DECA(LEGAL) - LEAVES AND ABSENCES: FAMILY AND MEDICAL LEAVE

Note: This policy summarizes the Family and Medical Leave Act (FMLA) and implementing regulations, including family and medical leave for an employee seeking leave because of a relative's military service. For provisions on leaves in general, see DEC. For provisions addressing leave for an employee's military service, see DECB.

Section I: General Provisions

Covered Employer

"Eligible Employee"

Has been employed by the employer for at least 12 months. The 12 months need not be consecutive, subject to 29 C.F.R. 825.110(b);

Has been employed for at least 1,250 hours of service with such employer during the 12 months immediately preceding the commencement of leave; and

Is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite.

29 U.S.C. 2611(2); 29 C.F.R. 825.102, .110

Qualifying Reasons for Leave

For the birth of a son or daughter, and to care for the newborn child;

For placement with the employee of a son or daughter for adoption or foster care. [For the rules regarding leave for, "adoption" and "foster care," see 29 C.F.R. 825.121];

To care for the employee's spouse, son, daughter, or parent with a serious health condition;

Because of a serious health condition that makes the employee unable to perform the functions of the employee's job;

Because of any 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 has been notified of an impending call or order to covered active duty status); and

To care for a covered servicemember with a serious injury or illness incurred in the line of duty if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember.

29 U.S.C. 2612(a); 29 C.F.R. 825.112

Qualifying Exigency

Short-notice deployment.

Military events and related activities.

Childcare and school activities.

Financial and legal arrangements.

Counseling.

Rest and recuperation.

Post-deployment activities.

Parental care.

Additional activities, provided that the employer and employee agree that the leave shall qualify as an exigency, and agree to both the timing and duration of such leave.

29 C.F.R. 825.126

Pregnancy or Birth

Definitions

"Adoption"

"Covered Active Duty or Call to Covered Active Duty Status

In the case of a member of the Regular Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country; and

In the case of a member of the Reserve components of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country under a federal call or order to active duty in support of a contingency operation, as described by 29 C.F.R. 825.102.

29 C.F.R. 825.102, .122(a), .126(a)

"Covered Servicemember"

A current member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy; is otherwise in outpatient status; or is otherwise on the temporary disability retired list for a serious injury or illness; or

A covered veteran who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness.

"Covered Veteran"

29 C.F.R. 825.102, .122(a), .127(b)

"Foster Care"

"Military Caregiver Leave"

"Next of Kin of a Covered Servicemember"

29 C.F.R. 825.102, .122(e), .127(d)(3)

"Parent"

"Parent of a Covered Servicemember"

"Serious Health Condition"

"Serious Injury or Illness"

In the case of a current member of the Armed Forces, including a member of the National Guard or Reserves, an injury or illness that was incurred by the covered servicemember in the line of duty on active duty in the Armed Forces or that existed before the beginning of the member's active duty and was aggravated by service in the line of duty on active duty in the Armed Forces and that may render the servicemember medically unfit to perform the duties of the member's office, grade, rank, or rating; and

In the case of a covered veteran, an injury or illness that was incurred by the member in the line of duty on active duty in the Armed Forces (or existed before the beginning of the member's active duty and was aggravated by service in the line of duty on active duty in the Armed Forces) and manifested itself before or after the member became a veteran, and is:

A continuation of a serious injury or illness that was incurred or aggravated when the covered veteran was a member of the Armed Forces and rendered the servicemember unable to perform the duties of the servicemember's office, grade, rank, or rating;

A physical or mental condition for which the covered veteran has received a U.S. Department of Veterans Affairs Service-Related Disability Rating (VASRD) of 50 percent or greater, and such VASRD rating is based, in whole or in part, on the condition precipitating the need for military caregiver leave;

A physical or mental condition that substantially impairs the covered veteran's ability to secure or follow a substantially gainful occupation by reason of a disability or disabilities related to military service or would do so absent treatment; or

An injury, including a psychological injury, on the basis of which the covered veteran has been enrolled in the U.S. Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.

29 C.F.R. 825.102, .127(c)

"Son or Daughter"

"Son or Daughter of a Covered Servicemember"

"Son or Daughter on Covered Active Duty or Call to Covered Active Duty Status"

"Spouse"

Section II: Leave Entitlement and Use

Amount of Leave

29 U.S.C. 2612(a), (f); 29 C.F.R. 825.120(a)(3), .200–.201

Determining the 12-Month Period

The calendar year;

Any fixed 12-month leave year, such as a fiscal year, or a year starting on an employee's anniversary date;

The 12-month period measured forward from the date any employee's first FMLA leave begins; or

A "rolling" 12-month period measured backward from the date an employee uses any FMLA leave.

29 C.F.R. 825.200(b)

Military Caregiver Leave

Holidays, Summer Vacation, and Other Breaks

Intermittent or Reduced Leave Schedule

29 U.S.C. 2612(b); 29 C.F.R. 825.202

Transfer to Alternative Position

Calculating Leave Use

Substitution of Paid Leave

Compensatory Time

FMLA and Disability Leave Plans

FMLA and Workers' Compensation

29 C.F.R. 825.207(e)

Maintenance of Health Benefits

29 U.S.C. 2614(c); 29 C.F.R. 825.209(a), (c)–(e)

Payment of Premiums

Failure to Pay Premiums

29 C.F.R. 825.212

Recovery of Benefit Cost

Maintenance of Other Benefits

Right to Reinstatement

Moonlighting During FMLA Leave

Pay Increases and Bonuses

29 C.F.R. 825.215(c)

"Key Employees"

Section III: Notices and Medical Certification

Employer Notices

General Notice

Including the notice in employee handbooks or other written guidance to employees concerning employee benefits or leave rights, if such written materials exist; or

By distributing a copy of the general notice to each new employee upon hiring.

29 U.S.C. 2619; 29 C.F.R. 825.300(a)

Eligibility Notice

29 C.F.R. 825.300(b)

Rights and Responsibilities Notice

29 C.F.R. 825.300(c)

Designation Notice

29 C.F.R. 825.300(d)

Retroactive Designation

Employee Notice

Foreseeable Leave

29 C.F.R. 825.302

Unforeseeable Leave

Compliance with Employer Requirements

Certification of Leave

Timing

Incomplete or Insufficient Certification

29 C.F.R. 825.305(c)–(d)

Medical Certification of Serious Health Condition

29 C.F.R. 825.306

Genetic Information

Authentication and Clarification

29 C.F.R. 825.307(a)

Second and Third Opinions

Foreign Medical Certification

Recertification

29 C.F.R. 825.308

Annual Medical Certification

Certification—Qualifying Exigency Leave

29 C.F.R. 825.309

Certification—Military Caregiver Leave

29 C.F.R. 825.310

Intent to Return to Work

Fitness for Duty Certification

29 C.F.R. 825.312(a)–(c)

Failure to Provide Certification

Note: Prototypes of the DOL notice and certification forms are available from the nearest office of the DOL Wage and Hour Division or on the Internet.

Section IV: Miscellaneous Provisions

Records

29 C.F.R. 825.500

Prohibition Against Discrimination and Retaliation

Texas Southmost College

DECA(LEGAL)-LJC

UPDATE 31

DATE ISSUED: 3/17/2016