October 24, 2014

Family and Medical Leave

Marine Biological Laboratory
Policy No. G.1.10
Human Resources

Initiated by:Human Resources Director
Approved by: MBL Director/CEO
Date:August 5, 1993
Revision #6, February 12, 2013
Distribution:MBL Community

1.0 Policy Statement

Both the Federal and State Governments have enacted legislation relating to leave for family and medical issues. This policy is an attempt to coordinate these various laws into one policy. It is the intention of the MBL to assist as practicably as possible, all staff members in their efforts to balance work and family life. The three laws that are addressed in this policy are:

  • Massachusetts Maternity Leave Act (MMLA) of 2000 (State Law)
  • Family and Medical Leave Act (FMLA) of 1993 (Federal Law)
  • Small Necessity Leave Act (SNLA) of 1998 (State Law)

2.0 Massachusetts Maternity Leave Act (MMLA)

2.1 Eligibility

2.1.1 All regular full and part-time employees who have completed the Laboratory’s initial probationary period.

2.2 Provisions

2.2.1 Massachusetts Maternity Leave Act, allows a female employee to take up to 8 weeks of unpaid leave for the purpose of (1) giving birth to a child, (2) the adoption of a child under 18 years old, or (3) the adoption of a person under 23 years old who is mentally or physically disabled. Male employees may also apply for Massachusetts Maternity Leave.

2.2.2 The phrase “for the purpose of” giving birth or adopting refers to preparing for or participating in the birth or adoption of a child. Thus, the leave must begin shortly before or after the birth or adoption.

2.2.3 Male and female eligible employees under this maternity policy who give birth or adopt may qualify to use up to 8 weeks of accrued unused sick time. You may (but are not required) to use accrued vacation or sick time during any unpaid portion of your maternity leave.

2.3 Required Notice
Employees are required to give at least two weeks notice of anticipated date of departure. Upon giving notice of an intention to take leave, an employee must inform the Laboratory of an expected return to work date. An employee who fails to return to work at the end of his or her leave or at the end of the eight-week leave period will be considered to have voluntarily resigned from his or her employment.

2.4 Coordination with other laws
In many cases, eligible females and males under this maternity leave policy will also qualify for FMLA leave, which runs concurrently with the maternity leave. Thus, when both this policy and the FMLA apply, your leave will be counted simultaneously for both the FMLA and maternity leave policies.

3.0 Family and Medical Leave Act

3.1 Eligibility
Any employee who has worked for the Laboratory for at least twelve months and has worked at least 1,040 hours in the 12 month period immediately preceding the commencement of the leave is eligible for a Family and Medical Leave Act (FMLA) leave.

3.2 Reasons for Leave

3.2.1 A maximum of 12 weeks of unpaid family and medical leave during any rolling 12 month period for one or more of the following reasons:

a. Because of the birth or placement for adoption or foster care of a new son or daughter and in order to care for that child;
b. To care for an employee’s parent, spouse, son or daughter with a serious health condition; and
c. Where a serious health condition makes the employee unable to perform the essential functions of his or her position.
d.  Because a spouse, parent or child is on or has been called to active duty and experiences a “qualifying exigency”.  The eight categories of “qualifying exigency” are:  1. short-notice deployment (leave permitted up to seven days if the military member receives seven or less day’s notice of a call to active duty), 2. military events and related activities, 3. certain temporary childcare arrangements and school activities (but not ongoing childcare), 4. financial and legal arrangements, 5. counseling by a non-medical counselor, 6. rest and recuperations (leave permitted up to 15 days when the military member is on temporary rest and recuperation leave), and 7. post-deployment military activities, 8. care for a military member’s parent who is incapable of self-care.

3.2.2  A maximum of 26 weeks of unpaid family and medical leave during any single 12 month period on a per-covered service member, per-injury basis to care for a spouse, son, daughter, parent or next of kin of a covered service member who has a serious injury or illness. A covered service member must be a member of the armed forces, National Guard or reserves and suffer from an injury of illness incurred on active duty in the armed forces or that existed prior to service and was aggravated in the line of duty that may render him medically unfit to perform the duties of his office, grade, rank or rating and be undergoing medical treatment, recuperation or therapy, be in outpatient status or be on the temporary disability retired list as a result of the serious injury or illness.  This leave also applies to certain veterans with a serious injury or illness who were members of the Armed Forces during the preceding five years.

3.3 Required Notice
Employees are expected to submit a written request for leave as far in advance as possible to the Human Resources Department.

In instances where leave is foreseeable, employees must provide 30 days advance notice of the leave request. In cases of planned medical treatment, the employee should consult with his or her immediate supervisor in an attempt to schedule the leave so as to not unduly disrupt the Laboratory operations. Where leave is not foreseeable, such as during a medical emergency, notice must be given as soon as is practicable, and ordinarily within one or two business days of when the employee learns of the need for the leave.

In the case of a foreseeable intermittent leave for planned medical treatment or during a period of recovery from a serious health condition, the Laboratory may require an employee to transfer temporarily to an available alternative position, at the equivalent pay and benefits, for which the employee is qualified and which better accommodates recurring periods of leave than does the employee’s regular position.

4.0 Use Of Accrued Vacation And Sick Time In Conjunction With Family And Medical Leave

Unless you qualify for leave under the Massachusetts Maternity Leave Act, see section 2.1 of this policy, the Laboratory requires that you use any accrued but unused vacation time (and sick time if illness is the reason for leave) before commencing the unpaid portion of your Family and Medical Leave.

Any vacation or sick time used by you in conjunction with Family and Medical Leave will be counted against the twelve-week maximum leave period described above. For any family and medical leave
where accrued paid time (vacation and sick time) is substituted, the employee must meet the procedural requirements of this Family and Medical Leave policy.

5.0 Conditions On Use of Leave

5.1 Birth Or Placement For Adoption Or Foster Care Of A New Son Or Daughter
An employee must conclude any such leave within one year of the birth or placement for adoption or foster care of a new son or daughter. In the event that an employee’s spouse works for the Laboratory, the employee and the spouse are limited to a combined total of twelve weeks of leave in the event that leave is taken for the birth, or placement for adoption or foster care of a new son or daughter.

5.2 Serious Health Condition Of The Employee Or A Family Member
In accordance with the FMLA, a “serious health condition” means an illness, injury, impairment, or physical or mental condition that involves one of the following:

5.2.1. Hospital Care
Inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility, including any period of incapacity1 or subsequent treatment in connection with or consequence to such inpatient care.

5.2.2 Absence Plus Treatment
A period of incapacity of more than five consecutive calendar days (including any subsequent treatment or period of incapacity relating to the same condition), that also involves:

Treatment 2 two or more times by a health care provider, by a nurse or physician’s assistant under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under order of, or on referral by, a health care provider; or treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment 3 under the supervision of the health care provider.

5.3 Pregnancy

Any period of incapacity due to pregnancy, or for prenatal care.

5.4 Chronic Conditions Requiring Treatments

5.4.1 Requires periodic visits for treatment by a health care provider, or by a nurse or physician’s assistant under direct supervision of a health care provider;

5.4.2 Continues over an extended period of time (including recurring episodes of a single underlying condition); and

5.4.3 May cause episode rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).

5.5 Permanent/Long-Term Conditions Requiring Supervision
A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective. The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider. Examples include Alzheimer’s, a severe stroke, or the terminal stages of a disease.

5.6 Multiple Treatment (Non-Chronic Conditions)
Any period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider or by a provider of health care services under orders of, or on referral by, a health provider, either 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 three calendar days in the absence of medical intervention or treatment, such as cancer ( chemotherapy, radiation, etc.), severe arthritis (physical therapy) kidney disease (dialysis).

The Laboratory retains the right to make an independent assessment of whether an injury, illness, or impairment involving certain medical treatment constitutes a “serious health condition” for purposes of this policy. If an employee has questions as to whether an injury, illness or impairment involving certain medical treatment constitutes a “serious health condition,” inquiries should be directed to the Human Resources Department.

Intermittent or reduced leave, as a result of an employee’s serious health condition or that of a family member may be taken where medically necessary. If an employee desires to take intermittent or reduced leave, the employee must provide the Laboratory with a medical certification that it is medically necessary for the employee to be off work on an intermittent or reduced basis and the expected duration and schedule of the intermittent or reduced leave as well as a statement by the employee of the reasons why the intermittent or reduced leave. Employees needing intermittent or reduced leave must attempt to schedule their leave so as not to disrupt the Laboratory operations.

6.0 Medical Certification

The Laboratory requires certification by a health care provider of any serious health condition for which an employee takes leave under this policy, including certification of a serious health condition of a spouse, child or parent of the employee. An employee must provide the medical certification of a serious health condition as soon as practicable, but no later than 15 calendar days after the employee requests leave. Failure to provide the medical certification within the above described period may result in disciplinary action, up to and including termination. The Laboratory also may require that an employee provide periodic updates of the employee’s health status and intent to return to work. At its discretion, the Laboratory may require recertification of a serious health condition if, for example, passage of time or other circumstances indicate that the condition may have improved to the point that leave is no longer necessary. The Laboratory also may require a second opinion from a health care provider of its choosing and if necessary, a third opinion from a health care provider jointly chosen by the Laboratory and the employee regarding the serious medical condition upon which leave is to be or has been taken under this policy. If the Laboratory requires that an employee obtain a second or third opinion, the Laboratory will pay the costs associated with obtaining that opinion.

The Laboratory requires an employee who takes leave as a result of his or her own serious illness to provide a fitness for duty certification signed by a health care provider before returning to work. An employee may not resume work until he or she provides such a certification.

7.0 Medical Insurance/Other Benefits

If the Laboratory pays for any portion of an employee’s health insurance, the Laboratory will continue to pay its normal share of insurance costs while the employee is out on Family and Medical Leave.

In the event that the employee does not return to work after his/her leave, the employee must reimburse the Laboratory for any health insurance payments the Laboratory made for the employee’s benefit while the employee was on unpaid leave, except if the reason is due to the continuation, recurrence or onset of a serious health condition or other circumstances beyond the employees control. The Laboratory may recover any costs paid to maintain any of the employee’s non-health insurance benefits while the employee was on unpaid leave, whether or not the employee returns from leave. The Laboratory also may recover the benefit payments above through any allowable deduction from any sums owed to the employee or through legal action.

8.0 Reinstatement/Transfer To Alternate Position

Any employee who takes leave under this policy will be restored to the same or an equivalent position upon his or her return from leave provided that the employee’s job still exists and the employee would have continued to be employed in that job had he or she not taken leave. Nothing in this policy grants an employee a right to return to the employee’s former position following a return from leave. In the event that an employee takes intermittent leave or works a reduced work schedule as a result of his or her own serious medical condition or that of a family member, the Laboratory may, at its discretion, transfer the employee to another position at the Laboratory for the duration of the intermittent leave or reduced work schedule. In the event the Laboratory chooses to make such a reassignment, the employee will continue to receive the same rate of pay and benefits as the employee’s previous job.

The Laboratory may deny reinstatement to an employee if the Laboratory determines that the individual is a key employee whose reinstatement would cause substantial and grievous economic harm to the Laboratory operations. The Laboratory will inform all employees who fall within this category of their status as key employees before commencement of Family and Medical Leave.

9.0 Miscellaneous

An employee may take no more than twelve weeks of Family and Medical Leave under the provisions of the FMLA. For purposes of this policy, each one year period is measured as follows: A rolling period measured backward from the date on employee uses any FMLA leave. An employee does not accrue additional benefits such as vacation, or sick days while on unpaid Family and Medical Leave.

Requests for extension of unpaid leave beyond the twelve weeks set by this policy will be considered on a case-by-case basis, only after the employee makes a written request for extension to the Human Resources Department. A decision to extend leave is solely within the discretion of the management of the Laboratory.

An employee will receive a letter summarizing his or her rights under this policy upon notification of the Laboratory by the employee of a need for Family and Medical Leave. This policy supersedes all other Laboratory policies on maternity, family, adoption and medical leaves of absence.

10.0 Small Necessities Leave Rights

10.1 Eligibility
All regular full-time and regular part-time employees with at least (12) months of service and who have worked at least 1040 hours during the 12 months immediately preceding the commencement of leave.

10.2 Provisions

In addition to the twelve (12) weeks of unpaid FMLA leave employees may take up to an additional twenty-four (24) hours of unpaid leave in the twelve-month period, for the following purposes:

10.2.1 to take a child or elderly (at least 60 years old) relative (by blood or marriage) to a routine medical or dental appointment; or

10.2.2 to participate in a child’s educationally-related school activity (including licensed day care facilities), such as a parent-teacher conference or interviewing for a new school.

10.3 Notice

Employees who qualify to take leave under this Section are required to give the Laboratory not less than seven (7) days notice of an intention to take leave if the need for leave is foreseeable. If the need for leave is not foreseeable, employees must give notice as soon as practicable.

Employees may be asked to provide certification for the absence.

10.4 Use of vacation and sick accrual

The Laboratory requires that an employee use any accrued but unused vacation (and sick accrual if applicable) before commencing the unpaid portion of his or her small necessities leave, which will be counted against the twenty-four (24) hour leave period described above.

11.0 Administration of the Family and Medical Leaves

11.1 Human Resources is responsible for the administration of the Family and Medical Leave policy.

11.2 All MBL leaves of absence shall run concurrently with Family and Medical Leave, if Family and Medical Leave is applicable.

11.3 Employees may not add one leave onto another except as required by law.

Definitions referred to in the policy:

  1. “Incapacity”, for purposes of FMLA, is defined to mean inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.
  2. “Treatment” includes examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations.
  3. A “regimen of continuing treatment” includes, for example, a course of prescription medication (e.g., an antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition. A regimen of treatment does not include the taking of over-the-counter medications such as aspirin, antihistamines, or salves; or bed-rest, drinking fluids, exercise, and other similar activities that can be initiated without a visit to a health care provider.
  4. For purposes of exigency leave, the term “active duty or a call to active duty status” is only made available to members of the National Guard or Reserve components or a retired member of the Regular Armed Forces or Reserve or an active member of the Regular Armed Forces or Reserves as a result of deployment to a foreign country.