UTMB HANDBOOK OF OPERATING PROCEDURES

Section 3 Human Resources Policies Subject 3.9 Leave Administration Policy 3.9.10 Family and Medical Leave

09/15/95 -Originated 02/17/06 - Reviewed w/ changes - Reviewed w/o changes Human Resources - Author

Family and Medical Leave

Audience

This policy is for all UTMB employees.

Eligibility

In accordance with the Family and Medical Leave Act (FMLA), UTMB employees who meet the following criteria are eligible for up to twelve (12) weeks of family and medical leave per year for certain family and medical reasons. Employees must be: • employed by the State of Texas for at least twelve (12) months (Note: This time does not have to be consecutive or continuous), and • worked for the State of Texas for at least 1250 hours during the 12-month period immediately preceding commencement of the leave.

Leave Requirements

UTMB will grant its employees up to 12 workweeks of leave in a 12-month period for one or more of the following reasons: • Birth of a son/daughter and care after such birth; • Placement with an employee of a son/daughter for adoption or foster care; • Serious health condition of spouse, child or parent of employee, or • Serious health condition of employee that makes the employee unable to perform his or her job functions. For qualifying employees taking FMLA, sick leave must be exhausted first, followed by any other accruals. If the employee qualifies for sick leave pool, all other accruals must be exhausted before use of sick leave pool. Leave for birth or placement for adoption can be taken prior to the actual birth or adoption. An employee’s entitlement to leave for the birth or placement of a child expires 12 months after the birth or placement. When an employee is taking leave to care for a spouse, child, or parent with a serious health condition, or due to his/her own serious health condition, the employee will be required to support the leave request with medical certification from the health care provider. The medical certification must be furnished at least 15 days after the employee notifies UTMB of the requirement of FMLA. Failure to provide medical certification within the 15 days may result in denial of FMLA. If UTMB wishes to obtain another opinion, a second opinion at the University’s expense may be obtained. If the two opinions differ, a third opinion may be obtained at UTMB’s expense, and will be the final determination. The healthcare provider responsible for providing the third opinion must be approved jointly by UTMB and the employee. Medical certification is required if an employee is planning to use sick leave accruals for the birth of a child. Documentation to support adoption or foster care may be required.

Adoption or Placement of a Child

Up to six weeks of sick leave may be used for the adoption of a child under 3 years of age. Remaining leave under FMLA entitlement must be taken using other accruals or leave without pay. Sick leave may not be used for adoption of a child over 3 years of age. Other accruals or leave without pay may be used in those instances.

Immediate Family Members Covered

For the purpose of FMLA, an employee’s spouse, children, and parents are considered immediate family. • Spouse is defined in accordance with the applicable State Law including common law marriages when recognized by the State. • Unmarried domestic partners do not qualify for family leave. • The term ‘parent’ does not include parent “in law.” Persons who have day to day responsibilities to care for and financially support a child or, in the case of an employee, had such responsibility for the employees when the employee was a child are covered by FMLA (loco parentis). In this case a biological or legal relationship is not necessary • Son or daughter is defined under the FMLA to include a child under 18 years or one who is 18 years or older who is incapable of self care because of a mental or physical disability. For purposes of confirmation of family relationship, UTMB may require the employee giving notice of the need for leave to provide reasonable documentation or statement of family relationship. This documentation may take the form of a simple statement from the employee, or a child’s birth certificate, a court document, etc. UTMB is entitled to examine documentation such as birth certificate, etc., but the employee is entitled to the return of the official document submitted for this purpose.

Serious Health Condition Defined

A serious health condition is one that requires inpatient care or continuing outpatient treatment by a health care provider. The term “serious health condition” is intended to cover those conditions which affect one’s health to the extent that inpatient care is required or continuing outpatient treatment by a provider of health care is necessary on a recurring basis for more than 3 consecutive calendar days treatment and recovery. The FMLA is not intended to cover short-term conditions for which treatment and recovery are brief.

Pregnancy and Use of Paid Accruals

Pregnant employees may be paid sick leave for doctor's visits, illnesses associated with pregnancy, delivery, and recuperation after delivery. The amount of sick leave paid for recuperation will be based on a doctor's statement. The remaining FMLA entitlement will be paid from other accruals such as vacation, compensatory time, or leave without pay. Only absences related to a serous health condition, such as complications of pregnancy, may be deducted from the employee’s FMLA entitlement prior to the birth of the child.

Pregnancy and Use of Paid Accruals (cont’d)

Fathers may be granted sick leave only if the child is actually ill or to care for his spouse while she is recovering from labor and delivery. A doctor's statement indicating the need for care by another person during recovery from childbirth will be required. The remaining FMLA entitlement will be paid from other accruals such as vacation, compensatory time or given as leave without pay.

Substance Abuse

Treatment of substance abuse may be included under the FMLA. However, absences because of an employee’s use of a substance without treatment does not qualify for the FMLA. The inclusion of substance abuse does not prevent UTMB from taking any employment action against an employee who is unable to perform the essential functions of the job provided UTMB complies with the Americans with Disabilities Act (ADA) and does not take action against the employee because such employee exercises his rights under the FMLA.

Husband & Wife Employed by State of Texas

A husband and wife who are eligible for FMLA leave and are employed by the State of Texas may be limited to a combined total of 12 workweeks of leave during any 12-month period if the leave is taken • for birth of the employee’s son or daughter or to care for the child after birth; • for placement of a son or daughter with the employee for adoption or foster care, or to care for the child after placement; or, • to care for the employee’s parent with a serious health condition. Where the husband and wife both use a portion of the total 12-week FMLA leave entitlement for one of the purposes listed above, the husband and wife would each be entitled to the difference between the amount he or she has taken individually and 12 weeks for FMLA leave for a purpose other than those purposes above. (For example, if each spouse took 6 weeks of leave to care for a healthy, newborn child, each could use an additional 6 weeks due to his or her own serious health condition or to care for a child with a serious health condition.)

WCI Leave

Use of accruals must conform with guidelines in IHOP Policy 3.11.1, Worker’s Compensation Insurance.

Intermittent Leave

Leave taken due to the serious health condition of the employee or a member of the employee’s family may be taken at the time it is needed. There is no minimum limitation on the number of hours of intermittent leave that may be taken. For example, the leave may be taken in increments of 2 hours, 4 hours, etc., provided proper notice has been given if the need for the leave is foreseeable. When an employee has requested intermittent leave, UTMB may transfer the employee to an alternative position with equivalent pay and benefits if qualified for the position, and if it better accommodates the recurring periods of leave more so than the employee’s current job.

Paid Leave Usage

Employees are required to use all accumulated vacation and sick leave, if applicable, when taking leave under the FMLA. However, UTMB is not permitted to count paid leave which was not for a FMLA purpose against an employee’s FMLA leave entitlement. For example, if an employee has taken sick leave on various occasions for a cough, cold, flu or something that is not an extended illness, those days may not be counted towards the 12-week entitlement under the FMLA. If however, the employee is expecting the birth of a child and has taken leave prior to the birth for prenatal care, UTMB may require the employee to use their sick and vacation leave, and limit the total amount of time away for the employment to a total of 12 weeks. UTMB must inform the employee that paid leave must be taken when an individual requests FMLA leave. It is the supervisor’s responsibility to designate whether or not the leave (paid or unpaid) will be considered leave taken pursuant to the FMLA.

Health Benefits Payments

When an employee is on unpaid FMLA leave, UTMB will continue to contribute its share of the premium payment for health/dental as if the employee had continued in employment during the leave. For example, if the employee normally has family medical coverage, UTMB will continue sharing the cost of the premiums with the employee at the family rate. The employee is required to pay his or her share of the premiums in the same manner required when working. An employee is required to pay their share of insurance premiums on a monthly basis in accordance with applicable billing procedures.

Premium Payments

If the employee fails to make a timely insurance(s) premium payment, a 30-day grace period will be provided after the agreed upon date for which payment is due. If the employee does not make payment within 30 days, UTMB will cease to maintain the coverages on the date the grace period ends. Prior to expiration of the grace period, UTMB will notify the employee of the discontinuation of the insurance coverages.

Restoring Benefits

If UTMB discontinues coverages as a result of non-payment of premiums, the employee’s group health benefits must be restored to at least the same level and terms as were provided when leave commenced. Therefore, the restored employee shall not be required to meet any qualification requirements, such as a waiting period or pre-existing condition requirements, when they have failed to continue their health coverage for non-payment of premiums.

Failure to Return to Work

If an employee fails to return to work after a period of unpaid FMLA and UTMB has paid for maintaining health coverage, UTMB is entitled to recover the premiums paid unless the reason the employee does not return to work is due to: • continuation of a serious health condition that entitled the employee to FMLA leave, or • other circumstances beyond the control of the employee. An employee is considered to have returned to work after they have worked for a period of 30 calendar days. Therefore, an employee who returns to work for only one week and then departs is not considered to have returned to work for the purposes of the premium payments.

Returning to Work

When an employee returns to work under the FMLA, they are entitled to be restored to the same position held when the leave started, or to an equivalent position with equivalent pay. An equivalent position is one that has the same pay, benefits, and working conditions, and involves the same or substantially similar duties and responsibilities and with the equivalent skill, effort, responsibility and authority.

UTMB Notice Requirement

UTMB is required to post a notice, Your Rights Under the FMLA, in a prominent place to notify employees of their rights and responsibilities under the FMLA. UTMB must also supply this same notice to employees. Supervisors are required to give employees requesting FMLA notice detailing specific expectations and obligations of the employee and explaining any consequences of failing to meet these obligations. Employees must give at least 30 days advance notice to their supervisor of the need to take FMLA leave when it is foreseeable for the birth or adoption of a child or for medical treatment. When it is not practical under any circumstances to give such notice, such as premature birth or medical illness, the notice should be given as soon as practical within one to two business days of when the employee learns of the need for leave. Verbal notice is sufficient to inform the supervisor that the employee will need the FMLA leave. An employee who has given notice under the FMLA and has provided the medical certification requirements, if needed, may not be denied FMLA leave if qualified.

Employee Rights

Employees who exercise their rights under FMLA are entitled to do so without restraint and shall not be subject to discharge or discrimination by UTMB. It is unlawful for any person to discharge or in any other manner discriminate against an individual for having filed charges, instituted any proceeding under or related to the FMLA, given any information in connection with the inquiry proceeding with the right under the FMLA, or testified in any right or proceeding regarding the FMLA. If an employee’s FMLA rights have been violated, the FMLA provides that the employee may file a complaint with the Department of Labor or file a private law suit against UTMB to obtain damages and other relief. There is also an assessment of penalties for willfully failing to post the attached notice.

Record Keeping

All original requests will be filed in Payroll Services in accordance with the law. Reporting of FMLA leave time taken will be accomplished through the appropriate time reporting procedures. Billing of employee insurance premiums while on FMLA without pay will be handled within the current billing process. The medical information may be disclosed to: • supervisors and managers, if needed, regarding work restrictions, • first aid and safety personnel in the employee’s physical and medical conditions require medical treatment, or • government officials investigating compliance with the FMLA.

Leave Coordination

The FMLA regulations state that if UTMB provides more benefits than required by the FMLA, the FMLA will not restrict those benefits. Therefore, benefits such as the sick leave pool and extended disability leave, when available, may be used in conjunction with and count towards the 12 weeks of FMLA leave. It should also be noted that the FMLA does not restrict or modify any federal or state anti-discrimination rules or UTMB’s obligation to comply with the ADA.

References

Family and Medical Leave Act of 1993 (29 U.S.C. Section 2601 et seq.). Texas Government Code, §661.912 IHOP Policy 3.11.1, Workers Compensation Insurance IHOP Policy 3.9.7, Parental Leave