The University of Texas at Tyler Employee Handbook

FAMILY AND MEDICAL LEAVE ACT OF 1993 (FMLA)

The Family and Medical Leave Act of 1993 entitles U.T. Tyler employees to up to 12 weeks (480 hours) of Family Medical Leave per year for certain family reasons provided they have been employed by the State for at least 12 months prior to the commencement of the leave and worked at least 1,250 hours.

LEAVE REQUIREMENTS:

1. U.T. Tyler will grant up to 12 weeks leave (inclusive of paid and unpaid) in a 12-month period for one or more of the following reasons:

(a) birth of son/daughter and care after such birth;

(b) placement of son/daughter for adoption or foster care;

(C) serious health condition of spouse, child or parent of employee; or

(d) serious health condition of employee (unable to perform job).

NOTE: Leave for birth or placement for adoption can be taken prior to the actual birth or adoption.

2. When an employee is taking leave to care for a family member or due to his/her own serious health condition, the employee will be required to support the leave request with certification from the health care provider. Forms are available in the Human Resource Department. If the University does not agree with the medical certification, a second opinion at the University’s expense may be obtained. If the two opinions disagree, a third opinion may be obtained at the University’s expense, and will be the final determination. There is no certification requirement if an employee is taking leave for the birth or placement of a child.

DEFINITIONS:

A. SPOUSE: For purposes of the Act, spouse is defined in accordance with the applicable state law including common law marriages when recognized by the State. Unmarried domestic partners do not qualify for family leave.

B. CHILDREN: Son or daughter is defined as a biological, adopted, or foster child, stepchild, legal ward, or a child of a person standing in loco parentis. Children may be any age. There is no requirement that the child lives with the employee or be a legal dependent of the employee. Also, ‘in loco parentis’ includes the child of a domestic partner if the employee was acting in a parent-like capacity.

C. PARENT: The biological parent of an employee or an individual who stood in loco parentis to an employee when the employee was a son or daughter. (This does not include the parent of an employee’s spouse.)

D. SERIOUS HEALTH CONDITION: A serious health condition is one that requires in-patient care or continuing treatment by a health care provider. The term ‘serious health condition’ is intended to cover those conditions which affect one’s health to the extent that in-patient care is required or continuing treatment by a provider of health care is necessary on a recurring basis for more than a few days for treatment or recovery. The FMLA is not intended to cover short-term conditions for which treatment and recovery are brief.

Examples of serious health conditions include heart attacks, heart conditions, most cancers and back conditions requiring extensive therapy or surgical procedures, strokes, respiratory conditions, appendicitis, pneumonia, emphysema, severe nervous disorders, injuries caused by serious accidents on or off the job, ongoing pregnancy, severe morning sickness, need for prenatal care, childbirth, and recovery from childbirth. A serious health condition includes treatment for a serious chronic condition which, if left untreated, would likely result in an absence of work for more than three (3) days.

E. SUBSTANCE ABUSE: Treatment of substance abuse may be included under the FMLA where a stay at an in-patient treatment facility is required. However, absences because of an employee’s use of a substance without treatment do not qualify for the FMLA. The inclusion of substance abuse does not prevent U.T. Tyler from taking any employment action against an employee who is unable to perform the essential functions of the job. However, ADA accommodations will be made when applicable and reasonable.

F. PARENTAL LEAVE: An employee’s entitlement to leave for the birth or placement of a child expires 12 months after the birth or placement. If both parents work for U.T. System components, regardless of whether they work at different work-sites or different component institutions, the total amount of leave cannot exceed 12 weeks. This limitation applies only for those cases involving the birth or placement of a child. In cases involving sickness, this limitation does not apply.

G. INTERMITTENT LEAVE: Leave taken due to the serious health condition of the employee or a member of the employee’s family may be taken at the time it is needed. There is no minimum limitation on the number of hours of intermittent leave that may be taken, i.e., the leave may be taken in increments of 2 hours, 4 hours, etc., provided proper notice has been given, if the need for the leave is foreseeable.

PROCEDURES:

How the 12-Month Period is Calculated

Eligible employees are entitled to take up to 12 work weeks of FMLA leave during any 12-month period measured forward from the date the employee’s first FMLA leave begins.

Requirement of Using Sick/Vacation Leave

Under the Appropriations Act, employees are required to first utilize all paid leave entitlements including accumulated sick, vacation, compensatory and holiday leave, if applicable, when taking leave under the FMLA. However, the University is not permitted to count paid leave which was not for an FMLA purpose against an employee’s FMLA leave entitlement. For example, if an employee has taken sick leave on various occasions for a cough, cold, flu, or something that is not an extended illness, those days may not be counted toward the 12-week entitlement under the FMLA. If, however, the employee is expecting the birth of a child and has taken leave prior to the birth for prenatal care, the employer will require the employee to use their paid leave entitlements and limit the total amount of time away from the employment to a total of 12 weeks. It is U.T. Tyler’s responsibility to designate whether or not the leave (paid or unpaid) will be considered leave taken pursuant to the FMLA.

Premium Payment for Medical Insurance

When an employee is on unpaid FMLA leave, the University will continue to pay the State Premium Sharing for medical/dental insurance as if the employee had continued employment during the leave. For example, if the employee normally has family medical coverage, U.T. Tyler continues paying the applicable amount of State Premium Sharing at the family rate. The employee is required to pay his or her share of the premiums in the same manner required when working. An employee will be billed for his/her share of premiums.

Failure of Employee to Pay His or Her Share of Insurance

1. If the employee fails to make a timely health plan premium payment, a 30-day grace period will be provided after the payment due date. If the employee does not make payment within the 30 days, the University will cease to maintain the health coverage on the date the grace period ends. Prior to expiration of the grace period, U.T. Tyler will notify the employee of the discontinuation of insurance coverage.

2. If the University discontinues health coverage as a result of non-payment of premiums, the employee’s group health benefits must be restored to at least the same level and terms as were provided when leave commenced. Therefore, the restored employee shall not be required to meet any qualification requirements such as a waiting period or pre-existing condition requirements, when they have failed to continue their health coverage for non-payment of premiums.

3. If an employee fails to return to work after a period of unpaid FMLA leave, and the employer has paid for maintaining health coverage, the employer is entitled to recover the premiums paid unless the reason the employee does not return to work is due to:

(a) continuation of a serious health condition that would entitle the employee to FMLA leave, or

(b) other circumstances beyond the control of the employee.

4. An employee is considered to have returned to work after he or she has worked for a period of 30 calendar days. Therefore, an employee who returns to work for only one week and then departs is not considered to have returned to work for the purposes of the premium payments. The University may recover health insurance premium payments from any sum due to the non-returning employee such as travel pay checks, etc, provided that prior to the deduction of any amounts, the University must check with the Office of General Counsel to ensure that such deduction is appropriate.

Returning Employee

When an employee returns to work under the FMLA, he or she is entitled to be restored to the same position held when the leave started, or to an equivalent position with equivalent pay. An equivalent position is one that has the same pay, benefits, and working conditions, and involved the same or substantially similar duties and responsibilities and with the equivalent skill, effort, responsibility and authority.

Notice by Employee

Employees must give at least 30 days advance notice to the employer of the need to take FMLA leave when it is foreseeable for the birth or adoption of a child or for medical treatment. When it is not possible to give such notice, such as premature birth or unexpected medical illness, the notice should be given as soon as practical within one to two business days of when the employee learns of the need for leave. In these cases, verbal notice is sufficient to inform the employer that the employee will be needing the FMLA leave. However, the employee must provide the certification requirements within 15 working days.

An employee who has given notice under the FMLA and has provided and met the certification requirements, if applicable, may not be denied the taking of FMLA leave.

It is the responsibility of the employee and/or supervisor to report the need for FMLA involving a serious or chronic health condition that would necessitate the employee being absent from work for three or more days to the Office of Human Resources. Notice should be given as soon as possible so the University can initiate the process of obtaining the necessary FMLA documentation and inform the employee of their rights and responsibilities under the Family and Medical Leave Act.

Rights of Employees

Employees who exercise their rights under the FMLA are entitled to do so without restraint and shall not be subject to discharge or discrimination by the employer. It is unlawful for any person to discharge, or in any other manner discriminate, against the individual for having filed charges, instituted any proceeding under or related to the FMLA, given any information in connection with the inquiry proceeding with the right under the FMLA, or testified in any right or proceeding regarding the FMLA.

If an employee’s FMLA rights have been violated, the FMLA provides that the employee may file a complaint with the Department of Labor or file a private law suit against the employer to obtain damages and other relief.