Policy - GB

POLICY: GB

EFFECTIVE DATE: 5/2/18

CANCELS SHEET DATED: NEW

REVIEWED BY POLICY COMMITTEE: 4/10/18

FAMILY AND MEDICAL LEAVE

The federal Family and Medical Leave Act (FMLA) provides generally that an eligible employee is entitled to up to 12 work weeks of leave during any 12-month period: (1) for the birth, adoption, or foster placement of a child; (2) to care for a spouse, son, daughter or parent with a serious health condition; or (3) when the employee is unable to work because of the employee’s serious health condition.

To be eligible, an employee must:

(a) have been employed for at least 12 months when the leave commences, and

(b) have worked at least 1250 hours in the 12 previous months.

In administering the FMLA for eligible employees, the employer will abide by the following:

1. The “12-month period” for purposes of the FMLA referred to above shall be the fiscal year.

2. Employees requesting leave shall provide at least 30 days notice whenever such leave is foreseeable.

3. Whenever an employee is absent for five consecutive days [shorter or longer period may be used] the employee will be asked to provide information needed to determine whether the leave is for an FMLA - qualifying purpose.

4. All leave taken for FMLA - qualifying purposes shall be counted toward employees’ FMLA entitlement. Any employee taking leave under FMLA shall concurrently use any applicable paid leave available under existing policies or agreements, provided the employee meets all requirements for such paid leave. After such paid leave is exhausted, the balance of the FMLA leave shall be unpaid.

5. The employer will continue to pay its share of the employee’s health insurance premium while the employee is on unpaid FMLA leave. The employee must pay his or her share of the premium on a monthly basis as directed by the administrative office.

6. Before returning to work, employees taking FMLA leave for their own serious health condition shall submit a certificate from a health care provider indicating that they are able to return to work and perform the essential functions of the position.

7. Employees who are not eligible for FMLA leave may be eligible for up to 10 weeks of unpaid family or medical leave during any two-year period under the Maine Family Medical Leave Act.

8. Further information about the federal Family and Medical Leave Act is contained in U.S. Department of Labor Program Highlights, attached hereto.

Attachment: U.S. Department of Labor Fact Sheet No. ESA 93-24

Legal Reference: 26 U.S.C. Section 2601 et. seq.

29 C.F.R. Part 825

26 M.R.S.A. Section 843 et. seq.

U.S. Department of Labor Program Highlights

Fact Sheet No. ESA 83-24

THE FAMILY AND MEDICAL LEAVE ACT OF 1993

The Family and Medical Leave Act of 1993 (FMLA) was enacted on February 5, 1993.

The new law is effective on August 5, 1993, for most employers. If a collective bargaining agreement (CBA) is in effect on that date, the Act becomes effective on the expiration date of the CBA or February 5, 1994, whichever is earlier.

The U.S. Department of Labor’s Employment Standards Administration, Wage and Hour Division, administers and enforces FMLA for all private, state and local government employees, and some federal employees.

FMLA entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave each year for specified family and medical reasons. An eligible employee’s right to FMLA leave begins on August 5, 1993; any leave taken before that date does not count as FMLA leave.

The law contains provisions on employer coverage; employee eligibility for the law’s benefits; entitlement to leave, maintenance of health benefits during leave, and job restoration after leave; notice and certification of the need for FMLA leave; and, protections for employees who request or take FMLA leave. The law also requires employers to keep certain records.

Employer Coverage

FMLA applies to all:

 public agencies, including state, local and federal employers, local education agencies (schools) and

 private-sector employers who employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year and who are engaged in commerce or in any industry or activity affecting commerce - including joint employers and successors of covered employers.

Employee Eligibility

To be eligible for FMLA benefits, an employee must:

(1) work for a covered employer;

(2) have worked for the employer for a total of at least 12 months;

(3) have worked at least 1,250 hours over the previous 12 months; and

(4) work at a location where at least 50 employees are employed by the employer within 75 miles.

Most federal and certain congressional employees are also covered by the law and are subject to the jurisdiction of the U.S. Office of Personnel Management and the Congress.

Leave Entitlement

A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons:

 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; or

 to take medical leave when the employee is unable to work because of a serious health condition.

Spouses employed by the same employer are jointly entitled to a combined total of 12 workweeks of family leave for the birth or placement of a child for adoption or foster care, and to care for a parent (but not a parent-in-law) who has a serious health condition.

Leave for birth or placement for adoption or foster care must conclude within 12 months of the birth or placement.

Under some circumstances, employees may take FMLA leave intermittently - which means taking leave in blocks of time, or by reducing their normal weekly or daily work schedule.

 If FMLA leave is for birth or placement for adoption or foster care, use of intermittent leave is subject to the employer’s approval.

 FMLA leave may be taken intermittently whenever medically necessary to care for a seriously ill family member, or because the employee is seriously ill and unable to work.

Also, subject to certain conditions, employees or employers may choose to use accrued paid leave (such as sick or vacation leave) to cover some or all of the FMLA leave. The employer is responsible for designating if an employee’s use of paid leave counts as FMLA leave, based on information from the employee. In no care can use of paid leave be credited as FMLA leave after the leave has ended.

“Serious health condition” means an illness, injury, impairment, or physical or mental condition that involves:

 any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical-care facility;

 any period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or

 continuing treatment by (or under the supervision of) a health care provider for a chronic or long-term health condition that is incurable or so serious that, if not treated, would likely result in a period of incapacity of more than three calendar days, and for prenatal care.

“Health care provider” means:

 doctors of medicine or osteopathy authorized to practice medicine or surgery by the state in which the doctor practices; or

 podiatrists, dentists, clinical psychologists, optometrists and chiropractors (limited to manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist) authorized to practice and performing within the scope of their practice, under state law; or,

 nurse practitioners and nurse-midwives authorized to practice, and performing within the scope of their practice, as defied under state law; or,

 Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts.

Maintenance of Health Benefits

A covered employer is required to maintain group health insurance coverage for an employee on FMLA leave whenever such insurance was provided before the leave was taken and on the same terms as if the employee had continued to work. If applicable, arrangements will need to be made for employees to pay their share of health insurance premiums while on leave.

In some instances, the employer may recover premiums it paid to maintain health coverage for an employee who fails to return to work from FMLA leave.

Job Restoration

Upon return from FMLA leave, an employee must be restored to his or her original job, or to an equivalent job with equivalent pay, benefits, and other employment terms and conditions.

In addition, an employee’s use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave.

Under specified and limited circumstances where restoration to employment will cause substantial and grievous economic injury to its operations, an employer may refuse to reinstate certain highly-paid “key” employees after using FMLA leave during which health coverage was maintained. In order to do so, the employer must:

 notify the employee of his/her status as a “key” employee in response to the employee’s notice of intent to take FMLA leave;

 notify the employee as soon as the employer decides it will deny job restoration and explain the reasons for this decision;

 offer the employee a reasonable opportunity to return to work from FMLA leave after giving this notice; and,

 make a final determination as to whether reinstatement will be denied at the end of the leave period if the employee then requests restoration.

A “key” employee is a salaried “eligible” employee who is among the highest paid ten percent of employees within 75 miles of the work site.

Notice and Certification

Employees seeking to use FMLA leave may be required to provide:

 30-day advance notice of the need to take FMLA leave when the need is foreseeable;

 medical certifications supporting the need for leave due to a serious health condition affecting the employee or an immediate family member;

 second or third medical opinions and periodic recertification (at the employer’s expense); and

 periodic reports during FMLA leave regarding the employee’s status and intent to return to work.

When leave is needed to care for an immediate family member or the employee’s own illness, and is for planned medical treatment, the employee must try to schedule treatment so as not to unduly disrupt the employer’s operation.

Covered employers must post a notice approved by the Secretary of Labor explaining rights and responsibilities under FMLA. An employer that willfully violates this positing requirement may be subject to a fine of up to $100 for each separate offense.

Also, covered employers must inform employees of their rights and responsibilities under FMLA, including giving specific information when an employee gives notice of FMLA leave on what is required of the employee and what might happen in certain circumstances, such as if the employee fails to return to work after FMLA leave.

Unlawful Acts

It is unlawful for any employer to interfere with,

restrain, or deny the exercise of any right provided by FMLA. It is also unlawful for an employer to discharge or discriminate against any individual for opposing any practice, or because of involvement in any proceeding, related to FMLA.

Enforcement

FMLA is enforced, including investigation of complaints, by the U.S. Labor Department’s Employment Standards Administration, Wage and Hour Division. If violations cannot be satisfactorily resolved, the Department may bring action in court to compel compliance. An eligible employee may also bring a private civil action against an employer for violations.

Other Provisions

Special rules apply to employees of local education agencies. Generally, these rules provide for FMLA leave to be taken in blocks of time when intermittent leave is needed or the leave is required near the end of a school term.

Salaried executive, administrative, and professional employees of covered employers who meet the Fair Labor Standards Act (FLSA) criteria for exemption from minimum wage and overtime under Regulations, 29 CFR part 541, do not lose their FLSA-exempt status by using any unpaid FMLA leave. This special exception to the “salary basis” requirements for FLSA’s exemption extends only to “eligible” employees’ use of leave required by FMLA.

The FMLA does not affect any other federal or state law which prohibits discrimination, nor supersede any state or local law which provides greater family or medical leave protection. Nor does it affect an employer’s obligation to provide greater leave rights under a collective bargaining agreement or employment benefit plan. The FMLA also encourages employers to provide more generous leave rights.

Further Information

For more information, please contact the nearest office of the Wage and Hour Division, listed in most telephone directories under U.S. Government, Department of Labor, Employment Standards Administration.