Family and Medical Leave Policy
(with Acknowledgment)Family and Medical Leave Policy

The Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. The terms used in this policy are defined in the FMLA, as amended, and applicable regulations. A summary of rights under the FMLA prepared by the United States Department of Labor (DOL Form WH 1420) is attached to this policy as Appendix A.

• I. Eligibility for Family and Medical Leave 

  • Employees who meet all of the following criteria are entitled to family and medical leave:

    • • They have worked for the Company for at least 12 months (not necessarily consecutively)

    • • They work at a location with 50 or more employees within 75 miles

    • • They have worked at least 1,250 hours during the 12-month period immediately prior to the requested leave

  • A. Family and Medical Leave in Blocks of Time up to 12 Weeks 

    • An eligible employee is entitled to a total of 12 workweeks of unpaid leave during each rolling 12-month period, measured backward from the date of the employee's first leave, for:

      • 1.

         The birth of, adoption of, or placement for foster care with the employee of, a child, and bonding with such child:

        • (a)

           Employees must take leave during the 12-month period following the birth, adoption, or placement.

        • (b)

           Spouses who are both employed by the Company will be entitled to a combined total of 12 weeks of leave for this event.

      • 2.

         A serious health condition of the employee or a qualifying family member (i.e., spouse, parent, son, or daughter) if the employee is needed to care for such family member

        • (a)

           A "son or daughter" is defined as a biological, adopted, or foster child, a stepchild, or a legal ward of a person standing in loco parentis who is either under 18 or over 18 and incapable of self-care because of a mental or physical disability.

        • (b)

           A "parent" is defined as a biological, adoptive, foster, or stepfather or mother, or any other individual who stood in loco parentis to the employee.

        • (c)

           A "serious health condition" is an illness, injury, impairment, or physical or mental condition that involves either in-patient care or continuing treatment by a health care provider.

        • (d)

           "Continuing treatment" includes:

          • (i)

             Two or more treatments by a health care provider, plus incapacity for at least three full, consecutive calendar days

          • (ii)

             Prenatal care

          • (iii)

             Treatment for chronic conditions

          • (iv)

             Continuing health care supervision for permanent or long-term conditions

          • (v)

             Multiple treatments for certain conditions that could cause incapacity for at least three full, consecutive calendar days

      • 3.

         Qualifying exigencies arising out of the active duty or call to active duty of a spouse, son, daughter, or parent during his or her deployment to a foreign country with the Armed Forces or their reserve components in a contingency operation

        • (a)

           For purposes of qualifying exigency leave, a "son or daughter" need not be under 18 nor incapable of self-care.

        • (b)

           "Qualifying exigencies" include:

          • (i)

             Addressing issues arising out of short-notice deployment

          • (ii)

             Attending official military events, family assistance programs, or briefings

          • (iii)

             Arranging childcare or education for, providing emergency childcare for, or attending school-related meetings about a child, legal ward, or stepchild of the military member

          • (iv)

             Arranging care or providing emergency care for the military member's parent if the parent is incapable of self-care

          • (v)

             Conducting or updating financial or legal affairs to address the absence of a covered military member

          • (vi)

             Attending counseling provided by someone other than a health care provider for oneself, the military member, or the child, legal ward, or stepchild of the military member

          • (vii)

             Spending up to fifteen calendar days with the military member during short-term rest leave

          • (viii)

             Attending official ceremonies or programs sponsored by the military for up to ninety days after a covered military member's active duty terminates or addressing issues arising from the death of a covered military member while on active duty

      Drafting Note

      Drafting Note to Paragraph I.A.

      You should specify the method that the employer will use to calculate the 12-month period to avoid allegations that the employee was not aware of the method of calculation or the employer did not designate the method of calculation in advance. See Bachelder v. American Airlines, 259 F.3d 1112, 1127-1129 (9th Cir. 2001). If the employee or his or her family member has a chronic health condition, the rolling backward 12-month period method provided in this paragraph most advantages the employer, as it subtracts from the 12-week entitlement any leave that the employee has already taken during the prior 12-month period. The calendar-year method (see Alternate Paragraph I.A. herein) benefits the employee most, because an employee could take an FMLA leave for the last 12 work weeks in Year 1 and be entitled to FMLA leave for another 12 work weeks beginning January 1 of Year 2. For more information on calculating FMLA entitlements, see FMLA Leave: Guidance for Employers and Employees.

      For information on mental health conditions and psychiatric disabilities in the workplace, see Mental Health Issues at Work.

      Alternate Clause

      Alternate Paragraph I.A.:

      An eligible employee is entitled to a total of 12 workweeks of unpaid leave during each calendar year for:

      • 1.

         The birth of, adoption of, or placement for foster care with the employee of, a child, and bonding with such child:

        • (a)

           Employees must take leave during the 12-month period following the birth, adoption, or placement.

        • (b)

           Spouses who are both employed by the Company will be entitled to a combined total of 12 weeks of leave for this event.

      • 2.

         A serious health condition of the employee or a qualifying family member (i.e., spouse, parent, son, or daughter) if the employee is needed to care for such family member

        • (a)

           A "son or daughter" is defined as a biological, adopted, or foster child, a stepchild, or a legal ward of a person standing in loco parentis who is either under 18 or over 18 and incapable of self-care because of a mental or physical disability.

        • (b)

           A "parent" is defined as a biological, adoptive, foster, or stepfather or mother, or any other individual who stood in loco parentis to the employee.

        • (c)

           A "serious health condition" is an illness, injury, impairment, or physical or mental condition that involves either in-patient care or continuing treatment by a health care provider.

        • (d)

           "Continuing treatment" includes:

          • (i)

             Two or more treatments by a health care provider, plus incapacity for at least three full, consecutive calendar days

          • (ii)

             Prenatal care

          • (iii)

             Treatment for chronic conditions

          • (iv)

             Continuing health care supervision for permanent or long-term conditions

          • (v)

             Multiple treatments for certain conditions that could cause incapacity for at least three full, consecutive calendar days

      • 3.

         Qualifying exigencies arising out of the active duty or call to active duty of a spouse, son, daughter, or parent during his or her deployment to a foreign country with the Armed Forces or their reserve components in a contingency operation

        • (a)

           For purposes of qualifying exigency leave, a "son or daughter" need not be under 18 nor incapable of self-care.

        • (b)

           "Qualifying exigencies" include:

          • (i)

             Addressing issues arising out of short-notice deployment

          • (ii)

             Attending official military events, family assistance programs, or briefings

          • (iii)

             Arranging childcare or education for, providing emergency childcare for, or attending school-related meetings about a child, legal ward, or stepchild of the military member

          • (iv)

             Arranging care or providing emergency care for the military member's parent if the parent is incapable of self-care

          • (v)

             Conducting or updating financial or legal affairs to address the absence of a covered military member

          • (vi)

             Attending counseling provided by someone other than a health care provider for oneself, the military member, or the child, legal ward, or stepchild of the military member

          • (vii)

             Spending up to fifteen calendar days with the military member during short-term rest leave

          • (viii)

             Attending official ceremonies or programs sponsored by the military for up to ninety days after a covered military member's active duty terminates or addressing issues arising from the death of a covered military member while on active duty

      Second Alternate Paragraph I.A.:

      An eligible employee is entitled to a total of 12 workweeks of unpaid leave during each [fiscal or employee's anniversary] year beginning [month] [day] and ending [month] [day] for:

      • 1.

         The birth of, adoption of, or placement for foster care with the employee of, a child, and bonding with such child:

        • (a)

           Employees must take leave during the 12-month period following the birth, adoption, or placement.

        • (b)

           Spouses who are both employed by the Company will be entitled to a combined total of 12 weeks of leave for this event.

      • 2.

         A serious health condition of the employee or a qualifying family member (i.e., spouse, parent, son, or daughter) if the employee is needed to care for such family member

        • (a)

           A "son or daughter" is defined as a biological, adopted, or foster child, a stepchild, or a legal ward of a person standing in loco parentis who is either under 18 or over 18 and incapable of self-care because of a mental or physical disability.

        • (b)

           A "parent" is defined as a biological, adoptive, foster, or stepfather or mother, or any other individual who stood in loco parentis to the employee.

        • (c)

           A "serious health condition" is an illness, injury, impairment, or physical or mental condition that involves either in-patient care or continuing treatment by a health care provider.

        • (d)

           "Continuing treatment" includes:

          • (i)

             Two or more treatments by a health care provider, plus incapacity for at least three full, consecutive calendar days

          • (ii)

             Prenatal care

          • (iii)

             Treatment for chronic conditions

          • (iv)

             Continuing health care supervision for permanent or long-term conditions

          • (v)

             Multiple treatments for certain conditions that could cause incapacity for at least three full, consecutive calendar days

      • 3.

         Qualifying exigencies arising out of the active duty or call to active duty of a spouse, son, daughter, or parent during his or her deployment to a foreign country with the Armed Forces or their reserve components in a contingency operation

        • (a)

           For purposes of qualifying exigency leave, a "son or daughter" need not be under 18 nor incapable of self-care.

        • (b)

           "Qualifying exigencies" include:

          • (i)

             Addressing issues arising out of short-notice deployment

          • (ii)

             Attending official military events, family assistance programs, or briefings

          • (iii)

             Arranging childcare or education for, providing emergency childcare for, or attending school-related meetings about a child, legal ward, or stepchild of the military member

          • (iv)

             Arranging care or providing emergency care for the military member's parent if the parent is incapable of self-care

          • (v)

             Conducting or updating financial or legal affairs to address the absence of a covered military member

          • (vi)

             Attending counseling provided by someone other than a health care provider for oneself, the military member, or the child, legal ward, or stepchild of the military member

          • (vii)

             Spending up to fifteen calendar days with the military member during short-term rest leave

          • (viii)

             Attending official ceremonies or programs sponsored by the military for up to ninety days after a covered military member's active duty terminates or addressing issues arising from the death of a covered military member while on active duty

      Third Alternate Paragraph I.A.:

      An eligible employee is entitled to a total of 12 workweeks of unpaid leave during each 12-month period measured forward from the date of the employee's first FMLA leave for:

      • 1.

         The birth of, adoption of, or placement for foster care with the employee of, a child, and bonding with such child:

        • (a)

           Employees must take leave during the 12-month period following the birth, adoption, or placement.

        • (b)

           Spouses who are both employed by the Company will be entitled to a combined total of 12 weeks of leave for this event.

      • 2.

         A serious health condition of the employee or a qualifying family member (i.e., spouse, parent, son, or daughter) if the employee is needed to care for such family member

        • (a)

           A "son or daughter" is defined as a biological, adopted, or foster child, a stepchild, or a legal ward of a person standing in loco parentis who is either under 18 or over 18 and incapable of self-care because of a mental or physical disability.

        • (b)

           A "parent" is defined as a biological, adoptive, foster, or stepfather or mother, or any other individual who stood in loco parentis to the employee.

        • (c)

           A "serious health condition" is an illness, injury, impairment, or physical or mental condition that involves either in-patient care or continuing treatment by a health care provider.

        • (d)

           "Continuing treatment" includes:

          • (i)

             Two or more treatments by a health care provider, plus incapacity for at least three full, consecutive calendar days

          • (ii)

             Prenatal care

          • (iii)

             Treatment for chronic conditions

          • (iv)

             Continuing health care supervision for permanent or long-term conditions

          • (v)

             Multiple treatments for certain conditions that could cause incapacity for at least three full, consecutive calendar days

      • 3.

         Qualifying exigencies arising out of the active duty or call to active duty of a spouse, son, daughter, or parent during his or her deployment to a foreign country with the Armed Forces or their reserve components in a contingency operation

        • (a)

           For purposes of qualifying exigency leave, a "son or daughter" need not be under 18 nor incapable of self-care.

        • (b)

           "Qualifying exigencies" include:

          • (i)

             Addressing issues arising out of short-notice deployment

          • (ii)

             Attending official military events, family assistance programs, or briefings

          • (iii)

             Arranging childcare or education for, providing emergency childcare for, or attending school-related meetings about a child, legal ward, or stepchild of the military member

          • (iv)

             Arranging care or providing emergency care for the military member's parent if the parent is incapable of self-care

          • (v)

             Conducting or updating financial or legal affairs to address the absence of a covered military member

          • (vi)

             Attending counseling provided by someone other than a health care provider for oneself, the military member, or the child, legal ward, or stepchild of the military member

          • (vii

             Spending up to fifteen calendar days with the military member during short-term rest leave

          • (viii)

             Attending official ceremonies or programs sponsored by the military for up to ninety days after a covered military member's active duty terminates or addressing issues arising from the death of a covered military member while on active duty

      1 of 3

    • Family and medical leave will run concurrently with other medical leaves such as workers' compensation and short term disability.

    • Employees will not accrue additional vacation and sick time during this leave.

      Alternate Clause

      Alternate Section I.A., Paragraph 27:

      Employees will continue to accrue vacation and sick time during this leave.

      Drafting Note

      Drafting Note to Alternate Section I.A., Paragraph 27:

      While not required, an employer may choose to allow employees to continue to accrue vacation and sick time during FMLA leave. Use this clause if the employer intends to do so.

  • B. Military Caregiver Leave in Blocks of Time up to 26 Weeks 

    • Employees will be eligible for up to 26 weeks of unpaid military caregiver leave during a single 12-month period if they are a spouse, son, daughter, parent, or next of kin (nearest blood relative) of a servicemember who has suffered a serious illness or injury while on active duty in the Armed Services, including the National Guard or reserves, and who is undergoing medical treatment or therapy for, or recuperating from, that injury or illness

      • 1.

         "Son or daughter" means a biological, adopted, or foster child, stepchild, legal ward, or a child for whom the service member stood in loco parentis.

      • 2.

         "Parent" means a biological, adoptive, foster, or stepfather or mother, or any other individual who stood in loco parentis to the service member.

      • 3.

         The servicemember may be either a current member of the Armed Forces or a veteran whom the Armed Forces discharged less than five years earlier.

      • The Company will deduct family and medical leave taken for reasons other than military caregiver leave from the 26 weeks of available leave for that 12-month period.

    Drafting Note

    Drafting Note to Paragraph I.B.

    For the purposes of military caregiver leave, the definitions of the terms "son or daughter" and "parent" are different from those used for other types of FMLA leave, as you can see by comparing the definitions in Paragraphs I.A.2.(a) and (b) with I.B.1. and 2. Similarly, a "serious injury or illness" for purposes of military caregiver leave is not the same as the "serious health condition" used elsewhere in the FMLA. A serious injury or illness for a current servicemember is an injury or illness that occurred or was aggravated in the line of duty. In the case of a covered veteran, the serious injury or illness must be:

    (1) A continuation of a serious injury or illness that the veteran incurred or aggravated when the veteran was a member of the Armed Forces, which rendered the veteran unable to perform the duties of his or her office, grade, rank, or rating

    (2) A physical or mental condition for which the veteran has received a U.S. Department of Veterans Affairs Service-Related Disability Rating (VASRD) of 50% or greater, and the need for military caregiver leave relates to that

    (3) A physical or mental condition that substantially impairs the veteran's ability to work because of a disability or disabilities related to military service, or would do so absent treatment –or–

    (4) An injury that is the basis for the veteran's enrollment in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers

    29 C.F.R. § 825.127(c)(2). For more information on FMLA military leave, see FMLA Military Leave Provisions Including Employer Coverage and Employee Eligibility and Military Leave Certification Rules under the FMLA and USERRA.

  • C. Intermittent or Reduced Schedule Leave 

    • Intermittent or reduced schedule leave is leave taken at varying times for the same qualifying condition. The amount of such leave may total up to 480 hours for family and medical leave or qualifying exigency leave and up to 1,040 hours for military caregiver leave within a 12-month period for employees who work 40-hour weeks. The total number of hours of available leave will be adjusted downward if the employee works part-time.

    • Intermittent or reduced schedule leave is not available for every type of leave:

      • 1.

         Leave due to a serious health condition may be taken intermittently or on a reduced work schedule basis when medically necessary, and when the need for intermittent or reduced schedule leave is certified by a health care provider.

      • 2.

         Military caregiver leave may be taken intermittently or on a reduced work schedule basis when medically necessary, and when the need for intermittent or reduced schedule leave is certified by a health care provider.

      • 3.

         Leave due to qualifying exigencies may be taken intermittently or on a reduced work schedule basis.

      • 4.

         Leave due to the birth or placement of a son or daughter may not be taken intermittently or on a reduced work schedule basis.

      • Employees who take foreseeable intermittent or reduced schedule leave must attempt to schedule it so as not to disrupt the operations of the Company. In some instances, the Company may require employees taking such leave to transfer temporarily to a different position for which the employee is qualified and which better accommodates the employee's leave schedule. Pay and shifts would not be affected by a change to a different position

      • Employees taking unforeseeable intermittent leave must follow the Company's standard call-in procedures absent unusual circumstances.

    Drafting Note

    Drafting Note to Paragraph I.C.

    The employer must account for the leave using an increment of time no greater than one hour or the shortest period of time that it uses to account for use of other forms of leave, whichever is smaller. 29 C.F.R. § 825.205(a)(1). Employees who consistently work overtime as part of their regular work week are entitled to a concomitantly greater number of hours of intermittent leave, but any intermittent leave taken in lieu of working their usual overtime hours must be deducted from their total allotment of FMLA leave. Employees may take bonding leave intermittently under the FMLA only if both the employer and the employee agree. 29 C.F.R. § 825.202(c). This policy assumes that the employer would not agree.

  Drafting Note

  Drafting Note to Paragraph I.

  The federal Family and Medical Leave Act (FMLA) applies to employers that employ 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. 29 C.F.R. § 825.104. To be eligible, employees must work at a location with 50 or more employees within 75 miles. 29 C.F.R. § 825.110(a)(3).

• II. Additional Requirements for Block, Military, and Intermittent/Reduced Schedule Leaves 

  • The Company will count any leave taken under one or more of the foregoing circumstances against the employee's total family and medical leave entitlement for that 12-month period. Consistent with the Company's policy regarding outside employment, employees may not engage in outside employment during the employee's regularly scheduled working hours while on family and medical leave.

  • A. Paid Leave Runs Concurrently with Unpaid Leave 

    • Family and medical leave under this policy is generally unpaid leave. However, if the employee is eligible for paid leave under another applicable leave policy of the Company, including paid sick leave and vacation, and is not receiving temporary disability or workers' compensation payments, the employee will be required to exhaust his or her paid leave before taking unpaid family and medical leave. The Company will count paid leave taken under such circumstances against the employee's total family and medical leave entitlement for that 12-month period. Family and medical leave will also run concurrently with other medical leaves such as workers' compensation and short-term disability leave.

    Drafting Note

    Drafting Note to Paragraph II.A.

    Leave under the FMLA is generally unpaid, but an employee taking medical leave may be eligible for temporary disability or workers' compensation payments under state law. State and local laws regarding paid leave may also be applicable. Employers can require that employees exhaust their paid leave before taking any unpaid family or medical leave, if employees do not elect to do so. 29 C.F.R. § 825.207(a). If the employer does not want to require employees to exhaust their paid leave before taking unpaid family or medical leave, use the alternate paragraph. Medical leave that is covered by workers' compensation or temporary disability payments is not considered unpaid. As a result, an employer cannot require an employee, nor can an employee elect, to use paid leave while he or she is receiving workers' compensation or temporary disability payments, even if the payments do not equal the employee's regular wages or salary. 29 C.F.R. § 825.207(d).

    Alternate Clause

    A. Alternate Section II.A: Paid Leave May Run Concurrently with Unpaid Leave  

    • Family and medical leave under this policy is generally unpaid leave. However, if the employee is eligible for paid leave under another applicable leave policy of the Company, including paid sick leave and vacation, and is not receiving temporary disability or workers' compensation payments, the employee may, but is not required to, use his or her paid leave concurrently with his or her unpaid family and medical leave to continue to earn his or her full salary while on leave. Family and medical leave will run concurrently with other medical leaves such as workers' compensation and short-term disability leave.

  • B. Procedure for Employee Notice to Employer 

    • Employees are required to provide the Company with notice of their need for leave, enough facts to alert the Company that they may be eligible for family and medical leave, and the anticipated timing and duration of the leave.

    • Employees do not have to share a medical diagnosis, but must provide enough information to the employer so it can determine if the leave qualifies for FMLA protection. Sufficient information could include informing the Company that the employee is or will be unable to perform his or her job functions, that a family member cannot perform daily activities, or that hospitalization or continuing medical treatment is necessary. Employees must inform the Company if the need for leave is for a reason for which FMLA leave was previously taken or certified.

    • Employees must follow normal call-in policies and notify the person they would normally notify for an absence. If the need for family and medical leave is foreseeable, employees are also required to provide such notice to [department and/or individual(s)] at least 30 days before the commencement of the leave unless it is impracticable to do so under the circumstances. If 30-day notice is impracticable, employees must give notice as soon as possible.

      • 1.

         In the case of planned medical treatment for a serious health condition, the employee is required to make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the Company.

      • 2.

         Employees are required to give additional notice as soon as practical whenever there is a change in the dates of scheduled leave. The Company periodically may require employees to report on their status and intent to return to work.

  • C. Employer Responsibilities 

    • The Company will inform employees requesting leave whether they are eligible for leave under the FMLA and, as applicable, state law. If they are, the Notice of Eligibility will specify any additional information required, as well as the employee's rights and responsibilities. If an employee is not eligible, the Company will provide a reason for the ineligibility.

    • The Company will also inform eligible employees if leave will be designated as FMLA-protected leave and the amount of leave that will be counted against the employee's leave entitlement.

    Drafting Note

    Drafting Note to Paragraph II.C.

    An employer that learns that an employee may be eligible for FMLA leave must provide the employee with the information in the Department of Labor's Notice of Eligibility and Rights & Responsibilities.

    The employer must provide this notice within five business days of the employee's FMLA leave request. While an employer may give this notice orally, you should advise the employer to provide written notice so as to avoid later disputes about whether the employer fulfilled its obligation. 29 C.F.R. § 825.300(b).

  • D. Medical Certifications of Serious Health Conditions 

    • To take leave due to his or her own serious health condition or that of a qualifying family member, an employee is required to provide the Company with a medical certification on a Company-approved form completed by a health care provider within 15 calendar days of the employee's receipt of the form. Under certain circumstances, an employee must cooperate in obtaining a second medical opinion by a health care provider designated by the Company and, if the opinions differ, a medical certification from a third health care provider to be agreed upon by the Company and the employee. For long term, ongoing or permanent serious health conditions, the Company will require a new certification on an annual basis and recertification after six months. (An employee's eligibility for leave, in terms of hours worked, will be calculated at the time of the annual certification, but not the recertification). The Company may require more frequent recertification of serious health conditions, including 30-day recertification of specific absences, if circumstances warrant. Failure to comply with these certification and recertification requirements will result in the delay, denial, or termination of leave.

    Drafting Note

    Drafting Note to Paragraph II.D.

    The United States Department of Labor (DOL) has created medical certification forms for use in certifying the serious health condition of an employee (WH-380-E) or a family member (WH-380-F). See FMLA Certification of Health Care Provider for Employee's Serious Health Condition (Form WH-380-E) and FMLA Certification of Health Care Provider for Family Member's Serious Health Condition (Form WH-380-F). Employers are not required to use the DOL's forms, but they may not request that the employee, family member or health care provider give information that is not specifically authorized by 29 C.F.R. §§ 825.306, 825.307, or 825.308. See 29 C.F.R. § 825.306(b).

    An employer that has reason to doubt the validity of the employee's medical certification may require the employee to obtain a second opinion, at the employer's expense, by a health care provider designated by the employer who is not employed by the employer on a regular basis. 29 C.F.R. § 825.307(b). If the second opinion differs from the certification, the employer may, at its own expense, require that the employee obtain a final, binding third opinion from a health care provider designated or agreed upon by the employee and employer.

    An employer may require an employer to recertify a serious health condition after six months, or the estimated minimum duration of the condition (whichever is less) has elapsed; when the employee has requested an extension of leave; when the circumstances described by the previous medical certification have changed significantly; and when the employer has received information that casts doubt on the stated reason for the absence or the continuing validity of the previous medical certification. 29 C.F.R. § 825.308(b) and (c). An employer may require recertification of specific absences, but no more frequently than every 30 days. 29 C.F.R. § 825.308(a).

  • E. Certification of Serious Injury or Illness for Military Caregiver Leave 

    • To take military caregiver leave to care for a current servicemember or a veteran, an employee is required to provide the Company with a Certification of Serious Injury or Illness of a Current Servicemember, or a Certification of Serious Injury or Illness of a Veteran, on a Company-approved form completed by a health care provider within 15 calendar days of the employee's receipt of the form. Failure to comply with these certification requirements will result in the delay or denial of leave.

    Drafting Note

    Drafting Note to Paragraph II.E.

    The DOL has created medical certification forms for use in certifying the serious illness or injury of a current servicemember (WH-385) or veteran (WH-385-V). Employers are not required to use the DOL's forms, and Practical Guidance offers more comprehensive forms that include drafting notes. See FMLA Medical Certification for Serious Injury or Illness of a Current Servicemember for Military Caregiver Leave and FMLA Medical Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave. When employers use a form other than the DOL's form, they may not request that the employee, family member, or health care provider give information that is not specifically authorized by 29 C.F.R. § 825.310. Employers are also not permitted to require second and third opinions if the certification is obtained from a Department of Defense (DOD) or Department of Veteran Affairs (VA) health care provider or a DOD authorized TRICARE health care provider. 29 C.F.R. § 825.310(d). Employers are not permitted to request recertifications in any event. Id. The Practical Guidance forms comply with all of these requirements.

  • F. Documentation for Qualifying Exigency Leave 

    • The first time an employee requests qualifying exigency leave for a particular military member, the employee is required to provide a copy of the military member's active duty orders or other documentation issued by the military that indicates the military member is on active duty or call to active duty status, and the dates of the military member's active duty service.

    • The employee is also required to document any qualifying exigency leave by submitting a Certification of Qualifying Exigency on a Company-approved form completed by the employee within 15 calendar days of receiving the form.

    Drafting Note

    Drafting Note to Paragraph II.F.

    The DOL has created a form for use in certifying a qualifying exigency. See FMLA Certification of Qualifying Exigency for Military Family Leave (Form WH-384). Employers are not required to use the DOL's forms, but they may not request that the employee, family member, or third party give information that is not specifically authorized by 29 C.F.R. § 825.309. See 29 C.F.R. § 825.309(c).

  • G. Return to Work 

    • Consistent with the Company's practice, before returning to work an employee on family and medical leave for a serious health condition (except for intermittent or reduced schedule leave) will be required to present a certification from his or her health care provider that he or she is medically able to return to work. If the date on which an employee is scheduled to return to work from a family and medical leave changes, the employee is required to give notice of the change, if foreseeable, to the Company within two business days of learning about the change. Employees who return to work immediately after the end of an approved family and medical leave will normally be reinstated to the same or an equivalent position, and will receive pay and benefits equivalent to those the employee received prior to the leave, as required by law, including any unconditional pay increases that may have occurred during the FMLA leave period. If the employee does not return to work on the first workday following the expiration of family and medical leave, and has not been granted an extension of leave by the Company, the employee will be deemed to have resigned from employment. In certain circumstances, "key employees" may not be eligible for reinstatement following a family and medical leave. The Company will provide written notice to any "key" employee who is not eligible for reinstatement.

    Drafting Note

    Drafting Note to Paragraph II.G.

    "Key employees" are salaried employees who are among the highest paid 10% of the employees employed by the Company within 75 miles of the work site at which the employee is employed. 29 C.F.R. § 825.217(a). The employer is not required to reinstate a key employee whose reinstatement would cause substantial, grievous economic injury to the operations of the Company. 29 C.F.R. §§ 825.217, 825.218, and 825.219. After receiving notice of a key employee's leave, if the employer believes that his or her reinstatement would result in such injury, the employer must provide written notice that the employee is a key employee, notify the employee in writing that it intends to deny reinstatement, explain the basis for its decision, and provide the employee a reasonable time in which to return to work. 29 C.F.R. § 825.219(a) and (b).

    The requirement of "substantial and grievous economic injury" is difficult to satisfy. 29 C.F.R. § 825.218(d). The employer should take into account its ability to replace the employee on a temporary basis or simply do without the employee during the leave. 29 C.F.R. § 825.218(b). "Substantial and grievous economic injury" would result if the reinstatement threatened the economic viability of the firm or caused long-term economic injury, but would not result from the minor inconveniences and costs experienced in the normal course of doing business. 29 C.F.R. § 825.218(c).

    If the employer decided to eliminate the position during the period of the leave, then the employee is not entitled to reinstatement, even to another position. 29 C.F.R. § 825.216(a)(1). However, the employer has the burden of showing that it would have laid off the employee even if he or she had not taken leave. Id. If the employer gave notice under 29 C.F.R. § 825.300(d)(3) that the employee would have to provide a fitness for duty certification before returning to work, and the employee fails to provide it, the employer may terminate the employee, after it has determined that the Americans with Disabilities Act does not require it to extend the employee's leave. 29 C.F.R. § 825.313(d). If the employer wants to terminate an employee for job abandonment after his or her failure to return after the expiration of the leave period, the employer should ensure that the employee had notice of the consequences for failing to return. For more information about the limitations of an employer's duty to reinstate an employee returning from FMLA leave, see FMLA Leave: Guidance for Employers and Employees — FMLA Employer Rights and Obligations.

• III. Continuation of Group Health Benefits 

  • The Company will maintain the employee's group health plan coverage during the period of family and medical leave under the same terms and conditions as though the employee were actively working. During the leave, the employee is required to make all premium payments that he or she would have had to make if actively employed. Failure to make a timely premium payment may result in the termination of coverage. Employees who fail to return to work following the expiration of family and medical leave for reasons other than a serious health condition or circumstances beyond their control may be asked to reimburse the Company for any health plan premiums it paid during the leave.

  Drafting Note

  Drafting Note to Paragraph III.

  Employers must maintain group health plan coverage for employees on FMLA leave in the same way that it would have provided coverage if the employee had been working continuously during the entire leave period. 29 C.F.R. § 825.209(a). The employee must continue to pay his or her share of the group health premiums. 29 C.F.R. S 825.210(a). If the employee is taking paid leave, the employer may deduct the payment from his or her paycheck. 29 C.F.R. § 825.210(b). If the employee is taking unpaid leave, the employer may require that the employee remit payment to either the employer or the insurer. 29 C.F.R. § 825.210(c). An employer may stop maintaining health insurance coverage if the employee's premium payment is more than 30 days late, but the employer must provide notice at least 15 days before it terminates coverage. 29 C.F.R. § 825.212(a). After the employee returns from leave, the employer must restore coverage. 29 C.F.R. § 825.212(c). If the employee fails to return from leave, the employer may recoup its own cost of providing coverage during the leave, unless the employee's failure to return to work is due to a serious health condition of the employee or a family member, a serious injury or illness of a covered servicemember, or other circumstances beyond the employee's control. 29 C.F.R. § 825.213(a). The employer may not recoup its own cost of providing coverage for intervals during which the employee took paid leave. 29 C.F.R. § 825.213(d).

• IV. No Retaliation 

  • The Company will not interfere with, restrain, or deny the exercise of any right provided under the FMLA or equivalent state law. The Company will also not discharge or discriminate against any person for opposing any practice made unlawful by the FMLA or for the person's involvement in any proceeding under or relating to the FMLA. If you feel that you have been discriminated or retaliated against due to your assertion of FMLA-protected rights or participation in a FMLA-related proceeding, please contact your supervisor or [department and/or individual(s)].

  • Questions about this policy or eligibility for family and medical leave should be directed to [department and/or individual(s)].

  Drafting Note

  Drafting Note to Paragraph IV.

  For information on defending retaliation claims brought under the FMLA, see Family and Medical Leave Act (FMLA) Litigation Defense Strategies.

• V. Enforcement 

  • An employee may file a complaint with the U.S. Department of Labor, Wage and Hour Division, or may bring a private lawsuit against an employer. The FMLA does not affect any federal or state law prohibiting discrimination, or supersede any state or local law or collective bargaining agreement which provides greater family or medical leave rights.

  • For additional information or to file a complaint: 1-866-4-USWAGE (1-866-487-9243) TTY 1-877-889-5627; www.dol.gov/whd.

  Drafting Note

  Drafting Note to Paragraph IV.

  For information on defending lawsuits brought under the FMLA, see Family and Medical Leave Act (FMLA) Litigation Defense Strategies.

• I acknowledge that I have received and read the Company's Family and Medical Leave Policy. I understand it and will abide by it. I understand that this policy is not an employment contract and does not change my status as an at-will employee.

  Dated: __________________________

  _______________________
  Employee's Signature

  _______________________
  Employee's Printed Name
  Drafting Note

  Drafting Note to Signature Line of Acknowledgement

  You should include an acknowledgment provision, particularly if the employer will use this form as a standalone policy without incorporating it into an employee handbook, which should have an acknowledgment provision for its entire contents. This provision serves as evidence that the employee was made aware of and understood the policy, and it helps negate any argument that the policy establishes a binding employment contract. Because it may be difficult to authenticate an e-signature in a subsequent litigation, the employer should obtain a handwritten signature, if possible. However, business realities often mandate that large employers use e-signatures. If this is the case, ensure that the employer takes steps to authenticate each e-signature as belonging to a particular employee. For more information on obtaining e-signatures, see What Every Employer Needs To Know About E-Signatures.