Family and Medical Leave (FMLA)

The College has developed this Family Medical Leave Act ("FMLA") policy (the "Policy") in order to provide its employees with important information about their rights and responsibilities under the FMLA. Any employee who requests FMLA leave will be provided with a copy of this policy and the employee is expected to read and comply with its terms and conditions. The FMLA is a federal law and nothing in this Policy should be interpreted in a manner inconsistent with the FMLA and related federal regulations. Attached hereto as Appendix B, is the U.S. Deparfrnent of Labor's official notice regarding the rights of employees. A copy of Appendix B is also posted in the Office of Human Resources.     

Policy: In compliance with the FMLA, eligible employees will be granted up to 12 or 26 weeks of unpaid leave (which may run concurrently with certain paid leave) per 12-month period, depending on the reason for taking the leave and the employee's compliance with the procedures in this Policy. Employees must separately request FMLA leave for each reason that leave is needed. An employee cannot apply FMLA leave granted for one particular situation to a separate and distinct situation.

FMLA Eligibility: An employee must have been employed by the College for at least 12 months in total (need not be consecutive), have worked at least 1,250 hours during the 12 month period immediately preceding the commencement of the leave, and must be employed at a work site where 50 or more employees are employed by the College at that location or within 75 miles of that work site.

Time that an employee has been away from work for any qualified military purpose shall be counted toward the employee's 12 month/1,250 hour minimum requirements.

Available Leave: An FMLA leave of absence is an approved absence available to eligible employees for up to 26 weeks per 12-month period for Military Caregiver purposes and up to 12 weeks of leave per 12-month period for all other qualifying FMLA purposes.

For most FMLA leaves, the 12-month period will be a "rolling" 12-month period measured backward from the date the employee seeks to use the leave. Under this rolling method, each time you use FMLA leave, your remaining leave entitlement will be the balance of the 12 weeks (or 26 weeks, as applicable) that has not been used during the immediately preceding 12 months.

For Military Caregiver leave, the 12-month period will be a 12-month period measured forward from the date an employee first uses the leave. Thus, for example, if an employee exhausted the employee's 12 weeks of FMLA leave during the preceding 12-month period, but then requested -Military Caregiver leave, the employee would be preliminarily eligible for the leave because the 12-month period for this type of leave commences on the first day of such leave and runs forward for the next 12 months.

In general, eligible employees may not take more than a combined total of twenty-six (26) weeks of

FMLA leave and FMLA Military Caregiver Leave in a 12-month period; however, because regular FMLA and FMLA Military Caregiver Leave use different 12-month periods, there are exceptions to this rule. Please consult the College's Human Resources Department for more information.

Also, spouses employed by the College are jointly entitled to a combined total of 12 weeks of regular FMLA leave for the birth or the placement for adoption or foster care of a new child, but it must conclude within 12 months of the birth or placement.

Paid v. Unpaid Leave: Employees who use FMLA must use and exhaust all accumulated, but unused, paid sick leave, which will run concurrently with any part of the FMLA leave. If an employee elects to use any accumulated, but unused paid vacation leave as part of the FMLA leave, said vacation leave also runs concurrently with any part of the FMLA leave. Additionally, FMLA leave due to an employee's own serious health condition shall run concurrently with any available leave of absence for which the employee is receiving Short Tenn Disability benefits or workers' compensation benefits. In the event that an Employee exhausts paid sick leave and/or vacation leave, and has not started receiving Short Term Disability benefits or workers' compensation benefits, such that any portion of FMLA leave is effectively unpaid, the College will pay up to two (2) weeks of FMLA leave at the employee's base rate of pay.

Non-Military FMLA Leave: Leave may be taken under the following circumstances:

1. Upon the birth or placement of an employee's son or daughter, to bond with a newbom or newly placed son or daughter (this leave opportunity ends 12 months after the date of the birth or placement).
2. When the employee is needed to care for a son, daughter, spouse or parent who has a serious health condition. A son or daughter is a biological, adopted, or foster child, a stepchild, a legal ward, or a child for whom the employee stands in loco parentis, (in place of a parent). Care for a "parent-in-law" is not covered under the FMLA.
3. When the employee is unable to perform the essential functions of his/her position because of a serious health condition.

Military FMLA Leave - Qualified Exigency: In those instances where an employee is the spouse, son, daughter, parent, or designated next of kin of a member of the Armed Forces, National Guard or Reserves, such employee will qualify for a "qualified exigency leave" if the service member is on "active duty" or has been notified of an impending call or order to "active duty." "Active duty" shall be defined as deployment to any foreign country.

The categories of qualifying exigencies for which leave may be taken are:

1. Short-notice deployment;
2. Military events and related activities;
3. Childcare and school activities;
4. To make financial and/or legal arrangements;
5. To undergo counseling;
6. For rest and recuperation;
7. For post-deployment activities;
8. To care for a parent of a covered military member who is incapable of self-care; and
9. Miscellaneous additional activities

The College reserves the right to require the employee to produce military orders and/or related documentation confirming the need for Military Exigency Leave.

Military FMLA Leave – Caregiver: Military Caregiver Leave will be granted for up to twenty-six (26) weeks to eligible employees who are themselves a qualifying covered service member with a serious injury or illness or who are the spouse, child, parent, or next of kin (as those terms are defined by the law) caring for a qualifying covered service member with a serious injury or illness during a 12-month period.

The term "covered service member" shall be defined in accordance with the FMLA and related federal regulations and shall generally include members of the Armed Services, National Guard and Reserves, as well as any veteran of the Armed Services, National Guard and Reserves who has been honorably discharged during the five (5) year period immediately preceding the employee's request for FMLA leave. The term "serious illness or injury" shall be defined in accordance with the FMLA and related federal regulations.   

Medical Certification: The College requires a certification from a health care provider to support all requests for FMLA leave involving a serious health condition of the employee or the employee's family member.

For non-military leave, the College may, at its discretion, require a second opinion from a health care provider at its own expense and periodic re-certifications. If the first and second opinions differ, the

College, at its own expense, may require the binding opinion of a third health care provider, approved jointly by the College and the employee requesting the leave.

The terms "serious health condition" and "health care provider" shall be defined in accordance with the FMLA and related federal regulations, as discussed in Appendix A attached hereto.

Other Certifications: The College requires other types of certifications when an employee requests leave for a military exigency or the birth or placement of a son or daughter.

Status of Benefits During Leave: Taking FMLA leave will not result in the loss of any benefits accrued before the date the leave started. Group Health benefits will be continued during the leave, but employees will be required to pay the usual employee contribution, if any, during the FMLA leave.

Also, the employee is eligible to continue in the College's other benefit plans, so long as the employee satisfies the requirements and the terms and conditions of each able Plan during the leave. The employee will be required to pay the usual employee confribution, if any.

To ensure payment of the employee's share for such benefits while on FMLA leave, the following procedures apply:

If the employee is taking paid leave concurrent with FMLA leave, the cost of such benefits will be deducted from the employee's pay.

If the employee is taking unpaid FMLA leave, the College will pay the employee's share of the cost for such benefits, if any, during the period of unpaid FMLA leave. At the conclusion of the leave, the College is entitled to recover from the employee the amounts College paid for the employee's share of such benefits during the leave, whether or not the employee returns to work.

If the employee fails to return to work from FMLA leave for at least 30 days for a reason other than the continuation, recurrence, or onset of a serious health condition of the employee, employee's family member, or a service member that would otherwise entitle the employee to FMLA leave, or due to other circumstances beyond the employee's control, then the College also may seek to recover from the employee the employer's share of the premiums it paid during the FMLA leave to maintain the employee's Group Health benefits (in addition to the employee's unpaid premiums, if any).

Foreseeable Leave: When the need for leave is foreseeable for a birth or placement of a child or for planned medical treatment, an employee must give the College at least 30 days written notice before the date the leave is to begin.

If the leave is foreseeable based on planned medical treatment, the employee must make a reasonable effort to schedule the treatment so as not to unduly disrupt the business operations of the College, subject to the approval of the health care provider of the employee or his/her child, spouse or parent.

Unforeseeable Leave: If the need for FMLA leave is not foreseeable, or 30 days advance notice is not practicable, employees must provide notice as soon as practicable, i.e., generally within one to two business days of learning that the leave is needed. Failure to provide appropriate notice may result in a delay of the leave.   

Procedure:

1. Employees requiring any type of FMLA Leave must complete a Notification of Need for FMLA Leave form, even if they have provided oral notice of the need for leave. The form must be completed by the employee, in detail, signed by the employee, and submitted to the Human Resources Representative.
2. Within five days of a request for leave, the employee will be given a letter stating whether or not the employee is preliminarily eligible for FMLA leave. If leave is requested for a serious health condition, qualified exigency leave or military caregiver leaves, separate forms must be completed in order for final FMLA eligibility to be determined. The employee will also be provided with a copy of his/her job description, which must be given to the employee's health care provider for purposes of assessing the employee's fitness for duty when returning to work (if the FMLA leave is for the employee's own medical condition).
3. Copies of the necessary form(s) may be obtained from the Human Resources

Certification: An employee who applies for leave based on an employee's or family member's serious health condition, qualified exigency leave or military caregiver leave must submit to the Office of Human Resources a certification form for each such leave completed by a health care provider. The form must be submitted within fifteen (15) days after the date of the letter by which the Office of Human Resources provides the the certification form to the employee (or within any extension granted by the College for good cause).

Failure by the employee to return his/her fully completed certification in a timely manner may result in the delay of FMLA benefits which, in turn, can lead to the accrual of unexcused absences. Unexcused absences will be treated in accordance with the College's attendance policy and may lead to discipline, up to and including termination.

Recertification Requirements: Employees provide updated certification forms to the College every 30 days when an FMLA leave is for an indefinite period of time. If the leave is for a definite period of time between 30 days and six. months, then recertification will be required at end of the initial certified leave period. For leaves that last longer than six months, recertification shall be required every six months. The College also reserves the rights to request recertification forms at shorter intervals than those described above in the event that the employee (1) requests an extension of FMLA leave, (2) the employee's use of intermittent FMLA leave significantly changes, or (3) the College receives information that casts doubt on the validity of the employee's use of FMLA leave.

Leave Period(s): FMLA leave generally should be taken in blocks of time; however, if medically necessary for a serious health condition of the employee or his/her spouse, child or parent, leave may be taken on an intermittent or reduced leave schedule when such a schedule best accommodates the medical need.

Intermittent or Reduced Work Schedule Leave: If and only (1) if it is medically necessary (which does not include voluntary treatments and procedures), and (2) such medical need can be best accommodated through an intermittent or reduced work schedule, FMLA leave may be taken on an intermittent or reduced work schedule basis. If leave is requested on an intermittent or reduced schedule basis, however, the College may require the employee to transfer temporarily to an alternate position which better accommodates recurring periods of absence or a part-time schedule, provided that the position has equivalent pay and benefits.

Intermittent or reduced schedule leave will be counted as to the time actually used, and will be applied toward the 12 workweek maximum during a rolling 12 month period (or the 26 workweek maximum for Military Caregiver Leave during the fixed 12-month period).

If leave is for birth and care of a newborn child or placement of a child, use of intermittent leave is subject to the College's prior approval.

Employees should make every reasonable effort to schedule medical appointments and proceduresaround their regular work schedule. This means that if employees can schedule their or their family member's appointments during non-work hours, they should do so whenever possible in order to not interfere with their work day. Failure to do so will be considered a violation of this leave policy. Furthermore, the employee must, where practicable, inform the College about his/her anticipated treatment schedule and the reasons for his/her proposed schedule. The employee must explain the medical reason for an intermittent or reduced schedule leave and the employee must support his/her reason with the appropriate Certification of Health Care Provider. Abuse of intermittent leave will not be tolerated.

Intermittent Leave Call-Off Procedure: Employees who take off work on an intermittent basis should personally inform the Office of Human Resources of the need to utilize FMLA leave prior to taking intermittent leave, if at all possible. If the Employee suffers from an emergency situation and is not able to personally notify the Office of Human Resources or their supervisor by the day before the absence, the Employee should notify the Office of Human Resources or their supervisor at least one hour before the Employee's scheduled start time and tell the Office of Human Resources or their supervisor that he/she will be off work due to his/her FMLA intermittent leave certification. If it is simply not possible to personally call in for a good reason before the start of the Employee's shift, the Employee should personally notify the Office of Human Resources or their supervisor as soon as practicable (generally within one day of taking their leave) that the leave was related to his/her FMLA intermittent leave certification.

If the employee is not able to personally provide the foregoing notification for good reason, the employee may designate a third party to provide the notification; however, the employee must follow up with personal notification as soon as the employee is able to provide the notification.

If the Employee fails to provide any of the above notifications, the time-off will not be considered FMLA leave.

Return to Work Fitness for Duty: Employees returning from a FMLA leave due to their own serious health condition must submit a certification of fitness for duty from their health care provider before returning to work. The employee's failure to provide a fitness for duty form will delay the employee's ability to return to work.

The College also reserves the right to require employees using intermittent FMLA leave to submit fitness for duty forms up to once every 30 days when the College reasonably believes that the employee's return to work presents a direct threat to the employee or to others.

At the conclusion of an FMLA leave of absence, the employee generally will be restored to the position she/he held when the leave began or to an equivalent position with equivalent employment benefits, pay and other terms and conditions of employment to the one held prior to the leave.

One exception is if the employee is salaried and among the highest paid percent of employees and keeping the specific job open for the employee would result in substantial and grievous economic injury to the College, reinstatement to the employee's former position may be denied.

Another exception is if the employee is discharged or laid off for legitimate business reasons during the leave.

Failure to Comply, and Falsification of Records: If an employee fails to follow the College's requirements for submission of proper documentation, FMLA leave may be delayed or denied. If an employee falsifies any information required under this Policy, appropriate discipline will be taken, up to and including termination.

Working For a Third Party While on Leave: An employee on FMLA leave may not perform work for another employer while on FMLA leave that is inconsistent with the stated reasons for taking the leave. An employee that violates this requirement will be disciplined, up to an including termination.

GINA Disclosure: The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title Il from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to our request for medical information. "Genetic Information" as defined by GINA includes an individual's family medical history, the results of an individual 's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual 's family member or an embryo lawfully held by an individual or family member   receiving assistive reproductive services.

Enforcement: It is unlawful for the College to interfere with, restrain, or deny the exercise of any right provided by the FMLA. It is also unlawful for the College to terminate or discriminate against any individual for opposing any practice, or because of involvement in any proceeding, related to the FMLA. Any employee who has any complaint or who believes any unlawful act may have occurred under the FMLA should contact Human Resources to have the complaint investigated. Also, complaints may be filed with the Wage and Hour Division of the United States Government, Department of Labor or through a private lawsuit. The FMLA does not affect any Federal or State law prohibiting discrimination or supersede any State of local law or collective bargaining agreement which provides greater family or medical leave rights.

APPENDIX A

The term "serious health condition" includes an illness, injury, impairment, or physical or mental condition that involves:

1. One overnight stay in a hospital, including any period of incapacity, or any subsequent treatment in connection with the inpatient care; or
2. Continuing treatment by a health care provider which includes:
3. A period of incapacity of more than three (3) consecutive, full calendar days, and any subsequent treatment or period of incapacity that also involves:

(i) Treatment two or more times within 30 days of the first day of incapacity by a healthcare provider or persons under orders of the health care provider (the first of which must occur within seven (7) days of the first day of incapacity);

(ii) Treatment by a health care provider on at least one occasion (which must occur within seven (7) days of the first day of incapacity), which results in a regimen of continuing treatment by a health care provider; or

3. Any period of incapacity due to pregnancy or prenatal care; or
4. Any period of incapacity or treatment from a chronic serious health condition which requires visits to a healthcare provider or nurse at least two times per year; or
5. A permanent or long-term condition for which treatment may not be effective; or
6. Conditions which require multiple treatments.

The term "health care provider" means:

1. Doctors of medicine or osteopathy authorized to practice medicine or surgery by the state in which the doctor practices;
2. Podiatrists, dentists, clinical psychologists, optometrists and, under certain circumstances, chiropractors authorized to practice under state law;
3. Nurse practitioners, nurse mid-wives, and clinical social workers authorized to practice under state law;
4. Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts;
5. Any health care provider recognized by the College or the College's group health plan's benefits manager; and
6. A health care provider listed above who practices in a country other than the United States and who is authorized to practice under the laws of that country.

The term "covered service member" means:

1. A member of the United States Armed Forces, National Guard or Reserves, or any individual who was honorably discharged from the United States Armed Forces, National Guard or Reserves at any time during the five (5) years immediately preceding the beginning of the requested FMLA leave period, who has a serious injury or illness incurred or aggravated in the line of duty.
2. For a current service member, a serious injury or illness is one that may render the service member medically unfit to perform his or her military duties. For a veteran, a serious injury or illness is one that rendered the veteran medically unfit to perform his or her military duties, or an injury or illness that qualifies the veteran for certain benefits from the Depardment of Veterans Affairs or substantially impairs the veteran's ability to work. For veterans, it includes injuries or illnesses that were incurred or aggravated during military service but that did not manifest until after the veteran left active duty.