(A) General. The Family and Medical Leave Act of 1993 (FMLA), enacted February 5, 1993, allows for ELIGIBLE employees to request and, if approved, receive up to a total of 12 weeks of unpaid leave during any 12-month period for four circumstances:
(1) Because of the birth of a child of the employee and in order to care for the child;
(2) Because of the placement of a child with an employee for adoption or foster care;
(3) Because a spouse, parent, or child (including biological, adopted, foster and stepchildren) of the employee has a “serious health condition” which requires care by the employee; or
(4) Because the employee suffers from a serious health condition which prevents the employee from being able to perform the functions of his or her position.
(B) Definition. An ELIGIBLE employee is an employee that has been on the town payroll for at least 12 months and has worked at least 1,250 work hours during the 12 months preceding the request for leave.
(C) Requests. Requests are to be made in writing to the employee’s supervisor with approvals as required.
(D) Notice.
(1) In the case of leaves for the birth of a child or adoption, an employee is required to provide not less than 30 days advance notice or as much advance notice as possible of the intent to take leave.
(2) Employees seeking leave for a foreseeable medical treatment for himself or herself or a family member must also give 30 days’ notice or as much notice as possible and, attempt to schedule the treatment so that the leave does not unduly disrupt town operations.
(E) Certification. The town has the right to request that the medical leave be properly certified by the health care provider and the employee is to provide such certification in a timely manner. If an employee requests a leave to care for a family member, the certification must confirm that this is necessary and contain an estimate of the amount of time involved. When intermittent medical leave is sought, the certification must recite the anticipated dates and duration of treatment.
(F) Resignation. Failure to return to work on the determined return to workday will be considered as a resignation by the employee.
(G) Approval/denial of FMLA.
(1) The Clerk-Treasurer shall notify the employee orally or in writing within two business days as to the approval or denial of their FMLA request, and that any sick, personal, or vacation leave will be set off against the leave pursuant to the supervisor’s policy regarding it (see division (H) below).
(2) Oral notice will be followed by written confirmation by payday following.
(3) If the supervisor is late complying with these notice requirements, paid leave may only be set off against FMLA leave prospectively, once notice is given (see division (H) below).
(4) The supervisor shall note the starting and ending dates of leave, reinstatement procedures, and utilization of accrued paid leave.
(5) The supervisor shall send a copy of this written notice to the insurance office. The human resources office shall notify the employee as to the status of insurance coverage and the employee’s contribution, if applicable.
(H) Utilization of accrued paid leave. Employees are required to utilize accrued paid leave for all or part of the FMLA 12-week period. Unpaid FMLA shall be authorized when all eligible accrued paid leaves have been exhausted (sick leave and vacation). Family and medical leave and paid leave, for conditions that qualify under FMLA, run concurrently. The entire 12-week FMLA is not in addition to the paid leave, just any remaining portion after the paid leave time is subtracted.
(I) Leave period.
(1) An eligible employee may take up to 12 workweeks of FMLA during a 12-month period. The 12-month period shall be measured forward from the date the employee's first FMLA begins (for example, an employee whose eligible FMLA begins September 15, 2010 is entitled up to 12 weeks from September 15, 2010 through September 14, 2011).
(2) Employees may request intermittent or reduced leave schedules to accommodate medically necessary treatment in connection with a serious health condition.
(3) Intermittent or reduced leave may not exceed the total hours an employee would have worked during their regular 12-week schedule. If intermittent or reduced leave is approved, the supervisor may require the employee to schedule the leave so as not to unduly disrupt the department operation, or the employee may be placed in alternate positions, which better accommodates the intermittent leave schedule.
(J) Insurance coverage during FMLA.
(1) Employees are entitled to maintain the same health benefits during the FMLA. However, it is the employee’s responsibility to make arrangements through the Human Resources Director for their portion of the contribution of monthly premiums.
(2) Should an employee fail to return to work after his or her FMLA expires, the supervisor may recover from the employee the town’s share of health insurance premiums paid during the period of unpaid FMLA.
(3) Insurance premiums may not be recovered if the employee fails to return to work due to the continuation, recurrence, or onset of a serious health condition of circumstances beyond the employee’s control.
(K) Working while on family and medical leave.
(1) An employee who is self-employed, accepts other employment, or works for any other employer during a family and medical leave, must report such work immediately to the Human Resources Director.
(2) An employee who is self-employed or accepts other employment or works for any other current employer, performing work of a like or similar character or exertion as that which the employee performed for the town, during family medical leave shall be considered to have terminated employment with the town as of the date of such employment began.
(3) Employees described in division (K)(2) above may be required to reimburse the town for the employer-paid portion of group health insurance premium contributions made while the employee was on leave.
(L) Job restoration.
(1) During family and medical leave, every effort will be made by the town to hold an employee’s position open until he or she returns to work.
(2) However, based upon the necessity of continuing operations during an employee’s absence, the town may choose to fill any non-elected position. If the position is filled while an employee is on the FMLA, the town will make every effort to place the employee in an equivalent position, with equivalent pay, benefits, and other terms and conditions of employment. In addition, the position into which the employee is placed will have substantially similar duties.
(3) If an employee’s position is eliminated during the time of family and medical leave, through layoff or restructuring, the employee will not be entitled to return to his or her former or an equivalent position.
(4) The town does not have “light duty” positions, but if a health care provider indicates in writing that an employee is not able to perform all the essential functions of the position, but that the employee may perform his or her job with restrictions, the town will make every effort to cooperate with a doctor’s written orders for restrictions placed on an employee in order for the employee to perform meaningful and necessary work the town needs done. Arrangements for restricted work must be made in writing and approved by the supervisor in advance of an employee’s return.
(5) The town does have a “return to work” policy. Please contact the Human Resources Director or Safety Director for details of this policy.
(6) Employees whose FMLA was for their own personal medical conditions must, prior to reinstatement, submit a medical certification to the Human Resources Director as to their ability to return to work, subject to a second medical opinion as deemed necessary by the supervisor, or a third medical opinion as provided in the FMLA.
(7) Employees on FMLA 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 positions, shall be considered to have voluntarily terminated employment as the date of the release.
(8) 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 required under the ADA, and the town will comply with ADA.
(M) Definitions under Family and Medical Leave Act.
CHILD. A son or daughter, including a child 18 years or over who is incapable of self-care because of a mental or physical disability.
FOSTER CARE. Placement of a child with the employee through a formal agreement for substitute care requiring state action, rather than an informal arrangement to take care of another person’s child.
PARENT.
(a) A biological parent or an individual who stands in the place of a parent to the employee (in loco parentis).
(b) IN-LAWS are not included in the definition of PARENT.
SERIOUS HEALTH CONDITION.
(a) An illness, injury, impairment, or physical/mental condition that involves a period of treatment that requires absence from employment for more than three calendar days and involves care by a health care provider.
(b) Also includes continuing treatment of chronic or long-term incurable conditions and prenatal care.
(c) The Clerk-Treasurer’s office will assist with any questions in determining a SERIOUS HEALTH CONDITION under the FMLA.
SPOUSE.
(a) A husband or wife.
(b) Unmarried domestic partners do not qualify for FMLA to care for their partner.
(N) Absences resulting from work-related injury or illness. An absence resulting from a work-related injury or illness (workers’ compensation) will be considered as FMLA leave time if the employee has worked for the town for at least 12 months and for a minimum of 1,250 hours in the immediately preceding calendar year (not including holidays). The employee will be mailed the notification that they are being placed on FMLA during their absence from work while on workers’ compensation.
(O) FMLA and Armed Forces.
(1) General. On January 28, 2008, President Bush signed into law H.R. 4986, the National Defense Authorization Act for FY 2008, which amends the Family and Medical Leave Act of 1993 (FMLA) to permit a “spouse, son, daughter, parent, or next of kin” to take up to 26 workweeks of leave to care for 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 outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.” Under the first of these new military family leave entitlements, eligible employees who are family members of covered service members will be able to take up to 26 workweeks of leave in a “single 12-month period” to care for a covered service member with a serious illness or injury incurred in the line of duty on active duty.
(2) Qualifying exigency leave. The second new military leave entitlement helps families of members of the National Guard and Reserves manage their affairs while the member is on active duty in support of a contingency operation. This provision makes the normal 12 workweeks of FMLA job-protected leave available to eligible employees with a covered military member serving in the National Guard or Reserves to use for “any qualifying exigency” arising out of the fact that a covered military member is on active duty or called to active-duty status in support of a contingency operation. The department’s final rule defines qualifying exigency by referring to a number of broad categories for which employees can use FMLA leave:
(a) Short notice deployment;
(b) Military events and related activities;
(c) Childcare and school activities;
(d) Financial and legal arrangements;
(e) Counseling;
(f) Rest and recuperation;
(g) Post-deployment activities; and
(h) Additional activities not encompassed in the other categories, but agreed to by the employer and employee.
(3) Definitions. For the purposes of this division (O), the following definitions shall apply unless the context clearly indicates or requires otherwise.
ACTIVE DUTY. Duty under a call or order to active duty under a provision of law referred to in 10 U.S.C. § 101(a).
COMBINED LEAVE TOTAL.
1. During the single 12-month period described in division (O)(1), an eligible employee shall be entitled to a combined total of 26 workweeks of leave.
2. The number of workweeks of leave to which both a husband and wife (if they are employed by the town) under this leave may be limited to 26 workweeks during the single 12-month period.
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 outpatient status, or is otherwise on the temporary disability retired list, for a SERIOUS INJURY OR ILLNESS.
NEXT OF KIN. Used with respect to an individual, means the nearest blood relative of that individual.
OUTPATIENT STATUS. With respect to a covered service member, means the status of a member of the Armed Forces assigned to:
1. A military medical treatment facility as an outpatient; or
2. A unit established for the purpose of providing command and control of members of the Armed Forces receiving medical care as outpatients.
SERIOUS INJURY OR ILLNESS. In the case of a member of the Armed Forces, including a member of the National Guard or Reserves, means an injury or illness incurred by the member in line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the members office, grade, rank, or rating.