Advisory Memorandum No. 1995-04

Appendix I - FMLA - December 8, 1995

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TO: Manual Recipients
FROM: Peter Elmendorf, Personnel Services Division
SUBJECT: Impact of Family and Medical Leave Act on Sections 71 and 73 of the Civil Service Law

The purpose of this memorandum is to clarify the impact of the Family and Medical Leave Act (FMLA) on the operation of Sections 71 and 73 of the Civil Service Law.

Section 71 of the Civil Service Law permits the termination of an employee who, as the result of a single occupational injury or illness, has been absent for one cumulative year or who is found to be permanently disabled. Periods of absence for that occupational injury or illness which have been designated as FMLA leave count toward the calculation of the cumulative year.

Similarly, Section 73 of the Civil Service Law permits the termination of an employee who has been absent for one continuous year due to non-occupational personal disability. Periods of that absence which have been designated as FMLA leave count toward the calculation of the continuous year.

However, an employee who is on leave due to a serious health condition should not be terminated pursuant to Section 71 or 73 while absent on FMLA leave.

Since eligible employees are entitled to up to 12 weeks of FMLA leave in each calendar year, this means that an employee must first have exhausted his/her 12-week FMLA entitlement in the current calendar year before being terminated.

Where an employee's continuous year of absence due to ordinary disability spans two calendar years, the employee should not be terminated under Section 73 during the first twelve weeks of the second calendar year since he/she would not yet have exhausted his/her FMLA leave entitlement for that calendar year. For example, an employee with a Monday through Friday work schedule who is continuously absent for ordinary disability beginning February 21, 1995, should not be terminated before March 22, 1996, even though he/she would have been absent one continuous year on February 21, 1996.

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For purposes of Section 71, where leave may be intermittent, an employee whose intermittent leave spans more than one calendar year should not be terminated until he/she

1. has exhausted his/her FMLA leave entitlement in the current calendar year and
2. has reached the one cumulative year threshold or has been determined to be permanently disabled.

For example, an employee absent for a total of six months in 1994, five months in 1995, and again absent in 1996 should not be terminated under Section 71 in 1996 until he/she has reached the one cumulative year threshold and has exhausted his/her FMLA entitlement in 1996.

If this employee uses up his/her FMLA entitlement in 1996 for reasons other than the workers' compensation absence and then is absent because of a compensable injury or illness, he/she could be terminated as soon as he/she reaches the one cumulative year. Alternatively, if this employee uses four weeks of FMLA leave in 1996 for the compensable absence and then uses the remaining eight weeks of his/her 1996 FMLA entitlement to care for an ill family member, he/she could be separated if absent again in 1996 for the compensable illness or injury since the cumulative year threshold has been exceeded and the 1996 FMLA entitlement has been exhausted.

Agencies are reminded that each time an employee is granted FMLA leave, he/she must requalify in terms of having rendered 1250 hours of service within the 12-month period immediately preceding that period of FMLA leave. An employee must requalify for each period of FMLA leave even if such periods are part of a single continuous absence. (See General Information Bulletin No. 95-01, dated June 6, 1995, for a further discussion of this issue.)

Questions may be directed to the Employee Relations Section of the Department of Civil Service at (518) 457-2295 or 457-5167.

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