Lawriter - OAC - 3339-4-07 Family and medical leave.

3339-4-07 Family and medical leave.

(A) Eligibility

(1) In accordance with federal law, employees are eligible for family and medical leave after twelve months of employment and provided the employee has performed at least one thousand two hundred fifty hours of work during the previous twelve-month period. (Fulltime faculty are deemed to meet the one thousand two hundred fifty-hour requirement.) All eligible employees are entitled to a total of twelve workweeks of leave during the twelve-month period of July first through June thirtieth for one or more of the following reasons:

(a) The birth of a child and to care for the newborn (reason one);

(b) The placement of a child with the employee for adoption or foster care (reason two);

(c) To care for the employee's spouse or domestic partner, parent, child (defined as "a biological, adopted or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis"), or the child of the domestic partner with a serious health condition (reason three); and

(d) A serious health condition that makes the employee unable to perform the essential functions of his or her position (reason four).

Note: For information on military families leave, see paragraph (I) of this rule.

(2) Miami requires employees to substitute accrued paid sick leave (e.g., vacation, sick leave, personal leave) for family and medical leaves whenever permitted by law (i.e., 29 C.F.R. 825.207-208 ). If the employee does not have available sufficient paid leave for the entire twelve weeks, the employee may take the balance of the leave as unpaid leave. If the employee has available more than twelve weeks of paid leave, the employee may use all the paid leave that applies to the employee's situation.

A family and medical leave may run concurrently with a worker's compensation absence when the injury is one that meets the criteria for a serious health condition. As the worker's compensation absence is not unpaid leave, the provision for substitution of accrued paid leave is not applicable.

(B) Notice and approval

The employee must provide the appropriate personnel office with a minimum of thirty calendar days advance notice before the date the leave is to begin. Employees should contact the appropriate personnel office for more detailed information and to arrange family and medical leave, including parental leave. The department of human resources can assist employees and their supervisors in arranging suitable coverage of the employees' responsibilities while on leave. Employees are required to complete the forms and return them to the appropriate personnel office for approval of leave within a minimum of thirty calendar days advance notice before the date the leave is to begin. However, if the date of the birth, placement of the child, or serious health condition of the employee or family member requires leave to begin in less than thirty days, the employee must provide as much notice as is practicable. Failure to give notice may result in a delay of leave.

Employees must request the family and medical leave in writing and submit the request to the appropriate personnel office. A medical certification form will be provided. Medical certification must be received in the appropriate personnel office prior to approval of the leave.

To use leave for the care of a domestic partner or the child or parent of the domestic partner, a completed affidavit of domestic partnership must be on file with the department of human resources.

(C) Substitution of paid leave

Miami requires employees to substitute accrued paid leave (e.g., vacation, sick leave, personal leave) for family and medical leaves whenever permitted by law (i.e., 29 C.F.R. 825.207-208 ). If the employee does not have available sufficient paid leave for the entire twelve weeks, the employee may take the balance of the leave as unpaid leave. If the employee has available more than twelve weeks of paid leave, the employee may use all of the paid leave that applies to the employee's situation.

A family and medical leave may run concurrently with a worker's compensation absence when the injury is one that meets the criteria for a serious health condition. As the worker's compensation absence is not unpaid leave, the provision for substitution of accrued paid leave is not applicable.

(D) Intermittent leaves and reduced leave schedules

An intermittent leave is a leave taken in separate blocks of time due to a single illness, injury, or health condition. An example is a leave taken several days at a time spread over several months for chemotherapy.

A reduced leave schedule is a change in the employee's normal schedule for a period of time, usually from fulltime to part-time. An example is a reduction in the workday from eight hours to six hours because of a serious health condition.

Leaves taken for the following reasons shall not be taken intermittently or on a reduced-leave schedule: except as permitted by the parental leave policy leaves taken for the birth of a child or to care for the newborn (reason one) and leaves taken for the placement of a child with the employee for adoption or foster care (reason two).

Leaves taken for the following reasons may be taken intermittently or on a reduced-leave schedule: leaves taken to care for the employee's spouse or domestic partner, child or parent (reason three) and leaves taken because of a serious health condition that makes the employee unable to perform the essential functions of his or her position (reason four).

An employee who takes intermittent leave or a reduced-leave schedule may be temporarily transferred to an alternative position, for which he or she is qualified, that has equivalent pay and benefits and that better accommodates recurring periods of leave than does the employee's regular position.

Employees shall make a reasonable effort to schedule leaves so as to avoid unduly disrupting the operations of Miami university, subject to the approval of the health care provider of the employee (reason four) or of the employee's spouse or domestic partner, child or parent (reason three).

(E) Certification

Miami university requires a medical certification from the health care provider for leave taken for reasons three or four.

Serious health condition means an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice or medical care facility, or continuing treatment by a healthcare provider.

The certification form may be obtained from either the department of human resources or the office of academic personnel services. Miami university may, from time to time (generally not more often than every thirty days), require recertification during the period of leave. Failure to provide certification or recertification may result in a delay of leave, denial of leave and/or loss of pay for the leave period. Falsification of certification is grounds for disciplinary action up to and including dismissal.

Miami university may require, at its expense, that the employee obtain the opinion of a second healthcare provider selected by Miami university concerning any information certified. In case of conflict between the second opinion and the employee's certifying healthcare provider, Miami university may, at its expense, require the opinion of a third healthcare provider (jointly selected by the employee and Miami university). The opinion of the third healthcare provider shall be final and binding on Miami university and the employee.

Miami university may require a certification from the employee's healthcare provider that the employee is able (or unable) to return to work, when the family and medical leave was because the employee's serious health conditions made the employee unable to perform the essential functions of the employee's job.

(F) Restoration to position and continuation of benefits

Eligible employees who return from a family and medical leave may be restored to the position held by the employee when leave began or be restored to an equivalent position with equivalent pay and university-provided benefits and other terms and conditions of employment.

Miami university will maintain university-provided benefits for eligible employees on family or medical leave under the same terms and conditions coverage would be provided had the employee continued in employment for the duration of the leave. Retirement contributions will only be made for that portion of the family and medical leave that is paid leave.

(G) Failure to return from leave

Miami university may recover from the employee the cost Miami university paid for maintaining university provided benefits during the unpaid period of leave if the employee fails to return from leave unless the failure to return is due to:

(1) The continuation, recurrence, or onset of a serious health condition that would otherwise entitle the employee to leave under the family and medical leave policy: or

(2) Other circumstances beyond the control of the employee.

(H) Other employment

Employees on family or medical leave are not permitted to perform services for remuneration for other employers (including self-employment), as an independent contractor, partner, sole proprietor, principal in a corporation, or for any other individual or entity, unless approved, in writing, in advance by the appropriate vice president or the vice president's designee. For units reporting to the president, the appropriate vice president is the vice president for finance and business services and treasurer.

Instructional staff and administrative staff who have approved outside consulting/employment (see rule 3339-3-11 of the administrative Code) must obtain the approval of the appropriate vice president to continue such services during a period of leave.

(I) The family and medical leave policy, military families

In 2008. the Family and Medical Leave Act (FMLA) was amended to extend FMLA qualifying leave to the families of members of the United States armed forces under certain circumstances (military families leave). This supplement to Miami university's fmla policy explains employees' rights to such leave. Except as provided for in this policy, an employee's rights and obligations with regard to military families leave are governed by Miami university's existing fmla policy.

(1) Leave entitlement

The amendments to fmla provide for two new instances in which an FMLA eligible employee can qualify for FMLA leave:

(a) Military caregiver leave

Eligible employees who are family members of covered service members are able to take up to "twenty-six work weeks of leave in a single twelve-month period" to care for a covered service members with a serious illness or injury incurred in the line of active duty if:

(i) The employee is an eligible family member or next of kin (the nearest blood relative other than the covered spouse, domestic partner, parent, son, or daughter, who has been granted legal custody by court decree or statutory provisions and in accordance with the order of priority as set by the fmla regulations).

(ii) The covered service member is: undergoing medical treatment, recuperation, or therapy: an outpatient status: or on the temporary disability retired list, for a serious injury or illness.

(iii) This leave will not exceed twenty-six workweeks during a "single twelve month period." The calculation of the "single twelve month period" begins with the first day the eligible employee takes fmla to care for the covered service member and ends twelve months after that date. If all leave is not taken, it is forfeited.

(iv) Eligible employees may not take this type of leave to care for former members of the armed forces, national guard, and reserves, or members who are on the permanent disability retired list.

(b) Qualifying exigency leave

Eligible employees may take up to twelve weeks of leave during the university's FMLA year because of any "qualifying exigency" arising out of the fact that the spouse, son, daughter, or parent of the employee is on active duty or has been notified of an impending call to active duty status in support of a contingency operation. A qualifying exigency includes:

(i) Short notice deployment - call/order to active duty seven days prior to date of deployment.

(ii) Military and activities related to call to active duty.

(iii) Childcare and school activities - e.g. arrange for alternative childcare, enroll child in new school or day care, attend meetings with school or day care staff, and provide childcare on urgent or immediate need basis.

(iv) Make or update financial and legal arrangements.

(v) Counseling that arises out of the military service.

(vi) Rest and recuperation - limited to five days per leave to spend with military member on short-term leave.

(vii) Post-deployment activities - leave to attend post-deployment functions such as arrival ceremonies, reintegration briefings, funeral arrangements that occur within ninety days following termination of active duty status.

(viii) Additional activities - must be agreed to by the supervisor, the employee, and the appropriate personnel office (office of human resources or academic personnel services).

(2) Note: military families fmla runs concurrently with other leave entitlements as set forth in the existing fmla policy or as provided for by federal law.

Replaces: 3339-4-07


Effective: 11/14/2009
Promulgated Under: 111.15
Statutory Authority: 3339.01
Rule Amplifies: 3339.01
Prior Effective Dates: 9/30/1999, 3/21/2005, 10/14/2005, 10/31/2006, 10/17/2007, 8/20/2008, 11/14/2009