Notice and Certification
What information can the University request in the medical certification of a serious health condition?
You cannot request a diagnosis or description of the condition. Medical certification is limited to the following information:
- Confirmation that the employee (or the employee's family member) has a serious health condition as defined by Federal and State law;
- The date of the onset of the serious health condition;
- The probable duration of the serious health condition;
- A written statement that the employee is not able to perform the essential functions of his or her job; and
- If intermittent leave or a reduced work schedule is being considered, a statement that it is medically necessary.
Under law, medical certification is discretionary for both staff and academic appointees. Leave may be designated by the Department as falling under FMLA/CFRA if you know, or have reason to believe, a serious health condition exists (e.g., the employee is hospitalized). However, University policies and union contracts for staff and academic personnel differ on whether medical certification is mandatory in order to document a FMLA/CFRA qualifying event. Check the applicable policy or union contract, or consult with your Employee Relations Specialist or Office of Academic Personnel.
The University may require medical re-certification of employees who are completely off work or on a reduced schedule leave once the originally specified leave period has ended. In cases where the leave period is indefinite, a request for re-certification may be made every 30 days.
An employee who is returning from an intermittent family and medical leave cannot be required to obtain a return-to-work medical certification. However, the University can seek re-certification of the underlying illness or injury once the leave period specified on the medical certification has come and gone or prior to that time if:
- The circumstances have changed (e.g., the employee is absent more
frequently than the certification indicated); or
- The University obtains information casting doubt upon the stated
reasons for the absence.
Can an employee be required to provide a return-to-work medical certification when leave has been taken due to the employee's serious health condition?
Yes, under the following circumstances:
Certification of medical release to work may be obtained from staff employees who are not covered by a collective bargaining agreement if the department has a uniformly applied policy requiring all employees who take medical leaves for similar purposes to obtain medical certification of their ability to perform the essential functions of their position.
Certification of medical release must be obtained from employees who are covered by system-wide collective bargaining agreements where family and medical leave has been negotiated, if the employee has been granted a medical leave for any reason except pregnancy-related disability.
Certification of medical release to work may be required from academic employees in accordance with local procedures.
Failure to provide a medical release to return to work when requested by the University may result in denial of reinstatement until after the employee submits the required medical release.
Is there provision for a second (and possibly a third) medical opinion if the University questions the adequacy of an employee's medical certification?
Although the University is not permitted to request additional information from the employee's health care provider if the employee has submitted a complete certification signed by the health care provider, a health care provider that represents the University may contact the employee's health care provider, with the employee's permission, for the purpose of clarifying and authenticating the medical certification.
Is the University required to give written notice to an employee that his or her request for leave has been designated as family and medical leave?
Yes. Departments must provide the employee with notice of eligibility and designation of the leave as qualifying under FMLA/CFRA. The University's initial notice to an employee that a request for leave will be designated as family and medical leave must be given verbally or in writing within two business days of the date the leave was requested. If the notice is verbal, it must be confirmed in writing no later than the following payday (unless the payday is less than one week after the verbal notice, in which case the notice must be given no later than the subsequent payday). The written notice may be given in any form, including the "Leave of Absence Form."
Generally, leaves cannot be retroactively designated as falling under FMLA/CFRA. Any request to retroactively designate time off as FMLA/CFRA leave should be carefully reviewed with your Employee Relations Consultant. If an employee wishes to request that time off be considered as FMLA/CFRA leave, he/she should make the request within 2 days of returning to work.
Pay and Benefits Status
Grandparents, grandchildren, in-laws or other persons that are not related but are residing in the employee’s household are not covered by FML.
An eligible employee may take FMLA covered leave in order to care for a seriously ill spouse, child, or parent as defined by the law, policy or contract. The health care provider must either certify that third party care is required or that the employee’s presence would be beneficial to the patient. Certification will be sufficient to satisfy this requirement and entitle the employee to FMLA time off. This provision is intended to accommodate needs for leave to provide psychological comfort for a seriously ill eligible family member, and to arrange “third party” care for an eligible family member.
If an employee's unpaid family and medical leave begins in the middle of the month, what is the employee's benefits entitlement?
Because health premiums are paid in advance for the entire month (e.g., August earnings generate September UC contributions for September coverage), premiums would have already been paid for the entire month even if the leave began in the middle of the month. If the leave lasted the full twelve weeks, it would also end in the middle of a month. UC contributions for Health insurance coverage would have already been generated at the beginning of that month for the entire month. As a result, the UC contribution may be generated for up to four months, although the actual entitlement is only 12 workweeks.
Is an employee required to exhaust paid leave (i.e., accrued vacation and sick leave) prior to using unpaid leave during a family and medical leave?
Yes, in most cases:
- Staff employees who are not covered by a collective bargaining agreement must exhaust all accrued vacation prior to taking an unpaid leave unless otherwise requested by the employee and approved by the department head, provided that the leave is not running concurrently with pregnancy disability or work-incurred illness or disability leave. At the employee's option, accrued sick leave may be used in the event that the employee is taking leave due to his or her own serious health condition or up to 30 days sick leave in the event that the leave is being used to care for the employee's family member.
- The use of paid leave varies by collective bargaining agreement for staff employees who are covered by contracts. You should consult the applicable contract for details.
- Academic appointees may exhaust accrued vacation and sick leave prior to an unpaid family and medical leave. Under no circumstance may the University require that an employee use accrued compensatory time off during family and medical leave. However, if the University allows an employee who is otherwise qualified for family and medical leave to use accrued compensatory time off, such time cannot be counted against the employee's entitlement to 12 workweeks of family and medical leave.
How does family and medical leave interact with leave granted for an illness or injury compensable under the Workers' Compensation Act?
If an employee receives temporary disability payments under the Workers' Compensation Act and the employee has a serious health condition as defined by Federal and State family and medical leave statutes, the first 12 workweeks of the leave should be designated as family and medical leave, provided that the employee meets the eligibility requirements and has not already exhausted his or her 12 workweek entitlement.
No. If the university allows an employee who is otherwise qualified for family and medical leave to use accrued compensatory time off, such time cannot be counted toward the employee’s entitlement to workweeks of family and medical leave. Further, under no circumstances may the University require that an employee use accrued compensatory time off during family and medical leave.
The employer is responsible for designating the FML, not the employee. Leave may be designated by the university as FML if you have knowledge or reason to believe a serious health condition exists (e.g., the employee is hospitalized or off work due to an occupational injury or has communicated to you that the need for leave is to care for a seriously ill family member that is medically documented). It is critical that the University designate qualifying leave as family and medical leave for a number of reasons:
- to ensure that the employee gets the benefit and protection of the law
- to establish that we have complied with our notice and designation obligations
- to make sure that we are not obligated to give additional family and medical leave during that leave year simply because of a failure to properly designate the original leave
How should a supervisor or department chair report leave taken in less than full-day increments for FLSA exempt employees?
Under the FMLA, employers are allowed to dock the leave banks and pay of FLSA exempt employees for partial day absences without affecting the employee’s qualification for exemption under FLSA. Records of actual hours worked by FLSA exempt staff and faculty who are granted family and medical leave on either a reduced work schedule or on an intermittent basis must be kept to ensure that the employee or member of the faculty receives his or her complete entitlement to 12 workweeks of leave and so that the department knows when the family and medical leave ends.
How do periods of Active Service-Modified Duties (ASMD) interact with family and medical leave for academic appointees?
ASMD does not affect FML. ASMD is not a leave, therefore FML is not affected.
Is an employee entitled to an additional day of leave if a holiday falls during the employee's family and medical leave?
No. The fact that a holiday may occur within the week taken as family and medical leave has no effect; the week is counted as a week of family and medical leave. However, if employees generally are not expected to report for work for one or more weeks (e.g., winter holiday closure), the days of the closure do not count against the employee's entitlement to family and medical leave.
How is a workweek counted for employees who take leave on a reduced work schedule or intermittent basis?
When an employee takes leave by working a reduced work schedule (e.g., reducing from 100% to 80%) or on an intermittent basis (e.g., a day here and there in different weeks), only the amount of leave actually taken is counted toward the 12 weeks leave entitlement.
An eligible part-time employee is entitled to family and medical leave for a period not to exceed 12 of his or her scheduled workweeks. For example, an employee who has a scheduled workweek of four hours a day (five days a week) is entitled to leave for 12 workweeks each comprised of four hour days.
If an employee's schedule varies from week to week, a weekly average of the hours worked over the 12 weeks prior to the beginning of the leave period should be used to calculate the employee's normal workweek.
Under FMLA and CFRA, an eligible employee is entitled to 12 workweeks of family and medical leave during a 12-month period. How do you determine the 12-month period?
The 12-month period is a calendar year, January – December.
FMLA paperwork should be maintained in a separate file like medical records. [Note: Medical records should not be kept in the employee's personnel file.]
What happens to an employee's family and medical leave records when the employee transfers to another department or campus?
The employee's family and medical leave records must be transferred to the new department or campus.
What is the significance of keeping complete and accurate records of all absences designated as family and medical leave?
The University is required to keep such records for Department of Labor inspections for a period of no less than three years. Failure to maintain records is a violation of FMLA and subjects the University to applicable sanctions. If complete records are not kept of all qualified family and medical leaves, the University may find itself in the position of granting additional time off (i.e., up to 12 workweeks) with health care benefits coverage for a qualified family and medical leave because records do not exist showing that family and medical leave had already been taken. Additionally, failure to properly document leave as covered by FMLA could result in disciplinary action being taken against an employee based on absences that were for protected family and medical leave purposes.
Local procedures may vary, but in most cases, the home department has been designated the Office of Record, and therefore, has the responsibility for maintaining all documentation and records pertaining to the family and medical leave. It is also the department’s responsibility to keep the local employee relations, human resources, or academic personnel office updated regarding the status of a given employee’s family and medical leave.
Which office is responsible for determining and documenting eligibility for and usage of FMLA leave?
The home department is the Office of Record and therefore, responsible for determining and documenting eligibility.
How should the notification to employees be handled if the area responsible for producing the notice is not informed until several days (or weeks!) have passed?
FML generally cannot be retroactively designated/ therefore, it is important to provisionally designate leave as family and medical leave. According to the federal regulations, failure to designate a leave as family and medical means that the person may enjoy the protection of the Act for the period of the leave not properly designated and is still entitled to the 12 workweeks of FML from the date the leave is finally designated.