POLICY 06:07:16

FAMILY, MEDICAL, AND SERVICEMEMBER LEAVE

Purpose

In compliance with the Family and Medical Leave Act of 1993, as amended, (“FMLA” or “the
Act”) it is the policy of Pellissippi State Community College to provide eligible employees up to
12 workweeks of leave during a 12-month period for family or medical leave, or for a qualifying
exigency; or, up to 26 workweeks of leave for military caregiver leave during a 12-month period
for reasons specified in this Policy, to provide continued health insurance coverage during the
leave period and to insure employee reinstatement to the same or an equivalent position
following the leave period.

Policy/Guideline

Employee Eligibility
1. In order to be considered “eligible,” an employee must: (1) have worked
  for the State for at least 12 months; and, (2) have worked at least 1,250
  hours during the year preceding the start of the leave.
2. The determination of whether an employee meets the eligibility criteria
  for receiving FMLA leave is based on the amount of service (including
  prior service) the employee has as of the date the leave actually begins.
3. This policy applies to both regular and temporary employees.
4. The right to take FMLA leave applies equally to male and female
  employees.
5. This policy contains no exceptions for “key employees” (e.g., a salaried
  FMLA eligible employee who is among the highest paid 10 percent of
  all the employees of the college).
6. The 12 months of required work with the State do not have to be
  consecutive in order for an employee to be eligible. However,
  employment prior to a break in service lasting 7 or more years will not
  be counted unless the break was due to fulfillment of a National Guard
  or Reserve military service obligation. The time served performing the
  military service must also be counted in determining whether the
  employee has been employed for at least 12 months by the employer.
7. If an employee is maintained on the payroll for any part of a week, that
  week is considered a week of employment, with 52 weeks of such
  employment considered equal to 12 months.
8. In determining “hours worked” for the purposes of FMLA eligibility, all
  hours actually worked by an employee (including overtime hours)
  should be calculated.
  1. Annual and sick leave hours which have been used during
    the 12-month period preceding the start of the leave are not
    counted as hours worked.
  2. In situations where a full-time employee is considered
    “exempt” from the overtime provisions of the Fair Labor
    Standards Act (FLSA) and no record of overtime hours
    worked has been maintained, the employee is presumed to
    have met the 1,250 hour requirement if they have worked
    for the State for at least 12 months.
  3. For purposes of this policy, full-time faculty satisfy the
    1,250-hour test.
9. The determination of eligibility must be made as of the date the leave
  commences or within 5 business days (absent extenuating
  circumstances) of when notification of an FMLA qualifying event has
  been received.
  1. If an employee gives notice that leave is required before
    meeting the eligibility criteria, they must either be:
    1. Provided with confirmation of when eligibility
      will be attained, based upon a projection; or
    2. Advised when the criteria have been met.
  2. In the latter case, the notice of leave will remain current
    and outstanding until the employee is advised that
    eligibility has been attained.
  3. Eligibility that is confirmed at the time the notice is
    received may not be subsequently challenged.
  4. If notice of leave has been given and confirmation of
    eligibility is not given prior to commencement of the leave,
    the employee is deemed eligible; FMLA leave may not be
    denied.
  5. In addition, if notice of the need for leave has not been
    given more than 5 business days prior to commencement of
    the leave, a determination of eligibility must be confirmed
    within 5 business days following notice.
  6. If such a determination is not provided, the employee will
    be considered eligible.
10. Leave requests for regular employees who do not satisfy the FMLA
  eligibility requirements shall be processed in accordance with the
  appropriate TBR and PSCC leave policies.
Leave Entitlement – FMLA Qualifying Events
1. Family Leave
  1. The birth of a son/daughter and to care for the newborn
    child.
    1. In addition to leave taken after the birth of a
      child, FMLA leave may be taken by an
      expectant mother for the purpose of prenatal
      visits, pregnancy-related symptoms, and in
      situations where a serious health condition
      prevents her from performing her job duties
      prior to the child’s birth.
    2. Husbands may also use FMLA to accompany
      an expectant spouse to prenatal visits, to care
      for an expectant spouse with a serious health
      condition, or if needed to care for the spouse
      following the birth of the child if the spouse
      has a serious health condition.
  2. The adoptive or foster care placement of a son or daughter
    with the employee.
    1. FMLA leave may be taken prior to an adoptive
      or foster care placement if the leave is
      necessary for the placement to proceed. This
      would include granting leave for required
      counseling sessions, court appearances, and
      legal or medical consultations.
    2. Adoption: There is no requirement in the Act
      that the source of an adoption be from a
      licensed adoption agency in order for an
      employee to be eligible for FMLA leave. (See
      Section II, A.3., for age limitations for
      son/daughter.)
    3. Paid Parental Leave: Eligible employees will
      receive six (6) weeks of paid parental leave in
      accordance with TBR Policy 5.01.01.08 and
      PSCC Policy 06:07:02, Parental Leave. FMLA
      leave shall run concurrently with parental
      leave, whether paid or unpaid.
    4. Foster Care: This is defined as “24-hour care
      for children in substitution for, and away from,
      their parents or guardian.” The Act requires
      that this placement be made by or in agreement
      with the State and that State action be involved
      in the removal of the child from parental
      custody. Foster care may include children of
      relatives placed within the employee’s home by
      the State.
  3. To care for the employee’s spouse, son, daughter, or parent
    with a serious health condition, as defined below:
    1. Spouse: For purposes of this policy is defined
      by the U.S. Department of Labor – Family
      Medical Leave Act. (Code of Federal
      Regulations; 29 CFR 825.102 Definitions)
    2. Parent: Biological parent or an individual who
      currently stands or stood in place of an absent
      parent to an employee when the employee was
      a child as defined in son/daughter below. The
      definition does not include parents-in-law.
    3. Son/Daughter: Biological, adopted, foster
      child, stepchild, legal ward, or child of a
      person standing in place of an absent parent,
      who is either under age 18, or age 18 or older
      and incapable of self-care because of a mental
      or physical disability. An individual
      “incapable of self-care” means that the
      individual requires active assistance or
      supervision in performing 3 or more activities
      of daily living. An individual with a “physical
      or mental disability” means that the individual
      has an impairment that substantially limits one
      or more of the major life activities of an
      individual. Regulations at 29 CFR Part 1630,
      issued by the Equal Employment Opportunity
      Commission under the Americans with
      Disabilities Act Amendments Act of 2008
      (ADAAA), 42 U.S.C. 12101 et seq., define
      these terms.
      1. For purposes of confirmation of
        family relationship, the president
        (hereafter referred to as
        “Employer”) may require the
        employee giving notice of a need
        for leave to provide reasonable
        documentation or statement of
        family relationship.
      2. This documentation may take the
        form of a simple statement from
        the employee, a birth certificate, a
        court document, etc.
      3. After examination, the employee
        is entitled to the return of the
        official document.
  4. Medical Leave. The employee has a serious health condition resulting
    in an inability to perform job functions.
    1. An employee is unable to perform the functions of their
      position if the Health Care Provider (“HCP”) finds that the
      employee is:
      1. Unable to work at all; or
      2. Unable to perform any one of the position’s
        essential functions within the meaning of the
        ADAAA, 42 USC 12101, et. seq. and the
        regulations at 29 CFR Sec. 1630.2 (n). For
        FMLA purposes, the essential functions must
        be determined with reference to the employee’s
        position when the notice is given or the leave
        commenced, whichever is earlier.
    2. An employee absent from work to receive medical
      treatment for a serious health condition is considered to be
      unable to perform the essential functions of the position
      during the absence for treatment. The Designator may
      provide a copy of the essential functions of the employee’s
      position for the HCP to review when requiring certification.
    3. Service member [or Military Family] Leave
      1. “Qualifying Exigency.” Employees with a spouse, son,
        daughter, or parent (“the Servicemember”) on covered
        active duty or a Federal call to covered active duty in the
        regular Armed Forces, the National Guard or Reserves, or a
        retired member of the regular Armed Forces or Reserves
        may use leave to address exigencies listed below arising
        out of the covered active duty or impending covered active
        duty deployment of the Service member to a foreign
        country:
        
        Short-notice deployment (up to 7 days of
        leave);
        
        Attending certain military events;
        
        Child care or school activities;
        
        Addressing financial and legal arrangements;
        
        Periods of rest and recuperation with the
        Service member (up to 5 days of leave)
        
        Attending counseling sessions related to active
        duty;
        
        Attending post-deployment activities
        (available for up to 90 days after the
        termination of the covered Servicemember’s
        active duty status);
        
        Other activities arising out of the Service
        member’s active duty or call to active duty,
        and agreed upon by the institution and
        employee.
  5. Military Caregiver Leave
    1. An eligible employee who is the spouse, son,
      daughter, parent, or next of kin of a covered
      Service member shall be entitled to a total of
      26 work weeks of leave during a 12-month
      period to care for the covered Service
      member who has a serious injury or illness
      incurred in the line of duty while on covered
      active duty in the Regular Armed Forces,
      National Guard or Reserves provided that such
      injury or illness may render the Service
      member medically unfit to perform duties for
      which the Service member is undergoing
      medical treatment, recuperation, or therapy; or
      is in outpatient status; or is on the temporary
      disability retired list.
      1. A serious health condition also
        includes any injury or illness that
        existed before the beginning of the
        Servicemember’s covered active
        duty that was aggravated by
        service in the line of duty on
        covered active duty.
      2. A veteran of the regular Armed
        Forces, National Guard or
        Reserves will be considered a
        covered Service member for
        purposes of this leave entitlement
        if:
        
        They are undergoing
        medical treatment,
        recuperation or
        therapy for a serious
        injury or illness that
        was incurred by or
        aggravated while on
        covered active duty in
        the Armed Forces,
        whether or not the
        illness or injury
        manifested itself
        before or after the
        member became a
        veteran; and
        
        They were a member
        of the Armed Forced,
        National Guard, or
        Reserves at any time
        during the five-year
        period before
        beginning the
        treatment,
        recuperation or
        therapy.
    2. An employee may take up to 26 workweeks of
      leave on a per Service member, per
      injury/illness basis during a 12-month period,
      beginning on the first day of leave. However,
      no more than 26 workweeks of leave may be
      taken within any single 12-month period.
    3. “Next of kin” means the nearest blood relative
      other than the covered Servicemember’s
      spouse, parent or child designated by the
      Service member in the following order of
      priority:
      1. A legal guardian or custodian; or
      2. A sibling, grandparent, aunt/uncle,
        or first cousin, unless the Service
        member has specifically
        designated in writing another
        blood relative as his/her nearest
        blood relative.
FMLA definition of “a serious health condition” and “period of incapacity
1. “Serious health condition” means an illness, injury, impairment, or
  physical or mental condition involving any of the following:
  1. Inpatient care (i.e., an overnight stay) in a hospital, hospice,
    or residential medical-care facility, including any period of
    incapacity; or
  2. Continuing treatment by a HCP which includes:
    1. A period of incapacity lasting more than 3
      consecutive, full calendar days, and any
      subsequent treatment or period of incapacity
      relating to the same condition that also
      includes:
      1. Treatment 2 or more times by or
        under the supervision of a HCP
        (i.e., in-person visits, the first
        within 7 days and both within 30
        days of the first day of incapacity);
        or
      2. Treatment on at least one occasion
        by a HCP (i.e., an in-person visit
        within 7 days of the first day of
        incapacity) with a continuing
        regimen of treatment. (e.g.,
        prescription medication, physical
        therapy)
    2. Any period of incapacity related to pregnancy
      or for prenatal care. A visit to the HCP is not
      necessary for each absence; or
    3. Any period of incapacity or treatment for a
      chronic serious health condition which
      continues over an extended period of time,
      requires periodic visits (at least twice a year) to
      a HCP, and may involve episodic rather than a
      continuing period of incapacity (e.g., asthma,
      diabetes, epilepsy, etc.). A visit to a HCP is not
      necessary for each absence; or
    4. A period of incapacity that is permanent or
      long-term due to a condition for which
      treatment may not be effective (e.g.,
      Alzheimer’s, severe stroke, or terminal stages
      of a disease). Only supervision by a HCP is
      required, rather than active treatment; or
    5. Any absences to receive multiple treatments,
      including any period of recovery therefrom, for
      restorative surgery after an accident or other
      injury; or, for a condition that would likely
      result in a period of incapacity of more than 3
      days if not treated.
2. “Period of incapacity” means an inability to work, attend school or
  perform other regular daily activities due to the serious health condition,
  treatment or recovery.
3. Absences due to pregnancy or prenatal care, or chronic conditions as
  specified above, fall within FMLA even if no treatment from a HCP is
  received, and even if the absence does not last more than 3 consecutive,
  full calendar days.
Determination of the 12 Workweek/26 Workweek Periods
1. Limitations on Length and Duration
  1. Eligible employees are entitled to up to a total of 12 workweeks of leave
    for family or medical leave, and for a qualifying exigency under Service
    member leave; and, up to 26 workweeks of leave to care for a Service
    member with an injury or illness during a 12-month period.
    1. The initial 12-month period starts on the date the employee’s
      FMLA leave first begins.
    2. A new 12- month period would begin the first time FMLA leave is
      taken after completion of any previous 12-month period.
      1. For example, an employee who first uses FMLA leave on
        October 7, 2008, would have their 12-month period begin
        on that date and continue through October 6, 2009.
      2. If this employee subsequently needed to use FMLA leave
        starting on December 2, 2009, a new 12-month period
        would be established from that date forward through
        December 1, 2010.
  2. A holiday that occurs within the week taken as FMLA leave has no effect;
    the week is counted as a week of FMLA leave.
    1. Exception: If the College is temporarily closed for work for 1 or
      more weeks (e.g., closing for the Christmas/New Year holiday,
      summer breaks), those days do not count as FMLA leave.
    2. If the employee takes intermittent leave, the holiday is not counted
      unless the employee would have been scheduled to work the
      holiday.
  3. Overtime hours. If the employee is normally scheduled to work overtime
    but is unable to do so because of a serious health condition, the overtime
    missed may be counted as FMLA leave.
    1. For example, if an employee would normally be required to work
      48 hours in a particular week, but due to a serious health condition
      the employee is unable to work more than 40 hours that week, the
      employee would utilize 8 hours of FMLA protected leave.
    2. Voluntary overtime hours that an employee does not work due to a
      serious health condition may not be counted against the
      employee’s FMLA leave entitlement.
  4. Part-time employees receive FMLA leave on a pro rata or proportional
    basis.
  5. If an employee’s schedule varies from week to week, a weekly average of
    the hours worked over the 12 workweeks prior to the beginning of the
    leave period would be used for calculating the employee’s normal
    workweek.
2. Leave entitlement for the birth of a child or for adoption or foster care placement
  of a child expires at the end of the 12-month period beginning on the date of the
  birth or placement. FMLA leave for these reasons must be concluded within this
  time period.
3. Leave to care for an injured or ill Service member is to be applied on a per
  covered Service member, per-injury basis such that an eligible employee may be
  entitled to take more than one period of 26 workweeks of leave if the leave is to
  care for different covered Servicemember’s or to care for the same Service
  member with a subsequent serious injury or illness. However, no more than 26
  workweeks of leave may be taken within any single 12-month period.
4. FMLA leave limitations when both spouses are State employees.
  1. Spouses who are both employees of the State are limited to a combined
    total of 12 workweeks of FMLA leave during a 12-month period if the
    leave is taken for the following reasons:
    1. Birth of a child or for care of the child after birth; or
    2. Adoptive or foster care placement of a son or a daughter or for care
      of the child after placement; or
    3. To care for a parent with a serious health condition.
    4. However, each employee would be entitled to take 12 workweeks
      of FMLA leave to care for a child, including a newborn, with a
      serious health condition.
  2. In situations where both spouses use a portion of FMLA leave for one of
    the reasons listed in the previous paragraph, each spouse is entitled to the
    difference between the amount each has taken individually and 12
    workweeks of FMLA leave for reasons other than those listed.
    1. For example, if both spouses use 6 workweeks of leave for the
      birth of a child, each could take an additional 6 workweeks of
      leave for personal illness, or to care for a family member with a
      serious health condition.
    2. In situations where FMLA leave is not taken due to birth, adoption,
      or foster care, or to care for a parent during a given year, each
      spouse is entitled to full 12 workweeks of leave.
    3. Additionally, each employee would be entitled to take 12
      workweeks of FMLA leave to care for a newborn child or child if
      that child has a serious health condition.
  3. If one spouse is ineligible for FMLA leave, the spouse who meets the
    eligibility requirement is entitled to 12 workweeks of FMLA leave.
  4. Service member Leave. The aggregate number of workweeks of leave to
    which both spouses may be entitled is limited to 26 workweeks during a
    12-month period.
5. Use of an intermittent or reduced leave schedule.
  1. “Intermittent Leave” is leave taken in separate blocks of time due to a
    single qualifying reason and may include leave periods from an hour to
    several weeks. A “reduced leave schedule” reduces an employee’s usual
    number of working hours per work-day or work-week.
  2. An employee may take intermittent FMLA leave or have a reduced leave
    schedule over a 12-month time period when medically necessary for:
    1. 1. Planned and/or unanticipated medical treatment of a serious health
        condition by or under the supervision of a HCP;
      2. Recovery from the condition;
      3. Recovery from treatment of the condition; or
      4. To provide care to an immediate family member with a serious
        health condition.
        
        Employees may not use intermittent FMLA leave following
        the birth of a child, or adoptive or foster care placement for
        any reason other than medical necessity.
  3. Intermittent leave or a reduced schedule may also be used for absences
    where the employee or family member is incapacitated or unable to
    perform the position’s essential functions due to a chronic serious health
    condition even if treatment is not rendered by a HCP.
  4. If an employee requests intermittent leave or leave resulting in a reduced
    work schedule, the employer may require that the employee transfer
    temporarily to another position for which the employee is qualified and
    which better accommodates the employee’s need for recurring leave
    periods.
    1. Transfer to an alternative position may include altering an existing
      job to better accommodate the employee’s need for intermittent or
      reduced leave.
    2. This temporary position must have equivalent pay and benefits, but
      need not have equivalent duties.
    3. For information regarding benefits (e.g., insurance and longevity)
      not ordinarily provided to part-time employees that may not be
      eliminated, see Section XVIII.
    4. An employee may not be transferred to an alternative position in
      an effort to discourage use of FMLA leave or otherwise work a
      hardship on the employee (e.g., a day-shift employee may not be
      reassigned to a later shift).
    5. When an employee who transferred to an alternative position is
      able to return to full-time work, they shall be placed in the same or
      equivalent position as the job held when the leave commenced.
    6. An employee cannot be required to take more FMLA leave than
      the circumstance for the leave requires.
  5. The employer must account for intermittent or reduced leave using an
    increment no greater than the shortest period of time that the employer
    uses to account for use of other forms of leave provided that it is not
    greater than one hour and provided further that an employee’s FMLA
    leave entitlement may not be reduced by more than the amount of leave
    actually taken.
Employee Notice Requirements
1. General.
  1. An employee giving notice of the need for FMLA leave does not need to
    expressly assert rights under the Act or even mention the FMLA to meet
    the obligation to provide notice though the employee would need to state a
    qualifying reason for the needed leave and otherwise satisfy the notice
    requirements.
  2. However, if the employee fails to explain the reasons for the leave, the
    request may be denied.
  3. An employee who is absent from work or will be absent from work for
    more than three consecutive days due to a qualifying event must contact
    the manager of Benefits in Human Resources. The manager will provide
    the employee with appropriate forms, along with a copy of their essential
    job functions, if applicable. For further information, contact the manager
    of Benefits, Human Resources, Goins Building, Room 262.
  A. Foreseeable leave
  1. Timing of notice
    1. The employee must provide at least 30 days advance notice before
      the leave is to begin, or if 30 days is not practicable, as soon
      thereafter as possible. The employer may require the employee to
      explain the reasons why notice was not given at least 30 days prior
      to the leave.
    2. Notice need be given only once but the employee shall advise the
      employer as soon as practicable if dates of scheduled leave change
      or are extended, or were initially unknown.
  2. Content of notice
    1. An employee shall provide at least verbal notice sufficient to make
      the employer aware that the employee needs FMLA qualifying
      leave, and the anticipated timing and duration of the leave.
    2. The employer may request medical certification to support the
      need for the leave to determine if the condition qualifies as a
      serious health condition. The employer may request certification
      to support the need for leave for a qualifying exigency or for
      military caregiver leave.
    3. An employee has an obligation to respond to an employer’s
      questions designed to determine whether an absence is potentially
      FMLA qualifying. Failure to respond to reasonable employer
      inquiries may result in denial of FMLA protection if the employer
      is unable to determine whether the leave is FMLA qualifying.
    4. An employer may require an employee to comply with the
      employer’s usual and customary notice and procedural
      requirements for requesting leave, absent unusual circumstances.
  3. Scheduling leave
    1. The employee must consult with the employer and make a
      reasonable effort to schedule planned medical treatments so as not
      to unduly disrupt the employer’s operations subject to the approval
      of the HCP.
    2. Intermittent leave or leave on a reduced schedule must be
      medically necessary due to a serious health condition, injury or
      illness. The employee and employer shall attempt to work out a
      schedule for such leave that meets the employee’s needs without
      unduly disrupting the employer’s operation, subject to the approval
      of the health care provider.
2. Unforeseeable Leave
  1. Timing of notice
    1. An employee must provide notice as soon as practicable under the
      facts and circumstances of the case.
    2. Notice may be given by the employee’s spokesperson if the
      employee is unable to do so personally.
  2. Content of notice
    1. An employee shall provide sufficient information for an employer
      to reasonably determine whether the FMLA may apply to the leave
      request, and the anticipated duration of the absence.
    2. Calling in sick without providing more information will not be
      considered sufficient notice to trigger an employer’s obligations
      under the FMLA. The employer may obtain any additional
      required information by contacting the employee or the employee’s
      spokesperson through informal means.
    3. The employee has an obligation to respond to an employer’s
      questions designed to determine whether an absence is potentially
      FMLA qualifying. Failure to respond to reasonable employer
      inquires may result in denial of FMLA protection if the employer
      is unable to determine whether the leave is FMLA qualifying.
    4. An employer may require an employee to comply with the
      employer’s usual and customary notice and procedural
      requirements for requesting leave, absent unusual circumstances.
    5. If an employee requires emergency medical treatment, they would
      not be required to follow the call-in procedure until their condition
      is stabilized and they have access to, and is able to use, a phone.
Employer Notice Requirements
1. Posting general notice.
  1. All employers are required to post, in conspicuous places, notices
    explaining the provisions of the FMLA.
  2. Electronic posting is sufficient. See the Department of Labor (DOL) Web
    site for a prototype notice.
  3. The DOL notice form may be used, or another format may be used so long
    as the information provided includes, at a minimum, all the information
    contained in the DOL notice.
2. If the employer has an employee handbook or other document explaining
  employee benefits or leave rights, information concerning FMLA entitlement, and
  employer/employee responsibilities and obligations must be included.
3. Eligibility notice
  1. When an employee requests FMLA leave or when the employer acquires
    knowledge that an employee’s leave may be for an FMLA qualifying
    reason, the employer must notify the employee of eligibility to take FMLA
    leave within 5 business days, absent extenuating circumstances.
  2. If the employee is not eligible, the notice must state at least one reason
    why.
  3. Notification of eligibility may be oral or in writing and employers may use
    DOL forms to provide notice.
4. Rights and responsibilities notice.
  1. Employers must provide written notice detailing the specific expectations
    and obligations of the employee and explain any consequences of a failure
    to meet these obligations.
  2. This notice must be provided each time an eligibility notice is provided.
  3. The notice must, at minimum, include, as appropriate:
    1. That the leave may be designated and counted against the
      employee’s annual FMLA leave entitlement;
    2. Any requirements for the employee to furnish certification of a
      serious health condition, serious injury or illness, or qualifying
      exigency arising out of active duty or call to active duty status, and
      the consequences of failing to do so;
    3. That the employer will substitute paid leave and the employee’s
      entitlement to take unpaid FMLA leave if they do not have
      sufficient accrued paid leave;
    4. Any requirement for the employee to make any premium payments
      to maintain health benefits and the arrangements for making such
      payments, and the possible consequences of failure to make such
      payments on a timely basis;
    5. The employee’s rights to maintenance of benefits during the
      FMLA leave and restoration to the same or an equivalent job upon
      return from FMLA leave; and,
    6. The employee’s potential liability for payment of health insurance
      premiums paid by the employer during the employee’s unpaid
      FMLA leave if the employee fails to return to work after taking
      FMLA leave.
  4. The employer may use the appropriate DOL form as the notice of rights
    and responsibilities. This notice may be distributed electronically so long
    as it otherwise meets the requirements of this section.
5. Designation Notice
  1. When the employer has enough information to determine whether the
    leave is being taken for an FMLA qualifying reason, the employer must
    notify the employee whether the leave will be designated and counted as
    FMLA leave within 5 business days absent extenuating circumstances.
    1. At the time of designating the leave as FMLA leave; the employer
      must indicate that paid leave will be utilized when the employee
      has accumulated leave balances.
    2. An employee with no accumulated sick or annual leave balances
      must take leave as unpaid, unless otherwise stipulated in other
      TBR or PSCC leave policies.
    3. TBR and PSCC leave policies and the FMLA leave policies shall
      run concurrently and not consecutively.
  2. Only one notice of designation is required for each FMLA qualifying
    reason per applicable 12-month period, regardless of whether the leave
    taken due to the qualifying reason will be a continuous block of leave, or
    intermittent or reduced schedule leave.
  3. If the employer determines that the leave will not be designated as
    FMA qualifying, the employee must be so notified.
  4. If the employer will require the employee to present a fitness-for-duty
    certification to be restored to employment, the employer must provide
    notice of such requirement with the designation notice.
    1. If the fitness-for-duty certification must address the employee’s
      ability to perform the essential functions of their position, the
      employer must so indicate in the designation notice, and must
      include a list of the essential functions of the position.
  5. The designation notice must be in writing and the appropriate DOL form
    may be used for this purpose. If the leave cannot be designated as FMLA
    leave, the notice may be in the form of a simple written statement.
  6. The employer must notify the employee of the amount of leave counted
    against their FMLA leave entitlement.
    1. If the amount of leave needed is known at the time the leave is
      designated as FMLA leave, the employer must notify the employee
      of the number of hours, days or weeks that will be counted against
      the employee’s FMLA leave entitlement in the designation notice.
    2. If it is not possible to provide this information, such as in the case
      of unforeseeable intermittent leave, the employer must provide
      notice of the amount of leave counted against the employee’s
      FMLA leave entitlement at the request of the employee, but no
      more often than once in a 30-day period and only if FMLA leave
      was taken in that period.
Designation of FMLA Leave
1. Employer responsibilities.
  1. The decision to designate leave as FMLA qualifying must be based only
    on information received from the employee or the employee’s
    spokesperson.
  2. If the employer does not have sufficient information about the reason for
    the use of leave, the employer should inquire further of the employee or
    spokesman.
  3. The employer must then provide the appropriate notice pursuant to the
    prior section.
2. Employee responsibilities
  1. An employee giving notice of the need for FMLA leave does not need to
    expressly assert rights under the FMLA or even mention the FMLA to
    meet the obligation to provide notice, though they would need to state a
    qualifying reason for the needed leave and otherwise satisfy the notice
    requirements of Section V.
  2. If an employee fails to adequately explain the need for FMLA leave, the
    request may be denied.
3. Retroactive designation.
  1. The employer may retroactively designate leave as FMLA leave with
    appropriate notice to the employee provided the employer’s failure to
    timely designate leave does not cause harm or injury to the employee.
Certification
1. General
  1. A request for certification must be made in writing.
  2. The employer should make a request for certification at the time the
    employee gives notice of the need for leave or within 5 business days
    thereafter; or, in the case of unforeseen leave, within 5 business days after
    the leave begins.
  3. The employee must provide the requested certification within 15 calendar
    days after the request unless it is not practicable under the particular
    circumstances to do so despite the employee’s diligent, good faith efforts.
    The employee is responsible for paying any costs associated with
    obtaining a certification or recertification, and any necessary clarification
    or authentication.
  4. If the employee does not provide a complete and sufficient certificate, the
    employer must state in writing what additional information is necessary to
    make the certification complete and sufficient. If items on the certification
    are not filled in, or the information provided is vague, ambiguous or non
    responsive, the certification may be considered incomplete. The employee
    must be allowed 7 calendar days to cure any deficiencies.
  5. No information beyond that specified below in Section IX may be
    required to be provided.
  6. The employee may provide the employer with an authorization, release or
    waiver allowing the employer to communicate directly with the HCP, but
    the employee must not be required to do so.
2. Consequences
  1. At the time the employer requests certification, the employee must be
    advised that the FMLA leave request may be denied if the certification is
    incomplete or insufficient despite the opportunity to cure the deficiencies,
    or if the employee fails to provide any certification.
  2. It is the employee’s responsibility to furnish a complete and sufficient
    certification, or to furnish the HCP the necessary authorization to
    complete the certification.
  3. These principles apply whether the request is the initial certification, a
    recertification, a second or third opinion, or a fitness for duty certificate,
    including any clarifications necessary to determine if such certifications
    are authentic and sufficient.
Certification of Serious Health Condition of Employee or a Covered Family Member
1. Permissible information
  1. The name, address, telephone number and fax number of the HCP, and
    type of medical practice/specialization;
  2. The approximate date on which the serious health condition began, and its
    probable duration;
  3. A statement or description of appropriate medical facts regarding the
    patient’s health condition for which FMLA leave is requested.
    a. These facts must be sufficient to support the need for leave and
    may include information on symptoms, diagnosis, hospitalization,
    doctor visits, whether medication has been prescribed, any referrals
    for evaluation or treatment, or any other regimen of continuing
    treatment.
  4. If the employee is the patient, information sufficient to establish that they
    cannot perform the essential functions of their job, the nature of any other
    work restrictions; and, the likely duration of such inability.
  5. If the patient is a covered family member, information sufficient to
    establish that the family member is in need of care, and an estimate of the
    frequency and duration of the leave required to care for the family
    member.
  6. If the employee requests leave on an intermittent or reduced schedule
    basis for planned medical treatment for themselves, or a family member,
    information sufficient to establish the medical necessity and an estimate of
    the dates and duration of such treatments and any periods of recovery.
  7. If the employee requests leave on an intermittent or reduced schedule
    basis for a serious health condition, including pregnancy, that may result
    in unforeseeable episodes of incapacity, information sufficient to establish
    the medical necessity for such leave and an estimate of the frequency and
    duration of the episodes of incapacity.
  8. If the employee requests leave on an intermittent or reduced schedule
    basis to care for a covered family member, a statement that such leave is
    medically necessary to care for the family member who can include
    assisting in recovery, and an estimate of the frequency and duration of the
    required leave.
2. The appropriate DOL form may be used to obtain information concerning the
  employee’s serious health condition or the serious health condition of a covered
  family member. These forms may also be used if seeking second and third
  opinions.
3. Workers’ compensation – If the employee is concurrently on FMLA leave and
  workers’ compensation leave, the FMLA does not prevent the employer from
  following the workers’ compensation provisions in seeking information even if
  such would allow inquires beyond that allowed under the FMLA. Information
  received may be considered in determining the employee’s entitlement to
  FMLA protected leave.
4. ADAAA – If the employee’s serious health condition may also be a disability
  pursuant to the ADAAA, the FMLA does not prevent the employer from
  following the procedures for requesting medical information under the
  ADAAA. Any information received may be considered in determining the
  employee’s entitlement to FMLA protected leave.
5. Clarification and authentication of certification.
  1. If the employee submits an incomplete or insufficient certification signed
    by the HCP, the employer may contact the HCP for purposes of
    clarification and authentication.
    1. The employee must first have been given 7 calendar days to cure
      the deficiency.
    2. Employers may not ask for additional information beyond that
      required by the certification form as set out in Section IX.A.
  2. The employee must provide an authorization for the employer to contact
    the HCP.
  3. A HCP, human resources professional, leave administrator or a
    management official may contact the HCP for clarification or
    authentication. Under no circumstances shall the employee’s direct
    supervisor contact the HCP.
  4. “Authentication” means providing the HCP with a copy of the certification
    and requesting verification that the information contained on the
    certification form was completed and/or authorized by the HCP who
    signed the document.
  5. “Clarification” means contacting the HCP to understand the handwriting
    on the medical certification or to understand the meaning of a response.
  6. It is the employee’s responsibility to provide a complete and sufficient
    certification and to clarify the certification if necessary. Failure to do so or
    failure to provide authorization to contact the HCP may result in the denial
    of FMLA leave.
6. Second and Third Opinions
  1. Second opinion
    1. If the employer doubts the validity of a certification, the employee
      may be required to obtain a second opinion which shall be at the
      employer’s expense.
    2. The employer is permitted to designate the HCP but the HCP must
      not be employed on a regular basis by the employer.
  2. Third opinion
    1. If the first and second opinions differ, the employer may require
      the employee to obtain certification from a third HCP at the
      employer’s expense.
    2. The third HCP must be designated or approved jointly by the
      employer and the employee.
    3. The third opinion shall be final and binding.
  3. Pending receipt of a second or third opinion, the employee is provisionally
    entitled to the benefits of the FMLA, including maintenance of group
    health benefits.
7. FMLA leave may be denied and the leave designated as paid or unpaid under the
  employer’s established leave policies if:
  1. The certifications do not ultimately establish entitlement to FMLA leave;
    or,
  2. The employee fails to provide authorization for their HCP to release all
    relevant medical information pertaining to the serious health condition at
    issue if requested by the HCP designated to provide the second or third
    opinion.
8. Recertification
  1. 30-day rule – An employer may request recertification no more often than
    every 30 days and only in connection with an absence by the employee,
    unless sections 2 or 3 apply.
  2. More than 30 days
    1. If the medical certification indicates the minimum duration of the
      condition is more than 30 days, an employer must wait until that
      minimum duration period expires before requesting a
      recertification.
    2. Notwithstanding the limitation set forth above, an employer may
      request a recertification every 6 months in connection with an
      absence by the employee.
  3. Less than 30 days – An employer may request certification in less than 30
    days if:
    1. The employee requests an extension of leave;
    2. Circumstances described by the previous certification have
      changed significantly (e.g., the duration or frequency of the
      absence, the nature or severity of the illness, or complications); or,
    3. The employer receives information that casts doubt on the stated
      reason for the absence or the continuing validity of the
      certification.
  4. The employee must provide the recertification within the timeframe
    requested by the employer which must allow no less than 15 calendar
    days.
  5. The employer may ask for the same information as that permitted for the
    original certification, and the employee has the same obligation to
    participate and cooperate in providing a complete and sufficient
    certification.
  6. The employer may provide the HCP with a record of the employee’s
    absence pattern and ask if the serious health condition and need for leave
    is consistent with such a pattern.
  7. Any recertification requested by the employer may be at the employee’s
    expense.
  8. No second or third opinion on recertification may be required.
Certification of Qualifying Exigency
1. Active duty orders
  1. The first time an employee requests leave based on a qualifying exigency
    arising out of the active duty or call to active duty status of a covered
    military member, the employer may require the employee to provide a
    copy of the covered military member’s active duty orders or other
    documentation issued by the military that indicates that the covered
    military member is on active duty or call to active duty status in support of
    a contingency operation, and the dates of the active duty service. This
    information need only be provided once.
  2. A copy of new active duty orders or other documentation issued by the
    military shall be provided to the employer if the need for leave because of
    a qualifying exigency arises out of a different active duty or call to active
    duty status of the same or a different covered military member.
2. Required information – The employer may require a certification from
  the employee that sets forth the following information:
  1. A statement or description, signed by the employee, of appropriate facts
    regarding the qualifying exigency, including the type of qualifying
    exigency and any documentation which supports the request for leave.
  2. The approximate date(s) of the qualifying exigency.
    1. If the event is a single, continuous period of time, the beginning
      and end dates.
    2. If the leave request is for an intermittent or reduced schedule, an
      estimate of the frequency and duration of the qualifying exigency.
  3. If the event involves meeting with a third party, appropriate contact
    information for the third party, and a brief description of the purpose of
    the meeting.
3. The appropriate DOL form may be used. No information beyond that specified
  may be required.
4. Verification
  1. If the certification is complete and sufficient to support the request for
    leave, no additional information may be requested.
  2. However, if the qualifying exigency concerns meeting with a third party,
    the employer may contact the third party to verify the nature and time of
    the meeting.
  3. The employer may contact the Department of Defense to request
    verification that a covered military member is on active duty or call to
    active duty status.
  4. If verification occurs pursuant to either item 2 or 3, no additional
    information may be requested and the employee’s permission is not
    required.

Refer to Tennessee Board of Regents Policy No. 05:01:01:14 Family, Medical, and
Servicemember Leave

Approved: President Allen G. Edwards, July 14, 2003
Reviewed/Recommended: President’s Staff, May 19, 2008
Approved: President Allen G. Edwards, May 19, 2008
Editorial Changes, April 30, 2009
Reviewed/Recommended: President’s Council, September 30, 2013
Approved: President L. Anthony Wise, Jr. September 30, 2013
Reviewed/Recommended, no changes, President’s Council, March 4, 2019
Approved: President L. Anthony Wise Jr., March 4, 2019
Reviewed/Recommended: President’s Council, November 27, 2023
Approved: President L. Anthony Wise, Jr., November 27, 2023