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Family Medical Leave of Absence (FMLA)
The Company is required to comply with the Federal Family Medical Leave Act (FMLA) of 1993, which is outlined in Appendix A. The Company reserves the right to designate FMLA leave as needed to any eligible employee and to require employees to use first all available paid time off as qualifying FMLA time toward the 12 week limit. The FMLA entitles eligible employees to take up to 12 weeks of paid or unpaid, job-protected leave in a 12-month period based on the employee’s anniversary hire date for:
• The birth or placement of a child for adoption or foster care.
• To care for an immediate family member (spouse, child, or parent) with a serious health condition.
• To take medical leave when the employee is unable to work because of his/her own serious health condition.
To be eligible for FMLA, an employee must have worked for the Company for at least one year and have completed 1,250 hours over the 12 months prior to the commencement of the leave. The 12-month period during which an eligible employee may take up to 12 weeks of unpaid leave will be calculated using the eligible employee’s service anniversary date.
• An eligible employee who wishes to take FMLA must provide his/her supervisor with 30 days advance notice when the leave is foreseeable. At the time of the request, the employee may complete a “Family Medical Leave Information/Request Form”. Once FMLA is requested or designated by the Company, the employee will receive an information packet containing the full policy, forms, rights and duties of the FMLA for both the employee and the Company.
• In most cases, the eligible employee must submit medical certification to support a request for leave. Health and dental benefits will continue during the FMLA provided the employee makes his/her regular, monthly contributions to the plan. Failure to pay premiums may result in lapse of coverage. Contact the Benefits Department for specific details on continuing benefits while on leave.
• Employees returning from FMLA within the 12 week period will be restored to their original job, or to an equivalent job with equivalent pay and benefits.
• Employees returning from a medical FMLA may be required to present medical certification of fitness for duty. Failure to provide a medical certificate of fitness for duty may result in a denial of job reinstatement until medical certificate release is provided.
• FMLA may be taken in increments as small as one hour.
• Employees may not earn additional paid time off while on FMLA.
Contact human resources for the complete policy on the Family and Medical Leave Act and for a full explanation of your rights. FMLA will always begin with paid time off until all available paid time is used. After exhausting paid FMLA leave, non-paid FMLA leave will continue until the conclusion of the protected 12 week time limit. Following the conclusion of protected leave, the employer will decide whether non-FMLA leave should apply.
The medical Certification of Health Care Provider serves as a “doctor note” to certify the reason and expected duration of the extended medical leave in writing. All requests for medical leaves must be accompanied by a doctor’s statement verifying your total disability and your estimated date of return to work. Further, the Company requires written medical verification of your ability to resume work and a list of restrictions that would directly relate to your ability to perform your job.
Servicemember FMLA Leave
In 2008 and 2009, the FMLA was amended and now entitles eligible employees to take leave for a covered family member’s service in the Armed Forces.
Leave Eligibility and Duration
Eligible employees may take Servicemember leave for either (or both) of the following reasons:
• A “qualifying exigency” arising out of a covered family member’s active duty or call to active duty in the Armed Forces
Leave Duration: Up to 12 workweeks of leave during any 12-month period
• To care for a covered family member (“next of kin”) who has incurred an injury or illness in the line of duty while on active duty in the Armed Forces provided that such injury or illness may render the family member medically unfit to perform duties of the member’s office, grade, rank or rating.
Leave Duration: Up to 26 workweeks of leave during a single 12-month period. (Leave may not exceed 26 weeks in a single 12-month period when it is combined with other FMLA-qualifying leave).
Veterans: The 2009 amendments extends military caregiver leave to close family members of veterans who were members of the Armed Forces (including the National Guard or Reserves) at any point in time within five years preceding the date on which the veteran undergoes medical treatment, recuperation, or therapy.
Servicemember FMLA runs concurrent with other leave entitlements provided
under federal, state and local law.
Employee Rights and Responsibilities Under the FMLA
Basic Leave Entitlement
FMLA requires covered employers to provide up to 12 weeks of unpaid, job-protected leave to eligible employees for the following reasons:
• For incapacity due to pregnancy, prenatal medical care or child birth;
• To care for the employee’s child after birth, or placement for adoption or foster care;
• To care for the employee’s spouse, son or daughter, or parent, who has a serious health condition; or
• For a serious health condition that makes the employee unable to perform the employee’s job,
Military Family Leave Entitlements
“Qualifying Exigency” Leave for Families of Active Duty Members of the Armed Forces
Eligible employees with a spouse, son, daughter, or parent on active duty or call to active duty status in the Armed Forces may use their 12-week leave entitlement to address certain qualifying exigencies. Qualifying exigencies may include attending certain military events, arranging for alternative childcare, addressing certain financial and legal arrangements, attending certain counseling sessions, and attending post-deployment reintegration briefings.
Military Caregiver Leave for Veterans and for Aggravated Illnesses or Injuries
FMLA also includes a special leave entitlement that permits eligible employees to take up to 26 weeks of leave to care for a covered service member or veteran during a single 12-month period. A “covered service member” is a current member of the Armed Forces, including a member of the National Guard or Reserves, who has a serious injury or illness incurred by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in line of duty on active duty in the Armed Forces), and that may render the member medically unfit to perform the duties of the member’s office, grade, rank or rating. (emphasis added).
Since veterans do not have a current “office, grade, rank, or rating,” the serious injury or illness must be one “that manifested itself before or after the member became a veteran.”
The entitlement to take military caregiver leave for the care of veterans extends only to family members of veterans when the veteran was a member of the Armed Forces at some point in the five years preceding the date on which the veteran undergoes the medical treatment or receives the therapy that necessitates the leave.
Benefits and Protections
During FMLA leave, the employer must maintain the employee’s health coverage under any “group health plan” on the same terms as if the employee had continued to work. Upon return from FMLA leave, most employees must be restored to their original or equivalent positions with equivalent pay, benefits, and other employment terms.
Use of FMLA leave cannot result in the loss of any employment benefit that accrued prior to the start of an employee’s leave.
Employees are eligible if they have worked for a covered employer for at least one year, for 1,250 hours over the previous 12 months, and if at least 50 employees are employed by the employer within 75 miles.
Definition of Serious Health Condition
A serious health condition is an illness, injury, impairment, or physical or mental condition that involves either an overnight stay in a medical care facility, or continuing treatment by a health care provider for a condition that either prevents the employee from performing the functions of the employee’s job, or prevents the qualified family member from participating in school or other daily activities.
Subject to certain conditions, the continuing treatment requirement may be met by a period of incapacity of more than 3 consecutive calendar days combined with at least two visits to a health care provider or one visit and a regimen of continuing treatment, or incapacity due to pregnancy, or incapacity due to a chronic condition. Other conditions may meet the definition of continuing treatment.
Use of Leave
An employee does not need to use this leave entitlement in one block. Leave can be taken intermittently or on a reduced leave schedule when medically necessary. Employees must make reasonable efforts to schedule leave for planned medical treatment so as not to unduly disrupt the employer’s operations. Leave due to qualifying exigencies may also be taken on an intermittent basis.
Substitution of Paid Leave for Unpaid Leave
Employees may choose or employers may require use of accrued paid leave while taking FMLA leave. In order to use paid leave for FMLA leave, employees must comply with the employer’s normal paid leave policies.
Employees must provide 30 days advance notice of the need to take FMLA leave when the need is foreseeable. Then 30 days notice is not possible, the employee must provide notice as soon as practicable and generally must comply with an employer’s normal call-in procedures.
Employees must provide sufficient information for the employer to determine if the leave may qualify for FMLA protection and the anticipated timing and duration of the leave. Sufficient information may include that the employee is unable to perform job functions, the family member is unable to perform daily activities, the need for hospitalization or continuing treatment by a health care provider, or Circumstances supporting the need for military family leave. Employees also must inform the employer if the requested leave is for a reason for which FMLA leave was previously taken or certified. Employees also may be required to provide a certification and periodic recertification supporting the need for leave.
Covered employers must inform employees requesting leave whether they are eligible under FMLA. If they are, the notice must specify any additional information required as well as the employees’ rights and responsibilities. If they are not eligible, the employer must provide a reason for the ineligibility.
Covered employers must inform employees if leave will be designated as FMLA-protected and the amount of leave counted against the employee’s leave entitlement. If the employer determines that the leave is not FMLA-protected, the employer must notify the employee.
Unlawful Acts by Employers
FMLA makes it unlawful for any employer to:
• Interfere with, restrain, or deny the exercise of any right provided under FMLA;
• Discharge or discriminate against any person for opposing any practice made unlawful by FMLA or for involvement in any proceeding under or relating to FMLA.
An employee may file a complaint with the U.S. Department of Labor or may bring a private lawsuit against an employer.
FMLA does not affect any Federal or State law prohibiting discrimination, or supersede any State or local law or collective bargaining agreement which provides greater family or medical leave rights.
Commentary (if any): New FMLA Notice Requirements Take Effect January 16, 2009.
WARNING: Do NOT simply adopt a policy or add it to your handbook or manual without consulting with a qualified HR professional or employment lawyer. A sample policy may not be proper or even lawful in your particular situation. You’ve been warned.