Family Medical Leave and Leaves of Absence

Policy 8.3
Approved by:	President
Responsible Officer:	vice president for human resources
Responsible Office:	human resources
Originally Issued:	07/28/2020
Last Revision:	New
Category:	human resources/employment
Related Policy
SDBOR Policy 4:15 Medical Leave and Leaves of Absence
Family and Medical Leave Act U.S. Department of Labor

I. REASON FOR THIS POLICY

This policy provides information about the types of leaves of absence that may be available to DSU employees, terms that apply to each type of leave of absence, and DSU procedures to comply with leave use regulations and policies in the Codified Laws and Administrative Rules of the State of South Dakota.

II. DEFINITIONS

1. 12-Month Period. Twelve months from the date of an employee’s first qualifying event.
2. Family Medical Leave Act (FMLA). Entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.
3. Health Care Provider. A doctor of medicine or osteopathy who is authorized to practice medicine or surgery by the State of South Dakota, or any person determined by the U.S. Secretary of Labor to be capable of providing health care services.
4. Intermittent Leave. Leave taken in separate periods of time due to a single illness or injury, rather than for a continuous period.
5. Leave of Absence. An option offered by DSU to faculty and staff who are unable to work due to a medical condition, the medical condition of a qualified family member (as defined by applicable law), the birth or adoption of a child, or absences for military and personal reasons.
6. Parent. The biological, adoptive, step or foster parent of an employee or an individual who stood in loco parentis to an employee when the employee was a son or daughter.
7. Reduced Leave Schedule. This is a leave schedule that reduces the usual number of hours per workweek or workday of an employee
8. Serious Health Condition. This is defined as an illness, injury, impairment, or physical or mental condition that involves the following:
   1. Any period of incapacity or treatment in connection with or consequent to inpatient care in a hospital, hospice, or medical care facility.
   2. Any period of incapacity requiring absence from work, school, or other regular activities, of more than three calendar days, that also involves continuing treatment by a health care provider, or continuing treatment by a health care provider for a chronic or long-term health condition that is incurable or so serious that, if not treated, would likely result in a period of incapacity of more than three calendar days; and for prenatal care. The term is not intended to cover short-term conditions in which treatment and recovery are brief. These conditions are covered by the usual sick leave policy.
9. Son or Daughter. Biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in for the parent who is under 18 years of age. It includes others who may be older if the son or daughter is not capable of self-care due to a mental or physical disability. A person who stands in as a parent includes a person who has the day-to-day responsibility to care for and financially support a child. In the case of an employee, this includes the person who had that responsibility for the employee when the employee was a child. A biological or legal relationship is not necessary.
10. Spouse. A spouse is a husband or wife as defined or recognized under state law for the purposes of marriage. South Dakota does not recognize common law marriage.

III. STATEMENT OF POLICY

1. Employee Eligibility Requirements.
   1. The employee shall have worked at least twelve (12) months for the state.
   2. If the employee is subject to the overtime provisions of the Fair Labor Standards Act, the employee shall have worked at least 1250 hours, excluding overtime, during the 12- month period immediately prior to the date the leave would begin.
2. Qualifying Events Eligible for Family Medical Leave.
   1. The birth or the care of the employee's newborn child.
   2. The placement with the employee of a child for adoption or foster care.
   3. The care of the employee's spouse, child, or parent with a serious health condition.
   4. The serious health condition of the employee that leaves the employee unable to perform the functions of his or her job.
   5. For any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status.
3. Length of Leave.
   1. Employees eligible for family medical leave shall be entitled to a total of twelve (12) weeks of family medical leave during the course of each 12-month period; however, employees utilizing family medical leave for the birth of a child, for the placement for adoption of a child in their home, or to provide foster care of a child can use only twelve (12) weeks for that purpose within one year of the date of birth or placement of the child.
   2. An eligible employee may also take up to 26 workweeks of leave during a single 12- month period to care for a covered service member with a serious injury or illness when the employee is the spouse, son, daughter, parent, or next of kin of the service member.
      1. An eligible employee shall be limited to a combined total of 26 workweeks of leave for any FMLA-qualifying reasons during the single 12-month period.
   3. Employees are able to take leave through a reduced schedule or for intermittent periods for their personal serious health conditions or to care for the employee's sick family member.
   4. If leave is taken due to the birth of a child or placement of a child for adoption or foster care, an employee may take leave intermittently or on a reduced schedule only with supervisory approval.
   5. Employees are not eligible for more than twelve (12) weeks of protected leave status as required by FMLA.
      1. With approval, additional leave may be granted to employees beyond the amounts mandated by the Family Medical Leave Act. However, BOR policies, SD codified law (SDCL), and administrative rules (ARSD)\ governing leaves continue to apply.
4. Coordination of Family Medical Leave With Other Leave Benefits.
   1. Consistent with state law, Board policy, and the administrative rules governing leave usage, family medical leave is not necessarily paid leave. The Board requires all employees to use sick leave or annual leave, for the qualifying event of a serious health condition for self or for any other qualifying event. The use of paid leave must comply with SDCL Chapter 3-6C.
   2. Full-time employees who have been employed by the state for a continuous period of six months are entitled to 24 hours of paid family leave per week for up to eight weeks following the birth or placement of a child for adoption. Part-time employees will receive prorated hours.
      1. Sick or vacation leave may be used to supplement the remaining hours in the workweek.
      2. Paid family leave must be taken within one year following the birth or placement of a child for adoption.
      3. Employees ineligible for paid family leave may use sick and/or annual leave following the birth or adoption of a child.
      4. When medically necessary, a birth mother may use additional accumulated sick leave upon providing documentation from a health care provider and provided to the human resources office at the institution.
   3. In accordance with SDCL and ARSD, employees may be allowed to receive donated leave after all other leave has been exhausted.
5. Notification.
   1. Employees must provide the Human Resources Office with at least 30 days notification if the family medical leave event is foreseeable. Typical foreseeable events are the birth or adoption of a child or the planned medical treatment for a serious health condition of the employee or the employee's family member. If the need for the leave is not foreseeable due to a change in circumstances or due to an emergency, the notice must be given as soon as practicable. Notice may be verbal, but a written request must be submitted to the Human Resources Office to comply with record keeping requirements.
   2. If an employee does not give timely advance notice of the need for family medical leave that is foreseeable, HR may deny the leave request until thirty (30) days after the employee provides the notice.
   3. The institutional Human Resources Office will inform the employee and supervisor when an FMLA event has been approved.
6. Medical Certification.
   1. In consultation with the human resources department, the institution may require that the employee certify through a physician that a serious health condition does exist. The employee will have a reasonable time period (in most cases 15 days) in which to supply such certification. Employee may lose eligibility of the Family Medical Leave Act if proper certification is not completed prior to onset of leave or within 15 days of the onset of the serious health condition. This certification shall contain the following:
      1. The date when the serious health condition began,
      2. The probable duration of the condition,
      3. The appropriate medical facts within the knowledge of the health care provider regarding the condition,
      4. If the leave is due to the employee's serious health condition, the certificate must include a statement that the employee is unable to perform the functions of his or her position,
      5. If planned medical treatment is the reason for the leave and employee wants intermittent leave or leave on a reduced time schedule, the date when the treatment begins and the estimated duration of the treatment,
      6. If the leave request is necessitated by a serious medical condition of the employee or the employee's child, spouse or parent, the certificate shall state that there is a medical necessity for the leave and an estimate of how long the leave will be, and
      7. Date and Signature of Health Care Provider.
   2. The employee may be required to obtain a second opinion at the institution’s cost from a second health care provider of the institution’s choice. If the second opinion conflicts with the first opinion, the institution may request a third opinion at the institution’s cost. The institution and the employee must jointly agree on the person providing the third opinion. The third opinion is final and binding.
   3. The institution may request additional medical certifications as deemed necessary and in compliance with FMLA.
   4. The human resources department will review FMLA certification documents and issue approval notices.
7. Benefits.
   1. Employees utilizing family medical leave will be allowed to continue to participate in the state health insurance plan as if the employee were not on leave. The institution will continue to pay the amount necessary to continue the employee's personal health insurance coverage on the same basis while the employee is participating in the program. However, the employee will be required to pay the amount needed to continue coverage beyond that provided as part of the institution paid health benefits.
   2. If the state provides a new health plan or revises the health plan during the employee's family medical leave, the employee is entitled to change his/her benefit selections just as if the employee were continuously employed.
   3. If an employee does not return from a family medical leave, the institution is entitled to recover the health premiums paid on behalf of the employee. However, an institution may not recover its share of the employee's health plan premium if the employee does not return to work due to the continuation, recurrence or onset of a serious health condition or other circumstances beyond the employee's control. The institution may not recover its share of health insurance premiums for any period of FMLA leave covered by paid leave.
   4. Employees on an unpaid leave will not accrue sick or annual leave.
8. Returning From Family Medical Leave.
   1. Upon returning to work from a family medical leave, an employee is entitled to the same or equivalent position. An equivalent position must have the same pay, benefits and working conditions, including privileges, perquisites, and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.
   2. Employees on family medical leave have no greater entitlements to continued employment or benefits than they would have had if they remained continuously employed during the family medical leave period.
   3. Institution may request a return-to-work certificate to ensure employee is able to perform the essential functions of the position.
9. Extended Leave of Absence. Leave of absence without pay may be granted to faculty or other Regental employees for one (1) year, with an allowable extension not to exceed one (1) additional year for educational reasons, employment, or experiences that would be of benefit to individuals, their disciplinary area, or administrative assignment at the institution, or in order to hold political office.
10. Institution-Paid Group Insurance for Employees on Leave Without Pay or Temporary Reduction to Less than Full-Time Employment.
    1. Employees granted leave without pay or a temporary reduction to less than full-time employment for one (1) month or more shall continue to have the employee's share of the group health/life/ADD (Accidental Death and Dismemberment) paid for by the institution for up to a total of three (3) months per leave without pay or temporary reduction. An employee granted a leave or temporary reduction that exceeds these conditions shall be required to continue group health/life/ADD coverage if they have not been allowed to opt out of the state of South Dakota group health insurance plan by the Bureau of Human Resources. If the employee has not opted out of the health plan, the institution has the option to pay the premiums on behalf of the employee or to require that the employee make the premium payments as a condition of granting the leave without pay request.
    2. Nine, ten, or eleven-month employees who have contracts and/or letters of intent and/or letters of notification of employment for the following year shall continue to have their share of the premium paid for by the institution for the non-appointment period.
    3. Only those leave without pay periods or temporary reductions to less than full-time employment that are of one (1) month or more duration are considered under this policy.
11. Exempt Employee Professional Development Leave.
    1. An exempt employee may be granted a professional development leave after (3) consecutive years of full-time employment in the system. Approval for such leave shall be contingent upon the employee presenting plans for formal study, research, or other experiences which are designed to improve the quality of service of the employee to the institution, the Board and the State of South Dakota. For purposes of this section, an exempt employee is a person who is exempt from the Civil Service system and who does not carry continuing faculty rank.
    2. Exempt employee professional development leave shall be for not more than twelve months (12) at eight percent (8%) of the salary which would have been paid on full-time employment for each full year of consecutive full-time service, up to a maximum of fifty percent (50%) of salary, or not more than six months (6) at sixteen percent (16%) of the salary which would have been paid on full-time employment for each year of consecutive full-time service, up to a maximum of one hundred percent (100%) of salary.
    3. All exempt employees receiving professional development leave are required to return to the institution granting the leave for at least two (2) years of full-time service or to refund the full salary and institutional costs of fringe benefits received while on leave. If an employee returns but fails to perform the full two (2) years return-to-service obligation, then the repayment obligation shall be prorated. Should the employee return but fail to fulfill the full two-year service requirement, the amount to be reimbursed shall be pro-rated and shall be due one (1) calendar year from termination. Any repayment obligation which remains unpaid after falling due shall accrue interest at an annual rate equal to the monthly average prime rate of interest offered by the First Bank system during the leave period plus two percentage points. An employee who cannot perform return-to-service obligations due to death or permanent and total disability or reduction in force shall be released of all repayment obligations. Determination of whether an employee is to be considered disabled shall be made by the Board.
    4. All exempt employees, upon return from professional development leave, shall be returned to their former positions or be assigned to positions of like nature and status and shall be granted increment increases that were given during their leave. They may be considered for merit increases as if they had served at the institution during such period. They shall maintain insurance benefits, accumulated leave, and all other accrued benefits. While employees are on leave the following policies shall apply:
       1. Employees shall neither accrue nor use sick and/or annual leave.
       2. The full costs of health and life insurance shall continue to be paid by the Regents for the employee. Dependent health, life, and other optional benefits may be continued if paid by the employee.
       3. Participation in the South Dakota Retirement System. Employees should refer to the South Dakota Retirement System for information. Employees can go to the following web site for participation information: www.sdrs.sd.gov or the employee can refer to SDCL 3-12-85.
    5. The following criteria shall be considered in selecting the candidates for professional development leave:
       1. Needs of the department and institution.
       2. The merit of the objectives as they relate to the enhancement of the professional growth of the applicant.
       3. Years of experience in the system.
       4. Previous leaves.

Exclusions
None

Exceptions
None

IV. PROCEDURES (MAJOR)

1. Leave Requests.
   1. An employee shall make all leave requests through the designated online Leave Request System.
   2. A supervisor shall approve vacation leave prior to an employee’s departure.
2. Leave Without Pay. An employee shall request leave without pay only when appropriate leave balances (compensatory time, annual, or sick) are exhausted and in conjunction with FMLA leave.
3. Absences Without Appropriate Leave. Human Resources shall review absences not covered by appropriate leave for possible disciplinary action.

V. RELATED DOCUMENTS, FORMS AND TOOLS

Contact DSU Human Resources website for complete guidelines.
https://dsu.edu/directory/human-resources.html

VI. POLICY HISTORY

ORIGINALLY ISSUED: 07/28/2020
LAST REVISION: New