Family Leave and Medical Leaves of Absence under Federal and State Law Policy

The purpose of this policy is to define the rights and obligations of employees of Montclair State University regarding family or medical leaves of absence under the federal Family and Medical Leave Act (FMLA) and the New Jersey Family Leave Act (FLA).

Under the FMLA, an employee may take a leave of absence for the birth or placement of a child for adoption or foster care. In such cases, the leave must be taken within one year of the birth or placement. Leave may also be taken to care for a child, spouse, or parent with a serious health condition or the employee’s own serious illness. The employee is entitled to take a leave for up to 12 weeks in a one-year period. The calculation of this 12-month period shall commence with the commencement of the family or medical leave. This leave may be taken at a reduced or intermittent schedule with appropriate approvals. Authorized leave time, such as administrative, vacation, and sick leave, does not accrue while in non-pay status.

The FMLA does not supersede any provisions of the state law that provide greater rights than those provided under the FMLA. Moreover, the FLA does not diminish rights under the FMLA.

Eligible Employees
Employees are eligible for family or medical leave under FMLA if they have been employed by Montclair State University for at least 12 months and have worked at least 1,250 hours during the 12-month period as of the date the leave commences. Employees are eligible for family leave under New Jersey law if they have been employed by the State of New Jersey for at least 1,000 base hours (i.e. regular hours of work, excluding overtime) during the 12-month period as of the date the leave commences.

Leave Entitlement
General
The FMLA provides that eligible employees shall be granted unpaid leaves of absence for up to 12 work weeks in a 12-month period for certain types of family and medical leaves. The 12-month period is calculated from the first day the employee takes family and medical leave

Type of Leave Covered
Under the FMLA, an employee will be granted leave for:
-the birth of a child of the employee and in order to care for such newborn child;
-placement of a child with the employee for adoption or foster care;
-caring for a child, parent, or spouse with a "serious health condition";
-the employee’s own "serious health condition," that makes the employee unable to perform an essential function of his/her position.

Military Family Leave Entitlements
Eligible employees with a spouse, son, daughter, or parent on active duty or call to active duty status in the National Guard or Reserves in support of a contingency operation may use their 12-week leave entitlement to address certain qualifying exigencies. Qualifying exigencies may include attending certain military events, arranging for alternative childcare, addressing certain financial and legal arrangements, attending certain counseling sessions, and attending post-deployment reintegration briefings.
FMLA also includes a special leave entitlement that permits eligible employees to take up to 26 weeks of leave to care for a covered servicemember during a single 12-month period. A covered servicemember is a current member of the Armed Forces, including a member of the National Guard or Reserves, who has a serious injury or illness incurred in the line of duty on active duty that may render the servicemember medically unfit to perform his or her duties for which the servicemember is undergoing medical treatment, recuperation, or therapy; or is in outpatient status; or is on the temporary disability retired list.

New Jersey Law
New Jersey law provides a leave of absence of up to 12 weeks during a 24-month period for any of the following reasons: for the birth of a child or placement of a child with the employee for adoption or foster care and to care for a seriously ill child, parent, or spouse. New Jersey law does not provide leave for an employee’s own serious health condition.

Interplay between the FMLA and New Jersey Law
In many instances the FMLA and New Jersey law overlap. However, if in a particular circumstance the New Jersey law provides greater leave benefits, the University will provide the leave or benefits required by the New Jersey law. To the extent that both laws apply to a particular circumstance, employees taking such leave will have that leave counted concurrently under both the FMLA and FLA.

Definitions
Child, Spouse or Parent
Under the FMLA and New Jersey law, "child" means biological, adopted, or foster child, step-child, legal ward, or child of a person standing in place of a parent who is under 18 years of age, or 18 years of age or older, but incapable of self-care because of a mental or physical disability.

"Parent" means a person who is the biological parent, or a person who stands or stood in place of a parent when the employee was a child.

Under New Jersey law, a "parent" also includes a parent-in-law.

Health Care Provider
A "health care provider" is any doctor of medicine or osteopathy who is authorized to practice medicine or surgery by the state in which the doctor practices or any other person licensed under federal, state, or local law or under the laws of a foreign nation to provide health care services.

Serious Health Condition
A serious health condition is an illness, injury, impairment, or physical or mental condition that involves either an overnight stay in a medical care facility, or continuing treatment by a health care provider for a condition that either prevents the employee from performing the functions of the employee's job (FMLA) , or prevents the qualified family member from participating in school or other daily activities.

Subject to certain conditions, the continuing treatment requirement may be met by a period of incapacity of more than 3 consecutive calendar days combined with at least two visits to a health care provider or one visit and a regimen of continuing treatment, or incapacity due to pregnancy, or incapacity due to a chronic condition. Other conditions may meet the definition of continuing treatment.

Employee's Responsibilities
Employees must provide 30 days advance notice of the need to take FMLA leave when the need is foreseeable. When 30 days notice is not possible, the employee must provide notice as soon as practicable and generally must comply with an employer's normal call-in procedures.
Employees must provide sufficient information for the employer to determine if the leave may qualify for FMLA protection and the anticipated timing and duration of the leave. Sufficient information may include that the employee is unable to perform job functions, the family member is unable to perform daily activities, the need for hospitalization or continuing treatment by a health care provider, or circumstances supporting the need for military family leave. Employees also must inform the employer if the requested leave is for a reason for which FMLA leave was previously taken or certified. Employees also may be required to provide a certification and periodic recertification supporting the need for leave.

Procedures for requesting Leave
An employee requesting family or medical leave should put the request in writing, specifying: (a) the specific reason for the leave, including identification of any family member who has a "serious health condition" and a brief description of the illness; and (b) the period for which the leave is sought, if known.

The written request must be submitted to the Benefits Office in the Division of Human Resources. In emergent circumstances where written notice is impractical, the employee may provide the Benefits Office with oral notice.

Certification of Health Care Provider
Upon the University’s request, the employee shall provide a certification from the health care provider supporting the need for family or medical leave.

Contents of Certification
Employee's own serious health condition
If leave sought is for the employee’s own serious health condition, the employee must submit a certification issued by the employee’s health care provider setting forth: (1) the date on which the serious health condition commenced; (2) the probable duration of the condition; (3) the appropriate medical facts within the knowledge of the health care provider regarding the condition; (4) a statement that the employee is unable to perform the functions of the position of the employee; (5) if the certification is for intermittent leave or leave on a reduced leave schedule, the planned medical treatment, the dates on which such treatment is expected to be given, and the duration of the treatment; and (6) if the certification is for intermittent leave or leave on a reduced leave schedule, the expected duration of the intermittent leave or reduced leave schedule.

Leave for serious health condition of child, parent, or spouse
If leave sought is for the serious health condition of the employee’s child, parent, or spouse, the employee must submit a certification issued by the health care provider of the child, parent, or spouse setting forth: (1) the date the condition began; (2) the probable duration of the condition; and (3) the medical facts within the health care provider’s knowledge regarding the condition.

Verification
If the University has reason to validate the certification provided in support of a leave request, the University may require, at its expense, that the employee obtain the opinion of a second health care provider designated or approved by the University, but not employed on a regular basis by the State of New Jersey. If the second opinion differs from the original certification, the University may again require, at its expense, the opinion of a third health care provider designated or approved jointly by the University and the employee. The opinion of the third health care provider is final and binding on the University and the employee.

Employer Responsibilities
The University shall make the determination of whether the requested leave qualifies as FMLA leave within two business days after acquiring knowledge that the leave is being taken for a FMLA reason.

The University will designate an employee’s absence as FMLA or FLA leave, even if the employee does not request leave under FMLA or the New Jersey law, if the absence qualifies for each leave.

The University will give an employee at least oral notice of his/her rights and obligations to FMLA leave within two business days after the employee gives notice of the need for leave. The Benefits Office in the Division of Human Resources will provide the employee with a form outlining the employee’s rights and responsibilities while on FMLA leave.

Leave on a reduced schedule or Intermittent Leave
Eligible employees may take family or medical leave intermittently or on a reduced leave schedule when medically necessary in the case of an employee who has a serious health condition or in the case of a child, spouse, or parent who has a serious health condition.

Employees taking leave intermittently or on a reduced leave schedule must take such leave in minimum increments of one quarter of a day. Employees seeking to take a reduced or intermittent leave must make a reasonable effort to schedule the leave so as not to unduly disrupt the operations of the University. The employee must provide the University with prior notice of the care, medical treatment, or continuing supervision by a health care provider necessary due to a serious health condition in a manner which is reasonable and practicable.

Substitution of Paid Leave
By the Employee
An employee may, at his/her option, use paid vacation or sick leave for family or medical leave purposes, provided that the employee meets the requirements for the type of leave requested. Employees covered under collectively negotiated agreements should consult their specific agreements to determine whether they are eligible for any paid leave that they seek to use for family or medical leave purposes.

By the University

Medical Leave for the Employee's own pregnancy-related disability
A University employee who requests leave with or without pay for reason of disability due to her own pregnancy is entitled to leave as provided under the FMLA, as well as leave under the same terms and conditions as those applicable to such employees for sick leave or leave without pay. The University may request acceptable medical evidence that the employee is unable to perform her work because of disability due to pregnancy.

An employee requesting medical leave for reason of her own disability due to pregnancy may use accrued sick, vacation or administrative leave for pregnancy-disability purposes but shall not be required to exhaust accrued paid leave before taking leave without pay. However, an employee must exhaust all accrued sick leave to be eligible for New Jersey Temporary Disability Insurance.

Benefits
During the period of family or medical leave, the employee’s coverage under any group health plan will be maintained at the level and under the same conditions as though the employee had been continuously employed during the entire leave period.

Other employment benefits are available to employees as follows:

  • Employees on family or medical leave without pay are entitled to other employment benefits under the same circumstances as are available to employees on other leaves without pay.
  • Employees on family or medical leave with pay are entitled to other employment benefits under the same circumstances as are available to employees on the type of paid leave (i.e., sick or vacation leave) they are taking.
  • Family or medical leave without pay shall not be deducted from seniority for layoff purposes. For all other purposes, family or medical leave without pay shall be treated the same as other leaves without pay, and family or medical leave with pay shall be treated the same as the applicable leave with pay.
  • An employee’s right to continued leave, maintenance of health benefits, and job restoration cease if and when the employment relationship terminates.
  • Employees covered by collectively negotiated agreements should consult their agreements to determine the impact of other forms of paid and unpaid leave on their other benefits and seniority.

Return from Leave
Restoration Rights - General
On return from family or medical leave, an employee is entitled to be returned to the same position that the employee held when the leave commenced (or, if that position has been filled, to an equivalent position of like seniority, status, employment benefits, pay, and other terms and conditions of employment), unless the employee’s position has been eliminated as part of a layoff or reduction in force or the employee would otherwise have been terminated had he/she remained actively employed. Seniority earned prior to taking leave remains intact and all other terms and conditions of employment remain intact.

An employee may return to work from family or medical leave earlier than originally anticipated, provided that the employee gives two business days’ notice to the University.

Exception for highly paid Key Employees
The University may deny a salaried employee who is among the highest paid 10 per cent of those employed by the State of New Jersey within 75 miles of the University if:

-denial is necessary to prevent substantial and grievous economic injury to the University’s operations;

-the University notifies the employee of its intent to deny restoration at the time that the University decided that such an injury would occur; and

-in any case, when the leave has commenced, the employee elects not to return to employment after receiving such a notice from the University.