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VII - 7.50 - USM POLICY ON FAMILY AND MEDICAL LEAVE FOR EXEMPT
AND NONEXEMPT STAFF EMPLOYEES
(Approved by the Board of Regents, August 27, 1993; Amended April
16, 2004; Amended October 22, 2004)
I. PURPOSE AND APPLICABILITY
The purpose of this policy is to implement the Family and
Medical Leave Act of 1993 (FMLA), P.L. 103-3. This policy
applies to all University System of Maryland (USM) Exempt
and Nonexempt Staff employees on Regular Status. Under
certain circumstances it is the policy of the USM to provide
eligible employees up to a maximum of twelve (12) weeks of
unpaid leave during a twelve (12) month period for certain
family and certain serious health condition reasons.
II. TERMS AND DEFINITIONS
The following terms and definitions shall apply for
purposes of this policy:
A. Accrued Leave - Earned and unused annual leave, holiday
leave, sick leave, compensatory leave, and unused personal leave.
B. Alternative Position - A position to which an eligible
employee may be temporarily reassigned during a period of
intermittent Family and Medical (F&M) leave and/or reduced
schedule. The alternative position shall have the same benefits
and pay as the position from which the eligible employee was
reassigned.
C. Care - "to take care of" or "to care for". The term care is
intended to be read broadly to include both physical and
psychological care. The language applies to the period of
inpatient care and home care as well.
D. Child - A person who is the son or daughter of an eligible
employee and who is under eighteen (18) years of age; or,
eighteen (l8) years of age or older and incapable of self-care
because of a mental or physical disability during the period of
the serious illness. The son(s) and/or daughter(s) may be the
biological, adopted, step or foster child(ren) of the eligible
employee. The term "child" shall also include someone who is the
legal ward of the eligible employee or someone for whom the
eligible employee has provided sufficient, notarized affidavit(s)
and proof of financial dependence that he/she is standing in loco
parentis.
E. Eligible Employee - An employee who has been employed for a
total of at least twelve (12) months as a USM or a State of
Maryland employee; and who has worked for at least one thousand
and forty (1,040) hours during the twelve (12) month period
immediately prior to the beginning date of the leave as a USM or
State of Maryland employee. For part-time employees on at least
a 50% basis, the minimum number of hours required for eligibility
shall be prorated. For convenience, within the text of this
policy the term "employee" instead of "eligible employee" shall
be used.
F. Equivalent Position - A position at the institution to which
an eligible employee may be restored upon the completion of the
F&M leave. The equivalent position shall have the same benefits,
pay, and other terms and conditions of employment as the position
from which the eligible employee took leave.
G. Health Care Providers - Are Doctors of Medicine or
Osteopathy, Podiatrists, Dentists, Clinical Psychologists,
Optometrists, Chiropractors (limited to treatment consisting of
manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist), nurse practitioners and nurse
midwives, as authorized to practice by the State of Maryland,
Christian Science Practitioners listed with the First Church of
Christ Scientist in Boston; and Licensed Clinical Professional
Counselor.
H. Immediate Family Member - is the eligible employee's
parent(s), spouse, or child(ren), or legal dependent(s).
I. In Loco Parentis - "In the place of a parent; instead of a
parent; charged, factitiously, with a parent's rights, duties and
responsibilities." Any eligible employee claiming an in loco
parentis relationship with a child, or any eligible employee
claiming to be the child of an in loco parentis relationship may
be requested to provide documentation of such relationship.
J. Institution - is the employing USM institution; the USM
institution from which the eligible employee is taking leave.
K. Key Employee - a salaried F&M eligible employee who is among
the highest paid ten (10) percent of all the employees employed
by the institution within 75 miles of the eligible employee's
workplace.
L. Parent - is the eligible employee's biological, adoptive, or
foster mother or father, or someone who stood in loco parentis to
the eligible employee when the eligible employee was a child.
M. Restoration - as used within the FMLA and used within this
policy, restoration is an institutional guarantee that at the
conclusion of the F&M leave the eligible employee will be
returned either to the same position from which he/she took
leave, or to an equivalent position within the same job
classification.
N. Serious Health Condition - is an illness, injury,
impairment, or physical or mental condition that involves
inpatient care in a hospital, hospice, or residential medical
care facility, or home care, or continuing treatment by a health
care provider. A serious health condition is also intended to
cover conditions or illnesses that affect the eligible employee's
health or the health of the eligible employee's immediate family
to the extent that the family member is in the hospital or other
health care facility or at home and unable to care for his/her
own basic hygienic or nutritional needs or safety such that the
eligible employee must be absent from work on a regular and
recurring basis for more than a few days for treatment or
recovery. F&M leave is not intended to cover minor illnesses
that last less than four days and short term medical and/or
surgical procedures that require only a brief recovery period of
less than four days which are normally handled through sick
leave. With respect to the eligible employee, a serious health
condition means that the employee must be incapacitated from
performing the essential functions of his/her position.
O. Examples of serious health conditions applicable to the
employee or the employee's immediate family member include, but
are not limited to: heart conditions requiring heart bypass or
valve operations; most types of cancer; back conditions requiring
extensive therapy or surgical procedures; severe respiratory
conditions; appendicitis; emphysema; spinal injuries; pneumonia;
severe arthritis; severe nervous disorders; injuries caused by
serious accidents; ongoing pregnancy, miscarriages, complications
or illnesses related to pregnancy, such as severe morning
sickness, the need for prenatal care, childbirth, and recovery
from childbirth. Additional examples are an employee or
immediate family member whose daily living activities are
impaired by such conditions as Alzheimer's disease, stroke, or
clinical depression, who is recovering from major surgery, or who
is in the final stages of a terminal illness.
P. Spouse - the person to whom the eligible employee is legally
married -- a husband or a wife.
Q. Twelve (12) Month Period - shall be defined in the
institution's implementation procedures to indicate whether the
twelve months are based on a calendar year or a "rolling twelve
month period", for uniform treatment of all employees at that
institution.
III. REASONS FOR LEAVE
A. Employees are entitled to take F&M leave for the following
reasons:
· the birth of the employee's child,
· the placement of a child with the employee for adoption or
foster care,
· the need to take care of the employee's child within a
twelve (12) month period from birth or placement,
· the need to take care of the employee's immediate family
member who has a serious health condition, and
· the serious health condition of the employee.
B. Additionally, requests for leave to take care of the
employee's school-age child under the age of fourteen (14) during
school vacations may be granted to the extent that the leave does
not create a hardship with respect to the operational needs and
work schedules of the applicable institutional unit.
IV. FAMILY AND MEDICAL LEAVE ENTITLEMENT
A. Employees are entitled to a maximum of twelve (12) workweeks
(60 days) of F&M leave within a twelve (12) month period. F&M
leave can be taken continuously or, under certain circumstances,
on a reduced F&M leave schedule, or intermittently over the
course of a twelve month period. F&M leave entitlement shall not
be carried over from a twelve month period to the subsequent
twelve month period.
B. The actual F&M leave entitlement shall be based on the
employee's percentage of full time work for the twelve month
period immediately prior to the beginning date of the F&M leave;
and, shall be integrated with the amount of other leave taken for
F&M-related reasons during the twelve month period within which
the F&M leave is to begin.
C. Employees who regularly worked full-time (40 hours per week)
are entitled to a maximum of twelve (12) workweeks (60 days/480
hours) of F&M leave in a twelve month period. Employees who
worked part-time (less than 40 hours per week), on at least a 50%
basis, are entitled to a prorated share of the twelve (12)
week/sixty (60) day/480 hour maximum.
V. INTEGRATION OF OTHER LEAVE TAKEN WITH FAMILY AND MEDICAL
LEAVE ENTITLEMENT
Actual F&M leave entitlement shall be based on the
employee's use of other leave during the twelve month period
within which the F&M leave begins. The employee's use of the
following types of leave shall be deducted from the actual
F&M leave entitlement:
· Any prior F&M leave taken within the applicable year
· Sick leave withdrawn from the USM Leave Reserve Fund within
the applicable year
Extended sick leave used within the applicable year
Accident leave used within the applicable year
· Any type of unpaid leave for reasons related to family and
medical circumstances taken within the applicable year.
VI. INTERMITTENT OR REDUCED LEAVE
A. In the case of a documented medical necessity, an employee
shall be entitled to intermittent leave and/or a reduced schedule
that reduces regular hours per workday or workweek for purposes
of the employee's or the immediate family member's serious health
condition. The employee shall attempt to schedule intermittent
leave or leave on a reduced schedule so as not to disrupt the
operations of the institution's applicable unit.
B. Employees may be granted leave that reduces regular hours
per workday or workweek for reasons of child birth, placement
with the employee of a child for adoption or foster care, or care
for a newborn child to the extent that the intermittent or
reduced leave does not represent an undue hardship to the
operations and work schedules of the applicable institutional
unit.
C. The Chief Executive Officer (CEO) or designee may
temporarily reassign an employee on intermittent or reduced F&M
leave to an alternative position that better accommodates reduced
or intermittent periods of leave.
VII. SPOUSES EMPLOYED BY THE SAME USM INSTITUTION AND UNIT
A. If spouses work at the same USM institution or in the same
institutional unit, each spouse shall be entitled to a separate,
individual, maximum family and medical leave eligibility amount.
B. The amount of leave for which one spouse may be eligible, or
the amount of leave used by one spouse shall not limit or enhance
the leave amount or the leave usage of the other spouse.
C. Spouses shall be entitled to take leave simultaneously or in
succession and in any portion of their respective individual
maximum for reasons of a serious health condition of the employee
and for the serious health condition of the employee's immediate
family members. Requests for simultaneous F&M leave by spouses
employed by the same institutional unit may be granted for
reasons of child birth, placement with the employee of a child
for adoption or foster care, or care for a newborn child, to the
extent that simultaneous leaves do not create a hardship with
respect to the operational needs and work schedules of the
applicable institutional unit.
VIII. COMPENSATION DURING LEAVE
F&M leave is an unpaid leave. However, based upon either
the election of the employee or the requirement of the CEO
or designee and in accordance with USM's and the
institution's existing leave procedures, accrued paid leave
shall be substituted for all or any part of the F&M leave.
IX. JOB PROTECTION
A. Except as provided in IX. B., C., D., and F., employees
returning to work at the conclusion of a F&M leave shall be
restored to their former position with the pay, benefits and
terms and conditions of employment that they enjoyed immediately
prior to the F&M leave.
B. An employee is not entitled to restoration if the CEO or
designee determines that the employee had been hired for a
specific term or only to perform work on a specific project
defined in writing and the term or project is over and the
institution would not otherwise have continued to employ the
employee.
C. 1. If at any point prior to or during the F&M leave the
CEO or designee determines that the employee's former position
cannot be held available for the duration of the leave, the CEO
or designee, at the conclusion of the leave, shall restore the
employee to an equivalent position.
2. If the determination of an inability to hold the
former position available occurs after the F&M leave
begins, the CEO or designee shall immediately notify
the employee in writing of details associated with
the decision and the details of the equivalent
position to which the employee will be restored. The
employee shall have the right to return within
fifteen (15) working days from receipt of such notice
to keep his/her former position.
D. If there are reductions in the work force while the employee
is on F&M leave and he/she would have lost his/her position had
he/she not been on leave, then except as provided under UMS
Policy on Layoff and UMS Policy on Reinstatement, there is no
obligation to restore the employee to his/her former or
equivalent position.
E. If there are increases or decreases in pay, benefits, or
other terms and conditions of employment while the employee is on
F&M leave and he/she would have had his/her pay, benefits, or
other terms and conditions of employment changed were he/she not
on leave, then except as provided under applicable USM policy,
the employee shall be restored consistent with current,
applicable, appropriate pay, benefits and other terms and
conditions of employment.
F. Restoration of Key Employees
1. If it is necessary to prevent substantial and grievous
economic injury to the employing USM institution, the CEO may
deny restoration to a key employee, provided that the employee
was notified of his/her status as a key employee at the time the
F&M leave was requested or commenced, whichever was earlier
2. If the CEO or designee believes that restoration may be
denied to a key employee, then at the time the F&M leave is
requested (or when leave commences, if earlier) or as soon as
practicable thereafter, the CEO or designee shall provide the key
employee with written notification of the potential terms,
conditions and consequences of the leave. Notification shall
include at least the following: a) notification of the fact that
he/she qualifies as a key employee; and b) potential consequences
with respect to restoration and maintenance of health benefits.
Failure to provide such timely written notice shall result in the
loss of the right to deny restoration to a key employee even if
substantial and grievous economic injury will result from such
restoration.
3. As soon as the CEO or designee makes a good faith
determination, based on the facts available, that substantial and
grievous economic injury to the institution will result if the
key employee who has requested or who is using F&M leave is
restored, the employee shall be given written notice either in
person or by certified mail of the following: a) that F&M leave
cannot be denied; b) notification of the CEO's/designee's
intention to deny restoration upon completion of the F&M leave;
and c) an explanation of why restoration will result in
substantial and grievous economic injury.
4. When practicable, the CEO shall provide the notice described
in IX., F., 3. at least one calendar week prior to the employee
starting the leave. If such notice is provided after the leave
commences, then the CEO also shall provide the employee a period
of at least fifteen (15) working days from receipt of the notice
to return to his/her position.
5. If a key employee does not return to work in response to the
notification of intent to deny restoration, the employee
continues to be entitled to maintenance of health benefits
through the scheduled leave and the institution cannot recover
its share of premiums unless and until the employee gives notice
that he/she does not wish to return to work or the institution
actually denies restoration at the conclusion of the leave.
6. After notice to a key employee has been given that
substantial and grievous economic injury will result if the
employee is restored to employment, an employee is still entitled
to request restoration at the end of the leave period even if the
employee did not return to work in response to the
CEO's/designee's notice. Based on the facts at that time, the
CEO or designee must then determine whether there will be
substantial and grievous economic injury from restoration. If it
is determined that substantial and grievous economic injury will
result, the CEO or designee shall notify the employee in writing
(in person or by certified mail) of the denial of restoration.
X. STATUS OF BENEFITS WHILE ON FAMILY AND MEDICAL LEAVE
A. An employee who is granted an approved F&M leave under this
policy shall continue to be eligible for all employment benefits
that he/she enjoyed immediately prior to the F&M leave.
B. An employee on F&M leave for reasons noted in Section III.
A. may elect to continue employer-subsidized health care benefits
during the period of leave. The CEO or designee shall provide
advance written notice to the employee of the terms and
conditions under which premium payments are to be made by the
employee. The subsidy shall cease if an employee gives notice
that he/she no longer wishes to return to work. The institution
shall recover its share of health premiums during unpaid F&M
leave if the employee fails to return to work, or returns to work
but fails to stay thirty (30) calendar days, unless the reason
for not returning or staying is due to the continuation,
recurrence or onset of a serious health condition or other
circumstances beyond the employee's control.
C. An employee on F&M leave for reasons noted in Section III.
B. may elect to continue health care and other benefits, as
permitted by law or regulation, by paying the full cost of the
benefits, including the share ordinarily paid by the employer.
D. Except as noted in Section IX, Job Protection, upon return
from leave an employee shall be restored with all the rights,
benefits and privileges enjoyed prior to the leave.
E. While on any unpaid portion of a F&M leave, an employee
shall not earn or accrue any additional leave or seniority
credits.
F. An employee may elect to purchase service credit at the time
of retirement for prior leaves without pay that are qualified by
the Maryland State Retirement and Pension Systems. Upon approval
of a leave without pay, an employee shall follow the institution
procedure to assure that this option may be exercised.
XI. NOTICE OF FAMILY AND MEDICAL LEAVE
Regardless of the reason for the F&M leave an employee shall
give at least thirty (30) calendar days notice and provide
the appropriate medical certification or legal certification
of adoption (as soon as practicable) or foster child
placement, before taking a F&M leave. When the need for
leave is not foreseeable, an employee shall give notice as
soon as practicable but no less than two (2) working days of
learning of the need for leave. If this is not possible due
to a medical emergency, then the employee or the employee's
designee shall give written notice and provide the
appropriate certification as soon as practicable.
XII. MEDICAL CERTIFICATION
A. For leaves related to serious health conditions and to child
birth, the employee shall provide medical certification(s) from
the employee's or family member's health care provider. The
employee shall have fifteen (15) calendar days to obtain the
medical certification unless not practicable to do so despite the
employee's diligent good faith efforts. Such certification shall
include but not be limited to:
· A diagnosis of the nature and extent of the condition giving
rise to the use of F&M leave,
· Date condition commenced,
· Regimen of treatment to be prescribed,
· The duration of absence from work,
· In the case of the employee's serious health condition,
certification that the employee is unable to perform the
essential functions of his/her position and prognosis of the
employee's ability to return to his/her position,
· In the case of the employee's need to care for a seriously
ill family member, certification of the necessity for and
duration of the employee's presence; of the requirements of
inpatient care; and of assistance for basic needs, safety and
transportation,
· Title and original signature of an accredited, licensed or
certified medical provider.
B. The CEO or designee may require a second medical opinion at
the institution's expense. In the case of conflicting opinions,
the opinion of a third health care provider, agreed upon by both
employee and the CEO or designee and obtained at the
institution's expense, shall be final. The second and third
opinions shall not be provided by individuals who are employed on
a regular basis by the institution.
C. The CEO or designee may require reasonable recertification
as the F&M leave continues, and may require an employee to
provide periodic progress reports as to the serious health
condition for which he/she is taking leave and the employee's
ability to return to work at the end of the leave.
Recertification shall not be requested more often than every
thirty (30) calendar days unless the employee requests an
extension of F&M leave, changed circumstances occur during the
illness or injury, or the institution receives information that
casts doubt upon the continuing validity of the most recent
certification.
D. Consistent with FMLA and other applicable laws, all medical-
related documentation will be kept confidential and maintained in
a file separate from the employee's official institutional
personnel file.
XIII. SCHEDULING OF TREATMENT IN INSTANCES OF SERIOUS HEALTH
CONDITIONS
A. In instances of the serious health condition of a family
member or of the employee himself or herself, and in keeping with
the requirements of the appropriate health care provider, the
employee shall make reasonable efforts to schedule any medical
treatments so as not to disrupt unduly the operations of the
applicable institutional unit.
B. During the course of the treatment and as the CEO or
designee deems appropriate, the employee may be requested to
provide certification from the appropriate health care provider
of the unavailability of treatment during non-work time, or at
times that are less disruptive to the operations of the
employee's unit.
XIV. PROVIDING INFORMATION ABOUT F&M LEAVE
Regardless of the reason for the leave, an employee shall
provide complete, accurate and timely information related to
a request for, continuation of, modification(s) to, and
return from a F&M leave.
XV. ABUSE OF F&M LEAVE
The CEO or designee shall review, investigate and resolve
suspected cases of bad faith, fraud or abuse of the F&M leave
program. Cases of bad faith, falsification of documents, or
fraudulent information related to the F&M leave provided to
the institution, or other abuses of the F&M leave program,
may result in but are not limited to: revocation of the
leave, refusal to restore, recovery of institutional costs
for paid-time leave and insurance benefits premiums, and
disciplinary action up to and including termination.
XVI. EARLY RETURN FROM LEAVE
An employee interested in returning to work from a F&M leave
prior to the agreed upon end of the leave date shall provide
the CEO or designee with a written request at least thirty
(30) calendar days prior to the date on which the employee is
interested in returning. The CEO or designee shall make a
good faith effort to restore the employee to his/her former
or an equivalent position as soon as possible at the
employee's request but no later than the thirty (30) calendar
day notice provided by the employee.
XVII. EXTENSIONS OF LEAVE
Employees may extend the date of return from a F&M leave to
the extent that they have F&M leave entitlement available. A
request for an extension of F&M leave shall be considered
under this policy as if it was an initial request.
XVIII. FAILURE TO RETURN FROM LEAVE
A. An employee who will not be returning to the institution at
the conclusion of a leave shall notify the CEO or designee in
writing as soon as practicable. In the absence of written
notification, failure to return from leave shall be interpreted
as a resignation.
B. If applicable, any benefit entitlements based upon length of
service shall be calculated as of the employee's last paid day.
C. Employer costs of any payments made to maintain the
employee's benefit coverage when on unpaid F&M leave shall be
recovered if an employee fails to return to work as described in
Section X.B.
The CEO or designee may request certification of reasons
for the employee's failure to return to work.
XIX. MISCELLANEOUS
A. The CEO or designee is under no obligation to immediately
restore an employee whose return from leave does not coincide
with the normal operating schedule of the institution or the
normal work schedule of the employee's unit, or restore an
employee whose return date is inconsistent with the terms and
conditions of the employee's appointment.
B. Entitlement to begin F&M leave for reasons of child birth,
placement with the employee of a child for adoption or foster
care, or care for a newborn child expires by no later than the
364th day after the date of birth or placement. Any such F&M
leave must be concluded within this one-year period.
C. When F&M leave is taken by an employee on probation status,
the probationary period shall be adjusted upon the return of the
employee by the length of time used for F&M leave.
IMPLEMENTATION PROCEDURES
Each Chief Executive Officer shall identify his/her
designee(s), if appropriate, for this policy; shall develop
procedures as necessary for the posting, record-keeping and
implementation of this policy; and shall communicate this
policy and applicable procedures to members of his/her USM
institution.
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