4.19 Leave Without Pay (includes information regarding the Family Medical Leave Acts)

Last Revised: 10 Oct 2019 Refer Questions to: Executive Director, Human Resources

Scope

This policy applies to regular and extended temporary staff in all offices and divisions of Gallaudet University and to regular and extended temporary Clerc Center teachers, unless specifically covered by collective bargaining agreements made between Gallaudet University and certified bargaining agents. The Family and Medical Leave Act (“FMLA”) and District of Columbia Family and Medical Leave Act (“DCFMLA”) portions of this policy applies to all employees who are eligible for FMLA/DCFMLA leave pursuant to applicable law.

Policy

This policy is intended to set forth the rights of employees to take leave under the FMLA and/or DCFMLA and, where the FMLA and DCFMLA are not applicable, non-FMLA leave without pay. Typically, if an employee is eligible for FMLA/DCFMLA as described below, is using leave for a qualifying reason (e.g., to take time off for the employee’s own serious health condition), and has not previously used FMLA/DCFMLA leave, the employee is entitled to up to 16 workweeks of leave in a 24 month period under the DCFMLA (which runs concurrently with FMLA leave). The specific rules for taking leave, and the reasons for which leave may be taken FMLA The FMLA is a federal law allowing eligible employees to take a maximum of up to twelve (12) weeks of unpaid leave for family/medical reasons, or in the case of military caregiver leave, up to twenty-six (26) weeks of unpaid leave in any twelve (12) month period and be restored to the same or an equivalent position upon return from leave (subject to the terms and limitations of the FMLA). FMLA also requires that your group health benefits be maintained during your FMLA leave period. Am I eligible for FMLA leave? To be eligible for leave under this FMLA policy, you must (1) have worked for Gallaudet for at least twelve (12) months, though it need not be consecutive; and (2) have worked for at least 1,000 hours over the previous twelve (12) months. For what reasons can I take FMLA leave? You may take family/medical leave for any of the following reasons:

1. For incapacity due to pregnancy, prenatal medical care or child birth;
2. To care for your child after birth, or placement for adoption or foster care;
3. To care for your spouse, son or daughter, or parent (a “qualified family member”) who has a serious health condition; or
4. For a serious health condition that makes you unable to perform any of the essential functions of your position.
5. Military Family Leave (discussed further below)

Leave because of reason (2) must be completed within the twelve (12) month period beginning on the date of birth or placement. In addition, employees who take leave for any of the reasons covered by this policy (except for military caregiver leave discussed further below) may only take a combined total of twelve (12) weeks leave during any twelve (12) month period. A serious health condition is an illness, injury, impairment, or physical or mental condition that involves either an overnight stay in a medical care facility, or continuing treatment by a health care provider for a condition that either prevents you from performing the functions of your position, or prevents the qualified family member from participating in school, work, or other daily activities. Subject to certain conditions, the continuing treatment requirement may be met by a period of incapacity of more than three (3) consecutive calendar days combined with continuing treatment by (or under the supervision of) a health care provider, or incapacity due to pregnancy or prenatal care, or incapacity due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.), or a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (e.g., stroke, Alzheimer’s, terminal diseases, etc.). Do I have to take the leave in a single block of time? If your or your qualified family member’s serious medical condition requires only periodic treatment (e.g., chemotherapy or dialysis), you may request family/medical leave on an intermittent basis. Intermittent leave can be taken in hourly increments and will be counted towards your maximum leave entitlement in the increments taken. Intermittent leave may not be taken for reasons besides you or your qualified family member’s serious medical condition unless Gallaudet agrees. If leave is unpaid, AIR will reduce your salary based on the amount of time actually worked. In addition, while you are on an intermittent or reduced schedule leave, AIR may temporarily transfer you to an available alternative position which better accommodates your recurring leave and has equivalent pay and benefits. How do I request leave? If your need for family/medical leave is foreseeable, you must give Gallaudet at least thirty (30) days prior written notice. If this is not possible, you must at least give notice as soon as practicable. Failure to provide such notice may be grounds for delay of leave. You must make reasonable efforts to schedule leave for planned medical treatment so as not to unduly disrupt Gallaudet’s operations. You must provide sufficient documentation to Gallaudet for Gallaudet to determine if your leave qualifies for protection under the FMLA. Contact Human Resources as soon as possible to discuss your situation and if you are eligible for leave. You will be provided with the required documentation to be completed to certify the need for leave. Gallaudet may ask for different forms of documentation depending on the type of leave requested, e.g., leave due to a serious health condition (your own or a covered family member’s), or military leave for a qualifying exigency (discussed below). Gallaudet may request certification by the relevant health care provider when leave is due to a serious medical condition. In addition, Gallaudet, at its expense, may require an examination by a second health care provider designated by Gallaudet, if it reasonably doubts the medical certification you initially provided or if necessary to make an informed decision. If the second health care provider’s opinion conflicts with the original medical certification, Gallaudet, at its expense, may require a third, mutually agreeable, health care provider to conduct an examination and provide a final and binding opinion. Your leave will commence from the first date of absence for the covered situation, regardless of when you formally request FMLA leave. You may be required to submit periodic updates regarding your continued need to access family/medical leave. How long may I take leave? For the qualifying reasons provided under the FMLA, you are entitled to leave up to a total of twelve (12) weeks or, in the case of military caregiver leave (as discussed further below), twenty-six (26) weeks within a twelve (12) month period. In determining the amount of FMLA leave available to you, Gallaudet considers the twelve (12) month period preceding the date on which the requested leave is to be used. Am I paid during leave? What about other leave rights? Leave provided by the FMLA is unpaid leave; however, you may elect to use any applicable accrued paid leaves instead of taking unpaid leave. Additionally, you may be eligible for benefits such as long-term disability insurance or workers’ compensation. Please see Human Resources for more details. These sources of income will be considered “paid leave” for the period during which you receive that money. FMLA leave runs concurrently with other applicable leave programs to the fullest extent permitted by law. This means that the use of accrued or other paid leave does not extend your maximum leave entitlement under the FMLA. Further, in no case can paid leave time result in your receipt of more than 100% of your salary. What happens to my medical benefits during leave? During an approved FMLA leave, Gallaudet will maintain your (and your dependents’, if applicable) health care benefits as if you continued to be actively employed for the duration of your approved leave. If your FMLA is paid, Gallaudet will deduct your portion of the health care premiums from your pay as normal. If your leave is unpaid, you must pay your portion of the premiums directly to Gallaudet. If you elect not to return to work for at least thirty (30) calendar days at the end of the FMLA leave period (or an additional approved leave, such as DCFMLA), you will be required to reimburse Gallaudet for the cost of the health care benefit premiums paid by Gallaudet for maintaining coverage during your leave, unless you cannot return to work because of a serious health condition (yours or the covered family member’s) or other circumstances beyond your control. What do I need to do when I am ready to return from leave? You are expected to return to work at the conclusion of the approved FMLA leave period. If you take leave because of your own serious health condition (except if you are taking intermittent leave that is still within the approval for intermittent leave), you are required to provide medical certification that you are fit to resume work prior to returning. Failure to return to work when your FMLA leave period expires may be considered a voluntary resignation. What about military family leave? Employees eligible for leave under the FMLA may use their leave entitlement for Military Family Leave. Military Family Leave provides you with unpaid leave for the following reasons:

• Qualifying Exigency Leave: A “qualifying exigency” arising out of a spouse, son, daughter or parent who is a military member on covered active duty or called to covered active duty status (or has been notified of an impending call or order to covered active duty) in a foreign country (known as qualifying exigency leave); and/or
• Military Caregiver Leave: To care for a spouse, son, daughter or next of kin who is a covered service member and who has incurred a serious injury or illness related to active duty service (known as military caregiver leave).

What if my spouse also works for Gallaudet? If you and your spouse work for Gallaudet, you are limited to a combined total of 12 workweeks of leave in a 12-month period for the following reasons:

1. To care for your child after birth, or placement for adoption or foster care;
2. To care for a parent who has a serious health condition

Also, you are limited to a combined total of 26 workweeks of leave in a single 12-month period to take military caregiver leave, if each spouse is a parent, spouse, son/daughter, or next of kin of the servicemember. When spouses take military caregiver leave as well as other FMLA leave, each spouse is subject to the combined limitations for the reasons for leave listed above. Where can I learn more about the FMLA? Employees should consult with Human Resources, or see Department of Labor Publication WH-1420 for additional information regarding their rights and responsibilities under the FMLA. Additional Rights Under the DCFMLA The DCFMLA may provide you with additional time to take leave beyond what you are entitled under the FMLA. Specifically, under the DCFMLA, in a twenty-four (24) month period, you may take:

• Sixteen (16) workweeks of leave when your own serious health condition makes you unable to perform the functions of your job (“Medical Leave”); and, in addition, you may take
• Sixteen (16) workweeks of leave to care for your family member who suffers from a serious health condition or due to the birth of your child, the foster care or adoption placement of a child with you, or the placement of a child for whom you assume permanent parental responsibility (“Family Leave”).

Like in the FMLA, leave for birth, adoption, or placement of a child must take place within twelve (12) months of the birth, adoption, or placement of the child. If both you and a family member who works for Gallaudet seek Family Leave for the same reason, you may take four (4) weeks of leave at the same time and may take a combined maximum of sixteen (16) weeks of Family Leave during a twenty-four (24) month period. In determining the amount of DCFMLA available to you, Gallaudet looks back over the rolling twenty-four (24) month period preceding the date on which the requested leave is to be used. “Family member” means (a) any person to whom you are related by blood, legal custody, or marriage; (b) any person with whom you have shared, within the last year, a committed relationship (as defined in the DCFMLA) and a mutual residence; (c) any child who lives with you and for whom you permanently assume and discharge parental responsibility; or (d) a foster child. “Child” means (a) any person under 21 years of age; (b) any person, regardless of age, who is substantially dependent upon you due to a disability; or (c) any person under 23 years of age who is a full-time student at an accredited college or university. How does the DCFMLA interact with other leaves? Leave provided by the DCFMLA is unpaid leave; however, you may elect to use any applicable accrued paid leaves instead of taking unpaid leave. Additionally, you may be eligible for benefits such as long-term disability insurance or workers’ compensation. Please see Human Resources for more details. These sources of income will be considered “paid leave” for the period during which you receive that money. DCFMLA leave runs concurrently with other applicable leave programs to the fullest extent permitted by law. This means that the use of accrued or other paid leave does not extend your maximum leave entitlement under the DCFMLA. Further, in no case can paid leave time result in your receipt of more than 100% of your salary. DCFMLA leave also runs concurrently with federal FMLA leave, provided that leave taken under Gallaudet’s above FMLA Policy for a reason not covered by DCFMLA will not exhaust the leave available to you under this policy. What is an example of how the DCFMLA provides greater rights than the FMLA? One example is as follows. Because the DCFMLA permits an employee to take sixteen (16) weeks of medical leave over a two-year period, there may be circumstances where an employee exhausts twelve (12) weeks of FMLA leave due to a serious health condition, yet still has four (4) additional weeks of DCFMLA to use. For more information, please speak to Human Resources about your particular situation. Leave Without Pay (Non-FMLA) Leave without pay is defined as temporary non-pay status and absence from duty. Leave without pay must be approved by the supervisor and in cases of extended leave without pay, also by the unit administrator, and senior administrator. Leave without pay normally falls into one of the following categories:

1. Voluntary: An employee requests time off without pay. Initial requests for leave without pay (non-FMLA) may be made for a maximum of six calendar months (staff) or one semester (Clerc Center teachers). Extensions may be requested; however, except in unusual circumstances, requests for leave without pay should not exceed 12 calendar months (staff) or one academic year (Clerc Center teachers). Decisions regarding the approval of requests for leave without pay and its duration take into consideration the reason for which the leave is being requested, applicable laws and regulations (e.g., the Family and Medical Leave Acts — see above), the employee’s work history, and impact on program operations and objectives. Leave without pay is not approved beyond the term of the appointment or in instances when an employee accepts employment elsewhere. Unless otherwise prescribed by law, the granting of leave without pay does not preclude the University from realigning or reassigning its resources as necessary, and it is not a guarantee that conditions of employment will remain unchanged. In most cases, requests for voluntary leave without pay should be approved only after appropriate paid leaves have been exhausted.
2. Scheduled: An employee’s appointment schedule includes a period of leave without pay. Certain staff appointments may include a period of time off, e.g., appointments which follow the academic calendar. This period is taken as leave without pay.
3. Involuntary: An employee exhausts all appropriate paid leave and FMLA leave and is unable to return to work. An employee who exhausts all approved paid leave or FMLA leave and cannot return to work may request to be placed on leave without pay status. The employee must provide acceptable documentation evidencing that he/she is not able to work and the planned return date. Leave is usually approved for a maximum of six calendar months (staff) or one semester (Clerc Center teachers) from the start date of the original leave. Extensions may be granted; however, except in unusual circumstances or where extension of leave is required by law, leave without pay should not extend leave to exceed 12 calendar months (staff) or one academic year (Clerc Center teachers) from the start date of the original leave. Leave without pay is not approved beyond the term of the appointment. Unless otherwise prescribed by law, the granting of leave without pay does not preclude the University from realigning or reassigning its resources as necessary, and it is not a guarantee that conditions of employment will remain unchanged. Supervisors may require regular documentation for involuntary leave without pay.
4. Disciplinary: An employee’s request for leave is not approved, or other instances occur that require the absence of the employee by administrative disciplinary directive. A supervisor may place an employee on disciplinary leave without pay if leave taking is not approved and the employee is absent or when the employee’s absence is directed as a disciplinary action for other reasons. Actions of disciplinary leave without pay must be approved by the unit administrator and by the Executive Director of Human Resources or Director of Equal Opportunity Programs and must fully comply with the Fair Labor Standards Act (including salary basis rules for exempt employees) and any other applicable law.
5. Other: Any other instance which necessitates the use of leave without pay. Any other instance which necessitates the use of leave without pay normally follows the guidelines defined in this policy. An employee who fails to return to work immediately following the expiration of approved leave without pay and who has not obtained an approved extension or provided required documentation for consideration of an extension will be considered to have voluntarily terminated his/her employment.Absence from duty without any type of leave approval constitutes an “unauthorized absence” and may be grounds for termination.

Approved by: Gallaudet University Administration

Procedures

1. Contact Human Resources to request FMLA/DCFMLA leave, involuntary leave, or other leave, in accordance with the timing required above. Human Resources will provide you with the information you need to fill out to request the leave.
2. If a supervisor receives a request for leave under this policy, the supervisor should immediately inform Human Resources and refer the employee to Human Resources.
3. Employees may be required to provide documentation as required. For example, employees may be required to provide medical documentation to support a serious health condition of themselves or their family members necessitating leave without pay.
4. An exempt employee is not subject to reductions in salary for leave without pay for a period of less than one day unless the absence is covered under the FMLA/DCFMLA.
5. Unless enrollment is canceled, benefits remain in effect while an employee is on leave without pay. However, employees who are on leave without pay or when their salary is insufficient to cover the required withholdings are responsible for the employee share of all payroll deducted obligations including health insurance premiums. Arrangements for payment of premiums should be made with the Payroll Office. Failure to pay benefits may result in cancelation of benefits. Employees should contact Human Resources for additional information regarding benefits while on leave without pay.
6. An employee who is on leave without pay is not eligible to accrue sick leave or annual leave (staff), to receive holiday pay, or to substitute other types of leave, except that an employee on FMLA leave may elect to substitute available sick leave or annual leave or parental leave if eligible.
7. A staff employee on leave without pay for a period of six months or more is not eligible for a merit increase. A supervisor may elect to extend the evaluation period for any employee who is on leave without pay status for fewer than six calendar months.
8. Clerc Center teachers who are on leave without pay for more than one-half of the academic year (95 working days) are ineligible for a step increase, and the academic year is not considered a full year of service for Clerc Center policies recognizing length of service.