HR - Military Caregiver Leave - FMLA

Policy Statement and Reason

For the purpose of this policy, employees include California 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.

Emerson College recognizes that employees may need time away from work to care for a covered service member who is a spouse, son, daughter, parent or “next of kin” with a serious illness or injury incurred in the line of duty on active duty. This policy provides information about Military Caregiver Leave, one type of unpaid leave under the Family and Medical Care Leave Act, and what, if any, pay continuation options may be available to eligible staff employees during this otherwise unpaid time away.

Refer to “General Information for all FMLA Leaves - CA” for full information regarding FMLA leaves including:

Types of FMLA Leave
Definitions
Eligibility
Pay Continuation
Use of FMLA
Extended Leaves
Both Spouses Employed by the College
Employee Responsibilities
Employer Responsibilities
Benefits and Salary Increases during Leave (Paid & Unpaid Leave)
Return from Leave and Failure to Return from Leave
Coordination of Federal and State Regulations
Protections

Definitions

Child: A biological, adopted or foster child, stepchild or legal ward who is under eighteen years of age, or eighteen or older and incapable of self-care because of mental or physical disability, at the time the leave commences.

Covered Service Member:

(a) a current member of the Armed Forces (including a member of the National Guard and Reserves) who has a serious injury or illness incurred in the line of duty on active duty that may render the service member medically unfit to perform his or her duties for which the service member is undergoing medical treatment, recuperation, or therapy; in outpatient status; or on the temporary disability retired list; or

(b) a veteran who: (i) has a serious injury or illness incurred in the line of duty on active duty (or existed before the beginning of the member’s active duty and was aggravated by service in the line of duty on active duty) for which the veteran is undergoing medical treatment, recuperation, or therapy and (ii) was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy.

Next of Kin: The “next of kin” of a covered veteran is the nearest blood relative, other than the veteran’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,
a blood relative who has been granted legal custody of the service member
brothers and sisters
grandparents
aunts and uncles
first cousins

Rolling 12-Month Period Measured Backward: Period 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 weeks which has not been used during the immediately preceding 12 months.

Example 1: Michael requests three 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 weeks he requested and has nine more weeks available

Serious Injury or Illness (current service members & Veterans): The FMLA definition of “serious injury or illness” for current service members and veterans are distinct from the FMLA definition of “serious health condition.” A serious injury or illness means an injury or illness that was incurred by the covered veteran in the line of duty on active duty in the Armed Forces or that existed before the veteran’s active duty and was aggravated by service in the line of duty on active duty, and that is either: (1) a continuation of a serious injury or illness that was incurred or aggravated when the veteran was a member of the Armed Forces and rendered the service member unable to perform the duties of the service member’s office, grade, rank, or rating; or (2) a physical or mental condition for which the veteran has received a U.S. Department of Veterans Affairs Service-Related Disability Rating (VASRD) of 50 percent or greater, and the need for military caregiver leave is related to that condition; or (3) a physical or mental condition that substantially impairs the veteran’s ability to work because of a disability or disabilities related to military service, or would do so absent treatment; or (4) an injury that is the basis for the veteran’s enrollment in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.

Spouse (FMLA definition): a husband or wife as defined or recognized in the state where the individual was married, including in a common law marriage or same-sex marriage. Spouse also includes a husband or wife in a marriage that was validly entered into outside the United States, if the marriage could have been entered into in at least one state.

Policy Guidelines

Eligibility

An employee is eligible for FMLA if he or she has (1) been employed by Emerson College for at least 12 months; (2) has actually worked at least 1,250 hours in the previous 12-month period (inclusive of time the employee has spent in military service during that period); and (3) works in a location within 75 miles of at least 50 employees of Emerson College

Military Caregiver Leave (FMLA)

One category of leave for which eligible employees are entitled is Military Caregiver Leave. A spouse, son, daughter, parent (including step relationships), or “next of kin” may request up to 26 workweeks of leave to care for a covered service member during a single 12-month period. The single 12-month period for military caregiver leave begins on the first day the employee takes leave for this reason and ends 12 months later, regardless of the 12-month period established by the employer for other FMLA leave reasons.

FMLA leaves provide eligible employees with a combined total of 12 weeks of unpaid, job-protected leave for all FMLA leave types in a 12-month period (measured backward on a rolling basis from the date an employee uses any FMLA leave), except that Military Caregiver Leave, provides a combined total of 26 weeks for all FMLA leaves in a 12-month period unless otherwise stipulated by applicable collective bargaining agreement.

Pay Continuation for Faculty Employees

Military Caregiver Leaves under the FMLA are “unpaid” periods of time eligible faculty employees may take from work for the reasons described above.

For information about any applicable pay continuation for faculty employees, please see the applicable collective bargaining agreement.

Pay Continuation for Staff Employees

Military Caregiver Leaves are “unpaid” periods of time eligible employees may take from work for the reasons described above.

Unless otherwise stipulated by applicable collective bargaining agreement, Emerson College also provides eligible staff employees with paid time off in the form of sick, time, personal time, and vacation time to cover leaves from work. Staff employees on Military Caregiver Leave must use available paid sick time, up half of their annual accrual, and then use any available personal time and vacation time when not receiving income replacement by the state. However, employees may hold up to five (5) total days of sick, personal, and vacation time in reserve.

Use of sick time, personal time, and/or vacation is optional, not required, during periods the employee is receiving any kind of income replacement benefits, such as workers’ compensation, state disability or paid family leave benefits.

Also see: California Paid Family Leave policy

Intermittent Leave

When supported by satisfactory documentation, leaves may be scheduled on an intermittent basis or as a reduced work schedule. Employees must make reasonable efforts to schedule intermittent time away so as not to unduly disrupt College operations

Both Spouses, Domestic Partners, or Parents Employed by the College

This policy may vary when spouses, domestic partners, or parents are employed by the college. See: General Information for all FMLA Leaves Policy - CA.

Other Information

Related Policies

Responsible Officer

Please contact the Leave of Absence Administrator (Human Resources) for further information regarding this policy and its implementation.

Key Offices to Contact

Office of Human Resources

Links to Procedures or Forms

Please contact the Leave of Absence Administrator (Human Resources) for assistance.

The contents of this policy are informational only and are not conditions of employment. This policy does not create any contractual obligations or alter the at-will employment of the College’s at-will employees. Emerson College reserves the right to modify, revoke, suspend, terminate, or change any and all policies and procedures at any time, with or without notice, as consistent with state and federal law.

Policy Effective: May 2019

HR - Military Caregiver Leave - FMLA - CA