TITLE: Family And Medical Leave Act Of1993
The Family and Medical Leave Act of 1993 (FMLA) requires covered employers to provide up to 12 weeks of unpaid, job-protected leave to "eligible" employees for certain family and medical reasons.
"Adoption" means a legal process whereby a child becomes a permanent member of a family into which he or she was not born.
"Continuing treatment" means a period of incapacity of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition that involves: two or more visits to or treatments by a health care provider; or one visit that results in a planned course of treatment; or any period of incapacity due to pregnancy or prenatal care; or any period of incapacity due to a chronic serious health condition.
"Employer" means the Fifth Judicial District Department of Correctional Services and the State of Iowa through the Iowa Department of Personnel. When applicable, it also means an appointed or elected chief administrative head of a department, commission, board, independent agency, or statutory office or that person's designee.
"Essential functions" means those job functions that an individual must be able to perform in order to hold a position. Essential functions within the meaning of the Americans With Disabilities Act focus on what must be done and not on how they are accomplished.
"Health Care Provider" means a licensed doctor of medicine or osteopathy or "any other person determined by the Department of Labor (DOL) to be capable of providing health care services." The DOL has determined that the following qualify as health care providers:
- clinical psychologists
- nurse practitioners (if authorized by state law)
- nurse midwives (if authorized by state law)
- clinical social workers
- chiropractors that are authorized to practice in their state are "other persons capable of providing health care services." [their certifications, however, must be limited to treatment consisting of manual manipulation of the spine to correct subluxation as demonstrated by an x-ray]
- foreign licensed health care providers authorized to practice in that country
- Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts are also included in the definition of "health care provider"
- any health care provider from which the State's health insurance plans will accept certification that a serious health condition exists
"Incapable of self-care" means that the individual requires active assistance or supervision to provide daily self-care in several of the "activities of daily living" or "instrumental activities of daily living." Activities of daily living include adaptive activities such as caring appropriately for one's grooming and hygiene, bathing, dressing and eating. Instrumental activities of daily living include cooking, shopping, taking public transportation, paying bills, maintaining a residence, using a telephone and directory,
using a post office, etc.
"Intermittent Leave" means leave taken in separate periods of time due to a single illness or injury, rather than for one continuous period of time, and may include leave taken on an occasional basis for medical appointments, or leave taken several days at a time spread over a period of several months, such as for chemotherapy.
"Medically Necessary" means that there must be a medical need for the leave (as distinguished from voluntary treatments and procedures), and it must be that such medical need can be best accommodated through an intermittent or reduced leave schedule.
"Needed to care for a spouse, son, daughter or parent" means both physical and psychological care. It includes situations where, because of a serious health condition, a parent is unable to care for his or her own basic medical, hygienic or nutritional needs or safety, or is unable to transport himself or herself to the doctor, etc. The term also includes providing psychological comfort and reassurance to a seriously ill son, daughter, parent or spouse with a serious health condition who is receiving inpatient or home care. The term also includes situations where an employee may be needed to fill in for others who are caring for the family member, or to make arrangements for changes in care, such as transfer to another medical care facility or nursing home.
"Parent" means a biological parent or an individual who stands or stood "in loco parentis" to an employee when the employee was a child. Persons "in loco parentis" include persons with day-to-day responsibilities to care for and financially support a child, regardless of whether the person has a legal or biological relationship to the child. The term "parent" does not include parents "in-law".
"Physical or Mental Disability" means a physical or mental impairment that substantially limits one or more major life activities of an individual. The Americans With Disabilities Act, Title 42 United States Code section 12101 et sec. further defines the terms.
"Reduced Leave Schedule" means a leave schedule that reduces the usual number of hours per workweek, or hours per workday of an employee.
"Serious Health Condition" means an illness, injury, impairment, or physical or mental condition that involves:
- inpatient care (i.e., an overnight stay) in a hospital, hospice or residential medical treatment facility, including any period of incapacity or any subsequent treatment in connection with such inpatient care.
- continuing treatment by a health care provider that includes a period of incapacity of three or more consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition that involves:
- treatment two or more times by or under the supervision of a health care provider; or
- treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.
- any period of incapacity due to pregnancy or for prenatal care.
- any period of incapacity due to a chronic serious health condition. A "chronic serious health condition" is defined as that which requires periodic visits for treatment; continues over an extended time; or, may cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc).
- a period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer's, severe stroke, or the terminal stages of a disease).
- any period of absence to receive multiple treatments, including any period of recovery either for surgery related to an accident or other injury, or for a condition that would likely result in a period of incapacity of more than three consecutive days (e.g., cancer, severe arthritis or kidney disease).
Examples of a serious health condition include heart attack, many heart conditions, most cancers, stroke, back conditions requiring extensive therapy or surgery, spinal injury, pneumonia, pregnancy, miscarriage, complications or illness relating to pregnancy, the need for prenatal care, childbirth and recovery from childbirth, severe allergies or stress. Substance abuse also may be a serious health condition. However, FMLA leave may only be taken for treatment of substance abuse by a health care provider or by a provider of health care services on referral by a health care provider. An absence because of the employee's use of the substance, rather than for treatment, does not qualify for FMLA leave.
Transitory or minor health conditions for which treatment and recovery are very brief do not constitute serious health conditions for the purposes of the FMLA. Ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers and headaches, other than migraines, are examples of conditions that do not meet the definition of a "serious" health condition. Likewise, cosmetic treatment, such as most treatments for acne or orthodontia which are elective and not medically necessary do not constitute serious health conditions. Additionally, routine physical examinations are specifically excluded from the definition of a serious health condition.
"Son or daughter" means a biological, adopted or foster child, a stepchild, legal ward, or a child of a person standing "in loco parentis", who is either under the age of 18, or age 18 or older if "incapable of self-care because of a mental or physical disability."
"Spouse" means a husband or wife as defined or recognized under state law in the state where the employee resides for purposes of marriage, including common law marriage in states where it is recognized. Iowa recognizes a common law marriage.
- Program Eligibility
- Any employee who has been employed for at least 12 months and has worked for at least 1,250 hours in the previous 12 month period is eligible. The 12 months that the employee must have been employed need not be consecutive. If the employee has been maintained on the payroll for any part of a week, including any periods of paid (sick, vacation) or unpaid leave during which other benefits or compensation are provided by the employer (e.g., workers' compensation, group health benefits, etc.), the week counts as a week of employment.
- Whether an employee has worked the minimum 1,250 hours of service is determined according to the principles of the Fair Labor Standards Act for determining compensable hours. Hours worked is calculated based upon hours actually worked, not hours in pay status. The previous 12 month period is defined as the 12 months immediately preceding the date FMLA leave is to begin.
- The 1,250 hours may be worked intermittently, and may involve multiple job classes.
- Eligibility determinations will be made as of the date that the FMLA leave is to begin.
- Notice Required
- When an employee provides initial notification of the need for an absence, the employee must provide sufficient information for the immediate supervisor/designee and Administrative Officer to determine whether the absence can properly be considered a FMLA qualifying event. The failure to follow sick leave policies could be a basis for discipline. All health care provider certifications must be on a Certificate of Health Care Provider form.
- An employee must provide his or her immediate supervisor/designee with not less than 30 calendar days notice of his or her intention to take foreseeable FMLA leave. In situations involving birth, adoption, foster placement or planned medical treatment for an illness, the employee must provide notice within two work days, or as soon as practicable, after the employee learns of the need for leave. In unforeseen circumstances, however, the employee must provide notice as soon as practicable, either orally or in writing. Untimely requests or failure to provide mandatory information to the immediate supervisor/designee may result in delay or denial of the FMLA leave.
- When the employee is unable to provide notice because of his or her illness or injury, notice may be given to the immediate supervisor/designee by a family member or a spokesperson as soon as practicable.
- The immediate supervisor/designee and the Administrative Officer will make a FMLA designation or tentative designation based on an oral notification containing sufficient information to make a FMLA eligibility determination.
- The immediate supervisor/designee and/or Administrative Officer will provide the employee with information pertaining to his or her eligibility for FMLA leave should the employee appear not to understand his or her rights and obligations under the Act.
- The immediate supervisor/designee will notify the employee using the "Employer Family and Medical Leave Act Response" form within two working days.
- Approval Criteria
- FMLA leave may be used for the birth, adoption or foster placement of a son or daughter, or to care for a son, daughter, spouse, or parent with a serious health condition.
- The birth, adoption, or foster placement must be within 12 months of the date FMLA leave is to begin.
- The son or daughter must be under 18 years of age, unless incapable of self-care because of a physical or mental disability.
- FMLA leave may be used for the employee's own serious health condition that renders the employee unable to work at all or perform any one of the essential functions of his or her job.
- The employee, family member, or spokesperson must complete a "Family and Medical Leave Act Request, Approval and Tracking Form" and submit it to his or her immediate supervisor/designee. If the immediate supervisor/designee has reason to know that the employee qualifies for FMLA leave, then FMLA applies whether the employee has submitted certification or not.
- Every employee has the right to request FMLA leave and shall be given the opportunity to get medical certification of the leave. The immediate supervisor/designee shall provide the employee with the "Certification of Health Care Provider" form. An employee can be disciplined for failing to return the appropriate medical certification. If the immediate supervisor/designee requests medical certification for an absence, the immediate supervisor/designee must also advise the employee of the anticipated consequences of the employee's failure to provide adequate certification. Medical certification shall be obtained and returned to the immediate supervisor/designee within 15 calendar days of the request or upon return to work from an absence that may qualify as FMLA leave (absent extenuating circumstances).
- The health care provider must compete the "Certification of Health Care Provider" form to satisfy the certification requirement when the request for leave is for self-care or a family member's serious health condition. Medical confirmation is required except in the case of birth, adoption, or foster placement.
- The immediate supervisor/designee will submit the original completed "Family and Medical Leave Act Request, Approval and Tracking" and "Certification of Health Care Provider" forms to the Administrative Officer for FMLA leave tracking. The completed forms will be maintained in a confidential file separate from the employee's personnel file.
- If leave is taken for a FMLA reason but the immediate supervisor/designee is not aware of the reason and the employee desires that the leave be counted as FMLA leave, the employee must notify the immediate supervisor/designee within two business days of returning to work of the reason for the leave. In the absence of such timely notification by the employee, the employee may not subsequently assert FMLA protection for the absence.
- If the immediate supervisor/designee has a reasonable basis to know that leave is taken for an FMLA qualifying reason, the immediate supervisor/designee may designate the leave as FMLA leave even if the employee does not desire the leave to be designated as FMLA leave.
- An employee who fraudulently obtains FMLA leave from the Department is not protected by FMLA's job restoration or maintenance of health benefits provisions.
- Leave Entitlement
- An employee is entitled to 12 weeks of FMLA leave in a fiscal year on either a continuous, intermittent, or reduced leave schedule basis. This leave may be paid or unpaid.
- When FMLA leave is taken intermittently or on a reduced leave schedule, full-time employees are entitled to 480 hours of leave in a fiscal year. There is no limit on the size of an increment of leave when an employee takes intermittent leave or leave on a reduced leave schedule. However, the Department may limit leave increments to the shortest period of time that the Department's payroll system uses to account for absences or use of leave provided it is one hour or less.
- Hours for part-time employees are prorated based on the average number of hours worked weekly during the previous six months of state employment. For example, if the average weekly hours worked by a part-time employee for the previous 6 months were 20 hours, he or she is entitled to a maximum of 240 hours (12 weeks time 20 hours) of FMLA leave in a fiscal year.
- If an employee's health care provider certifies that an intermittent or reduced work schedule is "medically necessary," approval of the request is mandatory. A brief description of the employee's course of treatment that is planned by the health care provider is required for certification of intermittent or reduced work schedules. Any adjusted schedule may end at the expiration of the FMLA leave entitlement.
- If an intermittent or reduced leave schedule is necessary and the leave is based on a planned course of medical treatment, the immediate supervisors/designee may temporarily assign an employee to another position, or alter his or her current position during the period that the leave is required to better accommodate recurring periods of leave. The assignment or position altering cannot result in a loss of pay or benefits for the employee on an intermittent or reduced work schedule. Assignment of the employee will be in accordance with Department policies and/or applicable collective bargaining agreement.
- Intermittent or reduced schedule leave may be taken to provide care or psychological comfort to an immediate family member with a chronic or serious health condition.
- Intermittent or reduced schedule leave may be taken for absences where the employee is incapacitated or unable to perform the essential functions of the position because of a chronic serious health condition even if he or she does not receive treatment by a health care provider.
- Intermittent leave may be taken for a serious health condition which requires treatment by a health care provider periodically, rather than one continuous period of time, and may include leave periods from one hour or more to several weeks. Examples of intermittent leave would include leave taken on an occasional basis for medical appointments, or leave taken several days at a time for chemotherapy. A pregnant employee may take leave intermittently for prenatal examinations or for her own condition, such as periods for severe morning sickness. An example of an employee taking leave on a reduced leave schedule is an employee who is recovering from a serious health condition and is not strong enough to work a full-time schedule.
- When both spouses are employed by a department or agency of the State of Iowa, they are limited to a combined total of 12 weeks of FMLA leave in a fiscal year for leave involving the birth, a bonding period, care after birth, adoption, foster care of a son or daughter or the care of a parent with a serious health condition. For example, if one parent of each spouse needed care during a fiscal year and the leave entitlement was divided evenly between them, each would be allowed only six weeks of FMLA leave to care for his or her own parent. Exceptions may be granted by the director of the Iowa Department of Personnel.
- When both spouses are employed by a department or agency of the State of Iowa, they are each entitled to 12 weeks of FMLA leave in a fiscal year for leave involving the care of a son, daughter or spouse with a serious health condition, or leave that involves the employee's own serious health condition.
- If an employee unequivocally advises his/her immediate supervisor/designee in writing that he or she does not intend to return to work, the employee's entitlement to continued FMLA leave and associated benefits ceases.
- When leave is taken after the birth or placement of a child for adoption or foster care, an employee may take leave intermittently or on a reduced leave schedule only if the immediate supervisor/designee agrees. The immediate supervisor/designee's agreement is not required, however, when leave is medically necessary during which the mother has a serious health condition in connection with the birth of her child or if the newborn child has a serious health condition.
- An employee who requests FMLA leave after the birth, adoption, or foster placement of a son or daughter must take the leave within 12 months of the event.
- Employees on FMLA leave that crosses fiscal years need not submit new medical certification because of the start of the new fiscal year. However, once the original medical certification expires, the employee must re-apply and provide new medical certification. If information about the employee's FMLA leave changes, the employee will be asked to have his or her original request updated.
- Paid and Unpaid Leave
- FAMILY LEAVE: An employee taking FMLA leave for the birth, adoption, or foster placement of a son or daughter, or the care of a seriously ill son, daughter, spouse, or parent is required to exhaust any family (40 hours of enforced leave) leave, and accrued vacation/personal leave [except for 80 hours - see 5.(E.)], for any part of the 12 week FMLA period before unpaid leave is granted. Substitution of paid leave may be elected to the extent the circumstances meet the usual requirements for that leave. When paid leave is exhausted, the employee must be placed on leave without pay status with a leave expiration date of no more than the remaining 12 weeks. This allows the Department's share of the life and long term disability (LTD) insurance to be paid automatically.
- MEDICAL LEAVE: For the employee's own serious health condition, the employee must exhaust accrued sick leave, and accrued vacation/personal leave [except for 80 hours - see (5.)(E.)], before unpaid leave is granted. When paid leave is exhausted, the employee must be placed on leave without pay status with a leave expiration date of 4 months from the last day worked. This allows the Department's share of life and LTD insurance to be paid automatically.
- COMPENSATORY AND HOLIDAY LEAVE: An employee may, but is not required to use accrued compensatory and holiday leave for FMLA leave. Use of compensatory and holiday leave will be permitted if the employee follows Department policies and the applicable collective bargaining agreement for a qualifying absence. However, compensatory and holiday time used in this fashion will not reduce the employee's FMLA leave entitlement.
- MATERNITY LEAVE: An employee who requests FMLA leave after the birth of a child and who has not received a medical release to return to work must exhaust any appropriate accrued sick leave, and vacation/personal leave [except for 80 hours - see (5.)(E.)], before unpaid leave is granted. When the employee's physician releases the employee to return to work, the employee is no longer eligible to use paid sick leave, hover, the employee may use enforced leave or accrued vacation.
- In accordance with the current Collective Bargaining Agreement, employees who are on a leave of absence which is Family and Medical Leave Act qualified may, at their discretion by written notice to their supervisor, decline to utilize up to two (2) weeks (eighty hours) of paid annual leave (vacation) in each year of the current agreement.
- Returning From Leave
- Upon returning from FMLA leave, an employee is entitled to the same position, or an "equivalent position." An equivalent position is one with the same pay, benefits and working conditions (shift and schedule) and the same or substantially similar duties, conditions, privileges, and status which require equivalent skill, effort, responsibility and authority.
- If a reduction-in-force occurs while the employee is on leave, the employee's right to a position shall be established in accordance with Department policies and the applicable collective bargaining agreement.
- The employee's pay increase eligibility date shall be adjusted for unpaid absences of more than 30 calendar days.
- The FMLA does not prohibit the Department from accommodating, consistent with the Americans With Disabilities Act, an employee's request to be restored to a different shift, schedule, position, or location which better suits the employee's personal needs on return from leave. However, accommodating an employee in this manner must also be in compliance with any applicable collective bargaining agreement.
- If the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition, the employee has no right to restoration to another position under the FMLA. The Department's obligations may be governed by the Americans With Disabilities Act (ADA).
- An employee may be placed in a position in the same class, and must be reinstated to the same or a geographically proximate work site (i.e., one that does not involve significant increase in commuting time or distance) from where the employee had previously been employed when he or she returns from FMLA leave.
- Upon returning from FMLA leave, an employee is entitled to no more rights or benefits than he or she would have received had the leave not been taken.
- An employee must work at least 30 calendar days after his or her return to be considered "returned" to work.
- If the employee does not return to work because of a serious health condition, the immediate supervisor/designee will require written certification from the health care provider. If the employee fails to respond within 30 days, the Department may recover all of the Department's share of his or her health and dental plan premiums for this period.
- If the employee does not return to work and the reason for not returning to work is not due to the employee's serious health condition or is for circumstances beyond the employee's control, the immediate supervisor/designee will require certification that the employee is unable to return and the Department will recover its share of health and dental plan premiums paid for the employee during the period of leave.
- If the employee does not or cannot return to work and the reason for not returning to work is due to the employee's serious health condition, the immediate supervisor/designee and/or the Administrative Officer will discuss with the employee the possibility of applying for long-term disability insurance (LTD) compensation. In addition, the Department will determine if accommodations pursuant to the Americans With Disabilities Act are warranted.
- If an employee is on FMLA leave for his or her own personal illness, the immediate supervisor/designee may request periodic reports concerning the employee's medical status, and the date he or she intends to return to work. Requests for periodic reports will be made no more often than necessary depending on the facts and circumstances of each case. The Department's policy must take into account all of the relevant facts and circumstances related to the employee's leave situation.
- Fitness for Duty
- When the leave involves the employee's own serious health condition, the immediate supervisor/designee shall require written certification from the employee's health care provider that the employee is able to resume work. The employee is required to pay for any costs associated with the certification including travel. Failure to provide written certification may result in discipline up to and including discharge. Upon return, the employee shall be placed in a position in the same class held prior to taking leave, or a class in the same pay grade for which the employee qualifies with the same pay, benefits, terms, and conditions of employment.
- If an employee does not return from FMLA leave on the expected date and FMLA leave has not been exhausted, the immediate supervisor/designee shall contact the employee about an extension. If FMLA leave has been exhausted, applicable Departmental leave procedures will apply.
- Pay and Status Changes
- The Accounting Technician will submit copies of time sheets for employees on FMLA leave to the Administrative Officer for FMLA leave tracking.
- A copy of each time sheet will be attached to the "Family and Medical Leave Act Request, Approval and Tracking" form.
- An employee's pay will be adjusted for across-the-board increases, and pay grade or pay plan changes that may occur while he or she is on FMLA leave.
- Medical Opinions
- If the immediate supervisor/designee has reason to doubt the validity of a medical certification, the immediate supervisor/designee may require the employee to obtain a second opinion at the Department's expense (including travel). The Department is permitted to designate the health care provider to furnish the second opinion, but the selected health care provider may not be employed on a regular basis by the Department or the State of Iowa. Pending receipt of the second medical opinion, the employee is provisionally entitled to FMLA leave.
- If the opinions of the employee's and the Department's designated health care providers differ, the Department may require the employee to obtain a third medical opinion at the Department's expense. The third opinion shall be final and binding. The health care provider selected for the third medical opinion must be acceptable to both the employee and Department. Upon request, the employee shall be provided with any medical documentation used in making the final decision within two business days.
- At the time the immediate supervisor/designee requests certification, the immediate supervisor/designee must also advise the employee of the anticipated consequences of an employee's failure to provide adequate certification. The immediate supervisor/designee shall advise an employee whenever the Department finds a certification incomplete, and provide the employee a reasonable opportunity to cure any such deficiency.
- If an employee submits a correctly completed certification signed by a health care provider, the immediate supervisor/designee may not request additional information from the employee's health care provider. However, a health care provider representing the Department may contact the employee's health care provider, with the employee's written permission, for purposes of clarification and authentication of the medical certification.
- If an employee is on FMLA leave running concurrently with a workers' compensation absence, the immediate supervisor/designee or Administrative Officer may contact the workers' compensation provider directly for the purpose of clarifying or checking the authenticity of a medical certification.
- Recertification of Medical Conditions
- For pregnancy, chronic, permanent, or long-term conditions under the continuing supervision of a health care provider, the Department may request re-certification no more than every 30 days and only in connection with an absence by the employee, unless:
- circumstances described by the previous certification have changed significantly (e.g., the duration or frequency of absences, the severity of the condition, complications); or
- the Department receives information that casts doubt upon the employee's stated reason for the absence.
- If the minimum duration of the period of incapacity specified on a certification furnished by the health care provider is more than 30 calendar days, the Department may not request re-certification until that minimum duration has passed unless:
- the employee requests an extension of leave; or
- circumstances described by the previous certification have changed significantly (e.g., the duration of the illness, the nature of the illness, complications); or
- the Department receives information that casts doubt upon the continuing validity of the certification.
- For circumstances not covered by paragraphs A. or B. in this section, the Department may request re-certification at any reasonable interval, but not more often than every 30 days unless:
- the employee requests an extension of leave; or
- circumstances described by the previous certification have changed significantly (e.g., the duration of the illness, the nature of the illness, complications); or
- the Department receives information that casts doubt upon the continuing validity of the certification.
- The employee must provide the requested re-certification to the Department within 15 calendar days after the Department's request unless it is not practicable under the particular circumstances. Any re-certification shall be at the employee's expense.
- Denial Criteria
- A written explanation provided on the "Family and Medical Leave Act (FMLA) Response" form denying an employee's request for FMLA leave must include one of the following reasons:
- The employee has not been employed at least 12 months and worked at least 1,250 hours in the previous 12 months; or
- The employee's fiscal year FMLA leave entitlement has been exhausted; or
- The employee or family member is not a son, daughter, spouse, parent or a person standing "in loco parentis" as a son, daughter or parent; or
- The employee's family member does not have a serious health condition, or the health condition does not render the employee unable to perform the essential functions of his or her position; or
- The FMLA leave request was more than 12 months after the birth, adoption or foster placement of a son or daughter, or the son or daughter was over eighteen year of age and capable of self-care.
- Leave Designation
- The Department shall designate all FMLA qualifying absences as FMLA leave. It is the immediate supervisor/designee's and/or Administrative Officer's responsibility to make all FMLA leave designations.
- The 12 week limitation will be counted starting at the "from" date on the "Family and Medical Leave Act (FMLA) Request, Approval and Tracking Form".
- The Administrative Officer must use the "Family and Medical Leave Act Request, Approval and Tracking" form to track leave usage. A separate form is required for each request.
- Within 15 calendar days after the end of each fiscal quarter, the Administrative Officer must complete the "Family and Medical Leave Quarterly Report" form for all employees who used FMLA leave during the quarter and send to the Iowa Department of Personnel. To satisfy the State's reporting requirements, the report must be sent regardless of whether there has been any activity or not.
- If the immediate supervisor/designee learns that leave is for an FMLA qualifying reason after leave has begun, the entire or appropriate portion of the paid leave period my be retroactively counted as FMLA leave.
- When the employee takes sick leave that turns into a serious health condition (e.g., bronchitis that turns into bronchial pneumonia), the entire period of the serious health condition may be counted as FMLA leave.
- The Department may not designate leave as FMLA leave after the employee has returned to work with two exceptions:
- If the employee was absent for a FMLA reason and the immediate supervisor/designee did not learn the reason for the absence until the employee's return, the immediate supervisor/designee shall, upon the employee's return to work, promptly (within two working days of the employee's return to work) designate the leave retroactively with appropriate notice to the employee.
- If the immediate supervisor/designee knows the reason for the leave but has not been able to confirm that the leave qualifies under FMLA, or where the immediate supervisor/designee has requested medical certification which has not yet been received or the parties are in the process of obtaining a second or third medical opinion, the immediate supervisor will make a preliminary designation, and notify the employee. Upon receipt of the necessary information from the employee or of the medical certification which confirms that the leave is for an FMLA reason, the preliminary designation becomes final. If the medical certification fails to confirm that the reason for the absence was an FMLA reason, the immediate supervisor/designee must withdraw the designation and give written notice to the employee.
- Record keeping
- Records pertaining to compliance with the FMLA must be kept for at least three years. Upon request, records will be provided to the Department of Labor.
- Records kept in accordance with the FMLA must disclose the following:
- Basic payroll and identifying employee data; and
- Dates FMLA leave is taken by employees; and
- If FMLA leave is taken in increments of less than one full day, the hours of the leave;
- Copies of employee notices of FMLA leave furnished to the immediate supervisor/designee, and copies of all general and specific notices given to employees; and
- Records of any dispute between the immediate supervisor/designee and an employee regarding designation of leave as FMLA leave, including any written statement from the immediate supervisor/designee and employee of the reasons for the designation and for the disagreement.
- Records and documents relating to medical certifications, recertifications or medical histories must be maintained in separate files and be treated as confidential with the exception that supervisors, managers, first aid and safety personnel may be provided relevant information on a need-to-know basis.
- Health, Dental, Life, and Long-Term Disability (LTD) Insurance
- The Department is required to maintain an employee's health and dental insurance coverage during periods of FMLA leave by paying the Department's share of the insurance premiums. The employee must continue to pay his or her share, if any.
- The Department will maintain an employee's basic life and LTD coverage during periods of FMLA leave. An employee is responsible for paying any supplemental life premiums due during unpaid FMLA leave. If an employee does not pay the supplemental life premiums, and he or she passes away, only the basic amount of life insurance will be paid to the beneficiary.
- When approved for FMLA leave the Department's share of applicable insurance premiums will begin the first of the month that includes the "from" leave date. If an employee signs the request in advance of the leave date, the Department's share will begin the first of the month of the requested leave date.
- If an employee is on paid FMLA leave, his or her share of the health or dental insurance premiums will be deducted and no billing adjustments will be necessary. If an employee is in unpaid status, the Administrative Officer will need to obtain the employee's share of health and dental insurance premiums, and make the necessary billing adjustments to insure payment of the Department's share of premiums. The Department's share will be paid through the end of the month in which the FMLA leave expires.
- If an employee does not pay his or her share of the health or dental insurance premium and the insurance payment is 30 calendar days past due, the employee's coverage and claim payments will be canceled retroactively to the first day of the month in which the premium was not paid. The Department must provide notice to the employee 15 calendar days prior to any retroactive cancellation of insurance coverage.
- Upon return from FMLA leave, employees who have dropped or canceled their health or dental benefits while on FMLA leave will be restored to no more than the same level of benefits upon completion of the necessary insurance application(s). Insurance coverage will be effective the first of the month following the employee's return to work.
- During the annual enrollment and change period, employees on FMLA leave are entitled to make changes in accordance with Department's policies and procedures. If an employee on FMLA leave elects to make any changes during this period, the signed application must be returned to the Personnel Technician by the end of the published enrollment and change period.
- When taking FMLA leave, an employee must use paid leave in an amount equal to his or her regularly scheduled hours of work.
- Deferred Compensation
- While on FMLA leave, an employee remains a participant in the deferred compensation program.
- Deferrals are made while an employee is on paid leave, but are not made if he or she is on unpaid leave. If an employee wants to stop deferrals while on paid leave, a "Deferred Compensation Deferral Change Request" form must be completed and submitted to the Accounting Technician.
- If deferrals are stopped because a deferred compensation form was completed or an employee went on unpaid leave, an employee must complete a new deferred compensation form to restore deferrals upon returning to work. Department enrollment and change policies and procedures will apply.
- If an employee has been terminated from employment while on FMLA leave, he or she must complete a "Deferred Compensation Request for Distribution of Funds" form. The form must be completed and submitted to the Accounting Technician within 30 calendar days from the last day of employment. At this time, the election becomes irrevocable.
- Dependent Care
- An employee on FMLA leave may immediately stop deductions to his or her dependent care spending account unless the employee is not capable of self-care. If the employee is capable of self-care, the Internal Revenue Service (IRS) specifies that the employee can no longer qualify to be reimbursed for dependent care expenses.
- Employees who are on paid or unpaid family and medical leave will remain enrolled in the Dependent Care Plan until the end of the plan year, or the date employment with the Department terminates. However, employees are not eligible to be reimbursed for dependent care expenses unless they are not capable of self-care.
- Employees who are capable of self-care are not eligible to participate in the plan, but will remain enrolled until the end of the plan year or the date employment with the Department terminates. These employees must submit a "Dependent Care Election Change" form to stop their deductions.
- Employees who are on FMLA leave due to any situation other than their own serious illness are not eligible to participate in the Dependent Care Plan. However, employees will remain enrolled in the plan until the end of the plan year or the date employment with the Department terminates whichever occurs first. These employees must submit a "Dependent Care Election Change" form to stop their deductions.
- The entire dollar amount an employee designates for dependent care must be deducted from his or her paycheck or he or she will not qualify to participate. In this case, deductions are stopped automatically.
- Employees who return to work during the plan year must submit a "Dependent Care Election Change" form within 30 calendar days after the date of their return to work.
- Employees not participating in the plan by the end of the plan year will forfeit their remaining balance if any (balances cannot be transferred into the new plan year). Employees must re-enroll in the plan by submitting a "Dependent Care Plan Enrollment" form within 30 calendar days after the date of their return to work.
- An employee on FMLA leave must complete a "Dependent Care Election Change" form to change or start his or her deductions. The form must be completed and submitted to the Accounting Technician within 30 calendar days from the date of the event, regardless of whether or not the employee has returned to work.
- Posting Requirements
- Each work site within the Department must post and keep posted the Department of Labor Publication 1420 (DOL PUB 1420) on its premises in conspicuous places where it can be seen by employees and applicants.
- Notification of the rights afforded to employees by the FMLA must be given to disabled employees suitable to accommodate their disability or disabilities.
- Workers' Compensation
- FMLA leave may run concurrently with a workers' compensation absence. However, if the employee is supplementing his or her workers' compensation, the period of supplementation cannot count against his or her FMLA leave entitlement. The Department shall wait to designate a workers' compensation absence as FMLA leave until all accrued paid leave is exhausted.
- Under the State's workers' compensation program, an employee can be offered "restricted duty" (light), and if such restricted duty is refused, it may result in the loss of workers' compensation benefits. Under the FMLA, the Department may offer restricted duty, however, it cannot compel or take any detrimental action if the employee declines restricted duty while the employee is on FMLA leave.
- Employees on workers' compensation who are on FMLA leave concurrently and are unable to return to work after the exhaustion of FMLA leave are subject to State workers' compensation laws and will have no job restoration rights under FMLA.