Questions and Answers for the Academic Community

A new AAUP guidebook aims to help faculty understand their rights under the Family and Medical Leave Act.

By Donna R. Euben and Saranna R. Thornton

Professor Rachel Poole, who was adopting a child from Russia at the end of September, met with her dean because she wanted one week of leave for travel and an additional eight weeks to help the boy adjust to his new surroundings. The dean suggested that her sole option was to take a one-semester personal leave without pay.

Professor Fred Thompson was struggling to care for his ailing mother, who was in the hospital with a broken hip, while he lived 3,000 miles away. He was not familiar with his institution’s policies on leave and so continued to teach his classes, while trying to coordinate his mother’s care through long-distance phone calls.

These situations are not hypothetical; they are based on real stories from faculty members across the country. The Family and Medical Leave Act (FMLA) of 1993 enables most full-time and some part-time faculty to take up to twelve weeks of unpaid, job-protected leave in a twelve-month period for certain family and medical reasons. In addition, a faculty member must have worked (not just in the classroom) for at least 1,250 hours during the twelve months before the first day of leave. Faculty members may be entitled to such unpaid leave for (a) the birth of a child; (b) the placement of a child for the purposes of adoption or foster care; (c) the care of a spouse, child, or parent suffering from a “serious health condition”; or (d) a serious health condition of one’s own. Federal law requires a minimum of unpaid leave. Some state and local governments have passed laws that increase FMLA benefits beyond the federal requirement, but none provide paid leave. Some colleges and universities, however, provide more generous benefits, permitting professors at those institutions to receive partial or full pay for FMLA leave, depending on campus policies on sick leave, vacation leave, disability leave, and annual leave.

Many faculty members and academic administrators are unfamiliar with how the FMLA applies to colleges and universities. This lack of familiarity occurs for several reasons. First, faculty members promoted to serve as department chairs or deans often receive little information about the FMLA or its relationship to institutional policies and other federal and state laws. Some are later faced with complex personnel issues without the tools to know when to contact institutional counsel or a benefits coordinator. Second, many provisions of the FMLA were written with a forty-hours-a-week, fifty-weeks-a-year work schedule as a standard. That standard is often hard to apply to the academy, where faculty members often work long and irregular hours, some of them on campus and some of them off campus.

Although most members of the academic community have heard of the FMLA, many have inaccurate or incomplete information about the benefits to which they may be entitled. Questions have arisen about the application of the FMLA to the academic workplace from faculty members and administrators at different stages in their academic careers. Mid-career and senior professors are often called upon to care for seriously ill or elderly parents. Other faculty members, typically more junior professors, may need leave following the birth or adoption of a child, or to care for a seriously ill child. To assist faculty members and administrators faced with these situations, the AAUP prepared a guidebook titled The Family and Medical Leave Act: Questions and Answers for Faculty. It uses a question-and-answer format to help members of the academic community identify if and how the FMLA might apply to their situations. Excerpts from the guide are provided below. To purchase a copy, call (202) 737-5900 or click here.

Question. I am a part-time faculty member who has taught at the university for more than twelve months. Am I entitled to FMLA leave?

Answer. It depends. You must determine whether you have worked 1,250 hours in the twelve months preceding your FMLA leave by putting together a record of the number of hours you have spent teaching, grading, preparing lectures, holding office hours, attending department meetings, serving on committees, writing letters of recommendation, and so on. The evaluation of how many hours you have worked should not be based on a letter of appointment that does not reflect all the hours during which you have served your institution. The number of hours you serve your college or university is not limited only to time on campus or teaching.

Question. My same-sex domestic partner is pregnant. How much FMLA leave am I entitled to?

Answer. It depends on whether or not you will be legally adopting the child when it is born and how your state, municipality, faculty handbook, and, if applicable, collective bargaining agreement treat same-sex domestic partners. Under the federal FMLA, a spouse is defined as an individual legally recognized as the faculty member’s husband or wife in the state in which the professor lives, and includes spouses in common-law marriages. If you are able to adopt the child in your state, you then may be entitled to take FMLA leave for the placement of your adopted child. If you live in Vermont, and have participated in a civil union ceremony with your same-sex domestic partner, check with your state government to determine if the state classifies you and your partner as spouses for the purpose of receiving FMLA benefits.

Question. I am adopting an older child. My dean informed me that I can take FMLA leave only for the adoption of a baby. Is this true?

Answer. No. The FMLA applies to the adoption or foster-care placement of any child under the age of eighteen.

Question. Under the FMLA, must I provide medical documentation to my college or university that I have a serious health condition?

Answer. Your institution may require you to provide a medical certification to take FMLA leave for your own serious health condition or to care for an immediate family member who is seriously ill. Check your faculty handbook or contact your campus office of human resources to determine whether your institution requires such certification. No medical certification is required if you are taking FMLA leave for the placement in your home of an adopted or foster child, or for the birth of your own child.

Question. I am adopting a child, but I do not know exactly when the child will arrive. The adoption agency says the child probably will not arrive until midsemester. My department chair wants me to take the entire semester as FMLA leave. Must I do this?

Answer. You, not the department chair, decide how much FMLA leave to take for the adoption of your child. For example, your department chair may not require that you take twelve weeks of FMLA leave when you want to take only eight weeks to care for a newly adopted child. The regulations provide: “An employee may not be required to take more FMLA leave than necessary to address the circumstance that precipitated the need for the leave.” Special rules apply to primary and secondary school teachers, not college or university faculty, about taking leave near the end of an academic term.

Nevertheless, you may wish to accommodate the needs of your students and your colleagues. For example, you may determine that it is too disruptive to the learning of your students to leave midsemester and so, if the administration agrees, you might instead assume administrative responsibilities or a research assignment for the beginning of the semester with full pay and benefits.

Question. My department chair says that upon my return from FMLA leave, I must teach large undergraduate classes that meet in the evenings, rather than the small graduate seminars that I usually teach during the day. Can she require me to do so?

Answer. It depends. Retaliation is generally prohibited under the FMLA. The FMLA provides that “[t]he employee is ordinarily entitled to return to the same shift or the same or an equivalent work schedule.” The issue is whether a change in course and time would be retaliatory or constitute an “equivalent work schedule.” You need to examine whether the change in course assignments upon your return from FMLA leave is unusual, inappropriate, or punitive in some way.

Question. What happens to my health insurance benefits while I am out on FMLA leave?

Answer. The coverage you receive must be at the same level and under the same conditions that you would have received had you not taken leave. For example, if the administration normally pays 100 percent of your health insurance premium, it must continue to pay 100 percent of your health insurance premium while you are on FMLA leave. If the administration normally provides only 50 percent of your monthly health insurance premium, it is not required to pay more than this amount while you are on FMLA leave. You are responsible for the amount of the premium you normally pay, even if you are on unpaid FMLA leave.

Question. I am the academic dean at my university, and I need to take FMLA leave. May I assume my responsibilities upon my return from leave?

Answer. Maybe. “Key employees” are not automatically entitled to restoration to their previous positions after taking FMLA leave. You are a “key employee” of your university if your salary is “among the highest-paid 10 percent” of all who work for the university. Since academic deans tend to earn high salaries, you may fall within the key employee category.

If you are a key employee, the administration is not required to restore you to your prior position (or an equivalent one) if such restoration would cause a “substantial and grievous economic injury” to the university’s operations. Whether your absence would cause such an injury may not be considered. If the administration determines that it will experience a substantial and grievous economic injury as a result of your return from leave, it must notify you right away that reinstatement will be denied. This notice should normally be provided before you go out on FMLA leave. If you do not receive such notice until after you have begun the FMLA leave, however, then you must be given the option of immediately returning to your position. The institution must maintain your group health insurance benefits during the period of your leave—even if you are not to be restored to your prior position. If you are denied reinstatement because you are a key employee, the institution may not ask you to repay it for the cost of your health insurance premiums while you were out on leave.

It is possible that a few faculty members might fall within the highest-paid 10 percent of employees at a university. However, it would appear difficult for an administration to demonstrate that a “key” professor’s reinstatement after an FMLA leave would cause substantial and grievous economic injury to the institution. In addition, these few professors would most likely be protected by tenure. As a result, although it is possible to conceptualize the “key employee” restriction as applying to, for instance, the top chef at a restaurant or a comptroller of a large corporation, it seems unlikely that faculty will often be affected by the restriction.

Question. I have cancer, and my chemotherapy makes me sick one week every month. May I take FMLA leave intermittently—one week at a time—following my chemotherapy treatments?

Answer. Yes, because you have a medical need that is best accommodated through an intermittent leave schedule. Intermittent leave is leave taken in separate blocks of time due to a single illness or injury. Such blocks of time can be as long in duration as you need—for example, one hour, one day, one week, one month, and so on. At the same time, you may be obliged to confer with your department chair in an effort to schedule the chemotherapy at a time that will not unduly disrupt the college’s operations. If that is not possible, your administration may assign you temporarily to an “alternative position” for which you are qualified to better accommodate your need for intermittent leave. For example, if you need to be absent from work one week out of every month, you might assume an administrative position, or be assigned nonteaching responsibilities during the semester(s) you will be on intermittent leave. Such a temporary transfer must comply with other laws, such as the Americans with Disabilities Act, and, where applicable, collective bargaining agreements, and the position must provide “equivalent pay and benefits.”

Question. Our collective bargaining agreement provides me with up to six months of fully paid medical leave upon my first day of employment with the university. May the institution refuse to pay me during my medical leave and shorten my leave period from six months (twenty-six weeks) to twelve weeks under the FMLA?

Answer. No. The FMLA does not diminish your university’s contractual obligation to comply with any benefit plan, state law, or collective bargaining agreement that provides more generous family and medical leave benefits than the federal FMLA provides. However, the institution may require the paid leave to run simultaneously (or concurrently) with the FMLA leave so that the professor is not necessarily entitled to six months of paid leave and then another twelve weeks of unpaid leave, unless the collective bargaining agreement provides otherwise.

In 1993 Congress passed the FMLA to promote the stability and economic security of families. It intended for the act to achieve this goal in a manner that accommodates the interests of employers in workplace efficiency, minimizes the potential for employment discrimination based on gender and pregnancy, and promotes equal employment opportunities for men and women. Applying the FMLA benefits in the academic environment is not always straightforward. The AAUP guidebook provides general information and resources to help the academic community understand the fundamentals of the law. Those with questions about a particular situation should confer with a lawyer in their jurisdiction who is familiar with the FMLA and the academy.

Donna Euben is staff counsel at the AAUP. Saranna Thornton is associate professor of economics at Hampden-Sydney College.

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