22.7 Family and Medical Leave Act

(Office of the Vice President for Finance and University Services 8/93; 8/95; 5/99; 9/02; 1/09; 10/1/10; 10/14; 7/1/17)

Effective July 1, 2017, this policy has been revised. For individual changes, see the redlined version.

The function of this policy is to provide employees with a general description of their Family Medical Leave Act (FMLA) rights. To view the Department of Labor Employee Rights and Responsibilities Poster, see https://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf. For additional FMLA information, procedures, and best practices, see https://hr.uiowa.edu/fsds.

  1. Definitions.
    1. "Spouse": husband, wife, or spouse as recognized by Iowa law for purposes of marriage, including common law and domestic partners of same and opposite gender registered with the University Benefits Office.
    2. "Parent": biological, adoptive, step-, or foster father or mother or any other individual who stood in the place of a parent to an employee when the employee was under the age of 18; excludes parents-in-law.
    3. "Son or daughter": In the context of leave for birth or adoption, or to care for a family member with a serious health condition, the child is the biological, adopted, or foster child; a stepchild; a legal ward of a child of a person standing in the place of a parent who is either under the age of 18; or is age 18 or older and incapable of self-care because of a mental or physical disability at the time of the need for FMLA leave.
      1. "Incapable of self-care": The individual requires active assistance or supervision to provide daily self-care in three or more of the "activities of daily living" (ADLs) or "instrumental activities of daily living" (IADLs). ADLs include adaptive activities such as caring for self-grooming and hygiene, bathing, dressing, and eating. IADLs include cooking, cleaning, shopping, using public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc.
      2. "Physical or mental disability": A physical or mental impairment that substantially limits one or more of the major life activities of an individual. Regulations at 29 CFR 1630.2(h), (i), and (j).
    4. "Next of kin of a covered service member": The employee's nearest blood relative other than spouse, parent, son or daughter, in the following order of priority: blood relative designated by court degree or statutory provisions, siblings, grandparents, aunts or uncles, first cousins, unless the service member has designated in writing another blood relative as nearest blood relative. When no designation is made, multiple family members of the same level of relationship are next of kin and may take FMLA leave to provide care to the service member.
    5. "Adoption": Legal and permanent reasonability of raising a child as one's own. The source of the adoption is not a factor.
    6. "Foster care": Twenty-four-hour care for children in substitution for and away from their parents or guardian.
    7. "Documenting relationships": The employer may require the employee to give reasonable written documentation of the family relationship.
    8. "Serious health condition": An illness, injury, impairment, or physical or mental condition requiring an overnight stay in a hospital, hospice, or residential medical care facility. Serious health conditions include a period of incapacity or subsequent treatment in connection with the inpatient care or continuing treatment by a health provider. Other serious health conditions include incapacity and treatment, pregnancy and prenatal care, chronic condition, permanent or long-term conditions, or conditions requiring multiple treatments.
    9. "Incapacity and treatment": A period of incapacity of more than 3 full consecutive calendar days and subsequent treatment or period of incapacity related to the condition that requires treatment of 2 or more times within 30 days of the start of incapacity or one treatment and continuing regimen of treatment. The first treatment must be within 7 days of the first day of incapacity.
    10. "Chronic condition": A serious health condition that:
      1. requires periodic visits for treatment by the treating health provider or nurse under supervision;
      2. requires treatment at least twice in 12 months;
      3. continues over an extended period of time;
      4. includes recurring episodes of a single condition; and
      5. may cause episodic periods of incapacity.
    11. "Permanent, long-term conditions": Conditions causing a period of incapacity where treatment may not be effective. Medical supervision is required; however, active treatment is not required.
    12. "Conditions requiring multiple treatments": Absence for treatments and recovery, as applicable, for restorative surgery, when without treatment the condition would likely result in at least 3 consecutive full calendar days of incapacity.
    13. "Incapacity": The inability to work, attend school, or perform other regular daily activities due to the condition, its treatment, or recovery.
    14. "Pregnancy and prenatal care": Birth mother's incapacity due to pregnancy and prenatal care.
    15. "Health care provider": Any person providing treatment authorized by the University major medical insurance plan, individuals authorized to diagnose and treat in the state of Iowa, the United States, or another country. Chiropractic treatment is limited to manual manipulation of the spine.
    16. "Unable to perform the functions of the position": The health care provider determines the employee is unable to work or is unable to perform one or more of the essential functions of the employee's position may be considered to have a disability as defined by the Americans with Disabilities Act as amended. Absence for treatment of a serious health condition is considered "unable to perform essential functions" during the necessary absence.
    17. "Intermittent or reduced leave": Intermittent leave may be taken in separate blocks of time reducing the work day for a single condition and may use increments of no less than 6 minutes. Reduced leave is a scheduled reduction of a workday or workweek.
  2. Employee notification. FMLA information concerning rights and responsibilities are provided upon hire to all new employees within University and University of Iowa Health Care orientation(s). Mandatory Department of Labor FMLA Notice and supplementary information concerning Military Family Leave posters are displayed in the University Employment Services office and individual employing department Human Resource areas. Employee questions or concerns with this policy should be directed to the Human Resource Representative or University Faculty and Staff Disability Services (hr-fsds@uiowa.edu).
  3. General provisions. The University will grant up to 12 weeks per calendar year or up to 26 weeks of military caregiver leave during any 12-month period to eligible employees.

    Leave under FMLA may be paid, unpaid, or a combination of paid and unpaid leaves, depending on the circumstances of the leave and the employee's eligibility for different leaves. Employees may also use comp time to remain in paid status while in FMLA. Refer to https://hr.uiowa.edu/fsds for employee leave eligibility information.
  4. Employee eligibility. The employee must meet all of the following conditions:
    1. The employee must have worked for the University for at least 12 months or 52 weeks. The 12 months or 52 weeks need not have been consecutive. Separate periods of employment will be counted toward the 12 months except for periods of employment prior to a 7-year break in service. However, separate periods of employment are to be counted if the break in service exceeds 7 years due to eligible military service obligations.

      An employee will be considered to have been employed for an entire week even if the employee was on the payroll for only part of a week or if the employee is on paid or unpaid leave during the week.
    2. The employee must have worked at least 1,250 hours in the 12-month period preceding the date when the leave is intended to commence. Hours absent from work, whether paid (vacation, sick, holiday, jury, administrative, etc.) or unpaid, are not included in the 1,250 hours required for FMLA eligibility.
    3. Employee eligibility pursuant to work location will be determined at the time a request for leave is made. Employees must work within 75 miles of the worksite where they report or are assigned work and this worksite must have a minimum of 50 University employees reporting to that worksite. The distance is to be calculated by using available transportation and the most direct route. The office location for employees who work from home is the office that assigns work.
    4. Employees on non-FMLA leave who become eligible for FMLA during the leave period will have any remaining absence that qualifies as FMLA designated as FMLA.
    5. Employees cannot waive their rights to use FMLA.
  5. Types of qualifying leave.
    1. Employees who are eligible for FMLA may use FMLA for any and all of the reasons below:
      1. Prenatal care for and birth of a child, as well as bonding time with the child during the 12 months following the child's entry to the home.
      2. The pre-placement proceedings required for an employee's adoption or foster care placement efforts, the placement of a child for adoption or foster care, and to bond with the child during the 12 months following the child's entry to the home.
      3. To care for a spouse (including a University registered domestic partner), child, or parent with a serious health condition. Care may include provision of treatment or psychological comfort.
      4. Due to the serious health condition of the employee. The employee is unable to perform the essential functions of the job with reasonable accommodation, and work absence is medically necessary.
      5. Qualifying exigency leave — leave required because the spouse, son, daughter, or parent of the employee is a service member on active duty or has been notified of an impending call to covered active duty status in support of a contingency operation. Service members include members of the National Guard, the Reserves, and certain retired members of the Regular Armed Forces and retired Reserve. Employees may take up to 12 weeks of leave for reasons related to or affected by the family member's call-up, impending call-up, or service. The leave may commence as soon as the covered service member receives the call-up notice.

        This type of leave is counted toward the employee's 12-week maximum of FMLA leave in a calendar year. The qualifying exigency must be one of the following: 1) short-notice deployment, 2) military events and activities, 3) child care and school activities, 4) financial and legal arrangements, 5) counseling, 6) rest and recuperation, 7) post-deployment activities, 8) parental care, and 9) additional activities that arise out of active duty, provided that the employer and employee agree to the leave and on timing and duration of the leave.

        "Son" or "daughter" for FMLA leave related to military service is defined the same as "child" for other types of FMLA leave except that the son or daughter need not be a minor.
      6. Military caregiver leave to care for a covered service member with a serious injury or illness. This leave may extend to up to 26 weeks in a single 12-month period for an eligible employee to care for a spouse, son, daughter, parent, or next of kin covered service member.
  6. Amount of leave.
    1. Personal or family illness: An eligible employee can take up to 12 weeks of FMLA leave during a calendar year.
    2. Military caregiver leave: An eligible employee can take up to 26 weeks for qualifying military caregiver leave during a single 12-month rolling period. The 12-month rolling period is measured forward. FMLA leave already taken in the calendar year for other FMLA events will be deducted from this 26-week period. When two University employees are spouses as defined herein and each wishes to take leave to care for a covered injured or ill service member, the two employees may only take a combined total of 26 weeks of leave.
    3. Child entering the home: When both parents, individuals who are domestic partners registered with the University Benefits Office or are married as recognized by the state of Iowa, including common law, work for the University and each wishes to take leave for a child entering the home, birth of a child, adoption, or placement of a child in foster care, the two employees may only take a combined total of 12 weeks of leave.
    4. Holidays are charged to FMLA leave if the employee is taking a continuous leave of a full workweek. Holidays are not charged to FMLA for leaves of less than one full week.
  7. Duration of leaves. An eligible employee may take FMLA leave continuously, intermittently, or on a reduced workweek or workday basis. During a calendar year leave may not exceed a total of 12 workweeks for continuous leaves. Intermittent leave may not exceed 480 hours for FTE appointments or the corresponding amount according to percentage of appointment. The maximum leave available to care for an injured or ill service member in a rolling 12-month period is 26 workweeks and the intermittent leave maximum of 1,040 hours for FTE appointments or the corresponding amount according to the percentage of appointment. The 26 weeks will include any leave taken for other nonmilitary FMLA qualifying events during a calendar year.

    Intermittent or reduced schedule for planned medical treatment or after the birth or placement of a child (unrelated to an employee illness) requires that employees make a reasonable effort not to disrupt work operations. Scheduling of these absences is to be arranged with the employer.
  8. Status, pay, and benefits during leave. An employee using FMLA retains employment rights during leave. FMLA runs concurrently with applicable pay policies. Faculty and staff should remain in pay status whenever possible using applicable sick or family caregiving leave, or vacation or comp time (as applicable). See III-22.3 above and https://hr.uiowa.edu/policies/clarification-family-caregiving-leave

    Employee absence for prenatal care, pre-adoption, and pre-foster placement and leave following the child's entry to the home (birth, placement in the home) are FMLA events and the employee pay status runs currently with the leave.

    An employee using a planned reduced schedule to take foreseeable intermittent FMLA leave may be temporarily transferred to an available alternative work assignment with equivalent pay and benefits if the alternative assignment can better accommodate an intermittent or reduced schedule.

    An employee may be transferred to a part-time job with the same rate of pay and benefits provided no more leave than is medically necessary is required. Equivalent duties are not necessary but duties cannot be assigned to discourage the employee from taking leave. The employee, when able to return to full schedule, will be returned to the same or equivalent job held prior to the leave, complying with other policy and bargaining contracts as applicable.

    The University will continue the employee's health benefits during any period of paid and unpaid FMLA leave. The employee is to contact University Benefits to arrange for premium coverage of all other insurance benefits during unpaid leave.

    An employee not returning to work following FMLA leave will not be required to reimburse the University for health insurance premiums provided by the University during the leave.
  9. Status after leave. An employee taking FMLA leave will be returned to the same position held when leave commenced or to a position that is virtually identical in terms of pay, benefits, and working conditions. The employee must be able to perform the essential functions of the position with reasonable accommodations, as applicable.
  10. Certifications.
    1. Employee's serious health condition. Certification from the employee's treating health provider should be requested if the employer's knowledge regarding the need for leave is unknown or unclear. Typically, a department Human Resources representative should inform the employee of the need for a health certification within five days of knowing about the need for leave. The employee must provide the health certification within 15 days of the request or provide reasonable explanation for the delay. The expense of the certification is the responsibility of the employee. Failure to provide certification may result in denial of FMLA designation. Certification should be made using the Department of Labor (DOL) Certification of Health Care Provider for Employee's Serious Health Condition; however, the University may accept other documentation if the necessary information required for leave is provided.

      The University Faculty and Staff Disability Services staff, or designee, may contact the employee's health provider directly for verification or clarification purposes if leave communication deficiencies continue after the employee has been given 7 days to resolve such deficiencies, provided that the employee has authorized the University to contact the health provider.

      A second opinion may be requested by University Faculty and Staff Disability Services staff when there are reasons to question the documentation. The provider of the second opinion will be selected by University Faculty and Staff Disability Services and the employing department will provide payment for certification. FMLA may be refused if the selected provider cannot obtain the relevant medical records necessary to make the certification.

      A third opinion may be requested by University Faculty and Staff Disability Services when conflict exists between the first and second opinions. The provider will be mutually selected by University Faculty and Staff Disability Services staff and the employee. The employing department will provide payment for the third opinion. This opinion will be considered final.

      The employee will be provisionally entitled to FMLA leave and benefits pending the second and/or third opinion.

      Second or third opinions are not to be requested for covered service member leave.
    2. Family member's serious health condition. Certification from the family member's treating health provider should be requested if the employer's knowledge of the need for leave is unknown or unclear. Typically, a department Human Resource representative should inform the employee of the need for a health certification within 5 days of knowing about need for leave. The employee must provide the health certification within 15 days of the request or provide reasonable explanation for the delay. Failure to provide certification may result in denial of FMLA designation. Certification should be made using the DOL Certification of Health Care Provider for Family Member's Serious Health Condition; however, the University may accept other documentation if the necessary information required for leave is provided.

      The employee will be granted 7 days to resolve certification deficiencies. Unresolved deficiencies may result in denial of FMLA coverage.

      The employee will be provisionally entitled to FMLA leave during the documentation request and review period.
    3. Qualifying exigency for military leave. Certification should only be requested if knowledge of need for leave is unknown or unclear. The University may request copies of the active duty orders or other documentation issued by the military noting active-duty status or call to active duty. If further certification is sought, typically, a department Human Resource representative will inform the employee of the need for certification within 5 days of knowing about need for leave. The employee must provide the certification within 15 days of the request or provide reasonable explanation for the delay. Certification should be made using the DOL Certification of Qualifying Exigency for Military Family Leave; however, the University may accept other documentation if the necessary information required for leave is provided.

       The employee will be granted 7 days to resolve certification deficiencies. Unresolved deficiencies may result in denial of FMLA coverage.

       The employee will be provisionally entitled to FMLA leave during the documentation request and review period.
    4. Serious injury or illness of covered service member. Certification from the service member's treating health provider, i.e., U.S. Department of Defense, U.S. Department of Veterans Affairs, authorized provider in a DOD TRICARE network, or authorized private provider of a DOD TRICARE network, may be requested if knowledge of need for leave is unknown or unclear. Typically, a department Human Resource representative will inform the employee of the need for a health certification within 5 days of knowing about need for leave. The employee must provide the health certification within 15 days of the request or provide reasonable explanation for the delay.

      The employee will be granted 7 days to resolve certification deficiencies. Unresolved deficiencies may result in denial of FMLA coverage.

      The employee will be provisionally entitled to FMLA leave during the documentation request and review period.
  11. Recertification. Recertification of a serious health condition for the employee or the employee's family member may be requested:
    1. no more frequently than every 30 days when the duration of the health condition is unknown,
    2. when information is received casting doubt on the reason given for the absence,
    3. when an extension is requested, or
    4. when circumstances described in the previous certification have changed significantly.
    Information concerning the employee's leave use may be submitted to the treating health provider on the certification document with a question whether the leave is consistent with the employee's serious health condition. The University will allow 15 calendar days for the employee to provide the recertification. When recertification is not received further FMLA leave may be denied. No second or third medical opinions from University-selected doctors may be requested of a recertification. Recertification is not to be requested for covered service member leave.
  12. Requesting leave. Employees are required to provide information regarding their need for leave sufficient to allow the University to determine if the leave qualifies under FMLA. Failure to provide sufficient information may result in denial of FMLA designation.

    Unscheduled and scheduled employee leave will be evaluated by the University to determine employee and event eligibility. Employees giving notice of need for foreseeable leave should do so, when practicable, at least 30 days in advance of using leave.

     FMLA may be denied if verbal or written notice is not reasonably given for scheduled absence or if department call-in procedures are not followed.
  13. Designation of leave. Typically within 5 business days after learning of the current leave or need for future leave the University will complete and provide the employee with the DOL Notice of Eligibility and Rights and Responsibilities.

    For FMLA-eligible employees, typically within 5 business days after receiving adequate information either from the employee, employee's representative or certification supporting the employee's need for leave, the University will complete and provide the employee with a written response to the request for leave using the DOL Designation Notice.

    Employees may consult with University Faculty and Staff Disaiblity Services regarding concerns about the designation of leave that cannot be resolved by their department Human Resources Representatives.

    When employers are unaware of how to designate an employee's absence they should make reasonable inquiry with employees or their spokesperson to ascertain whether leave is potentially FMLA qualifying.

    If leave was used in any 30-day period, employees may request the amount of FMLA leave available to them once every 30 days.

    If the "return to work" guidelines (paragraph o below) dictate that the employee should provide release to work documentation before being allowed to return, the department must note this requirement on the Designation Notice at the time leave is approved. The department should also attach a list of the essential job functions to the Designation Notice and explain on the Designation Notice that the release to work documentation must address the employee's ability to perform the essential functions of the job.

    The University shall notify employees, using the DOL Designation Notice, when leave events or employees do meet FMLA eligibility criteria.

    Leave may be designated retroactively as FMLA leave if authorized by University Faculty and Staff Disability Services.
  14. Employee communication during leave. The University should make arrangements with employees on leave regarding any reporting requirements during their absence. Employees on unscheduled and scheduled leave should maintain regular communication with their designated University contact person, applicable to each employee's situation and without discrimination, to address unmet work needs during absence and communicate changes in health and abilities to work.
  15. Return to work. A release to work document may only be required by the University if presented to the employee with the DOL Designation Notice. A release to work/fitness for duty document from the treating health provider should be required in situations of employees taking leave for their own serious health condition that requires continuous leave of 5 or more days, inpatient hospitalization, or when the health condition implicates the safety of self or others. A release to work or fitness for duty clearance may be requested for intermittent leave when reasonable questions regarding safety exist and if the employee was notified of this requirement at the time of designation. The treating health provider must attest the employee is able to perform the essential functions of the job. The employee will be given 7 days to resolve incomplete or unclear release information. If unresolved after 7 days, University Faculty and Staff Disability Services may contact the treating health provider for purposes of clarifying and authenticating the Release to Work document. The employee will not return to work until the completed certification document is received by the employer.

    The cost of obtaining the release document is the responsibility of the employee.