- Are only full-time benefits eligible employees able to request FMLA leave?
No. If an employee meets the 12-month length of service and 1,250 hours of service requirement, they are eligible to apply for FMLA no matter their status for benefits eligibility.
- Are part-time employees eligible for FMLA leave?
If the employee meets the eligibility requirements for FMLA, then they are eligible for FMLA leave no matter their employment classification status.
- Can the employee decide to not use FMLA leave for an FMLA qualifying event?
No. According to FMLA Opinion Letter 2019-1-A:
The College may not delay the designation of FMLA qualifying leave or designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave. Once an eligible employee communicates a need to take leave for an FMLA qualifying reason, neither the employee nor the College may decline FMLA protection for that leave.
Once the College determines that leave is for an FMLA qualifying reason, the qualifying leave is FMLA protected and counts toward the employee’s FMLA leave entitlement. The College must provide a written designation notice to employees within five (5) business days of the request or learning that the leave may be FMLA qualifying.
If an employee substitutes paid leave for unpaid FMLA leave, the employee’s paid leave counts toward his or her 12-week (or 26-week) FMLA entitlement and does not expand that entitlement. Our past practice of allowing employees to decide if they want to use paid leave instead of FMLA leave, if it is for an FMLA qualifying reason, is no longer allowable.
- Is FMLA paid time off?
No, but employees have the option to use paid vacation, sick or compensatory time to supplement their pay during FMLA. However, any paid leave time runs concurrently with FMLA and counts towards the 12-week leave entitlement.
- At what point of an absence are we required to issue the FMLA notices (Notice of Eligibility and Rights & Responsibilities, Medical Certification, and Designation Notice) and count absences as FMLA?
The notice obligations are triggered "when an employee requests FMLA leave, or when the employer acquires knowledge that an employee's leave may be for an FMLA-qualifying reason…" If an employee is absent for more than 3 days for health reasons, the notices will be provided. When the employee returns the medical certification form and it is FMLA qualifying, the Designation Notice will be issued approving the leave as FMLA. If the medical certification form shows that the leave is not FMLA qualifying, the Designation Notice would deny FMLA.
- If the employee is incapacitated and a family member contacts the employer to inform them of the employee’s need for leave, what type of FMLA notice should be provided and to whom?
The relevant notice(s) should be provided to the employee as soon as possible using a method that has a date/time stamp such as email or certified mail. If the employee’s family member is the person who is communicating with HR, the relevant notices can also be provided to them on the employee’s behalf.
- Does vacation and sick leave time count towards the 1,250 hours of service requirement for FMLA?
No, only actual time worked is counted. Leave time including vacation, sick, compensatory time, holidays, and unpaid leave do not count towards the 1,250 hours of service requirement.
- How is the 12 months of service determined?
If an employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid leave (sick, vacation) during which other benefits or compensation are provided by the employer (e.g., workers' compensation, group health plan benefits, etc.), the week counts as a week of employment towards the 12 months of service. For purposes of determining whether intermittent/occasional/casual employment qualifies as at least 12 months, 52 weeks is deemed to be equal to 12 months. In other words, look back at the hire date and calculate 12 months from there for any week the employee is on the payroll.
- If an employee has a break in service, do we count their prior service time for FMLA eligibility?
The 12 months of employment do not have to be consecutive. If the break in service was less than 7 years, you would count the prior service toward the 12-month service requirement.
Additionally, the 1,250 hours of service requirement applies to the 12-month period immediately preceding the commencement of leave. In other words, you do not count any hours worked that is outside of the 12-months immediately preceding the leave.
If the employee has not worked more than the 1,250 hours in the last 12 months, they are ineligible for FMLA even if they meet the 12 months of service requirement (within the last 7 years).
- Is a medical certification always required when an employee requests FMLA?
Yes, a medical certification should always be required except if the reason is for the birth of and bonding with the employee’s (mother or father) newborn. Pregnancy and recovery require medical certification (serious health condition) but bonding time does not.
- On the Designation Notice, what date should be used in the following sentence if no medical certification is being requested: “We have reviewed your request for leave under the FMLA and any supporting documentation that you have provided. We received your most recent information on ______________________ and decided:”
No date will be used but “N/A” will be inserted instead.
- Does the employer need to provide the Notice of Eligibility and Rights & Responsibilities Form to employees even if they already know that the employee’s leave is FMLA qualifying and will be designated as such using the Designation Notice?
Yes, the Notice of Eligibility and Rights & Responsibilities Form will always be provided to the employee even if no medical certification is needed. If the employer has enough information to designate the leave as FMLA after being informed of the employee’s leave needs, the Designation Notice can be provided immediately along with the Notice of Eligibility and Rights & Responsibilities Form.
- If the employee is not eligible for FMLA when their leave begins, but later meets the 12 months of service requirement, when should the College allow FMLA to begin?
The determination of whether an employee meets the 1,250 hours of service requirement and has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start. An employee may be on non-FMLA leave at the time he or she meets the 12-month eligibility requirement, and in that event, any portion of the leave taken for an FMLA-qualifying reason after the employee meets the eligibility requirement would be FMLA leave.
Per the Employer’s Guide to FMLA:
If the employee does not meet the eligibility requirements, an employer may not designate the leave as FMLA even if the leave would otherwise qualify for FMLA protection. If the employee is not eligible for FMLA leave, the employer may grant the employee leave under the employer’s policy. Once the employee becomes eligible and the leave is FMLA-qualifying, any of the remaining leave period taken for an FMLA-qualifying reason becomes FMLA-protected leave.
For example, a pregnant employee has been with the company for 11 months as of December 1. She has more than 1,250 hours of service and works at a location that has more than 50 employees. The employee takes leave under the employer’s policy beginning on December 1. One month later, on January 1, when she has reached 12 months of service, she becomes immediately eligible for FMLA and can now take up to 12 workweeks of FMLA-protected leave.
- If a holiday occurs during the time that an employee is on FMLA, will they be eligible for holiday pay?
In order for an employee to be eligible for holiday pay, the employee must work his or her scheduled work day before and after the holiday or be authorized to use paid or unpaid leave on the day before and after the holiday.
- Are holidays counted as FMLA time?
Holidays falling during a full week of FMLA leave will be counted as FMLA leave. Holidays do not count as time worked towards the 1,250 hours of service requirement (see #7).
- Is FMLA counted during time periods when employees are not on contract or are not scheduled to work? For example, would time during the summer months be counted against a faculty member’s FMLA?
No, FMLA is not applied if the employee is not on contract or scheduled to work such as during the summer when most faculty do not work. For determining how much FMLA time to apply to faculty, refer to SCEA 11.8 Sick Leave. However, if a full-time faculty member is absent an entire week, 40 hours of FMLA are applied no matter their schedules.
- How does the NSCS calculate the FMLA 12 month leave period?
The 12-month period is measured forward from the date of the employee’s first FMLA leave usage. The next 12-month period would begin the first time FMLA leave is taken after completion of the prior 12-month period.
- Can FMLA notices be sent to the employee electronically?
Yes, the employee notices can be sent via email as long as the read receipt function is used to confirm the employee received it.
- Does FMLA apply to worker’s comp absences?
Yes. The same procedures will be followed as other absences. The Employer’s FMLA Guide says, “FMLA leave and workers’ compensation or short-term or long-term disability can run concurrently, provided the reason for the absence is due to an FMLA-qualifying serious health condition and the employer properly notified the employee that the leave would be counted as FMLA leave.” If the injury qualifies as a serious health condition, then all of the time for the worker’s compensation absence will be counted as FMLA up to 12 weeks. The amount of the absence is not related to the amount paid/unpaid by worker’s compensation (i.e., 1/3).
- Can an employee use FMLA leave to attend their child’s Individualized Education Program (IEP) meeting with school officials?
Yes, an employee may use intermittent FMLA leave to attend a child’s IEP meeting with school officials if the child has a serious health condition that’s been certified by a health care provider and the IEP meeting will include discussions about the child’s educational and special medical needs.
- If an employee is not eligible for FMLA, do they have the option to use paid or unpaid leave to cover their absence?
No, employees must first use paid leave for non-FMLA absences. Unpaid leave will be applied once paid leave has been exhausted. Pregnancy or child birth related absences will be reviewed on a case-by-case basis.
- Is there a limit to how much unpaid leave an employee may use?
This will depend on the employee’s specific situation. FMLA absences can use unpaid leave for up to 12 weeks in a 12-month period. Unpaid leave should not be applied indefinitely or routinely to non-FMLA absences but will be reviewed on a case-by-case basis.
- How long does an employee have to submit the completed medical certification?
The regulations state that an employee “must provide the requested certification to the employer within 15 calendar days after the employer’s request, unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts or the employer provides more than 15 calendar days to return the requested certification.”
- What options are available if a health care provider isn’t able or willing to complete the medical certification within 15 days?
If an employee’s health care provider is the reason for the delay and the employee has been trying to get the medical certification completed, we will give them more time because the ultimate goal is to get the certification.
- If a health care provider charges a fee to complete the medical certification, is the certification still required and, if so, who is responsible for paying the fee?
The employee is responsible for any fees. If the employee doesn’t want to pay the fee for medical certification, they can try another doctor. An employee objecting to paying a fee to get the paperwork completed doesn’t fall under the “not practicable despite their diligent good faith efforts” scenario. So we can, and will, still require employees to provide the certification.
- Can a medical certification be waived?
If the employee does not want to pay the fee and refuses to provide the required medical certification form (and there aren’t extenuating circumstances like a delay from the doctor, or the leave was unforeseeable and the employee is in the ER), please contact Kristin or Kara and we will decide together if we (1) deny the FMLA coverage until the required certification is provided or (2) waive the requirement for the medical certification (last resort). If asked, please inform employees that they are required to provide the certification and pay for it, if necessary. Employees who do not comply with the employer’s request may be subject to disciplinary procedures. Employees do not have the option to opt out of using FMLA for qualifying absences (see question #3).
- Can an employee request FMLA for an adult child who is 18 years of age or over?
Typically, employees may only use FMLA for children who are under 18 years of age. However, if a child who is 18 years of age or older is incapable of self-care because of a mental of physical disability, the employee may request FMLA. In order for the employee to take FMLA leave to care for an adult child, the child must also have a serious health condition and need care because of the serious health condition. See USDOL Fact Sheet #28K for more details.
- How much FMLA leave is a part-time employee entitled to use?
Employees do not accrue FMLA leave at an hourly rate. An eligible employee is entitled up to 12 weeks of FMLA (26 weeks for military caregiver) and the hours per week is dependent on the specific hours the employee is scheduled to work.
Example 1: If an eligible employee is scheduled to work 25 hours per week during the time that FMLA is needed, then they will receive 25 hours per week of FMLA leave (up to 12 weeks).
Example 2: If an eligible employee is .75 FTE and is scheduled to work 40 hours per week during the academic year, then they will receive 40 hours of FMLA if they need to be absent for an FMLA qualifying reason during the academic year (up to 12 weeks).
- Will NSCPA employees be required to use sick or vacation leave during FMLA absences on July 1, 2021?
Yes, all employees with FMLA eligible absences will be required to use sick or vacation leave during FMLA absences. If an employee exhausts all of their sick and vacation leave time during FMLA, they may opt to use compensatory time, unpaid leave, request an advance or request crisis leave.
- If an employee begins using FMLA prior to July 1, 2021 and their leave continues past July 1, 2021, what leave rules will be applied to their absence?
We apply the same rules to their full FMLA leave period if the leave is continuous (not intermittent) and the employee would continue to have the option to use paid or unpaid leave throughout that time period.
- If an employee or their family member is visiting a foreign country or the family member resides in a foreign country and a serious health condition develops, will a medical certification still be required for FMLA?
Yes, the employee will need to request that the health care provider in the foreign country complete the medical certification. The employer must accept a medical certification from a health care provider who practices in that country. If it isn’t in English, the employer may require the employee to provide a written translation.
- How are insurance premiums handled during unpaid leave for FMLA and non-FMLA absences?
If an absence is unpaid but covered by FMLA, the employer will continue to pay their portion of insurance premiums and the employee will continue to pay their portion. If an absence is unpaid but is NOT covered by FMLA, the employer will NOT pay their portion and the employee will be responsible for paying the entire premium including both their portion and the employer’s portion. If the employee does not have enough earnings to cover their premiums, the employee will need to pay the employer with a personal check or cash by a set date.
- If spouses both work for the NSCS , are they each entitled to 12 weeks of FMLA for the birth and bonding of a child?
No, eligible spouses who work for the same employer even if at different locations, are limited to a combined total of 12 weeks of FMLA in a 12 month period for the following reasons:
- Birth and bonding with newborn child
- Placement of child with employee for adoption or foster care, and bonding with the newly-placed child
- Care for a parent with a serious health condition
This limitation does not apply to leave for an employee’s own serious health condition, to care for a spouse, son or daughter with a serious health condition, or qualifying reasons when spouse, son, daughter or parent is on covered military active duty.
- How much FMLA and sick leave should be charged to faculty who aren’t scheduled to teach every day of the week (Monday – Friday)?
Faculty with qualifying FMLA absences must claim sick leave Monday through Friday per SCEA 11.8 and have FMLA applied to all days of the work week (Monday-Friday) and not just those days they are scheduled to teach.
- Are employees allowed to work from home while on FMLA leave?
No, employees may not work from home while on leave. However, it may be necessary for some high-level administrators to be available during periods of leave for critical business operations. In these cases, intermittent FMLA will be applied as necessary and the employee may work on a limited basis from home.
Please reference the “Pregnancy, Nursing and New Mothers FAQ” for more details related to this topic.