4327 - Family and Medical Leave

Policy 4327 Family and Medical Leave title box

The Southwest Vermont Supervisory Union, Bennington School District, Inc., Mount Anthony Union School District, North Bennington Graded School District, Pownal School District, Shaftsbury School District, and Woodford School District recognize that employees may, on occasion, need extended leave time in order to care for themselves or for a family member.

Provision for such leave is made pursuant to the negotiated terms of collective bargaining agreements and/or pursuant to the provisions of the Family and Medical Leave Act of 1993 and/or the Vermont Parental and Family Leave Act or their successors, as applicable to the individual employee at the time of application for leave.

I. INTRODUCTION

Both state law, through the Parental and Family Leave Act, 21 VSA §§ 470 et. seq., and federal law, through the Family and Medical Leave Act of 1993, 29 USA §§ 2601, et. seq., provide employees certain rights with respect to leave for parental, family and/or employee care purposes. The statutes provide different eligibility standards, and different benefits and restrictions apply. It is the intent of the Boards of School Directors to comply with the mandates of the two statutes. In this document SVSU refers to all districts/Boards of Directors within SVSU. Section II of this policy implements the state law; Section III, the federal law.

If leave taken by an employee qualifies under both statutes, the leave is counted against the employee’s entitlement under both laws.

II. PARENTAL AND FAMILY LEAVE (STATE LAW)

The SVSU’s unpaid leave of absence policy for Parental and Family Leave (as defined below) shall be as follows:

A. Policy Statement

During any 12-month period, an eligible employee (as defined below) shall be entitled to take unpaid leave for a period not to exceed 12 weeks for parental or family leave (as defined below).

B. Eligibility

1. An eligible employee is a person who, in consideration of direct or indirect gain or profit, has been continuously employed by the SVSU for a period of one year for at least 30 hours per week.
2. Covered Employer: To be eligible for leave under this Policy, the employee’s employer must meet the following criteria:
a. for purposes of parental leave (as defined below), the employer must employ ten or more individuals who are employed an average of at least 30 hours per week during the year; and
b. for purposes of family leave (as defined below), the employer must employ 15 or more individuals for an average of at least 30 hours per week during a year.
3. Family Leave means a leave of absence from employment for one of the following reasons:
a. the serious illness of the employee: or
b. the serious illness of the employee’s child, step-child or ward who lives with the employee, foster child, parents, spouse or parent of the employee’s spouse.
4. Serious Illness means an accident, disease or physical or mental condition that:
a. poses imminent danger or death; b. requires in-patient care in a hospital; or
c. requires continuing in-home care under the direction of physician.
5. Parental Leave means a leave of absence from employment by an employee for one of the following reasons:
a. the birth of the employee’s child; or
b. the initial placement of a child 16 years of age or younger with the employee for the purpose of adoption.

C. Determining the 12-Month Period

In determining the “12 month period” in which the 12 weeks of leave entitlement occurs, the SVSU will use a “rolling” 12-month period, measured backward from the date an employee uses any parental or family leave. Each time an employee takes parental or family leave, the remaining leave entitlement would be any balance of the 12 weeks, which has not been used during the immediately preceding 12-month period.

D. Substitution of Paid Leave for Unpaid Leave

During the leave, the employee may use accrued sick leave or vacation leave, not to exceed six weeks unless the applicable collective bargaining agreement provides otherwise. The remainder of the twelve weeks of parental and/or family leave shall be unpaid. Use of accrued sick leave or annual leave shall not operate to extent the twelve-week period.

E. Benefits During Leave

An employee on parental or family leave who wishes to continue his/her coverage under the various insurance plans, must assume the full cost of the total premium of each insurance plan during the portion of the twelve weeks which is not covered by sick, annual, or personal leave. The employee is responsible for providing complete payment of said premiums to the SVSU one month prior to the date payment is forwarded to the insurance company.

F. Benefits Upon Return From Leave

Upon return from parental or family leave, an employee shall be offered the same or comparable job, at the same level of compensation, employment benefits, seniority or any other term or condition of the employment existing on the day the leave began.
1. Exceptions: This provision does not apply (that is, the employee does not have to be restored to a comparable position) in the following situations:
a. if prior to requesting leave, the employee had been given notice or had given notice terminating the employment relationship;
b. if the SVSU can show clear and convincing evidence that during the period of leave the employee’s job would have been terminated or the employee laid off for reasons unrelated to the leave or the condition for which the leave was granted; or
c. if the SVSU can show by clear and convincing evidence that the employee performed unique services and hiring a permanent replacement during the leave, after giving reasonable notice to the employee of intent to do so, was the only alternative available to the SVSU or one of its member districts to prevent substantial and grievous economic injury to its operations.
2. Waiver: Employees may, at the time a need for parental or family leave arises, waive some or all the rights under leave provisions provided the waiver is informed and voluntary and any changes in conditions of employment related to any waiver shall be mutually agreed upon between employer and employee.

G. Failure to Return to Work After End of Leave Period

1. Except for serious illness of the employee, an employee who does not return to employment with the SVSU shall return to the SVSU the value of any compensation paid to or on behalf of the employee during the leave, except payments for accrued sick, compensatory, personal or annual leave.
2. Should an employee fail to return to work on the stipulated return date, if the employee has exhausted his/her twelve week period provided under this Policy and/or his/her leave rights under an applicable collective bargaining agreement (if any), his/her reemployment rights may be terminated at the sole discretion of the SVSU. If the employee has a period of unused leave remaining under this Policy and he or she fails to return to work on the stipulated return date, the employee should request an extension of time in accordance with paragraph H (2) (c) of this Policy. If an extension of time is not requested in accordance with paragraph H (2)(c), his/her reemployment rights may be terminated at the sole discretion of the SVSU.

H. Authorization Procedures

1. Advance Notice:
a. The employee shall give reasonable written notice of intent to take leave and shall include the date the leave is expected to commence and the estimated duration of the leave.
b. Leave in the case of an adoption or birth of a child: The employee is required to provide notice at least 6 weeks prior to the anticipated commencement of the leave.
2. Requesting Leave
a. Requests for parental or family leave shall be presented in writing to the employee’s immediate supervisor. The request shall include the date the leave is expected to commence and the estimated duration of the leave. (Attached as Exhibit C is a form to be used by the employee when requesting leave).
b. The employee’s immediate supervisor shall meet with the employee to discuss his/her workload and the staffing needs of the SVSU. The immediate supervisor shall then submit the leave request to the Superintendent for authorization.
c. An employee shall provide reasonable notice to the employer of his/her need to extend leave beyond the original request.
d. Employees may return from leave earlier than estimated upon approval of the SVSU.
3. Medical Certification: In the case of serious illness of an employee or a member of the employee’s family (as defined above), medical certification may be required from a licensed physician to verify the condition and the amount and necessity for the leave requested. (See Exhibit D attached)
4. Reporting Employment Status: The SVSU requires each employee on parental and family leave to report periodically on the employee’s status and intent to return to work. If an employee gives unequivocal notice of intent not to return to work, the SVSU obligation under parental and family leave to maintain health benefits and to restore the employee cease.

III. FAMILY AND MEDICAL LEAVE (FEDERAL LAW)

The SVSU unpaid leave of absence policy for Family and Medical Leave (FML), under federal law, shall be as follows:

A. Policy Statement

The SVSU will grant a total of 12 workweeks of unpaid leave (“FML leave”) to an eligible employee during any 12-month period (as defined below) for any one, or more, of the following reasons:
1. for the birth of a son or daughter and to care for the newborn child;
2. for placement with the employee of a son or daughter for adoption or foster care;
3. to care for the employee’s spouse, son, daughter, or parent with a serious health condition; or
4. because of a serious health condition that makes the employee unable to perform the functions of the employee’s job.

B. Eligibility

1. An eligible employee is an employee who:
a. has been employed by the SVSU for at least 12 months on the date on which the leave is to commence;
b. on the date on which any of the leave is to commence, has been employed for at least 1250 hours of service during the 12 month period immediately preceding the commencement of leave; and
c. is employed at a worksite where 50 or more employees are employed by the SVSU within 75 miles of the worksite.
2. Employment benefit includes all benefits made available to employees by the SVSU, including group life insurance, health insurance, disability insurance, dental insurance, sick leave, annual leave, educational benefits, and pensions.
3. A serious health condition means an illness, injury, impairment, or physical or mental condition that involves:
a. in-patient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility including any period of incapacity or any subsequent treatment in connection with such impairment care; or
b. continuing treatment by a health care provider.

C. Determining the 12 Month Period

In determining the “12 month period” in which the 12 weeks of leave entitlement occurs, the SVSU will use a “rolling” 12-month period, measured backward from the date an employee uses an FML leave. Each time an employee takes FML leave, the remaining leave entitlement would be any balance of the 12 weeks, which has not been used during the immediately preceding 12-month period.

D. Intermittent Leave/Reduced Leave Schedule

1. An employee may take FML leave intermittently or on a reduced leave schedule:
a. where leave is taken because of a birth or placement of a child for adoption or foster care, only if the SVSU agrees;
b. where FML is taken to care for a sick family member or for an employee’s own serious health condition, only when medically necessary.
2. Employees needing intermittent FML leave or leave on a reduced leave schedule must attempt to schedule their leave so as not to disrupt the SVSU’s operations.
3. If an eligible instructional employee (as defined above) needs intermittent leave or leave on a reduced leave schedule for FML qualifying reasons, which is foreseeable based on planned medical treatment, and the employee would be on leave for more than 20 percent of the total number of working days over the period the leave would extend, the SVSU may require the employee to choose either to:
a. take leave for a period or periods of a particular duration, not greater than the duration of the planned treatment; or
b. transfer temporarily to an available alternative position for which the employee is qualified, which has equivalent pay and benefits and which better accommodates recurring period of leave than does the employee’s regular position.

E. Special Rules Regarding Leave Taken by an Instructional Employee:

1. When an instructional employee (as defined above) begins leave more than five weeks before the end of an academic term, the employee is required to take leave until the end of the term if:
a. the leave will last at least three weeks, and
b. the employee would return to work during the three-week period before the end of the term.
2. When an instructional employee begins leave for a purpose other than the employee’s own serious health condition during the five week period before the end of the academic term, the employee is required to take leave until the end of the term if:
a. the leave will last more than two weeks, and
b. the employee would return to work during the last two weeks before the end of the academic term.
3. When an instructional employee begins leave for a purpose other than the employee’s own serious health condition during the three-week period before the end of an academic term, and the leave will last more than five working days, the employee is required to continue taking leave until the end of the term.
4. The period of leave that the SVSU requires the instructional employee to take under these special rules, shall not be charged against the employee’s FML “12 week” leave entitlement.

F. Substitution of Paid Leave for Unpaid Leave

1. Whenever an employee applies for leave, the employee shall be asked, and shall state, the purpose of the leave. If the purpose is one which qualifies for FML leave, the SVSU may designate the leave as FML leave, and require that the employee use accrued paid annual leave, and/or (where the purpose is applicable) accrued sick, emergency and personal leave, as FML leave, and the employee’s total remaining FML leave shall be reduced accordingly. Under such circumstances, the SVSU shall provide prompt notice to the employee that he/she will have to substitute accrued paid leave for FML leave.
2. If the leave is designated as FML leave after the leave has begun (such as when an employee requests an extension of the paid leave with unpaid FML leave), the entire (or some portion of the) paid leave may be retroactively counted as FML leave, to the extent that the leave period qualified as FML leave.

G. Benefits During Leave

Any existing group health care plan benefits being provided by the SVSU will be continued during the FMLA leave on the same basis as if the employee had been continuously employed during such leave. If there are changes made across the board to such plan that apply to the employee on sick leave (for example, by renegotiation of a collective bargaining agreement where the employee is a member of the bargaining unit), such changes will also be applied to such employee.

H. Job Restoration

Generally, the employee will have the right to return to the same or an equivalent position with equivalent pay, benefits, and working conditions at the conclusion of the leave. Additionally, the employee may not be deprived of any employment benefits such as unused sick leave accrued prior to the date on which leave commenced. However, an employee on leave has not greater right to reinstatement than if the employee had been continuously employed during the leave period. The SVSU may deny restoration to key employees if it is necessary to prevent substantial and grievous economic injury to its operations, or may delay restoration to an employee who fails to provide a fitness for duty certificate to return to work.

In the event the employee fails to return to work from leave, for a reason other than the serious health condition of the employee or employee’s immediate family member, the SVSU can recover from the employee any health benefits paid by it during the leave.

An employee who fraudulently obtains FML leave from the SVSU is not afforded the job restoration or maintenance of health benefits provisions.

I. Authorization Procedures

1. Employee Notice:
a. An employee must provide notice to the SVSU sufficient to make it aware that the employee needs FML qualifying leave. The notice must include the anticipated timing and duration of the leave. (Attached as Exhibit C is a form to be used by the employee when requesting leave).
Such notice for FML leave shall be presented to the employee’s immediate supervisor. The employee’s immediate supervisor shall meet with the employee to discuss his/her workload and the staffing needs of the SVSU. The supervisor shall then submit the leave request to the Superintendent for authorization.
b. Notice for Foreseeable Leave: Each employee must provide 30 days advance notice before taking FML leave for the placement or birth of a child, or planned medical treatment for a serious health condition of the employee or of a family member. If for some reason such notice cannot be provided, the employee must provided such notice as soon as practicable.
It is also the employee’s duty to make a reasonable effort to schedule foreseeable medical treatment so as not to disrupt unduly the operations of the SVSU.
If an employee fails to give the required 30 days notice of foreseeable leave with no reasonable excuse for the delay, the SVSU may deny the taking of the FML leave until at least 30 days after the date notice is provided.
c. Unforeseeable Leave: When unforeseen events occur, except in extraordinary circumstances, the employee will be expected to give notice to the SVSU within no more than two days of learning of the need for the leave.
2. Employer Notice: When an employee provides notice of the need for FML leave, the SVSU shall provide the employee notice of the following:
a. that the leave will be counted against his/her FML leave entitlement;
b. of any requirements for the employee to furnish medical certification;
c. of his/her right to substitute paid leave and whether the SVSU will require the substitution of paid leave, and the conditions related to any substitution;
d. of any requirements for the employee to make any premium benefits to maintain health benefits; and
e. of any requirement for the employee to present a fitness for duty certificate to be restored to employment.

J. Reporting During FML Leave

The SVSU requires each employee on FML leave to report periodically on the employee’s status and intent to return to work. If an employee gives unequivocal notice of intent not to return to work, the SVSU obligations under FML to maintain health benefits and to restore the employee cease.

K. Provision of Medical Certification by the Employee

The employee’s health care provider may be required to certify: in the case of family medical leave, that the “employee is needed to care for” the family member; in the case of medical leave, that “the employee is unable to perform the functions of the position of the employee”; and, in addition, in the case of leave taken “intermittently or on a reduced leave schedule,” the medical necessity for such leave.

1. Medical Certification When the Leave is Foreseeable: When the leave is foreseeable and at least 30 days notice has been provided, the employee must provide the medical certification before the leave begins. (See Exhibit D attached). When this is not possible, the medical certification must be provided to the employer within the time frame requested by the employer (which must allow at least 15 calendar days after the employer’s request). An employee who fails to proved timely certification after being requested to do so by the SVSU, may be denied the taking of leave until the required certification is provided, where the leave is foreseeable.
2. Medical Certification When the Leave is Unforeseeable: In the case of unforeseen leave, the employee must furnish certification from a health care provider within two business days after the leave commences. (See Exhibit D attached). If the employee fails to provide a medical certification within a reasonable time under the pertinent circumstances, the SVSU may delay the employee’s continuation of FML leave. If the employee never produces the certification, the leave is not FML leave.
3. Notice of Consequences of not Providing the Medical Certification: At the time the SVSU requests certification, it must also advise the employee of the anticipated consequences of an employee’s failure to provide adequate certification.
4. SVSU’s Right to Question Adequacy of Medical Opinion: The SVSU has the right to seek a second medical opinion from a health care provider not employed by it on a regular basis. In the case of a disagreement, the opinion of a third provider, jointly approved by the employer and employee, shall be sought and shall be final and binding.
5. Recertification of Medical Conditions: The SVSU has the right to request recertification.

L. Certification of Fitness for Duty upon Return

As a condition of restoring an employee whose FML leave was occasioned by the employee’s own serious health condition that made the employee unable to perform the employee’s job, it is the SVSU’s policy to require such employee to provide medical certification that the employee is fit for duty and able to return to work at the time the employee seeks reinstatement at the end of the FML leave. The SVSU may deny restoration until the certification is provided.

IV. NOTICE AND COPIES

The Superintendent or his or her designee shall post notice of this policy in conspicuous places in each school building in areas accessible to employees. (See forms of notice attached as Exhibit A {federal} and Exhibit E {state}).


See the Exhibits at the end of the policy attached below.