Family Medical Leave

Policy Number: 8.2.7.6
Effective Date: February 27, 2023
Revision History: May 26, 2016
Policy Contact: Director, Payroll and Benefits

I. Purpose and Policy Statement

This policy ensures compliance with applicable law and consistency in providing leave to eligible employees under the Family and Medical Leave Act.

II. Scope

All employees should be aware of and comply with this policy.

III. Definitions

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

1. Any period of incapacity or treatment connected with inpatient hospital care (such as an overnight stay), hospice, or residential medical care facility;
2. Any period of incapacity requiring sporadic absences from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or,
3. Continuing treatment by (or under the supervision of) a health care provider for a chronic or long-term health condition that is incurable or so serious that if not treated, would likely result in a period of incapacity; and for prenatal care.

Care of a family member:

1. Encompasses both physical and psychological care
2. Includes situations where the employee may be needed to fill in for others who are caring for the family member
3. May include intermittent leave

Family member: Includes spouse, parent, or child (as these terms are defined below).

Spouse: The employee’s legal husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides.

Parent: A biological parent of the employee or an individual who stands or stood “in loco parentis” to an employee by providing primary day-to-day care and financial support when the employee was a child. Coverage does not include parents-in-law.

Child: The employee’s biological son or daughter under the age of 18; a legally adopted son or daughter under the age of 18; a foster child, stepchild, or ward under the age of 18, legally placed with the employee; or, any such child over the age of 18 if the child is incapable of self-care due to a mental or physical disability. “Incapable of self-care” means requiring active assistance or supervision to provide daily self-care in three or more basic or instrumental “activities of daily living,” such as grooming & hygiene, bathing, dressing, eating, cooking, taking public transportation, etc. A “physical or mental disability” is one that substantially limits one or more major life functions as defined under the Americans with Disabilities Act (“ADA”).

Health Care Provider: Includes the following individuals licensed/authorized to practice in the state in which they practice, and performing within the scope of their practice as defined under state law:

1. Doctors of medicine or osteopathy authorized to practice medicine or surgery
2. Podiatrists
3. Dentists
4. Clinical psychologists
5. Optometrists
6. Chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist)
7. Nurse practitioners
8. Nurse-midwives
9. Clinical social workers
10. Any health care provider from whom the University System’s health care plans will accept certification of the existence of a serious health condition

IV. Eligibility

1. In accordance with the federal Family and Medical Leave Act (“FMLA”) of 1993, an eligible employee may be entitled to up to twelve (12) work weeks of leave during any twelve (12) month period for one or more of the following reasons:
   1. The birth and care of a newborn child of the employee;
   2. The legal placement of a child with the employee for adoption or foster care;
   3. The care of an immediate family member (defined as the employee’s spouse, child, or parent) with a serious health condition;
   4. A serious health condition of the employee, including an on-the-job injury or occupational disease covered by Worker’s Compensation, which causes the employee to be unable to perform the functions of his or her position, rendering the employee unable to perform his/her job duties; or
   5. A 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. Leave may be used for any “qualifying exigency” arising out of the service member’s current tour of active duty or because the service member is notified of an impending call to duty in support of a contingency operation.
2. Further, consistent with the provisions of FMLA and the National Defense Authorization Act of 2008, an eligible employee may be entitled to up to twenty-six (26) work weeks of leave during any twelve (12) month period, for the following reason:
   1. A spouse, son, daughter, parent, or nearest blood relative caring for a recovering service member. A recovering service member is defined as a member of the Armed Forces who suffered an injury or illness while on active-duty that may render the person unable to perform the duties of the member’s office, grade, rank, or rating.
3. Period of Work Eligibility. To be eligible for FMLA leave, the employee must have worked for the University System of Georgia:
   1. For at least twelve (12) months total (not necessarily the last twelve months); and
   2. For at least 1,250 hours during the twelve (12) month period immediately preceding the commencement of such leave; and
   3. Has not used all available FMLA leave in the twelve (12) months looking back om the date the requested leave will begin (the rolling 12-month retrospective calendar period as measured backward from the date the employee began using FMLA leave).
4. Spouses who are employed by the college and who request FMLA leave for the birth, adoption, or foster care placement of a child with the employee, are eligible for a combined twelve (12) weeks between the two employees. In other words, both employees continue to be eligible for twelve (12) weeks of FMLA apiece, but may only take twelve (12) weeks between them for this event. If the leave is for birth, adoption, or foster placement of a child with the employee, the leave must be taken within twelve (12) months of the birth or placement.

V. Required Steps/Forms and Notice

1. Employees should contact the Office of Payroll and Benefits for assistance with FMLA requests. Employees must submit the following:
   1. Personnel Action Form (where applicable);
   2. Family and Medical Leave Request Form;
   3. Certification of Health Care Provider (applicable to leave for medical reasons) must be completed by a treating physician/licensed health care provider) and returned to the Office of Payroll and Benefits; and,
   4. Other updated forms as directed by the Office of Payroll and Benefits.
2. Notice
   1. Notice to the College is accomplished through initiating the FMLA process by completing a FMLA Request form as noted above, which is available from the Office of Payroll and Benefits. Notice can be provided in person, by mail, facsimile, or by other electronic means. The employee will be given a Certification of Health Care Provider form that must be completed by the employee’s physician/licensed health care provider and returned to the Office of Payroll and Benefits within fifteen (15) calendar days.
   2. Notice of Foreseeable Leave
      1. In cases of Foreseeable Leave (i.e., planned surgeries, maternity leave), employees should give 30 days’ notice to the Office of Payroll and Benefits and the supervisor. When providing notice, the employee is not required to identify the leave specifically as FMLA leave, but must provide sufficient information regarding the nature of the leave to enable the Office of Payroll and Benefits to make a determination of the applicability of FMLA.
      2. In all situations, it is the Office of Payroll and Benefits Director’s responsibility to designate leave as FMLA leave. A medical certification form (where applicable) must be submitted for review to the Office of Payroll and Benefits prior to commencement of leave. See Exception to Medical Certification section of this policy.
   3. Notice for Unforeseeable Leave
      1. For unexpected leave (such as a serious accident or a premature birth), the employee or employee’s representative (relative, spouse, doctor, etc.) must notify the Office of Payroll and Benefits or the supervisor as soon as possible and, usually within no more than two (2) business days after knowing of the need for leave, where practical.
3. Medical Certification
   1. Exception to Medical Certification. Medical certification is not required in cases where FMLA is taken due to a spous,  child or parent being on active duty or having been notified of an impending call or order to active duty in the Armed Forces, as described above.
   2. Updated Medical Certifications. If the College requests or requires it, the employee must periodically report to the Office of Payroll and Benefits regarding the employee’s status including anticipated return to work date, except that updated medical certifications completed by the treating physician/licensed health care provider may be requested every 30 days during the FMLA period.

VI. Continuous & Intermittent Leave

1. Leave for one’s own serious health condition, or for the care of a family member with a serious health condition, may be taken on a continuous basis or on an intermittent basis in increments as small as one hour if medically indicated. The College has the discretion to determine whether to allow intermittent leaves for birth, adoption, or foster placement or whether such leaves must be continuous. It shall be the policy of GGC to allow intermittent FMLA leaves for birth, adoption, or foster placement.
2. Intermittent Leave or Reduced Work Schedule
   1. There must be a medical need for leave which can be best accommodated through an intermittent or reduced work schedule.
   2. An employee must attempt to schedule leave or reduced work so as not to disrupt the employer’s operations.
   3. The employer may assign the employee to an alternative position with equivalent pay and benefits that better accommodates the employee’s intermittent leave or reduced work schedule.
   4. Intermittent leave may include leave periods of an hour or more, up to several weeks.
   5. Only the amount of leave actually taken is counted toward the 12 weeks of eligibility. For example:
      1. An employee who normally works 5 days per week and takes off 1 day per week as intermittent FMLA leave is charged 1/5 of a week of FMLA leave.
      2. An employee who normally works 8-hour days, but who works half-days under a FMLA reduced work schedule would be charged 1/2 week of FMLA leave.
   6. The granting of intermittent leave or a reduced work schedule for well-child care after the birth, adoption, or placement of a child is at the discretion of the institution.

VII. Protection from Discrimination

1. A supervisor may not take any adverse action or otherwise discriminate against an employee or prospective employee who has taken FMLA leave. A supervisor may not interfere with any rights provided by FMLA, including:
   1. Refusing to authorize FMLA leave;
   2. Discouraging an employee from using FMLA leave;
   3. Changing the essential functions of the employee’s job to preclude the taking of FMLA leave; or,
   4. Reducing hours of work to avoid employee eligibility.
2. A supervisor may not discharge or discriminate against any person (whether or not an employee) because that person has:
   1. Opposed or complained about any unlawful practice under the Act;
   2. Filed a charge, or has instituted (or caused to be instituted) any proceeding under or related to the Act;
   3. Given, or is about to give, any information in connection with an inquiry or proceeding relating to a right under the Act;
   4. Testified, or is about to testify, in any inquiry or proceeding relating to a right under the Act; or,
   5. Used FMLA leave.
3. Although a supervisor may not take any adverse action against an employee for taking FMLA leave, any personnel action/decision that would have happened if the employee had continued in a work status, may happen while the employee is on FMLA leave.

VIII. Supervisor Responsibility

An employee’s supervisor may not directly contact a health care provider to request medical information. An employee may provide any necessary medical documentation directly to the Office of Payroll and Benefits. Supervisors should consult with the Office of Payroll and Benefits if they need assistance while the employee is on FMLA.

IX. Paid vs. Unpaid Leave

1. The Federal law provides for twelve (12) weeks of unpaid, job protected leave (employers are not required to grant such leave as paid time off). However, when taking FMLA leave, it is the policy of Georgia Gwinnett College that employees may choose to use accumulated sick leave, annual leave, or unpaid leave based on the following criteria:
   1. An employee is required to use all accrued sick and annual leave for FMLA leave, prior to going on a leave without pay status, except during time periods in which disability benefits are being paid (in accordance with the terms of the disability policy);
   2. Sick leave may be used when FMLA leave is due to the employee’s own serious illness or to care for a designated family member;
   3. If FMLA leave is not due to the employee’s own serious illness or to care for a designated family member, the employee must use annual leave. If annual leave is exhausted, the remainder of the FMLA leave will be in an unpaid leave status.

X. Explanation of Pay and Continuation of Group Benefits during Leave

1. The Office of Payroll and Benefits will provide the employee with a written explanation of the status of his/her pay and benefits at the start of the leave. Employees who enrolled in the optional disability insurance programs and who are disabled under the short-term disability and/or long term disability policy, as approved by the insurance provider, will be eligible to receive pay in accordance with the terms of the applicable policy. Employees who qualify for workers’ compensation benefits will receive pay continuation according to the requirements of state law and our insurance plan in each state.
2. During the period of FMLA leave, an employee may retain health benefits under the same conditions that applied before the leave began. To continue coverage, the employee will be required to pay his/her share of health insurance premiums and other premiums (including dental and other elected insurance product premiums) while on leave each month. Failure to pay the employee share of the premiums will result in loss of coverage.

XI. Accrued Benefits

1. The employee’s use of FMLA will not result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave. In an unpaid leave status, however, the employee will not continue to accrue vacation or sick leave benefits.
2. An employee on unpaid FMLA leave is not eligible for holiday pay during the FMLA leave period.

XII. Equivalent Job Restoration

If the employee returns to work on or before the expiration of approved FMLA leave, the employee will normally be returned to his/her former position or to an equivalent job, with equivalent pay, benefits, and other employment terms and conditions. If, however, the employee does not return upon expiration of approved FMLA leave, there is no guarantee of reinstatement.

XIII. Return from Leave

1. The employee should notify the Office of Payroll and Benefits or the supervisor of his/her intent to return to work two (2) weeks prior to the anticipated date of return, or of any necessary changes in the date of return. If the leave was due to a serious health condition, the College will require a “fitness for duty” certification from the employee’s treating physician/licensed health care provider, verifying his/her ability to return to work, with or without restrictions. The employee may also be required to submit to a medical examination before returning to work, under certain circumstances. An absence for FMLA leave is not an “occurrence” for purposes of our attendance policy. If the employee is medically released to return to work and fails to either report to work or contact the Office of Payroll and Benefits or the supervisor with a satisfactory explanation, the College (in its sole discretion) may treat this as a voluntary resignation. See also “Extension of Leave” section under this policy.
2. Upon return to work, the employee should provide a signed statement to his/her supervisor verifying the return to work date. This statement should be completed on the employee’s first day back to work. The supervisor is responsible for ensuring that the documentation is delivered to the Office of Payroll and Benefits, either in person, via e-mail, or facsimile. Upon receipt of the statement, the employee will be added to payroll if he or she was on leave without pay.
3. If an employee wishes to return to work prior to the expiration of approved FMLA leave, notification must be given to the Office of Payroll and Benefits or to his/her supervisor at least five (5) business days prior to the employee’s planned return. In instances where notice is provided to the supervisor, the supervisor is then responsible for notifying the Office of Payroll and Benefits of the employee’s status. The employee must provide medical certification that he or she is able to return to work earlier than expected.

XIV. Extension of Leave

1. Employees are required to notify the Office of Payroll and Benefits or their supervisor as soon possible, if it is determined that he or she will not be able to return from family medical leave, as originally planned.
2. Appropriate documentation must be provided. An employee requesting an extension of FMLA leave due to the continuation, recurrence, or onset of his/her own serious health condition, or of the serious health condition of the employee’s spouse, child, or parent, must submit a request for an extension, in writing, along with medical certification, to the Office of Payroll and Benefits.
3. The Office of Payroll and Benefits shall review the documentation and determine if the employee is eligible for an extension under this policy. For all extensions under FMLA, The Office of Payroll and Benefits shall provide written notification of extension eligibility or denial of the FMLA extension request to the supervisor and the employee.

XV. Notice of Intent Not To Return

Any time the employee gives unequivocal notice of intent not to return to work, the College’s obligations under the FMLA stop. This means the College is no longer obligated to maintain group health benefits for the employee, and the College is not required to restore the employee to an equivalent job. For example, an employee who is on FMLA leave for the birth of a child and care of that child might advise the supervisor or the Office of Payroll and Benefits that he/she has decided to stay home with the child and not return to work. Once the employee advises the supervisor or the Office of Payroll and Benefits of this decision, the College’s responsibilities under the FMLA stop.

XVI. HIPAA

The Office of Payroll and Benefits is responsible for ensuring that the Health Insurance and Portability and Accountability Act of 1996 (“HIPAA”) guidelines are followed. If it is deemed necessary, as determined by the Office of Payroll and Benefits and/or Legal Affairs, to discuss medical data with a supervisor for the purpose of processing FMLA related requests or accommodations, the supervisor is responsible for protecting the privacy and confidentiality of all Personal Health Information obtained as a result of an FMLA application and process. HIPAA guidelines will be applied to the use, maintenance, transfer, and disposition of healthcare records and information.

XVII. Related Regulations, Statutes, Policies, and Procedures

Board of Regents Policy Manual 8.2.7.6 Family and Medical Leave
BOR Human Resources Administrative Practice Manual Policy on Family and Medical Leave