These rules and regulations are based on the provisions of the federal Family and Medical Leave Act (FMLA) and will be administered consistent with that law, federal regulations and the definitions included in this section.
Job-protected leave may be taken for up to a total of twelve (12) workweeks in any twelve (12) month period because of 1) the birth of a child and to care for the newborn child during the first year following birth, 2) the placement of a child with the employee for adoption or foster care during the first year following placement, 3) the employee’s need to care for a child, spouse, domestic partner or parent with a serious health condition, or 4) the employee’s inability to work because of a serious health condition.
The City may require documentation of any family relationship on which a leave request is based. FMLA leave will be administered by either the Human Resources Director or the Department Director as determined by the Chief Administrative Officer. Directors may appoint a designee to assist with the Administration of FMLA and this individual will be subject to the same requirements of confidentiality.
(CFR 825.110)
A. Eligibility
To be eligible for FMLA leave, an employee must have worked for the City a total of twelve (12) months (or fifty-two 52 weeks if the work is intermittent) and must have worked 1,250 hours in the twelve (12) months preceding the date the FMLA leave will begin. FLSA-exempt employees who have worked for twelve (12) months are presumed to meet the hourly requirement. Paid and unpaid absences used in the twelve (12) months preceding the date the FMLA leave will begin are not counted toward the 1,250 hour total.
Time spent on Military Leave is counted as hours worked for purposes of calculating FMLA eligibility.
(CFR 825.220)
An employee’s conduct or performance has no bearing on their entitlement to FLMA leave, pursuant to Federal Regulation.
B. Types of FMLA
(CFR 825.201)
1. Birth/Placement of a Child
An employee may take leave because of the birth or placement of a child with the employee. The right to family leave expires twelve (12) months after the birth or placement of a child with the employee.
2. Serious Health Condition of the Employee
An employee may take medical leave for up to twelve (12) weeks for a medically certified temporary period of incapacity, illness or injury that is a serious health condition making the employee unable to work.
Medical leaves of absence for pregnancy, childbirth or related conditions are subject to the same eligibility, terms, and conditions as are applicable to leaves of absence for all other types of serious health conditions.
(CFR 825.116)
3. Serious Health Condition of a Family Member
An employee may take medical leave for up to twelve (12) weeks if the employee’s parent, spouse, domestic partner or child has a serious health condition and the employee is needed to care for the family member. An employee is "needed to care for" a family member when either physical or psychological care is needed. It includes situations where, for example, because of a serious health condition, the family member 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, which would be beneficial to a child, spouse, domestic partner or parent with a serious health condition that is receiving in-patient or home care. The term also includes situations where the 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 a nursing home.
4. Service member Family Leave
a) Active Duty Family Leave - Employees with a spouse, parent, or child who is on or has been called to active duty in the Armed Forces may take up to 12 weeks of FMLA leave when they experience a qualifying exigency as defined by the US Department of Labor.
b) Injured Service member Leave - Employees who are the spouse, parent, child, or next of kin of a service member who incurred a serious injury or illness on active duty in the Armed Forces may take up to a combined total of 26 weeks of leave in a 12-month period (including regular FMLA leave) to care for the service member. The leave described in this paragraph shall only be available during a single twelve-month period.
(CFR 825.117, 825.203)
C. Intermittent Leave or Reduced Leave Schedule
1. When medically necessary due to an employee’s own serious health condition or to care for a seriously ill child, spouse, domestic partner or parent of the employee, an employee is permitted an intermittent leave or a reduced leave schedule. Intermittent leave is leave taken in separate blocks of time due to a single illness or injury rather than for one continuous period of time.
When leave is taken on an intermittent or reduced leave schedule, the leave may be measured in increments of less than one hour and may last up to several weeks. A reduced leave schedule reduces an employee’s usual number of hours per workweek and/or per workday. For intermittent leave or leave on a reduced leave schedule, 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.
2. When FMLA leave is used for reasons where intermittent leave or reduced leave schedules are not medically necessary, an employee may request such a schedule. The department director has the discretion to approve or deny the request.
3. An employee must work with the department director to establish a mutually satisfactory treatment schedule that does not unduly disrupt business and meets the employee’s or the patient’s medical needs. If an employee fails to consult with the department director, the employee may be requested to reschedule treatments, subject to the approval of the health care provider.
4. When intermittent leave is certified for a chronic condition or a serious health condition that is episodic in nature, an employee is required to contact their supervisor (as specified by department policy) to advise that their unscheduled absence is related to the qualifying condition for which they have provided a medical certification and have been approved for FMLA.
5. An employee cannot be required to disclose additional medical information or doctor’s notes outside of that provided in their original medical certification or recertification or to disclose medical information to personnel who are not charged with processing or administering requests for Family and Medical Leave. If a supervisor suspects an abuse of intermittent leave or observes a change in the frequency and/or duration of absences, he/she should contact the designated FMLA Administrator/Coordinator to request a clarification or recertification as permissible under the federal FMLA regulations.
(CFR 825.204)
6. When an employee is granted intermittent leave or reduced leave, the employee may be required to accept a temporary transfer to an available alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee’s regular position. Transfer to an alternative position may include altering an existing job to better accommodate the employee’s need for intermittent or reduced leave. The alternative position must have equivalent pay and benefits. It need not have equivalent duties.
7. Employees may take Injured Service member leave intermittently, but must use it up within twelve months.
D. Notice Requirements
(CFR 825.302, 825.303)
1. Employee Notice of Leave
(CFR 825.304)
As with any type of leave, an employee must give advance notice requesting leave and obtain approval, except in emergencies. An employee must give at least thirty (30) days written notice before leave starts. If thirty (30) days notice is not possible, notice is expected as soon as practical. "As soon as practical" means at least verbal notice within two (2) business days of learning of the need for leave followed by written confirmation. If an employee fails to give thirty (30) days notice for foreseeable leave with no reasonable excuse for the delay, the Human Resources Director (or Department Director, as applicable) or designee may delay the taking of FMLA leave until at least thirty (30) days after the date the employee provided notice.
(CFR 825.306)
Request for leave must be submitted on a Family Medical Leave Certification Form. The Human Resources Director (or Department Director, as applicable) or designee will determine if the leave qualifies for family/medical leave.
It is the employee’s responsibility to provide enough information, including the reason for requesting leave, so that the Human Resources Director (or Department Director, as applicable) or designee can make this determination.
Any FMLA-qualifying absence will be designated as FMLA leave by the Human Resources Director (or Department Director, as applicable) or designee and will be applied to the twelve (12) weeks entitlement, even if not requested by the employee.
In any case in which the necessity for leave due to Active Duty of a Family Member is foreseeable, whether because the spouse, or a son, daughter, or parent of the employee is on active duty, or because of notification of an impending call or order to active duty in support of a contingency operation, the employee shall provide such notice to the employer as is reasonable and practicable.
2. City Notices to the Employee
The Human Resources Director (or Department Director, as applicable) or designee will notify the employee within two (2) workdays, if feasible, of the approval or disapproval of their FMLA request.
The Human Resources Director (or Department Director, as applicable) or designee will also within two (2) workdays, if feasible, notify the employee of the designation of the absence as FMLA even if the employee had not requested such leave. If the Human Resources Director (or Department Director, as applicable) or designee learns the absence is for an FMLA qualifying purpose the Human Resources Director (or Department Director, as applicable) or designee may retroactively designate the leave as FMLA leave.
The Human Resources Director (or Department Director, as applicable) or designee will give notice within two (2) workdays, if feasible, of learning the reason for the leave.
The City may make a preliminary designation of leave as FMLA qualifying if medical certification was not provided prior to the beginning of leave, or if the employer is waiting for a second or third medical opinion.
The City may designate leave, which has already been taken.
E. Required Certification
1. Medical Certification
(CFR 825.302, 825.305)
An employee who requests leave for their own or an eligible family member’s serious health condition must provide a medical certification from a health care provider on a form supplied by the City. Where FMLA leave is foreseeable and thirty (30) days notice has been provided, an employee must provide a medical certification before leave begins. In other cases, the medical certification must be provided within fifteen (15) days after the City requests medical certification or the employee advised their supervisor of the need for the FMLA absence. The employee is responsible for any expense connected with the medical certificate. Failure to provide the required medical certificate(s) may result in a delay or denial of family or medical leave.
(CFR 825.307)
If the City has reason to question the adequacy of a medical certification, a health care provider representing the City may contact the employee’s health care provider, with the employee’s permission, for purposes of clarification and authenticity of the medical certification. The City has the right to require, at its own expense, a second medical opinion and “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 employer” (City). If the second opinion and the original certificate conflict, the City has the right to require a third opinion by a health care provider upon whom the City and the employee agree. The third opinion is final and binding.
If the City designates paid or unpaid leave as FMLA leave, without the employee’s request for FMLA leave, the employee may dispute this designation by supplying a medical certificate from the health care provider.
(CFR 825.308)
The City may request additional medical certification at reasonable intervals during family medical leave, but not more often than every thirty (30) days, unless the 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 employer receives information that casts doubt upon the employee’s stated reason for the absence.
2. Certification Related to Active Duty or Call to Active Duty
An employer may require that a request for leave under Service member Family Leave be supported by a certification issued at such time and in such manner as the Secretary may be regulation prescribe.
F. Restrictions
1. If both the husband and wife or domestic partner work for the City, they may take only a combined total of twelve (12) weeks in any twelve (12) month period for the birth or placement of a child, or to care for a parent (not a parent-in-law) who has a serious health condition.
2. Family leave for the birth or placement of a child should be taken consecutively unless other arrangements are made with the department director.
3. If both the husband and wife or domestic partner work for the City, they may take only a combined total of twenty-six (26) workweeks for service member family leave.
G. Substitution of Paid Leave
1. Employees must use accrued sick leave, except as otherwise provided in a City collective bargaining agreement. After accrued sick leave is exhausted, the employee may request to use vacation, compensatory time or unpaid leave. Donated leave, hardship leave, or injury time, excluding light duty, will be charged to FMLA leave.
2. City recognized holidays that occur during an employee’s FMLA leave will be counted as FMLA leave.
H. Rights and Responsibilities While on Leave
During paid FMLA leave, sick and vacation leave will continue to accrue and will be prorated if appropriate. Sick and vacation leave will not accrue during any unpaid FMLA leave.
The City will continue to pay its share of insurance premiums while the employee is on paid leave; however the employee will be responsible for the full payment of insurance premiums while on unpaid leave for a full pay period or longer.
The City has the right to recover premiums it paid if the employee does not return to work after the leave. Employees on unpaid FMLA leave will not pay PERA for that period of unpaid leave nor will the employee receive service credit during the unpaid leave for retirement purposes.
While on FMLA leave, an employee must contact the supervisor, by telephone, at least every four (4) weeks to report on their status and intention to return to work at the end of the leave. If the circumstances of the employee’s leave changes and the employee is able to return to work earlier than anticipated, the employee must notify the supervisor at least two (2) workdays before the date the employee intends to report to work.
(CFR 825.216, 825.220)
The FMLA does not entitle any employee to any right, benefit or position of employment other than any right, benefit or position of employment to which the employee would have been entitled if the employee had not taken leave under the FMLA. FMLA cannot be used as a shield to avoid legitimate discipline.
I. Return to Work after FMLA
1. Position
a. An employee, except for a key employee, returning from FMLA, has the right to return to their former position if the employee is able to perform the essential functions of the job, or they may be placed in an equivalent position with equivalent benefits, pay, and other terms and conditions of employment.
(CFR 825.217)
b. The City reserves the right to deny reinstatement to key employees where such denial is necessary to prevent substantial and grievous economic injury to the City’s operations. The determination of whether an employee is a key employee will be made at the time the employee gives notice of the need for leave or at the time the City designates leave as FMLA leave.
Key employees will be notified of the City’s intention to deny reinstatement as soon as a determination is made that injury would occur. In the event a key employee decides not to return to work from unpaid leave, the employee will remain on leave for the balance of the leave period and then be terminated.
2. Benefits
(CFR 825.213)
If an employee does not return to work after the leave entitlement has expired, the employee may be required to reimburse the City for any health insurance premiums paid by the City during the period the employee was on family or medical leave if the failure to return to work is not due to the continuation, recurrence, or onset of a serious health condition entitling the employee to leave or other circumstances beyond the employee's control. An employee shall provide certification from the health care provider supporting a claim of inability to return to work for health reasons.
3. Release
Employees returning to work from a serious health condition must submit to the Human Resources Department a release from their personal physician.
The Human Resources Department will refer the employee to the City Health Clinic for a return to work clearance and certification that the employee is able to perform the essential functions of the job with or without accommodations. If an employee requires an accommodation under ADA a request must be submitted in accordance with Section 308.
J. Prohibitions and Enforcement
1. FMLA makes it unlawful for an employer to:
a. Interfere with, restrain, or deny the exercise of any right provided under FMLA; and
b. Discharge or discriminate against any person for opposing any practice made unlawful by FMLA or for involvement in any proceeding under or relating to FMLA.
2. FMLA does not affect any Federal or State law prohibiting discrimination, or supercede any State or local law or collective bargaining agreement that provides greater family or medical leave rights.
(CFR 825.307)
3. Request additional information from the employee’s health care provider if the employee has already submitted a complete certification signed by a health care provider.
4. The US Department of Labor is authorized to investigate and resolve complaints of violations of FMLA.
5. An eligible employee may bring a civil action against an employer for violation.
K. Record Keeping Requirements
1. The Human Resources Department (or Department, as applicable) is responsible for providing written notice to the employee who is absent from work for a serious health condition (to include Workers Compensation claims) that their time away from work counts toward their FMLA entitlement.
2. The Human Resources Department (or Department, as applicable) must keep records of the dates and duration of leave taken under FMLA entitlement. FMLA records, which contain medical information, such as FMLA certification, Request for Leave forms, and written communications, must be maintained separately from other personnel and payroll records.
L. Definitions
1. Spouse - husband or wife as defined or recognized under New Mexico law.
2. Domestic Partner – an individual who lives in a long-term relationship of indefinite duration who meets all criteria established by the City and has filed an affidavit of domestic partnership with the Human Resources Department, Insurance and Benefits Division.
3. Son or Daughter - a biological, adopted or foster child, stepchild, a legal ward, or a child for whom the employee has intentionally assumed the obligations of the parental relationship, such as daily care and financial support without going through the formalities of adoption, who is under the age of eighteen (18), or who is eighteen (18) years of age or older and is incapable of self-care because of a mental or physical disability.
4. Parent - the biological parent of an employee or an individual who intentionally assumed the obligations of the parental relationship, such as daily care and financial support, without going through the formalities of adoption when the employee was a child. This term does not include parents-in-law.
5. FMLA Leave - Paid or unpaid leave taken for a reason provided for by the federal Family and Medical Leave Act.
6. Health Care Provider
a. Doctors of medicine or osteopathy; or
b. Podiatrists, dentists, clinical psychologists, optometrists and chiropractors (limited to subluxation correction); or
c. Nurse practitioners, nurse-midwives and clinical social workers that are performing within the scope of their practice as defined by state law; or
d. Christian Science practitioners; or
e. Any health care provider recognized by the City or its health care plans.
7. Serious Health Condition - an illness, impairment, or physical or mental condition that involves:
a. In-patient care in a hospital, hospice or residential medical care facility, or subsequent treatment in connection with inpatient care; or
b. Incapacity for more than three (3) consecutive days, involving treatment two (2) or more times by a health care provider, by a provider of health care services (e.g., nurse, physicians assistant, physical therapist) under the direction of a health care provider, and any subsequent incapacity or treatment related to the same condition; or
c. Incapacity for more than three (3) consecutive days, involving treatment at least once by a health care provider which results in a regimen of continuing treatment under supervision of a health care provider; or
d. Pregnancy - any period of incapacity due to pregnancy or prenatal care; or
e. A chronic condition that continues over an extended period of time, and that may cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.), requiring periodic visits for treatment by a health care provider, or by a nurse or physician's assistant under the supervision of a health care provider; or
f. A permanent or long-term period of incapacity due to a condition for which treatment may be limited such as Alzheimer's disease, severe stroke, or the terminal stages of a disease; or
g. A period of absence to receive multiple treatments by a health care provider (or to recover from treatment), or by a provider of health care services, either for restorative surgery after an accident or injury, or for a condition that would likely result in a period of incapacity of more than three (3) consecutive calendar days in the absence of treatment such as chemotherapy, radiation therapy, or dialysis.
h. An injury or illness incurred by a member of the Armed Forces, including a member of the National Guard or Reserves, incurred in the line of duty while on active duty, that
i. may render the member medically unfit to perform the duties of the member’s office, grade, rank or rating.
8. Family Leave - leave taken because of the birth or placement of a child with the employee, or
Leave granted to an employee whose spouse, domestic partner, son, daughter, or parent is a service member on active duty or who has been notified of an impending call or order to active duty in the Armed Forces in support of a contingency operation.
9. Medical Leave - leave taken because of the employee’s own serious health condition or to care for a spouse, domestic partner, child or parent if they have a serious health condition
10. Key Employee - a salaried FMLA-eligible employee who is among the highest paid 10% of all the employees of the City.
11. Twelve (12) month period - the twelve (12) months immediately preceding the beginning of each new FMLA leave, or
A single twelve-month period during which an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered service member is entitled to a combined total of twenty-six (26) weeks of leave to care for the service member. The leave shall only be available during a single twelve-month period.
12. Active Duty
Duty under a call or order to active duty, or retention on active duty of members of the uniformed services, or under any other provision of law during a war or during a national emergency declared by the President or Congress.
13. Contingency Operation
Means a military operation that is designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations or hostilities against an enemy of the United States or against an opposing military force.
14. Covered Service Member
A member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in an outpatient status, or is otherwise on the temporary disability list for a serious injury or illness.
15. Outpatient Status
The status of a member of the Armed Forces assigned to a military medical treatment facility as an outpatient or a unit established for the purpose of providing command and control of members of the Armed Forces receiving medical care as outpatients.
16. Next of Kin
The nearest blood relative of that individual.
17. Rolling Calendar
A rolling twelve (12) month period measured backward from the date an employee uses any FMLA leave. Each time an employee takes FMLA leave, the City will compute the amount of leave taken and subtract it from the twelve (12) weeks of available leave. The balance remaining is the amount the employee is entitled to take at that time, provided the employee has met the eligibility requirements for FMLA and submitted a completed FMLA certification form for approval.