Policy Bulletin No. 1995-01

Appendix I - FMLA - April 19, 1995

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TO: State Departments and Agencies
FROM: George C. Sinnott, Commissioner
SUBJECT: Family and Medical Leave Act

Final regulations implementing the Family and Medical Leave Act of 1993 (FMLA) have been issued by the United States Department of Labor (DOL) and took effect on April 6, 1995.

The DOL made several amendments to the regulations, necessitating changes in the guidance provided in Policy Bulletin 94-01 dated January 31, 1994, on implementation of the Family and Medical Leave Act. As of April 6, 1995, this memorandum should be read in conjunction with Policy Bulletin 94-01 in your administration of the benefits provided by the FMLA. Please note that we are replacing Attachments A, B and E(1) and E(2) from Policy Bulletin 94-01. The other attachments (C and D) remain unchanged.

Agencies are encouraged to contact the Employee Relations Section of the Department of Civil Service at (518) 457-2295 with any questions regarding implementation of the FMLA.

Attachments

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FMLA DEFINITIONS

(pages 6-7 of 94-01 and Attachment A)

While the definitions of spouse, parent, son and daughter remain unchanged, the new regulations have been amended to confirm that an agency may require an employee to provide reasonable documentation to establish the existence of a family relationship. The documentation may be an official document, such as a birth certificate or court order, or a simple statement from the employee attesting to the relationship.

The final regulations make significant changes in the definition of a serious health condition. The regulations have been revised to clarify that, for a period of incapacity to qualify as a "serious health condition, it must be for more than three consecutive calendar days. The regulations further clarify that any period of incapacity due to pregnancy, or for prenatal care, qualifies as "continuing treatment." The regulations amend the definition of "serious health condition" to include chronic conditions such as asthma and diabetes, which extend over a period of time but result in episodic rather than continuing periods of disability which may be less than three days. The reference to long-term chronic conditions that are incurable is amended to require that the condition involve a period of incapacity which is permanent or long-term and for which treatment may not be effective. Further, the regulations have been amended to restrict the exclusion for voluntary treatments for which treatment is not medically necessary to cosmetic treatments where inpatient care is not required or complications do not develop. Finally, the regulations clarify that while absences for treatment for substance abuse are covered, absences resulting from use of the substance are not.

A copy of the full definition is attached to replace Attachment A of 94-01.
[See List of Attachments below.]

COMPARISONS OF FMLA LEAVE DEFINITIONS WITH ATTENDANCE RULES PROVISIONS AND NEGOTIATED AGREEMENTS

Pregnancy, Childbirth and Childcare

(page 8 of 94-01)

Under the regulations, an employee cannot be limited to one 12-week period of FMLA leave for birth or placement of a son or daughter, if the 12-month period immediately following childbirth, adoption or foster care placement spans two calendar years. In such a case, the employee is eligible under FMLA for up to 12 weeks...

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... of leave in each calendar year. This is a change from our previous understanding of this entitlement. However, it remains a requirement that the leave be concluded within the 12 months following birth or placement. For example, an employee who gives birth in October 1994 may receive 12 weeks of FMLA leave from October through December 1994. This employee is again eligible for up to 12 weeks of FMLA leave for child care beginning in January of 1995.

Similarly, an employee who takes 12 weeks of FMLA leave from June-August 1994, and is then on leave without pay through December 1994, is again eligible for up to 12 weeks of FMLA leave for child care beginning January 1995, provided the employee meets the 1250 hour eligibility requirement.

USE OF LEAVE CREDITS

(page 10 of 94-01)

The new regulations clarify that employees eligible to earn compensatory time for hours worked in excess of 40 in a workweek cannot charge such credits during a period of FMLA leave.

Managerial/confidential employees are presently the only employees who may agree to earn compensatory time for hours worked over 40 rather than being paid overtime.

AMOUNT OF LEAVE TO BE GRANTED AND PROCEDURES

(pages 10-14 of 94-01)

The regulations clarify that, whether an employee requests leave to be continuous, intermittent or on a reduced schedule basis, the employee need only give notice one time, but must advise the agency "as soon as practicable" of any change in dates of scheduled leave or any extension of such leave. Employees can be required to attempt to schedule planned medical treatment so as not to unduly disrupt the agency's operations, subject to the approval of the employee's health care provider.

The final regulations require agencies to designate FMLA leave at the time leave is requested, whenever possible. Specifically, the final regulations confirm that designation of leave as FMLA leave must be made at the time the employee gives notice of the need for leave or the leave commences, provided the agency has the necessary information to make that determination. Ordinarily this designation must occur within two business days of receipt of necessary information, absent extenuating circumstances. If the...

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...agency has sufficient information but fails to notify the employee that the leave is being designated as FMLA, the agency may not then designate the leave as FMLA retroactively, only prospectively as of the date of notice to the employee. Notice may be oral but must be confirmed in writing no later than the next regular payday unless less than a week remains until payday.

Where an agency has requested and is awaiting receipt of medical certification or other documentation, or is in the process of obtaining a second or third medical opinion, the agency should provisionally designate the leave as FMLA and the employee should be so notified. Upon confirmation that the leave is for an FMLA reason, the preliminary designation becomes final and the leave may be counted against FMLA leave. If the designation is withdrawn, the employee must be so notified in writing.

The regulations permit retroactive designation of ongoing leave as FMLA when an agency learns after leave has begun that a leave is for FMLA qualifying reasons, such as, when an employee gives notice of the need for an extension of leave because a previously non-qualifying medical condition has turned into a serious qualifying condition.

The regulations provide for two exceptions to the prohibition against retroactively designating leave as FMLA leave after the employee returns to work. These exceptions are as follows:

1. If an employee is out for an FMLA qualifying reason and the agency does not learn of the reason for the leave until the employee returns to work, the agency may designate the leave as FMLA leave, within two business days of the employee's return to work (including a provisional designation subject to confirmation upon the receipt of medical certification if required by the agency).
2. If the agency has provisionally designated the leave under FMLA and is awaiting medical certification or other confirming documentation, or the employee and employer are in the process of obtaining second or third medical opinions.

The regulations similarly require an employee to give notice that a leave is requested as FMLA leave within two work days after returning to work.

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While confirming that information on which a designation is based cannot be obtained from sources other than the employee, the regulations clarify that information may be obtained from spokespersons for the employee where the employee is incapacitated or designates a spokesperson, such as a parent, spouse, adult child or doctor. Where an employee does not provide information regarding the reason for the leave, the leave may be denied.

In cases of intermittent absence, notice of designation as FMLA leave need only be given once in each six month period, in response to the first notice of designation from the employee of the need for leave, provided the notice given at the beginning of the six-month period clarifies requirements regarding medical certification and return to work certification.

Work-Related Disability

(page 14 of 94-01)

When workers' compensation leave and FMLA leave run concurrently and an agency offers an employee a limited duty assignment which the employee refuses, the employee is placed on the appropriate leave without pay status (so long as the State Insurance Fund continues to deem the absence to be compensable) and cannot charge credits or use sick leave at half-pay. (For example, consistent with current program administration, CSEA-represented employees continue on workers' compensation disability leave without pay.)

The FMLA regulations modify administration of workers' compensation benefits only for Council 82 represented employees. If they refuse light duty, they must be placed on FMLA leave without pay rather than on ordinary leave without pay for the balance of their12-week entitlement in order to ensure continuation of health insurance.

MEDICAL CERTIFICATION

(pages 14-16 of 94-01)

When the leave is foreseeable and 30 days notice has been provided, the employee should provide medical certification before leave begins. When not possible, the regulations confirm that the employee must submit medical certification within the time frame requested by the agency, which must allow at least 15 calendar days after the agency's request, unless it is not practicable under the circumstances to do so. Ordinarily, the agency's request for medical certification would occur at the time leave is originally requested; however, the 15 day limit also applies to...

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... recertifications. The regulations permit the agency to make a provisional designation of leave as FMLA leave in cases where required medical certification was not provided prior to commencement of the leave or where the agency is waiting for a second or third medical opinion; the agency may then confirm or withdraw the designation depending upon the documentation even if the employee has returned to work.

The regulations have been amended to provide that a health care provider representing the agency may contact the employee's health care provider with the employee's permission for the purposes of clarifying the information in the medical certification and authenticity. However, an employer may not seek additional information regarding the employee's condition.

Where second or third medical opinions are required, the agency must reimburse an employee for any expenses incurred in obtaining the required second or third opinion. (Second and third opinions are not permitted in connection with recertifications.)

The regulations add clinical social workers to the list of health care providers. The regulations also recognize health care providers performing within the scope of their legally authorized practice in a country other than the United States.

The optional medical certification form (Attachment B of 94-01) has been modified to allow agencies to obtain information from health care providers to verify that an employee has a serious health condition without requiring unnecessary information. Specific changes include elimination of the diagnosis section, and the requirement to identify which part of the FMLA definition of serious health condition applies and what medical facts support the definition. The revised form stresses that information sought relates only to the condition for which the employee is taking FMLA leave. A copy is attached. (Be sure that if you use your own form rather than the Attachment it does not ask for more information.)

REINSTATEMENT RIGHTS

(page 18 of 94-01)

The agency may require the employee to give reasonable notice (generally at least two business days) of changed circumstances resulting in an earlier than anticipated return from FMLA leave (or the need to extend the leave).

Attachment A. Definition of Serious Health Condition (163KB) [pdf]*

Attachment B. Certification of Health Care Provider (184KB)[pdf]*

Attachment E(1). Sample Memorandum for Agency Response to Employee Request for Family or Medical Leave (108KB) [pdf]*

Attachment E(2). Sample Memorandum for Agency Designation of Family or Medical Leave (106KB)[pdf]*

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