placement for adoption or foster care to proceed.

·

To care for the employee’s spouse/domestic partner, same- or opposite-sex domestic partner, son, daughter, or parent with a serious health condition. This does not include "in-laws."

·

Because of a serious health condition that makes the employee unable to perform the functions of his or her job.

The right to take FML applies equally to male and female employees.

C.

A Serious Health Condition is defined as any illness, injury, impairment, or physical or mental condition that involves:

·

any period of incapacity or treatment in connection with or consequent to an overnight stay in a hospital, hospice, or residential medical care facility; or

·

continuing treatment by a health care provider for one or more of the following:

®

any period of incapacity for more than three consecutive calendar days that also involves treatment two or more times or treatment on at least one occasion which results in a regimen of continuing treatment under the supervision of a health care provider.

®

any period of incapacity due to pregnancy, for prenatal care.

®

any period of incapacity due to a chronic serious health condition that requires periodic visits for treatment; continues over an extended period of time; and may cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).

®

any period of incapacity which is long-term due to a condition for which treatment may not be effective (e.g., Alzheimer’s disease).

®

any period of absence required to receive multiple treatments (including the period of recovery) either for restorative surgery after an accident or other injury, or for a chronic condition such as cancer or kidney disease.

A Serious Health Condition Is Not:

·

allergies, stress, or substance abuse treatment unless inpatient hospital care is required, or the patient is incapacitated for more than three calendar days and is under the continuing care of a health care provider, or the patient has a serious long-term health condition; or

·

voluntary treatment or surgery unless inpatient hospital care is required.

D.

Family Member Defined

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A son or daughter is a biological, adopted or foster child, a legal ward, or a child for whom the employee has day-to-day responsibility to care for and financially support (i.e. loco parentis status).

·

The employee applying for FML, based on loco parentis status, need not have sole responsibility to care and financially support the child.  It may be a shared responsibility.

·

A parent is a biological, adopted or foster parent, an individual who assumed the day-to-day responsibility to care for and financially support the employee while he/she was a child (i.e. loco parentis status).

·

The department may require a declaration of relationship for FML.  The Declaration of Relationship (for Family and In Loco Parentis Medical Leave Purposes) form is included in the FML Packet.

E.

Medical Certification

Departments should require written certification (form available from Human Resources) from a health care provider for either the employee's own serious health condition or the serious health condition of the employee's family member.

·

When the leave is foreseeable and at least 30 days notice has been provided, the employee should provide the medical certification before the leave begins.

·

When less than 30 days notice has been provided, the employee must provide the medical certification within 15 calendar days of the employer's request for certification.

If the department questions the validity of a medical certification, the department may require the employee to obtain a second opinion (from a health care provider selected by the department, not employed by the University) at the department's expense.  If the first and second medical opinions differ, the department may require the employee to obtain certification from a third health care provider (approved jointly by the employee and the department), again at the department's expense.  This third opinion shall be final and binding.  Pending receipt of the second (or third) medical opinion, the employee is provisionally entitled to the FML.

F.

Return to Work Certification

An employee who is granted leave for the employee's own serious health condition may be required to present return to work medical certification (form available from Human Resources) prior to returning to work.

G.

Amount of Leave

An eligible employee is entitled to a total of 12 workweeks of leave during a calendar year.  Regular status employees covered by the Personnel Policies for Staff Members (i.e., non-represented) may also be entitled to supplemental FML for up to 12 additional workweeks (see Policy 43).

FML may take the form of one continuous leave of absence, a reduced work schedule, or intermittent leave (e.g., a weekly doctor’s appointment for treatment of a serious health condition).  In the case of intermittent leave or a reduced work schedule, departments may require the employee to transfer temporarily to an available alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee’s regular position.  The alternative position must have equivalent pay and benefits; benefits such as vacation leave may be reduced proportionate to hours worked, but benefits which otherwise would not be provided to part-time employees may not be eliminated.

Up to 12 workweeks of pregnancy disability leave shall run concurrently with FML under federal law.  Upon termination of a pregnancy disability leave that runs concurrently with federal FML, an employee is also entitled to up to 12 workweeks of state FML for any covered reason except pregnancy or related medical conditions (see applicable personnel policy or collective bargaining agreement).  Total leave taken should not exceed seven months in a year.

H.

Paid vs. Unpaid FML

FML is unpaid leave, except under the following circumstances:

·

Vacation Leave: Accrued vacation may be used at the employee’s option for leave granted for the employee’s own serious health condition; for pregnancy disability; for parental leave granted to care for a newborn, adopted, or foster child; or for family illness leave to care for the employee’s child, spouse/domestic partner, domestic partner, or parent with a serious health condition.  Except that an employee shall be required to use at least 10 percent of accrued vacation prior to taking a family illness leave or parental leave without pay if the employee’s vacation accrual balance is at maximum. 

·

Sick Leave: At the employee’s option, accrued sick leave may be used in the event that the employee is taking leave due to his or her own serious health condition, or up to 30 days sick leave in the event that the leave is being used to care for the employee’s child, spouse/domestic partner, domestic partner, or parent with a serious health condition.

·

Compensatory Time: The department may not require the employee to substitute compensatory time off for unpaid FML. The employee may request to do so; however, if the department permits use of compensatory time off for FML purposes, the absence may not be counted against the employee’s FML entitlement.

I.

Advance Notice

Thirty days advance notice is required if the employee’s need for FML is foreseeable (e.g., the birth of a child or a planned medical treatment). If the employee fails to provide 30 days notice for a foreseeable leave, the department may deny leave until 30 days after the employee provides notice.

If the employee’s need for leave is not foreseeable, he or she should provide notice within a reasonable time after learning of the need for leave.

J.

Benefits

Coverage under any group health plan (medical, dental, optical) will be maintained during FML (up to 12 workweeks) to the extent coverage would be maintained if the employee were still working. The employee is responsible for arranging with the Payroll office for the payment of the employee portion of any premiums that are not fully covered by a University contribution. Failure to pay the employee portion of the premiums within 30 days of the due date will result in cancellation of the employee’s enrollment.

If the employee does not return to work at the conclusion of the approved FML, he or she will be liable for payment of the health plan premiums paid by the University during any unpaid portion of the leave. However, the employee will not be liable for the premiums if his or her failure to return to work is due to continuation of his or her own serious health condition, or other reasons beyond the employee’s control.

K.

Reinstatement

On return from FML, an employee is entitled by law to be returned to the same position the employee held when leave commenced, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. An employee has no greater right to reinstatement than if the employee had been continuously employed during the FML period. An employee is not entitled to reinstatement if his or her appointment end date occurs before the scheduled return date from FML.

L.

Procedures

Step 1:  Identify FML.

Anytime an employee requests or takes paid or unpaid leave (including a reduced leave schedule or intermittent leave that appears to qualify as FML), the department should:

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review the provisions of these Basic Requirements and the applicable personnel policies or collective bargaining agreement;

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determine whether the employee meets the eligibility requirements; and

·

determine whether the leave qualifies as FML.

If the department does not have sufficient information about the reason for an employee’s leave, the department should inquire further of the employee or the employee’s spokesperson to ascertain whether the leave is potentially FML. Determining whether leave qualifies as FML can be complicated. If the department has questions about whether or not the leave is covered, the department should contact Human Resources.

The employee does not need to request the leave in writing nor specifically mention family and medical leave to be entitled to FML; in all circumstances it is the department’s responsibility to designate leave as FML and to give notice of the designation to the employee.

Step 2:  Determine when the FML actually begins.

In most cases, FML begins on the same day the employee begins his/her leave. However, there are a few exceptions:

·

If the department has the requisite knowledge to make a determination that the leave is for an FML reason at the time the employee gives notice, and fails to provide notice designating the leave as FML within two business days, the leave may not be designated as FML retroactively. In this case, FML begins when the FML notice is given.

·

When an employee takes sick leave that turns into a serious health condition (e.g., bronchitis that turns into bronchial pneumonia), the FML begins when the serious health condition begins, as long as the department provides FML notice within two business days of finding out about the serious health condition.

If the department learns that leave is for an FML-required purpose after the leave has begun, the leave may be counted as FML retroactively.

Step 3:  Provide FML notice.

The department must notify the employee, either orally or in writing, that the leave is designated as FML within two business days of the date the leave was requested (or if the leave was not requested, within two business days of the commencement of the leave). If the notice is oral, it must be followed up in writing by no later than the payday following the employee’s request for leave. To provide written notice, the department should present the employee, by mail or in person, the following documents:

·

Cover memo provisionally designating the leave as FML;

·

Leave of Absence Request form (available from Human Resources);

·

Medical Certification form (available from Human Resources);

·

Declaration of Relationship (for Family and In Loco Parentis Medical Leave Purposes) form (available from Human Resources);

·

Your Rights and Obligations under the Federal Family and Medical Leave Act of 1993; and

·

University of California Family and Medical Leave Benefits Checklist (available from the Benefits Office).

Step 4:  Once the employee returns the completed forms, complete the Employer portion of the Leave of Absence Request form.

Once the employee has completed the Employee section of the Leave of Absence Request form and returned it to the department, the department should complete the Employer section and send a copy of the completed and signed form back to the employee. A copy should also go to the Payroll and Benefits Office to ensure continuation of benefits coverage.

If begin and end dates are uncertain, (e.g., in the case of pregnancy disability leave beginning with the birth of the employee’s child) a notation should be made on the form indicating that the dates are approximate, and actual dates noted as soon as they’re known.

Step 5:  Follow up if the employee fails to return the forms within 15 days.

If the department does not receive a completed Medical Certification and/or a Leave of Absence Request form back from the employee, the department should complete the entire Leave of Absence Request form as best as possible, and send a copy to the employee with a follow-up memo and another blank Medical Certification form. If the department still does not receive a completed Medical Certification from the employee within 15 days of the second request, the department should contact Labor Relations.

Step 6:  Determine if an FLSA exempt employee will be taking intermittent leave or a reduced work schedule.

If an FLSA exempt employee will be taking intermittent leave or a reduced work schedule, a Record of Reduced Work/Intermittent Leave Schedule for Exempt Employees form must be completed and maintained by the department.

Step 7:  Update the Payroll/Personnel System (PPS)

The department should update the employee’s PPS data to reflect the leave of absence. The LOA Type code should be “15” for leaves of absence without pay and “16” for leaves with pay, except in the cases of pregnancy disability, workers’ compensation, or extended illness (when the LOA Type code should be 04, 09, or 05, respectively).

Step 8:  Track FML.

The UCR Time Record form (UPAY 100R), which is used for time keeping, should also be used to record/track actual paid and unpaid FML taken. In addition to recording the number of hours of leave under the appropriate column (e.g., sick leave, leave without pay), the department or employee shall also record “FM” under the “Other Leave” column. Departments should make deductions from exempt employees’ leave banks and/or salaries in increments smaller than one day for the purposes of FML only.

When a Time Record is not automatically generated by Payroll due to a leave without pay over the period of an entire month or more, the department must still complete a blank Time Record form.  Departments are responsible for tracking employees’ FML and ensuring all FML hours are recorded as such.

Step 9:  Maintain FML records.

Home departments are the “Office of Record” for all FML records, which must be filed separately from the employee’s regular personnel file. FML records must be kept for at least three years and, upon request, be made available for inspection, copying, and transcription by representatives of the Department of Labor.  Records that must be maintained are listed below.

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Copies of cover memos provided to the employee provisionally designating leave as FML.

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Leave of Absence Request forms. If leave is taken in increments of less than one full day, the hours of the leave must be recorded.

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Time Record forms showing dates FML is taken. Leave must be designated in these records as FML.

·

Record of Reduced Work/Intermittent Leave Schedule for Exempt Employees forms.

·

Declaration of Relationship (for Family and In Loco Parentis Medical Leave Purposes) form, if applicable.

·

Copies of employee’s notice(s) of leave furnished to the department, if in writing.

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Medical certifications, re-certifications, or medical histories of an employee or the employee’s family members.

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Any other records relating to FML.