Family and Medical Leave (G/P)

Purpose

The HR Benefits office will manage the Family and Medical Leave Act of 1993 (FMLA) process and assist employees and supervisors/managers in complying with ACC’s policies and procedures and the federal law.

Definitions

1. Next of Kin (Military Only): As it relates to a service member-related FMLA leave, next of kin means the nearest blood relative, other than the service member’s spouse, parent, son or daughter in the following order of priority:

• • blood relative who has been designated in writing by the service member as their next of kin,
  • blood relative who has been granted legal custody of the service member,
  • brothers and sisters,
  • grandparents,
  • aunts and uncles,
  • first cousins

When the service member designates in writing a blood relative as next of kin for FMLA purposes, that individual is deemed to be the veteran’s only FMLA next of kin.

2. Parent: For FMLA leave purposes, “parent” is defined as a biological, adoptive, step, or foster parent, or an individual who stood in loco parentis to an employee when the employee was a child. An employee’s parents-in-law are not included in the definition of “parent” for purposes of FMLA leave.
3. Serious Health Condition: Serious health condition means an illness, injury, impairment, or physical or mental condition that involves:

• • any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility; or
  • a period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or
  • any period of incapacity due to pregnancy, including prenatal care, medical appointments, incapacity due to morning sickness and medically required bed rest; or
  • any period of incapacity (or treatment thereof) due to a chronic serious health condition
  • (e.g., asthma, diabetes, epilepsy, etc.); or
  • a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer’s, stroke, terminal diseases, etc.); or,
  • any absences to receive multiple treatments (including any period of recovery) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).

4. Serious Injury or Illness (Military Only): A serious injury or illness for a current service member is an injury or illness that was incurred by the service member in the line of duty on active duty that may render the service member medically unfit to perform the duties of his or her office, grade, rank, or rating. A serious injury or illness may also result from the aggravation of a pre-existing condition in the line of duty on active duty
5. Son or Daughter (Non-Military): Son or daughter means a biological, adopted, or foster child, stepchild, legal ward, or child of a person standing in loco parentis who is either under the age of 18 or age 18 or older, and incapable of self-care due to a mental or physical disability. The broad definition of “son or daughter” is intended to reflect the reality that many children in the United States live with a parent other than their biological father and mother. Under the FMLA, an employee who actually has day-to-day responsibility for caring for a child may be entitled to leave even if the employee does not have a biological or legal relationship to the child.
6. Son or Daughter (Military): The FMLA military leave provisions indicate the son or daughter can be of any age for the employee to be entitled to FMLA leave.
7. Spouse: Spouse means a husband or wife as defined or recognized for purposes of marriage under Texas law (including common law marriage and same-sex marriage).

Employee Eligibility

To be eligible for FMLA leave an ACC employee must:

• • have worked for ACC for a total of twelve (12) months; and
  • have worked at least 1,250 hours over the previous twelve (12) months.

For all qualifying events, except military caregiver leave, ACC considers employee’s eligibility for FMLA leave under a “rolling” 12-month period measured backward from the date an employee first uses any FMLA leave.

Criteria for Using FMLA

Austin Community College will grant an eligible employee up to twelve (12) workweeks of unpaid leave during a rolling 12-month period for one or more of the following reasons:

• • For the birth and care of a newborn child of the employee.
  • For placement with the employee of a child for adoption or foster care and to care for the newly placed child.
  • For a serious health condition of a spouse, parent, son/daughter under the age of 18, or for a child age 18 or over who is incapable of self-care and has a disability as defined by the Americans with Disabilities Act (ADA).
  • To take medical leave when the employee is unable to work because of a serious health condition.
  • To care for a covered service member with a serious injury or illness.
  • To address qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on active duty or called to active duty status as a member of the Armed Forces in support of a contingency operation.

Leave for birth and care, or placement for adoption or foster care, must conclude within twelve (12) months of the birth or placement.

An employee is required to use their accrued paid leave (sick, vacation and parental leave) during their FMLA leave. Once paid leave is depleted, unpaid leave can be used for the balance of FMLA leave.

Leave for a Service Member

ACC also will grant an eligible employee who is a spouse, son, daughter, parent, or next of kin of a current member of the Armed Forces, including a member of the National Guard or Reserves, with a serious injury or illness up to a total of twenty-six (26) workweeks of unpaid leave during a “single 12-month period” to care for the service member. The 12-month period for military caregiver leave begins on the first day of leave and concludes twelve months after that date.

Spouses who are both employed by ACC are limited to a combined total of twenty-six (26) workweeks of FMLA leave during the single 12-month period to care for a covered military service member with a serious injury or illness.

Employed by ACC

FMLA requires ACC to provide only a combined total of twelve (12) workweeks to spouses who are both employed by ACC, for the birth and care of a newborn child, placement of a child for adoption or foster care, or to care for a parent who has a serious health condition. However, the

College recognizes the critical importance of these events to employees and therefore allows each  spouse to be granted up to twelve (12) workweeks of FMLA leave for any FMLA qualified reason, other than to care for a military service member as noted above.

Work Restrictions While on FMLA

An employee may not work for ACC or any other entity while out on FMLA leave. This provision relates to all positions, whether FMLA-eligible or not. Taking another job while on FMLA is grounds for termination.

Intermittent FMLA

Under some circumstances, an employee may take FMLA leave intermittently, i.e., taking leave in separate blocks of time for a single qualifying reason, o r on a reduced leave schedule that reduces the employee’s usual weekly or daily work schedule.

The employee must work with the employee’s supervisor to schedule intermittent leave so as not to unduly disrupt the departmental and ACC operations, subject to the approval of the employee’s health care provider. When intermittent leave is needed, the employee must make a reasonable effort to schedule treatment so as not to unduly disrupt ACC’s operations.

Notice and Certification

Employees must provide sufficient information for the College to reasonably determine whether FMLA may apply to a leave request. Depending on the situation, such information may include, without limitation, that the employee is incapacitated due to pregnancy, has been hospitalized overnight or more, is unable to perform the functions of the job, and/or that the employee or employee’s qualifying family member is under the continuing care of a health care provider.

An employee seeking to use FMLA leave is required to provide a 30-day advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practical. If leave is unforeseeable (less than thirty (30) days in advance), the employee must provide notice as soon as practical (within 2 work days of learning of the need to take leave).

Certification

ACC requires that an employee’s request for leave due to a serious health condition affecting the employee or a covered family member be supported by a certification from a health care provider.

Upon request, the HR Benefits office will provide the employee with an FMLA packet to complete. The employee has 15 calendar days from the date that the employee receives the FMLA packet to return the certification form or provide a reasonable explanation of why they are unable to return the form within the required timeframe. If sufficient information is missing from certification, the employee may be asked for additional information.

ACC may require second or third medical opinions (at the employer’s expense) and periodic recertification of a serious health condition. ACC requires employees returning from leave for her/his own serious health condition to submit a medical certification that they are able to fully resume work and are able to perform the essential functions of the job. A copy of the employee’s job description will be provided for review by the health care provider in making this certification. If reasonable safety concerns exist, ACC may under certain circumstances, require such a certification for an employee returning from intermittent FMLA leave.

Service Member-Related Leave Documentation

Documentation of the Covered Family Member’s Active Duty or Call to Active Duty in the Armed Services

Employees requesting this type of service member FMLA leave must provide proof of the qualifying family member’s call-up or active military service. This documentation may be a copy of the military orders or other official Armed Forces communication.

Documentation of the Need for Service member FMLA Leave to Care for an Injured or Ill Service member

Employees requesting this type of Service member FMLA leave must provide documentation of the family member’s or next-of-kin’s injury, recovery or need for care. This documentation may be a copy of the military medical information, orders for treatment, or other official Armed

Forces communication pertaining to the service member’s injury or illness incurred on active duty that renders the member medically unfit to perform his or her military duties.

Maintenance of Health Benefits

ACC will maintain group health insurance coverage for an employee on FMLA leave whenever such insurance was provided before FMLA leave was taken and on the same terms as if the employee had continued to work. If applicable, the employee will need to make arrangements to pay her/his share of health insurance premiums and optional benefit coverages while on FMLA leave.

In some instances, the College may recover insurance premiums if paid on the employee’s behalf to maintain health coverage when an employee fails to return to work from FMLA leave. The employee is required to pay their dependent and optional coverages. If the employee fails to pay (after notice) dependent and optional coverages, those coverages may be cancelled due to non-payment.

Returning from FMLA

Prior to an employee returning from FMLA leave for their own medical condition, a fitness for duty certification form (medical release) is required. This form must be completed by the treating physician or licensed provider. Employees failing to provide this certification will not be permitted to resume work until it is provided. During this time the employee will be required to use her/his sick or vacation time, if available.

Upon return from FMLA leave, an employee will be restored to the employee’s original job or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.

An employee has no greater right to restoration or to other benefits and conditions of employment than if the employee had been continuously employed.

If the employee is unable to return to work after the FMLA leave is exhausted, the College has no further obligation under FMLA to hold the employee’s position open. The employee should receive notification from the HR Benefits office of a return date and/or notice that her/his position will no longer be held. If the employee does not return, employment will be considered voluntarily terminated, unless additional leave is required by law.

Supervisor Responsibility

• • The supervisor is responsible for immediately notifying the HR Benefits office if an employee has been out for three (3) consecutive days due to a health condition, if the employee is out intermittently due to a health condition, or there is a pattern of absences. The HR Benefits office will consult with the supervisor and determine if FMLA is appropriate.
  • The supervisor is responsible for ensuring that leave is tracked and approved in the College’s timekeeping system by using the correct FMLA codes (FMLA sick, FMLA vacation, FMLA parental or FMLA unpaid) when employee is out on FMLA leave.
  • The supervisor is responsible for ensuring that the HR Benefits office has received a Certification of Fitness for duty form from the employee’s physician prior to the employee returning to work.

If the employee or employee’s family member is unable to request FMLA, the supervisor can ask the HR Benefits office to send an FMLA packet to the employee’s family member or the supervisor may assist the employee in completing the FMLA packet.

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