Policy Bulletin No. 1994-01

Appendix I - FMLA - January 31, 1994 (Part 1; pages 1 through 9)

[Go to Part 2; pages 10 thru 18]

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TO: State Departments and Agencies
FROM: Josephine L. Gambino, Commissioner
SUBJECT: The Family and Medical Leave Act of 1993

This bulletin replaces Policy Bulletin 93-06, dated August 5, 1993 and provides more detailed guidelines on New York State's implementation of the Family and Medical Leave Act (FMLA) which was signed into law on February 5, 1993.

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. Agencies should be aware, however, that, unlike leave benefits which are based in rule or negotiated agreement, the Department of Civil Service has no statutory authority for implementation of the FMLA, a federal law which is administered by the U.S. Department of Labor. The policies and procedures set forth in this memorandum represent New York State's interpretation, as an employer, of the rights and obligations under the FMLA and its impact on benefits currently provided by law, rule, regulation and/or negotiated agreement. As issues are clarified by the Wage and Hour Division of the U.S. Department of Labor or by court decision, we will provide additional information.

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TABLE OF CONTENTS [for Part 1 of 2]

Topic	Page
INTRODUCTION	3
EFFECTIVE DATES	4
BASIC ELIGIBILITY REQUIREMENTS	4
CATAGORIES OF FMLA LEAVE	6
FMLA DEFINITIONS	6
COMPARISONS OF FMLA LEAVE WITH ATTENDANCE RULES PROVISIONS AND NEGOTIATED AGREEMENTS	7
Foster Care	8
Pregnancy, Childbirth and Child Care	8
Serious Health Condition	8
Family Illness	9
Go to Part 2 of 2 of this Bulletin

 

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INTRODUCTION

The Family and Medical Leave Act (FMLA) is intended to balance the demands of the workplace with the needs of families. By providing workers faced with family obligations or serious family or personal illness with reasonable amounts of leave, the FMLA encourages stability in the family and productivity in the workplace.

The FMLA gives eligible employees of a covered employer the right to take unpaid leave, or paid leave charged to appropriate leave credits under certain circumstances, for a period of up to 12 workweeks in a 12-month period due to: 1) the birth of a child or the placement of a child for adoption or foster care; 2) the employee's need to care for a family member (child, spouse, or parent) with a serious health condition; or 3) the employee's own serious health condition which makes the employee unable to do his or her job. Under certain conditions, FMLA leave may be taken on an intermittent basis. Employees are also entitled to continuation of health and certain other insurances, provided the employee pays his or her share of the premium during this period of leave.

The employer has a right to 30 days' advance notice from the employee, where practicable. In addition, the employer may require an employee to submit certification from a health care provider to substantiate that the leave is due to the serious health condition of the employee or member of the family. The employer may also require medical documentation from an employee absent due to personal illness as a condition of return to work.

New entitlements for State employees as a result of the FMLA are the following:

• Leave for foster care placement.
• Health insurance coverage at employee share cost during
  periods of FMLA leave without pay.
• Mandatory leave for certain absences in connection with family illness.

Additionally, the FMLA contains procedural requirements that impact on employee absences requiring agencies to make changes in their current procedures.

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EFFECTIVE DATES

FMLA is effective for employees covered under collective bargaining agreements on February 5, 1994, and for non-represented employees on August 5, 1993. (Non-represented employees include Managerial/Confidential employees and other Executive Branch employees not assigned to bargaining units.)

BASIC ELIGIBILITY REQUIREMENTS

Public employers are covered by FMLA regardless of the number of individuals they employ. In addition, each state constitutes a single employer for FMLA purposes. Executive Branch employees are covered by the provisions of the FMLA regardless of negotiating unit status, jurisdictional class, appointment type, etc. Attendance Rules coverage is not a criteria for coverage under the FMLA. To be eligible to be granted leave under the FMLA, however, employees must meet certain minimum service requirements as detailed below.

Since New York State is to be treated as a single employer for purposes of determining whether an employee meets the service requirements for establishing eligibility under FMLA, service in any combination of agencies is to be counted. In addition, the FMLA does not require that an employee have continuous service; the FMLA only requires a minimum amount of service over a period of time as follows:

an eligible employee is one who has been employed for at least 12 cumulative months (52 cumulative weeks) and has performed a minimum of 1250 hours of service during the 12 consecutive months immediately preceding the date the leave is requested to begin.

Executive Branch employees will be deemed to have met these minimum service requirements to request FMLA leave if:

• the employee will have been employed for at least 12 cumulative months (including periods of short-term disability leave [STD] and sick leave at half-pay) on the date FMLA leave is to begin. An employee's total State service must be counted when determining if the employee has completed the required 52 cumulative weeks of service, regardless of any breaks in service and...

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...regardless of the percentage of time paid during each of
the 52 weeks;

AND

• the employee must have been paid for a minimum of 1250 hours during the 52 weeks immediately preceding the date FMLA leave is to begin.

Once it has been determined that an employee has worked the 12 cumulative months, that eligibility criterion has been met for the remainder of the individual's career. However, agencies need to determine if an employee meets the 1,250 hours of service requirement each time the employee requests or is placed on FMLA leave.

When counting the number of hours necessary to meet these minimum hourly requirements, the agency must include all hours the employee was paid and:

• worked (his/her schedule, extra hours outside the schedule or overtime);
• charged leave credits (except donated leave credits);
• was absent on paid leave (e.g., jury leave, military leave, any type of workers' compensation leave);
• was absent on sick leave at half-pay;
• was absent on STD;
• was absent on VR time.

To avoid having to calculate actual hours for every employee each time FMLA leave is granted, agencies should note the following. Any employee with a 37.5 hour basic workweek will have met the 1250 hour threshold by being continuously on the payroll at 65 percent or more, in one of the statuses described above, during the 52 weeks preceding the leave. For employees with a 40-hour basic workweek, that minimum is 61 percent.

In determining eligibility, it is important to ascertain whether part-time employees, regardless of their regular employment percentage, have met the 1250-hour threshold FMLA eligibility requirement (for example, by working additional hours beyond their normal work schedule).

Each time an FMLA request is made agencies should review eligibility as of the date the leave is scheduled to begin to...

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...determine whether formerly ineligible employees have now met the eligibility criteria or, conversely, to determine if formerly eligible employees have lost eligibility (for example, as the result of extended leave without pay).

The FMLA permits an employer to deny restoration of employment to certain designated "key" employees (those among the highest paid ten percent of employees at a work site) if "substantial and grievous economic injury to the employer would result." It is important to note that the economic injury must result from the employee's restoration to employment -- not from the employee's absence. The United States Department of Labor recognizes that such a test is extremely difficult to meet. It is anticipated, therefore, that this provision would be invoked only in exceptional cases. Cases where agency management wishes to invoke this provision must be reviewed and approved by the Governor's Office of Employee Relations.

CATEGORIES OF FMLA LEAVE

Leave may be requested under FMLA for the following reasons:

1. For the birth, adoption or foster placement of a child.
2. For personal illness resulting from a serious health condition that makes the employee unable to perform the functions of his or her job. (This includes a serious health condition that results from an on-the-job injury.)
3. To care for an employee's spouse, parent, son or daughter with a serious health condition.

FMLA DEFINITIONS

The FMLA contains the following definitions:

1. A serious health condition means an illness, injury, impairment or physical or medical condition that involves:
   1. Any period of incapacity or treatment in connection with or consequent to inpatient care in a hospital, hospice, or residential medical care facility; or
      

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2. Any period of incapacity requiring absence from work, school or other regular daily activities of more than three calendar days, that also involves continuing treatment by (or supervision of) a health care provider; or
3. Continuing treatment by or under the supervision of a health care provider for a chronic or long-term health condition that is incurable or so serious that if not treated would result in a period of incapacity of more than three calendar days; or
4. Ongoing prenatal care and treatment.

It should be noted that routine preventive physical exams, apart from prenatal exams, do not meet the FMLA definition of continuing treatment for a serious health condition. See Attachment A for the full definition of a serious health condition as it appears in the FMLA.

2. A child is a biological, adopted or foster child, a stepchild, a legal ward or a child of a person standing in loco parentis who is either under age 18 or age 18 or older and incapable of self-care because of a physical or mental disability.
3. A parent is a biological or adoptive parent or an individual who stands or stood in loco parentis to an employee when the employee was a child.
4. A spouse is a husband or wife as recognized under State law for purposes of marriage, including common law marriages where recognized. (New York State recognizes only those common law marriages which originated in states that recognize their legal status.)

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

New York State currently provides leave benefits which can be used for many of the same reasons for which FMLA is available. The following are examples of leave entitlements under FMLA and how they relate to current State policy.

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Foster Care

Under FMLA, leave must be granted for official placement of a foster child, as well as for adoption and for child care in connection with childbirth. Leave for foster placement is a new entitlement for State employees; current State policy provides a seven-month leave in connection with adoption or child care following childbirth, but does not provide a similar leave for foster care placement. Therefore, covered employees requesting leave for foster placement are eligible only for the 12-week leave authorized by the FMLA.

Pregnancy, Childbirth and Child Care

With respect to leave for disability in connection with pregnancy and childbirth and leave for child care following childbirth or in connection with adoption, FMLA should be designated to run concurrently with leave pursuant to State policy for the employee's available entitlement to FMLA leave. Once that FMLA entitlement is exhausted, the eligible employee may continue on leave pursuant to State policy.

Under New York State's child care leave policies, mandatory leave is granted for up to seven months beginning with the date of birth. In the case of adoption, leave may commence at any point from placement to the actual date the adoption is finalized; the leave is mandatory for seven months from the date it begins. Under the FMLA, an employee may choose to begin his/her 12-week child care leave at any point within the first 12 months following birth or placement. Such leave must end, however, within this same 12-month period. Since New York State is designating leaves to run concurrently, however, generally FMLA will be exhausted within the seven-month period of mandatory leave under New York State policy.

Serious Health Condition

The FMLA definition of a serious health condition is generally more restrictive than the reasons an employee can use sick leave (or other credits as sick leave) under the Attendance Rules. Therefore, there will be occasions when an employee is on sick leave when it is not countable toward the 12-week entitlement under FMLA. In other situations where the nature of the disability meets the FMLA definition of a serious health condition, an employee on sick leave under the Rules would also have his/her absence count...

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...against the 12-week FMLA entitlement. The agency makes the determination as to whether the absence qualifies as an FMLA absence whether or not the employee makes a request. (See Amount of Leave to be Granted and Use of Leave Credits.)

Family Illness

Leave for family illness under FMLA differs from family sick leave under the Attendance Rules in both definition of a qualifying medical condition (as described above) and in the categories of family members the employee can be granted leave to care for (refer to the chart below which summarizes the differences in categories of relatives).

Eligibility for Leave for Illness in Family

Relationship	New York State Family Sick Leave (FSL)	Federal Family and Medical Leave Act (FMLA)
Spouse	Yes	Yes
Spousal Equivalent	Only if residing with employee	No, regardless of residence
Child Under 18 or Impaired	Yes	Yes
Child Over 18, not Impaired	Yes	No
Foster Child or Child in Loco Parentis	Only if residing with employee	Yes, regardless of residence
Parents	Yes	Yes
Parent-in-Law	Yes	No
Foster Parent or Parent in Loco Parentis	Only if residing with employee	Yes, regardless of residence
Other Relatives or Relatives-in-Law	Yes	No

[Continue to Part 2 of 2; pages 10 thru 18]

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