Applies to:	Original Policy Date:	Date of Last Review:	Approved by:
Full-time and Part-time Employees	January 3, 2011	September 2023 August 2024	John Nicklow

Policy Owner: Office of Human Resources

Policy Purpose

The Family and Medical Leave Act (FMLA) is intended to allow employees to balance their work and family life by taking reasonable unpaid leave for medical reasons, for the birth or adoption of a child, for the care of a child, spouse, or parent who has a serious health condition, for the care of a covered servicemember with a serious injury or illness, or because of a qualifying exigency arising out of the fact that the employee's spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status. Florida Tech is required to comply with FMLA. FMLA provides eligible employees of covered employers with unpaid, job-protected leave for specified family and medical reasons.

Policy Scope

This policy applies to all eligible full and part time employees.

Policy Statement

Florida Tech grants leave in accordance with the Family and Medical Leave Act. The university posts the mandatory FMLA Notice in the Office of Human Resources and upon hire provides all new employees with notices required by the U.S. Department of Labor (DOL) on the Family and Medical Leave Act

Procedures/Guidelines

I. Eligibility

To qualify to take family or medical leave under this policy, the employee must meet all the following conditions:

1. The employee must have worked for the university for 12 months or 52 weeks. The 12 months or 52 weeks need not have been consecutive. Separate periods of employment will be counted, provided that the break in service does not exceed seven years. Separate periods of employment will be counted if the break in service exceeds seven years due to National Guard or Reserve military service obligations or when there is a written agreement, stating the employer's intention to rehire the employee after the service break. For eligibility purposes, an employee will be considered to have been employed for an entire week even if the employee was on the payroll for only part of a week or if the employee is on leave during the week.
2. The employee must have worked at least 1,250 hours during the 12-month period immediately before the date when the leave is requested to commence. The principles established under the Fair Labor Standards Act (FLSA) determine the number of hours worked by an employee. The FLSA does not include time spent on paid or unpaid leave as hours worked. Consequently, these hours of leave should not be counted in determining the 1,250 hours eligibility test for an employee under FMLA.

II. Type Of Leave Covered

To qualify as FMLA leave under this policy, the employee must be taking leave for one of the reasons listed below:

1. The birth of a child and to bond with the newborn child within one year of birth.
2. The placement of a child with the employee for adoption or foster care and to care for the newly placed child within one year of placement.
3. To care for a spouse, child or parent with a serious health condition.
4. The employee’s own serious health condition makes the employee unable to perform the functions of the employee's position.
5. Qualifying exigency arising out of the fact that the employee’s spouse, child, or parent is a military member on active duty or call to covered active duty status (or has been notified of an impending call or order to covered active duty).
   • The National Guard and Reserves when the covered military member is on active duty or called to active duty during a deployment to a foreign country under a call or order in support of a contingency operation
   • Regular Armed Forces deployed to a foreign country
   An employee whose spouse, son, daughter or parent either has been notified of an impending call or order to active military duty or who is already on active duty may take up to 12 weeks of leave for reasons related to or affected by the family member's call-up or service. The qualifying exigency must be one of the following: 1) short-notice deployment, 2) military events and activities, 3) child care and school activities, 4) financial and legal arrangements, 5) counseling, 6) rest and recuperation, 7) post-deployment activities and 8) additional activities that arise out of active duty, provided that the employer and employee agree, including agreement on timing and duration of the leave.

   The leave may commence as soon as the individual receives the call-up notice. (Son or daughter for this type of FMLA leave is defined the same as for child for other types of FMLA leave except that the person does not have to be a minor.) This type of leave would be counted toward the employee's 12-week maximum of FMLA leave in a 12-month period.

6. Military caregiver leave (also known as covered service member leave) to care for an ill or injured service member. This leave may extend to up to 26 weeks in a single 12-month period for an employee to care for a spouse, son, daughter, parent or next of kin covered service member with a serious illness or injury incurred in the line of duty on active duty or because service on active duty aggravated an existing or preexisting injuries. This leave may be used to care for veterans who are undergoing medical treatment, recuperation or therapy for serious injury or illness, as long as the veteran was a member of the Armed Forces, National Guard or Reserves within five years of requiring care.

III. Amount Of Leave

An eligible employee can take up to 12 weeks for the FMLA circumstances (1) through (5) above under this policy during any 12-month period. The university will measure the 12-month period as a rolling 12-month period measured backward from the date an employee uses any leave under this policy. Each time an employee takes leave, the university will compute the amount of leave the employee has taken under this policy in the last 12 months and subtract it from the 12 weeks of available leave, and the balance remaining is the amount the employee is entitled to take at that time.

An eligible employee can take up to 26 weeks for the FMLA circumstance (6) above (military caregiver leave) during a single 12-month period. For this military caregiver leave, the university will measure the 12-month period as a rolling 12-month period measured forward. FMLA leave taken for other FMLA circumstances will be deducted from the total of 26 weeks available.

Spousal Exception

If spouses both work for the same employer, and are eligible for leave, they are only eligible for a combined 12 work weeks of leave taken for birth, adoption, foster care, and to care for a parent. Both employees are eligible for the full 12 weeks for their own illness or to care for a sick child or spouse.

Eligible spouses who both work for the same employer are limited to a combined total of 26 workweeks in a single 12-month period for military caregiver leave. This limitation applies to a combination of military caregiver leave and the leave for the other qualifying reasons listed under Spousal Exception.

IV. Employee Status And Benefits During Leave

While an employee is on leave, the university will continue the employee's health benefits during the leave period at the same level and under the same conditions as if the employee had continued to work.

Under current university policy, the employee pays a portion of the health care premium. While on paid leave, the employer will continue to make payroll deductions to collect the employee's share of the premium. While on unpaid leave, the employee must continue to make this payment, either in person or by mail. The payment must be received in the Office of Human Resources by the first day of each month. If the payment is more than 30 days late, the employee's health care coverage will be dropped for the duration of the leave. The employer will provide 15 days' notification prior to the employee's loss of coverage.

If the employee contributes to a life insurance or disability plan, the employer will continue making payroll deductions while the employee is on paid leave. While the employee is on unpaid leave, the employee must continue to make this payment, either in person or by mail. The payment must be received in the Office of Human Resources by the first day of each month. If the employee does not continue these payments, the employer will discontinue coverage during the leave.

Employees on leave will not accrue vacation or sick leave and will not be entitled to holiday pay.

V. Employee Status After Leave

An employee who takes leave under this policy may be asked to provide a fitness for duty (FFD) clearance from the health care provider. This requirement will be included in the employer's response to the FMLA request. Generally, an employee who takes FMLA leave will be able to return to the same position or a position with equivalent status, pay, benefits and other employment terms. The university may choose to exempt certain key employees from this requirement and not return them to the same or similar position.

VI. Use Of Paid And Unpaid Leave

An employee who is taking FMLA leave because of the employee's own serious health condition, or the serious health condition of a family member, must use all paid vacation, personal or sick leave prior to being eligible for unpaid leave. Sick leave may be run concurrently with FMLA leave if the reason for the FMLA leave is covered by the established sick leave policy.

Disability leave for the birth of the child and for an employee's serious health condition, including workers' compensation leave (to the extent that it qualifies), will be designated as FMLA leave and will run concurrently with FMLA. For example, if an employer provides six weeks of disability leave, the six weeks will be designated as FMLA leave and counted toward the employee's 12-week entitlement. The employee may then be required to substitute accrued (or earned) paid leave as appropriate before being eligible for unpaid leave for what remains of the 12-week entitlement. An employee who is taking leave for the adoption or foster care of a child must use all paid vacation, personal leave, or sick leave prior to being eligible for unpaid leave.

An employee who is using military FMLA leave for a qualifying exigency must use all paid vacation and personal leave prior to being eligible for unpaid leave. An employee using FMLA military caregiver leave must also use all paid vacation, personal leave, or sick leave prior to being eligible for unpaid leave.

Effective 9/1/2024, 9-month faculty members who defer their pay will have their deferral paid out at the start of their leave and will be paid based on the 9-month schedule for the balance of the Academic Year.

VII. Intermittent Leave Or A Reduced Work Schedule

The employee may take FMLA leave in 12 consecutive weeks, may use the leave intermittently (take a day periodically when needed over the year) or, under certain circumstances, may use the leave to reduce the workweek or workday, resulting in a reduced hour schedule. The leave may not exceed a total of 480 hours within a 12-month period.

The university may temporarily transfer an employee to an available alternative position with equivalent pay and benefits if the alternative position would better accommodate the intermittent or reduced schedule

For the birth, adoption or foster care of a child, the university and the employee must mutually agree to the schedule before the employee may take the leave intermittently or work a reduced hour schedule.

If the employee is taking leave for a serious health condition or because of the serious health condition of a family member, the employee should try to reach agreement with the university before taking intermittent leave or working a reduced hour schedule.

• Foreseeable intermittent leave
  • Employees must attempt to schedule their leave so as not to disrupt department/university operations
  • Employees must provide 30 days' advance notice
  • If 30 days' advance notice is not given, the employee must give notice of the need for leave "as soon as practicable," which usually means "the same or the next business day"
• Unanticipated need for intermittent/reduced schedule leave
  • Notice must be given as soon as practicable, or
  • Within time frame as established by the university policy

VIII. Certification Requirements

Certification for the Employee’s Serious Health Condition

The university will require certification for the employee's serious health condition. The employee must respond to such a request within 15 days of the request or provide a reasonable explanation for the delay. Failure to provide certification may result in a denial of continuation of leave. Medical certification will be provided using the Department of Labor (DOL) Certification of Health Care Provider for Employee’s Serious Health Condition form.

Certification for the Family Member’s Serious Health Condition

The university will require certification for the family member's serious health condition. The employee must respond to such a request within 15 days of the request or provide a reasonable explanation for the delay. Failure to provide certification may result in a denial of continuation of leave. Medical certification will be provided using the DOL Certification of Health Care Provider for Family Member's Serious Health Condition form.

Certification for Qualifying Exigency for Military Family Leave

The university will require certification of the qualifying exigency for military family leave. The employee must respond to such a request within 15 days of the request or provide a reasonable explanation for the delay. Failure to provide certification may result in a denial of continuation of leave. This certification will be provided using the DOL Certification of Qualifying Exigency for Military Family Leave form.

Certification for Serious Injury or Illness of a Current Servicemember for Military Caregiver Leave

The university will require certification for the serious injury or illness of the current servicemember. The employee must respond to such a request within 15 days of the request or provide a reasonable explanation for the delay. Failure to provide certification may result in a denial of continuation of leave. This certification will be provided using the DOL Certification for Serious Injury or Illness of a Current Servicemember for Military Caregiver Leave form.

Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

The university will require certification for the serious injury or illness of a veteran. The employee must respond to such a request within 15 days of the request or provide a reasonable explanation for the delay. Failure to provide certification may result in a denial of continuation of leave. This certification will be provided using the DOL Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave.

IX. Authentication, Clarification, Second And Third Opinions

The university's Human Resources representative may directly contact the employee's or family member’s health care provider for authentication or clarification purposes. The university will not use the employee's direct supervisor for this contact. Before the university makes this direct contact with the health care provider, the employee will be a given an opportunity to resolve any deficiencies in the medical certification. In compliance with HIPAA Medical Privacy Rules, the university will obtain the employee's permission for clarification of individually identifiable health information.

The university has the right to ask for a second opinion if it has reason to doubt the certification. The university will pay for the employee to get a certification from a second doctor, which the university will select. If necessary, to resolve a conflict between the original certification and the second opinion, the university will require the opinion of a third doctor. The university and the employee will mutually select the third doctor, and the university will pay for the opinion. This third opinion will be considered final. The employee will be provisionally entitled to leave and benefits under the FMLA pending the second and/or third opinion.

If a second or third opinion health care provider requests information relevant to the serious health condition at issue from the employee’s or the employee’s family member’s healthcare provider, and the employee or their family member does not authorize their health care provider to release such information, the FMLA may be denied.

X. Recertification

The university may request recertification for the serious health condition of the employee or the employee's family member no more frequently than every 30 days unless the employee requests an extension of leave or circumstances have changed significantly, or if the employer receives information casting doubt on the reason given for the absence. The university may provide the employee's health care provider with the employee's attendance records and ask whether need for leave is consistent with the employee's serious health condition.

XI. Procedure For Requesting FMLA Leave

All employees requesting FMLA leave must provide verbal or written notice of the need for the leave to the Office of Human Resources. Within five business days after the employee has provided this notice, a representative of the university's Office of Human Resources will provide the employee with the DOL Notice of Eligibility and Rights.

When the need for the leave is foreseeable, the employee must provide the employer with at least 30 days' notice. When an employee becomes aware of a need for FMLA leave less than 30 days in advance, the employee must provide notice of the need for the leave either the same day or the next business day. When the need for FMLA leave is not foreseeable, the employee must comply with the university's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.

XII. Designation Of FMLA Leave

Within five business days after the employee has submitted the appropriate certification form, a representative of the university's Office of Human Resources will provide the employee with a written response to the employee's request for FMLA leave using the DOL Designation Notice.

XIII. Intent To Return To Work From FMLA Leave

The university requires employees on FMLA leave to report every 15 calendar days (two weeks) on the employee's status and intent to return to work. Failure to return after FMLA leave or to transition to another approved leave option after FMLA is exhausted shall be treated as a voluntary resignation.

Definitions

Serious Health Condition: A serious health condition is defined as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.

This policy covers illnesses of a serious and long-term nature, resulting in recurring or lengthy absences. Generally, a chronic or long-term health condition that would result in a period of three consecutive days of incapacity with the first visit to the health care provider within seven days of the onset of the incapacity and a second visit within 30 days of the incapacity would be considered a serious health condition. For chronic conditions requiring periodic health care visits for treatment, such visits must take place at least twice a year.

Employees with questions about what illnesses are covered under this FMLA policy or under the University's sick leave policy are encouraged to consult with the Office of Human Resources.

If an employee takes paid sick leave for a condition that progresses into a serious health condition and the employee requests unpaid leave as provided under this policy, the university may designate all or some portion of related leave taken as leave under this policy, to the extent that the earlier leave meets the necessary qualifications.

Spouse: A person to whom the eligible employee is legally married in any state (or outside the United States, if the marriage could have been entered into in at least one state).

Child: For purposes of FMLA leave that is not military family leave, the son or daughter of an eligible employee who is under 18 years of age, or 18 years or older and incapable of self-care as a result of physical or mental disability. For purposes of this policy, “child” includes the eligible employee’s biological child, adopted child, foster child, stepchild, or legal ward. It also includes a child for whom the employee assumes or intends to assume the role of parent by providing day-to-day care or financial support. For purposes of military caregiver or qualifying exigency leave, “child” includes children of any age.

Parent: The eligible employee’s biological, adoptive, or foster parent, or an individual who assumed the role of parent by providing day-to-day care or financial support when the employee was a child.

Next of kin of a covered servicemember means the nearest blood relative other than the covered servicemember's spouse, parent, son, or daughter, in the following order of priority: blood relatives who have been granted legal custody of the covered servicemember by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins, unless the covered servicemember has specifically designated in writing another blood relative as their nearest blood relative for purposes of military caregiver leave under the FMLA. When no such designation is made, and there are multiple family members with the same level of relationship to the covered servicemember, all such family members shall be considered the covered servicemember's next of kin and may take FMLA leave to provide care to the covered servicemember, either consecutively or simultaneously. When such designation has been made, the designated individual shall be deemed to be the covered servicemember's only next of kin.

Compliance Reference

Family and Medical Leave Act of 1993 (FMLA) 29 CFR Part 825

The Fair Labor Standards Act of 1938 29 U.S.C. § 203

HIPAA 45 CFR Part 160 and Subparts A and E of Part 164

Responsibilities

Eligible employees must partner with the Office of Human Resources to initiate the formal process of taking leave under this policy.

Enforcement

The U.S. Department of Labor is responsible for the enforcement of FMLA for covered employers.