2.40C

Family and Medical Leave

POLICY OVERVIEW

The University of Texas Health Science Center at Houston (“university”) provides leave under the Family Medical Leave Act (“FMLA”) for eligible employees. The amount of leave to which a less than full-time employee is entitled is determined on a proportional basis.

A. Eligibility

Employees are eligible if they have worked for the State of Texas at least 12 months and worked at least 1,250 hours during the 12-month period immediately preceding the leave. Family and medical leave may be granted for one or more of the following reasons:

Employees who are not eligible for leave under this policy may refer to HOOP Policy 2.40D Parental Leave for leave eligibility for the birth of a child or the adoption or placement of a child.

B.  Amount of Leave

Generally, employees who are granted FMLA leave are entitled to take a combined total of 12 workweeks of leave for all FMLA-qualifying reasons.  However, certain employees may take FMLA leave to care for a covered servicemember.  These employees are entitled to take a combined total of 26 workweeks of leave during a 12-month period to care for the covered servicemember and for any other FMLA-qualifying reason, but may take no more than 12 of these 26 workweeks for other qualifying reasons that do not involve care for a covered servicemember.

C.  Manner of Taking Leave

FMLA may be taken all at once or, in certain circumstances, intermittently or on a reduced leave schedule. 

For example, when medically necessary, an employee may take leave intermittently or on a reduced schedule due to the serious health condition of the employee or a member of the employee's family.  FMLA leave may also be taken intermittently or on a reduced leave schedule for a qualifying exigency arising out of a covered military member’s active duty or call to active duty, even if the leave is not medically necessary. There is no minimum number of hours that may be taken at one time when an employee takes leave intermittently or on a reduced leave schedule (i.e., the leave may be taken in increments of 2 hours, 4 hours, etc.). 

D. Reinstatement

An employee returning to work following an approved FMLA leave will be able to return to the same job or an equivalent position. Any benefits, seniority, etc. in place immediately before the leave will be reinstated as long as the employee returns to work on the first regularly-scheduled work day following the last day of the approved FMLA leave.

E. Requirement to Use Sick, Vacation, Accrued Compensatory Time, and Accrued Administrative Leave

Employees must use all accumulated sick leave (if applicable), vacation leave, accrued compensatory time, and accrued administrative leave when taking leave under the FMLA.  All leave taken for an FMLA-qualifying reason, paid or unpaid, will count against the employee's FMLA leave entitlement. When paid leave has been exhausted, any balance of the employee's FMLA leave will be unpaid.  Holidays are included in the count toward the FMLA leave entitlement. Note: As an exception to this requirement, employees on FMLA leave who are receiving temporary disability benefit payments or workers' compensation benefits are not required to use paid leave while on FMLA.

F. Rights of Employees

Employees who request or take leave under the FMLA must not be unlawfully discharged or unlawfully discriminated against. The university must not discriminate against an individual for filing charges, instituting any proceeding under or related to the FMLA, or giving information in connection with an inquiry or proceeding regarding the FMLA.

DEFINITIONS

Active duty or call to active duty status: A call or order to active duty (or notification of an impending call or order to active duty) in support of a contingency operation, which includes actions against opposing forces, a declared war, or a declared national emergency.  This term applies only to members of the Reserves, National Guard, certain retired Regular Armed Forces, and certain retired members of the Reserves; it does not apply to members of the Regular Armed Forces.

Continuing Treatment:  To meet the definition of “continuing treatment” under federal law, an employee must, in connection with a period of incapacity of more than three consecutive full calendar days, have (1) one in-person treatment visit to a health care provider within seven days of the first day of incapacity, plus a regimen of continuing treatment, or (2) two in-person treatment visits to a health care provider within 30 days of the first day of incapacity, unless extenuating circumstances exist. 

Covered military member: The employee’s spouse, son/daughter or parent who is on active duty or call to active duty status.  This term does not include members of the full-time active component of the United States Armed Forces.

Covered servicemember:  A current member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.

Intermittent leave/intermittently: FMLA leave taken in separate blocks of time due to a single qualifying reason.

Next of Kin:  The nearest blood relative other than the covered servicemember’s spouse, parent, son, or daughter, in the following order of priority:  blood relatives who have been granted legal custody of the covered servicemember by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins.  However, if the covered servicemember has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave under the FMLA, that designee shall be the next of kin. 

Qualifying Exigency: 

Reduced Leave Schedule: A leave schedule that reduces an employee’s usual number of work hours per workweek, or work hours per workday.  A reduced leave schedule is a change in the employee’s schedule, normally from full-time to part time.

Serious health condition: An illness, injury, impairment, or physical and mental condition that involves (a) in-patient care in a hospital, hospice, or residential medical care facility or (b) continuing treatment by a health care provider. The FMLA is not intended to cover short-term conditions for which treatment and recovery are brief. Examples of serious health conditions may include: heart attacks, heart conditions, most cancers, back conditions requiring extensive therapy or surgical procedures, strokes, respiratory conditions, appendicitis, pneumonia, emphysema, severe nervous disorders, injuries caused by serious accidents on or off the job, pregnancy, severe morning sickness, need for prenatal care, childbirth, and recovery from childbirth.  A serious health condition includes treatment for a serious chronic condition that, if left untreated, would likely result in an absence of work for more than three days.

Serious injury or illness:  An injury or illness incurred by a covered servicemember in the line of duty on active duty that may render the servicemember medically unfit to perform the duties of his/her office, grade, rank, or rating.

Spouse:  A spouse is a husband or wife as defined or recognized under Texas law and includes a person in a common-law marriage.  The university may request certification of family relationship. The certification may take the form of a statement from the employee or documentation such as a birth certificate or court document.

Son or daughter:  “Son” and “daughter” include a child who is, at the time FMLA leave begins, either (a) under 18 years old or (b) 18 years old or older and incapable of self-care because of a mental or physical disability. The university may request certification of family relationship. The certification may take the form of a statement from the employee or documentation such as a birth certificate or court document. The above-mentioned age restrictions do not apply to leave taken due to a qualifying exigency arising out of the active military duty or call to active military duty of a covered military member or to care for the serious illness or injury of a covered servicemember.

Outpatient Status:  With respect to a covered servicemember, means the status of a member of the Armed Forces assigned to a (1) a military medical treatment facility as an outpatient, or (2) a unit established for the purpose of providing command and control of members of the Armed Forces receiving medical care as outpatients.

POLICY CONTACT

Employees with questions regarding the use or administration of FMLA leave should contact the Human Resources – Employee Relations department. Forms and Frequently Asked Questions can be found on the Human Resources-Employee Relations department website.

PROCEDURE

A. Calculating the 12-Month Period

A rolling calendar is used to determine the amount of leave available. A rolling calendar is 12 months measured backward from the date an employee uses any FMLA leave.

B.  Parental Leave

An employee's entitlement to leave for the birth or placement of a child expires 12 months after the birth or placement.

C.  Parents or Spouses Both Employed by the University

If both parents work for the university and take leave for the birth or placement of a child, the combined amount of FMLA leave taken by both cannot exceed 12 workweeks. In cases involving sickness, this limitation does not apply. 

If a husband and wife who both work for the university take FMLA leave to care for a covered servicemember, the combined amount of FMLA leave taken by both cannot exceed 26 workweeks.

D. Leave Requests

  1. Eligible employees interested in FMLA leave should complete the Request for FMLA form and complete or have completed by the appropriate health care provider the applicable certification form. Employees requesting leave due to a qualifying exigency as defined in this policy must complete the Certification of Qualifying Exigency form. Employees requesting leave due to a serious health condition or due to the serious illness or injury of a covered servicemember should have the appropriate health care provider complete the Certification of Physician or Practitioner Form or the Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave, as applicable.
  2. If the need to take FMLA leave is foreseeable, the employee must request leave at least 30 days before the leave will begin.  If the leave will begin in less than 30 days, or if the leave is being taken because of a qualifying exigency caused by the active military duty or call to active military duty of a spouse, son, daughter or parent, the notice should be given as soon as possible, preferably the same day or the next business day of when the employee learns of the need for leave. Verbal notice in these cases is sufficient.
  3. The completed applicable certification form must be provided to the supervisor either before the leave begins or within at least 15 calendar days after the leave begins. Exceptions to this deadline may be granted due to exceptional circumstances.
  4. If the appropriate certification is not provided, the leave will not be designated as FMLA leave, and the employee will not have the protections of the FMLA. There is no certification requirement if an employee is taking leave for the birth or placement of a child.
  5. The university may request a second medical opinion at its expense. If the two opinions differ, a third opinion may be obtained at the university's expense, and will be the final determination. The university may request recertification of a serious health condition no more often than every 30 days unless circumstances described in the certification have changed significantly, the employee requests an extension of leave, the university receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification, or the employee’s medical certification indicates the minimum duration of the condition is more than 30 days.  In the latter case, the university must wait until the minimum duration expires before requesting a recertification unless the employee requests an extension of leave or circumstances described in the previous certification have changed significantly. In all cases, the university may request a recertification of a medical condition every six months.
  6. If the leave is being taken because of a qualifying exigency caused by the active military duty or call to active military duty of a spouse, son, daughter or parent, the supervisor will require the employee to provide a copy of the covered military member’s active duty orders or other documentation issued by the military that indicates the covered military member is on active duty or has been notified of an impending call or order to active duty in support of a contingency operation, as well as documentation regarding the dates of the covered member’s active duty service.  If the qualifying exigency involves meeting with a third party, the employee’s supervisor may contact the individual or entity with whom the employee is meeting to verify the meeting or appointment and the nature of the meeting.

E. Response to Leave Requests

  1. Supervisors should determine if the employee is eligible for leave and inform the employee in writing (using the FMLA Notice of Eligibility and Rights & Responsibilities) within five business days after the employee either requests leave or the supervisor learns that the employee’s leave may qualify under the FMLA.
  2. If the employee provides a completed Request for FMLA form and the applicable certification form, the supervisor must give the employee the FMLA Designation Notice within five business days of receiving the completed request and completed certification form placing the employee on FMLA.
  3. If a supervisor believes a returned certification form is incomplete or insufficient, the supervisor must state in writing what additional information is necessary and provide the employee seven calendar days to cure the deficiency.  A certification is considered incomplete if one or more of the applicable entries have not been completed.  A certification is considered insufficient if information provided is vague, ambiguous, or non-responsive. The employee may be given additional time if the employee notifies the supervisor within the seven calendar day period that he/she is unable to obtain the additional information despite diligent good faith efforts.  If the employee does not correct the deficiencies in the resubmitted certification, the employee may be denied the taking of FMLA leave. 
  4. If a supervisor questions the authenticity of a completed medical certification, the meaning of a response, or cannot read the handwriting on the completed medical certification, the supervisor must contact Human Resources.  Human Resources will contact the health care provider for purposes of clarification and authentication of the medical certification. 

“Authentication” means providing the health care provider with a copy of the certification and requesting verification that the information contained on the certification form was completed and/or authorized by the health care provider who signed the document.  “Clarification” means contacting the health care provider to understand the handwriting on the medical certification or to understand the meaning of a response. 

If the health care provider requires the employee to complete a privacy consent form before it provides clarification to the university, Human Resources will communicate this to the employee.  If an employee chooses not to provide the university with authorization allowing the university to clarify the certification with the health care provider, and does not otherwise clarify the certification, the university may deny the taking of FMLA leave if the certification is unclear.   Under no circumstances is the employee’s direct supervisor authorized to contact the health care provider who completed the medical certification.

  1. If the employee does not provide the completed forms, the supervisor must provide the employee with the forms and the FMLA Designation Notice, placing the employee on FMLA pending receipt of the applicable certification form.
  2. If an employee fails to return the applicable certification form by the deadline, the department must send a notice as soon as possible to the employee that he/she has forfeited FMLA protection.
  3. If a department fails to advise an employee that he/she is ineligible for FMLA leave before the requested leave is to begin, the employee will be deemed eligible for FMLA leave. The department may not then assert the employee's ineligibility as a basis for denying the leave, and the employee will be protected under the FMLA. When an employee is unable to provide foreseeable notice of the leave, he/she will be deemed eligible if the department fails to notify the employee of ineligibility within five working days of receiving notice of the need for leave.
  4. If the attending health care provider denies an employee FMLA certification, the supervisor has two business days from receipt of the denial to notify the employee. Failure to provide timely notification will provide the employee with FMLA protection.
  5. If an employee requests intermittent leave or a reduced schedule, the university may transfer the employee temporarily to an alternative position with equivalent pay and benefits if the employee is qualified for the position, and if it better accommodates the recurring periods of leave than does the employee's current job.

F. Returning to Work

The employee must have his/her health care provider complete the Certification of Fitness for Duty form and provide the completed form to his/her supervisor, if applicable. 

G. Premium Payments for Medical Insurance

  1. While the employee is on unpaid FMLA leave, the university will continue to pay its share of any medical/dental insurance premium as if the employee were at work or on paid leave. The employee is required to pay his/her share of the premiums in the same manner required when working. Payment for the premium must be made during the month in which it is due.  If the employee fails to pay a timely health plan premium, the university will cease to maintain the health coverage effective on the last day of the month in which premiums should have been paid, and will notify the employee of the discontinuation of insurance coverage. If the university discontinues health coverage as a result of non-payment of premiums, the employee's group health benefits must be restored to at least the same level and terms as were provided when leave commenced. The returning employee will not be required to meet any qualification requirements, such as a waiting period or pre-existing condition requirements.
  2. If an employee fails to return to work after a period of unpaid FMLA leave and the university has paid for maintaining health coverage, the university is entitled to recover the premiums paid unless the reason the employee does not return to work is due to (1) continuation of a serious health condition that would entitle the employee to FMLA leave, or (2) other circumstances beyond the control of the employee. An employee is considered to have returned to work after he or she has worked for a period of 30 calendar days.

H. Record-keeping Requirements

  1. Departments must keep copies of all notices and correspondence provided by employees requesting leave and of all notices and correspondence provided to employees regarding the FMLA leave.
  2. All leave taken by employees under this policy must be designated in time keeping records as FMLA leave (full days and time less than full days).
  3. FMLA records of employees who transfer to another department at the university within 12 months of FMLA use will be forwarded to the new department.

I. Confidential Medical Records

Records and documents relating to medical certifications, recertification, and medical histories of the employee or employee's family members should be maintained in separate files and treated as confidential medical records. These records do not go into the employee's personnel file. The medical information may be released only:

J. Coordination with Other Leave Entitlement

Benefits such as the sick leave pool (See HOOP Policy 2.53 Sick Leave Pool) and extended disability leave may be used in conjunction with and count toward the FMLA leave.

Updated 05/07, 08/07, 11/07, 02/08, 01/09