V:02:15 Family Medical Leave Act
In compliance with the Family Leave Act of 1993, it is the policy of the Tennessee Board of Regents and Volunteer State Community College to provide eligible male and female employees up to twelve (12) workweeks of leave during a twelve (12) month period for specified family and medical reasons, to provide continued health insurance coverage during the leave period and to insure employee reinstatement to the same or an equivalent position following the leave period.
1. Employee Eligibility
A. In order to be considered "eligible" under Family Medical Leave Act (FMLA or the
Act) guidelines, an employee must:
(1) have worked for Volunteer State Community College for at least twelve (12) months
(2) have worked at least 1,250 hours during the year preceding the start of the leave.
B. The determination of whether an employee meets the eligibility criteria for receiving
FMLA leave is based on the amount of service (including prior service) possessed by
the employee as of the date the leave actually begins.
C. This policy includes both regular and temporary employees. However, Volunteer State
Community College is not obligated to restore an employee hired for a specific term or to
complete a project.
D. The right to take FMLA leave applies equally to male and female employees.
E. This policy contains no exceptions for "key employees" (e.g., a salaried FMLA-
eligible employee who is among the highest paid 10 percent of all the employees of
Volunteer State Community College).
The twelve (12) months of required work with the State do not have to be consecutive in order for an employee to be eligible. If an employee is maintained on the payroll for any
part of a week, that week is considered a week of employment, with fifty-two (52) weeks of such employment considered equal to twelve (12) months.
In determining "hours worked" for the purposes of FMLA eligibility, all hours actually worked by an employee (including overtime hours) should be calculated. Annual and sick leave hours which have been used during the twelve (12) month period preceding the start of the leave are not counted as hours worked. In situations where an employee is considered "exempt" from the overtime provisions of the Fair Labor Standards Act (FLSA) and no record of overtime hours worked has been maintained, the employee is presumed to have met the 1,250 hour requirement if he/she has worked for Volunteer State Community College for at least twelve (12) months. For purposes of this policy, full-time faculty satisfy the 1,250 hour test.
The determination of eligibility must be made as of the date the leave commences or within two (2) business days (absent extenuating circumstances) of when notification of an FMLA qualifying event has been received. If an employee gives notice that leave is required before he/she meets the eligibility criteria, he/she must either be (1) provided with confirmation of when eligibility will be attained, based upon a projection, or (2) be advised when the criteria have been met. Eligibility that is confirmed at the time the notice is received may not be subsequently challenged. In the latter case, the notice of leave will remain current and outstanding until the employee is advised that eligibility has been attained. If notice of leave has been given and confirmation of eligibility is not given prior to commencement of the leave, the employee is deemed eligible; FMLA leave may not be denied. In addition, if notice of the need for leave has not been given more than two (2) business days prior to commencement of the leave, a determination of eligibility must be confirmed within two (2) business days following notice. If such a determination is not provided, the employee will be considered eligible.
Leave requests for regular employees who do not satisfy the FMLA eligibility requirements shall be processed in accordance with the appropriate Tennessee Board of Regents leave policies.
2. Leave Entitlement - FMLA Qualifying Events
A. The birth of a son/daughter and to care for the newborn child; In addition to leave taken after the birth of a child, FMLA leave may be taken by an expectant mother for the purpose of prenatal visits, pregnancy-related symptoms, and in situations where a serious health condition prevents her from performing her job duties prior to the child’s birth.
B. The adoptive or foster care placement of a son or daughter with the employee; FMLA leave may be taken prior to an adoptive or foster care placement if the leave is necessary for the placement to proceed. This would include granting leave for required counseling sessions, court appearances, and legal or medical consultations.
- Adoption: There is no requirement in the Act that the source of an adoption be from a licensed adoption agency in order for an employee to be eligible for FMLA leave. (See Section 2, C, for age limitations for son/daughter.)
- Foster Care: This is defined as "24-hour care for children in substitution for, and away from, their parents or guardian." The Act requires that this placement be made by or in agreement with Volunteer State Community College action be involved in the removal of the child from parental custody. Foster care may include children of relatives placed within the employee’s home by Volunteer State Community College.
C. To care for the employee’s spouse, son, daughter, or parent with a serious health condition, as defined below:
- Spouse: Husband or wife as defined or recognized under Tennessee law for purposes of marriage.
- Parent: Biological parent or an individual who currently stands or stood in place of an absent parent to an employee when the employee was a child as defined in son/daughter below. The definition does not include parents-in-law.
- Son/Daughter: Biological, adopted, foster child, stepchild, legal ward, or child of a person standing in place of an absent parent, who is either under age 18 or age 18 or older and "incapable of self-care because of a mental or physical disability."
- An individual "incapable of self-care" means that the individual requires active assistance or supervision in performing three (3) or more activities of daily living.
- An individual with a "physical or mental disability" means that the individual has an impairment that substantially limits one or more of the major life activities of an individual. Regulations at 29 CFR part 1630, issued by the Equal Employment Opportunity Commission under the Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq., define these terms.
For purposes of confirmation of family relationship, the President may require the employee giving notice of a need for leave to provide reasonable documentation or statement of family relationship. This documentation may take the form of a simple statement from the employee, a birth certificate, a court document, etc. After examination, the employee is entitled to the return of the official document.
D. The employee has a serious health condition resulting in his/her inability to perform job functions. An employee is unable to perform the functions of his/her position if the health care provider finds that he/she is:
- unable to work at all or
- is unable to perform any one of the position’s essential functions within the meaning of the American with Disabilities Act (ADA), 42, USC 12101 et seq., and the regulations at 29 CFR Sec. 1630.2(n). For FMLA purposes, the essential functions must be determined with reference to the employee’s position when the notice is given or the leave commenced, whichever is earlier.
- An employee absent from work to receive medical treatment for a serious health condition is considered to be unable to perform the essential functions of the position during the absence for treatment. The President may provide a copy of the essential functions of the employee’s position for the health care provider to review when requiring certification.
E. 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 an impending call or order to active duty) in the Armed Forces in support of a contingency operation.(In accordance with The Family and Medical Leave Act of 1993, as amended by Section 585 of the National Defense Authorization Act for FY 2008.)
F. Service Member Family Leave - an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered service member shall be entitled to a total of twenty -six (26) work weeks of leave during a twelve (12) month period to care for a service member who has incurred an injury or illness in the line of duty while on active duty in the Armed Forces provided that such injury or illness may render the service member medically unfit to perform duties of the member’s office, grade, rank or rating. (In accordance with The Family and Medical Leave Act of 1993, as amended by Section 585 of the National Defense Authorization Act for FY 2008.)
During the twelve (12) month period an eligible employee shall be entitled to a combined total of twenty - six (26) work weeks of leave under paragraphs F and A through E.
3. FMLA definition of "a serious health condition"
The FMLA defines a "serious health condition" as an illness, injury, impairment, or physical or mental condition involving any of the following:
A. A period of incapacity (inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment, or recovery) or treatment connected with inpatient care (e.g., overnight stay) in a hospital, hospice or residential medical care facility.
B. Continuing treatment by a health care provider (hereafter referred to as "HCP"). A serious health condition involving continuing treatment by an HCP includes any one or more of the following:
- A period of incapacity of more than three (3) consecutive days and any subsequent period of treatment or period of incapacity relating to the same condition that also involves:
a. Treatment two (2) or more times by an HCP, nurse, or physician’s assistant under direct supervision of an HCP, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, an HCP; or
b. Treatment by an HCP on at least one (1) occasion which results in a regimen of continuing treatment under the supervision of a health care provider.
- Any period of incapacity due to pregnancy/prenatal care. Does not require treatment from a health care provider for each absence (e.g., morning sickness).
- Any period of incapacity or treatment for such incapacity due to a chronic serious health condition which may be defined as one which:
a. Requires periodic visits for treatment by any of the HCP’s listed Section IV.
b. Continues over an extended period of time (including recurrent episodes of a single underlying condition).
c. May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.) Such conditions require the continuing care of an HCP but do not always require active medical treatment.
C. A period of incapacity which is permanent or long-term due to a condition for which there may be no effective treatment (e.g., Alzheimer’s, severe stroke, or terminal stages of a disease.) Employee does not have to be receiving active treatment but must be under the continuing care of an HCP.
D. Any period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider either for restorative surgery after an accident/injury or for condition that would likely result in a period of incapacity of more than three (3) consecutive calendar days without intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), kidney disease (dialysis).
Treatment of a serious health condition includes (but is not limited to) examinations to determine the existence of such condition and to evaluate the condition. However, treatment does not include routine physical, eye, or dental examinations. A regimen of continuing treatment may include a course of prescription medication (e.g., antibiotics) or therapy requiring special equipment to resolve or alleviate the condition (e.g., oxygen). It does not include taking over-the-counter medications, bed rest, drinking fluids, exercise, etc. initiated without a visit to an HCP.
The following conditions do not usually meet the definition of a serious illness unless hospitalization or complications occur: cosmetic surgery, common colds, flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, and routine dental/orthodontia/periodontal conditions.
Restorative dental surgery, plastic surgery after an injury or removal of cancerous growths, and mental illness resulting from stress or allergies may qualify as serious health conditions only if all the other conditions of the definition are met.
Substance abuse may be a serious health condition if all the other conditions of the definition are met. However, FMLA leave may be taken only when treatment for the substance abuse is being provided by an HCP or a provider of health care services on referral by an HCP.
4. FMLA definition of a "health care provider" (HCP)
A "health care provider" includes the following: (1) A doctor of medicine or osteopathy authorized to practice medicine or surgery (as appropriate) by the state in which the doctor practices; (2) any other person determined by the U.S. Secretary of Labor to be capable of providing health care services. Others "capable of providing health care services" include only:
- podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice under state law and performing within the scope of their practice as defined under state law;
- nurse practitioners, nurse midwives, and clinical social workers authorized to practice under state law and performing within the scope of their practice as defined under state law;
- Christian Science practitioners listed with the First Church of Christ Scientist in Boston, Massachusetts. Employees receiving treatment from a Christian Science practitioner may not object to any requirement by the President to submit to examination (not treatment) to obtain a second or third certification from an HCP other than a Christian Science practitioner except as otherwise provided under applicable State or local law.
- Any HCP from whom an employer or Volunteer State Community College’s group health plan’s benefits manager will accept certification of a serious health condition to substantiate a claim for benefits.
- An HCP listed above who practices in another country, other than the United States, who is authorized to practice in accordance with the law of that country, and who is performing within the scope of his or her practice as defined under such law.
The phrase "authorized to practice in the State" as used in this section means that the provider must be authorized to diagnose and treat physical or mental health conditions without supervision by a doctor or other HCP.
5. Determination of the twelve (12) Work Week Period for FMLA
A. Limitations on Length and Duration
- The right to take FMLA leave began on August 5, 1993, the effective date of the Family and Medical Leave Act. Any leave taken prior to that time could not be counted against an employee’s twelve (12) week entitlement for the year.
- Eligible employees are entitled to up to a total of twelve (12) workweeks of leave during a twelve (12) month period. The initial twelve (12) month period starts on the date the employee’s FMLA leave first begins. A new twelve (12) month period would begin the first time FMLA leave is taken after completion of any previous twelve (12) month period. For example, an employee who first uses FMLA leave on October 7, 1993, would have their twelve (12) month period begin on that date and continue through October 6, 1994. If this employee subsequently needed to use FMLA leave starting on December 2, 1994, a new twelve (12) month period would be established from that date forward through December 1, 1995.
- If the current method for defining twelve (12) work weeks in a twelve (12) month period is changed, employees shall be given a sixty (60) day notice. The transition shall afford the full benefit of twelve (12) weeks under whichever method affords the greatest benefit to the employee. New methods may not be implemented to circumvent the FMLA’s leave requirements.
- A holiday that occurs within the week taken as FMLA leave has no effect; the week is counted as a week of FMLA leave. Exception: If Volunteer State Community College is temporarily closed for work for one (1) or more weeks (e.g., closing for the Christmas/New Year holiday, summer breaks), those days do not count as FMLA leave.
B. Limitations on FMLA leave entitlement for the birth of a child or adoption or foster care Placement Leave entitlement for the birth or for adoption or foster care placement expires at the end of the twelve (12) month period beginning on the date of the birth or placement.
FMLA leave for these reasons must be concluded within this time period.
C. FMLA leave limitations when both spouses are State employees
- Spouses who are both employees of the State are limited to a combined total of twelve (12) weeks of FMLA leave during a twelve (12) month period if the leave is taken for the following reasons:
a. birth of a child or for care of the child after birth;
b. adoptive or foster care placement of a son or a daughter or for care of the child after placement; or
c. to care for a parent (not a parent-in-law) with a serious health condition.
- In situations where both the husband and wife use a portion of FMLA leave for one of the reasons listed in the previous paragraph, each spouse is entitled to the difference between the amount he/she has taken individually and twelve (12) weeks of FMLA leave for reasons other than those listed. For example, if both spouses use six (6) weeks of leave for the birth of a child, each could take an additional six (6) weeks of leave for personal illness, or to care for a family member with a serious health condition. In situations where FMLA leave is not taken due to birth, adoption, foster care, or to care for a parent during a given year, each spouse is entitled to a full twelve (12) workweeks of leave.
- If one (1) spouse is ineligible for FMLA leave, the spouse who meets the eligibility requirement is entitled to twelve (12) workweeks of FMLA leave.
- Service Member Family Leave — the aggregate number of work weeks of leave to which both that husband and wife may be entitled is limited to twenty-six (26) work weeks during a twelve (12) month period.
D. Use of an intermittent or reduced leave schedule "Intermittent Leave" is leave taken in separate blocks of time due to a single qualifying reason and may include leave periods from an hour to several weeks. A "reduced leave schedule" reduces an employee’s usual number of working hours per work-day or work-week.
An employee may take intermittent FMLA leave or have a reduced leave schedule over a twelve (12) month time period when medically necessary for:
- planned and/or unanticipated medical treatment of a serious health condition by or under the supervision of an HCP,
- recovery from the condition, or
- recovery from treatment of the condition. An employee may also take intermittent leave or request a reduced schedule to provide care to an immediate family member with a serious health condition. Employees may not use intermittent FMLA leave following the birth of a child or adoptive or foster care placement for any reason other than medical necessity.
Intermittent leave or a reduced schedule may also be used for absences where the employee or family member is incapacitated or unable to perform the position’s essential functions due to a chronic serious health condition even if treatment is not rendered by a health care provider.
If an employee requests intermittent leave or leave resulting in a reduced work schedule, the President may require that the employee transfer temporarily to another position for which the employee is qualified and which better accommodates the employee’s need for recurring leave periods. Transfer to an alternative position may include altering an existing job to better accommodate the employee’s need for intermittent or reduced leave. This temporary position must have equivalent pay and benefits, but need not have equivalent duties. For information regarding benefits (e.g., insurance and longevity) not ordinarily provided to part-time employees that may not be eliminated, see Section 8.
An employee may not be transferred to an alternative position in an effort to discourage use of FMLA leave or otherwise work a hardship on the employee (e.g., a day-shift employee may not be reassigned to a later shift). When an employee who transferred to an alternative position is able to return to full-time work, he/she shall be placed in the same or equivalent position as the job he/she had when the leave commenced. He/she cannot be required to take more FMLA leave than the circumstance for the leave requires.
6. Time limitations regarding the designation of leave as FMLA leave
In all circumstances, the President is responsible for designating leave, paid or unpaid, as FMLA-qualifying and to notify the employee of the designation. For intermittent leave or a reduced schedule, only one notice is required unless changes occur regarding the circumstances pertaining to the leave.
Unless there are extenuating circumstances, the President must notify the employee within two (2) business days of being notified of a need for FMLA leave. The designation must be based only on information provided by the employee or the employee’s spokesperson (e.g., if the employee is incapacitated, the employee’s spouse, adult child, parent, doctor, etc.).
Designation of FMLA leave must be made before the leave starts unless there is insufficient information to make a determination. If the President has the requisite knowledge to designate FMLA leave at the time the employee gives notice or commences leave, fails to make the designation, and does not notify the employee, he/she may not designate FMLA leave retroactively. FMLA leave may be designated only prospectively as of the date the employee is notified. None of the absence prior to the notification may be counted against the employee’s 12 work week entitlement. Leave may not be designated as FMLA leave after the employee has returned to work with two (2) exceptions:
- If it was not known by the President that the employee was absent for an FMLA reason until he/she returned to work (e.g., brief absence of employee), the President may notify the employee within two (2) business days that the designation has been made retroactively. If leave was taken for an FMLA reason and has not been designated accordingly, the employee must notify the President within two (2) days of returning to work. Without such timely notification, the employee may not assert FMLA protection for the absence.
- If the President knows the reason for the leave but does not have confirmation or has not received requested certification, or is in the process of obtaining an additional medical opinion, he/she should make a preliminary designation and notify the employee at the time the leave begins or as soon as the reason is known. Upon receipt of the requisite information confirming the absence was for an FMLA reason, the preliminary designation becomes final. The designation is withdrawn if the medical certification(s) fail to confirm the absence was for an FMLA reason.
7. Designation of paid and unpaid leave toward the employee’s twelve (12) week leave entitlement The President of Volunteer State Community College is responsible for designating paid and unpaid leave as FMLA qualifying leave. The designation is contingent upon whether or not the employee has accumulated leave balances. An employee with no accumulated sick or annual leave balances must take his/her leave as unpaid. An employee who has an accumulated sick and annual leave balance must use this accumulated leave during a period of FMLA leave before going on leave without pay unless otherwise stipulated in other Tennessee Board of Regents leave policies. Therefore, Tennessee Board of Regents leave policies and the FMLA leave policy shall run concurrently and not consecutively. For information regarding reinstatement rights if additional leave is used beyond the twelve (12) workweek FMLA entitlement, see Section 14.
If a worker’s compensation injury/illness meets the criteria for a serious health condition, the worker’s compensation absence and the FMLA leave entitlement shall also run concurrently.
Compensatory time is not a form of accrued leave. However, an employee may request to use compensatory time for an FMLA qualifying event. If it is used in accordance with regulations, 29 CFR 553.25, the absence which is paid with compensatory time may not be counted against the FMLA leave entitlement.
In any circumstance where the President does not have sufficient information about the reason for an employee’s use of paid leave, he/she should make further inquiry of the employee or spokesperson to ascertain whether or not it is potentially FMLA-qualifying. See the Request for Family and Medical Leave Form. If there is a dispute as to whether or not paid leave qualifies as FMLA leave, it should be resolved through discussions between the employee and the President. Such discussions and the decision must be documented.
Notification that paid leave has been designated as FMLA leave may be oral or written (10); however, oral notifications must be followed up in writing no later than the following payday. Exception: If the payday is less than one week after the oral notice, the written (10) notification must be made by the subsequent payday. The written (10) notice may be in any form, including a notation on the employee’s pay stub.
If an employee requesting to use paid leave for an FMLA-qualifying purpose does not explain the reason for the leave-consistent with Volunteer State Community College practice - and the request is denied, the employee must provide sufficient information establishing an FMLA-qualifying reason for the request to be approved. Employees using paid leave who seek an extension of unpaid leave for an FMLA-qualifying reason will need to state the reason. If this is due to an event which occurred during the period of paid leave, the leave used after the FMLA-qualifying event will be counted against the twelve (12) workweek entitlement and will be paid/unpaid in accordance with the provisions of the appropriate leave policy.
An employee requesting unpaid FMLA leave must explain the reasons why the leave is needed in order that the President be able to determine leave eligibility under the provisions of the Act. If qualifying, this time can then be counted against the employees’ twelve (12) week leave entitlement in accordance with the provisions stated above.
8. How the FMLA work week is calculated
A.Employees who do not take intermittent leave or work a reduced schedule
- Full-time employees who normally work 7.5 hours per day five (5) days per week are entitled to the same FMLA leave for 12 work weeks. (Some full-time employees, such as public safety officers, may work more than 7.5 hours per day; their entitlement will be determined accordingly.)
- Part time employees receive FMLA leave on a pro rata or proportional basis. If an employee works six (6) hours a day, five (5) days per week, the employee is entitled to an equal amount of FMLA leave for twelve (12) work weeks.
B. Employees who take intermittent leave or work a reduced schedule only the amount of leave actually taken may be counted toward the twelve (12) work weeks entitlement.
- If a full-time employee normally works a 7.5 hour day and works 3.75 hour days under a reduced schedule, the employee would use 1/2 weeks of FMLA leave each week.
- If an employee normally works a part-time schedule, the amount of leave is determined on a pro rata or proportional basis by comparing the new schedule with the employee’s normal schedule. For example, if an employee normally works thirty (30) hours per week and works only twenty (20) hours per week under a reduced schedule, the employee’s ten (10) hours of leave would be one-third of a week of FMLA leave for each week the employee worked the reduced schedule.
- If an employer has made a permanent or long term change in the employee’s schedule (for reasons other than FMLA), the hours worked under the new schedule would be used for calculating the employee’s normal work week.
- If an employee’s schedule varies from week to week, a weekly average of the hours worked over the twelve (12) weeks prior to the beginning of the leave period would be used for calculating the employee’s normal work week.
An employee may not use paid leave intermittently with unpaid leave during a continuous leave period to continue benefits (e.g., insurance premiums). For example, during a continuous leave period, an employee may not designate two (2) weeks of paid leave, then two (2) weeks of unpaid leave.
If an employee uses paid leave under circumstances which do not qualify as FMLA leave, the leave does not count against the twelve (12) weeks FMLA leave period. For example, sick leave used for a medical condition which is not a serious health condition (e.g., routine physical examination) does not count against the twelve (12) weeks of FMLA leave entitlement.
9. Examples of how Tennessee Board of Regents leave is used for various FMLA qualifying events
A. If an employee has sufficient sick leave balance, he/she may use sick leave for up to 30 working days under Adoptive Leave Policy 5:01:01:02. The employee has the option, however, of retaining his/her sick and annual leave balances and using leave without pay.
B. A female employee requests four months of leave under Tennessee Board of Regents Maternity Leave Policy 5:01:01:08. Since birth or care of a newborn child is also a FMLA qualifying event, the first twelve (12) work weeks of the maternity leave shall be designated as FMLA leave. In accordance with the Maternity Leave Policy, sick leave may be used only for the period of the medical disability. The remaining balance of the FMLA leave may be taken as annual or unpaid leave.
After the twelve (12) work week FMLA entitlement is completed, this employee is still eligible to take the difference remaining between four months of maternity leave and twelve (12) work weeks of FMLA leave. However, Volunteer State Community College is under no obligation to provide health insurance benefits during this non-FMLA period, should the leave be without pay.
10. Employee Notification Requirements
An employee giving notice of the need for FMLA does not need to express his rights under FMLA or even mention FMLA to fulfill his obligation to provide notice. However, he/she must provide sufficient information for the President to determine that leave is for an FMLA qualifying event.
When the need for FMLA leave is foreseeable, an employee must provide at least thirty days advance notice prior to the date the leave is to begin. In situations where thirty day notification is not possible, because the employee has no knowledge of the exact time when the leave will need to begin or because of a medical emergency, notice must be given as soon as practicable, normally within one (1) or two (2) business days of when the employee knows the date will be needed. The employee should notify the supervisor of the need for leave and the anticipated timing and duration of the leave. The supervisor may request additional information to determine if the employee is requesting FMLA leave specifically and to obtain the necessary details of the leave being taken. When accumulated sick and annual balances are to be applied toward the twelve (12) workweek entitlement, the notification requirements in the Volunteer State Community College leave policies apply. A request for Leave because of a qualifying exigency must be supported by a certification issued at such time and in such manner as regulations prescribe. The employee shall provide, in a timely manner, a copy of such certification to Volunteer State Community College.
11. Employee Medical Certification Requirements
A. Requesting medical certification
The President may require that an employee’s request for unpaid FMLA leave be supported by certification from a health care provider. Any request for medical certification should be made at the time the employee requests leave or as close as possible to that date. If the leave was unforeseen, the certification should be requested as soon as possible after the leave has begun. If the President has reason to question the appropriate of the leave or its duration, certification may be requested at a later date.
The requirement may be made verbally or in writing and must allow a minimum of fifteen (15) calendar days for the employee to provide the certification. The employee must provide the certification within the requested time frame, unless it is not practicable to do so under the circumstances (such as an employee’s personal serious health condition preventing his/her ability to obtain the necessary information in a timely manner.)
An employee on paid FMLA leave is required to provide medical certification only in accordance with the provisions of the appropriate Tennessee Board of Regents leave policies.
The President’s written ten (10) notification to the employee that the leave may qualify as FMLA leave must include information regarding the medical certification requirement, as well as, the consequences for not providing medical certification. Subsequent medical certification may be requested orally.
B. Allowable medical certification information the President may request only the following information from a health care provider certifying an employee’s personal serious health condition or that of a son, daughter, or parent:
- Certification as to which part of the definition of "serious health condition", if any, applies to the patient’s condition and how the medical facts support the criteria of the definition.
- A brief statement of the treatment regimen prescribed for the condition, including estimated number of visits, nature, frequency, and duration of treatment (including referral to or treatment by another HCP).
- The date the serious health condition began and the health care provider’s medical judgment of the probable duration of the condition.
- Indication of whether or not intermit leave or a reduced schedule will be required and the probable duration of the period.
For medical leave requested due to an employee’s personal health condition, the certification, if required, must also include either a statement that the employee is unable to perform work of any kind, that the employee is unable to perform essential job functions of the employee’s position (based on a statement of essential functions of the employee’s position which has been provided by Volunteer State Community College), or that the employee must be absent from work for treatment.
For family leave to care for a spouse, son, daughter, or parent with a serious health condition, the medical certification, if required, must also include a statement that the patient needs assistance for basic medical, hygiene, nutritional needs, safety, or transportation, or that the employee’s presence would provide psychological comfort to assist in the patient’s recovery. In these situations, the employee is required to indicate on the certification form the care that will be provided and an estimate of the duration.
C. Requesting second and third opinions, once an employee has submitted a complete medical certification document signed by the employee’s or family member’s HCP, the President may not request any additional information from that HCP unless the employee is on FMLA leave running concurrently with a worker’s compensation absence. However, if the President has reason to question the validity of the medical certification, the employee may be required to obtain a second opinion from another HCP, at Volunteer State Community College’s expense. This HCP cannot be employed by Volunteer State Community College on a regular basis. Neither can this individual be under any contract or agreement with Volunteer State Community College to provide second opinion services unless the employer is located in an area where access to health care is extremely limited.
If the opinions of the employee’s and the President’s HCP differ, President may obtain another certification from a third HCP at Volunteer State Community College’s expense. This HCP must be one agreed upon by both parties and the third provider’s opinion is considered final and binding. The third HCP must be designated or approved jointly by Volunteer State Community College and the employee. Volunteer State Community College and employee must act in good faith attempting to reach an agreement on the provider to be selected. If the employee fails to exercise good faith, the second HCP’s opinion will prevail; if the President fails to exercise good faith, the opinion of the employee’s HCP will prevail.
An employee or family member may be reimbursed for any reasonable "out of pocket" travel expenses incurred to obtain a second and/or third medical opinion. Travel outside normal commuting distances may not be required except in very unusual circumstances. If a second and/or third opinion must be sought for an employer or family member traveling in another country, medical certification shall be accepted by an HCP who practices in that country.
D. Requesting subsequent recertification of medical conditions, the President may request recertification of a medical condition only in connection with an employee’s absence. The intervals between these requests can be no less than thirty (30) days, except in situations where (1) the employee requests an extension of leave;
(2) circumstances described in the original certification have changed significantly; or
(3) the President has obtained information conflicting with the continuing validity of the certification. The employee must provide certification within fifteen (15) calendar days following Volunteer State Community College’s request unless circumstances make it impractical to do so. Unless indicated otherwise by the President, recertification will be at the employee’s expense.
E. Consequences of an employee’s failure to provide required medical certification, in situations of foreseeable leave and a thirty (30) days notice has been provided, if an employee fails to provide certification within the requested allowable time frame, he/she may experience a delay in the continuation of FMLA leave until certification is provided.
When the need for leave is unforeseeable, or in the case of recertification, an employee must provide certification within a reasonable period of time set by the President, which must allow at least fifteen (15) calendar days, based on the particular medical circumstances. For example, in an emergency situation, it may not be practical for an employee to provide the certification in the required period. In such instances, the employee may experience a delay in the continuation of FMLA leave. If medical certification is never provided, the leave is not FMLA leave.
F. Requiring medical certification for reinstatement, in situations where an employee is on FMLA leave due to a serious health condition preventing the performance of his/her job duties, the President may require, as a condition of the employee’s restoration to a position, medical certification from an HCP that the employee is able to resume work. In order for this requirement to be permissible under FMLA guidelines, the President must have uniform policies or practices in place that are consistently applied for all employees taking leave under certain specific conditions. When Volunteer State Community College does have such policies, an employee requesting FMLA leave must be notified of the requirement for medical certification prior to job restoration, either before or immediately after the leave period begins. When notification has been properly given and policies have been applied uniformly, the President may deny position restoration to an employee until medical certification is submitted.
12. Prohibition against interfering with employee rights
Provisions of FMLA prohibit interference with an employee’s rights to family and medical leave under the law. An employee cannot waive, nor may Volunteer State Community College induce the employee to waive his/her rights under FMLA. The essential job functions may not be changed in order to preclude the taking of leave. In addition, the number of working hours may not be reduced in order to adversely impact an employee’s eligibility. The President should review existing Tennessee Board of Regents policies and practices to ensure compliance.
13. Impact of FMLA Leave on Health Insurance and Other Benefits
A. Insurance Coverage
For the duration of FMLA leave, Volunteer State Community College is required to maintain an employee’s health coverage under the State Group Insurance Plan under the same conditions coverage would have been provided if the employee had continued working. It is very important that the President communicate approval of FMLA leave to the insurance preparer.
The same health benefits provided to an employee prior to taking FMLA leave must be maintained during the FMLA leave. For example, if family coverage is provided to an employee, family coverage must be maintained during the FMLA leave. Moreover, an employee temporarily working a reduced schedule (for purposes of this section, less than thirty (30) hours per week) during a period of FMLA leave is entitled to maintain the same insurance coverage’s that were in effect prior to the FMLA leave period.
If an employer provides a new health plan or benefits or changes health benefits or plans while an employee is on FMLA leave, the employee is entitled to the new or changed plan/benefits to the same extent as if the employee were not on leave. For example, if an employer changes a group health plan so that dental care becomes covered under the plan, an employee on FMLA leave must be given the same opportunity as other employees to receive (or obtain) the dental care coverage.
Notice of any opportunity to change plans or benefits must also be given to an employee on FMLA leave. If the plan permits an employee to change from single to family coverage upon the birth of a child or otherwise add new family members, such a change in benefits must be made available while an employee is on FMLA leave. If the employee requests the changed coverage it must be provided by Volunteer State Community College.
The President is responsible for advising the employee of his/her options to continue or discontinue insurance coverage(s) prior to the beginning of the leave period. If the employee elects to continue insurance coverage(s), the President must provide the employee with written notice of the terms and conditions under which premiums must be paid.
If coverage is not to be continued, the employee must contact the insurance preparer prior to the beginning of the leave. When an employee returns from leave, the employee is entitled to be automatically reinstated on the same terms as prior to taking the leave, including family or dependent coverage, without any qualifying period, physical examination, exclusion of pre-existing conditions, etc.
To ensure that an employee on unpaid FMLA leave is reinstated with the same benefits in effect prior to the leave period, Volunteer State Community College shall pay as well as any employee portion of premiums which has not been remitted in accordance with the provisions on. Premiums paid on behalf of the employee will be deducted from the employee’s paycheck following his/her return to work.
An employee is deemed to have returned to work if he/she has returned for thirty (30) calendar days. An employee who retires immediately following FMLA leave or during the first thirty (30) days after returning to work is also deemed to have returned to work.
If the employee fails to return to work or does not stay thirty (30) calendar days, Volunteer State Community College portion of the insurance premium paid during FMLA leave may be recovered except for the following reasons:
- The continuation, recurrence or onset of a serious health condition which would entitle the employee to leave under FMLA or
- Other circumstances beyond the employee’s control, such as an unexpected transfer of the employee’s spouse to a job location more than 75 miles from the employee’s worksite or the lay-off of the employee while on leave.
If the employee fails to return to work due to a serious health condition, the President may require medical certification of the employee’s or the family member’s serious health condition. Volunteer State Community College portion of the health premium may not be recovered during workers’ compensation leave designated as FMLA leave.
An employee on FMLA leave, paid or unpaid, shall receive longevity in accordance with the provisions of Longevity Guideline P-120. Note: Volunteer State Community College may not eliminate benefits which otherwise would not be provided to part-time employees. Therefore, an employee who has been temporarily transferred to a part-time position during a period of FMLA leave, retains eligibility for longevity pay, regardless of the percentage of employment.
C. Leave Accrual
Employees shall accrue leave in accordance with the annual and sick leave policies. Due to the fact that leave is based on the number of hours worked per week, the accrual rate may be proportionately reduced.
14. Job Restoration Requirements
Upon returning from FMLA leave, an employee must be restored to his/her original position or to an equivalent position with equivalent benefits, pay, and other employment terms and conditions. This involves restoration to a position having the same or substantially similar duties and responsibilities and having substantially equivalent skill, effort, responsibility and authority. This applies only to employees returning from FMLA leave and may not apply to employees who used additional leave beyond the twelve (12) workweek FMLA entitlement, as provided in other Tennessee Board of Regents leave policies.
An employee returning from FMLA leave is entitled to any general increases that all Volunteer State Community College employees have received during the period the employee was on leave. He/she is also entitled to shift or work schedule assignments equivalent to those in effect prior to the beginning of the leave period and to a work location assignment geographically close to the one where previously employed.
If an employee is no longer qualified for the position because of the employee’s inability to attend a necessary course, renew a license, etc., as a result of the leave, the employee shall be given a reasonable opportunity to fulfill those conditions upon return to work. If an employee can no longer perform the essential functions of the position because of a physical or mental condition, including the continuation of a serious health condition, the provisions of the Americans with Disabilities Act (ADA) regarding the need for other accommodations may apply. Such cases should be referred to Volunteer State Community College ADA coordinator. (See Section 15.)
If an employee should require more or less FMLA leave than was originally anticipated, he/she is required to provide Volunteer State Community College two (2) business days notice where feasible. Regarding an employee who wants to return to work earlier than anticipated, he/she shall be restored once such notice is given, or where such notice is not feasible.
In situations where an employee notifies the President that he/she is not returning to work, the obligation to restore the employee to a position ends. Should the employee indicate he/she is unable to return to work but continues to want to return, restoration requirements remain in effect.
Note: An employee has no greater right to job restoration with equivalent benefits and conditions of employment than he/she would have had if continuously employed. Thus, if a work location is closed, a shift eliminated, overall work hours for an entire unit reduced, or positions abolished through a reduction in force, the employee is only entitled to conditions that would have been in effect for the employee if the leave had never been taken.
For example, if an employee’s shift is eliminated during the time period that leave was taken, the employee is not entitled to assignment to the previous shift’s work hours or to shift differential pay when he/she returns from leave that other employees formerly on the shift no longer receive. However, the employee is entitled to employment in a position meeting all other previous employment conditions. (Also refer to Section 1, C.)
15. How FMLA Affects the Americans with Disabilities Act
The Family and Medical Leave act is "not intended to modify or affect the Rehabilitation Act of 1973, as amended, the regulations concerning employment which have been promulgated pursuant to that statute, or the Americans with Disabilities Act of 1990, or the regulations under the Act." The leave provisions of the FMLA are totally distinct from the reasonable accommodation obligations required of employers covered under the ADA. Therefore, employees must be provided leave under whichever statutory provision provides the greater rights.
In the event that both FMLA and discrimination laws are violated, an employee may be able to recover under either or both statutes. However, double relief may not be awarded for the same loss. In such instances, the employee determines the avenue of relief. In various situations, the FMLA and ADA will interact with respect to a qualified employee with a disability. The following scenario illustrates how the laws may interact.
A qualified individual with a disability who is also an "eligible employee" entitled to FMLA leave request ten (10) weeks of medical leave as a reasonable accommodation, which Volunteer State Community College grants because it is not an undue hardship. Volunteer State Community College advises the employee that the ten (10) weeks of leave is also being designated as FMLA leave and will count towards the employee’s FMLA leave entitlement. This designation does not prevent the parties from also treating the leave as a reasonable accommodation and reinstating the employee into the same job, as required by the ADA, rather than an equivalent position under FMLA, if that is the greater right available to the employee. At the same time, the employee would be entitled under FMLA to have Volunteer State Community College maintain group health plan coverage during the leave, as that requirement provides the greater right to the employee.
If the same employee needed to work part-time (a reduced leave schedule) after returning to his or her same job, this employee would be entitled under the ADA to reasonable accommodations to enable the employee to perform the essential functions of the part-time position. In addition, because the employee is working a part-time schedule as a reasonable accommodation, the employee would be shielded from FMLA’s provision for temporary assignment to a different alternative position. Once the employee has exhausted his or her remaining FMLA leave entitlement while working the reduced (part-time) schedule, if the employee is a qualified individual with a disability, and if the employee is unable to return to the same full-time position at that time, the employee might continue to work part-time as a reasonable accommodation, barring undue hardship; the employee would then entitled to only those employment benefits ordinarily provided by Volunteer State Community College to part-time employees.
16. Requirements for providing information on FMLA rights and responsibilities
The President must post notices explaining FMLA provisions and providing information concerning procedures for filing complaints on violations of the Act with the Wage and Hour Division of the U.S. Department of Labor. These notices must be posted in conspicuous places where employees and applicants can easily access the information provided.
If Volunteer State Community College has an employee handbook or other document explaining employee benefits or leave rights, information regarding FMLA entitlement and employee obligations under the Act must be included. Efforts must be made to responsively answer employees’ questions regarding their rights and responsibilities under the FMLA.
Whenever an employee requests family or medical leave the President must provide information to the employee regarding his/her specific obligations and explaining the consequences of failure to meet these obligations. The following information should be included:
- that the leave will be counted against the employee’s FMLA leave entitlement;
- any requirements for furnishing medical certification of a serious health condition and information regarding the consequences of not providing this information;
- Volunteer State Community College’s right to substitute paid leave in specific situations and conditions related to the substitution;
- the requirement for the employee to make health insurance premium payments and procedures for making these payments;
- any requirement to present medical certification as a condition of job restoration following the conclusion of the leave period;
- the employee’s right to job restoration upon return from leave; and
- the employee’s potential liability for Volunteer State Community College’s portion of the health insurance premium payments should the employee fail to return to work after taking FMLA leave.
If the leave period has already begun, the President should send notification to the employee’s address of record that FMLA leave has been designated. A written ten (10) notice must be provided to the employee the first time FMLA is used during any six (6) month period. FMLA notices to sensory impaired employees must also comply with all applicable Federal and State law requirements. Volunteer State Community College may not penalize an employee for failure to comply with any FMLA provision if notice has not been given in accordance with the requirements of the Act.
17. Record-keeping requirements
The President in each agency is responsible for maintaining required records for all employees using FMLA leave. Employers must keep records specified by these regulations for no less than three (3) years and make them available for copying, inspection and transcription by the Department of Labor upon request. In addition to basic payroll and employee data and policy documentation, the following records are required:
A. Dates FMLA leave is taken by each employee and clear designation of this time as FMLA leave.
B. Hours of leave taken, if the amount is less than one full day.
C. Copies of employee notices of FMLA leave sent to the President, if in writing, and copies of general and specific notices given to employees as required under FMLA guidelines.
D. Records of any dispute between the employee and the President regarding the designation of leave as FMLA leave.
E. Any work schedule agreed upon by the President and employee, in situations where intermittent leave or leave on a reduced work schedule has been approved.
F. Any records related to FMLA, including medical certification, recertification, and medical history documentation must be kept separately from other personnel information due to confidentiality.
TBR Source: TBR Meeting, June 25, 1995 (Finance and Administration approval January 17, 1996); TBR Meeting, March 29, 1996 (Finance and Administration approval November 13, 1996);TBR Meeting June 26, 2008
VSCC Source: March 23, 1999, President; January 8, 2009, President’s Cabinet