Santa Fe Community College (SFCC or College) understands the need for employees to take time off work when they have a serious health condition, when their spouse, children or parents have a serious health condition, when they are caring for a new baby or an adopted or foster child, and when they are impacted by military deployment or other military activity associated with being called to active duty. The College has established this policy to address those concerns for employees and to comply with the Family and Medical Leave Act (FMLA).
Scope and Applicability
This policy applies to all employees who otherwise meet the eligibility requirements as defined in this policy.
Employees who are determined to be eligible under the terms of the FMLA are allowed up to 12 weeks of unpaid leave within a 12-month period for family- or health-related reasons or 26 weeks in a single 12-month period to care for a covered military service member with a serious injury or illness if the employee is the spouse, son, daughter, parent or next of kin of the covered service member. An employee who takes FMLA leave will be reinstated to the same or equivalent position with equivalent pay and benefits when they return to work following the leave period.
- Call to Active Duty, for purposes of FMLA leave taken because of a qualifying exigency, refers to a Federal or state call to military active duty.
- Continuous Leave is for circumstances when an employee needs to be out for an extended, continuous period of time such as when they are caring for a baby or child.
- Covered Military Member is a member of the Regular Armed Forces while on duty during the deployment of the member with the Armed Forces to a foreign country. It also is a member of the Reserve components of the Armed Forces (members of the National Guard and Reserves) while on duty during the deployment of the member with the Armed Forces to a foreign country under a Federal call or order to active duty in support of a contingency operation.
- Employee includes all staff (regular, term, probationary, temporary) full or part-time; all student employees; all faculty (core, probationary, temporary, adjunct) full or part-time; all administrators, including interim; and all contract employees who are identified as employees in their contracts.
- In Loco Parentis means demonstrating the intent to and accepting the responsibility for acting as a parent to another.
- Intermittent Leave is for short, recurring periods of required leave such as when a health-related condition requires ongoing treatment of a short duration.
- Health Care Provider is a licensed provider who is legally authorized to practice under New Mexico law and is acting within the scope of their authorized practice
- Health Care Provider Certificate is the certification of a serious health condition issued by a Health Care Provider on the approved form.
- Reduced Leave is for situations when an employee needs to work on a shorter schedule than normal because of a health-related condition.
- Serious Health Condition means an illness, injury, impairment, or physical or mental condition that involves one or more of the following:
- Any period of incapacity or treatment connected with inpatient care in a hospital, hospice, or residential medical care facility, that requires an absence of three consecutive calendar days or more or involves two or more treatments by a health care provider, or a one-time visit, that results in a regimen of continuing treatment under the ongoing supervision of a health care provider;
- A period of incapacity requiring absence of more than three calendar days in a 30- consecutive day period from work, school or other regular daily activities that also involves continuing treatment by or under the supervision of a health care provider;
- Any period of health care provider recommended reduction in activity due to pregnancy or for prenatal care;
- Any period of incapacity or treatment due to a chronic serious health condition such as asthma, diabetes or epilepsy;
- A period of incapacity that 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; or
- Any absences to receive and recover from multiple treatments by or by referral of a health care provider for restorative surgery after an accident or other injury, or a condition that likely would result in incapacity of more than three consecutive days if left untreated.
- A mental impairment means any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. A mental impairment does not include anything related to gender preference or identity.
- Son or Daughter means a biological, adopted or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis who is either under age 18 or age 18 or older and “incapable of self-care because of a mental or physical disability” at the time that FMLA leave is to commence.
- Son or Daughter of a Covered Service Member means a covered service member’s biological, adopted or foster child, a stepchild, a legal ward, or a child for whom the covered service member stood in loco parentis and who is of any age.
- Son or Daughter on Covered Active Duty or Call to Covered Active Duty Status means the employee’s biological, adopted or foster child, a stepchild, a legal ward, or a child for whom the employee stands in loco parentis who is on covered active duty or call to covered active duty status, and who is of any age.
- Spouse means a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including common law marriage in states where it is recognized. Spouse also includes domestic partners.
- Eligibility. To be eligible for benefits and leave under FMLA, an employee must have been employed by the College for at least 12 months and must have worked at least 1,250 hours over the previous 12-month period. The 12 months need not be consecutive but must otherwise meet time requirements. The 1,250 hours must have actually been worked. Therefore, paid annual leave, sick leave and leave under FMLA are not included in the 1,250 hours. The leave period is calculated as 12 months going forward from the date the first FMLA leave begins.
- Reasons for Leave. Eligible employees are allowed up to 12 weeks of unpaid leave in a 12-month period for the following reasons:
- For the birth and care of a newborn child if the leave is taken within the first 12 months after the birth of the child;
- For the placement and care of an adopted or foster child who is under the age of 18 unless the child over the age of 18 is unable to provide self-care due to mental or physical disability which must be concluded within 12 months of the placement;
- To care for a spouse with a serious health condition;
- To care for a child, which includes adult children (i.e., one who is 18 years of age or older) with a mental or physical disability which renders the child incapable of self-care because of that disability, a foster child, a step child, or a legal ward with a serious health condition;
- To care for a biological parent, or person who stood in loco parentis to an employee when the employee was a son or daughter (parents-in-law generally are not within this definition) with a serious health or medical condition;
- To take medical leave when the employee is unable to work because of a serious health condition, or
- To take care of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter or parent is a covered military member on active duty (or has been notified of an impending call or order to active duty) in support of a contingency operation.
- To care for a covered service member with a serious injury or illness, the employee is entitled to take FMLA leave for up to a total of 26 weeks in a single 12-month period if the employee is the spouse, son, daughter, parent or next of kin of the covered military service member;
- While the employee’s spouse, son, daughter or parent (the “covered military member”) is on active duty or call to active duty status, the employee may request FMLA for qualifying exigencies as defined in the FMLA regulations:
- short notice deployment
- military events and related activities
- childcare and school activities
- financial and legal arrangements
- to attend counseling
- rest and recuperation
- post-deployment activities.
- For parental care, the parent of the military member must be incapable of self-care and must be the military member’s biological, adoptive, step, or foster father or mother, or any other individual who stood in loco parentis to the military member when the member was under 18 years of age.
- Types of Leave. This policy and the FMLA provide for different types of leave.
- Continuous Leave. Employees may take continuous leave when there is a need for extended continuous time off. Continuous FMLA leave will be granted if it is medically necessary for an eligible employee’s own serious health condition, to care for a family member with a serious health condition, or to allow for time to work exigencies related to a family member’s active duty or call to active duty status. An employee requesting such leave will be required to provide certification setting out the need for the leave.
- Intermittent and Reduced Schedule Leave.
- Employees may take recurring leave for a few days or a few hours (in increments of no less than a half hour each) or on a reduced schedule in certain circumstances. Any request for intermittent leave or a reduced schedule must be approved by the supervisor. The supervisor, prior to determining whether to accept such a schedule, shall work with the Office of Human Resources and the employee to determine whether the workload can be adjusted to accommodate the employee’s request.
- Intermittent leave or leave on a reduced schedule will be granted if it is medically necessary for an eligible employee’s own serious health condition, or to care for a family member with a serious health condition or to allow for time to work exigencies related to a family member’s active duty or call to active duty status. An employee requesting such leave will be required to provide a health care provider certificate setting out the need for the leave on an intermittent basis or for leave on a reduced schedule. If an employee requests leave on an intermittent or reduced leave basis, the College may require the employee to temporarily transfer to an alternative position for which the employee is qualified that has equivalent pay and benefits and that better accommodates recurring period of leave than the employee’s existing position.
- Notice by Employees.
- Employees should submit a request for FMLA leave to the Office of Human Resources at least 30 days in advance of the date the leave is expected to begin. In cases where the need for leave is for a serious health condition of the employee or the spouse, child or parent of the employee and the need for leave is foreseeable, the employee should make a reasonable attempt to schedule the treatment so as not to unduly disrupt the operations of the College. The employee should consult with and obtain the approval of their health care provider in determining what is reasonable.
- In cases where the date of the treatment requires leave to begin in less than 30 days, the employee should request the leave as soon as possible. If the leave is required as a result of an emergency situation, the employee or a representative of the employee should notify the Office of Human Resources as soon as possible, but, in any case, within three working days of the emergency.
- When a supervisor becomes aware an employee requires leave that qualifies under FMLA, the supervisor must notify the Office of Human Resources immediately, and a representative will coordinate with the employee to complete the necessary paperwork. FMLA leave may be initiated in any event, even in the absence of an employee request.
Forms for requesting leave are provided by the Office of Human Resources. The form will include the anticipated start and end dates of leave requested and the reason for the leave. The application form and a health care provider certification form are required prior to Human Resources approval. The Office of Human Resources will notify the employee within two days of receiving the completed request whether or not the employee qualifies for FMLA leave.
- Timely Notice Required
- Proper notice required. In all cases, in order for the onset of an employee’s FMLA leave to be delayed due to lack of required notice, it must be clear that the employee had actual notice of the FMLA notice requirements.
- Foreseeable leave—30 days. When the need for FMLA leave is foreseeable at least 30 days in advance and an employee fails to give timely advance notice with no reasonable excuse, the College may delay FMLA coverage until 30 days after the date the employee provides notice. The need for leave and the approximate date leave would be taken must have been clearly foreseeable to the employee 30 days in advance of the leave.
- Foreseeable leave—less than 30 days. When the need for FMLA leave is foreseeable fewer than 30 days in advance and an employee fails to give notice as soon as practicable under the particular facts and circumstances, the extent to which the College may delay FMLA coverage for leave depends on the facts of the particular case.
- Unforeseeable leave. When the need for FMLA leave is unforeseeable and an employee fails to give notice as soon as possible (either personally or via a representative) the College may delay the onset of FMLA leave.
- Waiver of notice. The College may waive an employee’s FMLA notice obligations or its internal rules on leave notice requirements. However, if the College does not explicitly waive the employee’s obligations under its internal leave rules, the College may take appropriate action under its internal rules and procedures for failure to follow its usual and customary notification rules.
- Spouses Maximum Combined Leave. Spouses who are both employed by the College each are entitled to a maximum non-concurrent leave of 12 weeks during any 12-month period if the leave is taken to care for a newborn or an adopted or foster child, or if it is to care for a child or parent with a serious health condition. Parents who are active co-parents of a newborn or an adopted or foster child, or a child with a serious health condition, are also entitled to consecutive 12-week periods of family medical leave under the same conditions as married parents.
- Health Care Provider Certificate Required. At the time the leave is requested, the College will require employees to provide a health care provider certificate from their health care provider if the FMLA leave they request is for a serious health condition. The information required will depend on the type of leave requested but generally must include:
- the date on which the serious health condition began;
- the likely duration of the condition or required treatment;
- a statement that due to the serious health condition the employee is unable to perform the functions of their employment; and
- a detailed description of any limitations (e.g., sitting, standing, lifting, etc.) the employee may have.
The certificate does not need to include general information about the employee’s general health or information about health conditions unrelated to the serious health condition for which leave is requested. If the leave requested is to care for a spouse, child or parent with a serious health condition a statement that the employee is needed to care for that individual and an estimate of the duration of that need. If the leave is foreseeable, the employee should provide the certificate before they begin their leave. If the leave is not foreseeable, the certificate should be requested within two business days after the leave begins, and must be provided to the Office of Human Resources within 15 calendar days after the request, or as soon as reasonably possible. Employees who are unable to obtain a certificate from their health care provider after making reasonable attempts to acquire one should advise the Office of Human Resources.
- Validity of Health Care Provider Certificate. If the College has reason to doubt the validity or adequacy of the health care provider certificate provided by the employee, the College may direct the employee to obtain supplemental information from the employee’s provider. Alternatively, the College may, at the College’s expense, request that the employee obtain the opinion of a second health care provider designated or approved by the College to certify the need for the requested leave. The designated or approved health care provider shall not be an individual employed on a regular basis by the College. If the second opinion materially differs from that provided in the original health care provider certificate, the College may require that the employee obtain, at the College’s expense, the opinion of a third health care provider, designated or approved jointly by the College and the employee. The opinion of the third health care provider will be final and binding on the College and the employee.
- Recertification May Be Required. The College may require that employees submit a recertification form upon request for extension of the leave and in case of substantial change of circumstances. The Office of Human Resources will notify the employee if another health care provider certificate is required. The employee must furnish the recertification within 15 calendar days after the College’s request, unless it is not practicable to do so. The health care provider recertification will be at the employee’s expense.
- Certification of Leave for Covered Service Member.
- When leave is taken to care for a covered service member with a serious injury or illness the employee will be required to obtain a Certification for Serious Injury or Illness of Covered Service Member for Military Family Leave completed by an authorized health care provider of the covered service member.
- When leave is taken due to a qualifying exigency, the employee will be required to submit a completed Certification of Qualifying Exigency for Military Family Leave.
- The employee must provide the requested certification to the College within 15 calendar days after the College’s request, unless it is not practicable under the circumstances to do so. If the employee does not produce the requested health care provider certification within 15 calendar days after receiving notice from the College that health care provider certification will be required, the College may delay the taking of FMLA leave until the required certification is provided, and the employee may forfeit the employee’s rights and benefits under the FMLA, such as reinstatement to the same or equivalent position and reinstatement of benefits.
- Substitution of Paid Leave. Although employees are allowed up to 12 weeks or 26 weeks of unpaid leave under this policy, if they have any accrued, unused annual leave, or sick leave they must first use that leave prior to taking leave without pay.
- Outside Employment. Employees who are approved to receive FMLA leave for their own serious health conditions may not work during their normally scheduled SFCC working hours for outside employers while they are on FMLA leave.
- Donated Leave. The College allows other SFCC employees to donate their accrued annual leave to a fellow employee in some circumstances. If an employee would like to request donated leave while on authorized and approved FMLA leave, the employee should request donated leave specifying the reasons and number of days requested to the Office of Human Resources. The Executive Director of Human Resources and Professional Development/EEO Officer will determine whether the employee is eligible to receive donated leave and will advise the employee whether they are eligible for donated leave based on established criteria. The Office of Human Resources staff will post notice of request for donated leave to employees, will collect donated leave for payroll use and will advise the employee as soon as possible whether they have received donated leave. Any employee requesting donated leave must first use all of their own accrued leave, which includes both sick and annual leave. Employees who are receiving donated leave because of their own serious health conditions may not work for outside employers while receiving donated leave.
- Employee Restored to Position. When an employee returns to work after taking leave under this policy, they will be restored to the position they held prior to taking the leave or to an equivalent position with equivalent benefits, pay and other terms and conditions of employment. An employee who returns from FMLA leave does not have any greater entitlement to reinstatement or to any other benefits provided to College employees than if the employee had not taken FMLA leave.
- Negative Employment Decisions for Use of FMLA Prohibited. While on leave, the employee is subject to being evaluated on the same criteria as active employees for salary adjustment, work reassignment (upon return) and reductions in force, as if they were present in the work place. However, under no circumstances may the fact that the employee is on FMLA leave be considered as a basis for an employment decision.
- Continuation of Benefits. An employee will not lose any employment benefit while away on leave but employment benefits such as vacation or annual leave will not accrue while they are away on leave without pay status. Employees on FMLA leave without pay status are not eligible for holiday pay. The College will maintain coverage for the employee under its group health plan and other benefit plans. Employees are responsible for their normal share of their health care and other benefit premiums during their leave.
- Fitness for Duty 99. The employee is required to provide a certificate from their health care provider stating they are fit for duty when they return to work. This certificate may, at the choosing of the employee, include recommendations for accommodation under SFCC Policy 4-16 Employees with Disabilities.
- Consult with the Office of Human Resources. Employees should consult with the Office of Human Resources if they have questions about this policy or their entitlement to leave under this policy. The Office of Human Resources can also provide assistance to determine if the employee is entitled to leave under other College policies as a benefit of their employment.
Statement of Accountability and Responsibility
The President, through the Executive Director of Human Resources and Professional Development/EEO Officer and the Office of Human Resources, shall be responsible for enforcing Human Resources policies and procedures. The Office of Human Resources shall work with the different departments and offices to comply with this policy and develop procedures that will enforce this policy regarding awareness, prevention, and remediation.
SFCC Governing Board approved: 9/28/06
Revised and Governing Board approved: 12/16/14
Revised and Governing Board approved: 10/25/17