4.26 Family and Medical Leave

I. Purpose

The purpose of the Family and Medical Leave Regulation is to comply with the Family and Medical Leave Act of 1993 (FMLA) and the National Defense Authorization Act of 2008 (PDF). Additional information may be obtained from the Associate Vice President for Human Resources.

II. Rule

Employees who have been employed by the College for at least twelve months prior to the date leave is to commence, who have worked at least 1,250 hours over the previous twelve months, and who work at a location where fifty or more employees are employed by the College within 75 miles, are eligible for unpaid leave under FMLA. A break in service, if not due to military service, cannot exceed seven years for prior employment to count toward the twelve-month requirement.

Eligibility for leave for childbirth or adoption of a child under the age of 2 will be provided to all full-time employees, and it will not be necessary for them to have worked at least 1,250 hours over the previous twelve months.

Nothing in these regulations shall be construed to entitle any employee to accrue any seniority or employment benefits during any period of leave or any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken FMLA leave.

III. Regulations

A. Leave Entitlement

Eligible employees are entitled up to twelve weeks (or 26 weeks where specified) of unpaid family or medical leave during a twelve-month period for any of the following:

1. The birth of a child of the employee;

2. The placement of a child with the employee for adoption or foster care;

3. A serious health condition that makes the employee unable to perform the functions of the employee's position;

4. In order to care for any member of the employee's immediate family (parents, legal guardians or surrogates, grandparents, grandchildren, siblings, spouse, children, spouse's parents, or spouse's legal guardians or surrogates, or any dependent living with the employee) if such family member has a serious health condition. Spouses employed by the College are jointly entitled to a combined total of twelve work weeks of family leave for the birth of a child, placement of a child for adoption or foster care, or to care for a family member parent who has a serious health condition.

5. To care up to 26 weeks for a spouse, son, daughter, parent, or next of kin who is a covered service member for a serious injury or illness incurred while on active duty or existed before active duty and was aggravated while on active duty. Spouses employed by the College are jointly entitled to a combined total of 26 weeks to care for a service member.

6. A "qualifying exigency" arising out of the employee's spouse, son, daughter, or parent being on active duty or having been notified of an impending call or order to active duty in the Armed Forces for deployment to a foreign country. A "qualifying exigency" is defined as: (1) short-notice deployment, (2) military events and related activities, (3) childcare and school activities, (4) financial and legal arrangements, (5) counseling, (6) rest and recuperation, (7) post-deployment activities, and (8) additional qualifying activities which arise out of active duty that are agreed upon by the College and the employee. Up to 12 weeks of leave is available for a "qualifying exigency".

Leave for birth of a child or placement of a child for adoption or foster care must conclude within twelve months of the birth or the placement. An employee is entitled to twelve weeks of FMLA leave in any twelve-month period. The twelve-month period is measured backwards from the date an employee uses any FMLA leave. Each time an employee takes FMLA leave, the remaining leave entitlement would be any balance of the twelve weeks which has not been used during the twelve-month period.

In some cases intermittent leave or leave on a reduced work schedule is available. This is leave which is taken in blocks of time or by reducing a normal weekly or daily work schedule. Such leave is available if medically necessary to care for a family member who has a serious health condition or because the employee has a serious health condition that makes the employee unable to work. Requests for intermittent leave will be handled on a case-by-case basis depending on the nature of the request and the College's operational needs.

B. Designation of Paid Leave

Sick leave is required to be used concurrently with FMLA leave taken for any purpose that otherwise qualifies for sick leave under 4.17 Sick Leave Policy. Accrued vacation/personal/bonus or any other authorized leave is required to be used concurrently with any FMLA leave. Once an employee's leave is exhausted, any remaining FMLA leave is unpaid.

C. Maintenance of Health Benefits

During FMLA leave, the College will maintain the employee's health coverage under any group health plan on the same terms as if the employee had continued to work. 

The employee must continue to pay the cost of dependent group health benefit premiums. The payment of the dependent group health premiums should be arranged with the Associate Vice President for Human Resources prior to taking the first day of FMLA leave. Failure of the employee to pay those premiums within 30 days of the due date may result in termination of group health coverage for the dependent(s).

The College  is generally entitled to recover all premiums paid by the College to maintain health coverage for employees who fail to return to work after FMLA leave. An employee must return to work for 30 days in order to avoid being obligated to repay such amounts. An employee will not have to repay such amounts if the failure to return to work is due to circumstances beyond the control of the employee.

D. Job Restoration

Subject to certain exceptions (such as when the employee would not otherwise have been employed at the time reinstatement is requested, or the employee is within the category of employees where restoration would cause substantial and grievous economic injury to the College) employees who take FMLA leave are entitled to be reinstated to their original job or to an equivalent job with equivalent pay, benefits, and other employment terms and conditions.

Nothing in these regulations shall be construed to entitle any restored employee to accrue any seniority or employment benefits during any period of leave or any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave.

E. Maintenance of Other Benefits

In order to restore any benefit, other than group health benefits, provided by insurance to the employee without the employee having to re-qualify for such benefits upon his/her return from leave, the College may find it necessary for premiums for such insurance to be paid continuously during the unpaid leave period to avoid a lapse of coverage. The College shall be entitled to recover any such payments to maintain coverage of benefits during the employee's unpaid leave, whether or not the employee returns from leave, unless the employee does not return to work due to circumstances beyond the control of the employee.

IV. Procedures

A. Notice and Reporting by Employees

1. Employees desiring FMLA leave must give at least 30 days notice to the College of the need for leave, whenever foreseeable, following usual and customary procedures for reporting an absence. When foreseeable leave is due to a qualifying exigency, notice must be provided as soon as practical regardless of how far in advance leave was foreseeable. For qualifying exigency and military caregivers reasons, employees must provide sufficient information to indicate need for FMLA leave with anticipated timing and duration of leave. 

2. Whenever leave is needed for a planned medical treatment, whether for an immediate family member or the employee, the employee should make efforts to schedule the treatment so as  to minimize disruption to the operations of the College.

3. An employee on FMLA leave will be required to report periodically on his/her status and intention to return to work.

4. Employees should advise the College if and when they decide unequivocally not to return to work.

5. If an employee fails to give 30 days notice for foreseeable leave with no reasonable excuse for the delay, the College may deny the taking of the FMLA leave until at least 30 days after the date the employee provides notice.

B. Designation of Leave

1. It is the College's responsibility to determine that an employee is eligible for FMLA leave. An employee may submit an application for Family Medical Leave which can be obtained from the HR department or online at the Human Resources website. However, the determining factor in designating FMLA leave is the qualifying reason(s), not the employee's election or reluctance to use FMLA leave or to use all, some, or none of the accrued leave. The College's designation must be based on information obtained from the employee or the employee's authorized  representative.

2. If an employee notifies the College of the need for FMLA leave before the employee meets the eligibility criteria, the College will:

a. Confirm the employee's eligibility effective on the date leave is to start, or

b. Advise the employee when the requirement will be met.

3. Employees seeking to use FMLA leave may be required, at the election of the College, to provide:

a. Medical certifications supporting the need for leave due to a serious health condition affecting the employee, an immediate family member, or a covered service member no later than 15 calendar days after the request by the College.

b. Second or third medical opinions and periodic re-certification (at the College's expense). The College is permitted to designate the health care provider to furnish the second opinion, but the selected health care provider may not be employed on a regular basis by the College. If the opinions of the employee's and the College's designated health care providers differ, the College may require the employee to obtain certification from a third health card provider, again at the College's expense. This third opinion shall be final and binding. The third health care provider must be designated or approved jointly by the College and the employee. The College is required to provide the employee, within five  business days, with a copy of the second and third medical opinions where applicable, upon request by the employee. If the employee refuses to release relevant medical records in order for the health care provider to render a sufficient and complete opinion, the employee's request for FMLA leave may be denied.

c. The College may request periodic medial recertification in connection with an ongoing or long-term condition. A recertification may be required when an employee is seeking an extension of the initial leave period. The timing and frequency of medical recertification will depend on the reason for the leave and its expected duration.

d. Certification of fitness-for-duty prior to returning to work.

e. Active duty orders for the covered military member when the employee first requests exigency leave or supporting documentation which may include:

1) A description, signed by the employee, describing facts supporting the leave request and including any available documentation, such as a copy of the meeting announcement, appointment, or copy of a bill for service;

2) The approximate date the qualifying exigency commenced or will commence;

3) The beginning and end dates for the absence if the request is for a single period of time;

4) An estimate of the frequency and duration of the exigency if the request is for intermittent or reduced schedule basis;

5) Contact information of the third party or entity and a brief description of the purpose of the meeting if the exigency involves meeting with a third party or entity.

4. Intermittent leave may be taken in increments of 60 minutes as consistent with 4.17 Sick Leave Policy.

C. Requesting Leave

1. The employee will notify Human Resources by phone, e-mail, or submit to Human Resources a completed Application for Family or Medical Leave 30 days in advance of the leave date, whenever practicable. The employee should also notify his/her supervisor with as much notice as possible for scheduling purposes. 

2. The Associate Vice President for Human Resources will review the form, determine the appropriateness of the request, and make the final decision regarding approval of FMLA leave. If a Certification of Health Care Provider is requested, it must be returned within 15 calendar days. If a certification is incomplete or insufficient, the employee will have up to seven calendar days to remedy the deficiency. The College may designate a Human Resources representative or a health care provider to contact the employee's health care provider, consistent with the Health Insurance Portability and Accountability Act (HIPAA), to verify and/or clarify if the employee cannot cure any deficiencies in the medical certification. If the employee refuses to cure deficiencies or does not grant permission to clarify, the employee's request for FMLA leave may be denied. 

3. The Associate Vice President for Human Resources will  notify the employee, the employee's supervisor, and the Unit Vice  President of the status of the request for leave within five workdays of the date of the submission of all necessary information. The College may designate FMLA leave with appropriate information without an application from the employee. Notification to the employee that leave will be designated as FMLA will be provided to the employee and the employee's supervisor.

4. The Associate Vice President for Human Resources, or designee, will arrange with the employee the payment schedule for coverage of the employee's spouse and/or dependents. (See III C. Maintenance of Health Benefits)

5. When an employee is on paid leave but has not given notice of the need for FMLA leave, the College may, after a period of ten work days, request that the employee provide sufficient information to establish whether the leave is for a FMLA-qualifying reason. 

6. If an absence which begins as other than FMLA leave later develops into an FMLA-qualifying absence, the entire portion of the leave period that qualifies under FMLA may be counted as FMLA leave.

7. Once the College has knowledge that the leave is being taken for an FMLA-required reason, the College will, within five business days, absent extenuating circumstances and notify the employee that the leave is designated and will be counted as FMLA leave. The notice may be oral or in writing, but must be confirmed in writing within five business days. 

V. Definitions

A. Parent: A biological or adoptive parent, or an individual who stood in loco parentis (a person who is in the position or place of a parent), to an employee when the employee was a child.

B. Child: A son or daughter who is:

1. Under 18 years of age; or

2. Is 18 years of age or older and incapable of self-care because of a mental or physical disability; and who is

3. A biological child; or

4. An adopted child; or

5. A foster child (a child for whom the employee performs the duties of a parent as if he/she were the employee's child); or

6. A step-child (a child of the employee's spouse from a former marriage); or

7. A legal ward (a minor child placed by the court under the care of a guardian) or;

8. A child of an employee standing in loco parentis (a person who is in the position or place of a parent);

C. Next of Kin: Nearest blood relative.

D. Spouse: A husband or wife recognized by the state of North Carolina.

E. Covered Service Member: A current service member who is being treated for a serious illness or injury incurred while on active duty or a service member who was a member of the Armed Forces anytime during the period of 5 years preceding the date on which the veteran undergoes treatment.

F. Serious Health Condition: An illness, injury, impairment, or physical or mental condition that  involves:

1. Hospital care-inpatient care (i.e. an overnight stay) in a hospital, hospice, or residential medical facility, including any period of incapacity or any subsequent treatment in connection with such impairment;

2. Absence (a period of incapacity of more than three full consecutive calendar days) plus two visits to a healthcare provider for treatment;

3. Pregnancy and prenatal care;

4. Chronic conditions requiring periodic visits for treatments at least twice a year;

5. Permanent/long-term conditions requiring supervision;

6. Multiple treatments.

G. Health Care Provider: A doctor of medicine or osteopathy who is authorized to practice medicine in North Carolina or any other person determined by statute, credential, or licensure to be capable of providing health-care services.

H. Intermittent Work Schedule: A work schedule in which an employee works on an irregular basis and is taking leave in separate blocks of time, rather than one continuous period of time, usually  to accommodate some form of regularly scheduled medical treatment.

I. Twelve-Month Period: A "rolling" twelve-month period measured backward from the date an employee uses any family and medical leave.

Changes from Human Resources on January 5, 2010
Changes approved by Cabinet on May 18, 2009; March 12, 2007
Changes approved by the Board of Trustees on May 5, 2004