HR - FMLA - All Types - MA

Emerson will provide job protected leave of absence for family or medical emergencies pursuant to this policy and as required by the federal Family and Medical Leave Act of 1993 as amended (the “FMLA”).  

For the purpose of this policy, employees include Massachusetts faculty and staff unless otherwise indicated in the sections below. All provisions of this policy apply, except that for employees covered by a collective bargaining agreement, this policy does not create any benefits not expressly provided by that collective bargaining agreement and if there are inconsistencies between this policy and the collective bargaining agreement, the terms of the collective bargaining agreement will govern.

Note: To the extent that an employee is eligible for FMLA and for leave under other laws at the same time (such as MA Parental Leave, MA Paid Family and Medical Leave), such leaves will run concurrently to the greatest extent possible under the laws. In addition, to the extent an employee chooses to take FMLA for a reason covered by MA PFML, an employee’s entitlement to MA PFML benefits shall run concurrently, regardless of whether the employee has applied for MA PFML benefits.

Eligibility for FMLA Leave

An employee is eligible for twelve (12) work weeks (except as provided for otherwise below) of FMLA leave if the employee (1) has worked for the College for at least twelve (12) months in the past seven (7) years and (2) has worked at least one thousand two hundred and fifty (1,250) hours for the College in the year preceding a requested leave. 

Types of Leave Covered

An eligible employee may be entitled to FMLA leave for any of the following reasons:

1. For the birth of a child and to care for the newborn child during the first twelve (12) months after birth;
2. For placement with the employee of a child for adoption or foster care during the first twelve (12) months after placement;
   • Note that when married spouses work for the College, the spouses are entitled to a combined total of twelve (12) weeks of FMLA leave between them for birth or placement of a child.  However, the College will provide married spouses with an additional four (4) work weeks of unpaid leave not covered by FMLA up to a total of sixteen (16) work weeks to be shared between eligible married spouses. 
3. To care for the employee’s spouse, child or parent with a “serious health condition.” A “serious health condition” is an illness, injury, impairment, or physical or mental condition that involves either an overnight stay in a medical care facility, or continuing treatment by a health care provider for a condition that either prevents the employee from performing the functions of the employee’s job, or prevents the qualified family member from participating in school or other daily activities. Subject to certain conditions, the continuing treatment requirement includes an incapacity of more than three (3) full calendar days and two (2) visits to a health care provider or one (1) visit to a health care provider and a continuing regimen of care; an incapacity caused by pregnancy or prenatal visits, a chronic condition, or permanent or long-term conditions; or absences due to multiple treatments.  Other situations may meet the definition of continuing treatment;
4. Because of your own serious health condition that makes you unable to perform the functions of your position including incapacity due to pregnancy, prenatal medical care, or childbirth; or
5. Any “qualifying exigency” arising out of the fact that the spouse, or a son, daughter or parent of the employee is on active duty (or has been notified of a call or order to active duty). A “qualifying exigency” includes: (1) short notice deployment (limited to seven (7) calendar days from date notified of deployment); (2) military events and related activities; (3) childcare and school activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation (limited to fifteen (15) days of FMLA leave); (7) post-deployment activities; (8) parental care; and (9) additional activities, only as mutually agreed to by employee and the College.

Special Leave Entitlement Relating to an Employee’s Family Member in the Armed Forces:

A spouse, son, daughter, parent, or “next of kin” may request up to twenty-six (26) workweeks of leave in a single twelve (12)-month period to care for a covered service member during a single twelve (12)-week period.  A covered service member is:  (a) a current member of the Armed Forces, (including a member of the National Guard or Reserves,) who has a serious injury or illness incurred in the line of duty on active duty that renders or may render the service member medically unfit to perform the duties for which the service member is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status; or is otherwise on the temporary disability retired list; or (b) a veteran who was discharged or released under conditions other than dishonorable at any time during the five (5)-year period prior to the first date the eligible employee takes FMLA leave to care for a covered veteran, and who is undergoing medical treatment, recuperation, or therapy for serious illness or injury.

“Next of kin” here means the nearest blood relative, other than the covered service member’s spouse, parent, son, or daughter, in the following order of priority:

• a blood relative who has been designated in writing by the service member as the next of kin for FMLA purposes
• blood relatives who have been granted legal custody of the service member by court decree or statutory provisions
• brothers and sisters
• grandparents
• aunts and uncles
• first cousins

The FMLA definitions for "serious illness or injury" for current service members and veterans are distinct from the FMLA definition of "serious health condition." 

Health Benefits

During FMLA leave, the College will continue the employee’s participation in its health and dental insurance plans and will continue to make its usual contributions to the premium costs of the plans, provided that the employee pays their share of the cost.  The employee may continue participation in, or contributions to, other College benefit plans, to the extent provided under the terms of the applicable plan documents.  Under certain circumstances, if an employee fails to return to work at the College at the conclusion of FMLA leave, the employee may be required to reimburse the College for any insurance payments made on their behalf during any unpaid portion of an FMLA leave.

Paid Time and Salary During Leave 

FMLA Leaves are unpaid periods of time that eligible employees may take from work. Sick time, personal time and vacation time as well as Short-Term Disability, and workers’ compensation are ways in which eligible employees may be paid during FMLA leaves.

Employees may choose to use accrued paid leave during leave, and in some circumstances must use accrued paid leave, as follows (note: when FMLA is running concurrently with MA PFML, the terms of the College’s MA PFML policy govern use of paid leave):

• Sick time must be used during medical leave (including incapacity from pregnancy), military caregiver or family care leave to care for an ill family member.
• Personal time and vacation must be used during medical leave (excluding incapacity from pregnancy), military caregiver, military exigency, parental and family care leave.
• Use of personal time and/or vacation is optional, not required, at any time during a medical leave due to incapacity from pregnancy.
• Use of sick time, personal time and/or vacation is optional, not required, during periods the employee is receiving workers’ compensation. 

Salary increases for staff are suspended during leaves of absence and will be effective on the first day of the month following the end of the leave. 

Sick, personal and vacation time accruals will stop during any unpaid portion of FMLA leave. Sick, personal and vacation time accruals will continue during any paid portion of FMLA as they would while working at regular work schedules. (“Paid leave” is defined here to include all types of pay: sick, vacation, personal, STD and workers’ compensation).

Employees are not paid for holidays and winter break when they fall during unpaid FMLA leave. For information on holidays and winter break when they fall during paid leave, please see the Holiday Policy and Winter Break Policy.

Requests for Leave – Employee Responsibilities

Requests for leave should be made in writing to the supervisor and the College’s leave administration vendor at least thirty (30) calendar days in advance of the leave, stating the purpose of the leave, if the need for leave is foreseeable. If the need for the leave is not foreseeable, the employee is still required to notify the College as soon as practicable under the facts and circumstances of the situation and generally must comply with the College’s typical call-in procedures for absence or tardiness.

The employee must provide sufficient information for the College to determine if the leave may qualify for FMLA protection, as well as the anticipated timing and duration of the leave.   Sufficient information that the leave may be covered by FMLA may include that the employee is unable to perform job functions; the family member is unable to perform daily activities, the need for hospitalization or continuing treatment by a health care provider, or circumstances supporting the need for military family leave.  The employee also must inform the College if the requested leave is for a reason for which FMLA leave was previously taken or certified. Employees may also be required to provide a certification and periodic recertification supporting the need for leave.

An employee’s failure to comply with the College’s FMLA leave procedures can be grounds for delaying or denying an employee’s request for FMLA-qualifying leave.

College’s Responsibilities (or designated outside vendor)

Employees’ supervisors must notify Human Resources if employees have been absent from work for a minimum of three days and there is reason to believe that absences may be FMLA eligible.  Once supervisors notify Human Resources that their employees are out of work for a reason that may be FMLA eligible, the College’s leave administration vendor will send the employees the necessary FMLA leave paperwork and applicable certification forms for completion. 

The College will inform the employee when leave is requested whether the employee is eligible for FMLA leave.  The notice will specify any additional information required, as well as the employee’s rights and responsibilities.  If the employee is not eligible for FMLA leave, the College will provide a reason for the ineligibility. 

The College will inform the employee if leave will be designated as FMLA leave and the amount of leave that will be counted against the employee’s leave entitlement, if possible.  If the College determines that the leave does not qualify as FMLA leave, the College will notify the employee of this fact as well.

Returning from Leave

Upon returning from FMLA leave, the employee will be returned to the same or equivalent position that the employee left when the leave began, except in certain circumstances where the employee has been designated a “key employee” or where employment would not have continued had the employee not been on leave.  The employee will be reinstated without loss of employment rights or benefits that the employee had earned or accrued prior to the beginning of the leave, except to the extent such benefits were used or paid during the leave.

If the employee is returning from FMLA leave for their own serious health condition, the employee may be required to provide medical certification of their ability to return to work before being restored to the same or equivalent position.  

An employee is considered to have resigned voluntarily if:

• The employee does not return to work on their scheduled return date without a valid excuse or leave extension; 
• The employee fails to notify the College that they will not be returning from an FMLA or other approved leave of absence;  
• The employee does not return to their original position or an equivalent one as soon as they are able; or
• The employee has accepted other employment during the leave period that renders the employee unable to return to his or her previous position.

Duration of Leave and Benefit Year

FMLA leave generally may be taken in one block of up to twelve (12) weeks per year. The College uses a “rolling” 12-month year measured backward from the date an employee uses any FMLA leave. Under the ‘‘rolling’’ 12-month period, each time an employee takes FMLA leave, the remaining leave entitlement would be the balance of the 12 work weeks which has not been used during the immediately preceding 12 months. Example: Michael requests three work weeks of FMLA leave to begin on July 31st. The employer looks back 12 months (from July 31st back to the previous August 1st) to see if any FMLA leave had been used. Michael had not taken any previous FMLA leave, so he is entitled to the three work weeks he requested and has nine more work weeks available.

Employees may take leave on an intermittent or reduced leave schedule (select days or hours, for example) if the leave is to care for the employee’s spouse, child or parent with a serious health condition, for the employee’s own serious health condition or for a qualifying exigency arising out of the fact that the spouse, or a son, daughter or parent of the employee is on active duty (or has been notified of a call or order to active duty).  Intermittent or reduced leave schedules must be supported by appropriate documentation.  Employees needing intermittent or reduced schedule leave must make reasonable efforts to schedule leave so it minimizes disruption for the department and College’s operations. Note that intermittent FMLA may be taken in increments of fifteen (15) minutes or more depending on the certification of the health care provider.

Limitations on Leave

Use of FMLA leave for purposes other than as set forth by the FMLA is strictly prohibited and may result in disciplinary action, up to and including termination of employment.  

Unlawful Acts by Employers 

The FMLA makes it unlawful for an employer to interfere with, restrain, or deny the exercise of any right provided under the FMLA; or to discharge or discriminate against any person for opposing any practice made unlawful by the FMLA or for involvement in any proceeding under or relating to the FMLA. 

Enforcement of the FMLA

An employee may file a complaint with the U.S. Department of Labor (the “DOL”) or may bring a private lawsuit against an employer for claimed violations of the FMLA.   Contact information for the DOL is: 1-866-487-9243; TTY 1-877-889-5627; www.wagehour.dol.gov.  The FMLA does not affect any federal or state law prohibiting discrimination, or supersede any state or local law or collective bargaining agreement that provides greater family or medical leave rights.