513, Employee Leaves of Absence

513.1 Purpose

To outline policy for the Commissioner’s Office regarding employee leaves of absence including vacations, paid holidays, sick leave, emergency leave, military leave, jury and witness service, tuition reduction, and sabbatical and administrative leave. Any questions regarding this policy should be referred to the human resources officer.

513.2 Approval

Board of Higher Education approval: April 29, 2010. Revised: June 8, 2016; September 13, 2017.

513.3 References

Utah Code 53B-2a-102, Commissioner of Technical Education – Appointment – Duties
Policy 102, Delegations of Authority
29 CFR 825.100 et seq., Family and Medical Leave Act of 1993 Regulations
38 USC 4301 et seq., Uniformed Services Employment and Reemployment Rights Act of 1994
UCA 39-3, Governmental Employees in Military Service
UCA 39-3-2, Government Employees in United States Armed Forces or National Guard
29 USC Section 201 et seq., Fair Labor Standards Act (the “FLSA”)
29 CFR 1620, The Equal Pay Act
Title VII of the Civil Rights Act of 1964, Pub. L. 88-352
UCA 30-1-4.1, Marriage Recognition Policy

513.4 Definitions

4.1 Benefits-eligible Employee: An employee holding a position designated by the Commissioner as permanent and at not less than 80% of full-time.

4.2 Child: A biological, adopted or foster child, stepchild, legal ward, or a child of a person standing in loco parentis, who is either under the age of eighteen or over the age of eighteen and incapable of self-care on a daily basis because of a mental or physical disability that substantially limits one or more major life activities.

4.3 Healthcare Provider

4.3.1 A state-authorized doctor of medicine or osteopathy;

4.3.2 A state-authorized podiatrist, dentist, clinical psychologist, optometrist, or chiropractor performing within the scope of his or her practice; or

4.3.3 A state-authorized nurse practitioner, nurse-midwife, or clinical social worker performing within the scope of his or her practice.

4.4 Incapacity: The inability to work, attend school, or perform other regular, daily activities due to a serious health condition, treatment therefore, or recovery therefrom.

4.5 Parent: A biological parent or an individual who performs all parental duties in lieu of a biological parent.

4.6 Parent-in-law: The biological parent of the employee’s spouse or an individual who performs all parental duties to the employee’s spouse in lieu of a biological parent.

4.7 Responsible Officer: The USHE officer with a direct supervisory reporting relationship to an employee.

4.8 Serious Health Condition: An illness, injury, impairment, or physical or mental condition that involves:

4.8.1 Inpatient care (i.e., overnight stay);

4.8.2 A period of incapacity of more than three consecutive calendar days that requires continuing treatment by a healthcare provider;

4.8.3 Any period of incapacity due to pregnancy or prenatal care;

4.8.4 Any period of incapacity or treatment for such incapacity due to a chronic, serious health condition (e.g., asthma, diabetes, etc.);

4.8.5 A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective, but which requires the continuing supervision of a healthcare provider (e.g., Alzheimer’s Disease, severe stroke, etc.); or

4.8.6 Any period of absence to receive multiple treatments by a healthcare provider (e.g., chemotherapy, dialysis, etc.).

4.9 Spouse: A husband or wife as defined or recognized under Utah law for purposes of marriage in Utah.

4.10 Exempt Staff: An employee who is exempt as defined by the Fair Labor Standards Act.

4.11 Nonexempt Staff: An employee who is nonexempt as defined by the FLSA.

4.12 Overtime: Time worked in excess of an employee’s work period as defined by FLSA.

4.13 Compensatory Time: Institutionally-approved time off in lieu of overtime pay.

4.14 Personnel: Individuals employed by the Office of the Commissioner of Higher Education. This includes administrative staff and other staff members.

4.15 Full-time Personnel: Those individuals employed at 100 percent of the normal possible annual working hours (full-time annual equivalent is 2,088 hours). This means individuals working forty hours weekly on a twelve-month basis.

4.16 Part-time Personnel: Those individuals employed at less than 100 percent of the normal possible annual working hours (full-time annual equivalent is 2,088 hours). This means individuals working less than forty hours weekly or less than twelve months annually.

513.5 Vacation Policy

5.1 Only benefits-eligible employees are eligible for vacation benefits according to the following schedule:

5.1.1 Exempt and non-exempt staff with 0 to 5 years of service are entitled to 10.00 vacation hours per month.

5.1.2 Exempt and nonexempt staff with 6 to 10 years of service are entitled to 12.00 vacation hours per month.

5.1.3 Exempt and non-exempt staff with 11 to 15 years of service are entitled to 13.33 vacation hours per month.

5.1.4 Exempt and non-exempt staff with 16 or more years of service are entitled to 14.67 vacation hours per month.

5.1.5 Executive Officers are entitled to 16.67 vacation hours per month.

5.2 The Commissioner may consider prior years of service in determining the vacation accrual rates for benefits-eligible employees who transfer from a USHE college or other entity to the Office of the Commissioner. However, employees may not transfer vacation leave balances to the Office of the Commissioner.

5.3 Vacation benefits continue to accrue during a leave of absence with pay, but do not accrue during a leave of absence without pay. The vacation accrual rates listed above designate the amount of vacation time earned by employees working 100% time. If an eligible employee works less than 100% time, the vacation accrual rate is multiplied by the percent of full-time.

5.4 An employee may accumulate and carry forward to each new calendar year unused vacation leave which does not exceed 240 hours plus the employee’s current annual vacation leave entitlement. During the subsequent calendar year an employee may earn and accumulate additional vacation hours. However, if the additional vacation hours are not used by December 31 of the subsequent year, any accrued vacation leave in excess of that which may be carried forward will be eliminated from the employee’s accrued vacation leave balance. The unused vacation leave for which an employee may be paid upon termination of employment cannot exceed 240 hours plus the employee’s current annual vacation leave entitlement.

5.5 Eligible staff members are encouraged to take vacations periodically pursuant to schedules arranged in advance to prevent disruption of office operations. Eligible personnel are expected to schedule vacation leave at reasonable intervals by arrangement with the responsible officer. Unauthorized vacation leave, as well as vacation usage in excess of accrued vacation time, are prohibited and are treated as absences without pay.

5.6 An eligible staff member is entitled upon termination to payment for vacation leave earned but not taken. Payment for unused vacation leave is computed by multiplying the employee’s current hourly rate of pay by the actual number of accrued hours, not to exceed 240 hours plus the employee’s current annual vacation leave entitlement. Payment for unused vacation leave, to the extent authorized by this vacation policy, is a form of deferred compensation and, as such, cannot be withheld from an eligible individual who has been terminated for any reason, but is subject to deductions and offsets authorized by policy or legal requirements.

513.6 Paid Holidays

6.1 Standard Holiday Schedule: All full-time employees are entitled to the following paid holidays:

6.1.1 New Year’s Day

6.1.2 Martin Luther King/Human Rights Day

6.1.3 President’s Day

6.1.4 Memorial Day

6.1.5 Independence Day

6.1.6 Pioneer Day

6.1.7 Labor Day

6.1.8 Thanksgiving Day

6.1.9 Friday following Thanksgiving Day

6.1.10 Christmas Eve

6.1.11 Christmas Day

6.1.12 New Year’s Eve

6.2 Variations from Standard Holiday Schedule

6.2.1 A holiday falling on Saturday will be observed the previous Friday.

6.2.2 A holiday falling on Sunday will be observed the following Monday.

6.2.3 Additional holidays may be declared by the Commissioner to accommodate special circumstances.

513.7 Sick Leave (Leave with Pay) Policy

7.1 Sick leave is a benefit which provides payments to employees who are unable to perform the functions of their positions because of an illness or serious health condition, or because they are needed to care for a spouse, child, parent, or parent-in-law with an illness or serious health condition. Only benefits-eligible employees are eligible for sick leave benefits.

7.2 In general, employees should arrange routine healthcare appointments during nonworking hours. However, in cases where these appointments must take place during regular working hours, employees may charge the time used for these appointments to sick leave. Whenever possible, supervisors should be notified of such appointments at least 48 hours in advance. In order to minimize disruption of office operations, an employee shall notify his or her supervisor, in a timely manner, of an unexpected absence due to illness.

7.3 Full-time employees accumulate sick leave at a rate of 8.00 hours per month with a maximum accrual of 1,040 hours. If an eligible employee works less than 100% time, sick leave will accumulate on a prorated basis. The Commissioner may recognize prior sick leave balances for benefits eligible employees who transfer from a USHE college or other entity to the Office of the Commissioner. Employees may not convert accrued sick leave to vacation, and employees are not entitled upon termination to payment for sick leave earned but not taken.

7.4 Sick leave may not be used for vacation purposes, but after all sick leave has been exhausted, additional absences due to illness or a serious health condition of the employee or the employee’s spouse or child may be charged to earned vacation time with approval from the responsible officer. The Commissioner may require certification of all absences charged to sick leave.

7.5 In exceptional cases after all accrued sick leave and vacation leave have been exhausted, extended sick leave with pay may be authorized by the Commissioner. Extended sick leave is not available for the care of a child, spouse, parent, or parent-in-law with an illness or serious health condition. Extended sick leave may not exceed 30 days unless authorized by the Commissioner. In no event shall extended sick leave be granted for a period extending beyond the earliest day on which benefits under either a disability insurance program or the Social Security Act are expected to become payable to the employee. If the employee returns to work before the expiration of authorized extended sick leave, the unused portion of the leave will be cancelled.

513.8 Family Medical Leave Act Leave

8.1 Eligibility

8.1.1 An employee is eligible to request Family Medical Leave Act (FMLA) leave if he or she has been an employee of USHE for at least twelve months and has worked at least 1,250 hours during the twelve-month period immediately preceding the leave.

8.1.2 Subject to the requirements described in this policy, an eligible employee may request and will be granted up to twelve work weeks of unpaid FMLA during any twelve-month period for one or more of the following events:

(a) The birth and first year care of a child;

(b) The placement of a child for adoption or foster care in the employee’s home;

(c) The care of the employee’s spouse, child, parent, or parent-in-law with a serious health condition; or

(d) The employee’s own serious health condition which renders him or her unable to perform the essential functions of the employee’s position.

8.1.3 For purposes of calculating the amount of FMLA leave an eligible employee may request, the term “during any twelve-month period” means a rolling twelve-month period measured backward from the date the requested leave will begin.

8.1.4 If both spouses are employed by USHE, they are limited to a combined total of twelve work weeks of FMLA leave during any twelve-month period for purposes described in subparagraphs 8.1.2(a) or 8.1.2(b). However, each employee may use up to twelve work weeks of FMLA leave during any twelve-month period if the leave is for purposes described in subparagraphs 8.1.2(c) and 8.1.2(d).

8.1.5 FMLA leave for the birth or care of a child, or for the placement of a child for adoption or foster care, must be taken within the twelve-month period after the date of such birth or placement. Regardless of when such leave begins, it will end no later than the end of the twelve-month period. Unless specifically permitted by the responsible officer, FMLA leave for these purposes cannot be taken on an intermittent or reduced-leave schedule.

8.2 Notification and Certification of Need for FMLA Leave

8.2.1 An eligible employee who foresees the need for a FMLA leave must notify the Commissioner in writing not less than thirty calendar days in advance of the start date of the leave. If not foreseeable, the employee must provide written notice as soon as practicable, ordinarily within two working days of learning of the need for leave.

8.2.2 An eligible employee who foresees the need for leave due to planned medical treatment for himself or herself or for his or her spouse, child, or parent must notify the Commissioner in writing not less than thirty calendar days in advance of the start date of the leave so the leave can be scheduled at a time least disruptive to USHE’s operations. If not foreseeable, the employee must provide written notice as soon as practicable, ordinarily within two working days of learning of the need for leave.

8.2.3 If the requested leave is to care for a spouse, child, or parent who has a serious health condition, the employee will be required to file with the Commissioner, in a timely manner, a healthcare provider’s statement that the employee is needed to care for the child, spouse, or parent, and the estimated duration of the leave. For purposes of confirmation of family relationship, the employee may be required to provide reasonable documentation or statement of family relationship.

8.2.4 If the requested leave is because of a serious health condition of the employee which renders him or her unable to perform the essential functions of the employee’s position, the employee is required to file with the Commissioner a healthcare provider’s statement as allowed by FMLA.

8.2.5 An employee on an approved FMLA leave must inform the Commissioner every thirty days regarding his or her status and intent to return to work upon conclusion of the leave. An employee may also be required to submit a fitness-for-duty certification before returning to work.

8.2.6 In any case where there is reason to doubt the validity of the healthcare provider’s statement or certification for leave taken under subparagraphs 8.2.3 or 8.2.4 above, USHE may, at its own expense, require second and third opinions, as specified by FMLA, to resolve the issue.

8.2.7 Failure to comply with the above notification and certification requirements may result in a delay in the start of FMLA leave or a delay in the restoration of the employee to his or her position.

8.3 Substitution: An employee must substitute any accrued paid leave (i.e., sick leave and vacation) for any unpaid FMLA leave except that an employee, by written request, may retain up to ten days of already-accrued vacation. Upon exhaustion of any accrued paid leave, the remainder of any FMLA leave will be unpaid. In no case will the combination of paid and unpaid leave used for an FMLA purpose exceed twelve work weeks in any twelve-month period.

8.4 Intermittent FMLA Leave: Leave may be taken intermittently or on a reduced leave schedule when medically necessary for medical treatment of a serious health condition by or under the supervision of a healthcare provider, or for recovery from such treatment or for recovery from a serious health condition. The employee may be required to file with the Commissioner certification from a healthcare provider why the intermittent/reduced leave schedule is medically necessary and the expected schedule and duration of such leave. The employee may be required to transfer temporarily to an available alternative position for which the employee is qualified. The alternative position must have equivalent pay and benefits and better accommodate recurring periods of leave than the employee’s regular position.

8.5 Benefits and Return from Leave

8.5.1 At the election of the eligible employee, his or her insurance plans (i.e., health, dental, life, and disability coverage) will be maintained for the duration of an FMLA leave at the level and under the conditions coverage would have been provided if the employee had continued in employment for the duration of the leave. The employee will be responsible for paying his or her share of the premiums.

8.5.2 While on unpaid FMLA leave, USHE may recover its share of the premiums for maintaining coverage for the employee under such insurance plans during the period of an FMLA leave if the employee fails to return to work (or returns but fails to stay thirty calendar days) for reasons other than the continuation or onset of a serious health condition entitling the employee to leave under subparagraphs 8.1.2(c) or 8.1.2(d), or other circumstances beyond the employee’s control. Certification of the employee’s inability to return to work as specified by FMLA may be required.

8.5.3 Unless the employee is terminated as a result of a reduction in force, an employee who takes an FMLA leave for the intended purpose of the leave shall be entitled, upon timely return from the leave and completion of all required documentation, to be restored to the position of employment held when the leave commenced or to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.

513.9 Long-term Medical Leave (Leave without Pay): Under certain circumstances, USHE may permit an employee who has exhausted all of his or her accrued sick leave and FMLA leave, or an employee who is not eligible for sick leave or FMLA leave, to take long-term medical leave without pay for the employee’s own serious health condition. In general, long-term medical leave is not available to employees holding positions that are temporary in nature (i.e., with a duration of less than four consecutive months), or to employees who are employed on an intermittent or as-needed basis.

9.1 Request for Long-term Medical Leave

9.1.1 A request for long-term medical leave without pay shall, whenever possible, be submitted in writing to the Commissioner prior to the date upon which the requested leave is to commence. If unusual circumstances make it impossible in the exercise of reasonable diligence for the employee to submit the request in advance of the date upon which the requested leave is to commence, approval may be given to a retroactive commencement of the leave.

9.1.2 The written request should state:

(a) The reason why the long-term medical leave is being requested;

(b) The proposed date on which the requested long-term medical leave is to commence;

(c) The employee’s intent to return to work upon conclusion of the leave; and

(d) The estimated date on which the employee reasonably expects to return to work.

9.1.3 The employee shall provide a healthcare provider’s statement supporting the need for a long-term medical leave.

9.1.4 The Commissioner shall approve or deny the request for a long-term medical leave. If the Commissioner concludes that the requested leave should be approved but has reasonable grounds to believe that in order to assure satisfactory discharge of the duties of the position, consistent with the present or anticipated physical or mental condition of the employee, the leave should commence at a different date than requested by the employee, the approval of the request may be subject to the condition that the leave will begin at a specified date other than the requested date.

9.1.5 Prior to the commencement of an approved long-term medical leave, the employee must arrange for a counseling interview with the Commissioner.

9.2 Length of Long-term Medical Leave

9.2.1 It is recognized that the duration of a serious health condition cannot be precisely known in advance. Accordingly, long-term medical leaves may be granted for an estimated or indefinite period of time, not to exceed one year.

9.2.2 Unless the Commissioner approves an extension of the long-term medical leave beyond one year, applicable procedures for termination of the employment status of the individual at the end of the one year’s long-term medical leave shall be initiated by the Commissioner.

9.2.3 All long-term medical leaves are subject to the provisions of section 9.3, specifying the obligations of USHE and related procedures governing reinstatement.

9.3 Reinstatement

9.3.1 Notice of Intent: An employee on long-term medical leave must give the Commissioner written notice not less than thirty working days in advance of the date on which the employee wishes to terminate the long-term medical leave and return to work. An employee may be required to submit a fitness-for-duty certification by a healthcare provider before returning to work. If appropriate, the Commissioner may require a second, independent certification from a healthcare provider at the institution’s expense.

9.3.2 Six-month Rule: An employee who has been on authorized leave because of his or her own serious health condition (including any time credited to sick leave, FMLA leave, or accrued vacation) for six months or less during any twelve-month period prior to the date of return to work shall be restored to the position of employment held when the leave commenced or to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment. In order to facilitate discharge of USHE’s obligation of reinstatement under this “six-month rule”, unless otherwise authorized by the Commissioner, the responsible officer shall not fill the position with a permanent employee during the six-month period specified in this paragraph.

9.3.3 One-year Rule: If an employee has been on authorized leave because of his or her own serious health condition (including any time credited to sick leave, FMLA leave, or accrued vacation) for more than six months but less than one year during any twelve-month period prior to returning to work, USHE will make a good faith effort, subject to availability of funds and vacant positions, to restore the employee to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment, or to another position for which the employee is qualified. The Commissioner is responsible for arranging such reinstatement. USHE cannot, however, assure that an employee returning to work after a leave of more than six months’ duration will be reinstated.

9.3.4 USHE has no obligation to reinstate, or to make any effort to reinstate, an employee who has been on leave (including any sick leave, FMLA leave, or accrued vacation) because of his or her serious health condition for more than one year. An application for reinstatement in such cases shall be treated as an application for initial employment.

9.3.5 If an employee on long-term medical leave accepts other employment during such leave or fails to return to work within three business days after the expiration of the long-term medical leave, USHE may treat such action as a voluntary termination of employment and a waiver of any right to reinstatement.

513.10 Employee Benefits during Health-related Leaves of Absence

10.1 Time-related Benefits: Longevity for purposes of accruing vacation time is not lost during the preceding leaves without pay. However, vacation and sick leave benefits do not accrue during such leaves.

10.2 Retirement and Insurance Benefits

10.2.1 Sick Leave and Extended Sick Leave: During paid sick leave and paid extended sick leave, retirement and insurance benefits continue to be paid by USHE.

10.2.2 Family Medical Leave Act Leave: To the extent FMLA leave is paid, retirement and insurance benefits continue to be paid by USHE on the same basis as if the employee had continued in employment for the duration of the leave. To the extent FMLA leave is unpaid, retirement benefits will not be paid by USHE during the leave. Insurance benefits will continue on the same basis as if the employee had continued in employment for the duration of the leave, provided the employee pays his or her share of the premiums and returns to work at the end of the leave (Policy 513.8.5).

10.2.3 Long-term Medical Leave: Retirement and insurance benefits are not paid by USHE during an unpaid long-term medical leave. An employee on long-term medical leave, however, may elect to continue his or her health insurance coverage as provided by federal law.

513.11 Leaves of Absence with Pay, Non-health-related: The following leaves of absence with pay may be granted to USHE employees:

11.1 Funeral Leave: A benefits-eligible employee may request, in writing, funeral leave in the case of the death of an immediate family member. The Commissioner may grant funeral leave with pay to the extent he or she deems reasonable and necessary. In no event shall such paid funeral leave exceed three working days.

11.2 Leave to Serve on Jury or as a Witness: The Commissioner shall grant an employee a leave of absence with pay for the period during which the employee is required to be absent from work because of an official requirement to appear for jury service or a subpoena to appear as a witness at a trial, deposition, or other official proceeding, provided the following conditions are met:

11.2.1 The employee must deliver to the USHE finance officer, for deposit to USHE’s general funds, any fees received for compelled attendance as a juror or nonexpert witness.

11.2.2 The leave of absence with pay covers only the time the employee is actually engaged in jury service or in attendance as a witness, and reasonable travel to and from the place of such service or attendance.

11.2.3 The employee must report daily to work before and after jury service or attendance as a witness, whenever feasible, in order to give as much attention as possible to his or her regular duties.

11.2.4 An employee is not entitled to a leave of absence with pay when the employee appears in court on his or her own behalf (e.g., to pay a traffic fine or as a party to a civil law suit).

11.3 Leave with Pay for Annual Military Training: An employee who is a member of the National Guard or any organized reserve branch of the United States uniformed services is entitled to a leave of absence with pay not to exceed fifteen working days per year for time spent on duty at annual encampments or rifle competitions or other duties in connection with the reserve training and instruction requirements of the United States uniformed services or National Guard (see Policy 509, Employee Military Service).

11.4 Benefits during Leaves with Pay: During the preceding leaves with pay, vacation and sick leave continue to accrue. Retirement and insurance benefits continue to be paid by USHE during such leaves.

513.12 Leaves of Absence without Pay, Non-health-related

12.1 Political Leave without Pay: A benefits eligible employee who is nominated for an elected public office may be placed upon full or partial leave of absence without pay to the extent that the Commissioner determines that such nomination or the anticipated activities of the employee as a candidate for such office will make the continued service of the employee to USHE ineffective during the period of the candidacy or will compromise the impartial discharge of the employee’s USHE responsibilities

12.1.1 An employee who is on political leave without pay for the purposes of candidacy, and who is defeated in the final election, will be restored to the position of employment held when the leave commenced or an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.

12.1.2 An employee who is on political leave without pay for the purposes of candidacy and who is elected in the final election may request, in writing, an extended political leave without pay. The Commissioner shall approve or deny the request.

12.1.3 An employee may become a candidate for elected office as a representative or senator in the Utah State Legislature without resigning from USHE and without securing a leave of absence. If elected, the employee shall be granted a leave of absence without pay for the period of time between the commencement and final adjournment of any regular or special session of the legislature of which the employee is a member.

12.1.4 In lieu of leave without pay under 12.1.1 through 12.1.3, the employee may use accrued vacation.

12.2 Special Leave without Pay: Under special and urgent circumstances, USHE may permit a benefits-eligible employee to take a special leave without pay. These special circumstances may include, but are not limited to, personal rehabilitation, the serious health condition of a parent-in-law, or continued education.

12.2.1 A request for special leave without pay must be submitted in writing to the Commissioner. The written request should state:

(a) The reason why the special leave without pay is being requested;

(b) The proposed date upon which the requested special leave is to commence;

(c) The employee’s intent to return to work upon conclusion of the leave; and

(d) The estimated date on which the employee reasonably expects to return to work.

12.2.2 The Commissioner shall recommend the approval or the denial of the request after considering the relative need and urgency of the request, the employee’s length of service, and the overall effect the absence will have on USHE operations. The Commissioner shall approve or deny the request. The Commissioner may approve the request subject to any conditions he or she feels are appropriate. Special leaves without pay are generally limited to a maximum of one year in duration.

12.2.3 Upon timely return from a special leave without pay, USHE will make a good faith effort, subject to availability of funds and vacant positions, to restore the employee to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment. USHE cannot, however, assure that an employee returning to work after a special leave of absence will be reinstated.

12.3 Benefits during Leaves without Pay

12.3.1 Time-related Benefits: Longevity for purposes of accruing vacation time is not lost during the preceding leaves without pay. Vacation and sick leave benefits do not accrue during such leaves.

12.3.2 Retirement and Insurance Benefits: Retirement and insurance benefits are not paid by USHE during the preceding leaves without pay. An employee, however, may elect to continue his or her health insurance coverage as provided by federal law.