Human Resources

Family and Medical Leave

Section:	Human Resources Policies
Policy Name:	Family and Medical Leave
Policy Owner:	Executive Vice President
Responsible University Office:	Office of Human Resources
Origination Date:	July 1998
Revisions:	March 2009; August 2012; May 2013; March 2016; February 2018; June 2018
Legacy Policy Number:	4-37

SCOPE OF POLICYThis policy addresses leave provided to eligible employees by the University pursuant to the Family Medical Leave Act. The application of this policy should be considered when an employee is absent from work for three days or more.
DEFINITIONS
1. Eligible Employee. To be eligible for FMLA Leave benefits, an employee must:
  1. Have worked for the University of Delaware for a total of at least 12 months; and
  2. Have worked at least 1,250 hours over the 12 months prior to the leave date. This is just over 33 weeks (or 8 months) of full-time employment, based on a 37.5 hour work week. (Parental Leave is available under Family & Medical Leave Policy for benefited employees, regardless of FMLA leave eligibility.)
2. FMLA Leave.
  1. Eligible employees are entitled to up to 12 weeks of leave under this policy for the following reasons:
    1. For incapacity due to pregnancy, prenatal medical care or childbirth;
    2. To care for the employee’s child after birth, or placement for adoption or foster care;
    3. To care for the employee’s immediate family member (spouse, child, or parent) with a serious health condition;
    4. For a serious health condition that makes the employee unable to perform the employee’s job; and
    5. For Qualifying Exigency Leave (see below) to address a qualifying exigency arising out of a call to duty or active duty by a covered servicemember in support of a contingency operation. The covered service member must be the employee’s spouse, child, or parent.
  2. Eligible employees are entitled to up to 26 weeks of leave (note that this is the only time a 26-week period of time is used for FMLA administration) under this policy for Military Caregiver Leave (see below):
    1. To care for a covered active service member (spouse, child, parent or next of kin of employee) with a serious illness or injury incurred in the line of duty who is undergoing medical treatment, recuperation or therapy, or
    2. To care for a veteran (spouse, child, parent, or next of kin of employee) who is undergoing medical treatment, recuperation, or therapy for a serious illness or injury incurred in the line of duty.
  3. Military Caregiver Leave.
    Eligible employees may take up to 26 workweeks of leave during a single, fixed 12-month period to care for a seriously injured or ill covered service member. A covered service member is a current member of the Armed Forces, including a member of the National Guard or Reserves, or a veteran, who has a serious injury or illness incurred in the line of duty that may render the service member medically unfit to perform his or her duties. A covered veteran is an individual who was honorably discharged within the five-year period prior to the FMLA leave request. An employee may be eligible for military caregiver leave if he or she is a spouse, child, parent, or next of kin, of the covered service member. The single fixed 12-month period begins on the first day the eligible employee takes leave and ends 12 months after that date.
  4. Qualifying Exigency Leave (Active Duty Leave).
    Eligible employees may use their 12-week FMLA leave entitlement due to a qualifying exigency that arises from the employee’s spouse, child, or parent being on covered active duty or being called to covered active duty in the National Guard, Reserves, or Regular Armed Forces in support of a contingency operation. Active duty requires that the military member be deployed to a foreign country. Leave cannot be taken by next of kin. Eligible employees may also take leave to care for a military member’s parent who is incapable of self-care.
  5. Serious Health Condition.
    A serious health condition is an illness, injury, impairment, or physical or mental condition that involves either an overnight stay in a medical care facility, or continuing treatment by a health care provider for a condition that either prevents the employee from performing the functions of the employee’s job, or prevents the qualified family member from participating in school or other daily activities. Subject to certain conditions, the continuing treatment requirement may be met by a period of incapacity of more than 3 consecutive calendar days combined with at least two visits to a health care provider or one visit and a regimen of continuing treatment, or incapacity due to pregnancy, or incapacity due to a chronic condition. Other conditions may meet the definition of continuing treatment.
  6. Serious Injury or Illness.
    For purposes of Military Caregiver Leave, a serious injury or illness is an injury or illness incurred by the service member in the line of duty on active duty in the Armed Forces (or that existed before the beginning of the service 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 service member medically unfit to perform the duties of the service member’s office, grade, rank or rating. For a veteran who was a member of the Armed Forces at any time during the period of 5 years before the date on which the veteran undergoes medical treatment, recuperation or therapy, serious injury or illness means a qualifying injury or illness that was incurred in the line of duty, while 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 while on active duty in the Armed Forces), and that manifested itself before or after the service member became a veteran.
POLICY STATEMENTThe University of Delaware provides all eligible employees with up to a total of 12 workweeks of unpaid, job-protected leave during any 12-month period measured backward from the first day of leave for various reasons identified in this policy (“FMLA Leave”).
POLICY STANDARDS AND PROCEDURES
1. Pregnancy
  Employees have a right to be free from discrimination in relation to pregnancy, childbirth, and related conditions (including, but not limited to, lactation), including the right to reasonable accommodation to known limitations related to pregnancy, childbirth, and related conditions. An employee is not required to take leave to accommodate pregnancy, or a pregnancy-related condition if there is another reasonable accommodation that can be provided to the known limitations related to the pregnancy of the employee.
  
  Note to HR Liaisons/Managers/Supervisors: Employees must receive notice of their rights related to pregnancy and pregnancy accommodations within 10 days of notifying the University of the pregnancy.
2. Spouses Employed by the University
  If spouses are employees of the University, they are entitled to 12 weeks combined FMLA leave for the following reasons:
  1. To care for the employee’s child after birth or placement for adoption or foster care.
    (Note that this combined leave rule does not include leave for a serious health condition related to pregnancy, including periods of disability before and after birth, which is considered leave for an employee’s serious health condition, not leave to care for a child after birth.) If spouses are employees of the University, they are entitled to 26 weeks combined FMLA leave for Military Caregiver Leave.
3. Employee Notice Requirements
  An employee must provide 30 days advance notice to the University of Delaware if the need for FMLA leave is foreseeable by requesting leave through their supervisor. If 30 days is not possible, the employee must notify the University of Delaware the same or the next business day after the employee learns of the need for leave. Even if the need for leave is unforeseeable, the employee must follow their department’s call out procedures, absent emergency circumstances. Failure to follow such procedures may result in delay or denial of FMLA protection. Note to HR Liaisons/Supervisors/Managers: Please submit FMLA leave and related JED forms to the Office of Human Resources, Payroll and Records Management at hrsystemsadmin@udel.edu.
4. Employer Notice Requirements
  The official US Department of Labor Family and Medical Leave Poster (FMLA), “Employee Rights and Responsibilities Under The Family and Medical Leave Act,” is available to University employees at https://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf and is located in hard copy at the central employment office on the first floor of 413 Academy Street, UD Office of Human Resources. This poster will be provided to all employees who request leave, along with the “Information Regarding Your Rights and Responsibilities, Notice of Eligibility and Rights and Responsibilities” (Form WH-381), available at http://www.dol.gov/whd/forms/WH-381.pdf.
  
  Note to HR Liaisons/Supervisors/Managers: You are also responsible for completing the following forms: Approval/Designation of FMLA Leave Letter, Designation Notice, (Form WH-382), available at http://www.dol.gov/whd/forms/WH-382.pdf and, when applicable, Denial of FMLA Leave Letter, Designation Notice, (Form WH-382), available at http://www.dol.gov/whd/forms/WH-382.pdf.
5. Certification Requirements and HIPAA Authorization Form
  The University of Delaware will provide certification forms to determine eligibility for leave under this policy, specific to the reason FMLA leave is requested. Employees have 15 calendar days to return the completed certification form. If an employee returns an incomplete or insufficient certification form, the employee must supplement the certification within 7 calendar days to cure the deficiency. If the employee fails to cure the deficiency, FMLA leave may be denied. Also, if an employee fails to return a completed certification, the FMLA leave may be denied. The University of Delaware will count as FMLA leave any qualifying circumstances, regardless of whether a specific request is made by the employee. Employees will also be provided a HIPAA Authorization for Use and Disclosure of Protected Health Information (PHI) form to assist them and the University in administering their FMLA leave. The completed and signed form must accompany the completed certification form.
  
  Note to HR Liaisons: You should use the following certification forms: for an employee’s own serious health condition, use WH-380, Certification of Health Care Provider for Employee’s Serious Health Condition, available at http://www.dol.gov/whd/forms/WH-380-E.pdf; for the serious health condition of the employee’s family member, use WH-380F, Certification of Health Care Provider for Family Member’s Serious Health Condition, available at http://www.dol.gov/whd/forms/WH-380-F.pdf; for military caregiver leave, use Form 385, Certificate of Serious Injury or Illness of Covered Service Member, available at http://www.dol.gov/whd/forms/WH-385.pdf; for the serious injury or illness of a veteran, use WH-385V, Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave, available at http://www.dol.gov/whd/forms/wh385V.pdf; for qualifying exigency leave, use Form WH-384, Qualifying Exigency For Military Family Leave, available at http://www.dol.gov/whd/forms/WH-384.pdf
  
  Note to HR Liaisons/Supervisors/Managers: If the certification is incomplete or insufficient, you must provide a written explanation to the employee detailing what additional information is needed.
6. Intermittent Leave or Reduced Schedule
  An employee may take FMLA leave intermittently or on a reduced schedule only if medically necessary or due to a qualifying exigency. If medically necessary, the healthcare provider must estimate the frequency and duration of absences for unforeseeable intermittent leave.
7. Coordination of Paid and Unpaid Leave
  During periods of FMLA leave, employees are required to use their accrued eligible sick leave and then accrued vacation time. All paid and unpaid leave will be designated in accordance with University of Delaware policies, including, but not limited to Sick Leave Accrual and Use, Vacation Accrual and Use, Parental Leave, Workers Compensation, and Leave of Absence Without Pay, but in all cases shall run concurrently with FMLA leave under this policy. Short-term disability benefits may be available to some eligible employees. For more information contact the Office of Human Resources at 302-831-2171 or at hrhelp@udel.edu.
8. Continuation of Benefits
  All benefits continue while an employee is on paid status, i.e., using accrued sick or vacation time for 50 percent or more of the month (healthcare; dental; vision; life insurance; long-term disability insurance; the University of Delaware’s 403 (b) retirement plan / State pension contributions).
  
  Employees who have exhausted accrued sick leave and vacation will then take the remainder of their 12 weeks of FMLA leave on an unpaid basis. If an employee is on unpaid status for more than 50 percent of the month, accrual of sick leave and vacation stop and retirement plan contributions will not be made, i.e., to the University of Delaware’s 403 (b) retirement plan or State pension plan.
  
  During a period of approved FMLA leave, the University will continue the University’s portion of the premiums for the employee’s healthcare, dental, vision, life insurance, and disability insurance benefits up to 12 weeks (measured from the first day of leave provided that the employee continues to pay any employee-share premium for such plans). Thereafter, if an employee wishes to remain on an approved personal leave of absence, the employee will be required to pay the full premium cost of continued healthcare, dental, vision, life insurance, and disability insurance benefits.
  
  University contributions to insurance benefits stop after the 12 weeks of FMLA leave are exhausted.
9. Unlawful Interference
  The University prohibits interference with, restraining of or denial of the exercise of any right provided under the FMLA and also prohibits discharging or discriminating against any person for opposing a practice made unlawful under the FMLA or for involvement in any proceeding related to the FMLA.
10. Employee Rights and Responsibilities
  This policy contains a summary of employee rights and responsibilities under the FMLA. For a complete summary, see below, or visit http://www.dol.gov/whd/regs/compliance/posters/fmla.htm.

University Policies

Family and Medical Leave