state employee fmla and federal fmla

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State Employee FMLA and Federal FMLA

CSEA

December 6, 2010

Heidi Lane

Office of Program Policy

Connecticut Department of Labor

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There are 2 FMLA laws that you need to understand

State Employee FMLA – Section 5-248a et seq. of the Connecticut General Statutes

Federal FMLA

(There is a 3rd FMLA law, but it is for private sector employers with 75 or more employees)

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This is an overview of those 2 laws. It is not intended as legal advice. If you have questions, you should contact either DAS (for State Employee FMLA) or USDOL (for federal FMLA)

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State Employee FMLA Basic Employee Eligibility

To be eligible - must be “permanent employee”

“Permanent” does not include a newly hired employee in working test period

Temporary and durational employees are not eligible for State Employee FMLA

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Federal FMLA Basis Employee Eligibility

The Employee must have: Worked for the employer for at least 12

months prior to commencing FMLA leave Worked at least 1,250 hours in the 12 months

prior to commencing FMLA leave

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FMLA eligibility

If an employee is not eligible to take State Employee FMLA leave (for example; not a permanent employee), then look to see if the employee is eligible under the Federal FMLA

If employee is not eligible to take the federal FMLA (for example; has only worked for the State for 10 months), then look to see if the employee is eligible under the State Employee law

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State Employee FMLA Basic Provisions

24-week entitlement every two years An employee’s 24-week entitlement does not

begin to run until after he or she has exhausted his or her sick leave entitlements

The two year period begins the first day of the leave Ex.: If leave begins on February 5, 2009, the two year

period begins on that date and ends on February 5, 2011

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Federal FMLA Basic Provisions

For federal FMLA, 12 weeks every 12 months

The State, as an employer for federal FMLA purposes, uses the 12 months measured forward from the date the leave begins Ex.: If leave begins on February 5, 2009, the 12

month period begins on that date and ends on February 5, 2010

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If both you and your spouse work for the State of Connecticut and are eligible for federal FMLA leave, you may be limited to a combined total of 12 weeks of leave during any 12-month period, if the reason for the leave is the birth or adoption of a child, the placement of a foster child or to care for a parent who has a serious health condition

There is no spousal limitation under State Employee FMLA

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Is Federal FMLA Paid or Unpaid?

Generally, federal FMLA leave is unpaid An eligible employee may choose accrued paid

leave to run concurrently with federal FMLA or the State as the employer may require employee’s accrued paid leave to run concurrently with FMLA leave

The State does require employees to use accrued sick leave for the employee’s own serious health condition under the federal FMLA

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Is State Employee FMLA Paid or Unpaid?

Any leave under the State Employee FMLA shall be unpaid (However, vacation leave does count towards State Employee FMLA leave)

If you are taking a leave of absence in connection with your own serious illness or serious health condition, you are required to exhaust all accrued sick leave unless your labor contract states otherwise.

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If you are eligible for State Employee FMLA, your State Employee FMLA will not start until after you exhaust all of your own accrued sick leave

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Generally, federal FMLA is an unpaid leave If you are eligible for federal FMLA leave,

taking a leave for your own serious health condition, and getting paid for the time, the leave will run concurrently with the use of your accrued sick leave (and any other paid leave accruals you may choose to use)

∗ Donated sick time or benefits under a Sick Leave Bank will run concurrently with both your federal and/or state leave entitlement

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If you are eligible for both State Employee FMLA and federal FMLA leave, generally the leaves will run concurrently The use of accrued sick time, however, may

affect when the leaves run concurrently There are special rules regarding when

Military Family leave runs concurrently with federal FMLA leave

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Definitions

Parent - a biological, foster, adoptive or stepparent, or legal guardian of an eligible employee, or an individual who stood in loco parentis to an employee when the employee was a son or daughter (parent-in-law is not covered by either FMLA law)

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Definitions

Son or daughter - a biological, adopted, foster child, stepchild, legal ward, or child of a person standing in loco parentis, who is (A) under eighteen years of age; or (B) eighteen years of age or older and

incapable of self-care because of a mental or physical disability

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Definitions

Incapable of self-care - requires active assistance or supervision to provide daily self-care in several of the “activities of daily living” or “instrumental activities of daily living”

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Definitions

Spouse Federal - husband or wife State Employee FMLA - includes same sex

marriage

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State Employee FMLA - Serious Illness

An illness, injury, impairment or physical or mental condition that involves (1) inpatient care in a hospital, hospice or residential

care facility or (2) continuing treatment or continuing supervision by

a health care provider (This definition under the State Employee FMLA gives little guidance or explanation so refer to the federal FMLA definition of serious health condition for guidance)

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SERIOUS HEALTH CONDITION

An illness, injury, impairment, or physical or mental condition which involves:

(1) Inpatient care and treatment therefor or recovery therefrom

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(2) Continuing treatment by a health care provider with incapacity of more than 3 full consecutive calendar days, AND:

2 or more treatments by a health care provider

(1st visit within 7 days of first day of incapacity and 2nd visit within 30 days of first day of incapacity)

OR

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(3) Continuing treatment by a health care provider with incapacity of more than 3 full consecutive calendar days, AND:

1 treatment by a health care provider (within 7 days of the first day of incapacity) with a regimen of continuing treatment

regimen of continuing treatment includes prescription medication or physical therapy

incapacity means inability to work or go to school or perform other regular daily activities

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(4) Any period of incapacity because of pregnancy or prenatal care A doctor’s visit at the time of each absence

is not required

Pregnancy Disability Act (Commission on Human Rights and Opportunities)

In Connecticut, a pregnant employee is entitled to a “reasonable leave of absence for the period of disability resulting from pregnancy.”

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(5) Chronic condition

Any period of incapacity due to a chronic condition which : Requires periodic visits for treatment (2 per year) Continues over an extended period of time May cause episodic rather than continuous incapacity,

i.e., “intermittent leave” A doctor’s visit at the time of each absence is not

required Examples - Asthma, Migraines

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(6) Any period of incapacity for restorative surgery or for conditions that if left untreated would result in incapacity of more than three consecutive calendar days Chemotherapy or radiation for cancer Dialysis for kidney disease

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(7) Any period of incapacity for a permanent or long term condition under the continuing supervision of a health care providerAlzheimer’s, stroke

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SUMMARY OF SERIOUS HEALTH CONDITION

1. Inpatient2. Incapacitated more than 3 consecutive calendar days plus two

HCP visits (1st within 7 days, 2nd within 30 days)3. Incapacitated more than 3 consecutive calendar days plus one

HCP visit (within 7 days) and regimen of treatment (prescription medicine, physical therapy, etc.)

4. Chronic5. Pregnancy6. Restorative surgery/illness left untreated7. Long-term condition

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What triggers the FMLA?

The birth of a child and the care for such child within the first year after birth;

The placement of a child with the employee for adoption or foster care and the care for the newly placed child (Foster care is not covered by the State Employee FMLA);

To care for a spouse, son, daughter or parent with a serious health condition;

Because of the employee’s own serious health condition; To serve as an organ or bone marrow donor

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Placement of Foster Child/Adoption

In the case of the placement of a foster child, you must provide a letter from the state establishing the placement date

In the case of adoption, you must provide a letter from the adoption agency establishing the date of the adoption

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Initiating the Leave

When the need for leave is FORESEEABLE: Typically 30 day advance request

When the need for leave is NOT FORESEEABLE: Notify employer as soon as practicable

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EMPLOYEE NOTICE

If the employee is calling in absent, he or she must give adequate information to indicate that the illness may be FMLA qualifying“I am sick” is not sufficient

When employee calls in absent due to an already approved leave, employee must notify employer that the leave is due to previously qualifying FMLA reason

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Request for Leave

Complete the Form FMLA-HR1 Employee Request for Leave of Absence under the federal FMLA and/or state FMLA - C.G.S. 5-248a

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NEW FORMS

Notice of Eligibility and Rights and Responsibilities (Form FMLA-HR2a)

The employer must provide a notice detailing expectations and obligations, and explaining the consequences of failing to comply Leave may count towards FMLA entitlement Medical certification requirements Right to substitute paid leave Right to reinstatement

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Medical Certification

Employer may request certification of the serious health condition by a health care provider

Employee must be given at least 15 days after receipt of the form from the employer to return the medical certification

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Medical Certification Forms

Form P-33A-Employee – Medical certificate to be completed when the leave is employee’s own illness, including the disability portion of maternity leave

Form P-33B-Caregiver – Medical certificate to be completed when employee requests a leave to care for a child, spouse or parent with a serious health condition/serious illness

An employee may also be required to produce documentation demonstrating the required relationship between the employee and the family member

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MEDICAL CERTIFICATION

CureIf employer finds certification incomplete

or insufficient:

Must give employee 7 days to cure an incomplete certification

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Incomplete - one or more of the entries have not been completed

Insufficient - the information provided is vague, ambiguous, or non-responsive

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Authentication and Clarification

Employer personnel such as HR (not supervisor) may call HCP for authentication and clarification If employee fails to give authorization (after

opportunity to cure), then may be in jeopardy of being denied FMLA

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SECOND OPINION Employee or the employee’s family member must

release relevant medical information pertaining to the serious health condition to second opinion HCP

THIRD OPINION - binding

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TRANSLATION Employees must provide a

translation for any medical certification in a foreign language

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NEW FORM

Form FMLA-HR2b - Designation Notice The employer must inform the employee whether

the leave has been approved and designated as FMLA Whether leave designated as qualifying Requirements for substitution of paid leave Requirements for fitness-for-duty Amount of leave counted against entitlement

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RECERTIFICATION

RULE – recertifications no more than every 30 days in conjunction with an absence

Employer may ask for recertification on a “reasonable basis”

Federal FMLA permits more frequent recertification in cases of fraud, significantly changed circumstances of the leave or in response to requests for extension of the leave

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RECERTIFICATION

The Employer has the right to request recertification if the employee has a pattern of taking Mondays and Fridays off

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Fitness-for-Duty Certification

Employer can require employee to provide a “fitness-for-duty” certification upon return from continuous absence due to employee’s own serious health condition

Federal FMLA allows employers to seek a more detailed fitness-for-duty certification addressing whether the employee can perform essential functions

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Fitness-for-Duty Certification

Federal – allows employer to require “fitness for duty” note every 30 days for employee on intermittent leave in conjunction with an absence Must be “reasonable safety concerns”

regarding employee’s ability to perform job

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Confidentiality of Health Records

Records and documents relating to medical information created for the FMLA shall be maintained as separate, confidential medical records

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Federal FMLA Intermittent Leave

Federal FMLA leave may be taken intermittently or on a reduced leave schedule under certain circumstances When medically necessary for planned and/or

unanticipated medical treatment or for recovery from treatment or recovery from a serious health condition or for the care and comfort of a family member or for absences where employee or family member is incapacitated

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NO INTERMITTENT LEAVE UNDER THE STATE EMPLOYEE FMLA

THERE IS NO INTERMITTENT LEAVE UNDER THE STATE EMPLOYEE FMLA

If an employee needs intermittent leave, he or she must qualify as an eligible employee under the federal FMLA

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Scheduling of Intermittent Leave Under the federal FMLA

If an employee needs leave intermittently or on a reduced leave schedule for planned medical treatment, then the employee must make a reasonable effort to schedule the treatment so as not to disrupt unduly the employer’s operations

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Transfer

If an employee needs intermittent leave or leave on a reduced leave schedule that is foreseeable based on planned medical treatment the employer may require the employee to transfer temporarily, during the period that the intermittent or reduced leave schedule is required, to an available alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee’s regular position

The alternative position must have equivalent pay and benefits but does not have to have equivalent duties

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Intermittent Leave

The policy for the State of Connecticut is that you cannot take federal FMLA intermittent leave or go on a reduced leave schedule for the birth or adoption of a child or the placement of a foster child with you.

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Prohibited Acts

Employee must be returned to the same job or to an equivalent position after leave

An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period

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Prohibited Acts

Employer may not discriminate against employee for requesting or taking FMLA leave

May not base any actions against the employee on leave which was, or should have been classified as FMLA-qualifying

state employee fmla and federal fmla

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