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FAMILY AND MEDICAL LEAVE POLICY

FOR

EMPLOYEES OF MAINE STATE GOVERNMENT

 

I.  Policy Statement

 

The Family and Medical Leave Policy for Employees of Maine State Government is established for employees of the Executive Branch of Maine State Government to integrate the provisions and entitlements of State and Federal Family and Medical Leave Laws with the family and medical leave benefits available to employees of Maine State Government by collective bargaining agreement, the Civil Service Law and Rule and other authorities.

 

The purpose of this policy, and the State and Federal Laws on which  this policy is based, is to balance the family and work needs of State employees by providing eligible State employees up to 12, and in some circumstances 26,  weeks of unpaid leave per year for family and serious health matters, with the assurance that they will be restored to the position, status, benefits, and benefit levels that were in effect for them immediately prior to their leave.

 

This policy originally took effect on August 5, 1993, the effective date of the Federal Family Medical Leave Act, and was carefully constructed to ensure that Maine State employees are provided family and medical leave entitlements that meet or exceed the entitlements that are provided by State and Federal law.  Amendments to the policy were made effective in March 2009 in order to reflect changes in both State and Federal law.

 

Leave under this policy is computed on a calendar year basis beginning on January 1 of each year.  The method for computing time for the purpose of caring for a covered servicemember is covered in the Military Caregiver Leave section of this policy.

 

 

II.  Eligible Employees

 

The provisions and benefits of this policy are available to all classified and unclassified employees of the Executive Branch of Maine State Government who, at the time the leave begins or is scheduled to begin, have at least one year of State employment (at any time and in any position, including acting and project appointments).  This time does not need to be consecutive.  An employee who is not eligible for FML at the beginning of his/her leave may begin FML once s/he becomes eligible.

 

1.    For permanent and limited period positions (full-time and part-time), the one-year employment requirement must include all periods of authorized leave, paid or unpaid.  Note:  hours of work is not a consideration.  A part-time employee who works for 12 months satisfies the same eligibility requirements as a full-time employee who works for 12 months.

2.     For seasonal positions (full-time and part-time), the one-year employment requirement will include only those months worked during the season.  Time on authorized leaves during the season must be counted as time worked for this purpose.  As example, a seasonal employee who works four months per season would be eligible at the start of the fourth season.

3.     For acting and project appointments to full-time and part-time positions, the one-year requirement must include all employment time from the begin date to the end date.

4.     For intermittent positions, the one-year eligibility requirement will be met upon the completion of 2080 hours in intermittent status.

5.    If an employee requesting FML for the serious medical condition of a domestic partner has not previously submitted documentation of the domestic partnership for health insurance purposes, the Department may require the documentation for the purposes of determining eligibility for FML.

6.    Once an employee is determined to be eligible for FML based on employment status, the medical certification process to determine whether s/he meets the necessary requirements for the type of leave being requested must be implemented.

 

III.  Leaves Provided by Policy

 

1.      This policy provides eligible State employees up to 12 weeks of unpaid FML each calendar year:

          (a)    For pregnancy or birth of a son or daughter or a domestic partner’s son or daughter and to care for the newborn child;

          (b)    For placement with the employee or the employee’s domestic partner of a son or daughter for adoption or foster care;

          (c)    To care for the employee’s spouse, domestic partner, son, daughter, sibling, parent, or domestic partner’s son or daughter  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, domestic partner, 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)     Because of the donation of an organ by the employee for a human organ transplant.

 

2.     In addition to the above, eligible employees are entitled to up to 26 weeks of unpaid leave during a single 12-month period to care for a covered military servicemember with a serious injury or illness if the employee is the spouse, domestic partner, son, daughter, sibling, parent, or next-of-kin of the servicemember.[1]

3.     Eligible employees are also entitled to 15 days unpaid leave if the employee is the spouse, domestic partner or parent of a servicemember who is deployed for military service for a period lasting longer than 180 days when the duty assignment is in a combat theater or in an area where armed conflict is taking place.

IV.  Definitions

 

1.      “Spouse” means a husband or wife as defined or recognized under Maine law.

 

2.      “Domestic Partner” means the partner of an employee who:

          A.  Is a mentally competent adult as is the employee;

          B.  Has been legally domiciled with the employee for at least 12 months;

          C.  Is not legally married to or legally separated from another individual;

          D.  Is the sole partner of the employee and expects to remain so;

          E.  Is not a sibling of the employee; and

          F.  Is jointly responsible with the employee for each other’s common welfare as evidenced by joint living

                arrangements, joint financial arrangements or joint ownership of real or personal property.

3.     “Sibling” means a sibling of an employee who is jointly responsible with the employee for each other’s common welfare as evidenced by joint living arrangements and joint financial arrangements.

4.     “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.

 

V.  General Provisions

 

1.     A part-time employee who works twenty hours per week, is entitled to 12 twenty-hour weeks of leave each calendar year.  A full-time employee is entitled to 12 forty-hour weeks of leave each calendar year.

2.    The weekly hours for an intermittent employee must be averaged by dividing the number of hours worked during the 12 months immediately preceding the leave period by 52, and rounding up to whole hours.  As example, if the intermittent employee worked 500 hours in the 12 months prior to leave, the employee’s average = 10 hours/week.  Accordingly, this employee must be treated in the same way as a part-time employee who works 10 hours per week and provided 12 ten-hour weeks of leave per year.

3.     Use of paid leave time while also using FML must be counted toward the 12-week per year entitlement.

4.     For any of the qualifying FML leaves, the employee may choose to use accrued vacation, compensatory time or personal leave for some or all of the 12-week per year entitlement.  See section titled “Employee Options to Leave Under This Policy.”

5.    When the request is made for the first-year care of a child, the placement of a child for adoption or foster care, Qualifying Exigency Military Family Leave,  or Fifteen-Day Family Military Leave and the employee does not have, or has, but does not choose to use, accrued vacation, compensatory time or personal leave, the 12-week per year entitlement must be unpaid leave. 

6.    Employees who take more than 12 weeks of unpaid leave in accordance with the childbearing and adoption benefit of their collective bargaining agreement will be eligible for State-paid health/dental insurance for only that portion of the childbearing and adoption leave covered by this policy (e.g., for only their 12-week per year entitlement).

7.     When the request is made for a use covered by the State’s sick leave benefit, and the employee does not have, or has but does not choose to use accrued vacation, compensatory time or personal leave, the employing department must require the employee to use accrued sick leave time.  For these uses, the 12-week per year entitlement will be provided as unpaid leave only if other paid leaves are not used and sick leave is exhausted.

8.    The employing department must maintain the health/dental insurance coverage for employees on unpaid FML leave on the same conditions that this insurance would have been provided if the employee were employed and not on leave.

 

VI.  Employee Options for Leave Under This Policy

 

1.    Employees do not need to assert their rights or to give any explanation to the employing department in all instances when family/medical leave is needed.  Employees who have accrued vacation, compensatory time or personal leave have this leave time available to them, and if use of this time is approved by the employing department in accordance with standard practice, the employee is not required under this policy to report that all or some of this leave time will be used for a family or medical reason, and the amount of leave taken must not reduce the employee’s 12-week per year entitlement.

2.    If an employee has had vacation, compensatory or personal leave time approved in accordance with standard procedure and not for an FML qualifying reason, supervisors and managers must not ask questions concerning the possible use of such leave as FML.  If the employee volunteers that the leave is for an FML qualifying reason, the employer shall designate the leave as FML under this policy upon having knowledge that the leave was FML qualifying and/or submission of the appropriate certification.

3.    If an employee requests to use vacation, compensatory time or personal leave for family or medical leave reasons without explanation and is denied this leave for operational reasons in accordance with standard practice, the employee may then request family/medical leave under this policy.  With this notice that the leave is for family/medical reasons, the employing department must approve the use of vacation, compensatory time or personal leave, but all of time taken by the use of vacation, compensatory time or personal leave for family/medical leave purposes must be counted toward the 12-week per year entitlement, and the employee so informed.

4.    As explained, an employee can use approved vacation leave, compensatory time or personal leave for family/medical leave without any obligation to tell the employing department that the paid leave is being used for that purpose.  However, if the employee should later need to request additional leave for an FML-qualifying reason, the employee must provide information concerning the terms of the family or medical leave, and if the family or medical leave circumstances began while the employee was on paid leave, all of the vacation, compensatory time or personal leave that was used for FML purposes must be counted toward the 12-week per year entitlement, and the employee so informed

5.     If the employee exhausts FML and is unable to return to work because of a new or continuing serious health condition covered by this policy and the State’s sick leave benefit, the employing department:

 

          a.      May approve the use of accrued sick leave, if available; and/or;

          b.      May approve the use of unpaid sick leave.

          c.      May provide reasonable accommodation in consultation with the department’s EEO representative
                              and/or the State EEO Coordinator.

 

       To support this use of sick leave, the employing department must require the employee to provide a medical statement from the health care provider within 30 days of the end of the FML.

        If the employing department decides to end the use of unpaid sick leave, the employing department must give the employee notice that failure to return within a reasonable period of time (but no sooner than 30 days from the date FML is exhausted) will result in termination.  And, if the required medical statement has not been provided by the employee, the employing department may recover its cost for health and dental insurance for any part of the FML that was unpaid leave.

6.     The decision to terminate an employee who fails to return from his/her own serious health condition leave after FML is exhausted must not be made without consultation with the Department EEO representative or State EEO Coordinator for an evaluation of whether reasonable accommodation and/or reassignment is appropriate.

 

 

VII.  Leaves for Pregnancy, Birth, First Year Care of Child and Adoption/Foster Care

 

1.     The entitlement to FML for these purposes ends on the first anniversary of the birth or placement.

2.     Leave taken for pregnancy and the birth of a child (prenatal care, incapacity due to pregnancy) can be taken intermittently or as a continuous leave.  Any accrued sick time must be used for any purpose that is covered by the State’s sick leave benefit before going on unpaid leave.

3.    Leave taken for the first-year care of an employee’s child or employee’s domestic partner’s child or for the placement of a child for adoption or foster care must be taken as continuous leave unless the employing department approves leave for these purposes on a reduced work week or intermittent basis.  See next section titled “Serious Health Condition Leaves”.  Sick leave can only be used for these purposes if it would normally be covered under the State’s sick leave benefit.

4.    If both spouses or domestic partners are employed by the same State department, the employing department may, for operational reasons, limit their leave for these purposes to a combined total of 12 weeks per calendar year (e.g. to 12 weeks between them). 

5.     If the employing department does limit the use of FML to a combined total of 12 weeks, and if either or both of the employees later in the same calendar year find it necessary to take additional FML for another reason, the limit that was imposed under #4 above must be withdrawn.  However, the total FML time taken by each employee for the combination of the birth/placement reasons and the other reason can not exceed 12 weeks per calendar year unless the other reason is Military Caregiver Leave.

6.    If both spouses or domestic partners are State employees and work for different departments, each must be allowed the full 12-week per year entitlement for these purposes.

7.    The mother is entitled to FML for incapacity due to pregnancy, for prenatal care or for her own serious health condition following the birth of the child.  The spouse or domestic partner is entitled to FML if needed to care for his/her pregnant spouse or domestic partner.  The spouse or domestic partner is also entitled to FML, if needed, to care for spouse or domestic partner following the birth of the child if she has a serious health condition, or to care for the child if the child has a serious health condition.  These leaves are not subject to the limitations in #4 above regarding parents employed by the same State department.

 

VIII.  Serious Health Condition Leaves

 

1.    When the 12-week per year entitlement is used for the serious health condition of the employee or for the serious health condition of a family member, the employee has the choice of taking this leave all at once or, if medically necessary, by working reduced workweeks or taking time off intermittently.

2.    When an employee requests a reduced work schedule, the employee must be allowed to take leave in this manner until the 12 week per year entitlement is exhausted.  For example, if a full-time employee works five days per week and chooses to work three days and use two days for medical reasons, the employee must be allowed to work this schedule for a maximum of 30 weeks (leave taken at the rate of two-fifths of a week for 30 weeks = 12 weeks).  If a part-time employee works 30 hours per week and chooses to work 20 hours per week and use 10 hours for medical purposes, the employee must be allowed to work this schedule for a maximum of 36 weeks (leave used at the rate of one –third of a week for 36 weeks = 12 weeks).

3.    When an employee requests intermittent time off, the employee must be allowed to take time off in this manner until the 12-week per year entitlement is exhausted.  For example, a full-time employee must be allowed 40 hours of intermittent leave for each week of the 12 week entitlement up to 480 hours.  Part-time employees will be pro-rated.  For example, a 32 hour per week part-time employee must be allowed 32 hours of intermittent leave for each week of the 12 week entitlement up to 384 hours.

4.    Generally, the employing department may require recertification for long-term health condition leaves every six months. Recertification may be required in less than 6 months if:  1) the employee requests an extension of leave; 2) circumstances described by the previous certification have changed significantly; or 3) if the department receives information casting doubt on the continuing validity of the certification.

5.    The employing department may not require that intermittent time off be taken in any minimum amount of time per day or per week.

6.     If the employee’s spouse or domestic partner is also a State employee, both the employee and the spouse must be provided the 12-week per year entitlement for these purposes, even if both employees work for the same employing department.

7.    Examples of reduced work week situations follow:

 

Situation 1:        The employee has FML time remaining for the year, and because of medical reasons, requests to work a reduced work week and to substitute accrued vacation, compensatory time or personal leave for all of the time not worked.  This request for a reduced work week and the use of vacation, compensatory time or personal leave to cover time not worked must be approved.  If the employee chooses to use vacation, compensatory time or personal leave for only part of the time not worked, and has accrued sick leave to cover some or part of the balance of the 12-week per year entitlement, this sick leave must be exhausted before the employee is placed on unpaid leave for the hours not worked.

 

Situation 2:        The employee has FML time remaining for the year, and because of medical reasons, requests to work a reduced work week.  The employee does not request to use vacation, compensatory time or personal leave.  If the employee has accrued sick leave, this sick leave must be exhausted before the employee is placed on unpaid leave for the hours not worked.

 

IX.  Qualifying Exigency Military Family Leave

 

1.    Eligible employees are entitled to FML because of any qualifying exigency arising out of the fact that the employee’s spouse, domestic partner, son, daughter, parent, or domestic partner’s son or daughter  is a covered military member on activy duty (or has been notified of an impending call or order to active duty in support of a contingency operation).  Qualifying exigencies include:

·       Short-notice deployment

·       Military events and related activities

·       Child care and school activities

·       Financial and legal arrangements

·       Counseling

·       Rest and recuperation

·       Post-deployment activities

·       Additional activities

 

Additional detail regarding what constitutes a qualifying exigency can be found at 29 CFR 825.126.

 

2.    If an employee requests leave of this type on an intermittent or reduced schedule basis, an estimate of the frequency and duration of the qualifying exigency must be provided.

3.    An employee whose family member is on active duty or call to active duty status in support of a contingency operation as a member of the Regular Armed Forces is not eligible to take leave because of a qualifying exigency.

 

X.  Qualifying Military Caregiver Leave

 

l.     Eligible employees are entitled to 26 weeks of FML in a single 12-month period to care for a covered servicemember with a serious injury or illness if the employee is the spouse, domestic partner, son, daughter, sibling, parent, next-of-kin or domestic partner’s son or daughter of the servicemember.  For this type of leave family members who are in the Regular Armed Forces are included.

2.    The single 12-month period for military caregiver leave begins on the first day the eligible employee takes FML to care for a covered servicemember and ends 12 months after that date regardless of the calendar year used to determine leave for other types of FML.

3.    An employee eligible for leave under this section is entitled to a combined total of 26 weeks of leave for any FML qualifying reason during the single 12 month period, provided that the employee is entitled to no more than 12 weeks of leave for purposes other than military caregiver leave.

4.    

 

XI.  Fifteen-Day Family Military Leave

 

1.    Eligible employees are entitled to 15 days unpaid leave if the employee is the spouse, domestic partner or parent of a servicemember who is deployed for military service for a period lasting longer than 180 days when the duty assignment is in a combat theater or in an area where armed conflict is taking place.  For this type of leave family members who are in the Regular Armed Forces are included.

2.    Leaves under this section may be taken only during one or more of the following time frames:

·       The 15 days immediately prior to deployment;

·       Deployment, if the military member is granted leave; or

·       The 15 days immediately following the period of deployment.

 

3.    The employee must give at least 14 days notice of this type of leave if it will consist of 5 or more consecutive work days; if less than 5 consecutive work days, the employee must give as much advance notice as is practicable.

4.    The employee shall consult with the agency to attempt to schedule the leave so as to not unduly disrupt the operations of the agency.

5.    The only certification required for this type of leave is certification from the proper military authority to verify an employee’s eligibility for the family military leave requested.

 

XII.  Relationship of Sick Leave Benefit to This Policy

 

1.    The State’s sick leave benefit provides leave for short-term illness and disability and other leave uses that are not covered by this policy (leave to care for a parent-in-law).  This use of sick leave must not be counted toward the 12-week per year entitlement.

2.    In addition, the State’s sick leave benefit provides leave that is covered by this policy – e.g., leave for the employee’s own serious health condition or leave to care for the employee’s spouse, domestic partner, son, daughter, parent, or domestic partner’s son or daughter.  These uses of sick leave must be approved and counted toward the 12-week and 26-week per year entitlements.  Sick leave must be exhausted before the employee is placed on unpaid leave for the hours not worked.

3.    When an employee requests leave under the State’s sick leave benefit that appears to qualify under this policy, either the supervisor or the employee must contact the appropriate human resource representative for processing the request as possible FML.

4.    If the employee has accumulated sick leave but requests unpaid leave for a serious health condition reason that is covered by both this policy and the State’s sick leave benefit, the employing department must inform the employee that all available sick leave must be used before unpaid leave can be used, and that this sick leave will be counted as part of the employee’s 12-week entitlement.  If the employee does not have enough sick leave accrued to cover all of the leave time requested, the employing agency must approve the full 12-week per year entitlement.

5.     In cases of an employee’s emergency use of sick leave, the determination as to whether the use of sick leave is covered by this policy must be made, and the employee informed, as soon as sufficient medical certification is provided by the employee.  If the leave is due to a qualifying reason that has been previously approved (i.e. some types of intermittent leave), the employee must specifically reference whether the leave requested is related to the FML approved reason.

 

XIII.  Health/Dental Insurances

 

1.    When paid leave is used for FML, the State’s share of health/dental insurance and the employee’s share will be accomplished through the payroll process as usual.

2.    When unpaid leave is used for FML, the State will continue to pay its share of the employee’s and the employee’s dependents’ health/dental insurance coverage and, if applicable,  the employee will be billed for the employee’s share of his/her own coverage as well as for dependent coverage costs.  Employees must make arrangements with the Office of Employee Health to either pay the premiums for dependent coverage or temporarily remove dependents from their policy.  Failure to do so may result in the cancellation of dependent coverage.

3.    Employees who either cancel insurance coverage or have  health/dental insurance discontinued for failure to make timely payment of their share of the premium cost while on unpaid FML must be restored to full coverage without need for proof of insurability or any other qualification requirement when they return from leave. 

4.     If the employee resigns while on FML or after the 12-week or 26-week per year entitlement is exhausted, the employee may be terminated in accordance with standard practice and the employing department may take whatever means are available to recover the health and dental insurance costs that were paid by the State for that part of the leave that was unpaid leave, including withholding this amount from any final pay due and possible legal action.

5.    In those cases where the employee exhausts FML and does not return to work, and the employee does not have an acceptable reason for not returning, the employing department must give the employee notice that the basis for continued leave is not satisfactory and that failure to return to work within 30 calendar days will result in termination and recovery of health/ dental insurance payments made by the State for the unpaid portion of the employee’s leave.  If after this notice is made, the employee does not return, the employing department shall terminate the employee and may take whatever means are available to recover the health and dental costs that were paid by the State for that part of the leave that was unpaid leave.  The employee is not considered to have returned from leave until the employee has been back to work for 30 calendar days.

6.     If the employee exhausts FML and does not return to employment because of a circumstance outside of the employee’s control (e.g., the employee must move from the area because the employee’s wife is transferred out of state; employee is needed to care for the relative not covered by this policy), the employing department must give the employee notice that failure to return to work within 30 calendar days will result in termination without recovery of the health/dental insurance payments paid by the State during the unpaid portion of the employee’s leave.

7.     Health/dental insurance costs paid by the employing agency during any paid leave under the this policy must not be recovered for any reason.

8.     An eligible seasonal employee is provided family/medical leave under this policy during the established season.  If family/medical leave is taken during the season and if this leave continues beyond the employee’s season end date, the employee must assume the full cost of health insurance coverage after the end date is reached since, as a matter of usual employment, the State does not pay a seasonal employee’s health/dental insurance during the off-season.

9.    Similarly, eligible project or non-State acting capacity employees are provided family/medical leave under this policy between the beginning and end dates of their appointment.  If FML is taken during this temporary employment period and if this leave extends beyond the established end date, the employee must pay the full cost of health/dental insurance coverage after the end date is reached.

         

XIV.  Life Insurance Coverage

 

1.    Employees on unpaid FML must be allowed to continue their life, accidental death and dismemberment, supplemental and dependent insurance at their own expense.  Employees who choose to continue their life insurance coverage must contact the Maine Public Employees Retirement System to make the arrangements for their premium payments within 31 days of their last paycheck.

2.    Employees who do not continue their life insurance coverage during an unpaid FML or whose coverage is discontinued due to their failure to make premium payments must be restored to the coverage in effect immediately prior to this leave and must not be required to meet any qualification requirement.

 

XV.  Reemployment Upon Completion of FML

 

Employees may be reemployed in positions other than those held prior to the start of unpaid FML leave, provided these positions provide equivalent benefits and status.

 

1.    The employee must not accrue vacation and sick leave while on unpaid FML and unpaid FML must not count as service needed to advance the vacation accrual rate.

2.    Time on unpaid FML must be credited to longevity service as required for all authorized leaves.

3.    Time on unpaid FML must be credited for seniority purposes.

4.    The Performance Review Date (anniversary for step increases) must not be changed as the result of unpaid FML.  Decisions to grant or deny merit step increases must be made on a case-by-case basis, in accordance with the amount of lost work time.  Reference to the use of FML or other sick leave must not be made in the performance evaluation.

5.    Time on unpaid FML for a serious health condition reason that is covered by the State’s sick leave benefit must not automatically advance the employee’s probation end date.  However, the employee’s probation end date may be extended by the employing department if the employee has not worked long enough for the employing department to complete a valid probationary evaluation.

6.    Time on unpaid FML for the birth (excluding pregnancy disability) or care of a child or for adoption/foster care placement must advance the employee’s probation end date.

7.    Employees on unpaid FML leave who are affected by a layoff action must be notified of their rights in accordance with the layoff notice requirements for active employees.

8.    Project and non-State acting capacity employees must not be provided reemployment rights beyond the established end date of their appointment.

9.    Employees who are returning from FML for their own serious health condition (paid or unpaid) may be required by the employing department to establish their fitness to return if this requirement has been made in the Designation Notice to the employee at the time the leave was approved.  If the employing department chooses to attach a list of essential functions for the treatment provider to address, the agency EEO representative and/or State EEO Coordinator must be consulted.

10.  If an employee is unable to return to his/her position at the end of FML (paid or unpaid) because s/he is physically or mentally incapable of performing the essential functions of the position, the department EEO representative or State EEO Coordinator must be consulted for further action.

         

XVI.  Employee Notice Requirements

 

1.    Employees must give 30 days of advance notice for those leaves that are foreseeable.  When 30 days advance notice is not possible for foreseeable leave, the employee must give notice to their employing department as soon as practicable.  This early notice requirement is especially necessary for the scheduling changes that must be made for reduced work weeks and intermittent time off.

2.    When the start and end dates of the leave is not foreseeable (such as in certain types of intermittent leave), employees must provide notice as soon as practicable.  Employees must comply with their employers’ usual and customary notice and procedural requirements for requesting leave.

 

XVII.  Employer Notice Requirements

 

1.    The attached Employee Rights & Responsibilities notice must be posted in all work locations and provided to all current and new employees.

2.    When an employee requests FML or when the employer acquires knowledge that an employee’s leave may be for an FML qualifying reason, the employer must notify the employee of his/her eligibility to take FML within 5 business days and provide the appropriate FML certification form to be completed.  The attached Notice of Eligibility and Rights and Responsibilities notice must be used for this purpose.

3.    The employing department shall require the employee to provide a medical certification from the health care provider for all leaves except those for pregnancy, first-year care of a child, placement of a child for adoption or foster care and 15-day family military leave. If an employee submits a medical certification that is incomplete or insufficient, the State department must advise the employee in writing as to what additional information is needed and give the employee seven (7) calendar days to provide the information.  If the information is still insufficient for the Department to make a determination, the Department must consult with its agency EEO representative or the State EEO Coordinator for further action.

 4.    Following receipt of a complete and sufficient FML certification from the employee, the employer must notify the employee within 5 business days whether the leave will be designated as FML.  The attached Designation Notice must be used for this purpose.

5.    If additional information is required and the reason is that the certification provided by the employee is not complete, the employer must specify what information is needed, but can not go beyond the information requested on the certification form.

6.     If the Department believes there is a need to contact the health care provider for clarification or authentication of information provided on the certification or if the employer believes a second opinion is indicated, the agency EEO representative or State EEO Coordinator must be consulted.  An EEO consultation is also required when a fitness-for-duty certificate will be required for an employee returning from FML if a list of essential functions is attached to the Designation Notice.  If the employing department only wants a treatment provider’s note that the employee is cleared to return to work with or without restrictions and is not attaching a list of essential functions for the treatment provider to address, an EEO consultation is not necessary.

 

XVIII.  FML Certification Forms

 

Certifications are not required for pregnancy or birth leave unless complications necessitate additional leave for a serious health condition.  Certifications are not required for first-year child care or placement of a son or daughter for adoption or foster care.  The only certification required for the 15-day family military leave is certification from the proper military authority to verify an employee’s eligibility for the family military leave requested. The following certification forms are attached for all other leaves and must be used to determine whether an employee qualifies for FML:

 

·       Certification of Health Care Provider for Employee’s Serious Health Condition

·       Certification of Health Care Provider for Family Member’s Serious Health Condition

·       Certification of Qualifying Exigency for Military Family Leave

·       Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave

 

If an employee has provided an employing department with information that demonstrates the employee’s leave is for an FML-qualifying reason but does not submit a certification, the department shall designate the leave as FML.

 

XIX.  Departmental Records of FML Leaves

 

The employing department must maintain records of employee leaves under this policy for a minimum of three years. 

 

XX.  Employee Protection

 

The employing department may not interfere with, restrain or deny the leave rights that are provided to employees by this policy and the Federal Family and Medical Leave Act, or discriminate against an employee who files a complaint or grievance under this policy.

 

Employee complaints that are not resolved by the employing department may be brought to the Bureau of Human Resources.  Employee complaints that are not resolved by the employing department or the Bureau of Human Resources may be submitted to the U.S. Department of Labor if they involve leave that is covered under the Federal Family and Medical Leave Act.  And, the employee may bring civil action against the State for violations of the Federal Family and Medical Leave Act.

 

Revised 5-4-09



[1] In the case of  the death of the employee’s spouse, domestic partner, parent, sibling or child if the spouse, domestic partner, parent, sibling or child is a member of the State military forces or the United Stated armed forces, the employee is entitled to up to 10 weeks of unpaid leave pursuant to State law.