The Family and Medical Leave Act (FMLA), which became law in 1993, requires educational employers, including both public and private colleges and universities, to provide generally unpaid leave for covered faculty and staff to care for their medical needs and those of specified family members. Moreover, insofar as there are no special provisions for institutions of higher learning, they are subject to all of the FMLA’s requirements, including those for record keeping, except that special rules apply to instructional employees of K–12 schools who wish to take leave near the end of school terms (29 C.F.R. § 825.600a). The FMLA defines covered employers, including public agencies such as institutions of higher learning, as those engaged in commerce or industry with 50 or more eligible employees each working day during 20 or more calendar weeks in the current or preceding calendar year.
In order to be covered by the FMLA, faculty and staff members, regardless of whether they work on a full- or part-time basis, must have been employed by their colleges or universities for at least 12 months, providing at least 1,250 hours of service during the year immediately preceding the start of leave. As noted below, subject to greater protections that they may have under other federal or state laws or collective bargaining contracts, individuals are entitled to 12 weeks of unpaid leave during any 12-month period as provided for in the FMLA policies adopted by their institutions. If colleges and universities offer paid leave for fewer than 12 weeks, then the remainder of leaves may be without pay. Even so, if individuals have accrued paid vacation, personal, or family leave, they may elect, or employers may require, these to be substituted for unpaid leave. If institutional leave plans do not allow for substitutions, then they are not permitted.
When college and university officials create oneyear policies, they may use the calendar year, any 12-month leave period such as a fiscal year, or a 12-month span measured forward or backward from the first FMLA leave date. Institutions may modify their policies as long as they afford workers 60 days’ notice.
Types of FMLA Leave
Faculty and staff at colleges and universities can request FMLA leave under two broad categories. The first type of FMLA leave, child care, covers the birth, adoption, or foster care assumption of a child within 12 months of the event. The second kind of FMLA leave, a “serious health condition,” pertains to the illnesses of spouses, children, or parents, or one rendering employees unable to perform their own job functions (29 C.F.R. § 2612 (1)(D)). The FMLA defines a serious health condition as one requiring treatment from or under the direction of health care providers such as doctors of medicine and osteopathy, podiatrists, dentists, clinical psychologists, optometrists, and nurse practitioners. The three categories of serious health conditions are those requiring inpatient care; those necessitating absences from work, school, or other daily activities in order to obtain continuing treatment; and those including prenatal care or continuing treatments for chronic or long-term conditions that are incurable or so serious that if left untreated would likely result in incapacities for more than three days. In a case from a noneducational setting that is relevant to institutions of higher learning, a federal trial court in Pennsylvania rejected the claim of a pharmacy technician that her single medical treatment for bronchitis met the definition of a chronic health condition. The court granted the employer’s motion for summary judgment in the face of the plaintiff’s claim that her employment was terminated in retaliation for seeking FMLA leave (Phinizy v. Pharmacare, 2008).
Faculty and staff members may take leave for 12 consecutive weeks or may seek intermittent or reduced leave. Intermittent leave is taken in separate blocks of time for single illnesses or injuries rather than over continuous periods of time. Reduced leave occurs when employees seek changes to part-time or flexible scheduling after childbirth. In the event that this occurs, officials at colleges and universities may temporarily transfer qualified employees, typically those other than faculty and instructional personnel, as long as there are no reductions in salary and benefits. Spouses who work for the same institution may take up to 12 weeks each for childbirth or to care for sick parents, and each may take 12 weeks of unpaid leave to look after children who are ill.
Notice and Certification
Individuals who request FMLA leave for child care or serious medical conditions must provide 30 days’ notice or as much as is practicable. Individuals who request FMLA leave for foreseeable treatments due to serious medical conditions must make reasonable efforts to schedule them so as not to cause undue disruptions at work. While FMLA leave policies are free to waive notice requirements, if such provisions remain in effect but employees do not comply, employers may deny leave requests for up to 30 days so they have time to get replacement workers to meet institutional requirements.
Officials at colleges and universities may require certification from health care providers before granting FMLA leaves. Certification should include the dates when conditions started, their likely duration, and statements of inability to perform job functions. Leaves to care for family matters should include estimates of how long individuals will be absent while providing care. If institutional officials doubt the validity of certifications, they may, at their own expense, obtain second opinions. If the two opinions conflict, institutional officials may seek a third, again at their own expense, from a health care provider that is mutually acceptable to both parties. A third opinion binds both parties.
Faculty and staff members who are asked to provide certification must be given at least 15 days to comply. Institutional officials may seek recertification at reasonable intervals of not less than 30 days. If employees request extensions or are unable to return to work after 30 days, or if employers doubt the continuing validity of certifications, they need not wait 30 days before seeking to be recertified for leave. In order to address circumstances of this nature, FMLA leave policies should address consequences for employees who fail to provide certification of the reasons for their absences.
Subject to the conditions identified below, institutions of higher learning must continue to provide preexisting group health plans to employees who are on leave on the same basis as if the employees had worked continuously. Moreover, faculty and staff members are entitled to new plans, benefits, or changes in group coverage to the same extent as if they were not on leave, along with notification of any opportunities to change plans or benefits.
If institutional health care plans require faculty and staff members to contribute to the cost of their insurance premiums, FMLA leave policies should include terms on how payments will be made during absences. If employers choose not to pay premiums for employees on leave, they have two options: They can either continue making payments to keep absent employees’ policies active and collect from employees when the employees return to work, or they may discontinue coverage after 30 days. If coverage for health lapses while they are away from work, returning faculty and staff members are entitled to reinstatement without qualifying periods. If individuals fail to return to work due to serious health conditions or situations beyond their control, employers may not recover contributions that they made for health care. Institutional employers may seek reimbursements from faculty and staff members who do not return to work due to changing their jobs.
Return to Employment
The key protection available under the FMLA is that employees returning from leaves must be restored to their same or similar positions with equivalent pay and benefits. Still, if institutional employers have good faith reasons to eliminate the jobs of individuals who are on leaves and do not act out of retaliation, then, subject to proving that they acted with proper motives, positions may be terminated. At the same time, as reflected by a case from the Tenth Circuit in which an employee was dismissed for poor job performance, the court held that she was not entitled to relief on her claim that officials fired her in retaliation for her for having requested, and taken, FMLA leave (Gray v. Baker, 2005).
Officials at colleges and universities may require faculty and staff members to provide certification of fitness to return to work following FMLA leave. Returning employees who are no longer qualified to perform their jobs must ordinarily be afforded reasonable opportunities to meet new standards. Even so, a case from New York highlights the fact that the FMLA, in a manner that is similar to that of the Americans with Disabilities Act, does not confer an absolute right to return to employment, especially if individuals cannot meet basic job requirements due to circumstances such as having to deal with substance abuse problems. The court ruled that because a former nurse at a university hospital was unable to perform essential job functions when she returned to work after completing an approved FMLA leave to deal with her substance abuse problem, she was not entitled to reinstatement (Geromanos v. Columbia University, 2004).
Along with protecting employees from being fired for claiming their rights, the FMLA requires employers to make, keep, and preserve records demonstrating their compliance. To this end, the Department of Labor has an annual right to review the FMLA records of employers and may examine them more frequently if necessary to investigate alleged violations.
Faculty and staff members who allege that their rights have been violated may file suit in federal or state court within two years of alleged violations. Individuals who can prove that officials at their colleges or universities willfully or intentionally failed to comply with the FMLA have three years within which to file suit. Institutions that violate the FMLA may have to reinstate or promote employees and may be liable for up to 12 weeks of wages, benefits, and reasonable attorney fees. However, in at least one case, a federal trial court in Mississippi rejected the FMLA claim of a medical technologist who had been employed by a university on the basis that the Eleventh Amendment barred her claim for alleged violations of the statute’s self-care provisions (Bryant v. Mississippi State University, 2004). The court explained that while claims are viable for caring for family members, they may not proceed for self-care under the Eleventh Amendment.
Of course, nothing in the FMLA is meant to supersede any greater leave protections that employees at colleges and university may have received subject to collective bargaining agreements (29 C.F.R. § 825.700), state law (29 C.F.R. § 825.701), or federal and state anti-discrimination laws (29 C.F.R. § 825.702).
Charles J. Russo
- Americans with Disabilities Act, 42 U.S.C.A. §§ 12101 et seq.
- Bryant v. Mississippi State University, 329 F. Supp. 2d 818 (N.D. Miss. 2004).
- Code of Federal Regulations, as cited.
- Family and Medical Leave Act, 29 U.S.C.A. §§ 2601 et seq.
- Geromanos v. Columbia University, 322 F. Supp. 2d 420 (S.D.N.Y. 2004).
- Gray v. Baker, 399 F.3d 1241 (10th Cir. 2005).
- Phinizy v. Pharmacare, 569 F. Supp. 2d 512 (W.D. Pa. 2008).