SECTION 6.90 (A) FAMILY AND MEDICAL LEAVE ACT POLICY
Last Update: 07/09
I. BACKGROUND
The Family and Medical Leave Act (FMLA) was signed into law on February 5, 1993 and was amended by the National Defense Authorization Act for FY2008 on January 28, 2008. 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. It also provides the right to take leave to care for an ill or injured servicemember or when a qualifying exigency exists. 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. Servicemember Family Leave to care for a covered military member with an illness or injury incurred in the line of duty was effective on January 28, 2008.
C. Servicemember Family Leave for any qualifying exigency was effective January 16, 2009.
D. Only leave taken on or after the effective date of the Act is considered FMLA leave.
III. DEFINITIONS
Active duty or call to active duty status means duty under a call or order to active duty, or notification of an impending call or order to active duty of a member of the National Guard or Reserve in support of a contingency operation.
Adoption means legally and permanently assuming the responsibility of raising a child as one’s own.
Business day means the part of a day during which most state offices are operating, usually from 8:00 a.m. to 4:30 p.m. Monday through Friday.
Contingency operation means a military operation that is designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military action, operation, or hostilities against an enemy of the United States or an opposing military force or results in the call or order to, or retention on, active duty under Section 688, 12301 (a), 12302, 12304, 12305, or 12406 of Title 10 of the United States Code.
Continuing treatment by a health care provider means any of the following:
1. Incapacity and treatment. Incapacity of more than three consecutive full calendar days, and any subsequent treatment or period of incapacity relating to the same condition that also involves:
a. Treatment1 two or more times by a health care provider within the first 30 days of incapacity, unless extenuating circumstances exist, or
b. Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment2 under the supervision of the health care provider.
i. Treatment by a health care provider means an in-person visit to a health care provider. The first visit must take place within seven days of the first day of incapacity.
ii. Whether additional treatment visits or a regimen of continuing treatment is necessary within the 30 day period shall be determined by the health care provider.
1Treatment includes, but is not limited to, 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.
2A 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 continuing treatment that includes 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, is not, by itself, sufficient to constitute a regimen of continuing treatment for purposes of FMLA leave.
2. Pregnancy or prenatal care. Any period of incapacity due to pregnancy, or for prenatal care.
3. Chronic conditions. A chronic serious health condition is one which:
a. Requires periodic visits (defined as at least twice a year) for treatment by a health care provider, or by a nurse under direct supervision of a health care provider;
b. Continues over an extended period of time (including recurring episodes of a single underlying condition); and
c. May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).
4. Permanent or Long-term Conditions. A period of incapacity 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.
5. Conditions Requiring Multiple Treatments (Non-Chronic Conditions). Any period of absence to receive multiple treatments (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, for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity of more than three consecutive, full calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), kidney disease (dialysis). 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, headaches other than migraines, routine dental or orthodontia problems, periodontal disease, etc., 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 unless inpatient hospital care is required or complications develop. Additionally, routine physical examinations are specifically excluded from the definition of a serious health condition.
Covered military member for purposes of qualifying exigency leave means the employee’s spouse, son, daughter, or parent on active duty or call to active duty status.
Covered servicemember 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 incurred in the line of duty on active duty.
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.
Foster Care means 24 hour care for children in substitution for, and away from, their parents or guardian. Such placement is made by or with the agreement of the State.
Health Care Provider means
1. A doctor of medicine or osteopathy who is authorized to practice medicine or surgery by the State in which the doctor practices; or
2. Any other person determined by the Department of Labor (DOL) to be capable of providing health care services. Others “capable of providing health care services” include only:
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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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chiropractors (limited to treatment consisting of manual manipulation of the spine to correct subluxation as demonstrated by x-ray to exist) |
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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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physician assistants (as authorized to practice under state law) |
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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
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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.
Incapacity means inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.
Inpatient care means an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity or subsequent treatment in connection with such inpatient care.
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.
Leave Year means the State of
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 family member or covered servicemember means both physical and psychological care. It includes situations where, because of a serious health condition, the family member is unable to care for his or her own basic medical, hygienic or nutritional needs or safety, or is unable to transport himself or herself to the doctor, etc. The term also includes providing psychological comfort and reassurance to a child, spouse or parent with a serious health condition who is receiving inpatient or home care. The term also includes situations where an employee may be needed to substitute for others who normally care for the family member or covered servicemember, or to make arrangements for changes in care, such as transfer to a nursing home. The employee need not be the only individual or family member available to care for the family member or covered servicemember.
Next of kin of a covered servicemember means the nearest blood relative other than the covered servicemember’s spouse, parent, son, or daughter, in the following order of priority: blood relatives who have been granted legal custody of the covered servicemember by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins, unless the covered servicemember has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave under the FMLA. When no such designation is made, and there are multiple family members with the same level of relationship to the covered servicemember, all such family members shall be considered the covered servicemember’s next of kin and may take FMLA leave to provide care to the covered servicemember, either consecutively or simultaneously. When such designation has been made, the designated individual shall be deemed to be the covered servicemember’s only next of kin.
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.”
Parent of a covered servicemember means a covered servicemember’s biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the covered servicemember. This term 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 seq., as amended, defines the terms.
Qualifying Exigency Leave means leave taken by an eligible employee while a covered member of the National Guard or Reserve is on federal active duty or call to active duty status in support of a contingency operation for one or more of the qualifying exigencies. An employee whose family member is on active duty or call to active duty status as a member of the Regular Armed Forces is not eligible to take leave because of a qualifying exigency. Qualifying exigencies include:
1. Short-notice deployment
2. Military events and related activities
3. Childcare and school activities
4. Financial and legal arrangements
5. Counseling
6. Rest and recuperation
7. Post-deployment activities
8. Additional activities
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 inpatient care or continuing treatment by a health care provider. Conditions for which cosmetic treatments are administered are not serious health conditions unless inpatient hospital care is required or complications develop. Restorative dental or plastic surgery after an injury or removal of cancerous growths or serious health conditions provided all other conditions are met. Mental illness or allergies may be serious health conditions, but only if all other conditions are met.
Serious injury or illness means an injury or illness incurred by a covered service member in the line of duty that may render the servicemember medically unfit to perform the duties of the member’s office, grade, rank, or rating.
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 and “incapable of self-care because of a mental or physical disability,” at the time FMLA leave is to commence.
Son or daughter of a covered servicemember means the servicemember’s biological, adopted, or foster child, stepchild, legal ward, or a child for whom the servicemember stood in loco parentis, and who is of any age.
Son or daughter on active duty or call to active duty status means the employee’s biological, adopted, or foster child, stepchild, legal ward, or a child for whom the employee stood in loco parentis, who is on active duty or call to active duty status, and who is of any age.
Spouse means a husband or wife as defined or recognized under state law for
purposes of marriage in the state where the employee resides, including common
law marriage in states where it is recognized.
IV. QUALIFYING REASONS FOR LEAVE
Circumstances qualifying eligible employees to use FMLA leave include:
A. The birth of a son or daughter, and to care for the newborn child.
B. Placement with the employee of a son or daughter for adoption or foster care.
C. To care for the employee’s spouse, son, daughter or parent with a serious health condition.
D. Because of a serious health condition that makes the employee unable to perform the
functions of the employee’s job.
E. Because of any qualifying exigency arising out of the fact that the employee’s spouse, son,
daughter, or parent is a covered military member on active duty, or has been notified of an impending call or order to active duty in support of a contingency operation.
F. To care for a covered servicemember with a serious injury or illness if the employee is the
spouse, son, daughter, parent or next of kin of the servicemember.
V. ELIGIBILITY
A. Any employee who has been employed for at least 12 months and has worked for at least 1,250 hours in the 12 month period immediately preceding the commencement of leave is eligible.
1. The 12 months that the employee must have been employed need not be consecutive. Employment periods prior to a break in service of seven years or more need not be counted in determining whether the employee has been employed for at least 12 months unless the break in service is due to the fulfillment of a National Guard or Reserve military service obligation, or there is a written agreement concerning the intention to rehire the employee after the break in service. 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. Active military service time served by Reserve and National Guard troops counts 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, except for an employee returning from National Guard or Reserve military duty. 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 and multiple branches of state government.
B. Eligibility determinations must 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).
C. An employee who fraudulently obtains FMLA leave from the employer is not protected by
FMLA’s job restoration or maintenance of health benefits provisions.
VI. EMPLOYER NOTICES REQUIRED
A. When an employee requests FMLA leave, or when the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee’s eligibility to take FMLA leave within five business days. Employee eligibility is determined at the commencement of the first instance of leave for each FMLA-qualifying reason in the applicable 12-month period. All FMLA absences for the same qualifying reason are considered a single leave and employee eligibility does not change during the 12-month period.
B. The employer is responsible for designating leave as FMLA-qualifying, and for giving written notice of the designation to the employee. This notice must be given within five business days after the employer has enough information to determine that the leave is FMLA-qualifying. Only one notice is required for each FMLA-qualifying reason during the leave year. The employer must also notify the employee if it is determined that the leave is not FMLA-qualifying. If the leave is not FMLA-qualifying, the employer must provide a reason for the ineligibility.
C. If the information provided in the designation notice changes (e.g., the employee exhausts the FMLA leave entitlement) the employer must provide written notice of the change within five business days of receipt of the employee’s first notice of need for leave subsequent to any change.
D. The employer must notify the employee of the amount of leave counted against the employee’s FMLA leave entitlement. If the amount of leave needed is known at the start of the leave, this information must be included in the designation notice. If it is not possible to provide this information in the designation notice, the employer must provide notice of the amount of FMLA leave used upon request by the employee, but not more often than once in a 30-day period, and only if leave was taken in the period.
E. Failure to follow notice requirements may constitute an interference with, restraint, or denial of the exercise of an employee’s FMLA rights. An employer may be held liable for compensation and benefits lost by reason of the violation.
VII. EMPLOYEE NOTICES REQUIRED
A. When an employee provides initial notification of the need for an absence, the employee must explain the reasons for the needed leave so as to allow the employer to determine whether the leave is FMLA qualifying. The employee merely stating that he or she is sick is not enough to trigger the FMLA. If the employee fails to explain the reasons, leave may be denied. Employees also must inform the employer if the requested leave is for a reason for which leave was previously taken or certified.
B. An employee must provide the employer with at least 30 calendar days notice of his or her need to take foreseeable FMLA leave (i.e., birth of a child, adoption of a child, planned medical treatment). In unforeseen circumstances, however, the employee must provide notice as soon as practicable, either orally or in writing. If 30 days notice is not practicable, notice must be given as soon as practicable. For foreseeable leave due to a qualifying exigency, notice must be provided as soon as practicable, regardless of how far in advance such leave is foreseeable. In cases where the employee is required to provide at least 30 days notice of foreseeable leave and does not do so, the employee shall explain the reasons why such notice was not practicable upon a request from the employer for such information.
As soon as practicable means as soon as both possible and practical, taking into account all of the facts and circumstances in the individual case. When an employee becomes aware of a need for leave less than 30 days in advance, it should be practicable for the employee to provide notice either the same day or the next business day. Untimely requests or failure to provide mandatory information to the employer may result in delay or denial of the FMLA leave.
C. Employees must comply with the employer’s usual and customary notice and procedural requirements for requesting leave. Where an employee does not comply with the usual notice and procedural requirements, FMLA leave may be delayed or denied. The failure to follow sick leave policies could be a basis for discipline. FMLA leave, however, cannot be denied for an employee’s failure to comply with published leave procedures that require notice to be given sooner than required by FMLA regulations.
D. 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.
E. 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.
VIII. POSTING REQUIREMENTS
A. The employer must post and keep posted the Department of Labor Publication 1420 (DOL PUB 1420) on its premises in conspicuous places where it can be seen by employees and applicants.
B. Notification of the rights afforded to employees by the FMLA must be given to persons with disabilities in a format that accommodates their disability or disabilities.
C. Future publication of department’s employee handbooks must include notice of employee rights detailed in DOL PUB 1420.
IX. DESIGNATION OF LEAVE
B. The employer will make a FMLA designation within five business days of receiving sufficient information to make a determination.
C. 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.
D. 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.
E. FMLA leave will be designated for leave taken to care for an ill or injured covered servicemember or for leave taken due to a qualifying exigency for a covered military member.
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 may not be required to take more FMLA leave than necessary to address the circumstances that precipitated the need for leave.
I. The employer may retroactively designate leave as FMLA leave with appropriate notice to the employee provided that the employer’s failure to designate leave does not cause harm or injury to the employee.
X. CERTIFICATION OF A SERIOUS HEALTH CONDTION
A. The employee, family member, or
spokesperson must complete a “State of
B. If requested, the employee must provide medical certification to support the FMLA leave. 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.
C. When leave is for the employee’s serious health condition, the health care provider must complete the “Certification of Health Care Provider for Employee’s Serious Health Condition” form (U.S. Department of Labor Form WH-380-E) to satisfy the certification requirement. If the employee qualifies for Workers’ Compensation benefits, his or her medical documentation will be accepted for FMLA purposes.
D. When leave is for family member’s serious health condition, the health care provider must complete the Certification of Health Care Provider for Family Member’s Serious Health Condition form (U.S. Department of Labor Form WH-380-F). Medical confirmation is required except in the case of birth, adoption, or foster placement.
XI. WORKERS’ COMPENSATION
A. FMLA leave runs concurrently with a workers’ compensation absence. In this instance, under the State Workers’ Compensation program, employees are not required to supplement workers’ compensation benefits with paid leave.
B. Under the FMLA, an employer may offer restricted duty, however, it cannot compel or take any detrimental action if the employee declines restricted duty while the employee is on FMLA leave. However, under the State’s workers’ compensation program, an employee who is offered “restricted duty” (light), and who refuses such “restricted duty” may lose his or her workers’ compensation benefits.
C. Employees on workers’ compensation who are on FMLA leave concurrently and are unable to return to work after the exhaustion of FMLA leave are subject to State workers’ compensation laws and will have no job restoration rights under FMLA.
XII. CLARIFICATION OF CERTIFICATIONS
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 complete and sufficient certification signed by a health care provider, the employer may not request additional information from the employee’s health care provider regarding certification.
C. If the certification is incomplete or insufficient, the employer shall advise the employee and state in writing what information is necessary to make the certification complete and sufficient. The employer must provide the employee with seven calendar days to cure any deficiency. If the deficiencies are not cured, FMLA leave may be denied. A certification that is not returned is not considered incomplete or insufficient, but constitutes a failure to provide certification. This provision applies whether it is the initial certification, a recertification, a second or third opinion, or a fitness for duty certificate including any clarifications necessary.
D. The employer may contact the health care provider directly for purposes of clarification and authentication of the medical certification after the employer has given the employee the opportunity to cure any deficiencies. The employer contact must be made by a health care provider, human resources professional, a leave administrator, or a management official. Under no circumstances may the employee’s direct supervisor contact the employee’s health care provider.
If the health care provider requires a HIPAA release, the employee is responsible for providing such a release. If the employee fails to provide the release, FMLA leave will be denied.
E. 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.
XIII. SECOND AND THIRD OPINIONS
A. 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 insurance carrier 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 a copy of the second and third medical opinions, where applicable, within five business days.
XIV. RECERTIFICATION OF MEDICAL CONDITIONS
A. An employer may request recertification no more often than every 30 calendar days and only in connection with an absence by the employee, unless B or C below apply.
B. If the medical certification indicates that the minimum duration of the condition 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, or frequency of absences, the nature or severity 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 in less than 30 calendar days if:
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, or frequency of absences, the nature or severity of the illness, complications); or
3. The employer receives information that casts doubt upon the continuing validity of the certification.
D. As part of the information allowed to be obtained on recertification for leave taken because of a serious health condition, the employer may provide the health care provider with a record of the employee’s absence pattern and ask the health care provider if the serious health condition and need for leave is consistent with such a pattern.
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.
F. Recertification may not be requested on second and third opinions.
G. When the leave involves the employee’s own serious health condition, the employer may require a fitness-for-duty certification 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 employer may require that the certification specifically address the employee’s ability to perform the essential functions of the employee’s job. In order to require such a certification, the employer must provide the employee with a list of the essential functions of the employee’s job no later than when the designation notice is provided to the employee. The employer may contact the employee’s health care provider for purposes of clarifying and authenticating the fitness-for-duty certification. 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.
XV. NEW CERTIFICATION OF ONGOING MEDICAL CONDITIONS
Where the employee’s need for leave lasts beyond a single leave year, the employee must provide a new medical certification in each subsequent leave year. Such certifications are subject to the provisions for authentication and clarification, including second and third opinions.
XVI. LEAVE BECAUSE OF A QUALIFYING EXIGENCY
A. Eligible employees may take FMLA leave while the employee’s spouse, son, daughter, or parent who is a member of the National Guard or Reserves is on active duty or call to active duty status in support of a contingency operation. Family members of the Regular Armed Forces are not eligible for leave because of a qualifying exigency.
B. The active duty orders of a covered military member will generally specify if the servicemember is serving in support of a contingency operation by citation to the relevant section of Title 10 of the United States Code and/or by reference to the specific name of the contingency operation.
C. Qualifying exigencies include:
1. Short Notice Deployment
a. To address any issue the arise from the fact that a covered military member is notified of an impending call or order to active duty in support of a contingency operation seven or less calendar days prior to the date of deployment.
b. Leave taken for this purpose can be used for a period of seven calendar days beginning on the date the covered military member is notified.
2. Military events and related activities
a. To attend any official ceremony, program, or event sponsored by the military that is related to the active duty or call to active duty status of a covered military member.
b. To attend 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. Childcare and School Activities
a. To arrange for alternative childcare when the active duty or call to active duty status of a covered military member necessitates a change in the existing childcare arrangement.
b. To provide childcare on an urgent, immediate need basis, but not on a routine, regular or everyday basis, when the need to provide such care arises from the active duty or call to active duty status of a covered military member.
c. To enroll in or transfer to a new school or day care facility when enrollment or transfer is necessitated by the active duty or call to active duty status of a covered military member.
d. To attend meetings with staff at a school or daycare facility when such meetings are necessary due to circumstances arising from the active duty or call to active duty status of a covered military member.
4. Financial and legal arrangements
a. To make or update financial or legal arrangements such as preparing and executing financial and healthcare powers of attorney, transferring bank account signature authority, enrolling in the Defense Enrollment Eligibility Reporting System (DEERS), obtaining military identification cards, or preparing or updating a will or living trust.
b. To act as the covered military member’s representative before a federal, state or local agency for the purposes of obtaining, arranging, or appealing military service benefits while the covered military member is on active duty or call to active duty status, and for a period of 90 days following the termination of the covered military member’s active duty status.
5. Counseling
a. To attend counseling provided by someone other than a health care provider for oneself, the covered military member, or child of the covered military member, provided that the need for counseling arises from the active duty or call to active duty status of a covered military member.
6. Rest and recuperation
a. To spend time with a covered military member who is on short-term, temporary, rest and recuperation leave during the period of deployment.
b. Eligible employees may take up to five days of leave for each instance of rest and recuperation.
7. Post-deployment activities
a. To attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military for a period of 90 days following the termination of the covered military member’s active duty status.
b. To address issues that arise from the death of a covered military member while on active duty status, such as meeting and recovering the body of the covered military member and making funeral arrangements.
8. Additional activities
a. To address other events which arise, provided that the employers and employee agree that such leave shall qualify as an exigency, and agree to both the timing and duration of such leave.
D. The employee must submit a complete and sufficient “Certification of Qualifying Exigency for Military Family Leave (U.S. Department of Labor Form WH-384) form and submit it to his or her supervisor.
E. The first time an employee requests leave because of a qualifying exigency, the employee must provide a copy of the covered military member’s active duty order or other documentation issued by the military. This documentation must include the dates of the covered military member’s active duty service. This information need only be provided to the employer once. A copy of new active duty orders or other documentation issued by the military shall be provided to the employer if the need for leave because of a qualifying exigency arises out of a different active duty or call to active duty status of the same or a different covered military member. Leave for any qualifying exigency must be supported by a certification from the employee that sets for the following information:
1. A statement or description, signed by the employee, of appropriate facts regarding the qualifying exigency for which leave is requested, and any available written documentation which supports the request for leave. For example, a copy of a meeting announcement for informational briefings sponsored by the military, a document confirming an appointment with a counselor or school official, or a copy of a bill for services for the handling of legal or financial affairs.
2. The approximate date on which the qualifying exigency leave commenced or will commence.
3. The beginning and end dates for leave requested for a single, continuous period of time.
4. An estimate of the frequency and duration of the qualifying exigency if leave is requested on an intermittent or reduced schedule basis.
5. If the qualifying exigency involves meeting with a third party, appropriate contact information for the individual or entity with whom the employee is meeting, including a brief description of the purpose of the meeting.
6. No recertification may be requested for qualifying exigency leave.
XVII. LEAVE TO CARE FOR A COVERED SERVICEMEMBER
A. Eligible employees are entitled to FMLA leave to care for a current member of the Armed Forces, including a member of the National Guard or Reserves, or a member of the Armed Forces, the National Guard or Reserves who is on the temporary disability retired list, who has a serious injury or illness incurred in the line of duty on active duty for which he or she is undergoing medical treatment, recuperation or therapy; or otherwise in outpatient status; or otherwise on the temporary disability retired list. Eligible employees may not take leave under this provision to care for former members of the Armed Forces, the National Guard and Reserves, and members on the permanent disability retired list.
B. An eligible employee is entitled to 26 workweeks of leave to care for a covered servicemember with a serious injury or illness during a single 12-month period.
· The single 12-month period begins on the first day the eligible employee takes FMLA leave to care for a covered servicemember and ends 12 months after that date. If an eligible employee does not take all of his or her 26 workweeks of leave entitlement to care for a covered servicemember during this single 12-month period, the remaining part of the 26 workweeks of leave entitlement is forfeited.
· The leave entitlement is on a per-covered-servicemember, per-injury basis such that an eligible employee may be entitled to take more than one period of 26 workweeks of leave if the leave is to care for different covered servicemembers or to care for the same servicemember with a subsequent serious injury or illness, except that no more than 26 workweeks of leave may be taken within any single 12-month period.
· An eligible employee is entitled to a combined total of 26 workweeks of leave for any FMLA-qualifying reason during the single 12-month period. However, the employee is entitled to no more than 12 weeks of leave for one or more of the following:
· the birth of a son or daughter of the employee and to care for such son or daughter
· placement of a son or daughter with the employee for adoption or foster care
· to care for the spouse, son, daughter, or parent with a serious health condition
· because of the employee’s own serious health condition
· because of a qualifying exigency
C. A husband and wife who are eligible for FMLA leave and are both employed by the State may be limited to a combined total of 26 workweeks of leave during the single 12-month period described in B above if the leave is taken:
· for the birth of the employee’s son or daughter or to care for the child after birth
· for the placement of a son or daughter with the employee for adoption or foster care, or to care for the child after placement
· to care for the employee’s parent with a serious health condition
· to care for a covered servicemember with a serious injury or illness.
D. The employee must complete a “Servicemember Family Leave Application” form (CFN 552-0724) and submit a complete and sufficient “Certification for Serious Injury or Illness of Covered Servicemember” form (U.S. Department of Labor Form WH-385) to his or her supervisor.
E. For purposes of leave taken to care for a covered servicemember, any one of the following health care providers may complete the certification:
· A United States Department of Defense (DOD) health care provider;
· A United States Department of Veterans Affairs (VA) health care provider;
· A DOD TRICARE network authorized private health care provider; or
· A DOD non-network TRICARE authorized private health care provider.
F. The employer may seek authentication and/or clarification of the certification. However, second and third opinions and recertifications are not permitted for leave to care for a covered servicemember.
G. The employee may be required to provide confirmation of family relationship to the seriously injured or ill servicemember.
H. If an employee is required to submit a certification for leave to care for a covered servicemember, the employer must accept “invitational travel orders” (“ITOs”) or “invitational travel authorizations” (“ITAs”) issued to any family member to join an ill or injured servicemember regardless of whether the employee is named in the order or authorization. No additional certification may be required for the duration of time specified in the ITO or ITA.
· If leave is needed beyond the expiration date in an ITO or ITA, the employer may request a Certification of Serious Injury or Illness of a Covered Servicemember.
· The employer may seek authentication and clarification of the ITO or ITA. The second or third opinion process or recertification process may not be used during the period of time specified by the ITO or ITA.
· The employer may require the employee to provide confirmation of covered family relationship when the leave request is supported by an ITO or ITA.
I. In all instances in which certification is requested, it is the employee’s responsibility to provide the employer with complete and sufficient certification. Failure to do so may result in the denial of FMLA leave.
XVIII. LEAVE ENTITLEMENT
A. An employee is entitled to 12 weeks of FMLA leave in a fiscal year for the birth of a child and to care for the newborn child, for the placement of a child for adoption or foster care, to care for a family member with a serious health condition, because of the employee’s own serious health condition, or because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter or parent is a covered military member. Leave may be taken on a continuous, intermittent, or reduced leave schedule basis. This leave may be paid or unpaid (see Section VIII).
B. Eligible employees are entitled to up to a total of 26 weeks of leave in a single 12-month period to care for a covered servicemember with a serious injury or illness. Leave may be taken on a continuous, intermittent, or reduced leave schedule basis.
C. 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. When leave is taken intermittently or on a reduced leave schedule to care for a covered servicemember with a serious injury or illness, full-time employees are entitled to 1,040 hours of leave in the 12-month period. 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.
D. 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 30 hours, he or she is entitled to a maximum of 360 hours (12 weeks times 30 hours) of FMLA leave in a fiscal year.
E. If an employee’s health care provider certifies that an intermittent or reduced work schedule is “medically necessary,” approval of the request is mandatory. The treatment regimen and other information described in the medical certification must address the necessity of intermittent or reduced schedule leave. Any adjusted schedule may end at the expiration of the FMLA leave entitlement.
F. 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.
G. 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.
H. 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.
I. 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.
J. 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 taken for the birth of the employee’s child, 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.
K. 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.
L. 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.
M. 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 for intermittent leave required by the serious health condition of the mother or the newborn child.
N. An employee’s entitlement to FMLA leave after the birth, adoption, or foster placement of a son or daughter expires 12 months after the date of the birth or placement.
XIX. 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: Employees are required to use accrued compensatory leave during periods of FMLA leave.
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: All employees 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
XX. 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.
XXI. PAY AND STATUS CHANGES
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.
XXII. RECORDKEEPING
A. The employer must keep, for at least three years, records pertaining to compliance with the FMLA. Upon request, records will be provided to the Department of Labor (DOL) by the Iowa Department of Administrative Services – Human Resources Enterprise.
B. Records kept in accordance with the FMLA must disclose the following:
1. basic payroll and identifying employee data; and
2. dates FMLA leave is taken by employees; and
3. if FMLA leave is taken in increments of less than one full day, the hours of the leave; and
4. copies of employee notices of FMLA leave furnished to the employer, and copies of all general and specific notices given to employees; and
5. records of any dispute between the employer and an employee regarding designation of leave as FMLA leave, including any written statement from the employer and employee of the reasons for the designation and for the disagreement.
C. Records and documents relating to medical certifications, recertifications or medical histories must be maintained in separate files and be treated as confidential. Supervisors, managers, first aid, and safety personnel may be provided relevant information on a need-to-know basis.
XXIII. HEALTH, DENTAL, LIFE, AND LONG TERM DISABILITY (LTD) INSURANCE
A. The State of
B. The State of
C. When approved for FMLA leave, the State’s share of applicable insurance premiums will begin the first of the month in which FMLA leave begins.
D. If an employee is on paid FMLA leave,
his or her share of the health or dental insurance premiums will be deducted and
no billing adjustments will be necessary. If an employee is in unpaid status, the personnel assistant will need to
obtain the employee’s share of health and dental insurance premiums, and make
the necessary billing adjustments to insure payment of the State’s share of
premiums. The date FMLA leave began and
the last date the employee was in pay status must be included on the “State
Share Transfer” (CFN 552-0335) form. The State’s share will be paid
through the end of the month in which the FMLA leave expires. The personnel assistant must submit the
approved copy of the “State of
E. If an employee does not pay his or her share of the health or dental insurance premium and the insurance payment is 30 calendar days past due, the employee’s coverage and claim payments will be canceled retroactively to the first day of the month in which the premium was not paid. Employer must provide notice to the employee 15 calendar days prior to any retroactive cancellation of insurance coverage.
F. Upon return from FMLA leave, employees who have dropped or canceled their health or dental benefits while on FMLA leave will be restored to no more than the same level of benefits upon completion of the necessary insurance application(s). If the employee’s absence is less than one year, insurance coverage will be effective the first of the month following the employee’s return to work. If the employee’s absence is one year or more, see appropriate collective bargaining agreement.
G. During the annual enrollment and change period, employees on FMLA leave are entitled to make changes in accordance with published policies and procedures. If an employee on FMLA leave elects to make any changes during this period, the signed application must be returned to his or her personnel assistant by the end of the published enrollment and change period.
H. When taking FMLA leave, an employee must use paid leave in an amount equal to his or her regularly scheduled hours of work. Altering an employee’s work schedule for the purpose of extending his or her benefits is not permitted.
XXIV. DEFERRED COMPENSATION
A. While on FMLA leave, an employee remains a participant in the deferred compensation program.
B. Deferrals are made while an employee is on paid leave, but are not made if he or she is on unpaid leave. If an employee wants to stop deferrals while on paid leave, a New Account & Change Form (NACF) (CFN 552-0317) form must be completed and submitted to the personnel assistant.
C. If deferrals are stopped because a NACF form was completed or an employee went on unpaid leave, an employee must complete a new NACF form to restore deferrals upon returning to work. Published enrollment and change policies and procedures will apply.
D. The deferred compensation information system (DEFC) will automatically zero out deductions for an employee in an unpaid leave status code.
XXV. FLEXIBLE SPENDING ACCOUNTS (FSA)
An employee on paid or unpaid FMLA leave who is capable of self-care must immediately stop deductions by completing the Flexible Spending Account Change Form and submitting it to the personnel assistant. Employees who are capable of self-care are not eligible to participate in the dependent care FSA while on leave.
Within 30 days of return to work, an employee may elect to be reinstated in the plan by completing the Flexible Spending Account Change Form and submitting it to the personnel assistant.
An employee on paid or unpaid FMLA leave may elect to cancel or to continue participation in the health care FSA. Employees on unpaid FMLA leave who wish to continue health care FSA coverage must make arrangements prior to the commencement of the leave to pay for the coverage.
Employees whose coverage terminates while on FMLA leave are not entitled to receive reimbursements for services incurred during the period when the coverage is terminated.
Within 30 days of return to work, an employee may elect to be reinstated in the plan by completing the Flexible Spending Account Change Form and submitting it to the personnel assistant. If an employee elects to be reinstated in the Health FSA upon return from leave for the remainder of the plan year, the employee may not retroactively elect Health FSA coverage for services incurred during the period when the coverage was terminated.
XXVI. AMERICANS WITH DISABILITIES ACT
A. The
B. The
1. can be either an “applicant” or “employee;” and
2. must be “qualified;” and
3. must have a “disability;” or
4. have a history of “disability;” or
5. be perceived as having a “disability;” or
6. working on behalf of someone with a “disability.”
In addition, the
C. The
1. Medical Leave for
Employees. The
a. Under the
b. The FMLA requires only that an employer
provide up to 12 weeks of leave for an employee who has a “serious health
condition” that makes the employee unable to perform the functions of his or
her position. Unable to perform the
functions of the position means that the employee is “unable to work at all or
is unable to perform any one of the essential functions of the employees position”
within the meaning of the
c. The employer must carefully consider
its responsibilities under the
1. The definition of “disability” under the
2. The nature and extent of protection differs under the
3. The
4. There is a difference in how the
employer may request medical certification between the
2. Family
Leave for Employees. The