University Business Policies and Procedures Manual

3440
FAMILY AND MEDICAL LEAVE
Effective Date: May 5, 1995
Revised: 10/15/98, 09/25/02
Subject to Change Without Notice

1. General

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 unpaid, job-protected leave within a twelve (12) month period for certain family and medical reasons. This leave is hereafter referred to as FMLA leave. FMLA leave is in addition to any paid annual or sick leave an employee may have taken. 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 or to discriminate against an employee for requesting FMLA leave. This policy outlines the conditions under which an employee may request unpaid FMLA leave to care for certain members of the employee's family or request medical leave for the employee's own serious health conditions.

2. Eligible Employees

To be eligible for unpaid FMLA leave, an employee must:

• have been employed for at least twelve (12) months in total, 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 unpaid FMLA leave, subject to the provisions of this policy.

3. Events Eligible for Unpaid FMLA Leave

Eligible employees may take unpaid FMLA leave for the following reasons.

3.1. Birth, Adoption, or Foster Care

Eligible employees may take unpaid FMLA leave to care for a child upon birth or to care for a child placed with the employee for adoption or foster care. Unpaid 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 leave banks before requesting unpaid FMLA leave.

If both parents are employees of the University, unpaid 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. Unpaid FMLA leave taken for the serious health condition of the employee or child would not be subject to the combined limit.

3.2. Medical Reasons

Employees may use annual and sick leave before going on unpaid FMLA leave for medical reasons, but they are not required to exhaust leave banks before requesting unpaid FMLA leave.

3.2.1. FMLA Leave for Family Medical Conditions

Eligible employees may take unpaid FMLA leave to care for a member of an employee's immediate family who has a serious health condition as defined in Section 3.2.3. herein. Immediate family includes children, spouse or domestic partner, parents, grandchildren, and siblings.

3.2.2 Unpaid FMLA Leave for Employee's Medical Conditions

An eligible employee may take unpaid 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 3.2.3. herein.

3.2.3. Serious Health Condition

A serious health condition means an illness, injury, impairment, or physical/mental condition that 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.

Typical examples of a serious health condition include, but are not limited to:

• severe respiratory condition,
• appendicitis,
• emphysema,
• severe nervous disorder,
• injury caused by a serious accident on or off the job,
• back condition requiring extensive therapy or surgical procedures, and
• pregnancy.

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.

4. Notice to Employees

Within two (2) business days of an employee's initial request for unpaid FMLA leave, the supervisor must provide the employee with information about the FMLA and the specific expectations and obligations of the employee under the FMLA and the consequences of failing to meet those obligations. A supervisor must confirm or deny, in writing to the employee, within two (2) business days after receiving a request whether the employee is eligible to take unpaid FMLA leave. Specific forms and letters have been provided at http://www.unm.edu/~hr/forms/viewall.htm for these purposes. An employee is presumed eligible unless the supervisor notifies the employee of ineligibility.

5. Request for Unpaid FMLA Leave

When the need is foreseeable, such as birth or adoption of a child or planned medical treatment, an employee should submit the Request for Unpaid FMLA Leave (Exhibit A.) to 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.

5.1. Medical Certification

The University will require medical certification to support a request for unpaid FMLA leave for medical reasons using the form approved by federal regulations and issued by the Department of Labor. Forms may be obtained from the Department of Human Resources or at http://www.unm.edu/~hr/forms/viewall.htm. 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.

5.1.1. 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.

5.1.2. 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.

5.1.3. 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.

5.2. Procedures

When a staff employee requests family or medical leave, the employee's department must send a Personnel Action Notice (PAN), the Request for Family or Medical Leave, and the Certification of Health Care Provider to the University Department of Human Resources. The Department of Human Resources will advise the employee, in writing, of his or her reemployment and benefit rights. Faculty should contact the University Faculty Contracts Office for the appropriate procedures.

6. Amount of Unpaid FMLA Leave

The University of New Mexico provides eligible employees up to twelve (12) weeks of unpaid, job-protected leave within a twelve (12) month period for certain family and medical reasons.

6.1. 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 unpaid FMLA leave.

6.2. Holidays

If a holiday(s) falls during a week when an employee is on unpaid FMLA leave, the week is still treated as a full week of unpaid FMLA leave and counts toward the total twelve (12) weeks allowed.

7. Catastrophic Leave

Although an employee may take unpaid FMLA leave in addition to his or her earned sick and/or annual leave, the amount of unpaid FMLA leave an employee would be eligible to take will be reduced by any catastrophic leave the employee takes. Refer to "Catastrophic Leave Program" Policy 3430, UBP.

8. Workers' Compensation

If an employee experiences a job related injury or illness, the supervisor shall notify the employee that he or she may qualify to request unpaid FMLA leave. The amount of unpaid FMLA leave an employee would be eligible to take will be reduced by time off covered under Workers' Compensation. Refer to "Workers' Compensation" Policy 3630, UBP.

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.

9.1. Reinstatement of Employee

The employee's department must reinstate the employee returning from unpaid 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 unpaid 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 unpaid 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. Unpaid leave beyond twelve (12) weeks may be granted, 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 Unpaid FMLA Leave

While an employee is on unpaid FMLA leave, the status of various University-sponsored benefit programs will be as follows:

10.1. Health Insurance

The University will continue the employee's group health insurance during the period that the employee is on unpaid FMLA leave. The University will bill the employee for that portion of the premium normally withheld from the employee's paycheck.

10.2. Life Insurance

The University will continue the employee's life insurance during the period that the employee is on unpaid FMLA leave. The University will bill the employee for that portion of the premium normally withheld from the employee's paycheck.

10.3. Retirement

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.

10.4. Annual and Sick Leave

The employee will not accrue annual and sick leave during the period that the employee is on unpaid FMLA leave.

 10.5. Holidays

Employees on unpaid FMLA leave are not eligible for holiday pay.

10.6. Dependent Education Program

Dependents of employees who were participants in the Dependent Education Program before the employee began unpaid FMLA leave can continue in the program as long as the dependent remains eligible.

11. Record Keeping Requirements

Departments are required to keep all documentation pertaining to unpaid FMLA leave requests for three (3) years. The documentation must include the following:

• Dates of unpaid 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, if in writing, 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, recertifications, 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 medical condition might require emergency treatment. Government officials shall be provided relevant information upon request.

12. Attachments

Exhibit A. - Employee's Request for Unpaid FMLA Leave

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