An employee who has been employed for a cumulative total of
12 months or more in the most recent seven-year period and who has worked at
least 1,250 hours during the 12-month period immediately preceding the date
leave is to begin shall be eligible for family and medical leave in accordance
with the federal Family and Medical Leave Act (FMLA) and 29 CFR Part 825, these
rules, and the policies of the department. Eligibility determinations shall be
made as of the date that the FMLA leave is to begin. The FMLA leave year begins
on the first day of each fiscal year. Eligible employees are entitled to FMLA
leave subject to the following conditions:
(1) It is the appointing authority's
responsibility to designate leave as FMLA leave. The appointing authority shall
designate leave as FMLA leave when the leave qualifies for FMLA leave, even if
the employee makes no request for FMLA leave or does not want the leave to be
counted as FMLA leave. When both spouses are employed by the state, they shall
be limited to a combined total of 12 weeks of FMLA leave taken in accordance
with paragraph
"a" or
"c" below. The hourly
equivalent for part-time employees shall be prorated based upon the average
number of hours worked during the previous 12 months. Leave may be for one or
more of the following reasons:
a. The birth or
placement with the employee of a son or daughter (biological child, adopted
child, foster child, stepchild, legal ward or a child to whom the employee
stands in loco parentis) for adoption or foster care provided the leave is
taken within 12 months following any such birth, adoption or foster
placement;
b. The care of a son or
daughter under 18 years of age, or older if incapable of self-care because of a
mental or physical disability, or spouse with a serious health
condition;
c. The care of a parent
or person who stood in loco parentis to the employee, with a serious health
condition;
d. A serious health
condition that makes an employee unable to work at all or perform any one of
the essential functions of the employee's position within the meaning of the
Americans with Disabilities Act (ADA), as amended,
42 U.S.C. Section
12101 et seq., and the regulations at
29
CFR Section
1630.2(n).
e. A qualifying exigency, as defined in
federal FMLA regulations, arising out of the fact that the employee's spouse,
son, daughter or parent is a covered servicemember on covered active duty, or
has been notified of an impending call or order to covered active duty, in a
foreign country.
f. To care for a
covered servicemember with a serious injury or illness if the employee is the
spouse, son, daughter, parent or next of kin of the servicemember, pursuant to
the FMLA regulations.
(2)
Leave may be taken on an intermittent basis or on a reduced work schedule basis
where this type of leave is medically necessary. The use of intermittent or
reduced work schedule leave for circumstances described in paragraph
"a" of subrule 63.4(1) shall be at the discretion of the
appointing authority. Approval of intermittent or reduced schedule leave for
circumstances described in paragraph "b," "c," "d," "e," or
"f" of subrule 63.4(1) is mandatory if certified by a health
care provider or proper military authority.
(3) Use of sick leave shall be in accordance
with rule
11-63.3 (8A).
When FMLA leave is taken pursuant to paragraph
"a," "b," "c,"
"e," or
"f" of subrule 63.4(1), an employee must
exhaust all paid vacation before unpaid leave is granted. However, sick leave
may be used to the extent authorized by subrule 63.3(11). When an employee
takes FMLA leave after the birth of a child and the employee has not received a
medical release to return to work, the employee must exhaust all accrued sick
leave and vacation before unpaid leave is granted. When the employee's medical
provider releases the employee to return to work, the employee is no longer
eligible to use paid sick leave; however, the employee may use leave as
authorized by subrule 63.3(11) and accrued vacation.
When FMLA leave is taken pursuant to paragraph
"d" of subrule 63.4(1), an employee must exhaust all paid sick
leave, compensatory leave, and vacation before unpaid leave is granted.
(4) An employee shall submit a
written request, using forms prescribed by the department, to the appointing
authority within 30 calendar days prior to the need for FMLA leave when the
need for the leave is foreseeable. In situations involving unforeseeable need
for leave and leave involving a birth, adoption, foster placement, or planned
medical treatment for an illness, the employee must provide notice as soon as
practicable after the employee learns of the need for the leave. Notice may be
made orally or in writing. Untimely requests or failure to provide notice or
mandatory information to the appointing authority may result in delay or denial
of the FMLA leave. The failure to follow mandatory leave policies may result in
discipline of the employee.
The appointing authority shall provide the employee with all
notices required by the federal Family and Medical Leave Act and the policies
of the department. Notices shall be provided to employees within the time
frames prescribed by the federal regulations and the policies of the
department. The appointing authority shall notify the employee using forms
prescribed by the department, or verbally when circumstances prevent delivery
of the forms. If verbal notification is made, the appointing authority shall
take reasonable steps to deliver written notification to the employee within
five workdays.
(5) The
appointing authority may, at the agency's expense, require a second opinion.
The appointing authority will designate the health care provider to furnish the
second opinion. In making the designation, the appointing authority shall
select a provider that is not employed on a regular basis by the appointing
authority. If the second opinion differs from the first, the appointing
authority may, at the agency's expense, require a third opinion from a health
care provider agreeable to both the employee and the appointing authority. The
third opinion shall be final and binding on both parties.
(6) During the period of leave, the
appointing authority shall pay the state's share of the employee's health,
dental, basic life, and long-term disability benefit insurance premiums.
Failure by the employee to pay the employee's share of the premiums will result
in a loss of coverage. The appointing authority shall provide notice to the
employee 15 calendar days prior to any retroactive or prospective cancellation
of benefits coverage. Upon return from FMLA leave, employees who have dropped
or canceled their health, dental, or life insurance benefits while on FMLA
leave will be restored to the same level of benefits as prior to the
commencement of leave upon completion of the necessary insurance applications
and other forms required by the department.
(7) Upon returning from FMLA leave, an
employee is entitled to no more rights or benefits than the employee would have
received had the leave not been taken. If an employee does not return from
leave because of the continuation, reoccurrence or onset of a serious health
condition, the appointing authority shall require written certification from
the health care provider. If the reason for the employee's failure to return is
not a certified serious health condition or other circumstances beyond the
control of the employee, the state may recover its share of health and dental
benefit insurance premiums paid during the period of leave.
(8) The appointing authority may request
periodic reports concerning the employee's medical status, and the date the
employee may return to work. Requests for periodic reports will be made no more
often than necessary depending on the facts and circumstances of each case and
shall not exceed one request every 30 days absent extenuating circumstances.
The appointing authority shall require written certification
from the health care provider that the employee is able to resume work before
allowing an employee with a serious health condition to return from FMLA leave.
Upon return from FMLA leave, the employee shall be placed in a position in the
same class held prior to the leave, or a class in the same pay grade for which
the employee qualifies, with the same pay, benefits, terms and conditions of
employment, and geographical proximate location, except that if a reduction in
force occurs while the employee is on leave, the employee's right to a position
shall be established in accordance with 11-Chapter 60.
(9) If an employee unequivocally advises the
employer that the employee does not intend to return to work, the employee's
entitlement to FMLA leave and associated benefits cease. The failure to return
to work upon the expiration of FMLA leave may be considered to be job
abandonment.
(10) If the employee is
unable to perform an essential function of the position because of a physical
or mental condition, including the continuation of a serious health condition,
the employee has no right to restoration to another position under the FMLA.
The appointing authority's obligations may be governed by the Americans with
Disabilities Act.
(11) An employee
remains a participant in the deferred compensation and dependent care programs
while on FMLA leave as authorized by these rules and the policies of the
department.
(12) FMLA leave runs
concurrently with other leave programs administered by the department to the
extent the leave qualifies as FMLA leave.
(13) FMLA leave runs concurrently with a
workers' compensation absence when the workers' compensation absence is one
that meets the FMLA criteria.
An employee can be offered "restricted light duty," and if
such restricted duty is refused, it may result in the loss of workers'
compensation benefits. Under the FMLA, the appointing authority may offer
restricted duty; however, if the employee refuses, the employee shall lose
workers' compensation benefits but is still protected by the FMLA.
Employees on workers' compensation who are on FMLA leave
concurrently and who are unable to return to work after the exhaustion of FMLA
leave are subject to state workers' compensation laws and will have no job
restoration rights under the FMLA.
(14) Retention of vacation leave.
Notwithstanding subrule 63.4(3), employees who qualify for FMLA leave are
eligible to retain up to two weeks (80 hours) of accrued vacation leave in each
fiscal year. An employee must elect, using forms prescribed by the department,
to retain vacation by submitting the form to the employer no later than seven
calendar days from the date it is determined that the employee's leave is
covered by FMLA. An employee will not be permitted to retain more vacation than
is in the employee's vacation bank at the time of election. Once the election
is made, it cannot be increased; however, it may be reduced, at any time, to
less than 80 hours. An employee will not be eligible to retain any donated
leave.
