Policy 1426 – Family and Medical Leave Act of 1993
Revision Date: 02/09/2023
Last Review: 02/09/2023
Original Effective Date: 1993
Responsible Office: Office of Human Resources
Reference: U.S. Department of Labor/Wage & Hour Division
The Family and Medical Leave Act of 1993 entitles eligible employees to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to:
Twelve workweeks of leave in a 12-month period for:
- The birth of a child and to care for the newborn child within one year of birth;
- The placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
- To care for the employee’s spouse, child, or parent who has a serious health condition;
- A serious health condition that makes the employee unable to perform the essential functions of his or her job;
- Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or
Twenty-six workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’s spouse, son, daughter, parent, or next of kin (military caregiver leave).
- The U.S. Department of Labor has strongly indicated that the State will be treated as one employer. Therefore, we are taking the position that all classified employees are covered by this Act.
- A covered employee is entitled to twelve weeks of leave in a “year.” The Act requires the “employer” to choose one of four options as the “year.” Because of the needs of our 24-hour institution, we are designating a “first usage” year. This 12-month period begins with an employee’s “first usage” of FMLA leave.
- Employees must meet the following eligibility requirements:
- Employed for 12 months by the State and for at least 1,250 hours during the 12 months preceding the start of FMLA leave. The employee must have actually worked the 1,250 hours. Leave time is excluded.
- The 12-month period required for employment need not be continuous. If an employee has worked any part of each of 52 weeks, the 12-month employment requirement is considered met. These 52 weeks must have been within a reasonable time period.
- The following are some salient points that need to be addressed:
- An agency can place an employee on FMLA leave (paid or unpaid) even if the employee has not requested leave under FMLA. However, the employer should always require the employee to use paid leave first. This usually simplifies the problem with paying medical insurance premiums.
- The employee may utilize paid leave during FMLA leave and after exhaustion of sick leave, may use annual leave when the employee cannot work because of illness or injury.
- While an employee may be terminated for exhaustion of sick leave under Civil Service Rule 12.6, if that employee has not used all of the 12 weeks of FMLA leave, the employer will be in violation of the Act. Therefore, the employee should not be terminated unless FMLA leave has also been exhausted.
- The employer may designate absences as FMLA leave where the reason for the absence is covered by FMLA and the employee may demand to use appropriate paid leave during FMLA leave. In either case, the employer must advise the employee in writing with notice of the employee’s rights and obligations when such designation is made.
- The employee must give 30 days’ notice of the need for FMLA leave, or if not practicable, as much notice as is practicable.
- The leave is a 12-week only entitlement.
- Use of straight time compensatory leave is not prohibited for FMLA leave; however,
use of time and one-half compensatory leave is not allowed.
- All medical records submitted to the employer for verification of leave must be treated as confidential.
- The “key employee” provision of the act should not be used.
- Notice to employees
- Notice of rights containing at least those on the attached notice must be posted prominently.
- If the agency has a formal written policy or handbook covering leave and benefits,
FMLA rights must be included within that policy or handbook.
- Please use the resources available to you to become familiar with FMLA, as we expect that we will frequently deal with the rights and obligations created by the Act. In addition to the above issues, other important areas are:
- Eligibility of employee
- Causes for FMLA leave
- Definitions in the Act
- Medical certifications
- Maintenance of health and life insurance
- Record keeping
- Notices to employees