Administrative Policies and Procedures Manual - Policy 3440: Family and Medical Leave
Date Originally Issued: 05-05-1995
Revised: 10-15-1998, 09-25-2002, 06-05-2009, 02-25-2010
Subject to Change Without Notice
Authorized by Regents' Policy 6.3 "Privileges and Benefits"
Process Owner: Vice President of Human Resources
In compliance with the federal Family and Medical Leave Act (FMLA), The University of New Mexico provides eligible employees up to twelve (12) weeks of job-protected leave within a twelve (12) month period for eligible family and medical reasons and/or up to twenty-six (26) weeks for Military Family Leave subject to the conditions outlined in Section 4.5. herein. This leave is hereafter referred to as FMLA leave. The University will comply with all provisions of the Act for eligible employees. FMLA leave is job protected leave which means the employee's department will reinstate the employee returning from FMLA leave to the same or equivalent position with equivalent pay, benefits, and other employment terms and conditions. It is illegal for any employee to interfere with, restrain, or deny any right provided by the FMLA to an eligible employee or to discriminate against an employee for requesting FMLA leave. This policy outlines the conditions under which an employee may request FMLA leave.
2. Eligible Employees
To be eligible for FMLA leave, an employee must:
- have been employed for at least twelve (12) months in total in the last seven (7) years, and
- must have worked at least one thousand two-hundred fifty (1,250) hours during the twelve (12) month period preceding the start of the leave.
Any employee, including a temporary or on-call employee, who meets the above criteria would be eligible for FMLA leave, subject to the provisions of this policy and in accordance with the Act.
3. Use of Other Leave Policies
The twelve (12) weeks of FMLA leave will be reduced by any catastrophic leave and Workers' Compensation leave used for FMLA qualifying medical conditions of either the employee or a qualified family member. For more information on catastrophic leave and Workers' Compensation refer to Policies 3430 and 3630 respectively. An employee may elect, but is not required, to use accrued annual leave and/or sick leave before, after, or simultaneously with FMLA leave.
4. Events Eligible for FMLA Leave
Eligible employees may take FMLA leave up to a total of twelve (12) weeks within a twelve (12) month period for the reasons listed in Sections 4.1. through 4.4. herein. Eligible employees may take up to twenty-six (26) weeks of FMLA leave for the reasons stated in Section 4.5. herein; however, this FMLA leave is reduced by any other FMLA leave taken within the twelve (12) month period. The University defines the twelve (12) month period as a rolling twelve (12) month period measured backward from the date an employee uses any FMLA leave. The employee must provide required supporting documentation. Failure to provide requested documentation could lead to denial of the requested leave.
4.1. Birth, Adoption, or Foster Care
Eligible employees may take FMLA leave to care for a child upon birth or to care for a child placed with the employee for adoption or foster care. FMLA leave must conclude within twelve (12) months of the birth or placement. Employees may use annual leave before going on unpaid FMLA leave, but they are not required to exhaust annual leave banks before requesting unpaid FMLA leave.
If both parents are employees of the University, FMLA leave taken to care for a child upon birth or to care for a child placed with the employees for adoption or foster care is limited to a combined total of twelve (12) weeks. FMLA leave taken for the serious health condition of the employee or child would not be subject to the combined limit.
4.2. FMLA Leave for Family Medical Conditions
Eligible employees may take FMLA leave to care for a member of an employee's immediate family who has a serious health condition as defined in Section 5. herein. For the purposes of FMLA leave immediate family includes children, spouse or domestic partner, parents, grandchildren, and siblings.
4.3. FMLA Leave for Employee's Medical Conditions
An eligible employee may take FMLA leave when the employee is unable to perform the functions of his or her position because of a serious health condition as defined in Section 5. herein.
4.4. Military Family Leave for Qualifying Exigency
Eligible employees are entitled to FMLA leave because of any qualifying exigency arising out of the fact that the spouse or domestic partner, 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.
Categories of qualifying exigencies are:
- Short-notice deployment
- Military events and related activities
- Childcare and school activities
- Financial and legal arrangements
- Rest and recuperation
- Post-deployment activities
- Additional activities not encompassed in the other categories, but agreed to by the supervisor and employee.
HR can provide further clarification regarding qualifying exigencies.
4.5. Military Family Medical Leave
Eligible employees who are family members of covered service members will be able to take up to twenty-six (26) weeks of FMLA leave in a single twelve (12)-month period to care for a covered service member who is unable to perform daily activities, or who has a serious illness or injury obtained in the line of duty while on active duty. Eligible family members include the spouse or domestic partner, parent, children or designated next of kin as defined in the Act. The supervisor should contact HR for direction on designation of next of kin. The twenty-six (26) weeks allowed for this leave will be reduced for any FMLA leave taken for events listed in Sections 4.1. - 4.4. herein.
5. Serious Health Condition
A serious health condition means an illness, injury, impairment, or physical/mental condition that results in an inability to work, attend school, or perform other regular daily activities and involves:
- any period of incapacity or treatment connected with inpatient care in a hospital, hospice, or residential medical care facility; or
- any period of incapacity requiring continuing treatment by a health care provider.
Treatment by a health care provider requires an in-person visit to a health care provider as defined under FMLA. The first in-person treatment visit must take place within seven (7) days of the first day of incapacity. A period of incapacity or treatment is defined as 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 two or more times within thirty (30) days of the first day of incapacity by a health care provider.
- Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the provider. This includes treatment for chronic conditions which require periodic visits of at least twice a year for treatment by a health care provider. Such conditions can occur over an extended period of time including recurring or episodic periods of incapacity.
Other examples of a serious health condition include, but are not limited to:
Serious health conditions do not include short-term conditions such as a minor illness that lasts a few days, and surgical procedures that typically do not involve hospitalization and require only a brief recovery period. Contact HR regarding extenuating circumstances.
6. Request for FMLA Leave
When the need is foreseeable, such as birth or adoption of a child or planned medical treatment, an employee should advise his or her supervisor thirty (30) days before the start of the leave period, or as soon as possible. When possible, the employee should make efforts to schedule leave so as not to disrupt University operations. When thirty (30) days advance notice is not possible, the employee must provide notice as soon as practicable, and generally must comply with normal call-in procedures.
7. Notice to Employees
Within five (5) business days of an employee's initial request for FMLA leave, the supervisor must provide the employee with a completed Notice of Eligibility and Rights and Responsibilities Form. The employee has fifteen (15) calendar days to provide appropriate documentation in support of FMLA leave. See the Notice of Eligibility and Rights and Responsibilities form for the type of documentation required. If the supervisor does not have sufficient supporting documentation, he or she may request further documentation from the employee before approving or denying FMLA leave. The employee must provide this documentation within seven (7) business days of the request for further documentation. After receiving the requested documentation, the supervisor must confirm or deny the FMLA leave within five (5) business days. Links to specific forms and letters for these purposes are listed in Section 12. herein and are also available from HR. An employee is presumed eligible unless the supervisor notifies the employee of ineligibility.
8. Medical Certification
The University will require medical certification to support a request for FMLA leave for medical reasons using the form language approved by the US Department of Labor. Forms may be obtained from HR or through the links provided in Section 12. herein. The University may require a second medical opinion and periodic recertification at the University's expense. In cases of illness, the employee will be required to report periodically, as instructed by his or her supervisor, on his or her leave status and intentions to return to work.
8.1. Employee's Health
For the employee's own medical leave, the medical certification must include a statement that the employee is unable to perform the functions of his or her position.
8.2. Family Health
For leave to care for a seriously ill family member, the medical certification must include an estimate of the amount of time the employee is needed to provide care.
8.3. Intermittent Leave Schedule
If medically necessary for a serious health condition of the employee or his or her family member, leave may be taken on an intermittent or reduced leave schedule. If leave is requested on this basis, the University may require the employee to transfer temporarily to an alternate position that better accommodates recurring periods of absence or a part-time schedule, provided that the position has the equivalent pay and benefits. The medical certification for intermittent leave or leave on a reduced schedule for planned medical treatment, must include the dates on which treatment is expected to be given and the duration of such treatment. The supervisor and employee must agree on the employee's normal schedule or average hours worked each week and document the agreement in writing.
9. Return to Work
An employee returning to work following a leave of absence due to his or her own serious health condition must submit a physician's statement certifying that the employee can return to work and can perform the essential functions of the job, with or without reasonable accommodations. The University may request the employee provide the physician's statement up to five (5) days in advance of the employee's anticipated return date.
9.1. Reinstatement of Employee
The employee's department must reinstate the employee returning from FMLA leave, within the approved leave period, to the same or equivalent position with equivalent pay, benefits, and other employment terms and conditions. However, an employee on FMLA leave does not have any greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period. An employee has no right to reinstatement if the employee would not have otherwise been employed at the time of the request for reinstatement. Leave beyond twelve (12) weeks may be granted under "Leave Without Pay" Policy 3420, UBP, however, the employee's right to return to his or her position is not guaranteed.
9.2. Failure to Return
If an employee fails to return within three (3) work days after an approved leave, including any approved extensions, the employee will be considered to have resigned. Refer to Section 2.1. "Separation of Employment" Policy 3225, UBP.
10. Benefits Coverage While on FMLA Leave
While an employee is on FMLA leave, the status of various University-sponsored benefit programs will be as follows:
10.1. Group Insurance Benefits
The University will continue the employee's group insurance benefits during the period that the employee is on FMLA leave. If the leave is unpaid, the University will bill the employee for that portion of the premium normally withheld from the employee's paycheck .
The University does not pay the employer portion of the retirement plan during the period that the employee is on unpaid FMLA leave. The period that the employee is on unpaid FMLA leave does not count as earned service time for retirement formula calculations.
10.3. Annual and Sick Leave
The employee will not accrue annual and sick leave during the period that the employee is on unpaid FMLA leave.
For purposes of determining the amount of leave used by an employee, the fact that a holiday may occur within a week taken as FMLA leave has no effect; the week is counted as a full week of FMLA leave. However, if an employee is using FMLA leave in increments of less than one (1) week, the holiday will not count against the employee's entitlement unless the employee was otherwise scheduled and expected to work during the holiday. During the winter break when the University is closed for more than one (1) week, the time will not count against the employee's entitlement unless the employee would otherwise have been scheduled and expected to work during winter break. Employees on unpaid FMLA leave are not eligible for holiday pay.
10.5. Dependent Education Scholarship
Dependents of employees who were participants in the Dependent Education Scholarship Program before the employee began FMLA leave can continue in the program while the employee is on FMLA leave as long as the dependent remains eligible.
11. Record Keeping Requirements
Departments are required to keep all documentation pertaining to FMLA leave requests for three (3) years. The documentation must include the following:
- Dates of FMLA leave taken by employees. Leave must be designated as FMLA leave. If FMLA leave is taken in increments of less than one (1) full day, the hours of the leave must be recorded.
- Copies of employee notices of leave furnished to the employer under FMLA and copies of all required general and specific written notices given to employees.
- Records of any dispute between the employer and an eligible employee regarding designation of leave as FMLA leave.
11.1. Confidentiality of Medical Records
Supervisors must maintain records and documents relating to medical certifications, re-certifications, or medical histories of employees or employees' family members in separate files and treat them as confidential medical records. Supervisors and managers may be informed regarding necessary restrictions on the work and necessary accommodations. First aid and safety personnel may be informed if a medical condition might require emergency treatment. Government officials shall be provided relevant information upon request.
12. Procedures and Forms
Click here for applicable forms and to view HR's procedures on applying for and approving FMLA leave.