Family and Medical Leave Act of 1993 and 2008 Amendments
The Family and Medical Leave Act of 1993 provides eligible employees with up to 12 weeks of unpaid leave in a 12-month period. The Support for Injured Servicemembers Act of 2007 (Military Family Leave) provides eligible employees up to 26 weeks of leave in any 12-month period in compliance with the expansion of FMLA. (Revised 2-15-2009) This policy is intended to provide an overview and is not a substitute for the Federal Regulation that is linked. If there is a conflict, the Federal Law and Regulations take precedence.
To qualify to take family or medical leave under this policy, the employee must meet the following conditions:
- The employee must have worked for the City for 12 months or 52 weeks. The 12 months or 52 weeks need not have been consecutive; and
- The employee must have worked at least 1,250 hours during the 12-month period immediately before the date when the leave is requested to commence. Time spent on paid or unpaid leave during the previous 12 months does not count 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. This includes temporary and S01 employees who meet the eligibility requirements.
- The employee must be an active employee. If the employee's employment with the City is interrupted (such as with a layoff), the employee must be re-employed by the City before being eligible for FMLA leave.
To qualify as FMLA leave under this policy, the employee must be taking leave for one of the reasons listed below and complete a family medical leave request form and the appropriate certification (Revised 2-15-2009):
- The birth of a child or to care for that child.
- The placement of a child for adoption or foster care and to care for the newly placed child.
- The employee is needed to care for a spouse, child or parent with a serious health condition.
- The serious health condition of the employee. This serious health condition makes the employee unable to perform the functions of his or her job.
- Because of a qualified exigency from a covered family member's call to active duty in the Armed Forces from the National Guard, Reserves, retired Reserves or retired Regular Armed Forces. Employees whose family member is a member of the Regular Armed Forces are eligible to take leave because of a qualifying exigency. The rules define qualifying exigency as: (a) short-notice deployment (seven or less calendar days prior to deployment); (b) military events and related activities; (c) child care and school activities; (d) financial and legal arrangements; (e) counseling; (f) rest and recuperation; (g) post-deployment activities; and (h) additional activities in which the City and the employee agree to the leave.
- To care for an injured or ill service member on active duty in Regular, Reserve, National Guard Military Service, or a Veteran (who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness and who was a member of the Armed Forces including National Guard or Reserves at any time during the five-year period preceding the date on which the veteran undergoes that medical treatment, recuperation or therapy) if the employee is the spouse, son, daughter, parent, or next of kin (nearest relative) of the service member.
- A serious health condition under the FMLA includes one or more of the following conditions:
- Any period of incapacity or treatment in connection with, or consequent to, inpatient care in a hospital, hospice, or residential medical facility. (Inpatient care is defined as an overnight stay.)
- Any period of incapacity requiring absence from work, of more than three consecutive calendar days that also involves: 1) treatments two or more times within 30 days of the first day of incapacity by a healthcare provider; or 2) treatment by a healthcare provider on at least one occasion in-person which results in a regimen of continuous treatment, such as prescription medication or therapy requiring special equipment. The first treatment visit must take place within seven days of the first day of incapacity. Whether additional treatment visits are necessary within the 30-day period is determined by the health care provider. Common colds, flu, ear aches, headaches, etc. are not serious health conditions.
- Continuing treatment by a health care provider for a chronic or long-term health condition that is incurable or so serious that, if not treated, would likely result in a period of incapacity of more than three calendar days.
- Chronic or long-term health condition, which, if left untreated, would result in a period of incapacity of more than three days. It also requires periodic visits to a health care provider at least two times a year as determined by the health care provider.
- Any period of incapacity because of prenatal care or pregnancy.
- Treatment for substance abuse when inpatient treatment is required. Absences because of an employee's use of a substance, without treatment, do not qualify for leave.
Voluntary or cosmetic treatments which are not medically necessary are not covered by the Act, unless complications from the treatment develop.
Amount of Eligible Leave
- Birth and care of a child-employee: 12 weeks
- Birth and care of a child-both parents are city employees: 12 weeks combined total
- Adoption and foster care-employee: 12 weeks
- Adoption and foster care-both parents are city employees: 12 weeks combined total
- Care of family member-employee: 12 weeks
- Employee's own serious health condition: 12 weeks
- Qualified exigency-employee: 12 weeks*
- Care for injured/ill servicemember-employee: 26 weeks**
- Care for injured/ill servicemember-both husband & wife are city employees: 26 weeks combined total**
*Qualified exigency leave is for individuals called to active duty in National Guard and Reserves.
**Injury or illness for servicemember must have occurred in the line of duty while on active duty.
City Leave and the FMLA
Employees who request FMLA leave must use accrued City leave applicable to the leave request (Vacation, Vacation Leave, Short Term Sick Leave/Family Leave, Major Medical Sick, Sick and Family Illness Leave, Compensatory Leave). FMLA leave is used concurrently with appropriate, accrued city leave.
Employees approved for FMLA leave who have no accrued City leave are carried in a “without pay” status. Employees must use all appropriate, accrued City leave before being allowed to take FMLA leave without pay, with the exception of employees eligible for Major Medical Sick Leave.
Employees who are off work for more than three consecutive calendar days must be notified that their time off is being designated as FMLA leave. A Notification of Family and Medical Leave form should be completed and sent to the employee.
Intermittent or Reduced Leave Schedule
Intermittent leave is leave taken in separate periods because of a single illness or injury, rather than for one continuous period, and may include leave of periods from an hour or more to several weeks. Examples of intermittent leave include leave taken on an occasional basis for medical appointments, or leave taken several days at a time spread over a period of six months, such as for chemotherapy. Employees taking intermittent leave are required to comply with their department's call-in procedures before taking unscheduled intermittent leave, except in certain emergency cases. Reduced leave is a leave schedule that reduces the usual number of hours per work week, or hours per work day, of an employee.
The employee may take FMLA leave in 12 consecutive weeks, may use the leave intermittently or, under certain circumstances, may use the leave to reduce the work week or work day, resulting in a reduced hour schedule. In all cases, the leave may not exceed a total of 12 work weeks (or 26 work weeks to care for an injured or ill service member over a 12-month period).
Employees scheduling FMLA leave on an intermittent or on a reduced leave schedule are expected to work out a treatment schedule which best suits the needs of the department and the employee. If this is not possible, the employee must prove that the use of the leave is medically necessary. If the intermittent leave or reduced leave schedule occurs after the birth of a child or the placement of a child for adoption or foster care, the leave must be agreed upon by the Department Director.
Only the time taken as FMLA leave may be charged against the employee's entitlement when leave is taken intermittently or on a reduced leave schedule. Leave charges are in hours. The hours charged should be cumulative until such time as the total is equivalent to 12 normal workweeks.
The City can temporarily transfer an employee to an available alternative position with equivalent pay and benefits if the alternative position better accommodates the intermittent or reduced schedule. The temporary transfer may occur 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.
Recording FMLA Leave
The leave code FMLA is assigned to FML. This code should be used with other appropriate Timesheet codes for recording time.
If an employee's work schedule varies from week to week, the average weekly hours worked during the 12 weeks before the start of the leave is used to calculate the employee's "normal" work schedule. The department HR Coordinator enters the start date and the end date for the employee's FMLA leave into PeopleSoft.
FMLA leave may be charged retroactively. If an employee has been off for a FMLA-qualifying event and the department fails to send a notification, when the oversight is realized, a notice needs to be sent, and the time off charged to FMLA leave begins on the date the employee's absence began.
If the FMLA-qualifying event is foreseeable, the employee must give at least 30 calendar days notice before the leave begins. If it is not possible to give 30 daysnotice, the employee must give as much notice as is practical. An employee who undergoes planned medical treatment is required to make a reasonable effort to minimize disruptions to the City's operations.
If an employee fails to provide 30 days' notice for foreseeable leave with no reasonable excuse for the delay, the leave request may be denied until at least 30 days from the date the City receives notice. While on leave, employees are requested to report periodically to the City regarding the status of the medical condition and their intent to return to work. If the FMLA-qualifying event is not foreseeable, the employee must give notice as soon as practical.
The initial request can be verbal, by phone or in person, to the person within the employee's department who is designated to maintain medical information. Such requests satisfy the notification requirements. The employee must explain the reasons for the requested leave for the City to determine if the leave qualifies under the FMLA. Written certification, as designated below, must be received by the person within the employee's department who is designated to maintain medical information.
In many instances, employees will not refer to FMLA leave. It is not the employee's choice whether to use FMLA. It is the supervisor's responsibility to ensure proper notification is made once it is determined that an absence is a FMLA-qualifying event.
To determine whether the leave qualifies under FMLA, an employee's leave request must be supported. The manager must request a medical certificate or supporting information in writing as part of the City's response to the employee's request for leave. The employee must respond to the request within 15 days or provide an explanation for delay. Failure to provide certification may result in a denial of leave. Employees are responsible for any costs associated with certification.
Family Leave Certification: Formal certification in the case of the birth, adoption or placement of a foster child can be by memo or letter from the employee to the person within the employee's department who is designated to maintain medical information.
If the employee is needed to care for a child, spouse or parent a certification of condition issued by the health care provider of the child, spouse or parent must be provided. The Family Medical Leave Request form can be used for this purpose. The notification documents are retained in the employee's departmental file.
Notification is required 30 days before the event, if possible.
Medical Leave Certification: For medical leave, the employee must provide a certification of a serious health condition isued by the health care. If the City does not receive the required certification, the leave may not be approved under FMLA. If the City receives an incomplete or unclear certification, the employee is given seven additional days after being notified to provide more complete information. If the certification is still insufficient, the department's Medical Records Custodian may contact the employee's healthcare provider for clarification and/or authentication of the employee's medical certification. The Certification of Health Care Provider for Employee's Serious Health Condition or Certification of Health Care Provider for Family Member's Serious Health Condition form is used for this purpose. The certification is considered sufficient if it states:
- The date the condition commenced.
- The probable duration of the condition.
- A brief statement of treatment.
- If applicable, a statement that the employee is unable to perform the essential functions of their position because of a medical condition.
- As appropriate, a statement that the employee is needed to care for the child, spouse or parent and an estimate of the time such care is needed. And that the patient, the family member, requires assistance and that the employee's presence would be beneficial or desirable.
- As appropriate, a statement of the medical necessity for intermittent leave, or reduced work schedule. The statement should also include dates and duration of treatment. The City may elect to have a second physician's opinion at the City's expense. The city chooses the physician, but the physician cannot be employed by the City.
If the second opinion differs from the original certification provider's opinion, the City may require the employee, at the City's expense, to obtain the opinion of a third healthcare provider approved jointly by the City and the employee. This physcian's opinion is final and binding on both the City and the employee.
The City requires employees to obtain subsequent re-certification on a reasonable basis and continue communications with the City regarding their status and intention to return to work.
The City cannot request re-certification more often than every 30 days unless the employee requests an extension of leave; a change in circumstances has occurred regarding a serious health condition; or the City receives information which casts doubt upon the validity of the most recent certification. Instances involving workers' compensation are not subject to this 30-day provision. The state workers' compensation statutes supersede the FMLA provisions.
All employee medical records must be kept in a locked file separate from the employee's personnel files. Supervisors are not allowed to access another employee's medical information.
Qualifying Exigency for Military Family Leave Certification: A qualifying exigency arises when the spouse, or son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation or deployment to a foreign country.
Employees requesting this type of Military Family leave under FMLA must provide proof of the qualifying family member's call-up to active military service. This documentation may be a copy of the military orders or other official Armed Forces documentation.
Certification of Serious Injury or Illness of Service member for Military Family Leave: An employee who is the spouse, son, daughter, parent or next of kin of a covered service member is be entitled to a total of 26 workweeks of leave during a 12-month period of care for the service member.
Employees requesting this type of Military Family leave under FMLA must provide documentation of the family member's or next-of-kin's injury, recovery or need for care. The documentation can be a copy of the military medical information, orders for treatment, or other official Armed Forces communication pertaining to the service member's injury or illness incurred on active military duty that renders the member medically unfit to perform his or her military duties. This is also the only type of FMLA leave that may extend an employee's leave entitlement beyond 12 weeks to 26 weeks in a 12-month period. This leave is available to an eligible employee whose spouse, son, daughter, parent, or next-of-kin is in the Regular Armed Forces, Reserve Armed Forces, or National Guard.
An employee who takes leave under FMLA can return to the same position or a position with equivalent status, pay, benefits and other employment terms. The position will be the same or virtually identical in terms of pay, benefits and working conditions.
An employee's time off approved under FMLA may not be considered when evaluating an employee's attendance pursuant to a performance appraisal or when considering disciplinary action pursuant to a department attendance policy.
Employees who exhaust their FMLA benefits and other leave and are unable to return to full duty status work may be terminated. In those instances where an employee fails to report to work, the department may initiate a pre-termination meeting after consulting with the Human Resources Employee Relations Division.
Any salary increases or benefit changes which are not dependent on accrued service time are made effective on the date which the employee returns to work.
Employees eligible for both FMLA and workers compensation may be offered a light duty assignment. Employees may elect to stay out on full-time FMLA leave until they are fit for full duty as long as they do not exceed their FMLA protected time. However, they may lose their workers compensation disability payments for failure to accept a suitable light duty assignment. Any time an employee spends performing light-duty work does not count towards their 12 weeks of FMLA entitlement.
Accrual of Leave Benefits
An employee taking family or medical leave without pay does not accrue hours toward short-term sick leave/family leave, vacation, sick, major medical or holiday.
Spouses Employed by the City
If spouses are employed by the City, and each wishes to take leave, the combined total leave for the birth or adoption of a child, placement of a child in foster care, or to care for a parent (but not a parent in-law) with a serious health condition, may be limited to 12 weeks. This limitation does not apply to leave for either the husband's or wife's own serious health condition or the serious health condition of a child.
If a husband and wife work for the City and each wishes to take leave to care for a covered injured or ill service member, the husband and wife may only take a combined total of 26 weeks of leave.
Health Care Benefit Continuation
The City maintains its responsibilities towards the employee's group health coverage during FMLA leave. The City and employee maintain the same coverage under the same conditions that they would had the employee been working.
If an employee is on FMLA leave, the employee is expected to pay his or her required group health contributions to keep their coverage in effect. Employees should make payment arrangements with the Human Resources Department Benefits Division. Failure to make required contributions can result in cancellation of the employee's and their dependent's (if any) coverage. The employee is also solely responsible for making payment arrangements directly with any other entity (dental coverage, optional life insurance, employee association dues, Credit Union, etc.) for which payroll deductions are in place. If the employee fails to return from FMLA leave, the City may recover the costs for maintaining the employee's healthcare coverage during the period of absence. The cost will be deducted from the employee's final check or billed to the employee if the employee fails to return to work for a reason other than the continuation, recurrence or onset of a serious health condition or because of other circumstances beyond the employee's control.
Circumstances not addressed by this regulation should be referred to the Human Resources Department's Employee Relations Division.
FMLA Leave Process
- The employee must submit a completed Family Medical Leave Request form to the departmental Medical Records Custodian (MRC).
- Upon receipt of the FML request form (or support documentation) the MRC must (1) provide the employee with a Notice of Eligibility and Rights and Responsibility form. (WH-381)
The notice shall inform the employee if their leave has been determined to be eligible for FMLA protection; as well as inform the employee of their rights and responsibilities for taking FMLA. For employees on intermittent or recutting leave for the same incident, this notice will be provided every six months. Also, the MRC must (2) provide the employee with one of the following certification forms (as applicable) within five business days or as soon as practical.
- Certification of Health Care Provider for Employee's Serious Health Condition (WH-380-E)
- Certification of Health Care Provider for Family Member's Serious Health Condition (WH-380-F)
- Certification of Qualifying Exigency for Military Family Leave (WH-384)
- Certification for Serious Injury or Illness of Covered Servicemember -- for Military Family Leave (WH-385)
- Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (WH-385-V)
- Upon receipt of the certification (or supporting information) the MRC must provide the employee with a Designation Notice (WH-382). This notice shall inform the employee if their leave has been designated as FMLA protected. The notification must (revised June 1, 2004) be given within five business days from the time it is determined that the employee's absence would qualify under FMLA. If the certification or supporting information submitted by the employee is incomplete or insufficient, the MRC must use the Designation Notice to state in writing what additional information is necessary to make the certification complete and sufficient. Failure to submit adequate certification within seven calendar days may result in a denial of leave.
- The MRC must enter (in Genesys) the start date of the employee's leave; track and code (Z code) appropriately until FML is exhausted; and enter (in Genesys) the end date of the employee's leave upon their return to work.
The MRC's responsibilities regarding the protection of medical information are outlined in Administrative Regulation D-10. To obtain additional information regarding FMLA, please visit the Department of Labor website.
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