Personnel Policies for All Staff Employees

Family and Medical Leave Act (FMLA) Rights
AFSCME(BL) 5.12 • AFSCME(IN) 10.6 • AFSCME(SB) 5.8 • CWA 12.2 • PA/SS 10.8 • Hourly 6.2

Revised April 1, 2008

Staff covered by this policy
This policy applies to all staff at IU.

A. Introduction

  1. It is the policy of Indiana University to provide a leave of absence in accordance with the Family and Medical Leave Act (FMLA) of 1993. Before designating an FMLA leave, administrators should consult the University Human Resource Services Procedures for FMLA. It is the policy of Indiana University to voluntarily apply the FMLA provisions to same sex domestic partners as qualified by the university's Affidavit of Domestic Partnership.

    1. This policy information is only a general summary of the steps to follow when considering a request or need for family or medical leave. Refer to the complete University Human Resource Services FMLA Procedures and required forms for necessary details.

  2. An employee may request a leave, or may provide a department with information to make the department aware of an absence that may be eligible for FMLA protection. In either case, follow the University Human Resource Services Procedures for FMLA to see if and how the FMLA applies to the employee.

    1. If a department is aware that the reason for an absence from work qualifies under FMLA, the absence must be designated as FMLA leave, even if the employee does not request it. Complete the required forms and provide copies as noted.

  3. An FMLA leave may be initiated by the employee or the department at any point in a calendar year when the need for the leave arises. However, if an employee is on FMLA leave that extends from one calendar year to the next, new FMLA forms must be processed at the beginning of the new calendar year in order to keep the leave in effect.

  4. For information regarding forms and FMLA processing, contact the campus human resources office.

B. FMLA coverage and benefit coverage during FMLA

  1. In accordance with the FMLA, eligible employees may receive up to a total of 12 weeks of leave in a 12-month period, defined as a calendar year. Employees will be entitled to return to the same or an equivalent position at the conclusion of the leave, if they are able to perform the essential functions of the position.

  2. Medical and dental benefits will be maintained during the leave so long as the employee intends to return and does actually return to work.

    1. Employees on an FMLA leave continue to be responsible for paying their share of premiums for benefit plans. Contact the campus human resources office for more information.

C. Eligibility

  1. To be eligible to take an FMLA leave, an employee must meet all of these criteria:

    1. The employee must have been employed by IU for at least 12 months. Any portion of a week that the employee is on the payroll counts as a full week for FMLA eligibility. Employment does not have to have been continuous. Hourly employment with IU counts toward fulfilling this requirement.

    2. For the 12 months immediately preceding the first day of the FMLA leave, the employee must have worked at least 1,250 hours. These hours must be actual work hours, not compensated hours. Hours using any type of paid time off benefits or holiday time do not count.

    3. The 1,250 work hours requirement also exists when an employee is reapplying for an FMLA for a new calendar year. When the need for an FMLA extends past December 31st, the employee must have worked at least 1,250 actual work hours in the 12 months immediately preceding the request for the leave in the new calendar year.

    4. The employee must not have already received 12 weeks of FMLA leave in the current calendar year.

  2. Time in the military service covered under the Uniformed Services Employment and Reemployment Rights Act (USERRA) will count towards fulfilling the length of employment and hours of work requirements to be eligible for an FMLA leave.

D. Qualifying reasons

  1. The following reasons qualify an employee for FMLA:

    1. Birth of a child and to care for a newborn child of the employee, spouse as defined by Indiana law or same sex domestic partner as qualified by the university's Affidavit of Domestic Partnership.

    2. Placement with the employee of a child through adoption or foster care of a child

    3. Care for any of the following who has a serious health condition: the employee's spouse, same sex domestic partner, dependent child, child of the same sex domestic partner under 18, or parent of the employee who has a serious health condition

    4. Care for the employee's or same sex domestic partner's child 18 or older who has a serious health condition and is incapable of self-care because of a mental or physical disability

    5. A serious health condition that renders the employee unable to perform the functions of his or her job

E. Leave period

  1. An eligible employee may take up to 12 workweeks of leave during a 12-month period defined as a calendar year. Eligible employees are entitled to a new 12-week FMLA leave each calendar year. Unused portions of the 12-week FMLA leave may not be carried over between calendar years.

  2. If the purpose of the leave is to care for a sick family member or one's own serious health condition, the employee may take the leave intermittently or by means of a reduced work schedule.

    1. Such leaves are subject to the qualifications and limitations set forth in the FMLA federal regulations.

    2. Under certain circumstances, departments may place employees who are on an intermittent leave or a reduced work schedule in another position with equivalent pay and benefits. This placement is considered to be a temporary transfer and should be discussed with the campus human resources office. Such employees must make a reasonable effort to schedule the intermittent leave so it does not disrupt operations.

  3. When an employee is on an FMLA leave to care for a family member and the leave is terminated by the death of the family member, the employee will be granted the normal time off for funerals/bereavement as described in the respective policy.

F. Use of time off accruals during an FMLA leave–for Appointed Staff only

  1. With the sole exception of the use of compensatory time that is detailed below, and beginning on the first day of the leave, staff must use all time off accruals as part of the 12-week FMLA leave.

    1. Time off accruals that must be used during FMLA leave include holidays, income protection time (sick time), vacation, and PTO for Professional Staff.

    2. The requirement that an employee must use time off accruals to cover FMLA leave applies to any FMLA leave, including a leave that is taken either intermittently or through a reduced work schedule. All time missed in a work day due to an FMLA must be charged to time off accruals, including charges to PTO for partial day absences for Professional Staff.

  2. Employees who have accrued compensatory time may request to use the accrued compensatory time for an FMLA reason.

    1. Any absence that is paid from an employee's compensatory time accrual can not be counted against the employee's FMLA entitlement.

  3. Prior to the start of an FMLA or as soon as it is feasible to do so, the employee must decide and notify the supervisor on which time off accruals he or she wants to use first.

    1. The portion of the leave that is considered to be paid leave is charged against accrued paid time off no later than the conclusion of the leave.

  4. When the time off accruals are exhausted, the remainder of the FMLA leave is without pay. This time--and the time charged to accrued time off benefits--are to be recorded on the attendance record as FMLA leave.

  5. When it is known that the period without pay will exceed 30 days, the department is to process the appropriate HRMS documentation to place the employee on a leave of absence for the balance of the FMLA leave.

  6. University service credit continues to accrue during a FMLA leave.

G. Pay Status--for Hourly Employees only

An FMLA leave is unpaid for eligible Hourly employees.

H. Reinstatement

  1. At least two weeks before the FMLA leave is scheduled to end (if known), the department is to provide FMLA Form #3 "Release/Intent to Return to Work" to the employee.

  2. Prior to returning to work, the department should indicate on that form if the employee is required to provide a medical release from his or her health care provider.

    1. Refer to the FMLA Procedures to determine which conditions require a medical release.

  3. At the conclusion of the leave, the employee will be returned to the same position held at the time the leave began or to an equivalent position with equivalent pay, benefits, and working conditions, e.g., the same shift or the same or an equivalent work schedule.

    1. Employees on an FMLA leave are still subject to a reduction in force or reassignment that would have occurred otherwise had the employee been working.

  4. Infrequently, the reinstatement of a key employee would result in "substantial and grievous economic injury" to the university. In such cases, University Human Resource Services or the campus human resources office must approve an exception to the reinstatement rule. With the approval of University Human Resource Services or the campus human resources office, the department is to inform the key employee -- before the leave begins -- that reinstatement might not be available when he or she returns to work.

    1. Key employees are professional and academic employees who are among the highest ten percent-compensated employees at IU.

I. Proper notice of FMLA by employee

  1. Employees must provide at least 30 days advance notice of an anticipated FMLA leave. It is understood that under some circumstances it is not practical to provide 30 days notice. In these cases, employees must provide notice as soon as practicable, normally within two business days after knowledge of the need for a leave.

  2. Form #1 "FMLA Leave Notice or Request, Approval and Information" is available for this purpose; however, employees may submit a request for an FMLA leave by other means (memo, e-mail, etc.). If employees do not give proper notice of a clearly foreseeable leave, departments can delay the leave for up to thirty (30) days after receiving notice of the need for an FMLA leave.

J. Medical verification requirement

  1. In cases where an FMLA leave is to care for the serious health condition of himself or herself, or a spouse, the same sex domestic partner, child as identified in Paragraph D.1., or parent of the employee, the employee must provide medical verification on the applicable Medical Certification form #2E for Employee or #2F for Family of Employee.

  2. The campus human resources office may require a second opinion from a health care provider designated by the campus human resources office. The employee's department will pay the cost of the second opinion, if required.

  3. If there is a difference between the medical verification and the second opinion, the campus human resources office may require a third opinion from a mutually agreeable provider. Again, the employee's department will pay the cost of the third opinion.

  4. Employees who do not cooperate throughout this process may have their request for an FMLA leave, as well as their use of accrued time off, denied.

  5. Employees may be asked to recertify the need for the FMLA no more than 30 days from receipt of past certification, or if there is a change in the employee's condition.

  6. All medical certifications and related information that describe the health or medical history or condition of the employee or family members must be handled as confidential medical information. Such information must be stored in a locked file separate from the personnel file.

K. Fraudulence

An employee who fraudulently obtains an FMLA leave is subject to disciplinary action, up to and including termination.

L. Resolution of problems

Employees have the right to a prompt investigation and response to a question or problem concerning the application of this policy and the Family and Medical Leave Act of 1993. If a department head does not satisfactorily resolve the employee's concerns, he or she may take the inquiry or problem to the campus human resources office for immediate attention. The campus human resources office is to respond within two weeks.

M. Posting of FMLA

  1. Information about the FMLA will be provided to all employees by posting notices in conspicuous places within the department.

    1. Information is available from the campus human resources office.

  2. Also, information concerning the Family and Medical Leave Act of 1993 will be included in any new editions of handbooks or other publications that describe employee benefits or contain policies and practices that are of general interest to employees.

N. Department's designation and approval of FMLA

  1. It is the department's responsibility to designate any absence that meets the eligibility requirements of the FMLA as family/medical leave. The designation of FMLA will occur either as a result of an employee request for FMLA leave or when the department becomes aware that the employee's absence qualifies as FMLA leave, even though the employee may not have requested FMLA leave.

  2. Within two business days of receipt or initiation of FMLA Leave Notice or Request, Approval and Information, the department head or designee is to notify the employee whether the leave qualifies and will be counted as FMLA leave. The department will complete the applicable section of the bottom of the "FMLA Leave Notice or Request, Approval and Information" form. Copies will be retained in departmental FMLA files and sent to University Human Resource Services or to the campus human resources office.

  3. An employee's rights to FMLA may be denied or delayed only for the following reasons:

    1. timely advance notice of foreseeable leave is not given;

    2. timely submission of required medical certification is not made by the employee;

    3. the employee fails to provide required fitness to return to work certification;

    4. the employee expresses an intention not to return to work;

    5. the employee fraudulently requests or obtains FMLA;

    6. the employee is employed elsewhere while on FMLA leave without the written approval of the department head

  4. An FMLA leave should start immediately if an FMLA-eligible employee who is under Worker's Compensation for a work-related injury declines a modified position assignment offered under Worker's Compensation.

O. Discretionary leaves

  1. Leaves will not be granted for any of the reasons that qualify for a leave under the FMLA unless the employee has obtained a FMLA leave and has depleted the 12-week entitlement. Additional time may then be requested under Discretionary Leave of Absence policy for the same reason as the FMLA leave; however, all the rights and entitlement provided under the FMLA are not applicable.

  2. If an employee or an absence does not meet FMLA eligibility or qualification criteria, the employee may request to use accrued time off or request a discretionary leave of absence under the provisions of the applicable personnel policy.

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University Human Resource Services
Last updated: 21 April 2008
URL: http://www.indiana.edu/~uhrs/policies/
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