The Village of Grafton hereby adopts a policy to include the Family Medical Leave Act of 1993 upon the terms and conditions set forth below in this section.
(a) The Family and Medical Leave Act of 1993.
(1) Any employee (“participant”) who has worked for the Village for at least twelve months (this includes all time worked whether consecutive or not) and who has worked at least 1,250 hours in the previous twelve-month period, is entitled to medical and family leave (“FMLA leave”) of up to twelve work weeks, without pay, for any of the following: (Whether an employee has worked the minimum 1,250 hours of service is determined according to FLSA principles for determining compensable hours of work. The 1,250 hours include only those hours actually worked. Paid time off and unpaid time off, including FMLA leave, are not included.)
A. Birth of a child of the participant, in order to care for such child;
B. Placement of a child with the participant for adoption or foster care, in order to care for the child;
C. Serious health condition of a spouse, child or parent of the participant, in order to care for that person;
D. Serious health condition of the participant which makes the participant unable to perform the functions of his or her job;
E. Any period of incapacity or treatment connected with in patient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility;
F. Any period of incapacity requiring the absence of more than three calendar days from work that also involves continuing treatment by (or under the supervision of) a health care provider;
G. Any period of incapacity for episodic or chronic conditions, including, e.g., mental illness, stroke, cancer, etc.; or
H. Any period of incapacity due to pregnancy, or for prenatal care.
(2) FMLA leave qualification will be determined by the Clerk-Treasurer based on information provided by the employee or the employee’s representative and will be calculated based on a rolling twelve-month leave period measured backward from the date an employee uses any FMLA leave.
(3) Participants are requested to provide the Village thirty days advance notice of the need to take FMLA leave, when the need is foreseeable. In cases where the need was not foreseeable thirty days in advance, participants are requested to provide as much notice as reasonably possible.
(b) Definitions. As used in this section, the following definitions apply:
(1) “Child” means a son or daughter who is a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under age eighteen, or age eighteen or older and “incapable of self-care because of a mental or physical disability.”
(2) “Continuing treatment by a health care provider” includes any time when requested leave is:
A. Associated with the same condition that involves treatment two or more times by a health care provider.
B. Treatment by a health care provider on at least one occasion that results in a regimen of continuing treatment under supervision of a health care provider.
C. Required due to pregnancy or for prenatal care.
D. Needed for any period of incapacity or for treatment due to a chronic serious health condition.
E. For periodic visits for treatment by a health care provider.
F. Continuing over an extended period of time (including recurrences).
G. Intermittent periods of incapacity that are due to a serious health condition.
H. A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective, such as Alzheimer’s Disease or stroke.
I. Any period of absence to receive multiple treatments (including a recovery period) by a health care provider, such as chemotherapy or dialysis.
(3) “Covered Service Member” means a current 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 outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.
(4) “Employee” means an individual working for the Village of Grafton.
(5) “Health Care Provider” means:
A. Doctors of medicine or osteopathy authorized to practice medicine or surgery by the state in which the doctor practices;
B. Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors authorized to practice in the state and performing within the scope of their practice under state law;
C. Advanced practice registered nurses, nurse-midwives, and clinical social workers authorized to practice under state law and performing within the scope of their practice as defined under state law;
D. Christian Science practitioners listed with the First Church of Christ Scientist in Boston, Massachusetts;
E. Any health care provider recognized by the employer or the employer’s group health plan’s benefits manager; and,
F. A health care provider listed above who practices in a country other than the United States and who is authorized to practice under the laws of that country.
(6) “Incapable of self-care” means the individual requires active assistance or supervision to provide daily self-care in three or more of the activities of daily living (caring appropriately for one’s grooming and hygiene, bathing, dressing and eating) or instrumental activities of daily living (cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc.).
(7) “Parent” means a biological parent or an individual who stands or stood in loco parentis to an employee when the employee was a son or daughter as defined in law. The term does not include parents “in law”.
(8) “Period of incapacity” means the time when an employee is unable to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom.
(9) “Regimen of continuing treatment” includes a course of prescription medication, such as antibiotics, or therapy requiring special equipment to resolve or alleviate a health condition, such as oxygen therapy. A regimen of continuing treatment that includes the taking of over-the-counter medications, bed rest, drinking fluids, exercise or other similar activities, is not, by itself, sufficient to qualify an employee for FMLA leave.
(10) “Serious health condition” is defined as an illness, injury, impairment, or physical or mental condition that involves a period of incapacity or treatment following inpatient care in a hospital, hospice or residential medical care facility; a period of incapacity requiring more than three days absence from work and continuing treatment by a health care provider; or continuing treatment by a health care provider for a chronic or long-term health condition that is so serious that, if not treated, would likely result in incapacity of more than three days; or continuing treatment by or under the supervision of a health care provider for a chronic or long-term condition or disability that is incurable; or certain prenatal care.
(11) “Serious injury or illness” is one that was incurred by a service member in the line of duty on active duty that may render the service member medically unfit to perform the duties of his or her office, grade, rank, or rating.
(12) “Spouse” means a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides.
(c) Family Medical Leave Act Military Family Leave Entitlements.
(1) Any employee (“participant”) who has worked for the Village for at least twelve months (this includes all time worked whether consecutive or not) and who has worked at least 1,250 hours in the previous twelve-month period, is entitled to family and medical leave (“FMLA Leave”), without pay, for any of the following: (Whether an employee has worked the minimum 1,250 hours of service is determined according to FLSA principles for determining compensable hours of work. The 1,250 hours include only those hours actually worked. Paid time off and unpaid time off, including FMLA leave, are not included.)
A. Military Caregiver Leave. An eligible employee who is a spouse, son, daughter, parent, or next of kin of a covered service member with a serious injury or illness is entitled to a maximum of twenty-six workweeks of unpaid leave during a “single twelve-month period” to care for the service member.
B. Qualifying Exigency Leave. An eligible employee is entitled to a maximum of twelve workweeks of unpaid leave for qualifying exigencies arising out of the fact that the employee’s spouse, son. daughter, or parent is on active duty, or has been notified of an impending call or order to active duty, in support of a contingency operation. The leave will be calculated based on a rolling twelve-month leave period measured backward from the date an employee uses any FMLA leave. This leave is available to a family member of a military member in the National Guard or Reserves; it does not extend to family members of military members in the Regular Armed Forces. Qualifying exigencies include:
1. Issues arising from a covered military member’s short notice deployment (i.e. deployment on seven or less days of notice) for a period of seven days from the date of notification;
2. Military event and related activities, such as official ceremonies, programs, or events sponsored by the military or family support or assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross that are related to the active duty or call to active duty status of a covered military member;
3. Certain childcare and related activities arising from the active duty or call to active duly status of a covered military member, such as arranging for alternative childcare, providing childcare on a non-routine, urgent, immediate need basis, enrolling or transferring a child in a new school or day care facility, and attending certain meetings at a school or a day care facility if they are necessary due to circumstances arising from the active duty or call to active duty of the covered military member;
4. Making or updating financial and legal arrangements to address a covered military member’s absence;
5. Attending counseling provided by someone other than a health care provider for oneself, the covered military member, or the child of the covered military member, the need for which arises from the active duty or call to active duty status of the covered military member;
6. Taking up to five days of leave to spend time with a covered military member who is on short-term temporary, rest and recuperation leave during deployment;
7. Attending to certain post-deployment activities, including attending arrival ceremonies, reintegration briefings and events, and other official ceremonies or programs sponsored by the military for a period of ninety days following the termination of the covered military member’s active duty status, and addressing issues arising from the death of a covered military member;
8. Any other event that the employee and employer agree is a qualifying exigency.
(2) Participants are requested to provide the Village thirty days advance notice of the need to take FMLA leave, when the need is foreseeable. In cases where the need was not foreseeable thirty days in advance, participants are requested to provide as much notice as reasonably possible.
(d) Certification/Re-Certification.
(1) In the case of FMLA leave taken under either division (a)(1)C. or D. above, certification from the health care provider of the medical necessity for the FMLA leave will be required. The certification shall include: date on which the serious health condition commenced; probable duration of the condition; and appropriate medical facts within the knowledge of the health care provider regarding the condition.
(2) FMLA leave taken under either Section 3 above, will also require certification. The certification shall include appropriate facts related to the particular qualifying exigency leave, including contact information if the leave involves meeting with a third party. When caring for a covered service member, certification should be completed by an authorized health care provider. A copy of an Invitational Travel Order (ITO) or Invitational Travel Authorization (ITA) issued to any member of the covered service member’s family would also suffice as a form of certification.
(3) In the case of foreseeable FMLA leave, a participant who fails to provide timely certification after being requested by the Village to furnish such certification within fifteen calendar days, (if practicable), may be denied the taking of FMLA leave until the required certification is provided. When the need for FMLA leave is not foreseeable, a participant must provide certification within fifteen calendar days after being requested to do so, or as soon as reasonably possible under the particular facts and circumstances. In the case of a medical emergency, it may not be practicable for a participant to provide the requested certification within fifteen calendar days. However, if a participant fails to provide a medical certification within a reasonable time under the pertinent circumstances, the Village may deny the participant’s continuation of FMLA leave.
(4) The Village may require the employee to provide periodic reports during the period of leave of the employee’s status and intent to return to work. If the Village requests the reports verbally from the employee, the Village will follow up with a written statement of the requirement(s).
(5) The Village may, at its own expense, require the employee to obtain a second opinion from a health care provider for FMLA leave taken under either division (a)(1)C. or D.
(6) If the opinions of the employee’s and the employer’s designated health care providers differ, the Village may require the employee to obtain certification from a third health care provider, again at the expense of the Village. This third opinion shall be final and binding. The third health care provider must be approved jointly by the Village and the employee.
(7) The Village must provide the employee with a copy of the second and third medical opinions upon request by the employee within two business days, unless extenuating circumstances prevent such action.
(8) The Village is not permitted to request second and third opinions or recertification of a covered service member’s serious injury or illness or of a qualifying exigency for FMLA leave taken under either Section 3 above.
(9) An employee will be required to submit a new certification for the first FMLA absence in each FMLA year. The FMLA year will be calculated based on a rolling twelve-month leave period measured backward from the date an employee uses any FMLA leave.
(10) Any participant who takes FMLA leave for the participant’s own serious health condition that makes the participant unable to perform his or her job, must obtain and present certification from the health care provider that the participant is able to resume work, with or without reasonable accommodation.
(e) Continuation Of Health Care And Other Benefits.
(1) During FMLA leave, the Village will continue payment of any insurance premiums for continuation of health insurance coverage for the participant (including family coverage if participant is on the family plan). Any share of health plan premiums which are paid by the participant prior to FMLA leave must continue to be paid by the participant during FMLA leave. If premiums are raised or lowered on the group health insurance coverage while the participant is on FMLA leave, the participant will be required to pay the new premium rates. However, if the participant fails to return from FMLA leave after the period of FMLA leave entitlement has expired, the Village may recover the premiums paid on the participant’s behalf during FMLA leave, unless the participant fails to return to work due to continuation, recurrence or onset of a serious health condition that entitles the participant to FMLA leave under division (a)(1)C. or D. above, or for other circumstances beyond the control of the participant.
(2) If FMLA leave includes substituted paid leave entitlement (i.e. use of paid time off), the participant’s share of premiums for group health coverage will be paid in the usual manner through payroll. When paid leave entitlement expires, payment of participant’s portion of the health plan premium as well as any optional life or disability premiums must be made to the Village by the employee by the fifteenth of each month.
(3) Accrued paid time off (sick time, vacation leave and personal time) must be used concurrent with FMLA leave until the available balance is completely used. Per the Village’s standard policy on paid time off, new paid time off is earned for time worked and years of service credit will accrue during FMLA leave under this policy if using paid time off during FMLA leave. Any FMLA leave time taken without using paid time off will not accrue paid time off but will provide credit towards years of service.
(4) The participant’s right to continue participation in, or coverage under, any other benefit plan during FMLA leave is subject to any restrictions, limitations or conditions contained within the particular Village benefit plan or in any contract between the Village and any third party under which the benefit is established or provided.
(f) Return to Work.
(1) Upon expiration of the period of FMLA leave entitlement, the participant will resume his or her position with the Village, or an equivalent position with equivalent benefits, pay and other terms and conditions of employment. The participant shall be reinstated at the same pay, benefits, and seniority and subject to all terms and conditions of the position at the time participant went on FMLA leave, and shall be credited with years of service accrued and credited immediately prior to commencement of FMLA leave for purposes of determining benefit levels under the Village’s benefit programs, subject to any present or future restrictions, limitations, or conditions of such benefit programs.
(2) The Village may require periodic reports from a participant on FMLA leave regarding the participant’s status and intent to return to work. If the participant provides a statement of intent to return to work, even if the statement is qualified, entitlement to FMLA leave and maintenance of health benefits will continue. However, if the participant gives an unequivocal notice of intent not to return to work and/or fails to return to work without notice, the obligations of the Village to provide health benefits (except pursuant to COBRA requirements) and to restore the participant to work will end.
(g) Spouses as participants.
(1) Where spouses are both employed by the Village and are otherwise eligible for FMLA leave, the aggregate number of work weeks of FMLA leave to which both may be entitled is limited to twelve workweeks during any twelve-month period for FMLA leave taken under division (a)(1)C. or D. above.
(2) Spouses are limited to a combined total of twenty-six workweeks in a “single twelve-month period” for FMLA leave taken under division (c) above and for FMLA leave taken under division (a)(1)C. or D. above.
(h) Intermittent or reduced FMLA leave.
(1) When medically necessary for the illness of a spouse, child, parent or participant himself or herself, or to care for a covered service member or a qualifying exigency, a participant may take FMLA leave on an intermittent or reduced FMLA leave basis. The total amount of workweeks available to an employee in a twelve-month period, will be based on the type of FMLA leave for which the employee is eligible. When a participant requests such intermittent or reduced FMLA leave schedule, the Village may require that the participant transfer temporarily to an available alternative job position for which the participant is qualified, at equivalent pay and benefits, where such transfer better accommodates recurring periods of FMLA leave of the participant. For FMLA leave that is foreseeable for planned medical treatment, participant must make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the Village, and shall provide wherever possible at least thirty days notice before the date FMLA leave is to begin.
(2) Intermittent or reduced FMLA leave can include such things as doctor appointments for prenatal care, treatment for chronic illnesses, etc.
(3) An employee under intermittent FMLA leave for a long-term condition other than FMLA leave taken under division (c) above, will be required to submit medical recertification every thirty days provided the employee has been absent since the last re-certification was completed.
(4) An employee will also need to submit a medical recertification in the event the employee’s need for leave changes, other than FMLA leave taken under division (c) above, (e.g., a need for more frequent time off or for a longer duration each occasion than stated in the most recent certification).
(i) Misuse or Abuse of FMLA. FMLA leave abuse occurs when an employee uses leave for unauthorized purposes or misrepresents the actual reason for charging an absence to FMLA leave. Abuse is cause for discipline, up to and including dismissal.
(Ord. 10-017. Passed 9-21-10.)