Policy Number: 106
Family and Medical Leave
I. POLICY AND GENERAL STATEMENT
The University of Texas Health Science Center at Houston (“university”) provides leave under the Family and Medical Leave Act ("FMLA") for eligible employees.
A. Eligibility: Employees are eligible if they have worked for the State of Texas at least 12 months and have 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:
- Birth of son/daughter and care after such birth;
- Placement with employee of son/daughter for adoption or foster care;
- Care of employee’s spouse, child, or parent with serious health condition;
- Serious health condition of employee that makes employee unable to perform the functions of his or her position;
- Qualifying exigency arising out of covered active duty or call to covered active duty of a military member who is the employee’s spouse, son/daughter or parent; or,
- To care for the serious illness or injury of a covered servicemember if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember.
Employees who are not eligible for leave under this policy may refer to HOOP Policy 107 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, the following exceptions apply to this general rule:
- Employees who take FMLA leave to care for a covered servicemember may 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. An eligible employee may be entitled to take more than one period of 26 workweeks of leave if the leave is to care for different covered servicemembers or to care for the same servicemember with a subsequent serious injury or illness, except that no more than 26 workweeks of leave may be taken within any single 12-month period.
- Employees who take FMLA leave because of a qualifying exigency caused by a short-notice deployment may use that leave for a period of seven calendar days that begins on the day the military member is notified of an impending call or order to covered active duty.
- Employees who take leave because of a qualifying exigency caused by rest and recuperation (as defined in this policy) may take up to fifteen calendar days beginning on the date the military member commences each instance of rest and recuperation leave.
C. Manner of Taking Leave
FMLA leave 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 military member’s covered active duty or call to covered 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.). However, the number of hours per workweek to which a less than full-time employee is entitled is determined on a pro rata or proportional basis.
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 provided the employee returns to work on the first regularly-scheduled work day following the last day of the approved FMLA leave. However, an employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period.
E. Requirement to Use Sick, Vacation, Accrued Compensatory Time, and Accrued Administrative Leave
Employees must use all accrued sick leave (if applicable), vacation leave, compensatory time, and 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. 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 will not be unlawfully discharged or unlawfully discriminated against. The university will 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.
G. Leave Administration
An employee may request FMLA leave or the university may provisionally place an eligible employee on FMLA leave pending receipt of the appropriate, completed FMLA certification forms.
When an employee’s FMLA is based on a leave category that requires a spouse, child or parent relationship, the university may request certification of the family relationship. The certification may include a statement from the employee or relevant documentation, such as a birth certificate or court document.
Continuing Treatment: A situation in which, in connection with a period of incapacity of more than three consecutive full calendar days, a person has 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 two in-person treatment visits to a health care provider within 30 days of the first day of incapacity, unless extenuating circumstances exist.
Covered Active Duty: In the case of a member of a regular component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country; and in the case of a member of a reserve component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country under a call or order to active duty in support of a contingency operation as defined in 29 CFR §825.102.
Covered Veteran: A person who was a member of the Armed Forces (including a member of the National Guard or Reserves) and who was discharged or released from that service under conditions other than dishonorable within five years prior to the first date that the employee’s military caregiver leave begins.
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, or a covered veteran who is undergoing medical treatment, recuperation or therapy, for a serious injury or illness.
In loco parentis: Persons with day-to-day responsibilities to care for or to financially support a child. A biological or legal relationship is not necessary.
Intermittent leave/Intermittently: FMLA leave taken in separate blocks of time due to a single qualifying reason.
Military Member: The employee’s spouse, son/daughter or parent who is on covered active duty or call to covered active duty status or has been notified of an impending call or order to covered active duty.
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. 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. When no such designation is made, and there are multiple family members with the same level of relationship to the covered servicemember, all such family members shall be considered the covered servicemember’s next of kin and may take FMLA leave to provide care to the covered servicemember either consecutively or simultaneously.
Outpatient Status: The status of a covered servicemember assigned to a military medical treatment facility as an outpatient or a unit established for the purpose of providing command and control of members of the Armed Forces receiving medical care as outpatients.
Parent: A biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the employee or covered servicemember when the employee or covered servicemember was a son or daughter. This term does not include parents–in-law.
Qualifying Exigency (military-related only):
- Short-notice deployment: A notification of an impending call or order to covered active duty seven or less calendar days prior to date of deployment.
- Military events and related activities: Any official, military-sponsored ceremony/program/event, or any family support/assistance program/informational briefing sponsored or promoted by the military, a military service organization, or the American Red Cross, that is related to the covered active duty or call to covered active duty status of a military member.
- Childcare and school activities: Taking the following actions when necessitated by the covered active duty or call to covered active duty status of the military member (a) arranging for alternative childcare for a child of the military member; (b) providing childcare on an urgent, immediate basis; (c) enrolling a child in or transferring the child to a new school or day care facility; or (d) attending meetings with staff at a school or day care facility.
- Financial and legal arrangements: Making or updating financial or legal arrangements to address the military member’s absence; or acting as the military member’s representative before a federal, state or local government agency to obtain, arrange or appeal military service benefits, either during covered active duty status or within the 90 days after that status ends.
- Counseling: Attending counseling provided by someone other than a healthcare provider for the employee, the military member, or a qualifying family member, if that counseling is necessitated by the covered active duty or call to covered active duty status of a military member.
- Rest and recuperation: Spending time with a military member who is on short-term, temporary, rest and recuperation leave during the period of deployment.
- Post-deployment activities: Attending arrival ceremonies, reintegration briefings and events, and any other military-sponsored ceremony or program for a period of 90 days after the military member’s covered active duty status ends, or to address issues that arise from a military member’s death while on covered active duty status.
- Parental Care: Taking the following actions when necessitated by the covered active duty or call to covered active duty status of the military member and the military member’s parent is incapable of self-care as defined in 29 CFR §825.126(b)(8): (a) to arrange for alternative care for a parent of the military member when the covered active duty or call to covered active duty status of the military member necessitates a change in the existing care arrangement for the parent; (b) to provide care for a parent of the military member on an urgent, immediate need basis when the parent is incapable of self-care; (c) to admit or transfer to a care facility a parent of the military member; and (d) to attend meetings with staff at a care facility, such as meetings with hospice or social service providers for a parent of the military member.
- Additional activities: Addressing other events that arise out of a military member’s covered active duty or call to covered active duty status. The use of this leave and the duration of the leave must be approved by the employee’s supervisor and the Chief Human Resources Officer.
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.
Serious Health Condition: An illness, injury, impairment, or physical or 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: In the case of a current member of the Armed Forces, including a member of the National Guard or Reserves, an injury or illness incurred by a covered servicemember in the line of duty on active duty, or that existed before the beginning of the member’s active duty and was aggravated by service in the line of duty on active duty in the Armed Forces, that may render the service member medically unfit to perform the duties of his/her office, grade, rank, or rating. In the case of a covered veteran, an injury or illness incurred in the line of duty on active duty in the Armed Forces, or that existed before the beginning of the active duty and was aggravated by service in the line of duty on active duty in the Armed Forces, that manifested itself before or after the member became a veteran, and is: a continuation of a serious injury or illness that was incurred or aggravated when the covered veteran was a member of the Armed Forces and rendered the military member unable to perform the duties of his/her office, grade, rank or rating; or a physical or mental condition for which the covered veteran has received a U.S. Department of Veterans Affairs Service-Related Disability Rating (VASRD) of fifty percent or greater, and such VASRD rating is based, in whole or in part, on the condition precipitating the need for military caregiver leave; or a physical or mental condition that substantially impairs the covered veteran’s ability to secure or follow a substantially gainful occupation by reason of a disability or disabilities related to military service, or would do so absent treatment; or, an injury, including a psychological injury, on the basis of which the covered veteran has been enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.
Spouse: A husband or wife as defined or recognized by law for purposes of marriage in the state where the employee resides, including a person in a common-law marriage in states where it is recognized.
Son or Daughter: In the case of all categories of leave eligibility other than qualifying exigency and care for a covered servicemember with a serious injury or illness, includes the employee’s biological, adopted, or foster child, a stepchild, a legal ward, or child for whom the employee stands in loco parentis 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. In the case of leave eligibility due to a qualifying exigency or care for a covered servicemember with a serious injury or illness, includes the employee’s biological, adopted, or foster child, stepchild, legal ward, or child for whom the employee stands in loco parentis, and who is of any age.
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 no later than 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
- 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 for Serious Injury or Illness of a Current Military Member for Military Family Leave or the Certification for Serious Injury or Illness of a Veteran for Military Family Leave, as applicable.
- 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 covered active duty or call to covered active 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.
- The completed applicable certification form must be provided to the supervisor or designated administrator either before the leave begins or no later than 15 calendar days after the leave begins. Exceptions to this deadline may be granted due to exceptional circumstances.
- 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.
- 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 last 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.
- If the leave is being taken because of a qualifying exigency caused by the covered active duty or call to covered active duty of a spouse, son, daughter or parent, the supervisor or designated administrator will require the employee to provide a copy of the military member’s covered active duty orders or other documentation issued by the military that indicates the military member is on covered active duty or has been notified of an impending call or order to covered active duty, as well as documentation regarding the dates of the military member’s covered active duty service. If the qualifying exigency involves meeting with a third party, the employee’s supervisor or designated administrator 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
- The supervisor or the designated administrator should determine if the employee is eligible for leave and inform the employee in writing (using the FMLA Notice of Eligibility and Rights & Responsibilities) no later than five business days after the employee either requests leave or the supervisor or the designated administrator learns that the employee’s leave may qualify under the FMLA. 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.
- If the employee provides a completed Request for FMLA form and a complete and sufficient certification form as applicable, the supervisor or designated administrator must give the employee the FMLA Designation Notice no later than five business days after receiving the completed request and completed certification form placing the employee on FMLA. If the employee is unable to provide foreseeable notice of the leave, the supervisor or designated administrator must provide the employee with the appropriate certification form and the FMLA Notice of Eligibility and Rights & Responsibilities, and place the employee, if eligible, on FMLA pending receipt of the applicable certification form.
- If a supervisor or designated administrator believes a returned certification form is incomplete or insufficient, the supervisor or designated administrator 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 or designated administrator 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 by the given deadline, the employee may be denied the taking of FMLA leave.
- If a supervisor or designated administrator 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 or designated administrator must contact Human Resources. Human Resources will contact the health care provider for purposes of clarification and authentication of the medical certification as appropriate.
“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.
- 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. However, if the employee submits the certification after the deadline, the employee may be placed on FMLA leave as of that time. FMLA leave will not be applied retroactively.
- 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 or designated administrator, if applicable.
G. Premium Payments for Medical Insurance
- 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. The university will mail written notice to the employee at least fifteen (15) days before the insurance coverage lapses. If the university discontinues health coverage as a result of non-payment of premiums, the returning 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.
- 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
- 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.
- 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).
- 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 or genetic information 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:
- to the employee's supervisor, manager, designated team leader or Human Resources if needed to make adjustments in job duties/responsibilities due to work restrictions resulting from the medical condition; or
- to first aid and/or safety personnel if the employee's medical condition might require emergency treatment; or
- to government officials investigating compliance with the FMLA.
J. Coordination with Other Leave Entitlement
Benefits such as the sick leave pool (See HOOP Policy 37 Sick Leave Pool Program) and extended disability leave may be used in conjunction with and count toward the FMLA leave.
 The university may only request a second or third medical opinion when the leave is to care for a covered servicemember if the certification is provided by a non-military-affiliated health care provider.
Forms and FAQs: