Staff Policies (601T)

Oct. 4, 2011

601T
New 10/2011

KANSAS ATHLETICS STAFF: FAMILY MEDICAL LEAVE

Family Medical Leave Act (FMLA)

As further defined below, Kansas Athletics provides “eligible” employees with a job-protected leave of absence from active employment for certain family or medical reasons, and/or certain military family reasons.

Eligible Employees: Employees eligible for family and medical leave and/or military family leave (“FMLA”) are those who: (a) have been employed by Kansas Athletics for at least twelve (12) months, although the twelve (12) months need not be consecutive; and (b) have worked at least 1,250 hours during the twelve (12) month period preceding the date the leave commences.

A. FMLA Leave: An eligible employee may take up to a maximum of twelve (12) weeks of FMLA leave in a rolling 12-month period looking backward from the date of the leave relating to any one or a combination of the following reasons:

  • For the birth of the employee’s child and to care for the employee’s child after birth, or for the placement of a child with the employee for adoption or foster care and to care for the child thereafter.
    • Leave for the birth or placement of a child for adoption or foster care must be taken within twelve (12) months from the date of the birth or placement, and leave taken for these reasons must be taken in one continuous period (i.e., not on an intermittent basis).
    • Where two eligible spouses both work for Kansas Athletics, Kansas Athletics may require them to use a combined total of twelve (12) weeks between them. The proportion by which the spouses share the combined twelve (12) week period would be determined by the spouses.
  • To care for the employee’s spouse, child, or parent, who has a serious health condition.
  • Because of the employee’s own serious health condition, including but not limited to the employee’s own pregnancy, or a qualifying work-related illness or injury, which makes the employee unable to perform his/her job.
  • For any “qualifying exigency” arising out of the fact that the employee’s spouse, son or daughter (of any age), or parent is a member of any branch of the Armed Forces (including the National Guard or Reserves) and who was deployed or called to active duty in a foreign country.
  • Kansas Athletics uses the definition of “qualifying exigency” set forth in the applicable federal regulations, but in summary, a “qualifying exigency” must fall into at least one of the following 8 categories:
  1. “Short Notice Deployment.” An eligible employee will receive up to seven (7) days’ leave for a short notice deployment (i.e. when the covered military member receives notice of an impending call or order to active duty with seven or fewer calendar days’ notice before the deployment date);
  2. To attend certain military events and related activities;
  3. To address childcare and school activities related to the call to duty or call to active duty status;
  4. To make financial and legal arrangements related to the call to active duty or call to active duty status;
  5. To attend counseling for the covered military member or a qualifying family member, which counseling must be provided by someone OTHER THAN a health care provider for the employee himself or herself, and further provided the need for counseling relates to the call to active duty or call to active duty status;
  6. To be absent for up to five (5) days per instance to spend time with a covered military member for short-term, temporary rest and recuperation leave during a period of deployment;
  7. To attend certain post-deployment activities (generally within 90 days of the termination of the military member’s active duty status); or to address issues that arise from a covered military member’s death while on active duty status;
  8. To pursue other activities related to the call to active duty or call to active duty status Kansas Athletics and the employee mutually agree i) qualify as exigencies; and ii) about which Kansas Athletics and the employee agree on the leave’s timing and duration.

    B. Military Caregiver Leave: An eligible employee who is the spouse, son, daughter, parent or next of kin of a “covered servicemember” in the regular armed forces, the National Guard or Reserves who is undergoing medical treatment, recuperation, or therapy, or is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness relating to that covered servicemember’s covered service, including any injury or illness that existed before the beginning of the member’s active duty and was aggravated by service in line of duty on active duty in the Armed Forces, may take up to a maximum of twenty-six (26) weeks of “Military Caregiver Leave” in a single 12-month period starting on the first day the eligible employee takes such Military Caregiver leave, and ending twelve (12) months later, to care for the servicemember.

    The term “covered servicemember” as used in the preceding paragraph, also includes veterans who were members of the Armed Forces (including the National Guard or Reserves) at any point in time within five (5) years preceding the date on which the veteran undergoes medical treatment, recuperation, or therapy. In the case of veteran covered servicemembers, a “serious health condition” includes any injury or illness that was incurred by the member in the line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that manifested itself before or after the member became a veteran.

    • When two eligible spouses both work for Kansas Athletics, Kansas Athletics may require them to use a combined total of twenty-six (26) weeks between them to take Military Caregiver Leave. The proportion by which the spouses share the combined twenty-six (26) week period would be determined by the spouses.

    C. Length or Amount of Leave:

    • An eligible employee under Section A above may receive a maximum total of twelve (12) weeks of FMLA leave within a rolling twelve (12) month period (i.e., the immediately preceding 365-day period looking backward from the date of commencement of the leave). When it is apparent to Kansas Athletics that a leave qualifies for FMLA leave, it will be counted as FMLA and will be deducted from an eligible employee’s 12-week leave period. In the case of a mutually-agreed “qualifying exigency” that is not specifically provided for under categories 1-8 of the qualifying exigency section above, all such mutually-agreed leave will be counted as FMLA and will be deducted from an eligible employee’s 12-week leave period
    • An eligible employee under Section B above may receive a maximum total of twenty-six (26) weeks of Military Caregiver Leave under the FMLA in a single twelve (12) month period starting on the first day the eligible employee takes such Military Caregiver leave, and ending twelve (12) months later. Where it is apparent to Kansas Athletics that a leave qualifies as Military Caregiver Leave, it will be counted as FMLA and will be deducted from an eligible employee’s 26-week Military Caregiver Leave period.
    • Any absence or leave of absence that qualifies for leave under the FMLA that also qualifies for leave (with or without pay) under other Kansas Athletics Policies (e.g., short-term disability leave, long-term disability leave, workers’ compensation leave, vacation time), will be counted as FMLA leave, and will be deducted from an employee’s leave allotment under this policy and the FMLA.
    • An employee who fails to return to work immediately following expiration of the authorized leave period, or who remains on leave for more than the applicable FMLA allotment, may be subject to termination under Kansas Athletics regular attendance and/or leave of absence policies.

    D. Employee’s Notification To Kansas Athletics:

    • Any employee needing FMLA leave must follow Kansas Athletics (and/or the employee’s Department’s) usual and customary call-in procedures, absent unusual circumstances that prevent the employee from doing so. When no unusual circumstances justify such a failure, FMLA protection for the absence may be delayed or denied.
    • Merely calling in “sick” without providing more information is not sufficient to trigger FMLA coverage for that absence, and such an absence may be subject to Kansas Athletics regular attendance and absenteeism policies and guidelines.
    • Employees are obligated to respond to Kansas Athletics questions designed to determine whether a particular absence is potentially FMLA-qualifying. Failure to respond to Kansas Athletics reasonable inquiries regarding a leave request may result in denial of that request if Kansas Athletics cannot determine whether the leave is FMLA-qualifying.
    • When the need for leave is foreseeable at least 30 days in advance, an employee who expects or anticipates taking leave provided under this Policy must notify Kansas Athletics of the date of the commencement and the expected duration of the leave at least thirty (30) days in advance of the leave. If the need for leave is foreseeable but with less than 30 days’ notice to the employee, the employee must notify Kansas Athletics of the need for the leave as soon as is practicable. Upon written request by Kansas Athletics, the employee shall explain why the 30 days’ notice is/was not practicable. In cases where the need for leave is foreseeable, an employee’s failure to provide such advance notice may result in denial or postponement of the leave.
    • An employee requesting foreseeable leave under this policy should submit a completed “Request for a Leave of Absence” form to the Director of Human Resources. Forms are available through the Director of Human Resources.
    • When leave is not foreseeable, the employee is still required to meet the regular call-in procedures, absent unusual circumstances that prevent the employee from doing so. In the event of such unusual circumstances, the employee is required to provide notice of the absence as soon as possible under those unusual circumstances. Failure to give notice of the need for leave as soon as possible may result in a denial or postponement of the leave.
    • When an employee seeks leave for a recurrence of an FMLA-qualifying reason for which Kansas Athletics has previously approved FMLA-protected leave, the employee must specifically reference the qualifying reason for the leave, or the need for “FMLA” leave, by name. If the employee has been previously certified for more than one FMLA-qualifying reason, the employee must inform the Director of Human Resources for which qualifying reason the particular leave is needed. Failure to provide such necessary information and/or to respond to Kansas Athletics inquiries to gather such necessary information may result in denial of FMLA protection if Kansas Athletics is unable to determine the FMLA’s applicability to the particular absence.
    • Employees who anticipate the possibility of taking family or medical or military family leave, or who have any questions about the application of this policy to their particular situation, are encouraged to contact the Director of Human Resources.

    E. Obligation of Honesty and Good Faith:

    • As with all dealings between employees and Kansas Athletics, employees are expected to provide truthful information to Kansas Athletics at all times. An employee who intentionally misrepresents facts or otherwise fraudulently obtains or continues leave under this Policy will be subject to corrective action, up to termination.

    F. Certification:

    • If an employee takes a leave of absence because of the serious health condition of the employee or the employee’s covered family member, or for Military Caregiver Leave, or for a qualified exigency relating to a covered military member’s active duty or call to active duty status, or for the birth or placement of the associate’s child, Kansas Athletics requires the employee to submit to the Director of Human Resources a written certification demonstrating the need for the leave. The certification required will depend on the reason for the requested leave. The employee must provide this certification within fifteen (15) calendar days of receipt of Kansas Athletics request. Failure to provide such certification timely may result in a denial or delay of leave, and may subject the employee to discipline and termination for excessive absenteeism under Kansas Athletics attendance policies.
    • If an employee takes a leave of absence because of the serious health condition of the employee or the employee’s covered family member (other than Military Caregiver Leave), Kansas Athletics reserves the right to require a second (and possibly a third) opinion from another health care provider (at Kansas Athletics’ expense) certifying the serious health condition of the employee or the employee’s covered family member.
    • For leaves taken because of the employee’s own serious health condition, or the serious health condition of a covered family member, Kansas Athletics reserves the right to require periodic re-certification under appropriate circumstances.
    • If an employee seeks leave because of a qualifying exigency that involves meeting with a third party, the Director of Human Resources may contact the individual or entity with whom the employee is meeting for purposes of verifying a meeting or appointment schedule and the nature of the meeting between the employee and the specified individual or entity. The Director of Human Resources may contact an appropriate unit of the Department of Defense to request verification that a covered military member is on active duty or call to active duty status.
    • During the employee’s leave, Kansas Athletics may also periodically inquire of the employee, or the employee may be required to periodically report to Kansas Athletics, as to the employee’s intent to return to work and the expected return to work date.
    • Return to Work Certification. As a condition of restoring an employee whose leave was occasioned by the employee’s own serious health condition, Kansas Athletics requires all employees who take such leave to obtain and present certification to the Director of Human Resources from the employee’s health care provider that the employee is able to resume work. The employee has the same obligations to participate and cooperate (including providing a complete and sufficient certification or providing sufficient authorization to the health care provider to provide the information directly to Kansas Athletics) in the fitness-for-duty certification process as in the initial certification or recertification processes.
      • The certification from the employee’s health care provider must certify that the employee is able to resume work. Kansas Athletics requires that the certification specifically address the employee’s ability to perform the essential functions of the employee’s job. Kansas Athletics will provide an employee with a job description of the employee’s job to be used for this purpose. The employee’s health care provider must certify that the employee can perform the identified essential functions of his or her job. The cost of the certification (and any time or travel costs spent securing the certification) are the employee’s responsibilities. Kansas Athletics may delay the employee’s restoration to employment until an employee submits an authentic and sufficient fitness-for-duty certification.
    • It is the employee’s responsibility either to furnish a complete and sufficient certification or to furnish the health care provider providing the certification with any necessary authorization from the employee or the employee’s family member for the health care provider to release a complete and sufficient certification to Kansas Athletics to support the employee’s FMLA request. This requirement applies in any case where Kansas Athletics requests a certification, whether it is the initial certification, a recertification, a second or third opinion, or a fitness for duty certificate, including any clarifications necessary to determine if such certifications are authentic and sufficient.

    G. Benefits:

    During FMLA leave, Kansas Athletics shall maintain the employee’s health coverage under any group health plan on the same terms as if the employee had continued to work. The employee will remain personally responsible for paying the employee’s portion of the health care and/or dental premium equivalents.

    Use of FMLA leave cannot result in the loss of any employment benefit that accrued prior to the start of an employee’s leave.

    H. Paid Benefits During Leave:

  9. During a family or medical or military family leave provided under this policy, an employee will be required to use accrued paid leave benefits in the following order: sick leave, discretionary and holiday leave, and vacation leave. In addition, employees will receive their earned paid leave, and the leave will also be considered protected FMLA leave and counted against the employee’s FMLA leave allotment. Any remaining leave under this Policy will be unpaid. In no event, however, will an employee receive more than the FMLA allotment available (generally twelve (12) weeks of FMLA leave in a rolling 12-month period, or in the case of Military Caregiver Leave, 26 weeks in a single 12-month period looking forward, starting on the first day the eligible employee takes such Military Caregiver leave).
  10. In the case of the birth or placement of a child by adoption or foster care, when the employee is not giving birth (i.e. time used for “baby bonding”), the employee will not be permitted to take sick leave and instead will be required to exhaust all earned vacation leave before the remainder of the leave becomes unpaid. Where an eligible employee is giving birth, the portion of the leave attributable to the pregnancy and/or birth, as distinguished from baby bonding time, is treated as the employee’s own serious health condition, and pay is administered as described in the sections regarding the employee’s own serious health condition above. Additional baby bonding time off (if any) taken by the birthing mother will then be treated as outlined in this paragraph.
  11. Once paid benefits are exhausted, unless the absence relates to the employee’s own work-related serious health condition, and therefore may qualify for workers’ compensation benefits, the leave will be unpaid.
  12. In the case of an employee’s own serious health condition that is job-related, any qualification period that must be exhausted before the employee qualifies for worker’s compensation will be deducted first from the employee’s earned sick, then discretionary or holiday, and then vacation leave (if any), in that order. The employee will next receive any workers’ compensation benefits for which the employee qualifies. When Kansas Athletics and the employee agree to do so, the employee may use a portion of accrued unused sick, then vacation leave (if any) in that order to make up the difference between worker’s compensation benefits and the employee’s regular base pay at the percentage necessary to make the employee “whole.” In no event may an employee receive more than his/her regular base pay through this supplemental use of sick or vacation leave. If no sick or vacation leave is available or is exhausted, the employee will receive only the worker’s compensation benefits (if any) for which the employee qualifies under applicable worker’s compensation statutes. If the leave continues beyond that which is compensated by workers’ compensation benefits, deduction from any earned sick then vacation leave(if any), in that order, will resume until all earned sick then vacation leave is exhausted. If worker’s compensation, sick and vacation leave are exhausted before the FMLA leave is exhausted, the leave becomes unpaid. If the absence continues beyond the twelve (12) week FMLA period, the employee may continue to receive workers’ compensation benefits, but the FMLA leave will be exhausted as of twelve (12) weeks.
  13. Whether intermittent or continuous leave, qualifying absences attributable to the serious health condition of the employee’s covered family member, or for the qualifying exigency arising out of the covered military member’s being called to active duty or active duty status, or for Military Caregiver Leave, will be deducted from any earned sick (to the extent available under Kansas Athletics’ sick leave policy for the reason occasioning the absence) then vacation leave (if any). After earned unused sick and vacation leave is exhausted, the leave will be unpaid.
  14. All absences that qualify as FMLA leave will count against an employee’s twelve- (12) or twenty-six- (26) week allotment (whichever is applicable), whether or not the employee is concurrently eligible for and receives pay through another source (such as disability, workers’ compensation, sick, or vacation leave) during part or all of his/her FMLA-qualifying absence.
  15. During the leave, an employee will accrue additional sick and vacation leave during any paid portion of the leave, but the employee will not accrue additional sick and vacation leave during any unpaid portion of the leave.

    I. Intermittent or Reduced-Schedule Leave:

  16. Leave taken because of the employee’s or a covered family member’s serious health condition, or for Military Caregiver Leave, may be taken on an intermittent or reduced-schedule basis when medically necessary. When the intermittent leave is needed for planned medical treatment, the employee must make a reasonable effort to schedule the treatment so as not to disrupt unduly Kansas Athletics’ operations. If an employee seeks leave on an intermittent or reduced-schedule basis, the employee will be required to submit a medical certification, as discussed above, which includes specific certification from the health care provider that the intermittent or reduced-schedule leave is medically necessary, and the likely duration and frequency of the episodes of incapacity necessitating the intermittent leave.
  17. When the intermittent leave is needed for planned medical treatment, Kansas Athletics may require an employee taking intermittent or reduced-schedule leave to transfer temporarily to an alternative available position for which the employee is qualified, with the same pay and benefits, or may temporarily modify the employee’s current position, to better accommodate the employee’s intermittent periods of leave.

  18. Leave taken because of a “qualifying exigency” arising out of the fact that the employee’s spouse, son, daughter, or parent is on active duty or has been notified of an impending call or order to active duty in support of a contingency operation as a member of the National Guard or Reserves, may be taken intermittently, so long as the employee has provided appropriate notice and certification, as discussed above.

    J. Compliance with Instructions and Restrictions:

    • While on leave for the employee’s own serious health condition, the employee is required to comply with any instructions given by the employee’s health care professional and/or any restrictions placed on the employee’s activities, and not to perform activities inconsistent with those instructions or restrictions. Engaging in activities inconsistent with any restrictions or instructions from the health care provider may result in denial of the leave and/or discipline up to and including termination of employment.
    • While on leave, the employee is prohibited from performing services for Kansas Athletics, including but not limited to, checking and/or responding to voice mail and e-mail.

    K. Job Restoration:

    • Upon return from family or medical leave within the time allotted and upon providing any release to return to work required in accordance with this policy (see the Certification section of this Policy, above), the employee generally will be returned to the same or an equivalent position with no loss of pay or benefits that accrued prior to the leave of absence. Kansas Athletics may, however, deny job restoration to an employee if s/he can no longer perform the job, with or without reasonable accommodation; or if his/her job or position would otherwise have been eliminated; or if the employee would have been terminated if the employee had remained actively at work. Employees on approved leave status other than military leave (including FMLA leave) are subject to reduction in force the same as all other employees, based on the same (non-leave-related) criteria applied to all other employees.
    • Additionally, under certain circumstances, certain “key employees” (defined as salaried, exempt employees who are among the highest paid ten (10) percent of Kansas Athletics’ employees) may not be eligible to be restored to the same or an equivalent job at the conclusion of their leave. If applicable, Kansas Athletics will notify such employees of their “key employee” status and the conditions under which job restoration may be denied.
    • To allow Kansas Athletics to make adequate scheduling arrangements and have work available for the employee upon returning to work, the employee must give at least 48 hours advance notice of his/her intent to return to work. Before being returned to work, an employee who is on a leave of absence as a result of his or her own serious health condition must also submit to the Director of Human Resources a health care provider’s written certification that the employee is able to return to work (see the Certification section of this Policy, above). Failure to provide such certification may result in the delay or postponement of the employee’s return to work and/or the assessment of unauthorized absence(s).
    • An employee who does not return to work at the end of an authorized leave period or after exhausting his/her allotment under this policy and the FMLA may be subject to termination.

    L. Non-Discrimination:

    Kansas Athletics does not discriminate against employees or prospective employees who use FMLA leave or who exercise their rights under the FMLA. Additionally, Kansas Athletics does not consider the taking of FMLA leave to be a negative factor when making any employment decision, including but not limited to hiring, evaluation, promotion, demotion, transfer, selection for position elimination or Reduction in Force, or disciplinary action.

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