FMLA Terms and Definitions
Serious Health Condition
A “Serious Health Condition” means an illness, injury impairment, or physical or mental condition that involves one of the following:
Inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility, including any period of incapacity or subsequent treatment in connection with or consequent to such inpatient care.
Absence Plus Treatment
A period of incapacity of more than three consecutive calendar days (including any subsequent treatment or period of incapacity relating to the same condition) that also involves:
- treatment two or more times by a health care provider, by a nurse or physician’s assistant under direct supervision of a healthcare provider, or by a provider of health services (e.g., physical therapist) under orders 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 under the supervision of the health care provider;
- the treatment must be in person;
- the first visit must be within seven days of the onset of the condition; and
- the second visit must be within 30 days of the first visit.
A “chronic condition” requires at least two visits to a health care provider each year.
Any period of incapacity due to pregnancy, or for prenatal care.
Chronic Conditions Requiring Treatments
A chronic condition which:
Requires at least two visits per year for treatment by a health care provider, or by a nurse or physician’s assistant under direct supervision of a health care provider;
Continues over an extended period of time (including recurring episodes of a single underlying condition); and
May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).
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.
Multiple Treatments (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 care provider, either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity more than three consecutive calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), kidney disease (dialysis).
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 therefor, or recovery therefrom.
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.
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.
Care of a family member
- Encompasses both physical and psychological care
- Includes situations where the employee may be needed to fill in for others who are caring for the family member
- May include intermittent leave
- The employee’s legal husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides
- A biological parent of the employee
- An individual who stands or stood “in loco parentis” to an employee by providing primary day-to-day care and financial support when the employee was a child
- Coverage does not include parents-in-law
- The employee’s biological son or daughter under the age of 18
- A legally adopted son or daughter under the age of 18
- A foster child, stepchild or ward under the age of 18, legally placed with the employee
- Any such child over the age of 18 if the child is incapable of self-care due to a mental or physical disability
- “Incapable of self-care” means requiring active assistance or supervision to provide daily self-care in three or more basic or instrumental “activities of daily living,” such as grooming & hygiene, bathing, dressing, eating, cooking, taking public transportation, etc.
- A “physical or mental disability” is one that substantially limits one or more major life functions as defined under the Americans with Disabilities Act (ADA)
Continuous & intermittent leave
Leave for one’s own serious health condition, or for the care of a family member with a serious health condition, may be taken on a continuous basis – or on an intermittent basis in increments as small as one hour – if medically indicated. Institutions have the discretion to determine whether to allow intermittent leaves for birth, adoption, or foster placement – or whether such leaves must be continuous.
Intermittent leave or reduced work schedule
- There must be a medical need for leave which can be best accommodated through an intermittent or reduced work schedule
- An employee must attempt to schedule leave or reduced work so as not to disrupt the employer’s operations
- The employer may assign the employee to an alternative position with equivalent pay and benefits that better accommodates the employee’s intermittent leave or reduced work schedule
- Intermittent leave may include leave periods of an hour or more, up to several weeks
- Only the amount of leave actually taken is counted toward the 12 weeks of eligibility. For example:
- an employee who normally works 5 days per week and takes off 1 day per week as intermittent FMLA leave is charged 1/5 of a week of FMLA leave
- an employee who normally works 8-hour days, but who works half-days under a FMLA reduced work schedule would be charged 1/2 week of FMLA leave
- The granting of intermittent leave or a reduced work schedule for well-child care after the birth, adoption, or placement of a child is at the discretion of the institution.
Rolling 12-month calendar
The retrospective 12-month period as measured backward from the date the employee began using FMLA leave.
To determine if an employee is eligible for FMLA leave during any given work week* on a “rolling year” basis, one looks back over the 12 months immediately preceding that week. If the employee has not utilized the equivalent of 12 weeks of FMLA-qualifying leave in the 12 months prior to the date in question, then the employee is eligible for that week of leave (assuming all other eligibility criteria are met). In utilizing a rolling year, this analysis may be conducted each week to determine continued eligibility.
* The fact that a holiday may occur within the week taken as FMLA leave has no effect; the week is counted as a week of FMLA leave. If, however, the institution’s business operations have ceased, and employees are generally not expected to report for work for one or more weeks (e.g., during the winter holiday break), those days do not count against the employee’s FMLA entitlement.
If a University System employee is working and residing outside of the State of Georgia, due to his/her employment situation, local state law may be applicable for FLMA. The Human Resource Director of the employing institution may need to seek assistance from the University System Office of Legal Affairs for interpretation of applicable state law.
Change in Circumstances
During the course of taking FMLA leave, the circumstances regarding the leave may change. For example, the employee may discover that more leave than planned is necessary for recovery from the employee’s own or a family member’s serious health condition. Conversely, recovery may be faster than anticipated and less leave is required. The employee may wish to return to work sooner than planned.
The supervisor may require the employee to provide reasonable notice of these changed circumstances. Reasonable notice usually means within two business days.
Health Care Provider
The following individuals licensed/authorized to practice in the state in which they practice, and performing within the scope of their practice as defined under state law:
- Doctors of medicine or osteopathy authorized to practice medicine or surgery
- Clinical psychologists
- Chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist)
- Nurse practitioners
- Clinical social workers
- Christian Science practitioners listed with the First Church of Christ Scientist in Boston, Massachusetts
- Any health care provider from whom the University System’s health care plans will accept certification of the existence of a serious health condition
Intent to Return to Work
If the supervisor requires it, the employee must periodically report to the supervisor regarding the employee’s status and intent to return to work. Status generally refers to the employee’s or the family member’s progress in recovery from a serious health condition.
Any time the employee gives unequivocal notice of intent not to return to work, the University System’s obligations under the FMLA stop. This means the University System is no longer obligated to maintain group health benefits for the employee, and the University System is not required to restore the employee to an equivalent job.
For example, an employee who is on FMLA leave for the birth of a child and care of that child, might advise the supervisor she has decided to stay home with the child and not return to work. Once the employee advises the supervisor of this decision, the University System’s responsibilities under the FMLA stop.
Notice for foreseeable leave
To take FMLA leave, the employee must provide the supervisor with notice of the need to take leave. When providing notice, the employee is not required to identify the leave specifically as FMLA leave, but must provide sufficient information regarding the nature of the leave to enable the supervisor to make a determination of the applicability of FMLA. In all situations, it is the supervisor’s responsibility to designate leave as FMLA leave.
If the leave is foreseeable, the employee must notify the supervisor of the need for leave at least 30 days before the date leave is to begin. If the leave is foreseeable and the employee fails to provide the 30-day notice, the supervisor may delay the taking of leave until 30 days have elapsed after the date of the employee’s notice.
Some possible examples of foreseeable need for leave are leave for the birth of a child and leave for elective surgery. However, there may be a change in circumstances or a medical emergency that necessitates the taking of leave earlier than anticipated. For example, an employee’s doctor may decide that to protect the health of the employee, a baby should be delivered through surgery earlier than the estimated date of delivery. When the circumstances change and leave is needed earlier than anticipated, the employee should notify the supervisor as soon as practicable (depending upon the circumstances, usually within one or two business days).
Notice for unforeseeable leave
In complying with the requirement to provide the supervisor with notice of the need to take leave, the need to take leave may take place from an unforeseeable or unanticipated event. This could arise, for example, because circumstances have changed regarding planned leave or due to a medical emergency.
When the need to take leave is unforeseeable, the employee is required to provide the supervisor with notice of the need for leave as soon as practicable. This means, generally, that notice is provided within one or two business days of when the employee becomes aware of the need for leave. The timing of the notice is dependent upon the nature of the circumstances that cause the need for leave.
The notice may be provided in person, by telephone, telegraph, fax, or other electronic means. There may be circumstances in which the employee is incapable of providing notice personally. For example, the employee may be unconscious in the hospital. When this occurs, a representative of the employee, spouse, adult family member, doctor, attorney, etc., may provide the initial notice of the need for leave to the supervisor.
Protection from Discrimination
A supervisor may not take any adverse action or otherwise discriminate against an employee or prospective employee who has taken FMLA leave.
A supervisor may not interfere with any rights provided by FMLA, including:
- Refusing to authorize FMLA leave
- Discouraging an employee from using FMLA leave
- Changing the essential functions of the employee’s job to preclude the taking of FMLA leave
- Reducing hours of work to avoid employee eligibility
A supervisor may not discharge or discriminate against any person (whether or not an employee) because that person has:
- Opposed or complained about any unlawful practice under the Act
- Filed a charge, or has instituted (or caused to be instituted) any proceeding under or related to the Act
- Given, or is about to give, any information in connection with an inquiry or proceeding relating to a right under the Act
- Testified, or is about to testify, in any inquiry or proceeding relating to a right under the Act
- Used FMLA leave
Rights & Benefits of FMLA-eligible employees
FMLA allows employees to balance their work and family life by taking reasonable unpaid leave for certain family and medical reasons. The FMLA seeks to accomplish this in a manner that accommodates the legitimate interests of employers, and minimizes the potential for employment discrimination on the basis of gender, while promoting equal employment opportunity for men and women.
The following is a list of your rights and benefits as an eligible FMLA employee:
- 12 weeks of unpaid FMLA leave in a 12-month period
- Continuation of group health benefits during FMLA leave
- Restoration to the same or an equivalent job upon return to work
- Retention of accrued benefits
- Protection from discrimination as a result of taking FMLA leave
Note: A supervisor may not take any adverse action against an employee for taking FMLA leave; however, any personnel action/decision that would have happened if the employee had continued in a work status, may happen while the employee is on FMLA leave.
More information concerning your FMLA rights and benefits, go to www.dol.gov/whd/fmla.
An eligible employee is defined as any employee (including part-time and temporary) of the University System of Georgia, who has been employed by the University System of Georgia for at least twelve (12) months total (not necessarily the last twelve (12) months), and worked at least 1,250 hours during the twelve (12) month period immediately preceding the leave.
Leave as defined by the Family and Medical Leave Act that allows the employees excused absences from their workplace due to: the birth or legal adoption of a child, the employee’s own serious health condition, the serious health condition of a member of the employee’s immediate family, leave due to a call to active duty or caregiver leave to care for a family member in the armed services who is recovering from an injury.
Child, Spouse or Parent, but not in-laws.