Family and Medical Leave Act

Dow Aero provides eligible employees a leave of absence in compliance with the provisions of the Family and Medical Leave Act (FMLA) 29 C.F.R. § 825.  FMLA is designed to enable employees to balance their work responsibilities with the demands of caring for family members or in the event of serious personal illness or injury.  FMLA leave is classified as unpaid leave by federal statutory definition.  However, Wellness/Sick and Paid Time Off leave can and will be used concurrently with FMLA leave.  With proper documentation, eligible employees may receive up to 12 weeks of unpaid leave in a 12-month period. 

The purpose of this policy is to provide employees with a general description of their FMLA rights. In the event of any conflict between this policy and the applicable law, employees will be afforded all rights required by law. If you have any questions, concerns or disputes with this policy, please contact the Company’s Human Resources (“HR”) department. 

FMLA Terms/Definitions

Eligibility

Employees are eligible if they meet all the following criteria:

• Have worked for Dow Aero for at least 12 months (does not need to be consecutive).

  • For eligibility purposes, an employee will be considered to have been employed for an entire week even if the employee was on the payroll for only part of a week or if the employee is on leave during the week.

• Worked for 1,250 hours over the 12 months immediately preceding the start of leave.

  • The principles established under the Fair Labor Standards Act (FLSA) determine the calculation of the number of hours worked by an employee.  The FLSA does not include time spent on paid or unpaid leave as hours worked.  Consequently, these hours of leave should not be counted in determining the 1,250 hours eligibility test for an employee under FMLA.

The twelve (12) months of employment does not have to be consecutive. All periods of absence from work due to or necessitated by service in the uniformed services are counted as hours worked when determining eligibility.

Reasons for Leave

FMLA requires covered employers to provide up to 12 weeks of unpaid, job protected leave to eligible employees for the following reasons:

• For a serious health condition that makes the employee unable to perform the essential functions of their job.

• Incapacity due to pregnancy, prenatal medical care, or childbirth.

• The birth of a child or placement of a child with the employee for adoption or foster care.

• The serious health condition (as defined below) of an employee’s immediate family member (spouse, child, eligible parent).

  • Immediate family members are defined as:

• FMLA provides that spouses who are employed by the same entity and are both FMLA eligible may be entitled to a combined total of 12 weeks of leave during any 12-month period if the leave is taken for birth, placement, or parental care. 

• The total FMLA-protected leave taken for the birth of a child or adoption of a child can be up to 12 weeks, but the leave must be taken consecutively during a single time period.  Time off cannot be taken intermittently for this leave.

• Certain qualifying exigencies arising out of a military member’s covered active-duty status, or notification of an impending call or order to active-duty status, in support of a contingency operation.  Qualifying exigency leave is only available to a family member of a military member in the National Guard or Reserves.

  • Qualifying exigencies include:

    • Issues arising from short notice deployment (seven (7) or less days of notice).

    • Military events and related activities, such as official ceremonies, programs, or events sponsored by the military or family support or assistance programs.

    • Certain childcare and related activities

    • Making or updating financial and legal arrangements

    • Attending counseling

    • Taking up to five (5) days of leave to spend time with a covered military member who is on short-term rest and recuperation leave.

    • Attending to certain post-deployment activities, including attending arrival ceremonies, reintegration briefings and events for a period of 90 days following the termination of active-duty status and addressing issues arising from the death of a covered military member.

    • Any other event that the employee and employer agree is a qualifying exigency.

• To care for a covered service member with a serious injury or illness.

  • Eligible employees may qualify for up to 26 weeks of leave in a single 12-month period to care for a covered service member recovering from a serious injury or illness incurred in the line of duty while on active duty. These eligible employees are entitled to a combined total of up to 26 weeks of all types of FMLA leave during the single 12-month period.

    • Military caregiver (also known as covered servicemember leave) to care for an injured or ill servicemember or veteran.

    • An employee whose son, daughter, parent, or next of kin is a covered service member may take up to 26 weeks in a single 12-month period to take care of that service member.

Serious Health Conditions

A serious health condition is defined as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.

 Inpatient Care

• An overnight stay in a hospital, hospice, or residential medical care facility.

• Includes any period of incapacity or any subsequent treatment in connections with the overnight stay.

Continuing Treatment by a Health Care Provider (any one or more of the following)

Incapacity Plus Treatment

• A period of incapacity of more than three (3) consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:

  • Two (2) or more in-person visits to a health care provider for treatment within 30 days of the first day of incapacity. (unless extenuating circumstances exist).

  • The first visit must be within seven (7) days of the first day of incapacity or

  • At least one in-person visit to a health care provider for treatment within seven (7) days of the first day of incapacity.

    • Results in a regimen of continuing treatment under the supervision of the health care provider. 

    • For example, the health provider might prescribe a course of prescription medication or therapy requiring special equipment.

 Pregnancy

• Any period of incapacity due to pregnancy or for prenatal care.

 Chronic Conditions

• Any period of incapacity due to or treatment for a chronic serious health condition, such as diabetes, asthma, migraine headaches.  A chronic serious health condition is one which requires visits to a health care provider (or nurse supervised by the provider) at least twice a year and recurs over an extended period.  A chronic condition may cause episodic rather than a continuing period of incapacity.

 Permanent or Long-term Conditions

• 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 health care provider, such as Alzheimer’s disease or the terminal stages of cancer.

 Conditions Requiring Multiple Treatments

• Restorative surgery after an accident or other injury

• A condition that would likely result in a period of incapacity of more than three (3) consecutive, full calendar days if the employee or employee’s family member did not receive the treatment.

Benefits and Protections

• While an employee is on FMLA leave, Dow Aero employee provided insurance coverage and costs will continue for employees during the 12 or 26 weeks (as applicable) and under the same conditions as if the employee had continued to work.

• The employee will continue to be responsible for payment of premiums for any elected coverage.  It is the employee’s responsibility to contact Human Resources as soon as possible to determine premium payment requirements.

• Employees on FMLA-protected leave will be eligible to change insurance coverage during the Annual Enrollment Period.  If an employee on FMLA-protected leave does not return to work, they will be eligible for continued insurance coverage as provided by the Federal Consolidated Omnibus Budget Reconciliation Act (COBRA) health benefit provision.

• Upon return form FMLA leave, employees must return to and be restored to their original or equivalent positions with equivalent pay, benefits, and other employment terms.  Use of FMLA leave cannot result in the loss of any employment benefit that accrued prior to the start of an employee’s leave.

• If the employee chooses not to return to work for reasons other than a continued serious health condition of the employee or the employee’s family member or a circumstance beyond the employee’s control, Dow Aero will require the employee to reimburse Dow Aero the amount it paid out for the employee’s health insurance premium during the leave period.

NOTE: An employee may not work at Dow Aero or anywhere else while on FMLA leave.

Use of Leave

• FMLA leave is not required to be used consecutively (except for excluded events). See Intermittent Leave section below for more details.

• Leave should be scheduled and approved by the supervisor in conjunction with company leave policies.

• For the birth, adoption, or foster care of a child, Dow Aero and the employee must mutually agree to the schedule before the employee may take the leave intermittently or work a reduced schedule before the employee may take the leave intermittently or work a reduced hour schedule.  Leave for birth, adoption, or foster care of a child must be taken within one year of the birth or placement of the child.

• If the employee is taking leave for a serious health condition or because of the serious health condition of a family member, the employee should try to reach an agreement with Dow Aero before taking intermittent leave or working a reduced hour schedule.  If this is not possible, then the employee must provide substantiation that the timing of the leave is medically necessary.

• Changes in Full Time Employment status or salary reduction should not be made during job protected leave.

• Employees must make reasonable efforts to schedule leave for planned medical treatment to lessen disruption to Dow Aero operations.

• Leave due to qualifying exigencies, FMLA leave may also be taken on an intermittent basis.

• Leave can be taken intermittently or on a reduced leave schedule when medically necessary.

  • Dow Aero may temporarily transfer an employee to an available alternative position with equivalent pay and benefits if the alternative position would better accommodate the intermittent or reduced schedule.

Intermittent Leave or a Reduced Work Schedule

• Employees may take FMLA leave in one consecutive block of time, may use the leave intermittently (take a day periodically when needed over the year) or, under certain circumstances, may use the leave to reduce the workweek or workday, resulting in a reduced hour schedule. In all cases, the leave may not exceed a total of twelve (12) workweeks; twenty-six (26) workweeks to care for an injured or ill service member) in a twelve (12) month period.

• The company may temporarily transfer an employee to an available alternative position with equivalent pay and benefits if the alternative position would better accommodate the intermittent or reduced schedule, in instances when leave for the employee or employee's family member is foreseeable and for planned medical treatment, including recovery from a serious health condition or to care for a child after birth or placement for adoption or foster care. 

Use of Paid Leave During FMLA Absence

• Dow Aero requires that all available paid time off leave accrued up to the start of FMLA leave must be used concurrently with FMLA leave.  Once all accrued paid time off leaves have been exhausted, then the remainder of FMLA leave will be unpaid.

  • During the use of Paid time off, the employee will continue to accrue new paid time off benefits.

  • Unpaid time off will not accrue any new paid time off benefits.

•  Absences related to an on-the-job injury for which Workers’ Compensation is received will also be designated as FMLA if the employee is eligible and the event is qualifying.

Employee Responsibilities

• All employees requesting FMLA leave must provide verbal or written notice of the need for leave to the Company’s current FMLA administrator, currently Human Resources Manager. The administrator can be contacted by one of the following methods:

  • Phone: 405-670-6800 x804

  • Email: hr@dowaero.com

  • Microsoft Teams

• The employee is responsible for informing their supervisors and Human Resources when an absence is FMLA-related at time of absence otherwise such absence will be considered regular time off.

• Employees must provide 30-days advance notice of the need to take FMLA leave when the need is foreseeable.  When leave is ‘foreseeable’, and completed FMLA forms are not submitted to Human Resources with a 30-days advance notice, the leave could be denied.

• Must attempt to schedule a foreseeable leave so as not to unduly disrupt the department’s operation.

• When 30-days advance notice is not possible, the employee must provide notice as soon as practicable and generally must comply with normal call in and other time/attendance policies.

• The employee shall obtain FMLA forms to be used for certification from Human Resources.

  • FMLA forms should be returned to Human Resources as soon as possible, but no later than 15 days from receipt of the FMLA forms, so proper documentation of the FMLA event can begin.

  • If completed FMLA forms are received after 15 days from the employee’s receipt of them, it may result in a denial of leave.

• The employee is responsible for obtaining medical certification or other documentation needed to support their request for FMLA absence(s).

Required Documentation

Employees must provide:

• Sufficient information for Dow Aero to determine if the leave may qualify for FMLA protection.  Sufficient information may include whether the employee is able to unable to perform job functions or to what degree they are able to perform them.

  • In the case of a family member, the information may include:

    • Inability to perform daily activities.

    • Needing hospitalization.

    • Continuing treatment by a healthcare provider.

    • Circumstances supporting the need for military family leave.

•  Anticipated timing and duration of leave.

  • Dates must be provided by the healthcare provider or the active-duty orders.

•  Employee must inform Dow Aero if the reason for requested leave is the same reason for which FMLA leave was previously taken or certified.

• A release from the healthcare provider must be submitted prior to engaging in either full-time or part-time work.

• A full release from the healthcare provider is required at the conclusion of each FMLA event.

• The active-duty orders of a covered military member will generally specify whether a servicemember is serving in support of a contingency operation by citing the relevant section of Title 10 of the United States Code and/or by referring to the specific name of the contingency operation.  This documentation is required by Human Resources.

• Each new FMLA event requires a new medical certification in support of the request for FMLA.

• The employee will be given an opportunity to resolve any deficiencies in the medical certification.

• Dow Aero has the right to ask for a second opinion if it has reason to doubt the certification provided by the employee’s health care provider.  Dow Aero will pay for the employee or the employee’s family member to get a certification from a second provider, whom Dow Aero will select.

• Dow Aero may directly contact the employee’s or family member’s heath care provider for verification or clarification purposes regarding FMLA leave.

  • In compliance with HIPAA Medical Privacy Rules, Dow Aero will obtain the employee’s or the family member’s permission for clarification of individually identifiable health information.

• Dow Aero may deny FMLA leave to an employee who refuses to release, or whose family member refuses to release, relevant medical records to the health care provider designated to provide a second or third opinion.  If necessary to resolve a conflict between the original certification and the second opinion, Dow Aero will require the opinion of a third health care provider selected by both Dow Aero and employee.  Dow Aero will pay for the third opinion.  The third opinion will be considered final. The employee will be provisionally entitled to leave and benefits under the FMLA pending the second and/or third opinion.

•  Updates or periodic recertification may be submitted on a healthcare provider’s letterhead notices/documents and do not have to be on a medical certification.

Dow Aero Responsibilities

Designation of FMLA Leave

Within five (5) business days after the employee has submitted the required certification or other documentation, the Company’s FMLA administrator, currently Human Resources Manager, will complete and provide the employee with a written response to the employee's request for FMLA leave using the FMLA Designation Notice. Designation Notice Form

• All documentation shall be considered confidential and should only be reviewed by Human Resources.

• Dow Aero designates the FMLA calendar year as a 12-month period measured forward from the date of an employee’s first FMLA event.

• Dow Aero will inform employees:

  • If they are eligible or not for FMLA leave.

    • If the employee is eligible, the notice will specify any additional information required as well as the employee’s rights and responsibilities.

    • If the employee is not eligible, the notice will provide the reason(s) for ineligibility.

• All documentation to support or deny a leave request shall be maintained by Human Resources.

• Dow Aero will place the employee in the same or equivalent position upon their return from FMLA qualifying leave and will not include such absences when taking disciplinary action due to absenteeism.

Recertification

Dow Aero may request recertification for the serious health condition of the employee or employee’s family member no more frequently than every 30 days an only when circumstances have changed significantly, or if the employer receives information casting doubt on the reason given for the absence, or if the employee seeks an extension of their leave. 

Otherwise, Dow Aero may request recertification for the serious health condition of the employee or the employee’s family member every 6 months in connection with an FMLA absence.  Dow Aero may reach out to the employee’s healthcare provider and provide a copy of the employee’s attendance records and ask whether need for leave is consistent with the employee’s serious health condition.

Employee Status and Benefits During Leave

The company will continue an employee’s health benefits during the leave period at the same level and under the same conditions as if they employee was continuously at work.

Paid Leave

• While on leave, the employer will continue to make payroll deductions to collect the employee’s share of insurance premiums.

• An employee who takes leave under this Policy may be asked to provide a fitness for duty (FFD) clearance from the health care provider.  This requirement will be included in the employer’s response to the FMLA request. 

Unpaid Leave

While on unpaid leave, the employee must continue to make their share of insurance premiums. Insurance premiums shall be made by check and delivered by mail to the following address:

Dow Aero, LLC
Attention: Human Resources - FMLA
6800 Camille Avenue
Oklahoma City, Oklahoma 73149

The payment must be received by the 15th day of each month. If the payment is more than thirty (30) days late, the employee's health care coverage may be dropped for the duration of the leave. The Company will provide fifteen (15) days' notification prior to the employee's loss of coverage. 

Employee contributions into the Company’s 401(k) plan will cease during unpaid leave, and not resume unless employee resumes Full-Time employment.

Intent to Return to Work from FMLA Leave

Generally, an employee who takes FMLA leave will be able to return to the same position or a position with equivalent status, pay, benefits, and other employment terms.  The position will be the same or one which is virtually identical in terms of pay, benefits, and working conditions.  Dow Aero may choose to exempt certain key employees from this requirement and in such cases will not be required to return those key employees to the same or similar position.

On a basis that does not discriminate against employees on FMLA leave, Dow Aero may require an employee on FMLA leave to report periodically on the employee’s status and intent to return to work.

So that an employee’s return to work can be properly scheduled, an employee on medical leave is requested to give Dow Aero at least 2-weeks’ advance notice of the date the employee intends to return to work.  When a medical leave ends, the employee will be reinstated to the same position, if it is available, or to an equivalent position for which the employee is qualified.

Key employees (highest paid 10% of all employees) will be granted (with proper certification/documentation) FMLA leave but will not be guaranteed the ability to return to the same or equivalent position upon return.  Key employee’s return may be denied reinstatement if necessary to prevent substantial and grievous economic injury to Dow Aero operations.

Failure to return from FMLA

If an employee does not return to work as agreed, unless other arrangements were made, they shall be considered to have resigned from Dow Aero effective the last day of the approved leave.

If the employee chooses not to return to work for reasons other than a continued serious health condition of the employee or the employee's family member or a circumstance beyond the employee's control, the company will require the employee to reimburse the company the amount it paid for the employee's health insurance premium during the leave period. 

Placing Employee on FMLA Leave Without Request

In addition to approving an employee request for leave under FMLA, the Act allows an employer to place an employee on FMLA leave without a specific request.  This can occur when the employer has cause to believe that the period of absence is FMLA-qualifying.

In such situations, the Manager or Human Resources should:

• Notify the employee that they are being placed on a FMLA leave when appropriate and provide them with the FMLA information and forms.

• Inform the employee how their accrued leave will be used: An employee is required to use available paid leave concurrently with the FMLA leave.  The following paid leave types will be used:

  • Wellness or Sick Leave

  • Paid Time Off

• Employees should:

  • Complete the FMLA form as appropriate and return the signed form to Human Resources for processing.

Unlawful Acts by Employers

• FMLA makes it unlawful for any 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.

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