Family and medical leave

The purpose of this policy is to define the university’s procedures, and guidelines for administering family and medical leave in compliance with the Family and Medical Leave Act.

The Family and Medical Leave Act (FMLA) provides eligible employees with up to twelve (12) weeks of unpaid leave for certain family and medical reasons during a twelve (12) month period and up to twenty-six (26) weeks of unpaid leave to care for certain family members who become seriously injured or ill during active duty. During this leave, an eligible employee is entitled to continued group health plan coverage as if the employee had continued to work. At the conclusion of the leave, subject to some exceptions, an employee generally has a right to return to the same or to an equivalent position.

Covered service member- means a 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. The injury or illness must have been incurred while on active duty and in the line of duty, and must be of a nature that it could render the service member unfit to perform the duties of his or her office, grade, rank or rating.

Contingency operation- is defined in Section 101(a)(13) of the United States code and department of labor regulations. It includes operations designated by the Secretary of Defense where members of the Armed Forces are or may become involved in military actions, operations, or hostilities against an enemy or opposing forces, and certain operations that result in a call-up to or retention on active duty for members of the Uniformed Services.

Genetic information- as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family members genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving reproductive services.

Next of kin- means the nearest blood relative of that individual.

Qualifying exigent circumstance- includes the following: short-notice deployment; military events and related activities; childcare and school activities of the service member’s child; financial and legal arrangements for the service member; counseling; rest and recuperation of the service member; attending to certain post-deployment activities, including attending arrival ceremonies, reintegration briefings and events, and other official ceremonies or programs sponsored by the military for a period of 90 days following the termination of the covered military member’s active duty status, and addressing issues arising from the death of a covered military member; or additional activities that the employer and employee shall agree qualify as an exigency and agree to both the timing and duration of such leave.

Serious health condition- an injury, illness, impairment, or physical or mental condition that results in (a) any period of incapacity or treatment related to inpatient care in a hospital, hospice, or residential care facility, (b) any period of incapacity requiring absence from work, school, or other regular activity for more than three (3) calendar days that also involves continuing care [treatment two or more times by a health care provider or pursuant to a regimen of supervised care], or (c) that requires continuing care by a health care provider for a chronic, serious health condition or which results in a period of incapacity, or (d) prenatal care.

[Note: a more detailed definition of “serious health condition” can be found in the Department of Labor’s Certification of Health Care Provider Form (Form WH-380-December 1994).]

Where a term is defined in the FMLA and/or accompanying regulations, that definition will be incorporated into this policy.

I. Employee eligibility criteria

To be eligible for FMLA leave, an employee must have been employed by Lynn University:

1. For at least twelve (12) months (which need not be consecutive);
2. For at least 1,250 hours during the twelve (12) month period immediately preceding the commencement of the leave; and
3. At a worksite with:
   1. Fifty (50) or more employees; or
   2. Where fifty (50) or more employees are located within seventy-five (75) miles of the worksite.

II. Events which may entitle an employee to FMLA leave

FMLA leave may be taken for any one, or for a combination of, the following reasons:

1. The birth of the employee’s child or to care for the newborn child within one year of birth;
2. The placement of a child with the employee for adoption or foster care or to care for the newly placed child within one year of birth;
3. To care for the employee’s spouse, child or parent (but not in-law) with a serious health condition;
   1. Employees may not take family and medical leave for the care of a child who is over 18 unless the child is incapable of self-care due to a mental or physical disability;
4. The employee’s own serious health condition that makes the employee unable to perform one or more of the essential functions of his or her job;
5. To care for the employee’s spouse, child, parent or other relative who is next-of-kin, who is also a covered service member of the Armed Forces (including a member of the National Guard or Reserves) with a serious injury or illness; and/or
6. Qualifying exigent circumstances because the employee’s spouse, son, daughter or parent is on active duty in the Armed Forces, the National Guard or Reserves in support of a “contingency operation” or has been notified of an impending call to duty.

Nothing in this FMLA policy limits any employee leave rights under the university’s military leave policy, in accordance with applicable federal or state law. See the military leave policy or Employee Services for further details.

III. How much FMLA leave may be taken

An eligible employee may take up to twelve (12) workweeks of unpaid leave during a twelve (12) month period for the FMLA qualifying reasons described in numbers 1-4, and 6, above. An eligible employee is entitled to take up to twenty-six (26) workweeks of unpaid leave for the service member FMLA leave described in number 5. Unlike other FMLA leaves, the twenty-six (26) week service member leave is only available in a single twelve (12) month period. During that single twelve (12) month period, the employee may not take more than a maximum combined total of twenty-six (26) workweeks of FMLA leave for all purposes, i.e., for any or all of the reasons described in numbers 1-6.

IV. The 12-month period

The twelve (12) month period is a rolling twelve (12) month period measured backward from the date an employee uses any FMLA leave.

V. Limitations on FMLA leave

Leave to care for a newborn or for a newly placed child must conclude within twelve (12) months after the birth or placement of the child.

When both spouses are employed by Lynn University, they are together entitled to a combined total of twelve (12) workweeks of FMLA leave within the designated twelve (12) month period for the birth, adoption or foster care placement of a child with the employees, for aftercare of the newborn or newly placed child, and to care for a parent (but not in-law) with a serious health condition. Each spouse may be entitled to additional FMLA leave for other FMLA qualifying reasons (i.e., the difference between the leave taken individually for any of the above reasons and twelve (12) workweeks, but not more than a total of twelve (12) workweeks per person). For example, if each spouse took six (6) weeks of leave to care for a newborn child, each could later use an additional six (6) weeks due to his/her own serious health condition or to care for a child with a serious health condition.

If both spouses are employed by Lynn University and leave is taken for the serious injury or illness of a service member relative, or a combination of such leave and other types of FMLA leave, then they are together entitled to a maximum combined total of twenty-six (26) workweeks of FMLA leave within the designated twelve (12) month period. Note, however, that the combined twelve (12) week limit described above for other types of family leave still applies.

VI. Intermittent or Reduced Work Schedule Leave

Where medically necessary, an employee may take leave intermittently (in separate blocks of time) or through a reduced work schedule (that reduces an employee’s usual number of hours per work week or hours per workday). FMLA leave to care for a newborn or for a newly placed child may not be taken intermittently or on a reduced work schedule unless Lynn University agrees with respect to an individual leave request.

Leave because of a qualifying exigency due to the active duty or impending call to duty of a spouse, son, daughter or parent may be taken all at once or on an intermittent or reduced work schedule.

If an employee takes leave intermittently or on a reduced work schedule basis, the employee must, when requested, attempt to schedule the leave so as not to unduly disrupt Lynn University’s operations. When an employee takes intermittent or reduced work schedule leave, Lynn University may temporarily transfer the employee to an alternative position with equivalent pay and benefits for which the employee is qualified and which better accommodates recurring periods of leave.

VII. Requests for FMLA Leave

An employee should request FMLA leave by completing the Leave Request form and submitting it to Employee Services.

When leave is foreseeable, the employee must provide the University with at least thirty (30) days advance notice. If thirty (30) days’ advance notice is not practicable or the timing of the leave is not foreseeable, the employee must provide Lynn University with notice of the need for leave as soon as is practicable (i.e., within 1 or 2 business days of learning of the need for the leave).

When leave is foreseeable for an exigency due to a family member’s active duty or notice of an impending call to duty, the employee must provide as much notice as is reasonable and practicable.

Note: the Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members. In order to comply with this law, the University requests that employees do not provide any genetic information when replying to this request for medical information.

VIII. Required Documentation

When leave is taken to care for a family member, Lynn University may require the employee to provide documentation or statement of family relationship (e.g., birth certificate or court document).

When leave is taken for an exigency due to a family member’s active duty or notice of an impending call to duty, Lynn University may require the employee to provide a certification to support the need for the leave as allowed under the law.

An employee may be required to submit medical certification from a health care provider to support a request for FMLA leave for the employee’s or a family member’s serious health condition, or for a service member relative’s serious injury or illness. Medical certification forms are available through the office of Employee Services.

If Lynn University has reason to doubt the employee’s initial certification, Lynn University may with the employee’s permission:

• Have a designated health care provider contact the employee’s health care provider in an effort to clarify or authenticate the initial certification; and/or
• Require the employee to obtain a second opinion by an independent Lynn University- designated provider at Lynn University’s expense. If the initial and second certifications differ, Lynn University may, at its expense, require the employee to obtain a third, final and binding certification from a jointly selected health care provider.

During FMLA leave, Lynn University may request that the employee provide recertification of a serious health condition at intervals in accordance with the FMLA. In addition, during FMLA leave, the employee must provide Lynn University with periodic reports regarding the employee’s status and intent to return to work.

Failure to meet the certification and recertification requirements may result in counting the employee’s days off against his or her attendance record; corrective action, up to and including termination of employment; or denial of reinstatement following the leave.

If the employee’s anticipated return to work date changes and it becomes necessary for the employee to take more or less leave than originally anticipated, the employee must provide Lynn University with reasonable notice (i.e., within two (2) business days) of the employee’s changed circumstances and new return to work date. In order for a FMLA leave of absence to be extended for longer than what was originally approved, the request must be accompanied by an appropriate health care provider certification indicating the condition or disability and circumstances for the extension before the request will be considered.

If the employee gives Lynn University notice of the employee’s intent not to return to work, the employee will be considered to have voluntarily resigned.

Before the employee returns to work from FMLA leave for the employee’s own serious health condition, the employee will be required to submit a fitness for duty certification from the employee’s health care provider, with respect to the condition for which the leave was taken, stating that the employee is able to resume work.

FMLA leave or return to work may be delayed or denied if the appropriate documentation is not provided in a timely manner. Also, a failure to provide requested documentation of the reason for an absence from work may lead to termination of employment.

IX. Use of paid and unpaid leave

The leave provided under the FMLA is unpaid. If an employee has eligible paid time off (e.g., vacation, sick time), however, the employee must use any qualifying paid time concurrent with the FMLA leave. “Qualifying paid time” is time that would otherwise be available to the employee at the same time the FMLA leave is taken. The remainder of the twelve (12) workweeks of leave, if any, will be unpaid FMLA leave. Any paid time used for an FMLA qualifying reason will be charged against an employee’s entitlement to FMLA leave. This includes leave for disability or workers’ compensation injury/illness, provided that the leave meets FMLA requirements. The substitution of paid time for unpaid leave does not extend the twelve (12) week leave period.

For employees taking FMLA leave for the birth, adoption or foster placement of a child, the university provides up to eight (8) weeks of paid parental leave. Paid parental leave must be used continuously and conclude within twelve (12) months of the birth or placement of the child. Paid parental leave must run concurrently with any approved FMLA leave and will be counted toward the twelve (12) weeks of available FMLA leave in a rolling twelve (12) month period. Employees may not receive more than eight (8) weeks of paid parental leave in a rolling 12-month period. Multiple births, adoptions or foster placements within that time do not increase the length of paid parental leave. If the employee has no other eligible paid time off, the remainder of the twelve (12) workweeks of FMLA leave, if any, will be unpaid.

X. Designation of leave

Lynn University will notify the employee that leave has been designated as FMLA leave. Lynn University may provisionally designate the employee’s leave as FMLA leave if Lynn University has not received medical certification or has not otherwise been able to confirm that the employee’s leave qualifies as FMLA leave. If the employee has not notified Lynn University of the reason for the leave, and the employee desires that leave be counted as FMLA leave, the employee must notify Employee Services within two (2) business days of the employee’s return to work that the leave was for an FMLA reason.

XI. Maintenance of health benefits

During FMLA leave an employee is entitled to continued group health plan coverage under the same conditions as if the employee had continued to work.

To the extent that an employee’s FMLA leave is paid, the employee’s portion of health insurance premiums will be deducted from the employee’s salary. For the portion of FMLA leave that is unpaid, the employee’s portion of health insurance premiums may be paid at the same time as if made by payroll deduction. Similarly, employees contributing to their family’s health care coverage are required to make the appropriate contributions during the approved family or medical leave of absence.

If the employee’s payment of health insurance premiums is more than thirty (30) days late, Lynn University may discontinue health insurance coverage upon notice to the employee.

XII. Prohibition on working during FMLA leave

Except where express authorization is given, employees on FMLA leave are prohibited from performing any work, paid or unpaid, for any other person or entity, including the employee’s own business. Violations of this prohibition may result in FMLA leave being revoked and the employee’s prior days off being counted against his or her attendance record; corrective action, up to and including termination of employment; or denial of reinstatement following the leave.

XIII. Return from FMLA leave

Upon return from FMLA leave, Lynn University will place the employee in the same position the employee held before the leave or an equivalent position with equivalent pay, benefits and other employment terms.

A. Limitations on reinstatement

An employee is entitled to reinstatement only if s/he would have continued to be employed had FMLA leave not been taken. Thus, an employee is not entitled to reinstatement if, because of a layoff, reduction in force or other reason, the employee would not be employed at the time job restoration is sought.

Lynn University reserves the right to deny reinstatement to salaried, eligible employees who are among the highest paid ten (10) percent of Lynn University’s employees employed within seventy-five (75) miles of the worksite (“key employees”) if such denial is necessary to prevent substantial and grievous economic injury to Lynn University’s operations. If a key employee is notified of the university’s intent to deny restoration of employment, the key employee will continue to be entitled to maintenance of health benefits until such time as the key employee gives notice that (s)he no longer wishes to return to work, FMLA leave entitlement is exhausted, or restoration is actually denied at the end of the leave period. Premium costs paid on behalf of key employees in such circumstances are not recoverable.

B. Failure to return to work following FMLA leave

If the employee does not return to work following the conclusion of FMLA leave, the employee will be considered to have voluntarily resigned. In addition, employees who exceed their FMLA entitlement without extension(s) of their leave approved under other appropriate leave provisions, may be subject to dismissal from employment.

Lynn University may recover health insurance premiums that Lynn University paid on behalf of the employee during any unpaid FMLA leave except that Lynn University’s share of such premiums may not be recovered if the employee fails to return to work because of the employee’s or a family member’s serious health condition or because of other circumstances beyond the employee’s control. In such cases, Lynn University may require the employee to provide medical certification of the employee’s or the family member’s serious health condition.

XIV. Employee rights

Any employee who feels his or her rights to FMLA leave have been improperly denied, restrained, violated, or interfered with in any way may lodge a complaint with Employee Services. Lynn University will investigate and take appropriate remedial action. An employee may also file a complaint with the US Department of Labor (www.wagehourdol.gov; 1-866-487-9243) or file a private legal action. Discrimination and retaliation against employees who exercise rights under the FMLA and this Policy will not be tolerated and use of FMLA leave will not result in the loss of accrued benefits or affect an employee’s rights under any other law, policy, contract or collective bargaining agreement.

For further information or clarification about FMLA leave, please contact Employee Services.

XV. FMLA time off donation

Lynn University has established a procedure by which eligible employees may voluntarily donate a portion of their accrued unused time off to assist another employee who is on FMLA leave and has exhausted his/hers due to extended illness or disability.

All regular full-time employees are eligible to participate. Time off donations will not be accepted from employees who have given notice of resignation.

1. Donations of accrued time off must be in whole hours, with a minimum of one hour.
2. The donating employee shall specify the employee to receive the donation.
3. Only employees who are on FMLA leave may receive time off donations.
4. Donations may not be used for intermittent FMLA leave or leave taken for the birth, adoption or foster placement of a child.
5. Prior to processing the first donation(s) to an employee, Employee Services will verify the eligibility of the named recipient.
6. Employee Services will not inform the recipient of the names of those donating hours.
7. Once a donation has been processed, neither the donor nor the recipient may revoke the transaction.
8. Time off donations are applied to the designated recipient on an as-needed basis in the order they are received.

To learn more about this policy or the supporting procedures, please contact Employee Services.