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Serving Henderson and Transylvania Counties in Western North Carolina
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Policy TrackingDate
Approved
RevisedSeptember 9, 2009
Reviewed

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  1. Purpose − The Family and Medical Leave Act of 1993 (FMLA) was passed by Congress to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity; to minimize the potential for employment discrimination on the basis of gender by ensuring generally that leave is available for eligible medical reasons (including maternity-related disability) and for compelling family reasons; and to promote the goal of equal employment opportunity for women and men.
    1. Blue Ridge Community College’s Family Medical Leave (FMLA) Procedure provides eligible employees up to 12 weeks (or 26 weeks where specified) of leave for certain medical conditions, such as the birth of a child, or for other specified medical conditions incurred by designated family members or the employee herself/himself.
    2. The 12 workweeks provided under FMLA leave may include a combination of sick leave, vacation leave, bonus leave, furlough leave, or leave without pay as described herein. Under certain conditions, short -term disability (Ref. Sec. 3.7.11 Disability Income Act) may be used during the 12-workweek FMLA term.
  2. Definitions:
    1. Parent − a biological or adoptive parent or an individual who stood in loco parentis (a person who is in the position or place of a parent) to an employee when the employee was a child.
    2. Child − a son or daughter who is under 18 years of age or is 18 years of age or older and incapable of self-care because of a mental or physical disability who is:
      1. a biological child;
      2. an adopted child;
      3. a foster child − a child for whom the employee performs the duties of a parent as if it were the employee's child;
      4. a step-child − a child of the employee's spouse from a former marriage;
      5. a legal ward − a minor child placed by the court under the care of a guardian; or
      6. a child of an employee standing in loco parentis
    3. Spouse − a husband or wife.
    4. Serious Health Condition –
      1. an illness, injury, impairment, or physical or mental condition that involves either inpatient care in a hospital, hospice, or residential medical care facility, or that involves continuing treatment by a health care provider;
      2. any period of incapacity requiring absence from work of more than three workdays that also involves continuing treatment by a health care provider; or
      3. Continuing treatment by a health care provider for conditions so serious that, if not treated, would likely result in an absence of more than three workdays. Prenatal care is also included. The period of actual physical disability associated with childbirth is considered a serious health condition and may be subject to family medical leave provisions, whether as paid or unpaid leave.
    5. Workweek − the number of hours an employee is regularly scheduled to work each week.
    6. Reduced Work Schedule – a work schedule involving fewer hours than an employee is regularly scheduled to work.
    7. Intermittent Work Schedule – a work schedule in which an employee works on an irregular basis and is taking leave in separate blocks of time, rather than for one continuous period of time, usually to accommodate some form of regularly scheduled medical treatment.
    8. 12-Month Period – a "rolling" 12-month period measured backward from the first date an employee uses any family and medical leave. Employees must be given 60 days notice of any change and must not lose any benefits because of a transition.
    9. FMLA – Family Medical Leave Act also referred to as the “type” of leave described in this section.
    10. Paid FMLA leave – FLMA leave where an employee uses accrued sick leave, vacation leave, bonus leave, or furlough leave to cover an absence and there is continued benefit coverage.
    11. Unpaid FMLA leave − Leave without pay and without accrual of employer-provided benefits, excluding health insurance benefits.
  3. Eligible Employees:
    1. Full-time Employees − an employee who has been employed with State government for at least 12 months and who has worked at least 1040 hours (half-time) during the previous 12-month period is entitled to a total of 12 workweeks, paid or unpaid, leave during any 12-month period for one or more of the reasons listed below:
      1. for the birth of a child and to care for the child after birth, provided the leave is taken within a 12-month period following birth;
      2. for the employee to care for a child placed with the employee for adoption, provided the leave is taken within a 12-month period following adoption;
      3. for the employee to care for the employee's child, spouse, or parent, where that child, spouse, or parent has a serious health condition; or
      4. because the employee has a serious health condition that makes the employee unable to perform the essential functions of the employee's position.
      Leave without pay beyond the 12-week period or for employees not covered under the Family and Medical Leave Act shall be administered under the Disability Income Plan (Sec. 3.7.11) or the Leave of Absence procedure (Sec. 3.7.6). Under the Leave of Absence procedure, the employee must pay for health and other benefits coverage. Employees should also refer to sections in this Manual regarding Vacation Leave (Sec. 3.7.1), Sick Leave (Sec. 3.7.2), and the Voluntary Shared Leave Policy (Sec. 3.7.10).
    2. Part-time Employees − This policy does not cover part-time employees where the maximum length of appointment is one year; however, if, by exception, a part-time employee is extended beyond one year, the employee shall be covered if he/she had worked at least 1250 hours during the previous 12-month period. Any leave granted to a part-time employee shall be without pay. This also applies to any other type of appointment that is not permanent, including intermittent, if the employee worked at least 1250 hours during the previous 12-month period.
    3. In cases where both spouses are employed by the College, where FMLA is sought for the birth and care of a newborn child, placement of a child for adoption, or to care for a parent who has a serious health condition, the amount of FMLA leave that may be taken may not exceed a combined total of 12 weeks.
  4. Leave Charges − It is the responsibility of the College to designate leave, as paid FMLA leave or unpaid FMLA leave, based on information provided by the employee. This must be done before the leave starts, or before an extension of leave is granted if the employee is already on leave. Pursuant to paragraph B-4 above, after three (3) days, the College may classify an employee who has a serious health condition as being on FMLA. The employee has the following options for charging leave:
    1. Birth − For the birth of a child, the employee shall exhaust available sick leave and may choose to exhaust available vacation leave and may choose to exhaust available vacation leave, or any portion, or go on leave without pay; except that sick leave may be used only during the period of physical disability. This applies to both parents. Only vacation leave or leave without pay may be used before and after the period of disability unless the sick leave policy becomes appropriate for medical conditions affecting the child or mother. The use of sick leave by the father, parent, or child of the mother, who is giving birth, may not be granted for the purpose of caring for a child or its mother, before or after the period of physical disability.
    2. Adoption − For the adoption of a child, the employee may choose to exhaust available vacation leave, or any portion, or go on leave without pay. Sick leave, up to 30 day, may be used at the discretion of the College (refer to Sec. 3.7.2.E Eligible Uses of Sick Leave).
    3. Illness of Child, Spouse, or Parent − For the illness of an employee's child, spouse, or parent, the employee shall exhaust available sick and may choose to exhaust vacation leave, or any portion, before going on leave without pay.
    4. Employee's Illness − For the employee's illness, the employee shall exhaust available sick leave and may choose to exhaust available vacation leave, or any portion, before going on leave without pay. If the illness extends beyond the 60-day waiting period required for short-term disability, the employee is required to exhaust the balance of all available leave before beginning to draw short-term disability benefits.
  5. Intermittent Leave or Reduced Work Schedule − In some cases intermittent leave or leave on a reduced work schedule is available where leave is taken in blocks of time or by reducing a normal weekly or daily work schedule. Such leave is available if medically necessary to care for a family member who has a serious health condition or because the employee has a serious health condition that makes the employee unable to work. Requests for intermittent leave will be considered on a case-by-case basis depending on the nature of the request and the College's operational needs. Pursuant to this policy, the employee may not take leave intermittently or on a reduced work schedule for childbirth and birth-related child care or for adoption.
  6. Employee Responsibility – In cases of birth, adoption, or planned medical treatment, the employee shall give 30 days advance written notice to the College for leave requested under this policy. The employee must explain the reasons for the needed leave so as to allow the College to determine that the leave qualifies under the Act. Failure to give such notice with no reasonable excuse for the delay may result in the College denying the taking of the FMLA leave until at least 30 days after the date the employee provides notice. If the employee will not return to work after the period of leave, the College shall be notified in writing. Failure to report at the expiration of the leave, unless an extension has been requested, may be considered as a resignation.
  7. Military Family Leave:
    1. Eligible employees are entitled to 12 weeks of unpaid leave because of any qualifying necessity (as defined by the US Secretary of Labor) arising out of the fact that the spouse, son, daughter, or parent of the employee is on active duty, or has been notified of an impending call to active duty status, in support of a contingency operation.
    2. An eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered service member who is recovering from a serious illness or injury sustained in the line of duty on active duty is entitled to up to 26 weeks of leave in a single 12-month period to care for the service member. Eligible employees are entitled to a combined total of 26 weeks of all types of FMLA leave.
    3. For the military family with both husband and wife working for the College, the leave entitlement would be a combined total of 26 weeks in a 12-month period.
  8. Certification − For leave pursuant to this policy, the College may require that a claim for leave because of adoption be supported by reasonable proof of adoption. The College may require that a claim for leave because of a serious illness of the employee or of the employee’s child, spouse, or parent be supported by a doctor's certification which includes the following:
    1. The date on which the serious health condition began.
    2. The probable duration of the condition.
    3. The appropriate medical facts regarding the condition.
    4. A statement that the leave is needed to care for the child, spouse, or parent, and an estimate of the amount of time that is needed; or that the employee is unable to perform the functions of the position, whichever applies.
    5. Where certification is necessary for intermittent leave for planned medical treatment, the dates on which the treatment is expected to be given and the duration of the treatment.
    Where the College has reason to doubt the validity of the certification, the College may require the employee to get the opinion of a second doctor designated or approved by the College. Where the second opinion differs from the opinion in the original certification provided, the College may require the employee to get the opinion of a third doctor designated or approved jointly by the College and the employee. The third opinion is final and is binding on the College and the employee. The College may require that the employee get subsequent recertification on a reasonable basis. The second and third certification and recertifications must be at the College's expense.
  9. Employment and Benefits Protection:
    1. Reinstatement − The employee shall be reinstated to the same position held when the leave began or one of like pay grade, pay, benefits, and other conditions of employment. The College may require the employee to report at reasonable intervals to the College on the employee's status and intention to return to work. The College also may require that the employee receive certification that the employee is able to return to work.
    2. Benefits − The employee shall be reinstated without loss of benefits accrued when the leave began. All benefits accrue during any period of paid leave; however, no benefits will be accrued during any period of leave without pay.
    3. Health Plan Benefits − The College shall maintain coverage for the employee under its group health plan for the duration of FMLA leave at the level and under the conditions coverage would have been provided if the employee had continued employment. Any share of health plan premiums that an employee had paid prior to leave must continue to be paid by the employee during the leave period. The obligation to maintain health insurance coverage stops if an employee’s premium payment is more than 30 days late. If the employee's failure to make the premium payments leads to a lapse in coverage, the College must still restore the employee. Upon return to work, to the health coverage equivalent to that the employee would have had if leave had not been taken and the premium payments had not been missed without any waiting period or preexisting conditions. The College may recover the premiums if the employee fails to return after the period of leave to which the employee is entitled has expired for a reason other than the continuation, recurrence, or onset of a serious health condition or other circumstances beyond the employee's control.
  10. Interference with Rights:
    1. Actions prohibited − It is unlawful to interfere with, restrain, or deny any right provided by this policy or to discharge or in any other manner discriminate against an employee for opposing any practice made unlawful by this policy.
    2. Protected Activity − It is unlawful to discharge or in any other manner discriminate against any employee because the employee does any of the following:
      1. Files any civil action, or institutes or causes to be instituted any civil proceeding under or related to this policy
      2. Gives, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided by this policy
      3. Testifies, or is about to testify, in any inquiry or proceeding relating to any right provided under this policy
  11. Enforcement − A violation of or denial of leave requested pursuant to the Family and Medical Leave Act of 1993 is not a contested case and creates no right of grievance or appeal under the State Personnel Act. Violations can result in any of the following or a combination of any of the following and are enforced by the U.S. Secretary of Labor:
    1. U.S. Department of Labor investigation;
    2. Civil liability with the imposition of court cost and attorney's fees; or
    3. Administrative action by the U. S. Department of Labor 
  12. Posting Requirement and Notice Provisions − Agencies are required to post and keep posted, in a conspicuous place, a notice explaining the FMLA provisions and providing information concerning the procedures for filing complaints of violations of the Act with the U.S. Department of Labor, Wage and Hour Division. Copies of the required notice may be obtained from local offices of the Wage and Hour Division. In addition, when an employee provides notice of the need for FMLA leave, the College shall provide the employee with notice detailing the specific expectations and obligations of the employee and explaining the consequences of a failure to meet these obligations.

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