EMPLOYEE’S GUIDE TO THE FEDERAL FAMILY AND MEDICAL LEAVE ACT OF 1993 

Q.                 What is the Federal Family and Medical Leave Act?

The Family and Medical Leave Act of 1993 (FMLA) gives an eligible employee up to twelve weeks of leave for the birth or placement of a child for adoption or foster care, to care for the employee’s spouse, child or parent with a serious health condition; and for a serious health condition that makes the employee unable to perform the essential functions of the employee’s job.  One (1) week of leave is equivalent to the number of hours worked per week.

Q.                 Who is eligible?

An employee is eligible if he/she has been employed by the District for at least twelve (12) months and has been employed for at least 1,250 hours of service during the twelve (12) month period immediately preceding the commencement of the leave. 

Q.                 What do spouse, parent and son or daughter mean for purposes of qualifying to take FMLA leave?

Spouse means husband or wife as defined or recognized under state law for purposes of marriage.  Generally unmarried domestic partners do not qualify for family leave to care for their partner.

Parent means biological parent of an individual responsible for the day-to-day care of the child. Parent may also be someone who acted as a parent of an employee when the employee was under the age of 18.  The term does not include “parents-in-law”.

Son or daughter means a biological, adopted, or foster child, stepchild, legal ward or a child of a person having day-to-day care for a child under 18 years of age.

Son or daughter includes a child eighteen years of age or older who is “incapable of self-care because of a mental or physical disability”.

“Incapable of self-care” means that the child requires active assistance or supervision to provide daily self-care in several of the “activities of daily living”.  Activities of daily living include adaptive activities such as activities of caring appropriately for one’s grooming or hygiene, bathing, dressing, eating, cooking, shopping, taking public transportation, paying bills, maintaining a residence, using telephones or directories, using a post office, etc.

“Physical or mental disability” means a physical or mental impairment that substantially limits one or more life activities of the individual.

Q.                 What is a “serious health condition”?

A serious health condition means an illness, injury, impairment, or physical or mental condition that involves:

1.       any period of incapacity or treatment in connection with or subsequent to inpatient care in a hospital, hospice or residential medical facility.

2.       any period of incapacity requiring absence from work, school or other regular daily activities, or more than three calendar days, that also involves continuing treatment by or under the supervision of a health care provider.

3.       continuing treatment by (under the supervision of) a health care provider for a chronic or long-term health condition that is incurable or so serious that if not treated, would likely result in a period of incapacity for more than three (3) calendar days; or for prenatal care. 

Q.                 How is “continuing treatment by a health care provider” defined?

Continuing treatment by a health care provider means one or more of the following:

1.       The employee or family member in question is treated two or more times for the injury or illness by a health care provider.  Normally this would require visits to a health care provider or to a nurse or to a physician’s assistant under the direct supervision of the health care provider;

2.       The employee or family member is treated for injury or illness two or more times by a provider of health care services under orders of, or on referral by, a health care provider; or is treated for the injury or illness by a health care provider on at least one occasion which results in a regime of continuing treatment under the supervision of a health care provider to resolve the health condition;

3.       The employee or family member is under the continuing supervision of, but not necessarily being actively treated by a health care provider due to a long-term or chronic condition or disability, which cannot be cured.  Examples include persons with Alzheimer’s; persons who have suffered a severe stroke or persons in the terminal stages of a disease who may not be receiving active medical treatment.

Voluntary or cosmetic treatments (such as most treatments for orthodontia or acne), which are not medically necessary, are not “serious health conditions” unless inpatient hospital care is required.  Treatments for allergies or stress or for substance abuse are serious health conditions if all the conditions of the regulations are met.  Prenatal care is included as a serious health condition.  Routine preventative physical examinations are excluded.

 Q.        What does it mean, “employee is unable to perform the functions of his/her position”?

An employee is unable to perform the functions of the position where the health care provider finds that the employee is unable to work at all or is unable to perform the essential functions of the employee’s position within the meaning to the Americans With Disabilities Act (ADA).  An employee who must be absent from work to receive medical treatment for a serious health condition is considered to be unable to perform the essential functions of the position during the absence for treatment.  For a copy of the essential functions of your position, contact your immediate supervisor or the Director of Human Resources.

 Q.                 What does it mean that an employee is “needed to care for” a family member?

“Needed to care for” includes both physical and psychological care.  The terms also include 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.

 Q.                 When may intermittent or reduced leave be utilized?

Intermittent or leave on a reduced schedule may be utilized when there is a qualifying medical need for leave and can be best accommodated through an intermittent or reduced leave schedule.  An employee needing intermittent or reduced leave must attempt to schedule his/her leave so as not to disrupt the District’s operations.

Intermittent or reduced schedule leave may be used by an employee not only in the situation where the family member’s condition is intermittent, but also where the employee is needed only intermittently, such as where other care is normally available or care responsibilities are shared by another member of the family or a third party.

Q.           What notice does an employee have to give the District when the need for FMLA is foreseeable?

You must provide the District with at least 30 days advance notice if the leave if foreseeable.  If leave is not foreseeable, notice must be given as soon as practicable.

An employee must provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, including the anticipated time and duration of leave. Whenever possible the employee is asked to request FMLA leave in writing to the immediate supervisor who will be responsible for following up on the request for leave.

When planning medical treatment, the employee should consult with the employer before scheduling treatment and make a reasonable effort to schedule the leave so as not to unduly disrupt the District’s operations, subject to the approval of the health care provider.  The District may, for justifiable cause, require an attempt to reschedule treatment subject to the availability and approval of the health care provider.

In the case of a request for medically necessary intermittent or reduced schedule leave, the employee must advise the District, upon request, of the reasons why the intermittent or reduced leave schedule is necessary and the schedule for treatment, if applicable.  The District and the employee shall attempt to work out a schedule that meets the employee’s needs without unduly disrupting the District’s operations, subject to the approval of the health care provider.  The District may transfer an employee to a position that better accommodates the intermittent or reduced schedule leave.

 Q.                 What is the consequence of failing to provide required notification to the District?

If an employee fails to give thirty (30) days notice for foreseeable leave, with no reasonable excuse for the delay, the District may deny the taking of FMLA leave for up to thirty (30) days after the date the employee provides notice to the District of the need for leave to locate a satisfactory replacement.

 Q.       When must an employee provide a medical certificate to support a FMLA leave request?

The employee must provide medical certification of a serious health condition on the form(s) prescribed by the District.  The employee will be provided with a medical certification form by his/her supervisor or the Director of Human Resources.  When requesting medical, which is foreseeable, the employee has fifteen (15) calendar days in which to provide the requested medical certification.

Failure to provide the medical certification or failure to provide adequate certification may result in denial of the FMLA leave request or delay of the leave request until adequate certification is received.

An employee, in the case of a medical emergency, must provide a completed medical certification form within a reasonable time under the pertinent circumstances.  Failure of the employee to do so will allow the employer to deny continuation of the leave. 

Q.           What can the District do if it questions the adequacy of a medical certificate?

If the employee submits a complete certification form signed by a health care provider, the District may not request additional information from the employee’s health care provider.  However, if questions arise concerning the adequacy of a medical certificate, the District may require the employee to obtain a second opinion from a health care provider selected by the District and at the District’s expense.

If the second opinion is in disagreement with the original medical certification, then the District may request a third opinion.  In this case, both the District and the employee must act in good faith to reach agreement on whom the health care provider performing the third opinion will be.  This third opinion will supersede the two previous medical certifications.  The District is responsible for the expense of the third opinion.

The District may request re-certification at any reasonable interval but not more often than every thirty days unless:

1.      the employee requests an extension of leave;
2.       circumstances described by the original certification have changed significantly;
3.       the District receives information that casts doubt of the continuing validity of the certification;
4.       the employee indicates that he/she is unable to return to work because of the continuation, reoccurrence, or onset of a serious health condition.

Q.                 Will a medical certificate be required to return to work?

If an employee is on FMLA leave for his/her own serious health condition, the employee will be required to present certification from his/her health care provider indicating the he/she is able to resume work (perform the essential functions of his/her job with or without accommodations).  The fitness for duty certification is only with regards to the particular health condition that causes the employee to need FMLA leave.

The District may require the employee to periodically report his/her status and intention to return to work.  The District may deny restoration to employment until he/she submits the required fitness for duty certification.

Q.                 What special FMLA rules apply to employees of schools?

If an employee is employed principally in an instructional capacity and requests a leave that is foreseeable based upon planned medical treatment and would be on leave for greater than twenty percent (20%) of the total number of working days in the period in which the leave would extend, the District may require the employee to elect either:

1.       to take leave for periods of a particular duration not to exceed the duration of a planned medical treatment; or

2.   to transfer temporarily to an available alternative position offered by the District for which the employee is qualified and that has equal pay and benefits and better accommodates reoccurring periods of leave than the employee’s regular position.

If the employee is principally employed in an instructional capacity and is requesting FMLA leave

that begins more that five (5) weeks prior to the end of the semester, the District may require the employee to continue taking leave until the end of the semester if:

1.       the leave is of at least three (3) weeks duration and

2.       the return to employment would occur during the three (3) week period before the end of the semester.

If the employee is employed principally in an instructional capacity and is requesting FMLA leave because of the birth, adoption or foster care placement of a son or a daughter or to care for a spouse, son or daughter or parent with a serious health condition during the period that commences five (5) weeks prior to the end of the academic term, the District may require the employee to continue taking leave until the end of the semester if:

1.   the leave is greater than two (2) weeks duration; and

2.   the return to employment would occur during the two (2) week period before the end of the semester.

If the employee is employed principally in an instructional capacity and is requesting FMLA leave because of the birth, adoption or foster care placement of a son or a daughter or to care for a spouse, son, daughter or parent with a serious health condition during the period that commences three (3) weeks prior to the end of the semester and the leave is greater than five (5) working days, the District may require the employee to continue to take leave until the end of the semester.

 Q.        When is FMLA exhausted?

            An employee is entitled to take up to twelve (12) weeks of FMLA leave in any twelve (12) month

period.  The twelve (12) month period is determined by the District’s fiscal year, July 1 through June 30.

Q.        How much leave may a husband and wife working for the District take? 

A married couple working for the District may each take twelve (12) weeks of FMLA leave for the birth or placement of a child.

 Q.        Does FMLA leave have to be taken all at once or can it be taken in parts?

FMLA leave may be taken intermittently on a reduced leave schedule under certain circumstances.  For the birth or placement of a child, intermittent or reduced leave schedule leave may only be taken if the District agrees.  When  leave is taken for a sick family member or for the employee’s own serious health condition, leave may be taken intermittently or on a reduced leave schedule when medically necessary.

There is no limit on the size of an increment of leave when an employee takes intermittent or leave on a reduced leave schedule except that the District may limit leave increments to the shortest period of time that the district’s payroll system uses to account for absences or use of leave.

Only the amount of leave actually taken will be counted toward the twelve (12) weeks” entitlement.  The superintendent’s approval will be necessary for intermittent leave or leave in a reduced schedule, which is not recommended on the medical certificate but requested by the employee.

Q.        May the District transfer an employee to an “alternate position” to accommodate intermittent or reduced leave schedule?

For intermittent or reduced schedule leave that is foreseeable based on planned medical treatment, the District may transfer the employee temporarily to an available alternative position for which the employee is qualified and which better accommodates for reoccurring periods of leave. 

Although the alternative position must have equivalent pay and benefits, the position does not have to have equivalent duties.  This District may also transfer the employee to a part-time position with the same hourly rate of pay and benefits.  The District will not eliminate benefits which otherwise would not be provided to part-time employees, but may proportionally reduce earned benefits, such as vacation, where such reduction is normally made for part-time employees. 

Q.        Is FMLA paid or unpaid?

Generally FMLA leave is unpaid.  The District requires that an employee utilize accrued reimbursable sick leave while on FMLA leave due to the employee’s illness or injury or, to the extent permitted by the Collective Bargaining Agreement, for the birth or placement of a child for adoption or foster care, to care for the employee’s spouse, child or parent with a serious health condition.  For example, an employee who has earned or accrued reimbursable sick leave must substitute all or part of the reimbursable sick leave for the unpaid FMLA leave.  Paid vacation or paid personal leave may be utilized at the employee’s request.

Q.        What benefits is an employee entitled while using FMLA leave?

The District must maintain an employee’s group health plan coverage on the same conditions as coverage would have been provided if the employee had been continuously employed during the entire leave period.  The District’s existing rules for payment of health benefit premiums while on leave without pay will be followed.  Another system voluntarily agreed to between you and the Director of Business Services may be used, which may include prepayment of premiums (e.g., through increased payroll deduction when the need for the FMLA leave is foreseeable.)

 Q.        What are the consequences if the employee fails to make timely health plan premium payments?

An employee has a thirty (30) day grace period after the agreed upon date for payment of premiums without affecting the employee’s health insurance coverage.  If the employee does not make the payment within the thirty (30) day grace period, the District will pay the employee’s share of the health benefit premiums.  The District will recover the additional payments after the employee has returned to work.

 Q.        May the District recover health benefit premiums it paid for maintaining the employee’s coverage during FMLA leave?

If the employee fails to return to work for the reasons unrelated to FMLA leave or not for circumstances beyond the employee’s control, health insurance premiums paid by the District during the period of FMLA leave are a debt owed by the employee to the District.  An employee who returns to work for at least thirty (30) calendar days is considered to have “returned” to work.  The District may recover its share of health insurance premium through deduction of any sums due from the employee.  The District, if necessary, may initiate legal action against the employee to recover unpaid health insurance premiums.  The District may not, however, recover health insurance premiums during periods of paid leave.

 Q.        What are the employee’s rights to return to work from FMLA leave?

The employee must be returned to the same or an equivalent employment position having equivalent benefits, pay and other terms and conditions of employment.  The position must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.

If the employee is no longer qualified for the position, you must be given a reasonable opportunity to re-qualify for the work.  The employee’s right to accrue any additional benefits or seniority may be impacted by unpaid FMLA leave (consult District personnel policies or negotiated labor contract). 

Q.        Are there any limitations on an employer’s obligation to reinstate the employee?

            The employee is entitled to no greater right to reinstatement or to any other benefit or condition of employment than if the employee had been continuously employed during the FMLA leave.  The District has the burden of showing that the employee would not otherwise had been employed at the time of reinstatement as requested in order to deny restoration to employment.

If the employee was hired for a specific term or to perform a discrete project, the District has no obligation to restore the employee if the employment term or project is over and the District would not otherwise have continued to employ the person. 

Q.        When may an employer deny restoration of a key employee to the same or equivalent employment position?

            A key employee is a salaried, eligible employee who is among the highest 10% of all employees

(both salaried and non-salaried) eligible and ineligible who are employed by the employer.  In determining which employees are among the highest paid 10%, year to date earnings as of the date leave is requested are considered.  No more than 10% of the employees may be “key.”

The District may deny restoration to his or her position to any eligible key employee if:

1.   such a denial is necessary to prevent substantial and grievous economic injury to the operations of the District;

2.   the District notifies the employee of the intention of the District to deny restoration on this basis at the time the District determines such injury would occur; and

3.   in any case in which the leave has commenced, the employee elects not to return to employment after receiving such notice. 

Q.     If an employee exercises his/her FMLA leave rights, how is he/she protected?

The District may not interfere with the exercise of an employee’s rights to FMLA leave, not only by refusing to authorize FMLA leave, but also by discouraging an employee from utilizing such leave.  An employer may not discriminate against an employee who uses FMLA leave.

If an employee believes that his/her rights under FMLA have been violated, the employee may file or have another person file on his/her behalf, a written complaint with the Wage and Hour Division of the Department of Labor.  Another option is for the employee to file a private lawsuit within two years after the last action, which the employee contends, was in violation of the act, or three years if the violation was willful. 

Q.        Under what circumstances can the District refuse to provide FMLA or reinstatement to eligible employees?

1.   If an employee fails to give timely advance notice when the need for FMLA leave is foreseeable, the District may deny the taking  of FMLA leave until thirty (30) days after the date the employee provides notice to the District.

2.   If an employee fails to provide in fifteen (15) calendar days, a requested medical certification to substantiate the need for foreseeable FMLA leave due to a serious health condition, the District may deny FMLA leave until the employee submits this certificate.  If an employee, on unforeseen or emergency leave, fails to provide the medical certification within a reasonable time under the pertinent circumstances, the employer may deny the employee’s continuation of leave.

3.   If an employee fails to provide a requested fitness for duty certification to return to work, the District may deny restoration until the employee submits this certificate.

4.   An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period.

5.   If an employee unequivocally advises the District that he/she does not intend to return to work, the employment relationship is deemed terminated, and the employee’s entitlement to reinstatement, continued leave, and employment benefits ceases.  The District may require an employee on FMLA leave to report periodically on the employee’s status and intention to return to work.

6.   An employee who fraudulently obtains FMLA leave from the District is not protected by FMLA job restoration or maintenance of health benefits provisions.

Q.        How does the Federal Family and Medical Leave Act affect state laws, District master contracts and personnel policies?

Nothing  in the federal law supersedes any greater benefits already required by state law or provided by the employer.  Conversely, any state law or employer benefit program may not diminish the rights established by the Federal Act.

YOUR RIGHTS

under 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.  Employees are eligible if they have worked for a covered employer for at least one year, and for 1,250 hours over the previous 12 months, and if there are at least 50 employees within 75 miles.

REASONS FOR TAKING LEAVE:  Unpaid leave must be granted for any of the following reasons:

Þ     to care for the employee’s child after birth, or placement for adoption or foster care.

Þ     to care for the employee’s spouse, son or daughter, or parent, who has a serious health condition; or

Þ     for a serious health condition that makes the employee unable to perform the employee’s job.

At the employee’s or employer’s option, certain kinds of paid leave may be substituted for unpaid leave.

ADVANCE NOTICE AND MEDICAL CERTIFICATION:  The employee may be required to provide advance leave notice and medical certification.  Taking of leave may be denied if requirements are not met.

Þ     The employee ordinarily must provide 30 days advance notice when the leave is “foreseeable.”

Þ     An employer may require medical certification to support a request for leave because of a serious health condition, and may require second or third opinions (at the employer’s expense) and a fitness for duty report to return to work.

JOB BENEFITS AND PROTECTIONS

Þ     For the duration of FMLA leave, the employer must maintain the employee’s health coverage under any “group health plan.”

Þ     Upon return from FMLA leave, most employees must be restored to their original or equivalent positions with equivalent pay, benefits, and other employment terms.

Þ     The use of FMLA leave cannot result in the loss of any employment benefit that accrued prior to the start of an employee’s leave.

UNLAWFUL ACTS BY EMPLOYERS:  FMLA makes it unlawful for any employer to:

Þ     interfere with, restrain, or deny the exercise of any right provided under FMLA;

Þ     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.

ENFORCEMENT:

Þ     The U.S. Department of Labor is authorized to investigate and resolve complaints of violations.

Þ     An eligible employee may bring a civil action against an employer for violations.

FMLA does not affect any Federal or State law prohibiting discrimination, or supersede any State or local law or collective bargaining agreement which provides greater family or medical leave rights.

FOR ADDITIONAL INFORMATION:  Contact the nearest office of the Wage and Hour Division, listed in most telephone directories under U.S. Government, Department of Labor.