General Questions
1. How does the University define a year?
The year is defined as the 12-month period measured backward from the date an employee uses FMLA. With this “rolling” method, each time an employee uses FMLA, the remaining leave entitlement is the balance of the 12 weeks which has not been used during the immediately preceding 12 months. An example of how the calculation method works is below:
2. Can a break in service have an effect on FMLA eligibility?
Yes. If the employee has a break in service that lasted seven years or more, the time worked prior to the break will not count unless the break is due to service covered by the Uniformed Services Employment and Reemployment Rights Act (USERRA), or there is a written agreement, including a collective bargaining agreement, outlining the employer’s intention to rehire the employee after the break in service.
3. Can a supervisor deny FMLA leave?
For FMLA purposes, supervisors are prohibited from interfering with, restraining, or denying employees’ rights of FMLA (HR-407). If a supervisor denies FMLA-approved time off, please consult with your campus, hospital, or èappsystem human resources office.
4. What is the effect of a holiday and/or winter break pay when an employee is on leave?
Employees will receive holiday pay and winter break pay, if eligible, when on a paid leave of absence.
A week in which a holiday occurs will count against FMLA leave hours. For example, if an employee is approved and absent for FMLA from July 1 through July 15, the Independence Day observed holiday is included in the days counted towards the employees FMLA leave entitlement. In instances of closure in which employees are not expected to work for one or more weeks (e.g., winter break or seasonal leaves), such weeks will not count against an employee's leave entitlement.
5. What are the definitions of a child and a parent?
A child means a biological, adopted, or foster child; the child of a Sponsored Adult Dependent; a stepchild; a legal ward; or a child of a person standing in loco parentis. Additionally, the child must be either under 18 years of age or 18 years of age or older and “incapable of self-care because of mental or physical disability” at the time FMLA leave is to commence.
Parent means the biological parent of an employee or an individual who stands or stood in loco parentis to an employee when the employee was a child.
6. What is continuing treatment?
Continuing treatment by a health care provider includes one or more of the following: (1) a period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition that also involves treatment by a health care provider within certain specific timeframes, (2) any period of incapacity due to pregnancy or for prenatal care, (3) any period of incapacity or treatment due to a chronic serious health condition, (4) a period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective and for which the employee or family member is under the continuing supervision of a health care provider, or (5) any period of absence to receive multiple treatments by or under orders from a health care provider for restorative surgery or for a condition that would likely result in a period of incapacity of more than three, consecutive, full calendar days in the absence of medical intervention.
7. For FMLA purposes, who may be considered a "health care provider"?
FMLA defines "health care provider" as a doctor of medicine or osteopathy who is authorized to practice medicine or surgery by the state in which the doctor practices, or any other person determined by the Secretary of Labor to be capable of providing health care services. These include podiatrists, dentists, clinical psychologists, optometrists, physician assistants and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist) authorized to practice in the state and performing within the scope of their practice as defined under state law; nurse practitioners and nurse midwives, who provide diagnosis and treatment; Christian Science practitioners; and clinical social workers.
8. What certification does the University require?
Medical certification supporting the need for leave due to a serious health condition affecting the employee or an immediate family member is required. Second and third medical opinions and periodic recertification (some of which may be at the University’s expense) may be required. Additional periodic reports during FMLA leave regarding the employee's status and intent to return to work may also be required. Medical certification, provided by the military, is required for leave to care for a covered veteran who is recovering from a serious illness or injury sustained in the line of duty on active duty and who is actively receiving medical treatment. For a qualifying exigency, a copy of the covered military member’s active-duty orders and certification providing the appropriate facts related to the qualifying exigency may be necessary. Please contact the FMLA Administrator to determine what certification will be required based on the circumstances of the leave requested.
9. May the FMLA administrator contact the health care provider to clarify information in the medical certification?
The FMLA administrator may, with an authorization that is compliant with the Health Insurance Portability and Accountability Act of 1996 (HIPAA), contact the employee’s health care provider to clarify information provided, but not to seek additional information beyond the inquiries permitted on the form. However, the employee’s direct supervisor may not contact the health care provider. If the University has reason to doubt the validity of a physician's certification, the University may require the employee to obtain a second or third medical opinion at the employer's expense.
10. Is a response required when an employee provides notice of a need for an FMLA leave?
Yes. The FMLA administrator must provide the employee with notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations.
11. What if time off is needed but an employee does not want to use FMLA?
An employer is prohibited from delaying the designation of FMLA-qualifying leave as FMLA leave. Once an eligible employee communicates the need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave.
12. How will FMLA leave affect my retirement eligibility or benefits?
For the purpose of vesting in the èapppension plan (DB Plan or DB Component of the Hybrid Plan),
- Unpaid FMLA leave will not be considered as service credit.
- Paid FMLA will only be considered for service credit if the leave is followed by a return to active employment for at least six months
- No FMLA leave will be considered as a break in service under the èapppension plans.
For the purpose of vesting under the DC Plan or the DC Component, the sum of the employee’s periods of service, regardless of leave of absence, will be used to determine vesting.
For more information about the èappretirement plans, visit umurl.us/retplans.
13. Can time off under FMLA lead to disciplinary action for excessive absenteeism?
No. Qualifying absences under FMLA will not be considered in calculating occurrences of absence that may lead to disciplinary action.
14. What job restoration is required?
Upon return from FMLA leave an employee must be restored to their original position, or to an equivalent position with equivalent pay, benefits and other employment terms and conditions. In addition, an employee's use of FMLA leave cannot result in a loss of any employee benefit that the employee earned or was entitled to before the FMLA leave. This includes seniority and shift. Employees are not entitled to accrue seniority during any period of unpaid FMLA leave.
15. If an employee is on a continuous FMLA leave of absence and they had a need for bereavement leave, would that time count against their FMLA leave entitlement?
Yes. Time taken for bereavement is included in the days counted toward the employees FMLA leave entitlement.
Academic-Related Questions
16. How are FMLA leave and pay handled when an academic employee is approved for leave that crosses over semesters?
A tenured, or tenure-track faculty member, or full-time, ranked non-tenure track faculty member (as defined in 310.035) approved for FMLA who has yet to utilize their two paid FMLA leaves (i.e., 24 weeks) in the past six-year period will receive pay for the approved FMLA leave.
Fall-to-Spring (winter intersession)
Approved FMLA leave must be used between the end of the Fall semester and the beginning of the Spring semester because the time between these semesters is not an interruption in a faculty member’s term of service*
As most employees are not expected to work during the Winter Break Reduced Operations period, this time should not be counted against the faculty member’s FMLA leave entitlement or available paid FMLA. However, if a faculty member typically has duties related to operations that continue during the Winter Break Reduced Operations period, FMLA leave is available and should be used for time when a faculty member would otherwise be expected to work during that period.
*For faculty on a nine-month contract, CRR 320.070.A.2 provides that the term of service is the period of time constituting the regular, two-semester academic year. For twelve-month faculty, the term of service runs continuously for the twelve-month period following their appointment.
Spring-to-Fall (summer break)
Unless otherwise required to work during the summer months (e.g., faculty with a summer contract or 12-month faculty), the summer break period is excluded when calculating FMLA entitlement and FMLA paid leave for academic employees.
Military-Related Questions
17. Is the definition of a year the same for Military Caregiver Leave?
No, the 12-month period for Military Caregiver Leave is measured forward from the date an employee’s leave to care for the covered service member begins.
18. What is the definition of “Next of Kin” for military caregiver leave?
Next of Kin is the service member’s nearest blood relative in the following order of priority:
- One designated blood relative (in writing); if none, then
- All blood relatives with legal custody; if none, then
- All brothers and sisters; if none, then
- All grandparents; if none, then
- All aunts and uncles; if none then
- All first cousins.
19. What is the definition of “Qualifying Exigencies”?
Qualifying Exigencies arise when the immediate family member of an employee is on covered active duty in the Armed Forces or has been notified of an impending call or order to covered active duty. Categories of qualifying exigencies for FMLA purposes include:
- Short-notice deployment
- Military events and related activities
- Childcare and school activities
- Financial and legal arrangements
- Counseling
- Rest and recuperation
- Post-deployment activities
- Additional activities that arise out of the covered military member’s covered active duty or call to covered active-duty status as approved by FMLA regulations.
Date Created: 09/26/1997
Updated: 08/01/2001; 11/01/2001; 09/01/2002; 06/01/2008; 01/16/2009 01/19/2017; 10/01/2019; 03/01/2020; 07/01/2020; 01/01/2021; 09/28/2022; posted 12/23/2023 with an effective date 01/01/2024
Reviewed 2023-12-22