A. Leave Entitlements
- Basic Leave Entitlement
The Family and Medical Leave Act (FMLA) requires Harvard to provide up to 12 weeks of unpaid, job-protected leave to eligible employees for the following reasons:
- For incapacity due to pregnancy, prenatal medical care, or child birth
- To care for the employee’s child after birth or placement for adoption or foster care
- To care for the employee’s spouse (which includes qualified domestic partner as a matter of Harvard policy), son or daughter, or parent who has a serious health condition
- For a serious health condition that makes the employee unable to perform the employee’s job
- Military Family Leave Entitlements
Eligible employees with a spouse, son, daughter, or parent on active duty or call to active duty status in the Armed Forces, National Guard, or Reserves in a foreign country or in support of a contingency operation may use their 12-week leave entitlement to address certain qualifying exigencies. Qualifying exigencies may include attending certain military events, arranging for alternative childcare, addressing certain financial and legal arrangements, attending certain counseling sessions, and attending post-deployment reintegration briefings.
FMLA also includes a special leave entitlement that permits eligible employees to take up to 26 weeks of leave to care for a covered servicemember during a single 12-month period. A covered servicemember is (1) a current member of the Armed Forces, National Guard, or Reserves who has a serious injury or illness incurred in or aggravated by service in the line of duty on active duty that may render the servicemember medically unfit to perform his or her duties and for which the servicemember is undergoing medical treatment, recuperation, or therapy; or is in outpatient status; or is on the temporary disability retired list; or (2) a veteran undergoing such medical treatment, recuperation, or therapy for a serious injury or illness and who was a member of the Armed Forces, National Guard, or Reserves at any time during the five years preceding the date of such treatment, recuperation, or therapy.
B. Benefits and Protections
During FMLA leave, Harvard will maintain the employee’s health coverage under any group health plan on the same terms as if the employee had continued to work. Use of FMLA leave will not result in the loss of any employment benefit that accrued prior to the start of an employee’s leave.
C. Eligibility Requirements
Employees are eligible if they are scheduled to work at least 17.5 hours per week, are eligible for benefits, and have completed their probationary/orientation and review period under the applicable policy or labor contract.
D. Definition of Serious Health Condition
A serious health condition is an illness, injury, impairment, or physical or mental condition that involves either an overnight stay in a medical care facility, or continuing treatment by a health care provider for a condition that either prevents the employee from performing the functions of the employee’s job, or prevents the qualified family member from participating in school or other daily activities.
Subject to certain conditions, the continuing treatment requirement may be met by a period of incapacity of more than three consecutive calendar days combined with at least two visits to a health care provider or one visit and a regimen of continuing treatment, or incapacity due to pregnancy, or incapacity due to a chronic condition. Other conditions may meet the definition of continuing treatment.
E. Substitution of Paid Leave for Unpaid Leave
Employees may choose to use accrued paid leave while taking FMLA leave. Accrued vacation, personal days, and compensatory time may be used during any FMLA leave. If the leave is for the employee’s own serious illness or childbirth, sick time and/or Short Term Disability benefits will generally be available. If the leave is for a family illness, the employee must use accrued “family sick” days at the onset of the leave; after exhausting those days, the employee may choose to use accrued vacation or personal time during the remainder of the leave. In order to use paid leave during FMLA leave, employees must comply with normal paid leave policies.
If the leave is for an employee’s work-related injury, Workers’ Compensation benefits will generally be available. However, due to differences in the two statutes, there may be cases where Workers’ Compensation benefits might end but FMLA leave would continue, or vice versa.
Other University policies and benefit programs may provide salary continuation and additional benefits. Harvard will simultaneously administer any policies and benefit programs that apply (for example, Maternity and Parental Leaves, Short Term Disability Plan, or Workers’ Compensation) when an employee is on a Family and Medical Leave. Family and Medical Leave will automatically run concurrently with certain qualifying absences.
See paragraph M below for pay provisions during leave for birth or placement of a child for adoption or foster care.
F. Employee Responsibilities
Requests for Family and Medical Leave should be made in writing to the supervisor or local human resources officer. When leave is foreseeable (for example, based on childbirth, placement of a child for adoption or foster care, or planned medical treatment), the employee is expected to give as much advance notice as possible, generally at least 30 days. When 30 days notice is not possible (for example, due to unanticipated medical circumstances or inadequate notice from relevant agencies), the employee must provide notice as soon as possible, ordinarily within one or two business days of when he or she learns of the need for leave, and generally must comply with normal call-in procedures.
Employees must provide sufficient information for Harvard to determine if the leave may qualify for FMLA protection and the anticipated timing and duration of the leave. Sufficient information may include that the employee is unable to perform job functions, the family member is unable to perform daily activities, the need for hospitalization or continuing treatment by a health care provider, or circumstances supporting the need for military family leave. Employees also must inform Harvard if the requested leave is for a reason for which FMLA leave was previously taken or certified.
Employees on Family and Medical Leave may be asked to report periodically to the employing department on their status and intention to return to work. Employees also may be required to provide a certification and periodic recertification supporting the need for leave. (See paragraph J below.)
G. Employer Responsibilities
Harvard will inform employees requesting leave whether they are eligible under FMLA. If they are, the notice will specify any additional information required as well as the employees’ rights and responsibilities. If they are not eligible, Harvard will provide a reason for the ineligibility.
Harvard will inform employees if leave will be designated as FMLA-protected and the amount of leave counted against the employee’s leave entitlement. If Harvard determines that the leave is not FMLA-protected, it will so notify the employee.
H. When Both Spouses Work for the University
Spouses who work for Harvard and who are both eligible for Family and Medical Leave are limited to a combined total of 12 weeks of Family and Medical Leave during a 12-month period for birth or placement of a child and to care for a sick parent. Each eligible spouse is entitled to 12 weeks of Family and Medical Leave for his or her own serious health condition or that of the other spouse or a dependent child. Additionally, each spouse is eligible to utilize the paid parental leave benefit, as described in paragraph M below, for the birth or placement of a child.
I. Definition of the FMLA Leave Year
The 12-month FMLA period is measured forward from the date an employee's first Family and Medical Leave begins. For example, if an employee's Family and Medical Leave begins on May 1, that employee's "leave year" begins on May 1 and ends on April 30 of the following year. The next 12-month period would begin the first time Family and Medical Leave is taken after completion of any previous FMLA 12-month period.
J. Medical Certification
An employee requesting FMLA must provide the appropriate completed leave certification form in a timely manner, generally within 15 days. If the employee fails to provide timely certification, the leave may be delayed until the required certification is submitted. Recertification may be required during the leave. The following certification forms are available from the local HR office:
- Health Care Provider for Employee’s Serious Health Condition
- Health Care Provider for Family Member’s Serious Health Condition
- Qualifying Exigency for Military Family Leave
- Serious Injury or Illness of Covered Servicemember – For Military Family Leave
An employee applying for Short Term Disability or Workers’ Compensation benefits must also comply with the certification requirements of that program.
If the University questions the adequacy of a medical certification for an employee’s serious health condition or that of a family member, it may require, at its own expense, that the employee get the opinion of a second health care provider designated or approved by the University. If the second opinion differs from the first, the University may require, again at its own expense, a third opinion from a health care provider designated or approved jointly by the University and employee. The third opinion will be final and binding.
Employees returning from leave due to their own illness may be required to provide certification that they are able to resume work.
K. Intermittent Leave/Reduced Leave Schedule
Employees do not need to use their leave entitlement in one block. Leave can be taken intermittently or on a reduced leave schedule when medically necessary. Leave due to qualifying exigencies may also be taken on an intermittent basis.
If the need for intermittent leave or a reduced leave schedule is based on planned medical treatment, the employee must make reasonable efforts to schedule the treatment so as not to disrupt unduly the operations of his or her unit. An employee may also be transferred temporarily to an available alternative position with equivalent pay and benefits that better accommodates recurring periods of leave.
An employee on intermittent leave is not eligible for Short Term Disability benefits. The employee may use accrued sick, vacation, or personal time or may take this time as unpaid leave. An employee who is on a reduced leave schedule may be eligible for partial Short Term Disability benefits.
Upon return from Family and Medical Leave, the employee will be returned to the position he or she held when the leave began or, if agreeable to the employee and the employing department, an equivalent position with equivalent benefits, pay, and other terms and conditions of employment.
An employee whose position is eliminated while on Family and Medical Leave is entitled to the same rights and benefits as other employees whose positions are eliminated. However, the employee will have no greater rights to reinstatement or other benefits and conditions of employment than if he or she had continued to work.
M. Leave for Birth or for Placement of a Child for Adoption or Foster Care
Birth parents and foster and adoptive parents are eligible for a 13-week leave that begins with the birth or placement of the child (or travel for adoption, when necessary). Under the Massachusetts Parental Leave Act (MPLA), birth or adoptive parents are entitled to an unpaid job-protected leave of eight weeks (or in the case of spouses who both work for Harvard, a combined total of eight weeks) each time the employee gives birth or adopts a child. In the event an employee has twins or adopts two children at the same time, she or he would be entitled to eight weeks of job-protected leave for each child (a total of 16 weeks) under MPLA. In all cases, FMLA leave will run concurrently with MPLA leave.
Pay during this leave may be provided through one or more of the following:
- Short Term Disability
Short Term Disability (STD) covers the disability of childbirth and may be used only in the first eight weeks following the birth of the baby, unless the birth mother has complications requiring continuing STD.
STD pays 100% for employees with seven or more years of service, and 75% for those with fewer than seven years of service. Accrued vacation, personal days, compensatory bank, or sick time may be substituted for STD for any of the first eight weeks after the baby's birth. STD pay cannot be supplemented with accrued time. The two-week waiting period for STD is waived if the birth mother works until two weeks prior to the birth. At that time, she can use accrued sick time until the baby is born.
- Paid Parental Leave
Up to four weeks of paid parental leave is available to be taken within the 13 weeks following birth or placement for adoption. In any case where the baby is not released from the hospital within the first nine weeks following birth, four weeks of Parental Leave will be available beginning on the day the baby is discharged to go home.
Two options for parental leave are available to birth or adoptive parents:
Option #1: One week of leave paid at 100% of the current rate of pay; or
Option #2: Four weeks of leave paid according to the following University service-related pay replacement schedule:
- Employees with seven or more years of service are paid at 100% of current rate of pay.
- Employees with fewer than seven years of service are paid at 75% of current pay rate. Employees paid at 75% may supplement their pay with accrued vacation, personal days, or compensatory bank.
- Special note: Birth mothers paid at 75% and that do not elect to use Short Term Disability (STD) benefits (detailed in the preceding subsection of this provision) may also use sick leave to supplement their pay. This option is limited to birth mothers not using STD and cannot be used by birth mothers that elect to utilize STD benefits. Sick time (along with other accrued leave) may never be utilized to supplement STD benefits.
It is expected that a parent using Parental Leave will return to his or her job. In the event an employee does not intend to return to work and notifies the supervisor of that intent prior to taking the leave, the paid Parental Leave will not be available. If the employee takes paid Parental Leave and then decides not to return to work, the amount paid under Parental Leave must be repaid to the University.
In a case where both parents work for the University, one parent may choose to use the one week of full pay while the other uses the four-week leave. The choice must be made prior to the baby's birth and cannot be changed without medical documentation of complications.
- Other Pay Provisions
Accrued vacation, compensatory bank, or personal days may be used in combination with unpaid time to cover the remainder of the leave or during an extension of the parental leave. (See paragraph N below.)
Foster parents are eligible for up to 13 weeks of leave. Employees may use accrued vacation, personal days, or compensatory time to pay for all or part of the leave.
N. Extended Parental Leave
Eligible employees may request an extended unpaid parental leave, which must end no later than one year from the date the absence began and cannot exceed the period of prior employment. There is no guarantee of reinstatement after leaves lasting longer than 13 weeks unless agreed to in advance and in writing by the supervisor and the local human resources officer.
O. Unlawful Acts
FMLA makes it unlawful for an employer to:
- Interfere with, restrain, or deny the exercise of any right provided under FMLA
- Discharge or discriminate against any person for opposing any practice made unlawful by FMLA or for involvement in any proceeding under or relating to FMLA
An employee may file a complaint with the U.S. Department of Labor or may bring a private lawsuit. FMLA does not affect any federal or state law prohibiting discrimination, or supersede any state or local law or collective bargaining agreement that provides greater family or medical leave rights.
Last updated: 04/02/2015