Family and Medical Leave Act (FMLA)

Date: December 2016

Supersedes: May 2009

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Purpose

Montgomery County Community College has adopted this policy to implement the terms of the Family and Medical Leave Act of 1993 (FMLA). Eligible employees are entitled to family and medical leave under the terms and conditions stated in this policy, the regulations issued by the Department of Labor under FMLA and in other applicable College leave policies. 

Policy

The function of this policy is to provide employees with a general description of their FMLA rights. In the event of any conflict between this policy and the applicable law, employees will be afforded all rights required by law.

Definitions

For purposes of this policy the following definitions apply:

1. “Eligible Employee” means an employee who has worked for Montgomery County Community College for 12-months or 52 weeks.  The 12-months, or 52 weeks, need not have been consecutive. If the employee has a break in service that lasted seven years or more, the time worked prior to the break will not count unless the break is due to service covered by the Uniformed Services Employment and Reemployment Rights Act, or there is a written agreement, including a collective bargaining agreement, outlining Montgomery County Community College’s intention to rehire the employee after the break in service.  For eligibility purposes, an employee will be considered to have been employed for an entire week even if the employee was on the payroll for only part of a week or if the employee is on leave during the week.
   
   The employee, employed by Montgomery County Community College for at least 12 months must have also worked at least 1,250 hours during the 12-month period immediately preceding the commencement of the requested leave. Time spent on paid or unpaid leave is not used in determining the 1250 hours eligibility test.
   
   The employee must also be employed at a worksite with at least 50 employees within 75 miles of that worksite. The distance is calculated using the available transportation by the most direct route. An employee’s worksite is the site to which an employee reports to work or, if none, from which the employee’s work is assigned.
2. “FMLA Leave” means leave that qualifies under the Family and Medical Leave Act of 1993, as amended by the National Defense Authorization Act of 2008, Pub. L. 110-181, and the Department of Labor’s regulations and is designated by Montgomery County Community College as so qualifying.
3. “Leave Year” means the 12-month period measured forward from the date each employee’s leave commenced.
4. “Serious Health Condition” means an illness, injury, impairment or physical or mental condition that involves either inpatient care at a hospital, hospice, or residential medical care facility, including any period of incapacity or any subsequent treatment in connection with such inpatient care, or a condition which requires continuing treatment by a licensed healthcare provider.
5. “Inpatient Care” means an overnight stay in a hospital, hospice or residential medical care facility, including a period of incapacity or any subsequent treatment in connection with the inpatient care.
6. “Continuing Treatment” includes any one or more of the following:
   • A period of incapacity of more than three (3) consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:
   • Treatment by a healthcare provider two (2) or more times within 30 days of the first day of incapacity; or
   • Treatment by a healthcare provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of a healthcare provider;
   • A period of incapacity due to pregnancy or prenatal care;
   • A period of incapacity or treatment for such incapacity due to a chronic serious health condition;
   • A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective; or
   • Any period of absence to receive multiple treatments by a healthcare provider.
7. “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.
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9. “Covered Military Member” means the employee’s spouse, son, daughter or parent on active duty or call to active duty status.
10. “Active duty or call to active duty” means duty under a call or order to active duty (or notification of an impending call or order to active duty) in support of a contingency operation as either a member of the reserve components, or a retired member of the Armed Forces or Reserve.
11. “Serious Injury or Illness,” in the case of a member of the Armed Forces, including a member of the National Guard or Reserves, means an injury or illness incurred by the member in line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating.
12. “Qualifying Exigency” means one or more of the following circumstances:
    • Short-notice deployment – to address any issues that may arise due to the fact that Covered Military Member received notice of the deployment seven (7) or less calendar days prior to the date of deployment.
    • Military events and related activities – to attend any official ceremony, program, or event sponsored by the military that is related to the Covered Military Member’s active duty; or to attend family support or assistance programs and informational briefings sponsored by the military;
    • Child care and school activities – to arrange for alternative childcare; to provide childcare on an urgent or immediate basis; to enroll or transfer a child to a new school; and to attend meetings with school staff that are made necessary by the Covered Military Member’s active duty or call to active duty;.
    • Financial and legal arrangements – to make or update financial or legal arrangements related to the Covered Military Member’s absence while on active duty; and to act as the Covered Military Member’s representative with regard to obtaining, arranging or appealing military benefits;
    • Counseling – to attend counseling sessions related to the Covered Military Member’s deployment or active duty status;
    • Rest and recuperation – to spend up to five (5) days with a Covered Military Member who is on short-term, temporary rest and recuperation leave;
    • Post-deployment activities – to attend ceremonies and reintegration briefings for a period of 90 days following the termination of the Covered Military Member’s active duty status; and to address issues arising from the death of a Covered Military Member; and/or
    • The activities that Montgomery County Community College and employee agree qualify as an exigency.

Qualifying Reasons/Types of FMLA Leave: 

Eligible employees are entitled to a total of 12-weeks / 480 hours of unpaid leave during each Leave Year for the following qualifying reasons:

1. 1. The care of a child following the birth or adoption of the child, or the placement of a foster child. Leave must be taken within the 12-month period following the birth or placement and must be taken in a single consecutive period and may not be taken intermittently or on a reduced schedule; or
   2. The care of a qualifying family member, such as a parent, child, domestic partner or spouse with a serious health condition; or
   3. The treatment of an employee’s own serious health condition which makes the employee unable to perform the essential functions of his/her job; or
   4. Incapacity due to pregnancy, prenatal medical care, or child birth; or
   5. The care of a “covered service member” who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is on the temporary disability retired list, as a result of a serious injury or illness, when the eligible employee is the domestic partner, spouse, son, daughter, parent, or next of kind (i.e. nearest blood relative) of the covered service member; or
   6. Any “qualifying exigency” arising because the employee’s parent, child, domestic partner or spouse is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.

Any Eligible Employee who is the spouse, parent, child, domestic partner or next of kin of a current member of the armed forces who has incurred an illness or injury while on active duty may be eligible for military caregiver leave.  Unlike regular FMLA leave that provides for a maximum to 12 weeks of leave, military caregiver leave may qualify an individual for up to 26 weeks of leave under FMLA in a 12 month period.  Leave to care for an injured or ill service member when combined with other FMLA qualifying leave may not exceed 26 weeks in a single 12 month period.  
Any leave taken under one or more of these circumstances will be counted against the employee’s total entitlement to FMLA leave for that Leave Year.

Employees with questions about what illnesses are covered under FMLA are encouraged to consult with Human Resources. Montgomery County Community College may require an employee to provide a certification of the serious health condition.  The certification process is outlined below. 

Leave Period

Eligible employees may take up to 12 weeks of unpaid leave in a 12-month period, or 26 weeks in a single 12-month period in the event the leave is taken to care for a covered service member. The 12-month period is a rolling 12-month period, measured forward from the date the employee intends to commence a requested FMLA leave, or in the case of leave to care for a covered service member, measured forward from the date an employee’s leave to care for the covered service member began, unless otherwise required by applicable law.

 If an employee takes military caregiver leave to care for more than one covered service member or to care for the same covered service member who has incurred a subsequent serious injury or illness, and if the single 12-month periods involved overlap with each other, the employee may take no more than 26 weeks of leave in each single 12-month period. If an employee does not take all of the 26 weeks of military caregiver leave during the applicable single 12-month period, the balance does not carry-over. During any single 12-month period, the employee’s total leave entitlement is limited to a combined total of 26 weeks for all qualifying reasons.

If Montgomery County Community College employs both spouses, the aggregate FMLA leave taken by both spouses for the same qualifying reason may not exceed 12 weeks, or 26 weeks in the event the leave is taken to care for a covered service member.

Intermittent or Reduced Schedule Leave

Employees also may take intermittent or reduced-schedule FMLA leave where medically necessary for an employee’s own serious health condition or a sick family member; to care for a covered service member; or in connection with any qualifying exigency as defined above. In addition, employees may take intermittent or reduced-schedule leave with Montgomery County Community College’s approval for other qualifying reasons.

If an employee takes intermittent or reduced-schedule FMLA leave for an employee’s own serious health condition or a sick family member, to care for a covered service member, or due to a qualifying exigency, Montgomery County Community College may require that the employee transfer temporarily to an alternative position, with an equivalent pay rate and benefits, so as not to unduly disrupt Montgomery County Community College’s operations while the employee is on the reduced or intermittent schedule. An employee who requests intermittent or reduced leave should make reasonable efforts to schedule planned medical treatments so as not to disrupt the operations of the College. Such transfers will be made in accordance with any applicable collective bargaining agreements between Montgomery County Community College and the support staff and faculty union contracts.

Intermittent or reduced-schedule FMLA leave may not be taken in increments of less than one (1) hour. Reduced-schedule or intermittent leave time is calculated as a percentage of the employee’s normal work week. Therefore, an employee who normally works 30 hours per week and takes 10 hours of FMLA leave in one (1) week, will have used one-third (1/3) of a work week of FMLA leave. For employees who work variable hours, the normal work week is determined by the average hours worked per week by the employee during the 12 weeks prior to the start of the employee’s leave.

Continuation of Benefits

Employees on FMLA leave are entitled to maintain insurance coverage through Montgomery County Community College’s group health plan under the same terms and conditions that apply to employees who are not on leave.

Under the current group health plan, the employee pays a portion of the health care premium.  While on paid leave, Montgomery County Community College will continue to make payroll deductions to collect the employee’s share of the premium.  While on unpaid leave, the employee must continue to make this payment, either in person or by mail.  Human Resources will send an invoice with the amount due payable upon receipt.  If the payment is more than 30 days late, the employee’s healthcare coverage may be dropped for the duration of the leave, upon 15 days’ prior notice to the employee.

Montgomery County Community College reserves the right to recover from the employee any group health plan premium payments it makes during any unpaid portion of the employee’s FMLA leave if the employee fails to return to work at the end of the planned leave period, unless the employee’s failure to return to work was due to circumstances beyond the employee’s control. Use of FMLA leave will not result in the loss of any benefit that accrued prior to the start of an employee’s leave.

Return to Work / Fitness-for-Duty Certification

Before returning to work following a medical leave due to the employee’s own serious health condition, the employee will be required to present a fitness-for-duty certification from his/her healthcare provider stating that the employee is medically able to resume work and perform the essential functions of his or her job.

If the date on which an employee is scheduled to return to work from an FMLA leave changes, the employee is required to give notice of the change, if foreseeable, to Human Resources within 2 business days of the change.

An employee taking leave under this policy will be permitted to return to the same or equivalent position with equivalent pay, benefits, and other terms and conditions of employment. The position will be the same or one which is virtually identical in terms of pay, benefits, and working conditions.  However, an employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA period.

The failure of an employee to return to work after the expiration of FMLA leave may result in immediate termination, subject to applicable law.

Montgomery County Community College may choose to exempt certain highly compensated, “key employees” from this requirement and not return them to the same or similar position where restoration to employment will cause "substantial and grievous economic injury" to its operations.

Notice and Certification Requirements

All employees requesting leave under this policy must provide verbal notice with an explanation of the reason to Human Resources.  Employees will be provided an FMLA leave application form and a medical certification form.  Montgomery County Community College will advise employees requesting a leave of absence whether they are eligible for FMLA leave and whether the requested leave qualifies under the FMLA. 

If the need for leave is foreseeable, employees requesting FMLA leave must give 30 days’ written notice, including the anticipated timing and duration of the leave. If the need for the leave is not foreseeable, employees must give notice as soon as is practicable under all the circumstances,   generally the next business day.  Failure to provide a written request for leave cannot be grounds to deny or delay the taking of FMLA leave.

If an employee fails to provide 30 days’ notice of foreseeable leave with no reasonable excuse for the delay, the leave request may be denied until at least 30 days from the date the College receives notice.

Where the need for leave is foreseeable due to the active duty or impending call or order to active duty of a parent, child, domestic partner or spouse in support of a contingency operation, employees must give such notice as soon as practicable. Failure to do so may result in denial of leave until proper notice is given.

A leave to care for the employee’s own serious health condition, or the serious health condition of a covered family member, must be supported by a medical certification completed by the healthcare provider for the employee or the covered family member. A qualifying exigency leave or a leave to care for a Covered Service member with a serious injury or illness must also be supported by a certification.

In case of planned medical treatment for a serious health condition, the employee is required to make a reasonable effort to schedule the treatment in order to minimize disruptions to the College’s operations.

Employees are required to provide Montgomery County Community College with sufficient information to make it aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave. Sufficient information may include the following:

• • That the employee is unable to perform his or her job functions;
  • That the employee’s family member is unable to perform his or her daily activities;
  • That the employee or his or her family member must be hospitalized or undergo continuing treatment; or
  • The circumstances supporting the need for military family leave.

When an employee seeks leave due to a FMLA-qualifying reason for which Montgomery County Community College has previously provided FMLA-protected leave, the employee must specifically reference the qualifying reason for the leave and the need for FMLA leave.

The employee must return a complete and sufficient copy of the appropriate certification to Montgomery County Community College within 15 calendar days of receiving the certification, unless it is not practicable. If the employee returns an incomplete or insufficient certification, then Montgomery County Community College shall advise the employee in writing what additional information is necessary to make the certification complete and sufficient. The employee must then return a complete and sufficient certification to Montgomery County Community College within seven (7) calendar days. If the employee fails to provide the necessary information or fails to return a certification within the prescribed time period Montgomery County Community College may deny the taking of leave.

Upon receiving sufficient notice of an employee’s need for FMLA-qualifying leave, Montgomery County Community College will notify the employee of his or her eligibility to take FMLA leave within five (5) business days of the request, absent extenuating circumstances. At this time Montgomery County Community College will also provide the employee written notice of the employee’s rights and obligations with respect to the leave (as well as providing copies of the required certification form).

Certification of the serious health condition shall include: the date when the condition began, its expected duration and a brief statement of treatment.  For medical leave for the employee’s own medical condition, the certification must also include a statement that the employee is unable to perform work of any kind or a statement that the employee is unable to perform the essential functions of the employee’s position.  For a family member who is seriously ill, the certification must include a statement that the patient, the family member, requires assistance and that the employee’s presence would be beneficial or desirable.

A Montgomery County Community College representative (other than employee’s direct supervisor) may contact the employee’s health care provider to clarify or authenticate the medical certification submitted for leave for the employee’s own serious health condition or the serious health condition of a family member. Montgomery County Community College has the right to ask for a second opinion if it has reason to doubt the certification.  The College will pay for the employee to get a certification from a second doctor, which the College will select.  If necessary to resolve the conflict between the original certification and the second opinion, Montgomery County Community College will require the opinion of a third doctor.  Montgomery County Community College and the employee will mutually select the third doctor and the College will pay for the opinion.  The third opinion will be considered final.  The employee will be provisionally entitled to leave and benefits under the FMLA pending the second and/or third opinion.

All medical information received for FMLA leave is considered confidential and shall be disclosed only to those involved in the FMLA leave determination.
If the employee plans to take intermittent leave or work a reduced schedule, the certification must also include dates and the duration of treatment, as well as a statement of medical necessity for taking intermittent leave or working a reduced schedule.

While on leave employees are requested to report periodically to Montgomery County Community College regarding the status of the medical condition and their intent to return to work.

An employee who will be on a FMLA leave for more than one (1) week is required to call Human Resources weekly to report when and if the employee expects to return to work. Montgomery County Community College may request recertification at any time during the course of the leave for the employee’s own serious health condition, if: (1) the employee requests an extension of leave; (2) the circumstances of the employee’s condition as described in the previous certification have changed significantly, or (3) if Montgomery County Community College has reason to suspect that an employee on FMLA has fraudulently obtained the FMLA leave.

If the employee’s leave to care for his or her own serious health condition or that of a family member is expected to last more than 30 days, Montgomery County Community College may require a new certification from the employee’s health care provider when lave is scheduled to expire, or every 6 months, whichever occurs earlier.

Employees are required to give additional notice as soon as practicable whenever there is a change in the dates of scheduled leave. Montgomery County Community College requires that the employee’s health care provider complete a fitness-for-duty certification that specifically addresses whether the employee is able to perform the essential functions of his or her job before the employee can return to work.

The first time an employee requests leave because of a qualifying exigency, Montgomery County Community College will require the employee to provide a copy of the covered military member’s active duty orders or other documentation issued by the military which indicates that the covered military member is on active duty status. Employees requesting leave for a qualifying exigency will be required to provide a certificate including a signed verification or description of appropriate facts sufficient to support the need for leave; the approximate date on which the qualifying exigency commenced or will commence; the beginning and end dates of the absence if on a continuous basis; an estimation of the frequency or duration of the exigency if on an intermittent or reduced schedule basis; and, if the qualifying exigency involves a meeting with a third party, the contact information and brief description of the purpose for the meeting.

Substitution of Paid Leave

Once an FMLA leave is granted, all other Montgomery County Community College leaves will run concurrently with FMLA as specified in the support staff and faculty union contracts.

Complaints

It is unlawful to, and Montgomery County Community College will not, interfere with, restrain, or deny the exercise of any right provided under the FMLA, or discharge or discriminate against any person for opposing any practice made unlawful by the FMLA, or for involvement in any proceeding under or relating to the FMLA. Employees who believe that their rights under the FMLA have been violated may file a complaint with the United States Department of Labor or bring a private lawsuit.

This policy statement on The Family and Medical Leave Act of 1993 is intended to summarize the basic provisions of the FMLA. Employees should address specific questions to the Human Resources Department