Family & Medical Leave Act (FMLA) Supervisor Training

What is the Family and Medical Leave Act (FMLA)? FMLA is a Federal law that provides up to 12 work weeks of job protected leave in a 12 month period* to eligible employees. The 1993 Federal Act provides: –Job protection from adverse employment actions while on FMLA status; and the –The ability to maintain existing medical benefit programs Available to ALL employees who have worked for the university for at least 12 months (need not be consecutive), and have worked at least 1,250 hours for the university during the 12 months immediately preceding the requested leave. Enforced and Regulated by the Department of Labor *12-month period measured backward from first the date FMLA leave is taken, referred to as a rolling 12 month calendar..

When does FMLA Apply? Incapacity due to pregnancy or medical prenatal care; Birth of a child, or placement of an adopted or foster child (leave must be taken within 12 months of birth or placement); Care of a child, parent or legal spouse with a serious health condition; –NMSU provides FMLA-like leaves of absence for qualified domestic partners with a serious health condition. Serious health condition of employee; Care of a service member with a serious health condition incurred during active duty (up to 26 work weeks* in a 12-month period); Qualifying exigencies arising from service member’s active duty or call to active duty * 26 work week period includes the initial 12 work weeks allowed by law

What is A Serious Health Condition? A condition that prevents an employee from performing the essential functions of their job. This includes: Inpatient care in a medical facility (overnight stay) Incapacity more than 3 calendar days involving continuing treatment for same condition Periodic incapacity due to pregnancy or for prenatal care Chronic health condition with episodic incapacity, continuing treatment and over extended period Permanent or long-term incapacity that may not have effective treatment Receiving multiple treatments for condition which, if untreated, would result in incapacity of more than 3 calendar days

Examples of FMLA Events An employee does not need to specifically state they need time under FMLA. It could be as simple as: The employee mentions mom is having issues with her health and they are going for a visit to check on her. The employee says it’s hard getting to work on time because of the nausea associated with her pregnancy. The employee comments on how stressful work has been lately and his doctor thinks he needs to take some time off. The employee mentions his son has chronic asthma and often has to go to the doctor or urgent care due to flare ups. The employee says her spouse broke his leg and can’t drive but has to report to physical therapy 3 days a week.

Supervisor Responsibility– when the supervisor does not have details of the event The supervisor sends an to with the employee’s name and Aggie ID asking the employee be contacted about –If the employee has missed work, please include the date he/she was first absent, if known. Benefit Services determines eligibility for FMLA and sends the employee their rights and responsibilities under FMLA and invites the employee to submit a request for FMLA through the FMLA website. The normal process for requesting begins. –Whenever possible, if Benefit Services has enough information to designate an absence as protected under FMLA, the time will be auto designated

Our FMLA Request Process – when the employee or the supervisor knows details of the event The online Request for FMLA Leave form is submitted to Benefit Services by the employee, the employee’s family or the department: – –As soon as need for leave is foreseeable Such as scheduled appointments or estimated due date for childbirth –Any time an employee misses more than 3 consecutive days due to medical reason for themselves or a family member Benefit Services determines employee eligibility for FMLA leave. Benefit Services provides appropriate certification form, as well as a copy of the employee rights and responsibilities under FMLA, to employee to be completed and returned within stated deadline. Benefit Services notifies supervisor and the department HR liaison of request and certification deadline.

FMLA Request Process - Continued Once the leave request is approved, Benefit Services will… Maintain the Certification of Health Care Provider form and supporting documents in a secured and confidential file. Notify the employee, supervisor and department HR liaison of approval. Work with the department on needed information or paperwork If leave request is canceled/voided: Notify the employee, supervisor and department HR liaison of denial. –The employee can request to cancel their request for family medical leave and re-apply at a later date if needed –Benefit Services will void a request when the employee does not submit documentation needed to determine if family medical leave can be approved

Unlawful Acts by Employers FMLA makes it unlawful for employers to: –Interfere with, restrain, or deny the exercise of any right provided under FMLA; and –Discharge or discriminate against any person for opposing any practice made unlawful by FMLA or for involvement in any proceeding under or relating to FMLA. Information about FMLA can be found at:

Examples of Unlawful Acts by Employers Refusing to authorize FMLA leave for an eligible employee Discouraging an employee from using FMLA leave Manipulating an employees work hours to avoid responsibilities under FMLA Asking an employee to modify their work schedule to accommodate work load or projects Using an employee’s request for or use FMLA leave as a negative factor in employment actions such as hiring, promotions, or disciplinary actions, or Counting FMLA leave under attendance policies or lower scored evaluations due to leaves of absence Information can be found at:

Employee Responsibilities Employees must provide notice as soon as practicable and generally must comply with an employer’s call in procedures Employees must provide sufficient information for the employer to determine if the leave may qualify for FMLA protection and the anticipated timing and duration of leave. –Sufficient information may include that the employee is unable to perform job functions, the family member is unable to perform daily activities, the need for hospitalization or continuing treatment by a health care provider or circumstances supporting the need for military family leave. Rights and Responsibilities under FMLA can be found at: content/uploads/sites/15/2013/04/B_I_FMLA_Rights.pdf

Supervisor Responsibility Supervisors must notify Benefit Services: –Every time the department obtains information that suggests an employee may have a need for FMLA leave. –When an employee uses more than 3 continuous days of sick leave, annual leave or leave without pay (LWOP) for medical circumstances for themselves or their family member. –When an employee is consistently missing work due to illness of self or family member, even if the days are not consecutive. –An FMLA request form should be completed when possible, or employee name and Aggie ID sent to

Use of Paid Leave FMLA leave runs concurrently with paid leave (when available), not after paid leave runs out. –If paid leave is not available, the employee will be placed on Leave Without Pay. For employees who accrue annual/sick leave, sick leave is required to be used first before annual leave may be used. –If no sick or annual leave is available, the employee will be placed on leave without pay (LWOP). 9 month faculty who accrue Faculty Care Leave, FCL is required to be used before being placed on leave without pay. Please see NMSU Policies: Annual Faculty Care Leave Family and Medical Leaves – Sick Leaves – Without Pay

FMLA & the Attendance Policy FMLA-protected absences cannot be used for, nor be a factor in, an adverse employment action –Notification of foreseeable AND unforeseeable leave must be in accordance with department/unit policies and procedures. Notification procedures continue to be followed for the duration of the leave of absence Employee may be temporarily reassigned (pay and benefits remain the same) –Applies to intermittent and reduced schedule leave Employee may be temporarily replaced while on leave When the employee returns to work the employee will be restored to their original or equivalent position with equivalent pay, benefits and employment terms.

Can an Employee Work from Home? Employees are entitled to take FMLA leave free from any work responsibilities. Supervisors should never ask or expect employees to work while on FMLA. NMSU does not have a policy for “working from home”. Generally, working from home or location other than the workplace is not permitted while taking leave.

Can an Employee Work from Home? If the employee requests to work from home, in lieu of taking paid or unpaid leave, departments may request consideration for exigent circumstances by written request –Non faculty requests route through the AVP of HR Services –Faculty requests route through the Dean to the Provost –If an employee is approved to work from home, a physician release will be required if the employee is on leave due to their own serious health condition before work can commence. Information on the criteria that should be included in the request is available by ing

For More Information Family & Medical Leave Webpage NMSU Administrative Rules and Procedures Benefit Services Room 17, Hadley Hall