SECTION 6.90
(A) FAMILY AND MEDICAL LEAVE ACT POLICY
Last Update: 3/07
I. BACKGROUND
The Family and Medical
Leave Act (FMLA) was signed into law on February 5, 1993. The Act guarantees employees the right to
take leave without loss of employment or status for the birth, adoption, or
foster placement of a son or daughter, the employee’s own serious illness, or
to care for a seriously ill son, daughter, spouse or parent. The following information is intended to assist
you in administering the FMLA. The State
uses as guidance, Title 29, Part 825 of the Code of Federal Regulations to
implement this policy.
II. EFFECTIVE DATE
A. FMLA leave was effective for noncontract employees on August
5, 1993 and for contract-covered employees on February 5, 1994.
B. Only leave taken on or after the effective date of the Act
is considered FMLA leave.
III. DEFINITIONS
Adoption means a legal process whereby a child becomes a permanent member of a
family into which he or she was not born.
Continuing treatment means a period of incapacity of more than three consecutive calendar
days, and any subsequent treatment or period of incapacity relating to the same
condition that involves: two or more visits to or treatments by a health care
provider; or one visit that results in a planned course of treatment; or any
period of incapacity due to pregnancy or prenatal care; or any period of
incapacity due to a chronic serious health condition.
Employer means the State of
Essential functions means those job functions that an individual must be able to perform in
order to hold a position. Essential
functions within the meaning of the Americans With Disabilities Act focus on
what must be done and not on how they are accomplished.
Health Care Provider means a licensed doctor of medicine or osteopathy or “any other person
determined by the Department of Labor (DOL) to be capable of providing health
care services.” The DOL has determined
that the following qualify as health care providers:
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podiatrists |
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dentists |
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clinical psychologists |
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optometrists |
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nurse practitioners (if authorized by state law) |
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nurse midwives (if authorized by state law) |
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clinical social workers |
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chiropractors that are authorized to practice in
their state or “other persons capable of providing health care services.”
[their certifications, however, must be limited to treatment consisting of
manual manipulation of the spine to correct subluxation as demonstrated by an
x-ray] |
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foreign licensed health care providers authorized
to practice in that country |
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Christian Science practitioners listed with the
First Church of Christ, Scientist in |
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any health care provider from which the State’s
health insurance plans will accept certification that a serious health
condition exists |
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a health care provider listed above who practices
in a country other than the |
Incapable of self-care means that the individual requires active
assistance or supervision to provide daily self-care in several of the
“activities of daily living” or “instrumental activities of daily living.” Activities of daily living include adaptive
activities such as caring appropriately for one’s grooming and hygiene,
bathing, dressing and eating.
Instrumental activities of daily living include cooking, cleaning,
shopping, taking public transportation, paying bills, maintaining a residence,
using a telephone and directory, using a post office, etc.
Intermittent Leave means leave taken in separate periods of time due to a single illness
or injury, rather than for one continuous period of time, and may include leave
taken on an occasional basis for medical appointments, or leave taken several
days at a time spread over a period of several months, such as for
chemotherapy.
Medically Necessary means that 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.
Needed to care for a spouse, son, daughter or parent means both physical and
psychological care. It includes
situations where, because of a serious health condition, a parent 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 to a seriously ill son, daughter, parent
or spouse with a serious health condition who is receiving inpatient or home
care. The term also includes situations
where an 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
another medical care facility or nursing home.
Parent means a biological parent or an individual who stands or stood “in loco
parentis” to an employee when the employee was a child. Persons “in loco parentis” include persons
with day-to-day responsibilities to care for and financially support a child,
regardless of whether the person has a legal or biological relationship to the
child. The term “parent” does not
include parents “in-law.”
Physical or Mental Disability means a physical or mental impairment that
substantially limits one or more major life activities of an individual. The American With Disabilities Act, Title 42
United States Code section 12101 et sec. further defines the terms.
Reduced Leave Schedule means a leave schedule that reduces the usual
number of hours per workweek, or hours per workday of an employee.
Serious Health Condition means an illness, injury, impairment, or physical
or mental condition that involves one of the following:
1. Hospital Care
Inpatient care (i.e., an overnight
stay) in a hospital, hospice, or residential medical care facility, including
any period of incapacity 1 or subsequent treatment in connection
with or consequent to such inpatient care.
2. Absence Plus
Treatment
(a) A period of incapacity 1 of more than three consecutive calendar days
(including any subsequent treatment or period of incapacity 1
relating to the same condition), that also involves:
(1) Treatment
2 two or more times by a
health care provider, by a nurse or physician's assistant under direct
supervision of a health care provider, or by a provider of health care services
(e.g., physical therapist) under orders of, or on referral by a health care
provider; or
(2) Treatment
2 by a health care provider on
at least one occasion which results in a
regimen of continuing treatment 3 under the supervision of the
health care provider.
3. Pregnancy
Any
period of incapacity due to pregnancy,
or for prenatal care.
4. Chronic Conditions
Requiring Treatments
A chronic condition
which:
(1) Requires periodic visits for treatment by a health care provider, or by a
nurse or physician’s assistant under direct supervision of a health care
provider;
(2) Continues over an extended period of time (including recurring episodes of a single
underlying condition); and
(3) May cause episodic rather than a continuing period of incapacity 1 (e.g.,
asthma, diabetes, epilepsy, etc.).
5. Permanent/Long-term
Conditions Requiring Supervision
A
period of incapacity 1
which is permanent or long-term due
to a condition for which treatment may not be effective. The employee or family
member must be under the continuing
supervision of, but need not be receiving active treatment by, a health care
provider. Examples include
Alzheimer’s, a severe stroke, or the terminal stages of a disease.
6. Multiple
Treatments (Non-Chronic Conditions)
Any
period of absence to receive multiple
treatments 2 (including any period of recovery therefrom) by a
health care provider or by a provider of health care services under orders of,
or on referral by, a health care provider, either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity 1 of more than
three consecutive calendar days in the absence of medical intervention or
treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis
(physical therapy), kidney disease (dialysis).
_______________________
1 “Incapacity,” for purposes of FMLA, is
defined to mean inability to work, attend school or perform other regular daily
activities due to the serious health condition, treatment therefore, or
recovery therefrom.
2 Treatment
includes examinations to determine if a serious health condition exists and
evaluations of the condition. Treatment
does not include routine physical examinations, eye examinations, or dental
examinations.
3 A regimen of
continuing treatment includes, for example, a course of prescription medication
(e.g., an antibiotic) or therapy requiring special equipment to resolve or
alleviate the health condition. A
regimen of treatment does not include the taking of over-the counter
medications such as aspirin, antihistamines, or salves; or bed-rest, drinking
fluids, exercise, and other similar activities that can be initiated without a
visit to a health care provider.
Examples of a serious
health condition include heart attack, many heart conditions, most cancers,
stroke, back conditions requiring extensive therapy or surgery, spinal injury,
pneumonia, pregnancy, miscarriage, complications or illness relating to
pregnancy, the need for prenatal care, childbirth and recovery from childbirth,
severe allergies, migraine headaches or stress.
Substance abuse also may be a serious health condition. However, FMLA leave may only be taken for
treatment of substance abuse by a health care provider or by a provider of
health care services on referral by a health care provider. An absence because of the employee’s use of the substance, rather
than for treatment, does not qualify for FMLA leave.
Transitory or minor health
conditions for which treatment and recovery are very brief do not constitute
serious health conditions for the purposes of the FMLA. Ordinarily, unless complications arise, the
common cold, the flu, ear aches, upset stomach, minor ulcers and headaches,
other than migraines, are examples of conditions that do not meet the definition
of a “serious” health condition.
Likewise, cosmetic treatment, such as most treatments for acne or
orthodontia which are elective and not medically necessary do not constitute
serious health conditions. Additionally,
routine physical examinations are specifically excluded from the definition of
a serious health condition.
Son or daughter means a biological, adopted or foster child, a stepchild, legal ward,
or a child of a person standing “in loco parentis,” who is either under the age
of 18, or age 18 or older if “incapable of self-care because of a mental or
physical disability,” as defined in Title 29, Part 825, Section 113 of the Code
of Federal Regulations.
Spouse means a husband or wife as defined or recognized under state law in the
state where the employee resides for purposes of marriage, including common law
marriage in states where it is recognized.
IV. ELIGIBILITY
A. Any employee who has been employed for
at least 12 months and has worked for at least 1,250 hours in the previous 12
month period is eligible.
1. The 12 months that the employee must have been employed need
not be consecutive. If the employee has
been maintained on the payroll for any part of a week, including any periods of
paid sick, vacation, or unpaid leave during which other benefits or
compensation are provided by the employer (e.g., workers’ compensation, group
health benefits, etc.), the week counts as a week of employment. Reserve and National Guard troops may count
their active military service as time worked in order to establish eligibility
for FMLA.
2. Whether an employee has worked the minimum 1,250 hours of
service is determined according to the principles of the Fair Labor Standards
Act for determining compensable hours.
Hours worked is calculated based upon hours actually worked, not hours
in pay status. The previous 12 month
period is defined as the 12 months immediately preceding the date FMLA leave is
to begin.
3. The 1,250 hours may be worked intermittently, and may
involve multiple job classes.
B. Eligibility determinations will be made as of the date that
the FMLA leave is to begin. However, employees who are not eligible initially
will become eligible as soon as they meet the criteria in A (1, 2 and 3).
V. NOTICE REQUIRED
A. When an employee provides initial
notification of the need for an absence, the employee must provide sufficient
information for the employer to determine whether the absence can properly be
considered a FMLA qualifying event. The
failure to follow sick leave policies could be a basis for discipline. All health care provider certifications must
be on a “Certificate of Health Care Provider” (CFN-552-0610) form. If the
employee qualifies for Workers’ Compensation benefits, his or her medical
documentation will be accepted for FMLA purposes.
B. An employee must provide the employer
with not less than 30 calendar days notice of his or her intention to take
foreseeable FMLA leave. In situations
involving birth, adoption, foster placement or planned medical treatment for an
illness, the employee must provide notice within two work days, or as soon as
practicable, after the employee learns
of the need for leave. In unforeseen
circumstances, however, the employee must provide notice as soon as
practicable, either orally or in writing.
Untimely requests or failure to provide mandatory information to the
employer may result in delay or denial of the FMLA leave (see, VI. Approval Criteria, para. F).
C. When the employee is unable to provide
notice because of his or her illness or injury, notice may be given by a family
member or a spokesperson as soon as practicable.
D. The employer may require compliance
with published leave procedures. FMLA
leave, however, cannot be denied for an employee’s failure to comply with
published leave procedures that are more stringent than FMLA requirements.
E. The employer will make a FMLA
designation or tentative designation based on an oral notification containing
sufficient information to make a FMLA eligibility determination.
F. The employer will provide an employee
with information pertaining to his or her eligibility for FMLA leave should the
employee appear not to understand his or her rights and obligations under the
Act.
G. The employer will notify the employee
using the “Employer Family and Medical Leave Act Response Form” (CFN 552-0627)
within two work days.
H. An employee may not be required to take
more FMLA leave than necessary to address the circumstances that precipitated
the need for leave.
VI. APPROVAL CRITERIA
A. FMLA leave will be designated for the
birth, adoption or foster placement of a son or daughter, or to care for a son,
daughter, spouse, or parent with a serious health condition.
1. The birth, adoption, or foster placement must be within 12
months of the date FMLA leave is to begin.
2. The son or daughter must be under 18 years of age, unless
incapable of self-care because of a physical or mental disability.
B. FMLA leave will be designated for the
employee’s own serious health condition that renders the employee unable to
work at all or perform any one of the essential functions of his or her job.
C. The employee, family member, or
spokesperson must complete a “State of
D. Every employee will be given the opportunity
to get medical certification for the FMLA leave. The employee will be provided with the
“Certification of Health Care Provider” (CFN 552-0610) form. An employee can be disciplined for failing to return the appropriate
medical certification. If the employer
requests medical certification for an absence, the employer must also advise
the employee of the anticipated consequences of an employee’s failure to
provide adequate certification. Medical
certification shall be obtained and returned to the employer within 15 calendar
days of the request or upon return to work from an absence that may qualify as
FMLA leave (absent extenuating circumstances).
It is the employee’s responsibility to pay the fee for completion of the
medical certification and travel costs (if applicable). If second or third opinions are required, the
employer is responsible for the costs.
E. The health care provider must complete
the “Certification of Health Care Provider” (CFN 552-0610) form to satisfy the certification requirement when
the request for leave is for self-care or a family member’s serious health
condition. Medical confirmation is
required except in the case of birth, adoption, or foster placement.
F. If leave is taken for a FMLA reason but the employer is not
aware of the reason and the employee desires that the leave be counted as FMLA
leave, the employee must notify the employer within two business days of
returning to work of the reason for the leave. In the absence of such timely
notification by the employee, the employee may not subsequently assert FMLA
protection for the absence.
G. If the employer has a reasonable basis
to know that leave is taken for a FMLA qualifying reason, the employer will
designate the leave as FMLA leave even if the employee does not desire the
leave to be designated as such.
H. An employee who fraudulently obtains
FMLA leave from the employer is not protected by FMLA’s job restoration or
maintenance of health benefits provisions.
VII. LEAVE ENTITLEMENT
A. An employee is entitled to 12 weeks of
FMLA leave in a fiscal year on either a continuous, intermittent, or reduced
leave schedule basis. This leave may be
paid or unpaid (see Section VIII).
B. When FMLA leave is taken intermittently
or on a reduced leave schedule, full-time employees are entitled to 480 hours
of leave in a fiscal year. There is no
limit on the size of an increment of leave when an employee takes intermittent
leave or leave on a reduced leave schedule.
However, an employer may limit leave increments to the shortest period
of time that the employer’s payroll system uses to account for absences or use
of leave provided it is one hour or less.
C. Hours for part-time employees are
prorated based on the average number of hours worked weekly during the previous
six months of state employment. For
example, if the average weekly hours worked by a part-time employee for the
previous 6 months were 20 hours, he or she is entitled to a maximum of 240
hours (12 weeks times 20 hours) of FMLA leave in a fiscal year.
D. If an employee’s health care provider
certifies that an intermittent or reduced work schedule is “medically
necessary,” approval of the request is mandatory. A brief description of the employee’s course
of treatment that is planned by the health care provider is required for
certification of intermittent or reduced work schedules. Any adjusted schedule may end at the
expiration of the FMLA leave entitlement.
E. If an intermittent or reduced leave
schedule is necessary and the leave is based on a planned course of medical
treatment, the employer may temporarily assign an employee to another position,
or alter his or her current position during the period that the leave is
required to better accommodate recurring periods of leave. The assignment or position altering cannot
result in a loss of pay or benefits for the employee on an intermittent or
reduced work schedule. Assignment of the
employee will be in accordance with DAS-HRE rules or applicable collective
bargaining agreement.
F. Intermittent or reduced schedule leave
may be taken to provide care or psychological comfort to an immediate family
member with a chronic or serious health condition.
G. Intermittent or reduced schedule leave
may be taken for absences where the employee is incapacitated or unable to
perform the essential functions of the position because of a chronic serious
health condition even if he or she does not receive treatment by a health care
provider.
H. Intermittent leave may be taken for a
serious health condition which requires treatment by a health care provider
periodically, rather than one continuous period of time, and may include leave
periods from one hour or more to several weeks.
Examples of intermittent leave would include leave taken on an
occasional basis for medical appointments, or leave taken several days at a
time for chemotherapy. A pregnant
employee may take leave intermittently for prenatal examinations or for her own
condition, such as periods of severe morning sickness. An example of an
employee taking leave on a reduced leave schedule is an employee who is
recovering from a serious health condition and is not strong enough to work a
full-time schedule.
I. When both spouses are employed by the
State, they are limited to a combined total of 12 weeks of FMLA leave in a
fiscal year for leave involving the birth, a bonding period, care after birth,
adoption, foster care of a son or daughter or the care of a parent with a
serious health condition. For example,
if one parent of each spouse needed care during a fiscal year and the leave
entitlement was divided evenly between them, each would be allowed only six
weeks of FMLA leave to care for his or her own parent.
J. When both spouses are employed by the
State, they are each entitled to 12 weeks of FMLA leave in a fiscal year for
leave involving the care of a son, daughter or spouse with a serious health
condition, or leave that involves the employee’s own serious health condition.
K. If an employee unequivocally advises
the employer in writing that he or she does not intend to return to work for a
reason other than the immediate serious health condition, the employee’s
entitlement to continued FMLA leave and associated benefits ceases.
L. When leave is taken after the birth or
placement of a child for adoption or foster care, an employee may take leave
intermittently or on a reduced leave schedule only if the employer agrees. The employer’s agreement is not required,
however, when leave is medically necessary during which the mother has a
serious health condition in connection with the birth of her child or if the
newborn child has a serious health condition.
M. An employee who requests FMLA leave
after the birth, adoption, or foster placement of a son or daughter must take
the leave within 12 months of the event.
N. Employees on FMLA leave that crosses
fiscal years need not submit new medical certification because of the start of
the new fiscal year, but they must meet eligibility requirements. However, once the original medical
certification expires, the employee must reapply and provide new medical
certification. If information about the
employee’s FMLA leave changes, the employee will be asked to have his or her
original request updated. In some
instances, the updated information may be as simple as a written communication
from the employing unit.
VIII. PAID AND UNPAID LEAVE
A. FAMILY LEAVE: An employee taking FMLA leave for the birth,
adoption, or foster placement of a son or daughter, or the care of a seriously
ill son, daughter, spouse, or parent is required to exhaust any family
(enforced leave) leave, accrued vacation, and personal leave for any part of
the 12 week FMLA period before unpaid leave is granted. Employees covered by the State Police
Officers Council (SPOC) collective bargaining agreement may, but are not
required to, substitute accrued paid leave for any part of the 12 week
period. Substitution of paid leave may
be elected to the extent the circumstances meet the usual requirements for that
leave. [For central payroll: when paid
leave is exhausted, the employee must be placed in a leave code 53 with a leave
expiration date of no more than the remaining 12 weeks. This allows the State’s share of life and
long term disability (LTD) insurance to be paid automatically.]
B. MEDICAL LEAVE: For the employee’s own serious health
condition, the employee must exhaust accrued sick leave, accrued vacation, or
personal leave before unpaid leave is granted.
Employees covered by the State Police Officers Council (SPOC) collective
bargaining agreement may, but are not required to, substitute accrued paid
leave for any part of the 12 week period.
[For central payroll: when
paid leave is exhausted, the employee must be placed in leave code 54 with a
leave expiration date of four months from the last day worked. This allows the State’s share of life and LTD
insurance to be paid automatically.]
C. COMPENSATORY LEAVE: An employee may, but is not required to, use
accrued compensatory leave in lieu of FMLA leave. Use of compensatory leave will be permitted if
the employee follows normal application procedures located in DAS-HRE rules and
the applicable collective bargaining agreement for a qualifying absence. Compensatory time will NOT count against
the employee’s 12 weeks of FMLA leave entitlement.
D. MATERNITY LEAVE: An employee who requests FMLA leave after the
birth of a child and who has not received a medical release to return to work
must exhaust any accrued sick leave, vacation, or personal leave before unpaid
leave is granted. When the employee’s physician
releases the employee to return to work, the employee is no longer eligible to
use paid sick leave, however, the employee may use personal leave or accrued
vacation.
E. LEAVE RETENTION: Noncontract covered employees and employees
covered by the American Federation of State, County, and Municipal Employees
(AFSCME) collective bargaining agreement who are qualified for FMLA leave are
eligible to retain up to two weeks (80 hours) of accrued annual leave
(vacation) each fiscal year. This
includes Regents and Community Based Corrections employees who are covered by
the AFSCME collective bargaining agreement.
Employees covered by the State Police Officers Council (SPOC) collective
bargaining agreement may, but are not required to, substitute accrued paid
leave for any part of the 12 week period.
These options are not available to employees covered by the United
Electrical/Iowa United Professionals (UE/IUP) collective bargaining agreement.
IX. FITNESS FOR DUTY
A. When the leave involves the employee’s
own serious health condition, the employer may require a written release from
the employee’s health care provider as evidence that the employee is able to
perform the essential functions of his or her position. The employee is required to pay for any costs
associated with the release including travel.
Failure to provide a written release may result in discipline up to and
including discharge.
X. RETURNING FROM LEAVE
A. Upon returning from FMLA leave, an
employee is entitled to the same position, or an “equivalent position.” An equivalent position is one with the same
pay, benefits and working conditions (shift and schedule) and the same or
substantially similar duties, conditions, privileges, and status which require
equivalent skill, effort, responsibility and authority.
1. If
a reduction-in-force occurs while the employee is on leave, the employee’s
right to a position shall be established in accordance with the DAS-HRE Rules
Chapter 11, the applicable collective bargaining agreement, or the applicable
Regents Institution’s policies.
2. The
employee’s pay increase eligibility date shall be adjusted for unpaid absences
of more than 30 calendar days.
3. The FMLA does not prohibit an employer from accommodating,
consistent with the Americans With Disabilities Act, an employee’s request to
be restored to a different shift, schedule, position, or location which better
suits the employee’s personal needs on return from leave. However, accommodating an employee in this
manner must also be in compliance with any applicable collective bargaining
agreement.
B. If the employee is unable to perform an essential function
of the position because of a physical or mental condition, including the
continuation of a serious health condition, the employee has no right to
restoration to another position under the FMLA.
The employer’s obligations may be governed by the Americans With
Disabilities Act (ADA).
C. An employee may be placed in a position
in the same class, and must be reinstated to the same or a geographically
proximate work site (i.e., one that does not involve significant increase in
commuting time or distance) from where the employee had previously been
employed when he or she returns from FMLA leave.
D. Upon returning from FMLA leave, an
employee is entitled to no more rights or benefits than he or she would have
received had the leave not been taken.
E. An employee must work at least 30 calendar days after his or
her return to be considered “returned” to work.
F. If the employee does not return to work
because of a serious health condition, the employer will require written
certification from the health care provider.
If the employee fails to respond within 30 calendar days, the employer
may recover all of the State’s share of his or her health and dental plan
premiums for this period.
G. If the employee does not return to work
and the reason for not returning to work is not due to the employee’s serious
health condition or is for circumstances beyond the employee’s control, the
employer will require certification that the employee is unable to return and
will recover its share of health and dental plan premiums paid for the employee
during the period of leave.
H. If the employee does not or cannot
return to work and the reason for not returning to work is due to the
employee's serious health condition, the employer will discuss with the
employee the possibility of applying for long term disability insurance (LTD)
benefits.
I. The employer may request periodic
updates from the employee concerning the employee’s status, and the date he or
she intends to return to work. Requests
for periodic updates will be made no more often than necessary depending on the
facts and circumstances of each case.
The employer’s policy must take into account all of the relevant facts
and circumstances related to the employee’s leave situation.
J. If an employee is unable to return
from FMLA leave on the expected date and FMLA leave has not been exhausted, the
employee shall contact his or her supervisor about an extension. If FMLA leave has been exhausted, published
leave procedures will apply.
XI. PAY AND STATUS
CHANGES
A. An employee’s pay will be adjusted for
across-the-board increases, and pay grade or pay plan changes that may occur
while he or she is on FMLA leave.
XII. MEDICAL OPINIONS
A. At the employer’s discretion, an
employer who has reason to doubt the validity of a medical certification may
require the employee to obtain a second opinion at the employer’s expense
(including travel). The employee must
submit the claim to his or her health care provider for payment, the employer
is responsible for the remaining dollar amount, if any. The employer 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. Pending receipt of the second medical
opinion, the employee is provisionally entitled to FMLA leave.
B. If the opinions of the employee’s and
the employer’s designated health care providers differ, the employer may
require the employee to obtain a third medical opinion at the employer’s
expense. The third opinion shall be
final and binding. The health care
provider selected for a third medical opinion must be acceptable to both the
employee and employer. Upon request, the
employee shall be provided with any medical documentation used in making the
final decision within two business days.
XIII. CLARIFICATIONS
A. At the time the employer requests
certification, the employer must also advise the employee of the anticipated
consequences of an employee’s failure to provide adequate certification which
could include: delay, denial, designation without certification or
discipline. The employer shall advise an
employee whenever the employer finds a certification incomplete, and provide
the employee a reasonable opportunity to rectify any such deficiency.
B. If an employee submits a correctly
completed certification signed by a health care provider, the employer may not
request additional information from the employee’s health care provider
regarding certification. However, a
health care provider representing the employer may contact the employee’s
health care provider, with the
employee’s written permission, for purposes of clarification and authentication
of the medical certification.
C. If an employee is on FMLA leave that is
running concurrently with a workers’ compensation absence, the employer may
contact the workers’ compensation provider directly for the purpose of
clarifying or checking the authenticity of a medical certification.
XIV. RECERTIFICATION OF
MEDICAL CONDITIONS
A. For pregnancy, chronic, permanent, or
long-term conditions under the continuing supervision of a health care
provider, an employer may request recertification no more than every 30
calendar days and only in connection with an absence by the employee, unless:
1. circumstances described by the previous certification have
changed significantly (e.g., the duration or frequency of absences, the
severity of the condition, complications); or
2. the employer receives information that casts doubt upon the
employee’s stated reason for the absence.
B. If the minimum duration of the period
of incapacity specified on a certification furnished by the health care
provider is more than 30 calendar days, the employer may not request
recertification until that minimum duration has passed unless:
1. the employee requests an extension of leave; or
2. circumstances described by the previous certification have
changed significantly (e.g., the duration of the illness, the nature of the
illness, complications); or
3. the employer receives information that casts doubt upon the
continuing validity of the certification.
C. The employer may request
recertification at any reasonable interval, but not more often than every 30
calendar days unless:
1. the employee requests an extension of leave; or
2. circumstances described by the previous certification have
changed significantly (e.g., the duration of the illness, the nature of the
illness, complications); or
3. the employer receives information that casts doubt upon the
continuing validity of the certification.
D. For FMLA leave taken intermittently or
on a reduced leave schedule basis, the employer may not request recertification
in less than the minimum unless one of the conditions set forth below is met:
1. the employee requests an extension of leave; or
2. circumstances described by the previous certification have
changed significantly (e.g., the duration of the illness, the nature of the
illness, complications); or
3. the employer receives information that casts doubt upon the
continuing validity of the certification.
E. The employee must provide the requested
recertification to the employer within 15 calendar days after the employer’s
request unless it is not practicable under the particular circumstances. Any recertification shall be at the
employee’s expense.
XV. DENIAL CRITERIA
A written explanation
provided on the “Family and Medical Leave Act (FMLA) Response” (CFN 552-0627) form denying FMLA leave
must include one of the following reasons:
1. The employee has not been employed at least 12 months and
worked at least 1,250 hours in the previous 12 months; or
2. The employee’s fiscal year FMLA leave entitlement has been
exhausted; or
3. The employee or family member is not a son, daughter,
spouse, parent or a person standing “in loco parentis” as a son, daughter or
parent; or
4. The employee’s family member does not have a serious health
condition, or the health condition does not render the employee unable to
perform the essential functions of his or her position; or
5. The FMLA leave request was more than 12 months after the
birth, adoption or foster placement of a son or daughter, or the son or
daughter was over eighteen years of age and capable of self-care.
XVI. LEAVE DESIGNATION
A. The employer shall designate all FMLA
qualifying absences as FMLA leave. It is
the employer’s responsibility to make FMLA leave designations.
B. The 12 week limitation will be counted
starting at the “from” date on the State of
C. Personnel assistants must use the
attached “State of