FAQ - FMLA

The FMLA time off ends immediately upon the death of the employee's seriously ill family member. However, the employee may be entitled to take time off for bereavement leave under policy or contract.

Although in most cases a health condition that qualifies an employee for disability payments under UPD/EPD will also qualify as a serious health condition under FMLA/CFRA, it cannot be assumed that eligibility for disability payments under UPD/EPD automatically entitles an employee to family and medical leave. To qualify for family and medical leave due to the employee's serious health condition, the following three tests must be met:

• The employee must satisfy the employment eligibility requirements under FMLA/CFRA;
• The employee's health condition must satisfy the definition of a serious health condition under FMLA/CFRA; and
• The employee must not have already exhausted his or her entitlement to family and medical leave.

Yes, a supervisor may require an employee to provide reasonable documentation such as a birth certificate or court document of a family relationship or a statement from the employee concerning the relationship.

It will not always be possible to know if a request for vacation should really be considered as family and medical leave and covered under the FMLA and CFRA. However, since vacation is granted based on the department’s operational needs, a department may postpone an employee's request for vacation due to staffing requirements if the employee has not specifically requested vacation for a family and medical leave qualifying reason.

The employee will need to provide sufficient information to establish a qualifying reason under FMLA/CFRA so that the supervisor is aware of the employee's potential entitlement (i.e., that the leave may not be denied). The employee's request can then be reviewed as a potential family and medical leave and eligibility under FMLA/CFRA assessed.

GSIs, GSRs, per diems, and contract employees are entitled to family and medical leave if they meet the eligibility requirements; however, leave need not be granted beyond a predetermined separation date. Under FMLA, University-paid health care coverage is required only if the employee has an entitlement to health care coverage at the time the leave is requested. For the purpose of administering family and medical leave for GSIs and GSRs, the graduate student health insurance premiums paid by the University are considered "employer-provided" health care benefits.

Employees may be eligible for up to 12 workweeks in a calendar year. If and employee has a 100% appointment, this translates to 60 work days or 480 hours. A part-time employee if eligible, also receives 12 workweeks pro-rated according to their established schedule.

Faculty holding joint appointments or without salary appointments will be eligible for family and medical leave only if:

• The "12 months of University service" requirement is met;
• It cannot be clearly demonstrated that the faculty member did not work at least 1,250 hours for the University during the previous 12-month period; and The University is the "primary employer."

Academic appointees must meet the same "12 months of service" criteria as any other employee to be eligible for family and medical leave. In addition, full-time faculty are deemed to have worked the requisite 1,250 hours unless the University can clearly demonstrate that the faculty member has not worked the requisite hours.

No it is not. Although it is harder for part-time and partial year employees to satisfy this requirement, most part-time employees appointed at 75 percent or more time will meet the "1,250 hours worked" requirement, provided that paid and unpaid absences during the previous 12-month period have not been excessive.

You should assume that an exempt appointee with at least 12 months of University service is eligible for family and medical leave unless your written records indicate that the employee has worked less than the required 1,250 hours.

The "1,250 hours worked" requirement means 1,250 hours of actual work, including overtime; it does not include periods of paid leave (including all observed holidays, vacation, and sick leave) and unpaid leave. Service need not be continuous.

In the event that both you and your spouse are eligible for leave under FMLA/CFRA, you may receive 12 weeks each if leave is taken for your own serious health condition or that of a child, spouse or parent.

If both you and your spouse are employed by the University, and you both qualify for leave under the FMLA, you may receive a combined total of 12 weeks of leave for the birth, adoption or placement of a child. Leave can be taken consecutively or simultaneously. Intermittent leave granted for the care of a newborn or placement of a new child can only be granted where business needs permit.

Grandparents, grandchildren, in-laws, domestic partners as well as other persons, who may not be related but are residing in the employee’s household, are not covered by FMLA and/or CFRA. There may be provisions in other policies and contract articles that allow use of leave to care for these individuals, so refer to PPSM, APM or the appropriate union contract.

A family member is a parent, spouse, or child of the employee. "Child" means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of an employee who stands in place of a parent (that is, who is charged with a parent's rights, duties, and responsibilities) to that child who is either under 18 years of age or is an adult dependent child. An adult dependent child is an individual who is incapable of self-care because of a mental or physical disability within the meaning of Government Code section 12926.

Under federal regulations, a "health care provider" is defined as: a doctor of medicine or osteopathy, podiatrist, dentist, chiropractor, clinical psychologist, optometrist, nurse practitioner, nurse-midwife, or a clinical social worker who is authorized to practice by the State and performing within the scope of their practice as defined by State law, or a Christian Science practitioner. A health care provider also is any provider from whom the University or the employee's group health plan will accept medical certification to substantiate a claim for benefits.

A "serious health condition" means an illness, injury, impairment, or physical or mental condition that involves one of the following:

• Hospital Care

Inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility, including any period of incapacity or subsequent treatment in connection with or consequent to such inpatient care.

• Absence Plus Treatment

A period of incapacity of more than three consecutive calendar days (including any subsequent treatment or period of incapacity relating to the same condition), that also involves:

1. Treatment two or more times by a health care provider, by a nurse or physician's assistant under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or
2. Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.

• Pregnancy

Any period of incapacity due to pregnancy, or for prenatal care. [NOTE: an employee's own incapacity due to pregnancy is covered as a serious health condition under FMLA but not under CFRA.]

• Chronic Conditions Requiring Treatment

A chronic condition which:

1. Requires periodic visits for treatment by a health care provider, or by a nurse or physician's assistant under direct supervision of a health care provider;
2. Continues over an extended period of time (including recurring episodes of a single underlying condition); and
3. May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).

• Permanent/Long-term Conditions Requiring Supervision

A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective. The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider. Examples include Alzheimer's, a severe stroke, or the terminal stages of a disease.

• Multiple treatments (Non-Chronic Conditions)

Any period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), kidney disease (dialysis).

You cannot request a diagnosis or description of the condition. Medical certification is limited to the following information:

• Confirmation that the employee (or the employee's family member) has a serious health condition as defined by Federal and State law;
• The date of the onset of the serious health condition;
• The probable duration of the serious health condition;
• A written statement that the employee is not able to perform the essential functions of his or her job; and
• If intermittent leave or a reduced work schedule is being considered, a statement that it is medically necessary.

Although the University is not permitted to request additional information from the employee's health care provider if the employee has submitted a complete certification signed by the health care provider, a health care provider that represents the University may contact the employee's health care provider, with the employee's permission, for the purpose of clarifying and authenticating the medical certification.

The University may require medical re-certification of employees who are completely off work or on a reduced schedule leave once the originally specified leave period has ended. In cases where the leave period is indefinite, a request for re-certification may be made every 30 days.

An employee who is returning from an intermittent family and medical leave cannot be required to obtain a return-to-work medical certification. However, the University can seek re-certification of the underlying illness or injury once the leave period specified on the medical certification has come and gone or prior to that time if:

1. The circumstances have changed (e.g., the employee is absent more
   frequently than the certification indicated); or
2. The University obtains information casting doubt upon the stated
   reasons for the absence.

Under law, medical certification is discretionary for both staff and academic appointees. Leave may be designated by the Department as falling under FMLA/CFRA if you know, or have reason to believe, a serious health condition exists (e.g., the employee is hospitalized). However, University policies and union contracts for staff and academic personnel differ on whether medical certification is mandatory in order to document a FMLA/CFRA qualifying event. Check the applicable policy or union contract, or consult with your Employee Relations Specialist or Office of Academic Personnel.

Yes, under the following circumstances:

Certification of medical release to work may be obtained from staff employees who are not covered by a collective bargaining agreement if the department has a uniformly applied policy requiring all employees who take medical leaves for similar purposes to obtain medical certification of their ability to perform the essential functions of their position.

Certification of medical release must be obtained from employees who are covered by system-wide collective bargaining agreements where family and medical leave has been negotiated, if the employee has been granted a medical leave for any reason except pregnancy-related disability.

Certification of medical release to work may be required from academic employees in accordance with local procedures.

Failure to provide a medical release to return to work when requested by the University may result in denial of reinstatement until after the employee submits the required medical release.

Generally, leaves cannot be retroactively designated as falling under FMLA/CFRA. Any request to retroactively designate time off as FMLA/CFRA leave should be carefully reviewed with your Employee Relations Consultant. If an employee wishes to request that time off be considered as FMLA/CFRA leave, he/she should make the request within 2 days of returning to work.

Yes. Departments must provide the employee with notice of eligibility and designation of the leave as qualifying under FMLA/CFRA. The University's initial notice to an employee that a request for leave will be designated as family and medical leave must be given verbally or in writing within two business days of the date the leave was requested. If the notice is verbal, it must be confirmed in writing no later than the following payday (unless the payday is less than one week after the verbal notice, in which case the notice must be given no later than the subsequent payday). The written notice may be given in any form, including the "Leave of Absence Form."

Grandparents, grandchildren, in-laws or other persons that are not related but are residing in the employee’s household are not covered by FML.

An eligible employee may take FMLA covered leave in order to care for a seriously ill spouse, child, or parent as defined by the law, policy or contract. The health care provider must either certify that third party care is required or that the employee’s presence would be beneficial to the patient. Certification will be sufficient to satisfy this requirement and entitle the employee to FMLA time off. This provision is intended to accommodate needs for leave to provide psychological comfort for a seriously ill eligible family member, and to arrange “third party” care for an eligible family member.

Because health premiums are paid in advance for the entire month (e.g., August earnings generate September UC contributions for September coverage), premiums would have already been paid for the entire month even if the leave began in the middle of the month. If the leave lasted the full twelve weeks, it would also end in the middle of a month. UC contributions for Health insurance coverage would have already been generated at the beginning of that month for the entire month. As a result, the UC contribution may be generated for up to four months, although the actual entitlement is only 12 workweeks.

Yes, in most cases:

• Staff employees who are not covered by a collective bargaining agreement must exhaust all accrued vacation prior to taking an unpaid leave unless otherwise requested by the employee and approved by the department head, provided that the leave is not running concurrently with pregnancy disability or work-incurred illness or disability leave. At the employee's option, accrued sick leave may be used in the event that the employee is taking leave due to his or her own serious health condition or up to 30 days sick leave in the event that the leave is being used to care for the employee's family member.
• The use of paid leave varies by collective bargaining agreement for staff employees who are covered by contracts. You should consult the applicable contract for details.
• Academic appointees may exhaust accrued vacation and sick leave prior to an unpaid family and medical leave. Under no circumstance may the University require that an employee use accrued compensatory time off during family and medical leave. However, if the University allows an employee who is otherwise qualified for family and medical leave to use accrued compensatory time off, such time cannot be counted against the employee's entitlement to 12 workweeks of family and medical leave.

If an employee receives temporary disability payments under the Workers' Compensation Act and the employee has a serious health condition as defined by Federal and State family and medical leave statutes, the first 12 workweeks of the leave should be designated as family and medical leave, provided that the employee meets the eligibility requirements and has not already exhausted his or her 12 workweek entitlement.

The employer is responsible for designating the FML, not the employee. Leave may be designated by the university as FML if you have knowledge or reason to believe a serious health condition exists (e.g., the employee is hospitalized or off work due to an occupational injury or has communicated to you that the need for leave is to care for a seriously ill family member that is medically documented). It is critical that the University designate qualifying leave as family and medical leave for a number of reasons:

1. to ensure that the employee gets the benefit and protection of the law
2. to establish that we have complied with our notice and designation obligations
3. to make sure that we are not obligated to give additional family and medical leave during that leave year simply because of a failure to properly designate the original leave

No. If the university allows an employee who is otherwise qualified for family and medical leave to use accrued compensatory time off, such time cannot be counted toward the employee’s entitlement to workweeks of family and medical leave. Further, under no circumstances may the University require that an employee use accrued compensatory time off during family and medical leave.

No. The fact that a holiday may occur within the week taken as family and medical leave has no effect; the week is counted as a week of family and medical leave. However, if employees generally are not expected to report for work for one or more weeks (e.g., winter holiday closure), the days of the closure do not count against the employee's entitlement to family and medical leave.

ASMD does not affect FML. ASMD is not a leave, therefore FML is not affected.

Under the FMLA, employers are allowed to dock the leave banks and pay of FLSA exempt employees for partial day absences without affecting the employee’s qualification for exemption under FLSA. Records of actual hours worked by FLSA exempt staff and faculty who are granted family and medical leave on either a reduced work schedule or on an intermittent basis must be kept to ensure that the employee or member of the faculty receives his or her complete entitlement to 12 workweeks of leave and so that the department knows when the family and medical leave ends.

When an employee takes leave by working a reduced work schedule (e.g., reducing from 100% to 80%) or on an intermittent basis (e.g., a day here and there in different weeks), only the amount of leave actually taken is counted toward the 12 weeks leave entitlement.

If an employee's schedule varies from week to week, a weekly average of the hours worked over the 12 weeks prior to the beginning of the leave period should be used to calculate the employee's normal workweek.

An eligible part-time employee is entitled to family and medical leave for a period not to exceed 12 of his or her scheduled workweeks. For example, an employee who has a scheduled workweek of four hours a day (five days a week) is entitled to leave for 12 workweeks each comprised of four hour days.

The 12-month period is a calendar year, January – December.

The University is required to keep such records for Department of Labor inspections for a period of no less than three years. Failure to maintain records is a violation of FMLA and subjects the University to applicable sanctions. If complete records are not kept of all qualified family and medical leaves, the University may find itself in the position of granting additional time off (i.e., up to 12 workweeks) with health care benefits coverage for a qualified family and medical leave because records do not exist showing that family and medical leave had already been taken. Additionally, failure to properly document leave as covered by FMLA could result in disciplinary action being taken against an employee based on absences that were for protected family and medical leave purposes.

The employee's family and medical leave records must be transferred to the new department or campus.

FMLA paperwork should be maintained in a separate file like medical records. [Note: Medical records should not be kept in the employee's personnel file.]

FML generally cannot be retroactively designated/ therefore, it is important to provisionally designate leave as family and medical leave. According to the federal regulations, failure to designate a leave as family and medical means that the person may enjoy the protection of the Act for the period of the leave not properly designated and is still entitled to the 12 workweeks of FML form the date the leave is finally designated.

The home department is the Office of Record and therefore, responsible for determining and documenting eligibility.

Local procedures may vary, but in most cases, the home department has been designated the Office of Record, and therefore, has the responsibility for maintaining all documentation and records pertaining to the family and medical leave. It is also the department’s responsibility to keep the local employee relations, human resources, or academic personnel office updated regarding the status of a given employee’s family and medical leave.