REGULATIONS Family and Medical Leave Act of 1993

Transcription

1 File: GCBD-1-R REGULATIONS Family and Medical Leave Act of 1993 Employer: Waynesboro School Board Employees: Professional and Support Staff of the Waynesboro Public Schools Purpose: The purpose of family and medical leave is to balance the needs of families with the demands of the workplace. The purpose of legislation is to minimize the potential for employment discrimination on the basis of gender consistent with the Equal Protection Clause of the Fourteenth Amendment by assuring that leave is available when necessary for both men and woman. Basic Provision: The Family and Medical Leave Act of 1993 requires an employer to grant up to twelve (12) weeks of unpaid leave per year to employees on medical leave or who needs to care for a family members. Employment: An employee must have been employed for at least 12 months prior to non-paid family and medical leave. The Waynesboro School Board can deny job restoration to salaried employees who are in the highest paid 10% of the staff. The school board cannot deny leave to highly paid salary personnel, but can deny a request to return to work. Purpose For Which Leave Can Be Taken: Employees are entitled to take up to twelve (12) weeks of unpaid leave a year for: 1. The birth of the employee's child; 2. The placement of a child with the employee for adoption or foster care; 3. To care for the employee's spouse, child or parent who has a serious health condition; 4. A serious health condition rendering the employee unable to perform his/her or her duties. Intermittent Leave: The employee may take leave intermittently or on a reduced work schedule when medically necessary due to the employee's or family member's illness. Medical Certification: The Waynesboro School Board, or its designee, may requires medical certification that the leave is needed due to the employee's own serious health condition or that of a family member. The employer may also, at its expense, require a second medical opinion. If the first and second opinions differ, the employer may request a third opinion, at its expense, which is binding. (continued) WAYNESBORO PUBLIC SCHOOLS

2 File: GCBD-1-R (Page 2) Notice: Employees are to provide at least thirty (30) days notice, if possible, of their intention to take leave. An employee must submit a written request for leave (Form FMLA-1) to principal and assistant superintendent, giving as much advance notice of the leave as possible. Thirty (30) days advance notice is requested. If written advance notice is not given for foreseeable leave, leave may be denied until after such notice is given. Where the leave is not foreseeable, verbal notice should be given as soon as practicable, preferably within 1 to 2 working days. In order to determine how much family and medical leave an employee has available, the Waynesboro Public Schools will use the rolling 12-month period method. An employee would start at the point where the requested leave would begin and count back 12 months. Any leave qualifying as family and medical leave, taken within the 12 months prior to the start of the requested leave, would reduce the amount of family and medical leave currently available. Employees will substitute available paid personal, annual, or sick leave for the unpaid family leave circumstances provided in this regulation, as well as any accrued paid leave which would be available under School Board policy in the circumstances of adoption or foster placement. Employees will substitute available paid personal, annual, sick leave, or sick bank days for the medical leave circumstances of the regulation. When spouses are both employed by Waynesboro Public Schools and both are entitled to leave, the following will apply: If a leave is taken due to the birth or placement of a child, to care for a parent, child or spouse with a serious health condition, or due to the employee s own serious health condition, the employees are entitled to an aggregate total of twelve weeks. 1. Family Leave: Any eligible employee shall be granted leave for the purpose of caring for a newborn or newly adopted child for a period of up to one 12-month period or less. Family leave must begin and end within the 12 months following the birth or adoption of the child. Employees requesting family leave must provide reasonable notice (30 days is requested) of the expected birth or adoption. (continued) WAYNESBORO PUBLIC SCHOOLS

3 File: GCBD-1-R (Page 3) Family leave may be taken due to the birth or adoption of a child up to one 12- month period or less. Family leave must begin and end within the 12 months following the birth or adoption of the child. Employees requesting family leave must provide reasonable notice (30 days is requested) of the expected birth or adoption. Family leave taken due to the birth or adoption of a child may not be taken intermittently or on a reduced leave schedule. 2. Employee s Own Serious Health Condition or Serious Health condition of Employee s Spouse, Parent or Child: Any eligible employee shall be granted medical leave as a result of the employee s serious health condition or the serious health condition of the employee s spouse, parent or child. A serious health condition is defined as an illness, injury, impairment, or physical or mental condition that requires either (i) impatient care in a hospital, hospice, or residential medical care facility, or (ii) continuing treatment by or under the supervision of a health care provider. The nature of the condition must be such that it either caused a period of incapacity requiring absence from work, school, or other regular daily activities for more than five (5) calendar days, or, if left untreated, would result in such a period of incapacity. To qualify for medical leave for an employee s own serious health condition, the condition must make the employee unable to perform the essential functions of his or her position. If medically necessary, medical leave may be taken on an intermittent or reduced leave schedule until the total amount of family and medical leave taken for the 12 month period totals 12 weeks. Medical certification will be required for an employee s own serious health condition or leave necessitated by the serious health condition of an employee, spouse, parent, or child. The medical certification for an employee s own serious health condition must identify the nature of the condition, the date the condition began, that the employee is unable to perform the functions of his or her job, and the projected return to work date. (continued) WAYNESBORO PUBLIC SCHOOLS

4 File: GCBD-1-R (Page 4) Continuation of Benefits: The Waynesboro School Board will continue the employee's health insurance under the same condition as if the employee were working. The employee will be required to pay their share of the premium. While on unpaid leave the employee will not lose any employment benefits accrued prior to the start of the employee's leave. Regulations of the Virginia Retirement System Benefits Manual, "Contributions During Leaves of Absence" will be followed. Regarding premiums paid for health insurance coverage, the Waynesboro Public School Board is not liable for employer s share of health insurance premiums unless paid sick leave is used. Family and medical leave shall be counted toward, and run concurrent with, the maximum number of months for which the employee is eligible under COBRA regulations. The COBRA triggering event occurs when the employee clearly states that he/she will not return to work or, if no advance notice is given when he/she does not return to work following the family or medical leave. As a result, if the employee does not return to work upon the expiration of family or medical leave, the School Board is not liable for employer s share of medical insurance premiums during the leave (as allowed under the Act) and any excess sick leave used, but not earned, under school board policies and regulations. Where a key employee is involved, if such an employee declines to return to work in response to the required notice that substantial and grievous economic injury would occur if the employee were to be instated, the obligation to maintain health insurance benefits continues for the duration of the 12 week Family Medical Leave Act leave entitlement. Return to Job: Upon returning from leave, an employee is entitled to be restored to the same or equivalent position with pay, benefits, and other terms and conditions of employment. Upon an employee s return to work from a leave due to the employee s serious health condition, a medical certification of the employee s ability to return to work will be required. Use of Other Leave: The employee may apply accrued days of other types of leave provided under policy. Paid sick leave, paid personal leave, and paid vacation will be used toward the total of 12 weeks (60 days) of leave. If such accrued days are used the employee would receive his/her or her salary. The use of accrued leave may be extended beyond the twelve (12) week limit provided under law upon appeal and approval by the Waynesboro School Board. If the employee has no accrued leave with pay then the leave under these regulations will be unpaid. Sick Leave Bank: Only the serious health condition of an employee, as certified by a physician, will qualify for Sick Leave Bank. Other provisions of the Family and Medical Leave Act of 1993 are not covered. Maternity leave is not covered by the Sick Leave Bank. (continued) WAYNESBORO PUBLIC SCHOOLS

5 File: GCBD-1-R (Page 5) Enforcement: The Waynesboro School Board will not discriminate or in any way interfere with an employee's exercise of his/her rights under the Family and Medical Leave Act. The Act is enforced by the Wage and Hour Division of the U.S. Department of Labor. Penalties include reinstatement, double back pay and benefits, attorney fees, costs and interest. Adopted: May 10, 1994 Legal Refs.: Family and Medical Leave Act - Public Law 103-3, 1993 Code of Federal Regulation, Chapter 829 Fair Labor Standards Act, 29 U.S.C., Section 207 (0) WAYNESBORO PUBLIC SCHOOLS

6 ATTACHMENTS Attachment 1 "Your Rights Under the FMLA of 1993". Attachment 2 "Physician Certification Form" Attachment 3 "Family and Medical Leave Conditions, Rights, and Responsibilities" Attachment 4 "Request for Family and Medical Leave" (Form FMLA-1)

7 GCBD- Attachment 1 Your Rights under the Family and Medical Leave Act of 1993 FMLA requires covered employers to provide up to 12 weeks of unpaid, job-protected leave to ''eligible'' employees for certain family and medical reasons. Employees are eligible if they have worked for their employer for at least one year, and for 1,250 hours over the previous 12 months, and if there are at least 50 employees within 75 miles. The FMLA permits employees to take leave on an intermittent basis or to work a reduced schedule under certain circumstances. Reasons for Taking Leave: Unpaid leave must be granted for any of the following reasons: 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. At the employee's or employer's option, certain kinds of paid leave may be substituted for unpaid leave. Advance Notice and Medical Certification: The employee may be required to provide advance leave notice and medical certification. Taking of leave may be denied if requirements are not met. The employee ordinarily must provide 30 days advance notice when the leave is ''foreseeable.'' An employer may require medical certification to support a request for leave because of a serious health condition, and may require second or third opinions (at the employer's expense) and a fitness for duty report to return to work. Job Benefits and Protection: For the duration of FMLA leave, the employer must maintain the employee's health coverage under any ''group health plan.'' U.S. Department of Labor Employment Standards Administration Wage and Hour Division Washington, D.C Upon return from FMLA leave, most employees must be restored to their original or equivalent positions with equivalent pay, benefits, and other employment terms. The use of FMLA leave cannot result in the loss of any employment benefit that accrued prior to the start of an employee's leave. Unlawful Acts by Employers: FMLA makes it unlawful for any employer to: 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. Enforcement: - The U.S. Department of Labor is authorized to investigate and resolve complaints of violations. An eligible employee may bring a civil action against an employer for violations. FMLA does not affect any Federal or State law prohibiting discrimination, or supersede any State or local law or collective bargaining agreement which provides greater family or medical leave rights. For Additional Information: If you have access to the Internet visit our FMLA website: To locate your nearest Wage-Hour Office, telephone our Wage-Hour toll-free information and help line at USWAGE ( ): a customer service representative is available to assist you with referral information from 8am to 5pm in your time zone; or log onto our Home Page at WH Publication 1420 Revised August 2001 *U.S. GOVERNMENT PRINTING OFFICE /49051

8 GCBD- Attachment 2a Certification of Health Care Provider (Family and Medical Leave Act of 1993) To be completed by the physician. 1. Employee s Name: 2. Patient's Name (if different from employee): 3. The attached sheet describes what is meant by a "serious health condition" under the Family and Medical Leave Act. Does the patient's condition 1 qualify under any of the categories described? If so, please check the applicable category. (1) (2) (3) (4) (5) _ (6) _ or (7) None of the above Hospital Absence Pregnancy Chronic Long Term Multiple Care + Treatment Condition Condition Treatments 4. Describe the medical facts, which support your certification, including a brief summary as to how the medical facts meet the criteria of one of these categories: 5a. State the approximate date the condition commenced, and the probable duration of the condition (and also probable duration of the patient's present incapacity 2 if different). 5b. Will it be necessary for the employee to take work only intermittently or to work on a less than full schedule as a result of the condition (including for treatment described in item 6 below)? If yes, give the probable duration: 5c. If the condition is a chronic condition (condition #4) or pregnancy, state whether the patient is presently incapacitated 2 and the likely duration and frequency of episodes of incapacity 2 :

9 GCBD- Attachment 2b 6a. If additional treatments will be required for the condition, provide an estimate of the probable number of such treatments: If the patient will be absent from work or other daily activities because of treatment on an intermittent or part-time basis, also provide an estimate of the probable number and interval between such treatments, actual or estimated dates of treatment if known, and period required if any: 6b. If any of these treatments will be provided by another provider of health services (e.g., physical therapist), please state the nature of the treatments: 6c. If a regimen of continuing treatment by the patient is required under your supervision, provide a general description of such regimen (e.g., prescription drugs, physical therapy requiring special equipment); 7a. If medical leave is required for the employee's absence from work because of the employee's own condition (including absences due to pregnancy or a chronic condition) is the employee unable to perform work of any kind? 7b. If able to perform some work, is the employee unable to perform any one or more of the essential functions of the employee's job (the employee or the employer should supply you with information about the essential job function)? If yes, please list the essential functions the employee is unable to perform: 7c. If neither a. nor b. applies, is it necessary for the employee to be absent from work for treatment?

10 GCBD- Attachment 2c 8a. If leave is required to care for a family member of the employee with a serious health condition, does the patient require assistance for basic medical or personal needs or safety, or for transportation? 8b. If no, would the employee's presence to provide psychological comfort be beneficial to the patient or assist in the patient's recovery? 8c. If the patient will need care only intermittently or on a part-time basis, please indicate the probable duration of this need: Signature of Health Care Provider Print Name of Health Care Provider Address Telephone Number Date Type of Practice To be completed by the employee needing family leave to care for a family member: State the care you will provide and an estimate of the period during which care will be provided, including a schedule if leave is to be taken intermittently or if it will be necessary for you to work less than a full schedule: Employee Signature Date 1 Here and elsewhere on this form, the information sought relates only to the condition for which the employee is taking FMLA leave. 2 Incapacity, for purposes of FMLA, is defined to mean inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom. 3 Treatment includes examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations. 4 A regimen of continuing treatment includes, for example, a course of prescription medication (e.g., an antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition. A regimen of treatment does not include the taking of over-the-counter medications such as aspirin, antihistamines, or salves; or bed-rest, drinking fluids, exercise, and other similar activities that can be initiated without a visit to a health care provider.

11 GCBD- Attachment 2d A "Serious Health Condition" means an illness, injury, impairment, or physical or mental condition that involves one of the following. 1. Hospital Care Inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility, including any period of incapacity 2 or subsequent treatment in connection with or consequent to such inpatient care. 2. Absence Plus Treatment A period of incapacity 2 of more than three consecutive calendar days (including any subsequent treatment or period of incapacity 2 relating to the same condition), that also involves: (1) Treatment 3 two or more times by a health care provider, by a nurse or physician's assistant under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or (2) Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment 4 under the supervision of the health care provider. 3. Pregnancy Any period of incapacity due to pregnancy, or for prenatal care. 4. Chronic Conditions Requiring Treatments A chronic condition which: (1) Requires periodic visits for treatment by a health care provider, or by a nurse or physician's assistant under direct supervision of a health care provider; (2) Continues over an extended period of time (including recurring episodes of a single underlying condition); (3) May cause episodic rather than a continuing period of incapacity 2 (e.g., asthma, diabetes, epilepsy, etc.) 5. Permanent/Long-term Conditions Requiring Supervision A period of incapacity 2 which is permanent or long-term due to a condition for which treatment may not be effective. The employee of family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider. Examples include Alzheimer's, a severe stroke, or the terminal stages of a disease. 6. Multiple Treatments (Non-Chronic Conditions) Any period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider or by a provider health care services under orders of, or on referral by, a health care provider, either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity 2 of more than three consecutive calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), kidney disease (dialysis). This notice is a response either to your request for leave, which qualifies under the Family and Medical Leave Act of 1993 ("FMLA") or from our determination that the type of leave you have requested may qualify as leave under FMLA. Please see our FAMILY AND MEDICAL LEAVE POLICY for a description of Family and Medical Leave under our policy. If you do not have a copy of the policy, please ask Vonda A. Hutchinson, Benefits Manager, for one.

12 GCBD- Attachment 3a FAMILY AND MEDICAL LEAVE CONDITIONS, RIGHTS & RESPONSIBILITIES 1. If you are requesting a medical leave for your own serious health condition or the serious health condition of a family member, you must furnish medical certification of the serious health condition within 15 days of your request where practicable. Failure to furnish such medical certification may be grounds for denial of your leave request until such certification is provided. A medical certification form is attached. 2. You must substitute any unused paid leave (vacation, sick, or personal) during the requested leave. The paid leave will run concurrently with your FMLA leave of absence and count against your 12-week entitlement. 3. While on FMLA leave, we continue to provide health insurance coverage for you at the level in existence before the start of your FMLA leave or in accordance with such other health plan as becomes generally applicable to active employees. 4. You are still responsible for your portion of the premium payments under our health insurance plan. Failure to make timely payments, taking into consideration any applicable grace periods, may result in cancellation of your health insurance benefits during your leave. At our option, we may pay your share of the premiums during FMLA leave, and recover these payments from you upon your return to work or at the conclusion of your leave. You should receive the health insurance payment information prior to going on leave. If you do not receive this information, please contact Vonda Hutchinson at At our option, we may pay your premiums for other benefits (i.e. life insurance, disability insurance, etc.) while you are on FMLA leave and recover these payments from you upon your return to work or at the conclusion of your leave. 6. Depending upon the nature of your FMLA absence, we may require a certification of fitness to return to duty before allowing you to return to work. Determination of the need for a "fitness-for-duty" report will be based upon the nature of the illness and the duration of the leave provided that a "fitness-for-duty" report will be required for all absences of three (3) or more days. Failure to submit such certification will result in a denial of your restoration to employment following FMLA leave. 7. You are entitled to be restored to your job or an equivalent job upon return from Family and Medical Leave. However, the taking of Family and Medical Leave does not entitle you to any lesser or greater right to be restored to your position, or an equivalent position, that the right you otherwise would have had if Family and Medical Leave were FMAL/Rights & Responsibility

13 GCBD- Attachment 3b not taken. Your failure to return to work at the end of the leave period may be treated as a resignation from employment unless Waynesboro Public Schools has agreed to an extension of the leave in writing. 8. If you fail to return to work after your leave, you will be responsible for any health insurance or other benefit premiums we contributed on your behalf during your leave unless your failure to return is due to the condition, recurrence or onset of a serious health condition or other circumstances beyond your control. If you have any questions or concerns regarding your leave of absence or our applicable policy, please contact Vonda A. Hutchinson at I have read and understand the above conditions; Waynesboro Public Schools has answered all questions regarding my leave request and my rights and obligations under the Family and Medical Leave Act to my satisfaction. Employee Signature Waynesboro Public Schools Date Date IF THIS NOTICE HAS NOT BEEN PROVIDED TO YOU AT WORK, PLEASE SIGN ABOVE AND RETURN THE ORIGINAL TO: Waynesboro Public Schools 301 Pine Avenue Waynesboro, Virginia ATTN: VONDA A. HUTCHINSON FMAL/Rights & Responsibility

14 GCBD- Attachment 4 Request for Family or Medical Leave Name(Please Print) Work Location (School) Please check which type of leave is being requested, and the dates on which the leave will begin and end: Start Date End Date ( ) Family Leave ( ) Medical Leave For Family Leave, please indicate the reason for the leave. For Medical Leave, please indicate, in the space below, who the medical leave is for and the circumstances surrounding the illness: Please be advised that a medical certification is needed for an employee s request for family or personal medical leave. A Physician Certification Form is attached and must be submitted along with this form. The certification must identify the nature of the serious health condition and to the extend that the condition prevents the employee from performing his or her job functions. Also required are the date the illness began and the projected return-to-work date. For leave to care for a seriously ill child, spouse, or parent, the medical certification must certify that the employee is needed to care for the child, spouse, or parent, and must include an estimate of the amount of time the employee is needed to provide care. Also, at the employer s discretion and expense, a second medical opinion and periodic recertification may be required. I affirm that I have read the family and medical leave policy and regulations, and agree to provide the required documentation as needed. (Please see attached required physician certification.) Signature Date Administrator s Signature Date Return to: Personnel Office Waynesboro Public Schools 301 Pine Avenue Waynesboro, Virginia 22980