Family and Medical Leave Act

INTRODUCTION

There are two Family and Medical Leave Acts that apply to employment at Gallaudet University: the D.C. Family and Medical Leave Act and the Federal Family and Medical Leave Act. The Acts are essentially the same (exceptions are noted below) and assure employees job-protected, unpaid leave for several specific purposes as long as certain conditions are met. Appropriate paid leaves are substituted for unpaid leave. Where there are differences in the Acts, Gallaudet must provide the employee with the provisions that are the most liberal. In general, however, Gallaudet’s leave benefits are even more generous than what is required by the Acts. Employees should refer to the following leave policies/guidelines:

• Sick Leave
• Annual Leave (Staff)
• Parental Leave
• Leave Without Pay (Leave of Absence)
• Employee FMLA Form (this needs to be completed by HR first)
• Family Member FMLA Form

This webpage does not cover every aspect of the Acts. For additional information, contact Human Resources.

PURPOSES OF LEAVE

Eligible employees are granted at least unpaid leave for any of the following reasons:

• The birth of a child (but only during the first 12 months after the birth) in order to care for the child.
• The adoption of a child or placement of a foster child (but only during the first 12 months after the adoption or placement).
• The care of a family member with a serious health condition.
• A serious health condition of the employee which makes the employee unable to perform the essential function of their job.
• A military exigency or to care for an injured service member.

DURATION OF LEAVE

The Federal FMLA (FFMLA) provides 12 weeks of unpaid leave during a 12-month period; the D.C. FMLA (DCFMLA) allows employees 16 weeks over a two-year period. Accordingly, an employee may be entitled to take 16 weeks one year under the DCFMLA and 12 weeks the next year under the FFMLA (but not vice versa). An employee is not eligible for 28 weeks in a single year. A year is defined as a calendar year.

ELIGIBILITY

Employees who have been employed, at the time the leave commences, for at least 12 months and who have worked for at least 1,000 hours (1,250 hours under the FFMLA) during the previous 12 months are eligible for the provisions under the FMLA.

FAMILY MEMBER

A family member includes:

• any person to whom you are related by blood, legal custody, or marriage;
• any person with whom you have shared, within the last year, a committed relationship (as defined in the DCFMLA) and a mutual residence;
• any child who lives with you and for whom you permanently assume and discharge parental responsibility; or
• a foster child.

Reasonable documentation may be required to confirm a family relationship.

SERIOUS HEALTH CONDITION

A serious health condition is an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. The FMLA does not apply to routine medical examinations, such as physical, or to common medical conditions, such as an upset stomach, unless complications develop.

For all conditions “incapacity” means inability to work, including being unable to perform any one of the essential functions of the employee’s position, or perform other regular daily activities due to the serious health condition, treatment of the serious health condition, or recovery from the serious health conditions. The term “treatment” includes but is not limited to examinations to determine if a serious health condition exists and evaluations of the condition.

Inpatient care is described as an overnight stay in a hospital, hospice, or residential medical care facility and it includes any period of incapacity or any subsequent treatment in connection with the overnight stay.

CONTINUING TREATMENT

Incapacity plus treatment is a period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition that also involves:

• Two or more in-person visits to a health care provider for treatment within 30 days of the first day of incapacity unless extenuating circumstances exist. The first visit must be within seven days of the first day of incapacity; or,
• At least one in-person visit to a health care provider for treatment within seven days of the first day of incapacity, which results in a regimen of continuing treatment under the supervision of the health care provider. For example, the health provider might prescribe a course of prescription medication or therapy requiring special equipment.
• Pregnancy: any period of incapacity due to pregnancy or for prenatal care.
• Chronic Conditions: any period of incapacity due to or treatment for a chronic serious health condition, such as diabetes, asthma, migraine headaches. A chronic serious health condition is one which requires visits to a health care provider (or nurse supervised by the provider) at least twice a year and recurs over an extended period of time. A chronic condition may cause episodic rather than a continuing period of incapacity.
• Permanent or Long-term Conditions: a period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective, but which requires the continuing supervision of a health care provider, such as Alzheimer’s disease or the terminal stages of cancer.
• Conditions Requiring Multiple Treatments
  • Restorative surgery after an accident or other injury; or,
  • A condition that would likely result in a period of incapacity of more than three consecutive, full calendar days if the employee or employee’s family member did not receive the treatment

ESSENTIAL FUNCTIONS OF THE POSITION

An employee is unable to perform the essential functions of the position if the health care provider finds that the employee is unable to work at all or that the employee is unable to perform any one of the essential functions of his or her position. An employee who must be absent from work to receive medical treatment for a serious health condition is considered to be unable to perform the essential functions of the position during the absence for treatment.

USE OF PAID LEAVE IN LIEU OF LWOP

Appropriate paid leaves are substituted for unpaid leave.

EMPLOYEE NOTICE/CONFIRMATION

Employees are expected to give reasonable prior notice, preferably 30 days. Leave must be recorded and designated as FMLA leave on the appropriate leave request or documentation form.

CERTIFICATION

Gallaudet may require medical certification for the employee’s own serious health condition or for the serious health condition of a family member. Medical certification should be provided in advance if possible. When this is not possible, the employee is expected to provide the certification to Human Resources within 15 calendar days of their request. A form is provided for this purpose. Supervisors may not request additional information. However, Human Resources may contact the employee’s health care provider, with the employee’s permission, for the purposes of clarification and authenticity of the medical certification.

Gallaudet may require recertification from a health care provider at regular intervals while the employee is on leave; however, not more often than every 30 days unless: (1) the employee requests an extension of leave; (2) circumstances have changed regarding the illness or injury; or (3) the supervisor receives information which casts doubt upon the continuing validity of the most recent certification. The requested information must be provided within 15 calendar days. Periodic status reports from the employee may be obtained more frequently.

If an employee fails to provide certification, the University may deny the employee continuation of leave.

SECOND AND THIRD OPINION

Gallaudet may, at its expense, seek a second or even a third opinion on the status of an employee’s health condition. The second opinion may not be given by a health care provider employed on a regular basis by the University, and the University cannot regularly contract or otherwise regularly use the services of the provider. If the opinions of the University’s and the employees’ health care provider differ; the University can require a third opinion at its expenses. The third opinion should be from a health care provider agreed to by the employee and the supervisor: the third opinion is final and binding.

INTERMITTENT LEAVE OR LEAVE ON A REDUCED SCHEDULE

Unless the supervisor and the employee agree, leave for the birth or adoption of a child or the placement of a child in foster care may not be taken intermittently or on a reduced leave schedule. Leave taken for the serious health condition of an employee or family member may be taken intermittently or on a reduced time basis when medically necessary. The use of LWOP for partial days does not affect the exempt status of an employee if the leave is for FMLA purposes

Employees are expected to make a reasonable effort to arrange intermittent leave or leave on a reduced schedule at times that do not unduly disrupt the department’s operations. Supervisors cannot require that leave be taken in increments larger than one hour. The supervisor can require the employee to transfer temporarily to a different job with equivalent pay and benefits.

MILITARY CAREGIVER LEAVE

Employees eligible for leave under the FMLA may use their leave entitlement for Military Family Leave. Military Family Leave provides you with unpaid leave for the following reasons:

• Qualifying Exigency Leave: A “qualifying exigency” arising out of a spouse, son, daughter or parent who is a military member on covered active duty or called to covered active duty status (or has been notified of an impending call or order to covered active duty) in a foreign country (known as qualifying exigency leave); and/or
• Military Caregiver Leave: To care for a spouse, son, daughter or next of kin who is a covered service member and who has incurred a serious injury or illness related to active duty service (known as military caregiver leave).

For more questions regarding to Military Caregiver and Exigency Leave, please contact Human Resources.

SPECIAL RULES WHICH APPLY TO EMPLOYEES OF SCHOOLS

Special rules apply to instructional employees of local education agencies whose principal function is to teach and instruct students (auxiliary personnel such as teacher aides and counselors are excluded). Local education agencies include public school boards and elementary and secondary schools under their jurisdiction, and private elementary and secondary schools. The rules do not apply to colleges and universities. The special rules include limitations on the taking of intermittent leave or leave on a reduced leave schedule, taking leave near the conclusion of an academic term, and restoration to an equivalent position.

• When an instructional employee requests intermittent or reduced leave for planned medical treatment for more than 20 percent of the total number of working days in the period during which the leave would be used, the supervisor may require the employee to elect either to: (1) take leave for a particular duration of time which is not greater than the duration of the planned treatment; or (2) be transferred to an alternative position.
• If an instructional employee begins leave more than five weeks before the end of a term, and if the leave will last at least three weeks, and if the employee would return to work during the three weeks before the end of the term (semester), the supervisor may require the employee to continue taking leave until the end of the term.
• If an instructional employee takes leave for a reason other than the employee’s serious health condition which commences during the five weeks before the end of the term, and if the leave will last more than two weeks, and if the employee would return to work during the last two weeks of the term, the supervisor may require the employee to continue taking leave until the end of the term.
• If an instructional employee takes leave for a reason other than the employee’s own serious health condition which begins during the last three weeks of the term, and if the leave will last more than five working days, the supervisor may require the employee to take leave until the end of the term.

BENEFITS

During an approved FMLA leave, Gallaudet will maintain your (and your dependents’, if applicable) health care benefits as if you continued to be actively employed for the duration of your approved leave. If your FMLA is paid, Gallaudet will deduct your portion of the health care premiums from your pay as normal. If your leave is unpaid, you must pay your portion of the premiums directly to Gallaudet. Arrangements for payment of premiums should be made with the Payroll Office.

If you elect not to return to work for at least thirty (30) calendar days at the end of the FMLA leave period (or an additional approved leave, such as DCFMLA), you will be required to reimburse Gallaudet for the cost of the health care benefit premiums paid by Gallaudet for maintaining coverage during your leave, unless you cannot return to work because of a serious health condition (yours or the covered family member’s) or other circumstances beyond your control.

RESTORATION

The Acts require Gallaudet to restore an employee to the position held when the leave commenced or to restore the employee to an equivalent position with equivalent pay, benefits, and other terms and conditions of employment. The Acts do not provide for the accrual or enhancement of seniority or employment benefits during the period of leave.

FITNESS-FOR-DUTY REPORT

You are expected to return to work at the conclusion of the approved FMLA leave period. If you take leave because of your own serious health condition (except if you are taking intermittent leave that is still within the approval for intermittent leave), you are required to provide medical certification that you are fit to resume work prior to returning.

Failure to return to work when your FMLA leave period expires may be considered a voluntary resignation.

LIGHT DUTY

If an employee has a serious health condition and is unable to perform any one of the essential functions of the job, the employee is not required to accept light duty or a reasonable accommodation during the FMLA period.