Policy Effective Dates
The FMLA of 1993 was enacted in February 5, 1993. This law became effective for exempt employees on August 5, 1993, and for non-exempt employees on February 5, 1994.
Basic Leave Entitlement
It is the Department’s policy to allow eligible employees to fully exercise their FMLA rights which includes entitlement to 12 weeks of leave per a "rolling" twelve-month period for the following qualifying events:
- Incapacity due to pregnancy, prenatal medical care, or the brith of a child
- Caring for the employee's child after birth or placement of a child for adoption or foster care
- Caring for an employee's spouse, child, or parent with a serious health condition, or
- The serious health condition of the employee
Qualifying Exigency Leave Entitlement
Eligible employees with a spouse, child, or parent on federal active duty or call to federal active duty status in the National Guard or Reserves in support of a contingency operation may use their twelve (12) week leave entitlement to address certain qualifying exigencies. Qualifying exigencies include activities related to short-notice deployment, arranging alternative childcare or attending school activities, attending military events, addressing financial and legal arrangements, attending counseling sessions, attending post deployment reintegration briefings, and spending time with a covered military member who is on rest and recuperation leave.
Military Caregiver Leave Entitlements
Employees may also be eligible to take up to twenty-six (25) weeks of leave to care for a covered service member during a single twelve (12) month period.
"Covered service member" refers to an employee's spouse, child, parent, or next of kin, who is a current member of the Armed Forces, including the National Guard or Reserves, who incurred serious injury or illness in the line of duty that render the service member medically unfit to perform his or her duties and for which the service member is undergoing medical treatment, recuperation, or therapy, in outpatient status, or in the temporary retired list.
"Next of kin" has the same defintion set forth in 29 CFR 825.127 (b)(3).
The twenty-six (26) weeks of leave is to be applied on a per covered service member, per injury basis such that an eligible employee may be entitled to take more then one period of twenty-six (26) work weeks of leave is the leave is to care for a different covered service members or to care for the same service member with a subsequent serious injury or illness, except that no more than twenty-six (26) work weeks of leave may be taken within a twelve (12) month period.
The single twelve (12) month period begins on the first day the employee takes leave to care for a covered service member and ends twelve (12) months after that date. An employee who is entitled to take a leave due to a different FMLA qualifying event may take leave during the same twelve (12) month period in which leave is taken to care for a covered service member, but the total leave taken for any purpose during the twelve (12) month period may not exceed twenty-six (26) work weeks.
Employee Eligibility
Employees who have been employed by the state for at least twelve months and have actually worked (i.e., in “active pay status”) at least 1, 250 hours during the twelve (12) month period immediately preceding the commencement of leave are entitled to FMLA leave regardless of gender. Previous employment with the state in which the employee was paid directly by warrant of the Office of Budget and Management shall count toward meeting the employment requirement. Active work status is defined as “the conditions under which an employee is actually in a work status and is eligible to receive pay but does not include vacation pay, sick leave, bereavement leave, compensatory time, holidays, personal leave, and disability leave.” (OAC 123:1-47-01 (A)(3)).
Eligible employees who work less than 40 hours a week are entitled to 12 weeks of leave; however, the hours will correspond to the hours worked. For example, an employee who works 30 hours a week is entitled to 360 hours a year and so forth.
Eligible employees are entitled to a full twelve workweeks of FMLA even if their spouse has already exhausted leave for a qualifying event.
Under the "rolling twelve (12) month period, each time an employee uses FMLA leave, the remaining entitlement would be any balance of the twelve (12) weeks which was not used in the preceding twelve (12) months.
Military Leave
The Uniformed Services Employment and Reemployment Rights Act (USERRA) requires that a person reemployed under its provisions be given credit for any time he or she would have been employed but for the military service in determining eligibility for FMLA leave. This credit includes time toward the requirements of twelve months of employment and the 1,250 hours in active work status.
Each month served performing military service counts as a month actively employed by the employer.
A person reemployed following military service has the hours that would have been worked for the employer added to any hours actually worked during the previous 12-month period to meet the 1,250 hours in active work status requirement. In order to determine the hours that would have been worked during the period of military service, the employee's pre-service work schedule can generally be used for calculations.
Intermittent Or Reduced Schedule Leave
Employees taking leave due to their own serious health condition or that of a family member which includes a parent, spouse, son or daughter, may take intermittent leave or work a reduced schedule if medically necessary. Intermittent leave is taken in separate blocks of time due to a single illness or injury, rather than for one continuous period of time, and may include periods of leave from the smallest unit of leave available to several weeks. A reduced leave schedule reduces an employee's usual number of working hours per workweek or hours per workday. The health care provider must provide additional certification specifying the medical necessity of such a leave schedule (e.g., periodic testing and treatments).
The Employer has the authority to temporarily place an employee in an alternative position with equivalent pay and benefits to accommodate an employee's need for intermittent leave or reduced work schedule. All temporary transfers to an alternative position must be accomplished in compliance with any applicable collective bargaining agreement, and/or federal and state laws.
The Employer may allow intermittent leave or reduced schedules for employees taking FMLA leave for the birth of a child or placement of a child into adoption or foster care if an acceptable schedule can be agreed upon. Whereas employees are entitled to properly certified intermittent leave or reduced work schedules for serious health conditions, the Employer is not required to allow employees intermittent leave or a reduced work schedule for the birth of a child or placement of a child for adoption or foster care.
Call In/Call-Off
Employees must call off in accordance with their labor agreement or no later than one-half (1/2) hour after the start of their designated shift whichever is applicable. Mitigating circumstances may waive this requirement. When the employee is aware that he/she will be out for a specified number of days, it is the employee’s responsibility for establishing a report-in schedule that is acceptable with the supervisor. If an acceptable schedule is not established, the employee is required to notify his/her supervisor every day in accordance with this policy.
Procedure For Requesting FMLA Leave
Employees are required to provide at least thirty days’ notice prior to taking leave when leave is foreseeable; or if this is not possible, as much notice as is practicable. (FMLA leave for the birth of a child or placement of a child for adoption or foster care must commence and conclude within twelve months of the date of birth or placement.)
Employees requesting FMLA leave are to use the standard leave form (Request for Leave Form - ADM 4258) by checking the appropriate box and are required to submit documentation (Medical Certification Form ADM 4260). In the case of an adoption or foster care of a child, official documentation/verification will be required from the appropriate authorities. Leave must be taken in increments of no less than 1/10 of an hour.
Employees must use all applicable vacation leave, personal leave, sick leave, and compensatory time, as appropiate, prior to using unpaid leave in accordance with the Department's Leave Without Pay Policy. The combination of paid and unpaid FMLA leave may not exceed twelve (12) weeks.
Whether leave is paid, unpaid, or a combination, the employee is entitled to only twelve workweeks of FMLA leave within a rolling twelve-month period.
When FMLA leave is used concurrently with Disability Leave, Workers’ Compensation, Occupational Injury Leave, or Adoption/Childbirth Leave, the leave polices for those programs shall override the requirement of this policy for employees to exhaust all of their accrued leave.
It is not necessary that an employee expressly requests FMLA leave, paid or unpaid, to be designated, especially when leave is unforeseeable. If the employer determines that the leave is being taken for an FMLA qualifying event based on the information provided by the employee, the leave period may be designated as FMLA if the employee is properly notified by the Employer.
Certification/Recertification
The certification form will vary depending on the nature and condition of the leave request.
- Certification of Health Care Provider for Employer's Serious Health Condition
- Certification of Health Care Provider for Family member's Serious Health Condition
- Certification of Qualifying Exigency for Military Family Leave
- Certification for Serious Injury or Illness of Covered Service Member for Military Family Leave
- Equivalent documentation in the case of an adoption/foster care
In the case of an adoption or foster care of a child, official documentation/verification will be required in place of the certificate form.
Certification shall include all of the following information:
- The date the condition began
- The probable duration of the condition
- Appropriate medical facts within doctor's knowledge regarding the condition
- A statement that the employee is unable to perform the functions of his or her position or is needed to care for an ill family member.
The employer may contact the employee's health care provider for the purpose of clarification and authentication of the medical certification after the agency has given the employee an opportunity to cure any deficiencies. To make such contact, the Employer must use a health care provider, human resources professional, a leave administrator or a management official. The employer's direct supervisor may not contact the employee's health care provider. Additionally, the requirement of the Health Insurance Portability and Accountability Act (HIPAA) must be satisfied when individually identifiable health information of an employee is shared with an employer by a HIPAA covered health care provider.
For leave taken because of an employee's own serious medical condition or the serious medical condition of a family member, the Agency may require a second opinion from a second health care provider designated and paid for by the Employer. If the opinions of the employee's and the Employer's health care providers differ, the Employer may obtain a third opinion at the Employer's expense. The third health care provider must be mutually agreed upon by the Employer and the employee. This opinion shall be final and binding.
The Employer may require an employee to provide recertification or an employee or a family member's serious health condition. The Employer may not require employees to provide recertification of the medical necessity for intermittent leave more than once every thirty (30) days in conjunction with an employee's absence unless the following occurs:
- The employee requests an extension of leave
- Circumstances described by the previous certification have changed significantly (The duration of the illness, the nature of the illness, complications)
- The Employer receives information that casts doubts upon the continuing validity of the certification.
Second and third opinion are not permitted on an employer's request for recertification. Second and third opinions and recertifications are not permitted for leave taken because of a qualifying exigency or for leave taken to care for a covered service member.
Where the employee's need for leave due to the employee's own serious health condition, or the serious health condition of the employee's covered member lasts beyond a single leave year, the agency may require the employee to provide a new medical certification in each subsequent leave year. Such new medical certifications are subject to the provision of authentication and clarification, including second and third opinions.
Medical records accompanying FMLA requests shall be kept separate from personal files in a confidential manner.
Notice To Employee
Employees shall be notified in writing of their eligibility or non-eligibility status within five business days after the first time an employee requests leave for a particular qualifying reason in a rolling twelve (12) month period or within five (5) days after an employer receives knowledge that the reason for an employee's leave may be FMLA qualifying. This notice only indicates whether the employee is eligible for FMLA leave and is not determinative as to whether the employee's leave qualifies for FMLA.
Continuation Of Employee Health Benefits
The FMLA requires employers to provide health benefits for employees on FMLA leave as they would be provided if the employee was not on FMLA leave. The Department will be responsible for continuing to pay the employer contributions of the employee's health plan during an employee's paid or unpaid leave taken under the Act. If the employee fails to return to work after taking FMLA leave without showing the failure to return was due to a legitimate medical reason or due to circumstances beyond the employee's control, the Employer may recover any premium payments made during the leave period.
Employees are required to continue paying their share of monthly premium amounts to maintain health care coverage while on FMLA leave. Employees are responsible for making appropriate arrangements with their respective division/office personnel or payroll coordinator.
The Act requires employers to give employees a 30-day grace period to maintain health care coverage. If an employee on FMLA leave fails to provide payment to the payroll office by the twelfth of the month prior to the month for which coverage is to be continued, the Division/Office shall pay the employee's share during the 30-day grace period. Employees who fail to pay their portion of the health insurance premium after this grace period may, with fifteen days’ notice from the Employer, be removed from their respective health insurance plan. The employee will be responsible for reimbursing the Employer by means established by the Employer upon the employee's return to work.
Maintenance/Accrual Of Benefits During Leave
An employee taking FMLA leave is entitled to maintain any employment benefits, other than the paid and unpaid leave required to be used, that the employee had accrued prior to the date upon which the leave began. During any period of unpaid FMLA leave, exempt employees will not accrue personal leave, sick leave, or vacation leave. During any period of unpaid FMLA leave, non-exempt employees will accrue personal and sick leaves in accordance with the negotiated language in the applicable labor agreement upon their return to work. Employees who return to work after FMLA leave will not lose any service credit.
Reinstatement
Employees returning from FMLA leave must be reinstated to the position held at the time they began their leave or to a position with equivalent status and pay. Employees are required to report to their immediate supervisor once a month as to their intention of returning to work. Employees returning from FMLA leave due to their own serious health condition will be required to provide a statement from their health care provider releasing them for work.
|