Name of requestor: John Gamlin,
498.5978
Department: Human Resources
Preferred appearance date:
Date decision needed:
Objective: Approval of proposed revision to Larimer
County Human Resources Policy and Procedure 331.6.24B, Family and Medical Leave
Situation: Earlier this year the federal Family and
Medical Leave Act was amended to extend FMLA leave to eligible employees
affected by their or a covered family members' call to active duty. At that time, Human Resources sent out a
county-wide email and posted an announcement on the Bulletin Board about these
changes.
Human Resources has been
waiting for the U. S. Department of Labor to interpret these new amendments and
revise the FMLA regulations before amending our policy. It appears that may not happen until next
year. In the interim, Human Resources proposes the revision of our FMLA policy by the adding
general language that will address these changes. After the federal FMLA regulations are
revised, this section of the policy will be reviewed and revised as necessary
to ensure appropriate compliance. Please
see the highlighted section of the attached FMLA policy. Human Resources will also be updating
applicable FMLA forms.
Proposal: Revise the County’s FMLA policy by adding
language that clarifies eligible employees are entitled to FMLA leave under
certain circumstances relating to their or a covered family members’ call to
active duty.
Advantages: Supports eligible County employees and
family members who are called to active duty and promotes
Disadvantages: Potential impacts on County departments
and offices if employees are on leave for extended periods of time
Requested action: Approve the proposed revisions to
Larimer County Human Resources Policy and Procedure 331.6.24B, Family and
Medical Leave to clarify that eligible employees are entitled to FMLA leave
under certain circumstances relating to their or a covered family members’ call
to active duty.
Potentially Affected Interest:
Level of Public Interest and Participations: Minimal
Audio/Visual/Computer Needs: None
LARIMER COUNTY POLICIES
human resources POLICY AND PROCEDURE 331.6.24C
SUBJECT: FAMILY
AND MEDICAL LEAVE
DATE:
EFFECTIVE PERIOD: Until Superseded
REVIEW SCHEDULE: Annual
CANCELLATION: Human Resources Policy and Procedure
331.6.24B, dated
ENCLOSURE:
1. FMLA Designation of Leave Form LCHR-23
(02/05)
2. Certification of Health Care Provider
Form LCHR-24 (02/05)
3. Donated
Sick Leave Criteria Memo
REFERENCE:
A. Family and Medical Leave Act 28 U.S.C.
Section 2601, et. seq.
B. Family and Medical Leave Act Regulations
29 C.F.R. 825, et. seq.
C. Human
Resources Policy and Procedure 331.6; Benefits
D. Governing
Policies Manual; 3.2 – Treatment of Staff
PURPOSE: This procedure is intended to ensure that Larimer County
SCOPE: This procedure applies to all offices, divisions and
departments of
RESPONSIBILITY:
SPECIFIC REQUIREMENTS:
1. If an employee is absent for
an FMLA qualifying reason, the supervisor must complete and send the
Designation of Leave Form within 2 days of receiving notice of the leave
accompanied by a blank Certification of Health Care Provider Form (Section VII,
B).
2. If an employee’s absence is
foreseeable, the employee must give 30 days notice prior to the leave start
date (Section VII, B).
3. If an employee’s absence is
unforeseeable, the employee must give notice as soon as possible (Section VII,
B).
4. The employee must have the
Certification of Health Care Provider Form completed and returned to the
supervisor within 15 days of receiving the form (Section VII, B).
5. If the employee is required
to provide a fitness for duty statement, the employee must present the
statement prior to being returned to work. Failure to produce a fitness for
duty statement will result in the employee’s return to work being delayed until
the statement is received (Section XI, A).
6. Employees must use paid
leave concurrent with FMLA leave (Section VII, E).
REVISION LOCATOR:
1. Section III, C (added)
POLICY AND PROCEDURE:
I. GENERAL POLICY: The County provides Family and Medical Leave Act
(FMLA) leave to employees who meet the legal eligibility requirements under
Federal Statute and regulations. The
general provisions regarding the use of FMLA are set forth in this
Section. Supervisors are encouraged to
consult with Human Resources, as there are numerous regulations that may
address unique situations not specifically addressed in this policy.
II. ELIGIBILITY:
To be eligible for FMLA leave, County employees must:
A. Have been employed with the
County for 12 months or more (not necessarily consecutive months); AND
B. Have worked 1,250 hours or
more (including overtime but not including paid time off) within the 12 months
immediately preceding the first day of the proposed leave; AND
C. Have an FMLA qualifying
reason for the leave as defined below in Section III.
III. FMLA Leave is used for the
following purposes:
A. Medical Leave:
1. An employee’s serious health
condition;
B. Family Leave:
1. A serious health condition
of the employee’s spouse or parent;
2. A serious health condition
of the employee’s child under the age of 18 years, or older if the child is
disabled;
3. Parent’s attendance at the
birth of child;
4. Parent’s care of child after
birth (within one year after birth);
5. Placement of a child with
the employee for adoption or foster care (within one year after placement);
C. Qualifying Military Exigency:
As a result of recent statutory changes to the Family and
Medical Leave Act, eligible employees may now take FMLA leave for the following
reasons, in addition to standard FMLA. Note that the length of time and who is
eligible for each type of leave varies. Except as provided below, the
provisions of the existing FMLA policy are still applicable.
1. Eligible
employees may be entitled to FMLA leave for any qualifying exigency that arises
out of the fact that the spouse, son, daughter, or parent of an employee is on
active duty or has been notified of an impending call to active duty in the
Armed Forces. The length of such leave is limited to 12 weeks in the 12-month
period selected in our FMLA policy.
2. Eligible employees who are
the spouse, son, daughter, parent, or next of kin of a member of the Armed
Forces may be entitled to FMLA leave to care for a service member who incurred
a serious injury or illness in the line of duty while on active duty. Such
injury or illness must render the service member medically unfit to perform the
duties of the member's office, grade, rank, or rating. The length of such
leave, when combined with other FMLA qualifying leave, is limited to 26 weeks
in the 12-month period selected in the FMLA policy.
IV. Definition of a Serious
Health Condition:
An illness, injury, impairment, or physical or mental condition that involves:
A. Any period of
incapacity or treatment in connection with or consequent to inpatient care in a
hospital, including day surgery with diagnostic testing and/or post-operative
care, hospice, or residential medical care facility; or
B. Any period of incapacity requiring absence from work, school or
other regular daily activities of more than three (3) consecutive calendar
days, that also involves continuing treatment by or under the supervision of a
health care provider; or
C. 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 likely result in a period of incapacity of
more than three (3) calendar days; or
D. Prenatal care or any period of incapacity due to pregnancy.
V. Exclusions from the
Definition of Serious Health Condition:
A. Voluntary or cosmetic
treatments that are not medically necessary unless
inpatient hospital care is required.
B. Routine preventative
physical exams.
VI. Definition of Continuing Treatment
by a Health Care Provider:
A. The employee or family
member is treated two or more times for the injury or illness by a health care
provider; or
B.
The employee or family member is treated for the injury or illness two
or more times by a provider of health care services under orders of, or on
referral by, a health care provider; or
C.
The employee or family member is treated for the injury or illness 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; or
D.
The employee or family member is under the continuing supervision of,
but not necessarily being actively treated by, a health care provider due to a
serious long-term or chronic condition or disability that cannot be cured.
VII. Mandatory Use of FMLA Leave and Coordination with
Other Leave Policies:
A. Mandatory Use of FMLA: All
employees who are absent from work for any reason must request an appropriate
form of leave. An employee shall give
sufficient information to his/her immediate supervisor so the supervisor may
determine the appropriate form of leave.
If the leave requested is FMLA qualifying, the Employee must be placed
on FMLA leave.
B. Procedure:
Supervisor’s Responsibility:
1. The supervisor must obtain the reason for the
leave from the employee to determine if the absence is FMLA qualifying.
2. If the employee’s absence
qualifies for FMLA leave, the employee’s supervisor will designate the
employee’s absence as FMLA leave immediately (and no later than two days after
learning of the need for FMLA leave) by completing a Designation of Leave Form
(enclosure 1), and providing the employee with a blank Certification of Health
Care Provider form (enclosure 2).
3. If the employee fails to
provide sufficient information about the absence and it becomes apparent while
the employee is still on leave or when requesting an extension of leave that
the reason for absence is an FMLA qualifying event, supervisors will
immediately place the employee on FMLA leave by completing the Designation of
Leave Form and providing the employee with a blank Certification of Health Care
Provider form.
4. If the supervisor is unsure
whether or not the absence is FMLA qualifying the supervisor should contact
Human Resources to determine the next appropriate step(s).
5. The supervisor must ensure
that all absences are appropriately coded on the employee’s timesheets and
reported to Payroll for tracking.
Employee’s Responsibilities:
1. If the leave is foreseeable,
the employee shall provide notice of the anticipated leave and a completed
Certification of Health Care Provider form (enclosure 2) 30 days prior to
commencement of the leave. Failure to provide the Certification Form may result
in the employer delaying the leave up to 30 days after the certification is
provided. The notice and Certification
of Health Care Provider must contain the reason for the leave, start date of
the leave and expected duration of leave.
2. If the leave is
unforeseeable, the employee must provide notice of the need for leave as soon
as practical and must provide the Certification of Health Care Provider Form
within 15 calendar days from receiving the completed Designation of Leave form
and blank Certification of Health Care Provider from the employee’s supervisor.
3. Failure to provide the
certification will result in the leave being designated as non-FMLA leave and
all rights conferred under this policy are lost.
C. The employee’s available
FMLA leave balance (Section IX) will be reduced by the amount of time the
employee is absent due to the FMLA qualifying event if both of the following
conditions have been met:
1. The reason for the absence qualifies under FMLA (Section III).
2. The supervisor designates the leave in
writing by completing the Designation memo and delivers the completed
designation form to the employee.
D. If the employee feels the request for certification is intrusive,
the employee may object to the request in writing to his or her appointing
authority. The appointing authority must
consult with the Human Resources Director or designee prior to responding to
the objection.
E. Mandatory Use of Paid Leave:
1. Unless the employee is
collecting Workers Compensations benefits or disability payments, employees
must use all accrued paid leave balances (other than compensatory time off)
concurrently with FMLA leave commencing at the beginning of any FMLA absence in
the following order: sick leave, vacation leave, and floating holidays. After
sick leave is exhausted, the employee may request that vacation leave and
floating holidays be used in a different order than listed. The employee must
make this request in writing before commencement of the leave. Failure to make
a request in writing will result in the leave balances being used in the order
listed above. The employee’s paid leave balances will be proportionally
decreased as the hours are used.
2. If an employee is collecting
workers’ compensation benefits or disability payments, such paid leave times
will not be used unless the benefits collected are less than
the employee’s salary. If the benefits are less than the employee’s
salary, the employee may substitute paid leave in order to receive a monthly
income equivalent to the employee’s monthly gross salary.
3. If an employee wants to use
accrued compensatory time off during an FMLA-qualifying absence, any hours for
which an employee receives compensatory time off pay cannot be designated as
FMLA leave and cannot be counted against the employee’s FMLA leave entitlement.
F. If an employee exhausts
his/her paid leave balance prior to the end of FMLA leave, the employee’s FMLA
leave will be without pay (Section XII) or if the employee qualifies, the
employee may
request donated sick leave (enclosure 3).
VIII. Certification of Health Care
Provider Form
(enclosure 2):
A. An Employee must provide a
medical certification (Certification of Health Care Provider Form) to support
the need for FMLA leave (Section VII, B).
B. The health care provider
will be required to certify the medical necessity for the leave for the
employee or the necessity of leave to care for a family member and/or the need
for intermittent leave or reduced work schedule.
IX. Amount of Leave Available:
A. An eligible full-time
employee, as defined in Section II, is entitled to take up to 12 full-time
workweeks of FMLA leave within a 12-month period. Eligible Part-time employees, as defined in
Section II, are entitled to 12 part-time workweeks within a 12-month period.
B. A rolling 12-month cycle is
used to determine what length of FMLA leave is available for an employee. When
an employee needs FMLA leave, the appointing authority will count the amount of
FMLA leave that employee has used during the 12 month period immediately
preceding the first day of the proposed FMLA leave.
1. If no FMLA leave has been utilized in the
previous 12-month period, the employee will be eligible for 12 weeks of FMLA
leave.
2. If FMLA leave has been
utilized in the previous 12-month period, the amount of leave used will be
subtracted from the 12-week entitlement to establish the available FMLA leave.
C. If the reason for FMLA leave
is for birth of a child or placement of a child by adoption or for foster care
or to care for an employee’s parent with a serious health condition, and if
both employees work for the county, the employees will only be allowed a
combined total of twelve weeks. If
either or both of the employees later need to take leave for their own serious
health condition or to care for a spouse or child with a serious health
condition, each employee may take additional FMLA leave, if they have any remaining
FMLA leave balance.
Example: Mother and Father both work for
D. Generally, employees must take leave in a block of time unless the
Health Care Provider certifies that a reduced work schedule or an intermittent
leave schedule is medically necessary.
1.
If the Health Care Provider certifies the medical need for leave as a
reduced work schedule or intermittent leave schedule, the department will make
the appropriate arrangements. Such arrangements may include reassigning the
employee to different duties but the employee’s pay rate and any benefits will
be maintained at the previous level.
2.
If the leave is to care for a child after birth or placement of child
for foster care or adoption, a reduced work schedule or intermittent leave will
only be granted if approved by the employee’s immediate supervisor and the
appointing authority.
X. Benefits (reference C):
A. Insurance Benefits
1.
The County continues to pay the insurance premiums it normally pays, if
any, for the employee on FMLA Leave.
2.
The Employee must continue to pay the insurance premiums he/she normally
pays, if any, while on FMLA leave.
3.
The Employee may elect to terminate insurance to eliminate payment of
premiums during leave; however, the employee must consult with the Human
Resources Director or designee prior to ceasing payments.
4.
If any employee fails to pay premiums that he/she normally pays, that
insurance coverage will terminate.
B.
Leave Accrual. While on FMLA
Leave, the employee will continue to accrue sick and vacation leave at the same
rate as if s/he were not on leave.
C. Rate of Pay. Employees who have and are using paid leave
balances while on FMLA leave will be paid at the rate of pay they received at
the commencement of leave.
1.
If the employee is scheduled to receive any increases in pay while on
FMLA leave and is utilizing paid leave balances, the employee will receive that
pay increase at the time it would have been granted had the employee not been
on leave.
2.
If the employee is scheduled to receive any increases in pay while on
FMLA leave and is on unpaid leave; the scheduled increase will be granted upon
the employee’s return to work.
XI. Exhaustion of FMLA Leave: If an employee exhausts the 12-week FMLA
allotment and additional leave is not necessary, the employee will be returned
to work in accordance with Section XI, A.
If the employee is in need of additional leave time, his/her status will
be reviewed.
A. Return to Work.
1. An Employee must give two
days notice immediately prior to return to work. The notice shall include the date of intent
to return to work and, for employees on medical leave, must be accompanied by a
Fitness for Duty statement from the health care provider.
2. Failure to provide the
required Fitness for Duty statement will result in a delay of the employee’s
return to work until the employee submits the completed Fitness for Duty
statement.
3. On return to work, the
employee is entitled to the following:
a. Restoration to the same or
similar job he/she was doing at the commencement of leave;
b. Equivalent pay and benefits
that he/she would have been entitled to in the normal course of employment;
4. If the employee has not
exhausted all twelve weeks of FMLA leave, and the employee requires, based on
medical certification, an intermittent leave schedule or reduced work schedule
for the remainder of the leave, such arrangements shall be made (Section IX,
D).
5. Key employees will not be restored to their
position if it would cause substantial and grievous economic injury to the
county.
a. A key employee is among the
highest paid ten percent of all employees employed by
b. Restoration of key employees
will be assessed on a case by case basis by the appointing authority and Human
Resources.
B. Additional Leave
Needed: If the employee requests
additional leave time and if the appointing authority approves the additional
leave:
1. The employee will be
required to use remaining paid leave balances, if any.
2. If the employee has
exhausted both paid leave and FMLA leave, he/she must request leave without pay
(either sick leave without pay or personal leave without pay as appropriate to
the situation). See Section XII and
Human Resources Policy and Procedure 331.6, Section V, E (reference C). If sick leave without pay is approved the
employee may request donated sick leave (enclosure 3).
3. If the employee is on wage
continuation or worker’s compensation, that program will review the employee’s
case.
XII. Sick Leave without Pay:
A. If the employee’s request
for additional unpaid leave is based on his or her own medical reasons, the
employee must request Sick Leave Without Pay (SLWOP).
Such request must be accompanied by medical certification by the appropriate
health care provider.
B. The employee’s appointing
authority and the Human Resources Director will review the request for Sick
Leave without Pay.
C. The granting of Sick Leave Without Pay is at the discretion of the employee’s
appointing authority. The appointing authority can grant SLWOP only after the
employee presents a certification by an appropriate health care provider of
inability to return to work due to medical reasons.
D. The County assumes no
contractual obligation to extend Sick leave beyond what is available through
paid leave balances and FMLA mandates.
E. A decision to grant or deny
Sick Leave Without Pay will be based on the
department’s staffing needs and other appropriate considerations.
F. If Sick Leave Without Pay is
granted:
1. It will be limited to a
maximum of three months unless authorized for a longer period of time per
section XII.F.7 below. Unpaid leave
during FMLA leave will not count against this three month maximum;
2. The County will continue to
pay the insurance premiums that it would have paid had the employee returned to
work.
3.
Any period of SLWOP does not constitute a break in service for
determining the employee’s benefits accrual rates or the employee’s vesting in
the County’s retirement plan.
4.
Employees on SLWOP are eligible to continue coverage under the County’s
various insurance policies if he/she was enrolled in those policies prior to
taking the leave. The County will pay the employer-paid portion of the
employee’s insurance premiums so long as the employee is on SLWOP. The employee must continue to pay the employee-paid
portion of his/her monthly insurance premiums while on leave; otherwise, the
coverages will lapse.
5.
If an employee wants to extend his/her leave of absence beyond what is
medically necessary, then the leave period is no longer considered to be “Sick
Leave Without Pay”.
In this case, any continued leave would then be covered under the
provisions of the Leave Without Pay Policy, see Human
Resources Policy and Procedure, 331.6, Section V, E (reference C) for details.
6.
If the appointing authority needs to hire an employee to perform the
duties of a position vacated by an employee on an approved SLWOP, the
replacement employee will be hired on a temporary basis only.
7.
Any SLWOP beyond the initial three-month period must be approved by the
appropriate department head, elected official or Director of the Health
Department.
XIII. Medical Records: All Medical
Records or supporting documentation, including but not limited to the FMLA
Designation of Leave Form (enclosure 1), completed Certification of Health Care
Provider (enclosure 2), and Fitness for Duty certification, will be kept in
confidential files separate from the employee’s regular personnel file.
A.
Medical information is confidential and will be accessible only to
those with a compelling business reason to have access to the information.
B.
Supervisors or appointing authorities may elect to forward medical
records to Human Resources for appropriate, confidential storage.
_________________________________
Glenn Gibson
Chair, Board of
(BOCC approval and signature – Admin Matters
–
________________________
Wynette Cerciello
Human Resources Director
JG/vl
Distribution:
All County Department Heads and Elected Officials
Records Management (original)