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
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.
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.
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.