CONTRA COSTA COUNTY FAMILY & MEDICAL LEAVE ACT REVISED 4/2010
FAMILY & MEDICAL LEAVE ACT Table of Contents Introduction to the Family & Medical Leave Act (FMLA)...1 Posting Requirements...2 Employees Eligible for FMLA Leave...3 Permitted Reasons for FMLA Leave...4 How Much FMLA Leave are Contra Costa County Employees Entitled to?...7 What is a Serious Health Condition Entitling an Employee to FMLA Leave for Self or Qualifying Family Member?...9 What is Not a Serious Health Condition?...11 Health Care Providers...12 Designation of Leave...13 Employee Reporting Requirements...13 Required Notices...14 Workers Compensation...17 Medical Certifications...18 Requesting Recertifications...20 Employee s Intent to Return to Work...21 Fitness for Duty Reports...22 Use of Accruals...23 Maintenance of Benefits...24 Reinstatement from FMLA Leave...25 Denying Job Restoration...25 Leaves Related to Pregnancy, Childbirth & Baby-Bonding...26 Paid Family Leave...29 Leave Checklist...31
FAMILY & MEDICAL LEAVE ACT Appendix Family and Medical Leave Act Notice (Your Rights)...A Notice of Eligibility and Rights and Responsibilities Form...B Designation Notice Form...C Certification of Health Care Provider for Employee s Serious Health Condition Form...D Certification of Health Care Provider for Family Member s Serious Health Condition Form... E Pregnancy Disability Leave Notice... F Family Care and Medical Leave (CFRA Leave) and Pregnancy Disability Leave Notice... F Paid Family Leave Insurance Program Brochure... F Notice to Employees... F Disability Insurance Provisions Brochure... F Contra Costa Health Services Breastfeeding Brochure...G Note: The above forms can be obtained by contacting the Labor Relations Unit at (925) 335-1780
INTRODUCTION The Family and Medical Leave Act (FMLA) provides unpaid leave to eligible employees with qualifying circumstances and ensures that employees will be reinstated to the same or equivalent position with no loss of benefits once the leave is concluded. In California, employees are also covered by the California Family Rights Act (CFRA) and the Pregnancy Disability Leave Act, each of which provide family or medical leave that can run concurrently or consecutively with the FMLA, depending on the circumstances. (See pages 8 and 26-27 for clarification.) Paid Family Leave is also available to those employees who contribute to SDI (State Disability Insurance). Paid Family Leave runs concurrently with FMLA, CFRA, & PDL. A complete overview of Paid Family Leave is provided beginning at page 29. This handbook is a guide for personnel administrators in County departments on how FMLA, CFRA, and PDL are applied in Contra Costa County. For any questions or further information, please contact your representative in the County Counsel s Office or the ADA Coordinator in Risk Management. Revised April 2010 Contra Costa County Page 1 of 31 Family & Medical Leave Handbook Rev. 4/2010
POSTING REQUIREMENTS Each department must post a notice in a conspicuous place which explains the FMLA s major provisions and identifies procedures for filing complaints of violations. Failure to post a notice precludes the County from taking any adverse action against an employee, including denying FMLA leave for an employee s failure to give proper notice. Each department must post the federal FMLA notice at each work site. A new revised notice for immediate posting is in Appendix A. Each department must post a CFRA and PDL notice at each work site. Each department must post the notice pertaining to Unemployment Insurance, SDI and Paid Family Leave at each work site. A Paid Family Leave information brochure must be provided when any eligible employee requests a leave to care for a sick or injured family member or to bond with a new baby. SDI pamphlet DE 2515 must be provided when an employee notifies the department of the need to take time off from work due to a non-industrial medical condition. Pamphlets may be ordered at no cost from the Employment Development Department (EDD) by calling 1-800-480-3287 or submitting an on-line request at www.edd.ca.gov. Samples of the above notices to be posted or distributed are located in Appendix F. Contra Costa County Page 2 of 31 Family & Medical Leave Handbook Rev. 4/2010
EMPLOYEES ELIGIBLE FOR FMLA LEAVE The employee has been employed by the County for at least twelve (12) months. The 12 months DO NOT need to be consecutive months; AND The employee has worked for the County at least 1,250 hours during the twelve (12) month period immediately preceding the commencement of the leave. The key determination is based on the number of hours actually worked. Unpaid and paid leaves, including, but not limited to vacation, sick leave, holidays, administrative leave, management leave, jury duty leave, long term disability, and workers compensation time, do not count toward the 1,250 hours. In determining whether an employee has worked 1250 hours, an employee returning from a National Guard or Reserve military obligation shall be credited with the hours of service that the employee would have performed but for the period of military service. Contra Costa County Page 3 of 31 Family & Medical Leave Handbook Rev. 4/2010
PERMITTED REASONS FOR FMLA LEAVE An employee is entitled to FMLA leave for one or more of the following circumstances: 1. Birth of an employee s child and to care for the newborn child. Eligibility ends 12 months after the birth of the child 2. Placement of a child with the employee for adoption or foster care. FMLA leave may be taken for events that are part of the adoption or foster care process, i.e., pre-placement counseling sessions, court appearances, consultation with attorneys, etc., as well as the bonding period following the placement. Eligibility ends 12 months after the placement of the child 3. To care for a spouse, parent, child or domestic partner with a serious health condition. Spouse: a partner in marriage as defined by Family Code section 300. Family Code section 300 defines marriage as a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary. Consent alone does not constitute marriage. Consent must be followed by the issuance of a license and solemnization. Domestic Partner: an unmarried person, 18 years or older, to whom the employee is not related and with whom the employee resides and shares the common necessities of life. NOTE: This is the County s definition of domestic partner, which is broader than the California definition of domestic partner in Family Code section 297. Domestic partners are not covered under the FMLA, but they are covered under the CFRA and County Family Care Leave. This means that an employee who takes time off to care for a domestic partner with a serious health condition may use up to 18 weeks under CFRA/county leave and still have 12 weeks under the FMLA for another qualifying reason) Parent: a biological, foster, or adoptive parent, a stepparent, legal guardian, or any other person who stood in loco parentis to the employee when the employee was a child. A biological or legal relationship is not necessary for a person to have stood in loco parentis to the employee as a child. This term does not include parents-in-law. Child: a biological, adopted, or foster child, stepchild, legal ward, or child of an employee who stands in loco parentis to that child if the child is either under age 18 or is an adult dependent child who is incapable of selfcare because of a mental or physical disability. The employee need not be the only individual available to care for the family member. Contra Costa County Page 4 of 31 Family & Medical Leave Handbook Rev. 4/2010
4. The employee s own serious health condition See page 9 for definition of serious health condition See page 26 for application in situations involving pregnancy 5. Any qualifying exigency arising out of the fact that the employee s spouse, son, daughter, or parent is on covered active duty in the Armed Forces. Not covered by CFRA Includes if a military member has been notified of an impending call or order to covered active duty. Spouse: means a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides. In California, marriage does not apply to domestic partners. As this is an evolving area of state law, it is subject to change in the future. Currently, it does not apply to domestic partners. Covered Active Duty: For a member of the regular Armed Forces- duty during the deployment of the member with the Armed Forces to a foreign country; and For a member of the Reserves- duty during the deployment of the member with the Armed Forces to a foreign country under a call or order to active duty during a war or national emergency declared by the President or Congress. 6. To care for a covered service member with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the service member. Up to 26 work weeks of leave to care for a covered service member with a serious injury or illness during a single 12-month period. If an employee does not take all of the 26 workweeks of leave entitlement to care for a covered service member during the single 12-month period, the remaining part of the 26 workweeks of leave is forfeited. CFRA leave and County Family Care Leave only allow up 12 or 18 weeks of leave to care for a spouse, parent, child or domestic partner with a serious health condition. No other special service member leave is covered. Employees are not eligible for the 26 weeks of FMLA service member leave to care for a domestic partner or the parent or child of a domestic partner, but may still take leave for these purposes under the CFRA/County Family Care Leave to care for a domestic partner, or the parent or child of a domestic partner with a serious health condition. Single 12-month period: begins on the first day the employee takes FMLA leave to care for a covered service member and ends 12 months after that date, regardless of the method used by the County to determine the employee s FMLA leave entitlement for other qualifying reasons. Contra Costa County Page 5 of 31 Family & Medical Leave Handbook Rev. 4/2010
This leave is on a per-covered-service member, per-injury basis. An employee may be entitled to more than one period of 26 weeks of leave if the leave is to care for a different service member or the same service member with a subsequent injury or illness. But if there is overlap, the employee is still limited to no more than 26 workweeks of leave in a single 12-month period The 26 workweeks is a combined total of, not in addition to, the regular 12 or 18 weeks of FMLA leave for other qualifying reasons. The employee need not be the only individual or family member available to care for the covered service member. Next of Kin: means nearest blood relative Covered Service Member: A member of the Armed Forces (including the National Guard or Reserves) who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury of illness; or A veteran who is undergoing medical treatment, recuperation, or therapy, for a serious injury or illness and who was a member of the Armed Forces (including the National Guard or Reserves) at any time during the period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy. Veteran: means a person who served in the active military, naval, or air service, and who was discharged or released under conditions other than dishonorable. Serious Illness or Injury of Covered Service Member: For a member of the Armed Forces (including the National Guard or Reserves) means an injury or illness that was incurred by the member in the line of duty on active duty in the Armed Forces (or existed before the beginning of the member s active duty and was aggravated by service in the line of duty on active duty in the Armed Forces) and that may render the member medically unfit to perform the duties of the member s office, grade, rank, or rating; and For a veteran means a qualifying injury or illness that was incurred by the member in the line of duty on active duty in the Armed Forces (or existed before the beginning of the member s active duty and was aggravated by service in the line of duty on active duty in the Armed Forces) and that manifested itself before or after the member became a veteran. NOTE: The federal regulations regarding leaves for a qualifying exigency related to covered active duty in the Armed Forces or to care for the serious injury or illness of a covered service member are still being developed. Contact your representative in the County Counsel s Office or the ADA Coordinator in Risk Management for updated information about these types of leaves and special medical certification requirements. Contra Costa County Page 6 of 31 Family & Medical Leave Handbook Rev. 4/2010
HOW MUCH FMLA LEAVE ARE CONTRA COSTA COUNTY EMPLOYEES ENTITLED TO? County employees, represented and unrepresented, are entitled to 18 workweeks of FMLA leave during a rolling 12-month period. Employees represented by the Deputy Sheriffs Association, District Attorney Investigators Association, Deputy District Attorneys Association, the Contra Costa County Fire Protection District Unit of IAFF Local 1230, East Contra Costa Fire Fighters Unit of IAFF Local 1230, and Contra Costa Fire Protection District s United Chief Officers Association are entitled to 12 workweeks of FMLA leave. Rolling 12-month period: is measured backward from the date an employee uses any FMLA. Each time an employee takes FMLA leave, the remaining leave entitlement is any balance of the 12 weeks which has not been used during the immediately preceding 12 months. Example #1: If an employee has taken 8 weeks of leave during the past 12 months, an additional 4 weeks of leave could be taken. Example #2: If an employee used 4 weeks of leave beginning February 1, 2008, 4 weeks beginning June 1, 2008, and 4 weeks beginning December 1, 2008, then the employee would not be entitled to any additional leave until February 1, 2009. On February 1, 2009, the employee would again be eligible for FMLA leave and would recoup 1 additional day each day worked for 4 weeks. The employee would again begin recouping additional days on June 1, 2009 and December 1, 2009. The rolling 12-month method requires constant recalculation of an employee s FMLA leave entitlement. Employees may fall in and out of FMLA protection depending on their prior usage. Example: In Example #2 above, if the employee needs 6 weeks of leave for a serious health condition beginning on February 1, 2009, only the first 4 weeks of leave would be FMLA-protected. EXCEPTION: The 12-month period for FMLA leave for an employee to care for a covered service member is measured forward from the first date that the employee s leave begins to care for the covered service member and ends 12 months after that date. Do not use the rolling 12-month method in the case of leave for a covered service member. Intermittent Leave or Reduced Work Schedule: Intermittent leave may be taken in separate blocks of time due to a single illness or injury. The FMLA leave entitlement may be taken intermittently on a regular basis or may include a reduced work schedule depending on the circumstances. Examples include taking 2 hours of leave weekly for physical therapy or working 3 days a week while being treated for a qualifying illness. Employees must make a reasonable effort to schedule intermittent leave so as not to disrupt normal work operations. Contra Costa County Page 7 of 31 Family & Medical Leave Handbook Rev. 4/2010
Baby Bonding Leave: Under the CFRA, employees can take intermittent leave for the care of a newborn or placement of a child for adoption or foster care. Generally, the department does not have to allow more than two requests of baby bonding leave for less than 2 week intervals. Where the parents (whether married or not) of a child are both employed by the County, FMLA leave based on the birth, adoption, or foster care of a child is limited to an aggregate for both employees together of 12 or 18 weeks during a rolling 12-month period measured backward from the date an employee uses his/her FMLA leave. Employees represented by the Deputy Sheriffs Association are not required to aggregate any of their 12 week leave entitlement. Pregnancy Disability Leave: In Contra Costa County, leave from work due to pregnancy disability may NOT run concurrently with CFRA or County family care leave. FMLA may run concurrently with pregnancy disability leave. (See page 26 for more detailed information) Where there are no complications, health care providers usually apply State Disability Insurance (SDI) criteria and presume that an employee is disabled due to her pregnancy for a period up to 4 weeks prior to the birth and for a period of 6 weeks following the birth (8 weeks following a Caesarian section). The length of time that an employee is actually disabled due to her pregnancy is determined by her health care provider and can exceed the guidelines above. If the employer provides more than four months of leave for other temporary disabilities, the same leave must also be made available to women who are disabled due to pregnancy, childbirth, or a related medical condition. The department can require medical certification for a pregnancyrelated disability leave. The department does not have the right to challenge the employee s physician in the case of pregnancy-related leave. Contra Costa County Page 8 of 31 Family & Medical Leave Handbook Rev. 4/2010
WHAT IS A SERIOUS HEALTH CONDITION ENTITLING AN EMPLOYEE TO FMLA LEAVE FOR SELF OR QUALIFYING FAMILY MEMBER? The FMLA defines serious health condition as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment as specified below: 1. Inpatient Care: means an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity or any subsequent treatment in connection with such inpatient care. a. Incapacity: means inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery there from. b. Treatment: includes, but is not limited to, examinations to determine if a serious health condition exists and evaluations of the condition. i. Does Not Include: routine physical, eye, or dental examinations; cosmetic treatments (unless inpatient hospital care is required or complications develop). OR 2. Continuing treatment by a health care provider. A serious health condition involving continuing treatment by a health care provider includes any one or more of the following: a. A period of incapacity (as defined above) of more than 3 consecutive full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves: OR i. Treatment 2 or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; OR ii. Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider. The requirements in (i.) and (ii.), above, require that the treatment by a health care provider be an in-person visit. The first (or only) visit must take place within 7 days of the first day of incapacity. Contra Costa County Page 9 of 31 Family & Medical Leave Handbook Rev. 4/2010
b. Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. The chronic condition requires: i. Periodic visits (at least twice per year) for treatment by a health care provider or by a nurse under direct supervision of a health care provider; AND ii. Continues over an extended period of time, including recurring episodes of a single underlying condition; AND iii. May cause episodic rather than a continuing period of incapacity. Examples include asthma, diabetes, or epilepsy. iv. Absences due to a chronic condition still qualify for FMLA leave even though the employee or covered family member does not receive treatment from a health care provider during the absence, and even if the absence does not last more than 3 consecutive full calendar days. For example, an employee with asthma may not be able to report to work due to the onset of an asthma attack or because the employee s health care provider has advised the employee to stay home whenever the pollen count exceeds a certain level. OR c. A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective. The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider. Examples include Alzheimer s, a severe stroke, or the terminal stages of a disease. OR d. Any period of absence to receive multiple treatments (including any period of recovery there from) by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, either for: i. Restorative surgery after an accident or other injury, or ii. For a condition that would likely result in a period of incapacity of more than 3 consecutive calendar days in the absence of medical intervention or treatment. Examples include cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), or kidney disease (dialysis). NOTE: An employee s serious health condition may also qualify under the federal Americans with Disabilities Act (ADA) and/or the California Fair Employment and Housing Act (FEHA), which may require that additional benefits be provided. Contra Costa County Page 10 of 31 Family & Medical Leave Handbook Rev. 4/2010
WHAT IS NOT A SERIOUS HEALTH CONDITION? Short term conditions requiring brief treatment such as the common cold, flu, earaches, upset stomach, minor ulcers, headaches (except migraines), routine dental problems and periodontal disease. Conditions for which cosmetic treatments are administered, such as plastic surgery or most treatments for acne, unless inpatient hospital care is required or complications arise. Conditions such as mental illness and allergies may be serious health conditions, but only if all the conditions discussed in the previous topic, What is a Serious Health Condition Entitling an Employee to FMLA Leave? are met. Substance abuse may be a serious health condition if the conditions discussed in the previous topic, What is a Serious Health Condition Entitling an Employee to FMLA Leave? are met. FMLA leave may only be taken for substance abuse treatment by a health care provider or by a provider of health care services on referral by a health care provider. Absence because of the employee s use of the substance, rather than treatment, does not qualify for FMLA leave. Contra Costa County Page 11 of 31 Family & Medical Leave Handbook Rev. 4/2010
HEALTH CARE PROVIDERS For purposes of the FMLA, the following is a list of approved health care providers: Doctor of medicine or osteopathy Podiatrist Dentist Clinical Psychologist Optometrist Chiropractor (limited to treatment consisting of manual manipulation of the spine) Nurse Practitioner Nurse-Midwife Clinical Social Worker Christian Science Practitioner listed with the First Church of Christ, Scientist of Boston, Massachusetts Physician Assistants Any Health Care Provider recognized by the County s group health plan A Health Care Provider as defined above who practices and is licensed in a country other than the U.S. Contra Costa County Page 12 of 31 Family & Medical Leave Handbook Rev. 4/2010
DESIGNATION OF LEAVE In all circumstances, it is the County s responsibility to designate leave as FMLA qualifying and to give notice of the designation to the employee. An employee is responsible for providing sufficient information to allow the County to determine his or her qualification for FMLA leave. An employee need not specifically refer to FMLA leave to meet his or her obligation for requesting FMLA leave. If an employee refuses or fails to provide requested medical certification, the County may deny FMLA leave until sufficient information is provided. If leave is not foreseeable, employees must give notice as soon as practicable. As soon as practicable means as soon as both possible and practical, taking into account all of the fact and circumstances in the individual case. If leave is foreseeable, the employee must give 30 calendar days advance notice of the need for leave. The department may retroactively designate leave as FMLA leave provided that it does not cause harm or injury to the employee. The department and the employee can mutually agree that leave be retroactively designated as FMLA leave. EMPLOYEE REPORTING REQUIREMENTS An employee on an approved intermittent or periodic FMLA leave shall provide at least verbal notice sufficient to make the department aware that the employee needs FMLA qualifying leave, and the anticipated timing and duration of the leave. When advance notice is not possible, it should be practicable for the employee to provide notice the same day or the next business day. If an employee is already approved for intermittent FMLA leave, the employee must notify the department if he or she wishes to convert the leave for this qualifying reason to an extended, non-intermittent FMLA leave. The employee is required to follow usual and customary notice and procedural requirements for requesting and reporting leave. They may be required to contact a specific individual to report the leave or follow similar required procedures. Contra Costa County Page 13 of 31 Family & Medical Leave Handbook Rev. 4/2010
REQUIRED NOTICES The department must provide the employee with the following notices pursuant to the FMLA: 1. General Notice Post the Employee Rights and Responsibilities under the Family and Medical Leave Act General Notice (Appendix A) in a conspicuous place in the workplace, such as a bulletin board where other legal notices are posted. Include a copy of the General Notice in any employee handbook or written guidance to employees concerning employee benefits or leave rights, if such written materials exist. Distribute a copy of the General Notice to each new employee upon hiring. Notice may be electronically posted or distributed. 2. Notice of Eligibility and Rights and Responsibilities (Eligibility Notice) Notify the employee of his or her eligibility and rights to take FMLA leave within 5 business days of learning that the request for leave is FMLA based. Eligibility Notice must be in writing, although the department may inform the employee verbally before sending the written notice. Departments are encouraged to use the sample Eligibility Notice at Appendix B. Eligibility Notice must be provided at the commencement of the first instance of leave for each FMLA qualifying reason in the 12-month period. All FMLA absences for the same qualifying reason are considered a single leave. No Eligibility Notice is required if the employee s eligibility status has not changed when an employee requests a subsequent leave for a different FMLA-qualifying reason in the same 12-month period. If eligibility status has changed, a new Eligibility Notice must be provided within 5 business days. Eligibility Notice must state whether the employee is eligible. If the employee is not eligible, the Notice must state at least one reason why the employee is not eligible, such as the number of months the employee has been employed or the number of hours of service worked during the 12-month period. The Eligibility Notice must also include, as appropriate, the following: o That the leave may be counted against the employee s annual FMLA leave entitlement if qualifying; o The applicable 12-month period for FMLA entitlement; Contra Costa County Page 14 of 31 Family & Medical Leave Handbook Rev. 4/2010
o Any requirements for the employee to furnish certification of a serious health condition, serious injury or illness, or qualifying exigency arising out of active duty or call to active duty status, and the consequences of failing to do so; o The employee s right to substitute paid leave, whether the department will require the substitution of paid leave, the conditions related to any substitution, and the employee s entitlement to take unpaid FMLA leave if the employee does not meet the conditions for paid leave; Note: Check applicable MOU as to whether the Department can require the use of accruals other than sick leave. o Any requirement for the employee to make premium payments to maintain health benefits, the arrangements for making such payments, and the possible consequences of failure to make such payments on a timely basis; o The employee s status as a key employee and the potential consequence that restoration to employment may be denied following FMLA leave, including the conditions required for such denial; Key Employee: means a salaried FMLA-eligible employee who is among the highest paid 10% of all the employees employed by the County determined at the time the employee gives notice of the need for leave. o The employee s rights to maintenance of benefits during the FMLA leave and restoration to the same or an equivalent job upon return from FMLA leave; o The employee s potential liability for payment of health insurance premiums paid by the County during the employee s unpaid FMLA leave if the employee fails to return to work after taking FMLA leave; It is good practice to send any required medical certification form with the Eligibility Notice. 3. Designation Notice Provide the Designation Notice to employee within 5 business days of when the department has enough information to determine whether the leave will be designated and counted as FMLA leave. The Notice must state the amount of leave counted against the employee s FMLA leave entitlement. A sample Designation Notice is at Appendix C. If the requested leave will not be designated as FMLA-qualifying, the department must notify the employee of that determination. Reasons for not designating leave as FMLA leave may be, for example, because the employee already exhausted the FMLA leave entitlement or the reason for the leave may not be covered by the FMLA. Contra Costa County Page 15 of 31 Family & Medical Leave Handbook Rev. 4/2010
The Designation Notice must inform the employee if paid leave will be substituted for unpaid FMLA leave or if leave taken under an existing leave plan will be counted as FMLA leave. The Designation Notice must inform the employee of any requirement for a fitness-for-duty certification to return to work. If the fitness-for-duty certification must address an employee s ability to perform the essential functions of the job, then the department must include such requirement in the Designation Notice and include a list of the essential functions of the employee s position with the Designation Notice. Only one Designation Notice is required for each FMLA-qualifying reason per applicable 12-month period. If the employee requests a subsequent leave and the information in the Designation Notice changes, the department must provide written notice of any changes within 5 business days of receipt of the employee s need for leave subsequent to any change. Send this Notice when the employee has exhausted the 12 or 18 weeks of leave. Contra Costa County Page 16 of 31 Family & Medical Leave Handbook Rev. 4/2010
WORKERS COMPENSATION If an eligible employee is on a workers compensation leave of absence for an injury or illness that also meets the criteria for a serious health condition under the FMLA, the department must also designate the leave as FMLA leave, which will run concurrently with the workers compensation absence. If an employee returns to a limited duty assignment and the limited duty is also a part-time schedule, the time not worked can be counted as FMLA. For example, an employee who normally works a 40-hour week, but only works 20 hours while on limited duty can have 20 hours of FMLA counted each week. For purposes of designating a workers compensation leave as FMLA leave, the department should coordinate with Risk Management to obtain the necessary medical certification in order to avoid employees having to obtain duplicate certifications. The department will still be responsible for sending out the required FMLA notices to the employee under these circumstances. Any questions about FMLA interaction with workers compensation should be directed to Risk Management. Contra Costa County Page 17 of 31 Family & Medical Leave Handbook Rev. 4/2010
MEDICAL CERTIFICATIONS The County may require that an employee s leave to care for the employee s seriously ill spouse, child, parent, or domestic partner, or due to the employee own serious health condition, be supported by a certification issued by the health care provider for the employee or the employee s ill family member. The request for medical certification should be made at the time the employee gives notice of the need for leave or within 5 business days after leave commences, if leave is unforeseen. California law does not permit employers to ask for a diagnosis in a medical certification. For that reason, do not use the federal medical certification form- it has a section asking for a medical diagnosis. Instead, use the California certification of health care provider form. An example is attached at Appendix D for certification of an employee s own serious health condition and Appendix E for certification of a family member s serious health condition. The employee is entitled to 15 calendar days to obtain medical certification; however, the County can preliminarily designate the time of as FMLA time before the medical certification is received. If the employee does not provide a requested medical certification, the request for leave can be denied and any time the employee has already taken off would not be protected FMLA leave. If the medical certification provided by the employee is defective, the employee has 7 calendar days to cure the defect. If the defect is not cured, then the leave may be denied until the employee provides a sufficient certification. Certification for leave to care for a family member shall contain: The date, if known, on which the serious health condition commenced; The probable duration of the condition; An estimate of the amount of time which the employee needs to render care or supervision; A statement that the serious health condition warrants the participation of a family member to provide care during the period of treatment or supervision; If for intermittent leave or reduced work schedule leave, the certification should indicate that the intermittent leave or reduced leave schedule is necessary for the care of the individual or will assist in their recovery, and its expected duration; An employee filing a claim with the Employment Development Department (EDD) to receive Paid Family Leave benefits must submit a medical certification to the EDD. It is important that the County still request a medical certification pursuant to the guidelines above, even if the employee is submitting a medical certification to the EDD. Certification for leave due to the employee s own serious health condition shall contain: Contra Costa County Page 18 of 31 Family & Medical Leave Handbook Rev. 4/2010
The date, if known, on which the serious health condition commenced; The probable duration of the condition; A statement that the employee is unable to perform the functions of the employee s job; If for intermittent leave or a reduced work schedule leave, the certification should indicate the medical necessity for the intermittent leave or reduced work schedule leave and its expected duration. An employee filing a claim with the Employment Development Department (EDD) to receive State Disability Insurance (SDI) benefits must submit a medical certification to the EDD. It is important that the County still request a medical certification pursuant to the guidelines above, even if the employee is submitting a medical certification to the EDD. NOTE: For an employee s own serious health condition, the County can ask for a second opinion by a health care provider chosen by the County (other than a County physician or physician the County has a contract with or regularly uses as a health care provider). A third opinion can be obtained from a jointly designated or approved health care provider. Under California law, the County IS NOT permitted to ask for a second opinion on the need for leave when the leave is to care for a family member. All medical information must be kept in a file separate from the employee s regular personnel file. ADA and FMLA medical information can be kept in the same medical file. Contra Costa County Page 19 of 31 Family & Medical Leave Handbook Rev. 4/2010
REQUESTING RECERTIFICATIONS The County may require the employee to obtain a recertification if additional leave is required to care for a family member or for an employee s own serious health condition upon expiration of the time estimated by the employee s or the family member s health care provider in the initial certification. The County may require recertification if it receives information that casts doubt upon the employee s stated reason for the absence or the continuing validity of the certification. Example #1: If an employee is on FMLA leave for 4 weeks for the employee s knee surgery and recuperation, and the employee plays in a department softball league game during the third week of the FMLA leave, such information might be sufficient to cast doubt upon the continuing validity of the certification allowing the County to request a recertification. Example #2: If an employee has a medical certification stating that the employee will need 4 hours of intermittent FMLA leave per week, and the employee claims 2 days of FMLA leave per week, the department can request a recertification. The employee must provide the requested recertification within 15 calendar days unless not practicable to do so under the circumstances. The employee must pay for the expense of the recertification. No second or third opinion may be required for purposes of recertification. Contra Costa County Page 20 of 31 Family & Medical Leave Handbook Rev. 4/2010
EMPLOYEE S INTENT TO RETURN TO WORK The County can require periodic reports from the employee of the employee s status and intent to return to work every 30 calendar days while on FMLA leave. The employee may be made of aware of this requirement in the Eligibility Notice that is sent when the leave commences. Prior to the date of the employee s return to work, the department should check-in with the employee to confirm the employee s intent to return to work on the stated date. A reminder letter a couple of weeks before the expiration of the leave is a good practice to implement. If the employee gives unequivocal notice of intent to return to work, obligations under the FMLA cease. The County may require 2 business days notice of the employee s intent to return to work early. Contra Costa County Page 21 of 31 Family & Medical Leave Handbook Rev. 4/2010
FITNESS FOR DUTY REPORTS An employee who takes leave can be required to obtain and present certification from the employee s health care provider that the employee is able to return to work. Restoration of employment may be delayed until an employee submits a required fitness for duty certification, unless the department failed to notify the employee of the fitness for duty requirement in the Designation Notice. The department must inform the employee in the Designation Notice that a fitness for duty certification will be required or the department cannot delay job restoration for failure to provide certification. If the department wants the fitness for duty certification to include whether the employee can perform the essential functions of the employee s job, then the department must provide the employee with a list of the employee s essential job functions with the Designation Notice. The department must also indicate in the Designation Notice that such a determination must be included by the health care provider in the fitness for duty certification. A fitness for duty certification may only be required if there is a uniformly applied policy or practice that requires all similarly situated employees (same occupation, same serious health condition) who take leave to submit a certification prior to returning to work. The department may contact the employee s health care provider only to clarify specific items on the certification form and to authenticate the fitness for duty certification. The department may not delay the employee s return to work while contact with the health care provider is being made. However, if the department required a fitness for duty certification on the Designation Notice and the employee does not submit it, then the department may delay the return to work until it is submitted. There are no second or third opinions on fitness for duty certifications. The department may not require a fitness for duty certification for each absence taken on an intermittent or reduced leave schedule. Contra Costa County Page 22 of 31 Family & Medical Leave Handbook Rev. 4/2010
USE OF ACCRUALS FMLA leave is unpaid. However, the FMLA permits an employee to choose to use paid leave (sick leave, vacation, management leave, floating holiday and compensatory time) while on an FMLA leave. The department may require the employee to use accruals during an FMLA leave. Check the applicable MOU to determine whether the department can require the use of accruals other than sick leave. The type of leave and the conditions under which it will be used must be indicated in the Eligibility Notice and in the Designation Notice. If neither the employee nor the department elects to substitute paid leave for unpaid leave, the employee remains entitled to all the accruals under the terms of the County s plan. Use of sick leave accruals may be elected to the extent the circumstances meet the County s usual requirements for the use of sick leave accruals. The County is not required to allow the use of sick leave accruals during an FMLA leave in any situation where the County s uniform policy does not normally allow such paid leave. Example: The County s sick leave policy does not allow sick leave accruals to be used during an FMLA/CFRA leave for baby bonding because sick leave accruals are for use during temporary absences from work due to illness or injury. A leave for baby bonding does not involve illness or injury. Refer to Administrative Bulletin No. 411.7 and the applicable MOU for sick leave policies. Contra Costa County Page 23 of 31 Family & Medical Leave Handbook Rev. 4/2010
MAINTENANCE OF BENEFITS Health Plans: The County must maintain the employee s group health insurance coverage for the duration of the qualified FMLA leave at the level and under the conditions that the coverage would have been provided if the employee were not on leave. The employee is required to pay the full employee contribution to maintain his/her group health plan coverage, either through payroll deduction or by paying the County Auditor directly, via check, by the 10 th of the month. If the employee fails to make payments, the County can cancel coverage provided the County allows the employee a 30 day grace period to pay and provide written notice of intent to cancel at least 15 days before coverage is lost. The employee can choose not to continue health insurance during FMLA leave. If health coverage is lost (waived or canceled) during the FMLA leave, when the employee returns to work the coverage must be reinstated. The employee is not required to pay back premiums and no preexisting condition limitations or waiting period may be imposed when coverage is reinstated. Pension and Retirement Plans: FMLA leave must be treated as regular continued service (no service breaks) for the purposes of vesting and eligibility to participate in pension and retirement plans. Seniority: FMLA leave does not impact an employee s seniority. Contra Costa County Page 24 of 31 Family & Medical Leave Handbook Rev. 4/2010
REINSTATEMENT FROM FMLA LEAVE An employee must be reinstated to the same or equivalent position at the conclusion of his/her designated and approved FMLA leave. The position must be equivalent in terms of pay, benefits, and working conditions. The employee must be reinstated to the same or a geographically proximate worksite (i.e., one that does not involve a significant increase in commuting time or distance). The employee ordinarily is entitled to return to the same shift or the same or an equivalent work schedule. An employee is entitled to a position with the same or equivalent pay premiums, such as shift differential or overtime. DENYING JOB RESTORATION An employee has no greater right to reinstatement than if the employee had been continuously employed. For example, if the employee is laid off during the course of taking FMLA leave, the County s responsibility to continue FMLA leave, maintain group health benefits and reinstate the employee ceases at the time the employee is laid off, unless otherwise provided under an MOU or policy. If upon an employee s return to work the Department believes that it will be necessary to deny job restoration, the Department should contact the Labor Relations Department or County Counsel for assistance, and the County s ADA Coordinator to determine if the employee has further rights under the Americans with Disabilities Act. Contra Costa County Page 25 of 31 Family & Medical Leave Handbook Rev. 4/2010
LEAVES RELATED TO PREGNANCY, CHILDBIRTH, & BABY-BONDING Pregnancy Disability Leave (PDL): Leave for the period of time when a woman is temporarily disabled by pregnancy. A woman is disabled due to pregnancy if, in the opinion of her health care provider, she is unable to work at all or is unable to perform any one or all of the essential functions of her job or to perform these functions without undue risk to herself, the successful completion of her pregnancy, or to other persons. A woman is also considered disabled by pregnancy if she is suffering severe morning sickness or needs to take time off for prenatal care. Employees are entitled to up to 4 months of PDL. PDL is time off only. It does not guarantee pay or benefits. Employees may use accruals to receive pay and benefits during PDL. Where there are no complications, health care providers usually apply State Disability Insurance (SDI) criteria and presume that an employee is disabled due to her pregnancy for a period up to 4 weeks prior to the birth and for a period of 6 weeks following the birth (8 weeks following a Caesarian section). If the employer provides more than four months of leave for other temporary disabilities, the same leave must also be made available to women who are disabled due to pregnancy, childbirth, or a related medical condition. The length of time that an employee is actually disabled due to her pregnancy is determined by her health care provider and can exceed the SDI guidelines above. The department can require medical certification for a pregnancyrelated disability leave. The department does not have the right to challenge the employee s physician in the case of pregnancy-related leave. There is no length of service requirement for an employee who is pregnant to be eligible for PDL. In Contra Costa County, leave from work due to pregnancy disability may NOT run concurrently with CFRA or County family care leave under the PMRs or MOUs. FMLA may run concurrently with pregnancy disability leave. CFRA Baby-Bonding Leave: For employees on PDL, CFRA leave does not begin until after the employee is no longer disabled by pregnancy. Contra Costa County Page 26 of 31 Family & Medical Leave Handbook Rev. 4/2010
Eligibility for baby-bonding leave ends 12 months after the child s birth or placement of the child through adoption or foster care. For spouses or domestic partners, CFRA leave begins at childbirth. FMLA leave may also be used prior to child birth, such as to care for a woman suffering from severe morning sickness or to accompany her to medical appointments for prenatal care. Refer to the County s sick leave policy and applicable MOUs for use of sick leave accruals during an FMLA/CFRA leave for baby bonding. Where the parents (whether married or not) of a child are both employed by the County, CFRA leave based on the birth, adoption, or foster care of a child is limited to an aggregate for both employees together of 12 or 18 weeks during a rolling 12-month period measured backward from the date an employee uses his/her CFRA leave. Employees represented by the Deputy Sheriffs Association are not required to aggregate any of their 12 week leave entitlement. The Employee s Own Serious Health Condition: Under the CFRA, an employee who is disabled on account of pregnancy, childbirth, or related medical conditions does not have a serious health condition. Under the FMLA, an employee who is receiving continuing treating by a health care provider for prenatal care or during any period of incapacity due to pregnancy has a serious health condition. Reinstatement from Pregnancy Disability Leave: If an employee returns to work at the end of her PDL and does not continue with CFRA baby-bonding leave, the employee is entitled to reinstatement to the same position she occupied prior to her PDL. Reinstatement to a comparable position in this situation is only permitted if the department proves beyond a preponderance of the evidence that either: 1) The employee would not otherwise have been employed in her same position at the time reinstatement is requested for legitimate business reasons unrelated to the employee taking a PDL or transfer (such as a layoff); OR 2) The means of preserving the job or duties for the employee (such as leaving it unfilled or filling it with a temporary employee) would substantially undermine the department s ability to operate safely and efficiently. If the employee remains out on a CFRA baby-bonding leave at the end of her PDL, then the general reinstatement requirements under the FMLA/CFRA apply. Contra Costa County Page 27 of 31 Family & Medical Leave Handbook Rev. 4/2010