Under the Federal Family and Medical Leave Act of 1993, as amended (FMLA), an employee may be eligible for a period of job-protected unpaid leave if they meet the criteria set forth in the FMLA.
(A) General eligibility. To qualify for FMLA leave an employee:
(1) Must be an employee of the town;
(2) Must have worked at the town for at least 12 months;
(3) Must have worked at least 1,250 hours (paid time off does not count towards the 1,250 hours) during the past 12-month period before the leave is to begin; and
(4) Must work at a worksite at which the town employs at least 50 employees within a 75-mile radius.
(B) Types and duration of FMLA leave; basic FMLA leave and active duty leave. An employee may be eligible for up to 12 weeks of unpaid leave in a rolling 12-month period for the following reasons:
(1) The birth of a child and to care for such child or placement for adoption or foster care of a child;
(2) To care for an immediate family member (spouse, child under 18 years old or 18 and over that is incapable of self-care, or parent) with a serious health condition;
(3) Because of a serious health condition which renders an employee unable to work; or
(4) ACTIVE DUTY LEAVE, defined as leave due to any qualifying exigency arising out of the fact that an employee’s spouse, son (of any age), daughter (of any age) or parent is a “covered military member.” COVERED MILITARY MEMBER means a member of the Armed Forces or a member of the Reserves (including the National Guard or Reserves) who is on “covered active duty,” or has been notified of an impending call or order to covered active duty. For members of the Aimed Forces, COVERED ACTIVE DUTY means duty during deployment of the member with the Armed Forces to a foreign country. For members of the Reserves, COVERED ACTIVE DUTY means duty during deployment of the member with the Armed Forces to a foreign country under a call or order to active duty in a contingency operation.
(C) Military caregiver leave.
(1) An employee also may take military caregiver leave to care for a spouse, son (of any age), daughter (of any age), and parent or next of kin (i.e., closest living relative) who is a “covered service member.” A COVERED SERVICE MEMBER is (i) a current service member of the Armed Forces or Reserves, including the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness, or (ii) a veteran of the Armed Forces (including the National Guard and Reserves) who is discharged (other than dishonorably discharged) within the five-year period before the eligible employee takes military caregiver leave to care for the veteran and who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness. For a current service member, SERIOUS INJURY OR ILLNESS means an injury or illness incurred or aggravated by the covered service member in the line of duty on active duty that may cause the service member to be medically unfit to perform the duties of his or her office, grade, rank, or rating. For a veteran, SERIOUS INJURY OR ILLNESS means an injury or illness that rendered the veteran medically unfit to perform his or her military duties, or an injury or illness that qualifies the veteran for certain benefits from the Department of Veterans Affairs or substantially impairs the veteran’s ability to work, regardless of whether the injury or illness manifested before or after the individual became a veteran.
(2) Eligible employees are entitled to a total of 26 weeks of unpaid military caregiver leave during a single 12-month period. This single 12-month period begins on the first day an eligible employee takes military caregiver leave and ends 12-months after that date.
(3) The leave entitlement described in this division (C) applies on a per-covered service member, per-injury basis. However, no more than 26 weeks of leave may be taken within a single 12-month period by any covered employee. Even in circumstances where an employee takes other leave covered by the federal FMLA under the basic FMLA leave and active duty leave provisions (division (B) above, the combined leave may not exceed 26 weeks during that 12-month period.
(D) Definitions. For the purposes of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
QUALIFYING EXIGENCY. Refers to the following circumstances:
(a) Short-notice deployment. To address issues arising when the notification of a call or order to active duty is seven days or less;
(b) Military events and related activities. To attend official military events or family assistance programs or briefings;
(c) Childcare and school activities. For qualifying childcare and school-related reasons for a child, legal ward or stepchild of a covered military member;
(d) Care of the military member’s parent. For certain activities related to the care of a covered military member’s parent who is incapable of self-care, such as arranging for alternative care, providing care on a non-routine, urgent, immediate need basis, admitting or transferring a parent to a new care facility, and attending certain meetings with staff at a care facility, such as meetings with hospice or social service providers;
(e) Financial and legal arrangements. To make or update financial or legal affairs to address the absence of a covered military member;
(f) Counseling. To attend counseling provided by someone other than a health care provider for oneself, for the covered military member, or child, legal ward, or stepchild of the covered military member;
(g) Rest and recuperation. To spend up to 15 days for each period in which a covered military member is on a short-term rest leave during a period of deployment;
(h) Post-deployment activities. To attend official ceremonies or programs sponsored by the military for up to 90 days after a covered military member’s active duty terminates or to address issues arising from the death of a covered military member while on active duty;
(i) Additional activities. For other events where the town and the employee agree on the time and duration of the leave.
SERIOUS HEALTH CONDITION. An illness, injury, impairment, or physical or mental condition that involves:
(a) In-patient care (i.e., an overnight stay) in a hospital or other medical care facility (including any period of incapacitation or any subsequent treatment in connection with such in-patient care);
(b) A period of incapacitation of more than three consecutive full calendar days, and any subsequent treatment or period of incapacitation relating to the same condition that also involves (i) treatment two or more times by a health care provider or under the supervision of a health care provider within 30 days of the start of the incapacitation, or (ii) treatment by a health care provider on at least one occasion within seven days of the start of the incapacitation which results in a regimen of continuing treatment under the supervision of a health care provider;
(c) Any period of incapacitation due to pregnancy, or for prenatal care;
(d) Any period of incapacitation due to a chronic serious health condition requiring periodic visits of at least twice a year for treatment by a health care provider;
(e) A period of incapacitation which is permanent or long-term due to a condition for which treatment may not be effective, during which the employee (or family member) must be under the continuing supervision of, but need not be receiving active treatment by a health care provider; or
(f) Any period of absence to receive multiple treatments by a health care provider or under the supervision of a health care provider, either for restorative surgery after an accident or other injury, or for a condition that will likely result in a period of incapacitation of more than three consecutive calendar days in the absence of medical intervention or treatment.
(E) When spouses work together. A husband and wife, when both are eligible for FMLA and both work at the town, are eligible for either a combined 12 weeks of unpaid leave for the birth or placement of a child or to care for a parent who has a serious health condition. A husband and wife will be eligible for a combined 26 weeks of unpaid military caregiver leave as discussed above. If the husband or wife taking military caregiver leave also takes leave for the birth or placement of a child or to care for a parent who has a serious health condition, that leave also may count toward the 26 weeks of combined military caregiver leave during a single 12-month period.
(F) Notice of need for FMLA leave.
(1) If the leave is foreseeable (birth or placement, planned medical care, leave due to active duty of immediate family member), the employee must provide at least 30 days’ advance notice. If circumstances prevent providing the 30 day’s advance notice, then the employee should provide as much notice as possible.
(2) If an employee fails to give the required notice for foreseeable leave with no reasonable excuse, the employee may be denied the taking of the leave until the employee provides adequate notice of need for the leave. Employees should make every reasonable effort to schedule medical treatments so as not to disrupt the ongoing operations of the department.
(G) Intermittent FMLA leave.
(1) Intermittent leave also may be available depending upon an employee’s serious health condition or an employee’s immediate family member’s serious health condition. Intermittent or reduced schedule leave for the birth or placement of a child for adoption or foster care may be taken only with approval from the Town Council in writing. Military caregiver leave may be taken intermittently or on a reduced leave schedule when medically necessary. Intermittent or reduced leave may not exceed the total hours an employee would have worked during his or her regular 12-week schedule. If intermittent or reduced leave is approved, the town may require the employee to schedule the leave so as not to unduly disrupt its operations, or the employee may be placed in an alternate position which better accommodates the intermittent leave schedule.
(2) Employees taking intermittent leave must follow the town’s standard call-in procedures absent unusual circumstances.
(H) Documentation supporting FMLA leave.
(1) An employee’s reason for the leave must be covered under FMLA and they must provide a completed FMLA certification of health care provider form supporting the need for the leave. A request for reasonable documentation of family relationship verifying the legitimacy of a FMLA leave may also be required.
(2) The employee will have 15 days in which to return a completed certification form following receipt of the form from the town. If the employee fails to provide timely certification after being required to do so, they may be denied the taking of the leave under the FMLA. If the certification form is incomplete or insufficient, an employee will be given written notification of the information needed and will have seven days after receiving such written notice to provide the necessary information.
(3) If there is reason to doubt the validity of the medical certification, a second opinion, at the expense of the town, related to the health condition may be required. If the original certification and the second opinion differ, a third opinion, at the expense of the town, may be required. The opinion of the third health care provider, which the town and the employee jointly select, will be the final and binding decision.
(4) A request for active duty leave must be supported by the certification of qualifying exigency for military family leave form as well as appropriate documentation, including the covered military member’s active duty orders, A request for military caregiver leave must be supported by the certification for serious injury or illness of covered service member form as well as any necessary supporting documentation.
(I) Recertification. Under certain circumstances as provided by law, including (but not limited to) situations in which the need or nature of the approved leave changes, the town may, in its sole discretion, require recertification of an employee’s serious health condition.
(J) Return to work. If an employee’s position is eliminated during his or her FMLA leave time, e.g., layoff, departmental restructuring, and the like, the employee will not be entitled to return to his or her former or an equivalent position. Employees whose FMLA leave was for their own personal medical condition must, prior to reinstatement, submit a medical certification to the Clerk-Treasurer as to their ability to return to work, subject to a second medical opinion as deemed necessary by the town, or a third medical opinion as provided in the FMLA. Employees who do not return to work immediately following release from the health care provider as fully restored to perform all the essential functions of his or her position, will be considered to have voluntarily terminated employment as of the date of the release. Employment will be terminated if an employee is not able to return to work at the end of the FMLA. There may be exceptions to termination requirements under the Americans with Disabilities Act and its amendments (ADAAA) and the town will comply as appropriate.
(K) Substitution of paid leave. Employees must substitute all accrued vacation, sick leave benefits, and personal hour benefits for unpaid FMLA leave. FMLA and any paid time off, run concurrently. The entire 12-week FMLA is not in addition to the paid leave, however, is any remaining portion after the paid leave time is subtracted. If an employee requires leave in excess of the weeks for which they are eligible, they will not be assured a position with the town upon his or her return.
(L) Benefits during FMLA leave. During the approved FMLA leave, the employee’s coverage under the town’s benefits will continue, but if the employee goes without pay, he or she must pay his or her share of health, dental, vision, and other-related insurance premiums, if applicable. It is the employee’s responsibility to make arrangements with the Clerk-Treasurer’s office to pay his or her portion of the monthly benefit premiums during the unpaid period of absence. All other benefits will be suspended during the leave.
(Ord. 2020-26, passed 1-12-21)