FAMILY AND
MEDICAL LEAVE
ACT
FMLA AT AAMU
Presenter
Roslyn Crews, Esq. – Associate General Counsel
What is FMLA?
The Family and Medical Leave Act (FMLA) is a federal law
passed in 1993 and revised in 2009. It requires employers to:
Grant leave for specific family and medical circumstances;
Reinstate an employee to the same or an equivalent position
upon conclusion of the employee’s FMLA leave;
Continue health benefits at the same level as prior to the start
of FMLA leave (other benefits are governed by employer
policy);
Refrain from interfering with an employee’s right to leave as
provided by the Act; and
Refrain from retaliating against employees who exercise their
FMLA rights.
Covered Employers
The FMLA applies to any employer in the private sector who
engages in commerce, and who has 50 or more employees
each working day during at least 30 calendar weeks in the
current or preceding calendar year.
The law also covers all public agencies (State and local
governments) and local education agencies (schools whether
public or private). These employers do not need to meet the
“50 employee” test.
For our purposes, AAMU is covered as a public agency.
Who is an eligible employee?
An employee is eligible for FMLA leave at AAMU when he/she:
Has been employed by the University for at least twelve (12)
months and
Has worked at least 1,250 hours during the twelve months
preceding the start of the requested leave
However…..
The twelve months of employment does not have to be
consecutive months leading up to the request for leave. As
long as an employee has at least twelve months of
employment in the last seven years, they meet this
requirement
For example…..
For example, Andy Admin worked for AAMU as a temporary
full time instructor from January 1, 2008 until May 31, 2008 (5
months). He was rehired by the University on February 1,
2011 in a full time staff position. On September 1, 2011, Andy
applied for FMLA leave to begin October 1, 2011.
Andy passes the first test for eligibility because he can
combine the five months in 2008 with the eight months he
accumulated from February thru the end of September to
have 13 months of employment with the University.
What family and medical
circumstances are covered?
There are two levels of FMLA coverage provided under the law.
 Up to 12 weeks leave in a 12 month period for health care of
yourself or an immediate family member, and for qualifying
military exigencies
Up to 26 weeks leave in a 12 month period for military
caregiver leave
12 WEEKS
Birth of a child and to care for the newborn child.
Placement of a child with the employee for adoption or foster
care.
Care of a spouse, child, or parent with a serious health
condition.
A serious health condition of the employee that makes
him/her unable to work.
A qualifying exigency for family members of the National
Guard or Reserve
However……
In the case of a new child in the home, both the mother and
father are entitled to leave.
Leave is not allowed to care for a parent-in-law.
In the case of an employee who needs to be off to care for a
son or daughter (non-military) who has a serious illness, the
child must be under 18 years of age in order for the employee
to qualify for FMLA. The injury or illness of a child 18 or older
is not qualifying UNLESS the child has a physical or mental
disability affecting at least three areas of self care. The test is
very similar to the ADA test of substantial limitation in a major
life activity.
For Example….
Andy Admin wants the FMLA leave because his 18 year old
daughter, Andrea - a high school senior, needs to have a pin
put in her shoulder. It was dislocated during a cheerleading
stunt and keeps popping out. Even if Andy has 1250 hours,
chances are he still isn’t entitled to FMLA. Though it would be
difficult, his daughter can probably clean, dress, and feed
herself after surgery.
BUT if Andy’s daughter will be bedridden in traction, then the
injury to his daughter probably does qualify.
HR would make a determination following medical
certification of Andrea’s condition.
What is a “serious health
condition?”
Illness, injury, impairment, or physical or mental condition
that involves:
• Inpatient care (i.e., overnight hospital stay), or
• Continuing treatment including any one of the following
1. Incapacity of more than three (3) consecutive calendar
days that also involves
-treatment two or more times within 30 days of
the incapacity
-treatment at least once within seven (7) days of
incapacity, with continuing treatment to follow
2. Pregnancy or pre-natal care
3. Multiple treatments (physical therapy, etc.)
“Serious Health Condition”
cont’d
4. Chronic conditions that
- require periodic visits to a health care provider (at
least two per year)
-continue over an extended period (dialysis,
chemotherapy)
-may cause episodic incapacity (asthma, epilepsy,
migraines)
5. Permanent or long term conditions for which treatment may
not be effective (terminal stage of a disease)
What is a “qualifying
exigency?”
An employee who has a family member who is a member of the
National Guard or Reserve on active duty or called to active duty in
support of a contingent operation may be entitled to FMLA leave. A
“qualifying exigency” is limited to 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. Additional activities that arise out of active duty, provided
that AAMU and the employee agree on the timing and the
duration of the leave.
Details……
 A family member for this purpose is a son or daughter (biological, adopted, step,
foster, subject of legal guardianship when still a minor, or in loco parentis when
still a minor), spouse, or parent.
 Short notice deployment is seven days or less notice
 Military events and activities include ceremonies, events held by military support
groups, and informational briefings by the military and support groups like the
Red Cross.
 FMLA for child care and school activities does not include regular day-to-day
child care and school events. Covered is leave to change or enroll children in
school as necessitated by deployment or arrange for alternative child care
because of deployment, counseling for behavior arising out of a parent’s
deployment, emergency child care needs resulting from deployment.
 Post deployment activities are covered for up to 90 days after deployment ends
and include debriefing, counseling, arrival ceremonies, and arrangements for
deceased members killed while on active duty.
26 WEEKS LEAVE
FMLA provides up to 26 weeks leave in a single twelve month
period for the following circumstance:
To care to a spouse, son, daughter, parent or next of kin covered
servicemember with a serious illness or injury incurred in the
line of duty on active duty. This type of FMLA leave is also
known as military caregiver leave or covered servicemember
leave.
A Caveat (or two)
The 26 weeks allowed to military caregivers is not in addition
to the 12 weeks otherwise allotted. If an employee has used
their 26 weeks caring for a spouse injured in Afghanistan, and
then needs time off for some other FMLA qualifying reason in
that same 12 month period, they are not eligible for FMLA
leave.
Normally, after an employee has been on inactive work status
for 12 consecutive weeks, AAMU is required terminate health
insurance benefits and refer the employee to COBRA.
However, FMLA requires employers to continue health
benefits for employees on FMLA leave.
How is the 12 month period
determined?
An employer is permitted to choose one of the following
methods for determining the “12 month period” in which the
leave entitlement occurs:
1. The calendar year;
2. Any fixed 12 month leave year, such as a fiscal year;
3.The 12 month period measured forward from the date
the employee’s first FMLA leave begins; or
4. A rolling 12 month period measured backward from
the date the employee uses any FMLA leave.
AAMU’s 12 month period
For 12 week leave circumstances, AAMU uses the rolling
twelve month period counted back from the date leave is
expected to begin.
HOWEVER, for 26 week servicemember caregiver leave, the
law requires all employers to use twelve months going
forward starting at the date the caregiver leave begins.
More Examples…..
As of October 1, 2011, Sally Staff has been employed at AAMU
for 5 years. Sally and her husband are adopting a new baby
who was placed in their home on October 15. Sally requested
6 weeks (30 days) FMLA for placement of this child. When HR
pulled her records, it determined that since October 15, 2010,
Sally took 1 week (5 days) of FMLA in January of 2011 when
her husband had surgery. Sally also took ½ a day (4 hours)
three separate times (1.5 days) between June and August
2011 for home studies related to the adoption. Human
Resources subtracts 6.5 days from the 12 week (60 day) FMLA
allowance and determines that Sally has 53.5 days of FMLA
remaining. Sally’s request is approved.
Let’s go back to Andy Admin
Has Andy worked 1250 hours since September 30, 2010 ?
 40 hr x 4 weeks = 160 hrs/month x 8 months = 1280 hours.
Andy has probably also worked enough hours to qualify.
HOWEVER, Andy must have actually worked the 1250 hours.
So paid holidays -Memorial Day, Independence Day, Labor Day,
Spring Break - don’t count. If Andy took sick leave or personal
leave, those days don’t count either. Taking five days away
from Andy’s total for holidays and spring break only, he would
be down to 1220 hours, and not eligible for FMLA until he has
worked thru the first week in October. If he has used any sick
leave or personal leave, he will have to work even longer to
get in the required hours.
And another thing…
Andy Admin’s brother Arthur also works for AAMU. Arthur
Admin’s wife, who is in the Army, was seriously injured in Iraq
early this year. When she returned stateside, Arthur had to
use all 26 weeks of his caregiver leave.
Remember, even if Arthur took FMLA military exigency leave
before his wife was deployed, he still has all 26 weeks of
military caregiver leave because exigency leave is counted
going back, but military caregiver leave is counted going
forward from the date of leave.
Three weeks after Arthur returned to work, his mother had a
stroke. Arthur is not eligible for FMLA leave to care for her
because counting back, his 12 weeks were subsumed in his
military caregiver leave.
How is leave time allocated?
FMLA leave can be taken in three ways
1. Continuous leave. This is leave taken in successive full
calendar days. For example when an employee needs six
weeks off to recover from surgery.
2.Intermittant leave. This is leave taken as needed. For
example when an employee need to be out every one
Thursday and Friday a month for six months for
chemotherapy, or when the employee will be two hours
late three days a week for physical therapy for three
months.
Allocation cont’d
3. Modified work schedule. For example, an employee
needs to work 9am-4pm because treatment for their
condition requires more rest than normal.
How does FMLA work with
sick and annual leave?
FMLA requires employers to provide up to 12/26 weeks
unpaid leave.
The law allows employers to make the leave paid if employees
have paid sick or personal leave available.
AAMU requires employees to use all sick and annual leave
available for as much of the FMLA leave as possible
If the employee does not have enough paid leave accrued to
cover the requested FMLA leave, the balance of the FMLA
leave will be unpaid.
Back to Sally…
When she requests time off for the new baby, Sally has a sick
leave balance of 47 days and a annual leave balance of 10
days.
All 30 days of her approved FMLA leave will be paid leave and
will also be charged against her sick leave balance of 47 days.
When she returns to work, Sally will have 17 sick days, 10
annual leave days and 23.5 FMLA days. She will not accrue sick
or annual leave while she is out on FMLA per AAMU policy.
Husband & Wife Employees
When a husband and wife both work for the University they
are entitled to only a combined 12 weeks of FMLA leave for
the arrival of a new child or to care for a child or parent.
The time reduces each individual’s FMLA leave time available
for personal illness.
When a husband and wife both work for the University and
each wishes to take leave to care for an injured or recovering
servicemember they are entitled to only a combined 26 weeks
of leave.
Military caregiver leave is does not increase total leave time
to 38 weeks.
Sally again…..
Sally Staff is married to Steve Staff and when their new baby
comes home, Steve wants to take 6 weeks off, too. Steve has
been employed with the University for three years. He took 4
weeks of FMLA leave in January after his surgery, and has 32
paid days off available (12 sick days and 20 annual leave days).
Sally and Steve can both take FMLA leave for the newly
adopted child. Both will be paid the whole time.
However, even though Sally and Steve each have more than 6
weeks FMLA available, they can not take more than twelve
weeks total for the new baby.
Faculty and Nine Month
Employees
Faculty and nine month employees are entitled to FMLA.
Full time faculty are presumed to work 40 hours per week
Generally, this means that faculty and nine month employees
have 1250 hours and are eligible for FMLA unless
1. The need for leave arises near the end of the spring
semester, and
2. The employee did not work the preceding summer.
FMLA leave for faculty and nine month employees will run
concurrently with accumulated sick leave.
Faculty con’t
Full time faculty who carry less than a full course load are also
presumed to work 40 hours per week. However it is good
practice for them to keep a journal documenting time spent
on research, administrative duties, writing grant proposals,
etc.
University scheduled time away from duties may or may not
count against FMLA allotment
-If faculty requests FMLA for the week containing the King
Holiday, the faculty is charged with a full week of FMLA leave
-If faculty takes the week before Spring Break and the week
after Spring Break as FMLA (three weeks total) Spring Break is
not charged as FMLA or against sick leave
How do I request FMLA leave?
Employees requesting FMLA leave must give 30 days written
notice when the leave is foreseeable. If 30 days notice is not
possible, the notice/request must be given as soon as
practical, ideally no later than a day or two within the start of
leave.
The request forms are available on the HR website.
HR may require certification of the need for leave.
The forms are first submitted to HR.
After HR makes its determination that the employee is eligible
for FMLA leave, HR will submit the forms to the appropriate
supervisor for approval.
The approved forms are returned to HR and the employee is
notified.
A Final Note to Supervisors
Supervisors must submit written notification to HR regarding
any employee who requests time off or is absent from work
for more than 3 consecutive business days for illness or to care
for an ill family member. Supervisors may not grant FMLA
leave, however. Only HR may make that determination.
The University has a duty to inform employees rights under
FMLA when it appears (from a three day absence or request)
that their leave may qualify as FMLA leave.
The University also has the option of designating leave as
FMLA leave whenever the leave is for a qualifying reason,
even if the employee does not request FMLA. The University
must inform an employee with in 5 days that leave has been
designated as FMLA leave.
Office of General Counsel
Angela Redmond Debro
General Counsel
Alabama A&M University
Office of General Counsel
4900 Meridian Street
P.O. Box 315
Normal, Alabama 35762
256.372.8889 (Telephone)
256.372.8890(Facsimile)
http://www.aamu.edu (Website)
Office of Human Resources
Cheryl Johnson
Interim Director of Human Resources
Alabama A&M University
Office of Human Resources
4101 Meridian Street
P.O. Box 305
Normal, Alabama 35762
256.372.5835 (Telephone)
256.372.5881 (Facsimile)
http://www.aamu.edu/humanresources/ (Website)