Family & Medical Leave

1. 1. It is the policy of Delta College to provide a leave of absence to eligible employees in accordance with the Family and Medical Leave Act of 1993. The human resources department will be responsible for determining whether an employee is eligible for FMLA leave and whether the requested leave qualifies for FMLA designation.
   2. An employee may request a leave, or may provide sufficient information to make the College aware of an absence that may be eligible for FMLA protection. The College may seek additional information from the employee in order to determine whether FMLA applies.
      If the College is aware that the reason for an absence from work qualifies under FMLA, the absence must be designated as FMLA leave, even if the employee does not request it.  The department head must notify human resources and provide as much information as possible so that a determination may be made as to whether the leave should be designated as FMLA.
   3. For information regarding forms and FMLA processing, contact the human resources office.

Eligible employees may receive up to a total of 12 weeks, (or a one-time 26 weeks for injured service member care), of leave in a rolling 12-month period measured forward from the start of the current leave.  Employees will be entitled to return to the same or an equivalent position at the conclusion of the leave, if they are able to perform the essential functions of the position with or without reasonable accommodation.

1. 1. To be eligible to take a FMLA leave, an employee must meet all of the following criteria:
      1. The employee must have been employed by the College for at least 12 months. Any portion of a week that the employee is on the payroll counts as a full week for FMLA eligibility. Employment does not have to have been continuous. Hourly employment with the College counts toward fulfilling this requirement.
         1. Separate periods of employment with a break in service exceeding seven (7) years will not be used to determine FMLA eligibility.
      2. The employee must have worked at least 1,250 hours during the 12 months immediately preceding the first day of the FMLA leave. These hours must be actual work hours, not compensated hours.  Hours using any type of paid time off benefits or holiday time do not count.
      3. The 1,250 work hour’s requirement also exists when an employee is reapplying for a FMLA leave for a new 12-month period. The employee must have worked at least 1,250 actual work hours in the 12 months immediately preceding the request for the leave.
      4. The employee must not have already received 12 weeks of FMLA leave in the current 12 month period.
   2. Time in the military service covered under the Uniformed Services Employment and Reemployment Rights Act (USERRA) will count towards fulfilling the length of employment and hours of work requirements to be eligible for a FMLA leave.
   3. Married couples that both work for the College may be limited to a combined total of 12 weeks of leave between them for the birth, adoption or placement of a child or to care for a parent of child with a serious health condition, or a combined 26 weeks to care for a service member.

1. 1. The following reasons qualify an employee for FMLA:
      1. For the birth and care of a newborn child of the employee. In the case of unpaid leave for the birth or placement of a child, intermittent leave or working a reduced schedule is not permitted unless both the College and the employee agree.
      2. For placement with the employee of a son or daughter for adoption or foster care;
      3. To care for any of the following who has a serious health condition: the employee's spouse, son or daughter (under 18 years of age or over 18 if incapable of self-care due to disability), or the employee’s parent
      4. For a serious health condition that renders the employee unable to perform the functions of his or her job;
      5. For a qualifying exigency arising when the employee’s spouse, son, daughter, or parent is on active duty or is called to active duty status in the National Guard, Reserves or regular armed forces in a foreign country. Qualifying exigencies to manage the service member’s affairs are described on the federal Department of Labor (DOL) Certification of Qualifying Exigency for Military Family Leave form located in the human resources office or on-line.
      6. The College must also grant an eligible employee that is a spouse, son, daughter, parent, or next of kin of a current member of the armed forces, including National Guard and Reserves, or family members of veterans who left the military within the previous five years, with a leave to care for the service member with a serious injury or illness incurred in the line of duty that manifested itself before or after the service member became a veteran. The service member may be undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is on the temporary disability retired list for a serious injury or illness.
   2. A serious health condition for purposes of the FMLA includes an illness, injury, impairment or physical or mental condition involving either:
      1. Inpatient care (an overnight stay) in a hospital, hospice, or residential medical-care facility, including any period of incapacity or subsequent treatment in connection with the inpatient care;
      2. Continuing treatment by a health care provider including any one or more of the following:
         1. a period of incapacity of more than 3 consecutive, full calendar days and any subsequent treatment or period of incapacity relating to the same condition that also includes:
            • Treatment 2 or more times by or under the supervision of a health care provider (i.e. in-person visits, the first within 7 days and both within 30 days of the first day of incapacity); or
            • One treatment by a health care provider (i.e.: an in–person visit within 7 days of the first day of incapacity) with a continuing regimen of treatment (e.g., prescription medication, physical therapy); or
         2. Any period of incapacity related to pregnancy or for prenatal care; or
         3. Any period of incapacity or treatment for a chronic condition which requires visits at least twice a year for treatment by a health care provider over an extended period of time and may cause episodic rather than a continuing period of incapacity; or
         4. A permanent or long-term condition for which treatment may not be effective. Active treatment is not required, but supervision by a health care provider is required; or
         5. Conditions requiring multiple treatments by a health care provider including recovery time.

1. 1. An eligible employee may take up to 12 workweeks of leave during a rolling 12-month period measured forward from the start of the current leave. The leave may be continuing, intermittent or based on a reduced schedule depending on the circumstances of the leave.
   2. If the purpose of the leave is to care for a sick family member or one's own serious health condition, the employee may take the leave intermittently or by means of a reduced work schedule. Leave due to qualifying exigencies may also be taken on an intermittent basis.
      1. Intermittent leaves are subject to the qualifications and limitations set forth in the FMLA federal regulations.
      2. Under certain circumstances such as foreseeable or scheduled leave, the department head may place employees who are on an intermittent leave or a reduced work schedule in another position with equivalent pay and benefits. This placement is a temporary transfer and should be discussed with human resources.
      3. When intermittent or reduced schedule leave is taken for planned medical treatment or other foreseeable or scheduled reasons, employees must make a reasonable effort to schedule the appointment, etc. so as not to disrupt College operations.
      4. Intermittent or reduced schedule leave will only be granted for the serious health condition, or military exigency for which the College has received a health care provider’s or the military’s certification on behalf of the employee.
      5. An employee must give notice of intermittent leave in the same manner as the absence notification procedure. Failure to do so will result in the FMLA leave being denied and counted as an absence.
      6. Employees that take intermittent or reduced schedule leave that follows a pattern or trend will be subject to corrective action up to and including discharge. A pattern or trend includes taking intermittent FMLA leave in conjunction with scheduled days off, vacation, or unscheduled holidays.  It will be assumed that an employee that follows any such trend is abusing FMLA leave, unless the employee can prove otherwise.  A pattern or trend exists when an employee does so two or more times, however, one time under certain circumstances can constitute abuse.
      7. When an employee has called off work due to intermittent FMLA, the College expects that the employee will not leave their home except in the event of an emergency or to receive a health care provider’s treatment or care. This means that employees must not be shopping, at other events, or participating in any other activities in lieu of attending work.  Employees that violate this section will be deemed to have abused their leave and will be subject to corrective action up to and including discharge.
      8. Employees that seek paid or unpaid leave and are denied and then report off work for the same period due to intermittent FMLA will be deemed to have abused FMLA leave and will be subject to corrective action up to and including discharge.
      9. Employees must give full and complete information pertaining to the reason for intermittent leave. Stating FMLA or ill is not acceptable.  In these cases FMLA leave will be denied and charged as an absence without leave.
      10. Employees that have chronic conditions that require intermittent leave and have six month certifications that are continuously renewed must submit a new certification at least thirty days prior to the expiration of their current FMLA certification or their FMLA intermittent leave will be delayed.
      11. Employees will only be allowed intermittent or reduced schedule leave based upon their certification. Any absences exceeding the certification will be deemed a non-FMLA absence.
      12. The College may require a second opinion of any leave certification, except for military exigency or an injury that occurs in the line of duty during military operations.
      13. The College may investigate the authenticity of any FMLA leave or suspicion of fraud, including using surveillance.
   3. For the purposes of determining the amount of leave taken by an employee on FMLA, the following days will be counted: (1) the employee’s scheduled shift, including any scheduled or typical overtime hours worked; (2) holidays that occur within a week, if that entire week has been taken by an employee for FMLA; and (3) holidays that the employee was scheduled or expected to work.
   4. When an employee is on a FMLA leave to care for a family member and the leave is terminated by the death of the family member, the employee will be granted the normal time off for funeral/bereavement as described in the respective policy.

1. 1. Medical benefits that the employee had immediately prior to the leave will be maintained during the leave so long as the employee intends to return and does actually return to work.
   2. Employees on a FMLA leave continue to be responsible for paying their share of premiums for benefit plans. Contact the human resources office for more information. Contact the payroll office to arrange for payment.  If the employee fails to pay their share of the premiums the coverage will be terminated with prior notice.
   3. An employee that fails to return to work when a FMLA leave expires may be responsible for reimbursing the College for the full cost of the medical benefits received during the leave based on the circumstances surrounding the reason for failing to return.

1. 1. Employees must follow College procedures for requesting leave and calling in absences. Failure to do so may result in the time not being approved.  Additionally, if an employee simply calls in sick without providing the specific illness/condition and the symptoms requiring the absence, does not timely give notice of the absence, fails to follow the call-in procedure, or does not provide sufficient information as required, the absence may not be designated as FMLA.  Thus, an employee calling off work for FMLA leave may not merely state that the time off is for FMLA or that he/she is “ill.”  Rather, the employee must state specifically why he/she is not able to report for work.  For example, an employee calling off on intermittent leave must state the symptoms that he/she is experiencing or the reason that is the cause for not being able to work and state that the absence is FMLA, such as the employee has a chemotherapy treatment on the date of absence.  In order to qualify for FMLA intermittent leave, the employee must have on file with the human resources office a treating health care provider’s certification indicating chemotherapy as an anticipated need for intermittent leave.  Employees must also be specific when completing their request for absence documentation.
   2. Beginning on the first day of the leave, employees must use all time off accruals as part of the 12-week FMLA leave.
      1. Sick leave must be used first, then, vacation, personal business time, and compensatory time. Use of compensatory time is optional.
      2. The requirement that an employee must use time off accruals to cover FMLA leave applies to any FMLA leave, including a leave that is taken intermittently or through a reduced work schedule.
      3. All time missed in a work day due to a FMLA leave must be charged to time off accruals, including charges to paid time off for partial day absences for salaried exempt employees.
      4. When time off accruals are exhausted, the remainder of the FMLA leave is without pay. This time and the time charged to accrued time off benefits is recorded as FMLA leave.
   3. College service credit continues to accrue during a FMLA leave, however, seniority related benefits do not continue to accrue, unless they accrue for all other disability leaves.

1. 1. If a department requires a fitness for duty certification to be completed and produced on or prior to an employee’s reinstatement, the College will provide to the employee a list of essential job functions when the FMLA leave is designated.
   2. At the conclusion of the leave, the employee will be returned to the same position held at the time the leave began or to an equivalent position with equivalent pay, benefits, and working conditions, e.g., the same shift or the same or an equivalent work schedule.
      1. Employees on a FMLA leave are still subject to a reduction in force or reassignment that would have occurred had the employee been working.
      2. An employee will also be subject to any disciplinary action that would have occurred had the employee been working, or not on FMLA leave. For example, if the employee fails to timely report off work, he/she will receive appropriate corrective action.
   3. Occasionally, the reinstatement of a Key Employee may result in "substantial and grievous economic injury" to the College. In such cases, human resources must approve an exception to the reinstatement rule.  When this occurs, human resources will inform the Key Employee before the leave begins that reinstatement might not be available when he or she returns to work.
      Key Employees are professional and executive staff employees who are among the highest ten percent compensated employees at the College.

1. 1. Employees must provide at least 30 days advance notice of an anticipated FMLA leave. It is understood that under some circumstances it is not practical to provide 30 days’ notice.  In these cases, employees must provide notice as soon as practicable.  In all cases, employees must provide the College with sufficient information and must cooperate fully with the College or risk having the FMLA delayed or denied.
   2. A Request for FMLA Leave form is available from human resources for an employee to apply for FMLA leave. If an employee does not give proper notice of a clearly foreseeable leave or does not cooperate fully with their department head and human resources, the College can delay the leave for up to thirty (30) days after receiving notice of the need for a FMLA leave.

1. 1. Serious Health Conditions
      1. When a FMLA leave is to care for the serious health condition of the employee, a spouse, child, or parent of the employee, the employee must provide medical certification on the applicable Medical Certification form. Whenever possible, the College will request the certification at the time the employee gives notice of leave or within five (5) business days thereafter.  Once requested, it is the employee’s responsibility to provide human resources with the medical certification within 15 calendar days.
      2. If the certification is incomplete or unclear, the employee will be given 7 additional calendar days to provide more complete and/or unambiguous information.
      3. If the certification is still insufficient, the human resources office or a person designated by the human resources office will request that the employee sign an authorization for release of medical information so that the College may contact the employee’s health care provider for clarification. If the College suspects fraud or abuse of FMLA or that the certification is not authentic, the College may contact the employee’s health care provider without having to obtain an authorization for release of information.  At no time may the employee’s immediate supervisor contact the employee’s health care provider.  If an employee fails or refuses to provide an authorization for release of information, FMLA leave may be delayed or denied.
      4. The human resources office may require a second opinion from a health care provider designated by the human resources office. The College will pay the cost of the second opinion.
      5. If there is a difference between the medical certification and the second opinion, human resources may require a third opinion from a mutually agreeable provider. Again, the College will pay the cost of the third opinion.
      6. The College may request a recertification generally no less than every 30 days unless a minimum duration of incapacity has been specified in the certification, in which case recertification generally may not be required until the duration specified has passed. Employees may be asked to recertify the need for the FMLA in less than 30 days if the employee’s condition has changed or if the College suspects fraud or abuse of FMLA leave.  In all events, the Act allows the College to request recertification for an ongoing condition every six (6) months.  If reasonable safety concerns exist, the College may require a certification for an employee returning from intermittent FMLA leave or within 30 days of the employee’s return from continuous leave.
      7. All medical certifications and related information that describe the health or medical history or condition of the employee or family members will be handled as confidential medical information. The information must be stored in a locked file separate from the personnel file.
      8. When certification is requested, it is the employee’s responsibility to provide the employer with timely, complete, and sufficient certification and failure to do so may result in delay or denial of FMLA leave.
   2. Qualifying exigencies
      1. In cases where a FMLA leave is for a qualifying exigency, human resources will provide the employee with a copy of the DOL form Certification of Qualifying Exigency for Military Family Leave that the employee must complete and return.  The completed form along with the documentation that the employee provides will be used to determine if the leave request qualifies and the length of the leave.
         1. Human resources is responsible for coordinating all requests for leaves taken under this provision for a qualifying exigency.
      2. When certification is requested, it is the employee’s responsibility to provide the employer with timely, complete, and sufficient certification and failure to do so may result in delay or denial of FMLA leave.

1. 1. Military Caregiver Leave is FMLA leave to care for a covered service member who has suffered a serious injury or illness in the line of active duty.
   2. A covered service member means a current member of the armed forces, National Guard or Reserves, or a veteran that left the military within the previous five years, who is undergoing treatment, recuperation, is in outpatient status, or is otherwise on the temporary disability retired list for a serious injury or illness incurred in the line of duty on active duty that manifested itself before or after the service member became a veteran.
   3. An employee who has a qualified family relationship with a covered service member may take up to 26 weeks of leave during a single 12 month period. A qualified family relationship is a spouse, parent, child or next of kin.  Contact the human resources office to determine if a qualified family relationship exists.
      1. The leave entitlement described in this paragraph applies on a per-covered service member, per-injury basis, such that an eligible employee may be entitled to take more than one leave if the leave is to care for a different covered service member or to care for the same service member with a subsequent serious illness or injury.
      2. An employee may have a FMLA leave for up to 12 weeks for one of the qualifying reasons identified above in the same 12-month period in which a FMLA leave is taken to care for a covered service member.
      3. No more than 26 weeks total of FMLA leave may be taken within any single 12-month period.
   4. The College will provide the employee with a copy of the DOL Certification for Serious Injury or Illness of Covered Service member for Military Family Leave form to be completed by the employee and an authorized military health care provider of the covered service member. The employee may present certain military certifications such as “Invitational Travel Orders” or “Invitational Travel Authorizations” for purposes of certification that must be accepted by the College.
      1. Recertifications and second or third opinions are not permitted.
      2. If the certification is incomplete or unclear, the employee is to be given 7 additional calendar days to provide more complete information.
      3. The human resources office or a person designated by the human resources office may contact the covered service member’s health care provider for clarification and/or authentication of the medical certification. At no time may the employee’s immediate supervisor contact the health care provider for clarification or authentication.
   5. In all instances when certification is requested, it is the employee’s responsibility to provide the College with complete and sufficient certification. Failure to do so may result in delay or denial of FMLA leave.
   6. The human resources office is responsible for coordinating all requests for leaves taken to care for a covered service member.

The College will not grant an extension of FMLA leave when all FMLA leave time for an individual has been exhausted within the 12 month period.

In the event that an employee is unable to return to work within twelve weeks due to continuing medical reasons the employee may be able to apply for another leave of absence under their applicable collective bargaining agreement or as may otherwise be available through applicable Board policies or state or federal law.

1. 1. It is human resources’ responsibility to designate any absence that meets the eligibility requirements of the FMLA as family/medical leave. The designation of FMLA will occur either as a result of an employee request for FMLA leave or when the College becomes aware that the employee's absence qualifies as FMLA leave, even though the employee may not have requested FMLA leave.
   2. Within five business days of receipt or initiation of an employee’s request for FMLA leave, human resources should notify the employee whether the employee is eligible for FMLA leave.
   3. Upon receipt of enough information to determine whether the employee’s circumstances qualify for a FMLA leave, the College will issue a designation notice to the employee stating whether or not the leave will be designated as FMLA leave.
   4. An employee's FMLA leave may be denied or delayed for the following reasons:
      1. timely advance notice of foreseeable leave is not given;
      2. untimely submission of required and sufficient medical certification by the employee;
      3. the employee fails to provide required fitness to return to work certification;
      4. the employee expresses an intention not to return to work;
      5. the employee fraudulently requests or obtains FMLA;
      6. the employee is abusing the FMLA policy or leave;
      7. the employee’s employment would have been otherwise terminated if not on FMLA leave; or
      8. The employee is employed elsewhere while on FMLA leave.
   5. A FMLA leave should start immediately if a FMLA eligible employee who is under Worker's Compensation for a work-related injury declines a modified position assignment offered under Worker's Compensation.

1. 1. If the human resources fails to designate an employee’s eligible absence as FMLA, it may retroactively designate the absence as FMLA leave if: 1) the employee has been given notice and; 2) either the retroactive designation does not harm the employee, or the department and employee have mutually agreed to retroactively designate the absence as FMLA.
   2. If an employee takes paid sick leave for a condition that progressed into a serious health condition and the employee requests unpaid leave as provided under this policy, Delta College may designate all or some portion of the related leave as FML if the earlier leave meets the necessary qualifications of the FMLA.
   3. The ability to retroactively designate an employee’s absence as FMLA does not apply to absences in which the employee did not give the appropriate amount of notice or did not follow the department’s call-in procedure. 

1. 1. Information about the FMLA will be provided to all employees by posting notices in conspicuous places within the College. Information is also available from the human resources office.
   2. Information concerning the Family and Medical Leave Act of 1993 will be included in any new editions of handbooks or other publications that describe employee benefits or contain policies and practices that are of general interest to employees.

An employee who fraudulently obtains a FMLA leave, who takes a FMLA designated absence for a fraudulent reason, or who abused FMLA leave will be subject to disciplinary action, up to and including termination.

Employees are on notice that when on FMLA leave, they are not to be participating in any activities that contradict their need to be on leave, including, but not limited to working elsewhere, participating in recreational activities, shopping, etc.  To do so will be deemed abuse of FMLA leave and will subject the employee to disciplinary action, up to and including termination.

The College maintains the right to investigate the authenticity of the FMLA certification or leave and to investigate any suspected fraud in its sole discretion including the use of surveillance.

Employees have the right to a prompt investigation and response to a question or problem concerning the application of this policy and the Family and Medical Leave Act of 1993.  If a department head does not satisfactorily resolve the employee's concerns, he or she may take the inquiry or problem to the human resources office for immediate attention.