Human Resources

Board of Trustees Policy

SUBJECT:

Family and Medical Leave Act (FMLA)

NUMBER:
6.13
DATE:
May 13, 2009
SUPERSEDES:
 

Purpose

Montgomery County Community College is a covered employer under the Family and Medical Leave Act of 1993 as amended. The Family and Medical Leave Act (FMLA) is a federal law that was established to assist employees in balancing their work and family life. It was intended and designed to give workers assurance that they will not lose their jobs in order to meet their personal and family obligations or to tend to vital needs at home.

Policy

The Family and Medical Leave Act (FMLA) requires employers to provide 12 weeks of leave or up to 26 weeks of military caregiver leave in a 12 month period, continue health care benefits and provide job protection to eligible employees. FMLA leave will run concurrently with all other College leaves.

The function of the policy is to provide employees with a general description of their FMLA rights. In the event of any conflict between this policy and the applicable law, employees will be afforded all rights required by law.

  1. Eligibility

    Employees are eligible for FMLA leave if they:

    1. Worked for Montgomery County Community College for at least 12 months during the last seven years (unless the break in service is due to a National Guard or reserve military service obligation or a written agreement reflecting Montgomery County Community College’s intention to rehire the employee after the break in service); and
    2. Worked for Montgomery County Community College for at least 1,250 hours during the 12 months immediately preceding their leave date; and,
    3. Work at a Montgomery County Community College worksite that employs at least 50 employees within a 75-mile radius. An employee’s “worksite” is the site to which an employee reports to work or, if none, from which the employee’s work is assigned.
  1. Qualifying Reasons

    Eligible employees may take FMLA leave for any of the following qualifying reasons:

    1. The care of a child following the birth or adoption of the child, or the placement of a foster child; or
    2. The care of a parent, child, domestic partner or spouse with a serious health condition; or
    3. The treatment of an employee’s own serious health condition which makes the employee unable to perform the essential functions of his/her job; or
    4. Incapacity due to pregnancy, prenatal medical care, or child birth; or
    5. The care of a “covered servicemember,” which is defined as a 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, as a result of a serious injury or illness, when the eligible employee is the domestic partner, spouse, son, daughter, parent, or next of kin (i.e. nearest blood relative) of the covered servicemember; or
    6. Any “qualifying exigency” arising because the employee’s parent, child, domestic partner or spouse is on 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. A “serious health condition” is an illness, injury, impairment, or physical or mental condition that causes a period of incapacity resulting in:

    1. The need for inpatient care in a hospital, hospice, or medical care facility, and any subsequent treatment in connection with such inpatient care;
    2. Absence from work, school, or other regular activities for more than three (3) consecutive, full calendar days and requiring continuing treatment or supervision by a healthcare provider at least once within seven days of the first day of incapacity and (i) requires either a regimen of continuing treatment initiated by the health care provider during the first treatment or (ii) a second in-person visit to the health care provider for treatment (the necessity of which is determined by the healthcare provider) within 30 days of the first day of incapacity.
    3. The need for continuing treatment or supervision by a healthcare provider for a condition so serious that, if not treated, would likely result in a period of incapacity of more than three (3) calendar days and requires visits for treatment by a healthcare provider at least twice a year; or
    4. The need for continuing treatment or supervision by a healthcare provider for prenatal care. The employee husband of a pregnant spouse is entitled to FMLA leave for prenatal care.

    A “serious injury or illness” in the case of a covered servicemember means an injury or illness incurred by the servicemember in the line of duty, while on active duty in the Armed Forces, that may render the servicemember medically unfit to perform the duties of the member's office, grade, rank, or rating for which the servicemember is undergoing medical treatment, recuperation, or therapy; or is in outpatient status; or is on the temporary disability retired list.

    A “qualifying exigency” is defined as: short notice deployment; attending military events and activities; arranging for alternative childcare or school activities; addressing financial and legal arrangements; attending counseling; rest and recuperation; attending post-deployment activities within 90 days following the termination of the covered military member’s active duty status; and, addressing other events which arise out of the covered military member’s active duty or call to active duty (provided that the employer and employee agree that such leave shall qualify as exigency, and agree to both the timing and duration of the leave). Employees should consult Human Resources to determine whether an exigency qualifies for FMLA leave.

  1. Leave Period

    Eligible employees may take up to 12 weeks of unpaid leave in a 12-month period, or 26 weeks in a single 12-month period in the event the leave is taken to care for a covered service member, on a per-covered-service member, per-injury basis. The 12-month period is a rolling 12-month period, measured forward from the date the employee intends to commence a requested FMLA leave, or in the case of leave to care for a covered servicemember, measured forward from the date an employee’s leave to care for the covered servicemember began, unless otherwise required by applicable law. If an employee takes military caregiver leave to care for more than one covered servicemember or to care for the same covered servicemember who has incurred a subsequent serious injury or illness, and if the single 12-month periods involved overlap with each other, the employee may take no more than 26 weeks of leave in each single 12-month period. If an employee does not take all of the 26 weeks of military caregiver leave during the applicable single 12-month period, the balance is forfeited and no carry-over is permitted. During any single 12-month period, the employee’s total leave entitlement is limited to a combined total of 26 weeks for all qualifying reasons.

    If Montgomery County Community College employs both spouses, the aggregate FMLA leave taken by both spouses for the same qualifying reason may not exceed 12 weeks, or 26 weeks in the event the leave is taken to care for a covered servicemember.

    Eligible employees may take FMLA leave in full week increments, up to 12 consecutive weeks, or up to 26 consecutive weeks in the event the leave is taken to care for a covered servicemember. Employees also may take intermittent or reduced-schedule FMLA leave where medically necessary for a serious health condition of the employee or a sick family member; to care for a covered service member; or in connection with any qualifying exigency as defined above. In addition, employees may take intermittent or reduced-schedule leave with Montgomery County Community College’s approval for other qualifying reasons. If an employee takes intermittent or reduced-schedule FMLA leave for the serious health condition of the employee or a sick family member, to care for a covered service member, or due to a qualifying exigency, Montgomery County Community College may require that the employee transfer temporarily to an alternative position so as not to unduly disrupt Montgomery County Community College’s operations while the employee is on the reduced or intermittent schedule. An employee who requests intermittent or reduced leave should make a reasonable efforts to schedule the treatment so as not to disrupt the operations of the College.

    Intermittent or reduced-schedule FMLA leave may not be taken in increments of less than one (1) hour. Reduced-schedule or intermittent leave time is calculated as a percentage of the employee’s normal work week. Therefore, an employee who normally works 30 hours per week and takes 10 hours of FMLA leave in one (1) week, will have used one-third (1/3) of a work week of FMLA leave. For employees who work variable hours, the normal work week is determined by the average hours worked per week by the employee during the 12 weeks prior to the start of the employee’s leave.

  1. Continuation of Benefits

    Employees on FMLA leave are entitled to maintain insurance coverage through Montgomery County Community College’s group health plan under the same terms and conditions that apply to employees who are not on leave. Montgomery County Community College reserves the right to recover from the employee any group health plan premium payments it makes during any unpaid portion of the employee’s FMLA leave if the employee fails to return to work at the end of the planned leave period, unless the employee’s failure to return to work was due to circumstances beyond the employee’s control. Use of FMLA leave will not result in the loss of any benefit that accrued prior to the start of an employee’s leave.

  1. Reinstatement

    Upon return from FMLA leave, most employees are entitled to reinstatement in the same or equivalent position with equivalent pay, benefits, and terms and conditions of employment. In some cases, reinstatement may be denied. Reinstatement may be denied if:

    1. Montgomery County Community College eliminates the employee’s position while the employee is on leave and would have eliminated the position even if the employee had not been on leave; or
    2. The employee is a “key employee” (one of the highest paid 10% of all employees within a 75-mile radius of the employee’s worksite) and reinstate­ment of the employee would cause substantial and grievous economic harm to Montgomery County Community College’s operations; or
    3. The employee fails to provide Montgomery County Community College with the required fitness-for-duty certification, as described herein.
  1. Notice and Certification Requirements

    Employees requesting FMLA leave must give 30 days written notice, including the anticipated timing and duration of the leave, if the need for the leave is foreseeable. Where the need for leave is foreseeable due to the active duty or impending call or order to active duty of a parent, child, domestic partner or spouse in support of a contingency operation, employees must give such notice as soon as practicable. Failure to do so will result in denial of leave until proper notice is given. If the need for the leave is not foreseeable, employees must give notice as soon as is practicable under all the circumstances. Employees requesting FMLA leave should complete an FMLA leave application form and return it to Human Resources. Employees must provide sufficient information for Montgomery County Community College to determine if the leave is FMLA-qualifying, and must inform Montgomery County Community College if the requested leave is for a reason for which FMLA leave was previously taken or applied.

    Employees requesting leave (other than to care for a covered servicemember or for a qualifying exigency) will be required to provide medical certification from a health care provider. The Human Resources Department may, after providing the employee with an opportunity to cure any deficiencies, contact the health care provider for verification or clarification of a medical certification. Failure to provide the required pre-leave medical certification may result in denial of leave until such certification is provided. Employees may also be required to provide periodic re-certification, as permitted by applicable law, and/or certification of fitness-for-duty, which must address the employee’s ability to perform essential job functions. If the leave is to care for a covered service member, Montgomery County Community College may require a certification from an authorized health care provider of the covered service member. Montgomery County Community College may seek verification or clarification of the certification.

    The first time an employee requests leave because of a qualifying exigency, Montgomery County Community College will require the employee to provide a copy of the covered military member’s active duty orders or other documentation issued by the military which indicates that the covered military member is on active duty status. Employees requesting leave for a qualifying exigency will be required to provide a certificate including a signed verification or description of appropriate facts sufficient to support the need for leave; the approximate date on which the qualifying exigency commenced or will commence; the beginning and end dates of the absence if on a continuous basis; an estimation of the frequency or duration of the exigency if on an intermittent or reduced schedule basis; and, if the qualifying exigency involves a meeting with a third party, the contact information and brief description of the purpose for the meeting.

    Montgomery County Community College will advise employees requesting a leave of absence whether they are eligible for FMLA leave and whether the requested leave qualifies under the FMLA.

  1. Substitution of Paid Leave

    Once an FMLA leave is granted, Montgomery County Community College leaves will run concurrently with FMLA as specified in the support staff and faculty union contracts.

  1. Complaints

    It is unlawful to, and Montgomery County Community College will not, interfere with, restrain, or deny the exercise of any right provided under the FMLA, or discharge or discriminate against any person for opposing any practice made unlawful by the FMLA, or for involvement in any proceeding under or relating to the FMLA. Employees who believe that their rights under the FMLA have been violated may file a complaint with the United States Department of Labor or bring a private lawsuit.

    This policy statement on The Family and Medical Leave Act of 1993 is intended to summarize the basic provisions of the FMLA. Employees should address specific questions to the Human Resources Department.

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