Family Medical Leave Act

• Academics and the FMLA
• How many months does the FMLA cover?
• Maternity Benefits & Parental Leave 

Academics and the FMLA

October 2001

I am an assistant professor in the CSU system, and have recently utilized the Family Medical Leave Act (FMLA) to stay home with my infant daughter. Remarkably, I am one of the first women in the CSU system to do this -- and there has been a significant amount of confusion surrounding my desire to take a 12 week unpaid leave.

Several complicated issues have arisen. First, it is the university's position that the 20 day paid maternity leave runs concurrent with the FMLA (thus one cannot take the 20 days paid maternity and then another 12 weeks unpaid FML). Second, a colleague of mine had a baby in July(outside the regular academic year) and was denied 20 days of paid maternity leave. Third, and most vexing -- there seems to be various interpretations of the above two rules and others related to personal leave, with different campuses/administrators treating similar situated faculty differently.

I would appreciate hearing from any one who has used FMLA, especially anyone in an academic setting. It was my understanding that maternity/child birth is considered a disability and therefore any leave connected with this event cannot automatically trigger FMLA. Moreover, the decision to have the leaves run concurrently would seem to circumvent the intent of the FMLA -- specifically to allow an individual 12 weeks of unpaid leave to care for a family member. Although I am myself an attorney, I have no experience with this area of the law --and am trying to find a lawyer with whom I might confer.

While my own circumstances have worked out well-- thanks to my daughter's well-timed birth, I am deeply troubled by the university's policy and concerned about the precedent being set for other faculty. 

As an HR person, I know how complicated the leave issue is. First off, I assume that somewhere, there is written benefit policy on these matters (if not you should pressure someone to create it) that define benefits at your academic level. You should talk to someone centrally about this matter. Second, the pay issue is separate from the leave issue - the school may set the pay rules, since your legal protection is job protection and pay is discretionary. Thus the paid leave can run concurrently with the FMLA - that is at the school's discretion. Third, California FMLA kicks in after pregnancy leave, which generally gives you six - eight weeks of job guarantee after giving birth, and then the 12 week FMLA kicks in. In any case, there should be parity for all, no question about that! Check out this site for more details, and good luck! http://www.hrcalifornia.com/ Lisa 

I am still on my maternity leave from SFSU and am taking the full semester with pay. The way I managed this was to combine my 20 days maternity leave with sick days accumulated over 5 years. Like you, I was lucky that my daughter was born close to the beginning of the semester. I was told the birth had to be within 3 weeks otherwise I could not claim the maternity leave. The Human Resource counsellor also advised me that it is better to take sick days because then I would be paid. The first thing she did was to check my records and tally up whether I had enough sick days to cover the rest of the semester. After five years, I barely did.

I am not able to comment on policies regarding having family leave and maternity leave run concurrently since I did not take that option. The sick days have worked for me but take time to build up. It is also possible to get other people to donate their sick days to you. Madeline

While not an academic, I was an administrative assistant in the UC system through the birth and infancy of both my daughters. I was also one of two union negotiators who represented clericals in writing FMLA into the then-AFSCME union contract.

It seems to me that you are dealing with three issues. First is the no-one-knows-anything syndrome, second is disability/paid maternity leave nexus, and third is the issue of running disability/paid maternity contiguous with FMLA leave.

No one knows anything syndrome was and is frighteningly common, and doesn't really indicate that no one at CSU has ever done this. While I am tempted to see this as a conspiracy to guilt parents out of taking leave, rationally I think it really reflects that the human resources people who administer benefits are usually not very experienced; this is particularly true if you have a departmental/divisional HR person. Differences in treatment often arise from direct managers pushing the HR person to creatively push the envelope of what the policy permits --UC has to give you four months, but MAY give additional time, and it is the administration of these optional leaves that is most likely to be abused. Regardless of this, I am sure CSU has a WRITTEN policy that you can look at, if you have not already done so. Other avenues include looking for a union shop steward at your institution who knows how the policy for non-academics is constituted (universities are usually reluctant to give fewer benefits to academics than they do to represented employees!) and might be able to refer you to a CSU-experienced labor lawyer; or to go through CSU's formal grievance process which should give you the right to access redacted records of other employees' FMLA leaves.

Disability/maternity leave I am confused by the 20-day paid maternity leave. I suspect it is actually some form of disability leave, probably paid by an insurance policy. The state of California requires employers to ensure that all employees receive disability insurance, and sets parameters for the payment of benefits. At UC, the standard leave premium is paid by the university, with reductions in the waiting period and increases in the premium paid for as per the employee's choice and out of their paycheck. Standard disability provides for leave on partial pay for 4 weeks before your due date (or as of the date your doctor says you are unable to work) and six weeks after, however, the standard waiting period between the time you are 'disabled' and when pay begins is pretty long --20 or 30 days; I always pay extra for the 5-day waiting period myself and am unclear on the worst-case scenario. Disability plans usually require you to use up your sick leave before disability payments begin. I think your 'paid maternity leave' was really 8-10 weeks of disability minus 4-6 weeks of waiting period. If CSU's paid maternity leave is really personal disability, the extent to which a seasonal employee is entitled to payment is going to depend on whether CSU pays premiums for 12 months as well as other factors like whether the other professor can show she normally works during the summer. (If a male professor has a heart attack on July 31, when does he start receiving disability payments?)

Lastly, I am afraid that concurrent running of disability leave and FMLA is consistent with both the state and federal laws and every personnel policy I've looked at (even if it is incredibly short-sighted). Medical conditions which trigger disability over a threshhold (usually around 5 days) do trigger FMLA protections. FMLA is the Family AND Medical Leave Act, and is meant to provide for both long-term leave for employees as well as time to look after family members. An employee is only entitled to a *total* of 4 months during the 24 (?) month period. Again, you would have to look at the case of the 50-year-old male professor who has a heart attack: does he get 3 months of disability, and then 4 additional months of FMLA leave?

Good luck sorting this out --and hope you're prepared to become your local expert on the use of FMLA leave! Chris

I don't know the answers to all your questions, but I do know that the FMLA does run concurrently with any other leave you have. So, if you are given paid maternity leave, or if you take advantage of the state's disability pay, your FMLA clock is ticking all the while. Sorry. Judith 

The law surrounding the Family Medical Leave Act can be confusing. State law requires an employer to grant up to 16 weeks of pregnancy disability leave(PDL) (88 working days) for disability related to pregnancy, childbirth or related medical conditions. Thus, if you leave work due to pregnancy one month before you deliver your child (4 of your 16 week entitlement), you will have up to 12 weeks left of PDL time, as long as your doctor can certify that you remain disabled during those 12 weeks. If you are not disabled for the entire 12 weeks, your PDL leave end will end the day your physician certifies that you are no longer disabled (usually 6 weeks after delivery for vaginal deliveries).

Unfortunately, your 12 weeks of Family Medical Leave ACT begins the day you leave work due to your disability. During the period that you are disabled, your FMLA runs CONCURRENTLY with your PDL leave for your own pregnancy related medical condition. Once you no longer are disabled, whatever balance of your 12 weeks FMLA entitlement converts to FMLA leave for baby bonding purposes. If you are only disabled due to pregnancy and childbirth for 8 weeks, 8 weeks of your FMLA leave will be for your own medical condition, and you will have 4 weeks left of FMLA time remaining for baby bonding purposes.

There is one law that you did not mention in your email, the California Family Rights Act (CFRA). The CFRA provides you with up to 12 weeks of leave for baby bonding purposes. Unlike the FMLA, CFRA leave DOES NOT run concurrently with PDL leave (hang in there...this stuff gets confusing) or that portion of your FMLA leave that is related to your pregnancy related disability. CFRA leave begins for baby bonding purposes, AFTER you are no longer are disabled from pregnancy. It may run concurrently with your FMLA baby bonding leave, depending on whether or not your already used your 12 week FMLA entitlement due to your own pregnancy related disability. Your question regarding your employer's policy of paying employees for 20 days is more of a pay question than a PDL/FMLA/CFRA question. All of the leaves are unpaid, however, you may use any paid time off (vacation, sick leave, family sick leave), depending on how much accrued time paid off you have accrued and your employer's policy.

Good luck sorting all of this out. I am an in house employment attorney and I usually find myself drawing time lines to sort it all out, depending on the facts of each situation. Stacy

Two web sites that can provide you information on what UC's policies are concerning leaves for pregnancy and parenting are:

UC Berkeley's Guide for Balancing Work and Family: http://campus.chance.berkeley.edu/depcare/guide/INDEX.HTML

UCOP's Pregnancy and Newborn Child Fact Sheet: http://www.ucop.edu/bencom/life/pregnancy3104.pdf

The latter is aimed at staff but may be relevant. Judy

I work for the University of California Press Journals Division. One of our publications, the California Public Employee Relations Journal, (produced by the UC Berkeley Institute for Industrial Relations) publishes an easy reference pocket guide that deals with the FMLA. It's called The Pocket Guide to the Family and Medical Leave Acts--these guides are for attorneys, union officers and personnel managers-anyone who needs to understand and apply the law. Anyway, we are currently sold out of them and don't expect more before January, but they should be available at some academic libraries, particularly law libraries. You might search your campus library database and see if you can find it. Suzanne 

The American Association of University Professors, for whom I am associate counsel, has policy statements and other helpful information on this issue. Ann 

Questions regarding FMLA: I did not work at a University setting, rather at Kaiser Permanente. However, my understanding from my experiences there was that FMLA DOES run concurrently with paid leave. There is a California version (California Maternity Leave Act?) which someone out there probably knows the correct name of. My recollection is that this leave is in addition to FMLA. You should call the HR dept at Cal State, and ask to speak to a SPECIALIST in this area, (be persistent) and ask them to fax you the printouts of these laws as well as the University policy. Janet 

FMLA: I have an acedemic appointment at UCB, and they are very clear that the FMLA 12 weeks runs concurrently with all other disability/maternity leave. I was able to take a full 12 weeks off (only 12 weeks total), but almost all was paid through a combination of sick/vacation leave and diability pay. However, with acedemic appointments, no one checks or inforces that you are at work the day after the 12th week. My guess is that this is why no one has pushed this issue- they don't want the rules too strict. Lisa 

I worked in Employee Relations for many years. Finally, all my idiosyncratic knowledge will pay off! It's not unusual, although not required, to have FMLA leave run concurrent with other types of leave, therefore the university can require that you take the paid leave concurrent with your FMLA. FMLA serves primarily as job protection; it means they can't replace you or fire you because you took 12 weeks off to care for a family member. How or whether you get paid is a different matter, and whether you are granted additional vacation time or other leave, paid or otherwise, is up to the discretion of the organization. The time in which you are still disabled (generally 6 weeks after vaginal delivery or 8 weeks after a c-section) is considered disability, and paid according to the state or company disability program. Additional paid leave can be provided consistently according to company (or university) guidelines. The only part of your story that seems odd is the denial of the leave during the summer months. In that case, I'd want to hear the rationale for denial, and be sure it was happening consistently under similar circumstances. It does seem odd.

Just to add to the issue, there is another state guideline (CPHRA, I believe?) that protects your job while you're pregnant, before you deliver. Hope that helps! Carrie

To the person inquiring about taking FMLA leave, one of the best resources is the Women's Employment Rights Clinic where a law student, under the supervision of an employment law attorney, can take down all of the facts of your case, do some research, and provide some clear guidance about the interplay of the various laws and the CSU policies that affect your leave. The clinic does not charge for most services, but does take donations. It's also possible that the clinic may want to get involved on a deeper level if it is true that campuses are enforcing the Acts differently and/or incorrectly. The clinic's phone number is 415/442-6647.

You also may want to order a copy of the Pocket Guide to the Family and Medical Leave Acts. Published by the California Public Employee Relations Program (CPER) here at U.C. It's $8. You can order it from jorders at ucpress.ucop.edu or from our website at http://www.iir.berkeley.edu/~iir/cper/cper.html . I hope this helps. Stefanie

When my husband needed to take time off to care for his disabled mother (usually an hour or two at a time) he was told he could not do it. We found out, not only could he take it one hour at a time, but that the city could be sued for penalizing him if he did so (by giving him bad reviews based on his attendance or not letting him leave on time for her appointments). He was constantly having to use his sick leave to deal with his mother's health issues because they did not want to fill out the necessary paperwork. This is unpaid leave after all.

You need to consult a family law lawyer. They are the ones who will be able to tell you what can and can't be done. And you are right. It is not meant to run concurrently. You will have to force the university to take a good look at the act and they will see that they are leaving themselves wide open for a lawsuit. One phone call from a family law lawyer will most likely result in instant compliance. It sounds like the University system needs to adopt one ruling for all schools.

November 2000

How many months does the FMLA cover?

We are under the impression that a woman can take upto a year off for child care. Looking thru the FMLA material on many websites including UCB Parents, we saw only 12 weeks. Could someone clarify? Rajesh 

I know the answer to this one, having just investigated it rather thoroughly: There are three laws applicable to this, all of which add up to 28 weeks. All of these apply to employees who have been with an organization for longer than 12 months or 1250 hours.

FMLA of 1993 which requires an employer with more than 50 employees to allow an employee up to 12 weeks of leave for birth, adoption, foster care placement and illness for themselves and/or eligible family members.

California Pregnancy Disability Leave (PDL) An Employee may take up to four months of medically necessary leave which will be CONCURRENT with FMLA if eligible

California Family Rights Act of 1991. If eligible you may take an additional 12 weeks of family and medical leave for reasons unrelated to pregnancy disabilty. This may be to care for a newborn or recently placed foster child.

UC has an excellent fact sheet: Pregnancy and Newborn Fact Sheet #3104 revised 8/99

Myriam

The post wasn't specific as to the timing of the leave, which could be important. When I reviewed FMLA before the birth of my daughter 18 months ago, it appeared that I could use 12 weeks of FMLA for the birth for me and 12 weeks to take care of my baby, for a total of 24 weeks. Laurel 

I didn't see the post, just the reply, but wanted to clarify your rights under the FMLA. FMLA (and the California equivalent of that statute) gives you a maximum 12 weeks off of work (unpaid) per year to care for (1) your or a family member's serious medical condition or (2) the birth/adoption of a new child or (3) the placement of a foster child. You have to meet certain eligibility requirements regarding amount of time you've worked for your employer (i.e., 1250 hours in the 12 months prior to taking the leave) in order to qualify.

Under another California statute, if you become disabled due to a pregnancy-related condition (including childbirth), you also get up to 4 additional months of unpaid leave to accommodate that disability. The pregnancy disability leave covers the period that you are disabled immediately following the birthing process (presumed to be 6 weeks). But it does not cover taking care of a newborn.

So, if you have a normal pregnancy (and are not disabled before giving birth), you usually get a total of 18 weeks of unpaid leave (6 weeks of pregnancy disability leave due disability caused by childbirth, plus 12 weeks of FMLA leave to care for the birth of a newborn).