Frequently Asked Questions

A. Eligibility

B. Length & Type of Leave

C. Designating Leave

D. Designating Family or Medical Leave as FMLA

E. Designating Military Leave as FMLA

F. Use of Paid Leave

G. Employee Rights

H. Employee Benefits

A. Eligibility

1. Who is eligible for FMLA leave?

City employees are eligible for FMLA leave if:

  • They have been employed by the City for at least 12 months, and
  • They have worked and been paid for at least 1,044 hours during the 12-month period immediately preceding the leave. Leave (paid and unpaid), including FMLA leave are not included.

2. Does the 12 months of service with the city have to be continuous or consecutive?

The 12 months does not need to be continuous or consecutive. Separate periods of employment will be counted, provided that the break in service does not exceed seven years.

3. Can temporary or permit employees take FMLA leave?

A temporary or permit employee can take FMLA leave if he or she meets the eligibility requirements described in question #1. If the permit expires or the position is eliminated during the leave, the employee's employment is terminated (and the leave ends) on the last day of the permit.

4. What happens if an employee is not eligible for FMLA leave?

Contact your HR/FMLA Consultant to discuss other leave programs that may be available.

5. Under what circumstances are employees eligible to take FMLA leave?

  • For birth and/or care of a newborn child;
  • For placement of a child with the employee for adoption or foster care;
  • For the care of the employee’s spouse, registered domestic partner, son, daughter or parent with a serious health condition;
  • For the employee's own serious health condition that makes the employee unable to perform the functions of the job;
  • For a qualifying exigency arising out of the fact that the employee’s spouse, registered domestic partner, son, daughter, or parent is on active duty or being called to active duty in support of a contingency operation. The service member must be a member of the National Guard or Military Reserves or, under some circumstances, a retired member of the Regular Armed Services. See the "Definitions" section for explanations of ‘qualifying exigency’ and ‘contingency operation’;
  • For the care of a covered servicemember who is a current member of the Regular Armed Forces, National Guard, or Reserves who has incurred an injury or illness in the line of duty while on active duty, provided that such injury or illness renders the servicemember medically unfit to perform the duties of his/her office, grade, rank, or rating. To qualify the employee must be the spouse, registered domestic partner, son, daughter, parent or next of kin of the service member.

6. What constitutes a serious health condition under FMLA?

Federal FMLA Regulations are very specific when defining "serious health condition."

Serious Health Condition - Means an illness, injury, impairment, or physical or mental condition that involves one of the following:

A. Pregnancy - Any period of incapacity related to pregnancy or for prenatal care. A visit to the health care provider is not necessary for each absence; or

B. Chronic Conditions Requiring Treatments - Any period of incapacity or treatment for a chronic serious health condition, which continues over an extended period of time, requires periodic visits (at least twice a year) to a health care provider, and may involve occasional episodes of incapacity. A visit to a health care provider is not necessary for each absence incapacity (e.g., asthma, diabetes, epilepsy, etc.); or

C. Permanent/Long-term Conditions Requiring Supervision - A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective. Only supervision by a health care provider is required, rather than active treatment (e.g. Alzheimer’s, a severe stroke or the terminal stages of a disease) ; or

D. Conditions Requiring Multiple Treatments - 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 restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), or kidney disease (dialysis).

E. Hospital Care - Inpatient care (i.e. an overnight stay) in a hospital, hospice, or residential medical-care facility, including any period of incapacity (i.e. inability to work, attend school, or perform other regular daily activities) or subsequent treatment in connection with such inpatient care; or

F. Absence Plus Treatment - Continuing treatment by a health care provider, which includes any one or more of the following:

  1. A period of incapacity lasting more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition that also includes:
  1. Treatment two or more times by or under the supervision of a health care provider (i.e., in-person visits, the first within seven days and both within 30 days of the first day of incapacity); or
  2. One treatment by a health care provider (i.e., an in-person visit within seven days of the first day of incapacity) with a continuing regimen of treatment (e.g., prescription medication, physical therapy); or

7. Can a cold or flu be a serious health condition?

Ordinarily, unless complications arise, the common cold, flu, earaches, upset stomach, headaches other than migraine, routine dental or orthodontia problems or periodontal disease, etc., DO NOT meet the definition of "serious health condition" and do not qualify for FMLA leave .

8. Is substance abuse considered a serious health condition under FMLA?

FMLA leave may only be taken for the treatment of a substance abuse problem. Absence because of the employee's use of the substance, rather than for treatment, does not qualify for FMLA leave.

9. Who is considered an immediate family member under the city’s FMLA policy?

An employee’s spouse, registered domestic partner, children (son or daughter), and parents are immediate family members for purposes of FMLA. The term "parent" does not include a parent "in-law." Son or daughter means a biological, adopted, or foster child, a stepchild, or a legal ward. The child does not need to be a biological child; all that is required is that their relationship carries the same responsibilities as a biological relationship. A child must be either under age 18, or age 18 or older and "incapable of self-care because of a mental or physical disability.''

10. Under the FMLA, when is an adult child "incapable of self-care?"

"Incapable of self-care" means that the person requires active assistance or supervision to provide daily self-care in three or more daily life activities. These activities include caring appropriately for one’s grooming and hygiene, bathing, dressing and eating, cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, etc.

B. Length & Type of Leave

1. How much time may an employee take as FMLA leave?

Eligible employees may take up to twelve work weeks of unpaid leave during each year for:

  • Birth or placement of a newborn child.
  • Employee’s own serious health condition.
  • Care for a family member with a serious health condition.
  • Qualified Exigencies arising out of a call to active duty.

Eligible employees who are family members of military service members may take up to 26 weeks of unpaid leave to care for military service members suffering from serious injury or illness suffered in the line of duty.

2. What period constitutes a "year" for the purpose of FMLA leave?

The City uses a "rolling" 12-month period measured backward from the date an employee uses any FMLA leave.

3. Does FMLA leave have to be taken all at once, or can it be taken intermittently?

FMLA leave taken for the employees own serious health condition, or for the serious health condition of the employees spouse, registered domestic partner, son, daughter, or parent, may be taken intermittently or on a reduced schedule if "medically necessary," as documented by the employees or family members health care provider, and if that medical need can best be accommodated by an intermittent schedule.

Other situations:

  • An employee taking intermittent leave because of planned medical treatment must make a reasonable effort to schedule treatment so as not to unduly disrupt business operations.
  • FMLA leave for the birth/placement of a child is taken in a solid block of time.
  • Qualifying exigency leave may be taken on an intermittent or reduced leave schedule basis.

4. When does FMLA leave taken for the birth or for placement of a child for adoption or foster care, need to be completed?

FMLA leave for the birth or placement of a child must be completed within 12 months. The 12-month period begins on the date of birth or placement.

5. How much FMLA leave is available for the birth or placement of a child when both parents work for the city?

In the event both spouses are City employees, both spouses may use FMLA leave for a combined total of 12 weeks.

6. Does leave taken due to pregnancy complications count against the 12 weeks of FMLA leave for the birth and care of a child?

If the employee must be absent for another qualifying reason, including a serious health condition arising from complications from a pregnancy, it will be counted as part of the 12-week FMLA leave entitlement.

7. Does light duty count as FMLA leave?

No

8. How do you calculate FMLA time used for intermittent leave?

The City charges an employee’s FMLA usage by the shortest period of time that the department uses to account for absences for payroll purposes.

9. Does an employee on intermittent leave need to bring documentation every time the employee goes for treatment or a visit to a healthcare provider?

No, not for FMLA leave. However, Civil Service Rules or collective bargaining agreement language on medical verification will still apply for paid sick leave.

10. Is the 12 weeks of qualifying exigency leave a one-time entitlement?

If a covered military member’s active duty or call to active duty spans more than one FMLA leave year, an eligible employee would be eligible to take qualifying exigency leave in each FMLA leave year. An eligible employee can take qualifying exigency leave in a subsequent FMLA leave year for a different covered military member. Finally, if the same covered military member returns from deployment and is subsequently redeployed, the eligible employee would again be entitled to qualifying exigency leave.

11. How much time can an employee take if the employee needs leave for both a serious health condition and a qualifying exigency?

An eligible employee may receive up to a maximum of 12 weeks of FMLA leave each year either for a serious health condition or for a qualifying exigency leave. If the employee takes both qualifying exigency leave and leave for a serious health condition, the combination of the two leaves cannot exceed 12 weeks.

12. Can an employee take qualifying exigency leave when the covered military member returns from deployment?

An eligible employee may take qualifying exigency leave for certain qualifying post-deployment exigencies, including reintegration activities, within a period of 90 days following the termination of the covered military member’s active duty status.

C. Designating Leave

1. Does an employee need to ask for FMLA leave?

The employee does not need to ask for FMLA leave or even mention FMLA. The employee simply provides enough information for the supervisor and/or HR/FMLA Consultant to believe the absence might be covered under the FMLA. Mentioning that they need time off to care for a seriously ill spouse/child/parent, stating that they missed work because they were hospitalized, or stating that a family member is being called to active duty in the military are all examples of such a notice.

Supervisors need to inquire if the absences are FMLA qualifying. Inquiry does not mean asking for diagnosis information or the precise medical reason why an employee is ill. When the employee does not notify the supervisor of the need for leave, the absences can be considered unexcused. Supervisors, who have questions, should contact the HR/FMLA Consultant assigned to their department.

2. Can employees choose whether or not they want to use FMLA leave?

It is the HR/FMLA Consultant responsibility to designate qualifying leave as FMLA. An employee can not choose whether their leave is designated as FMLA qualifying leave.

3. What kind of advance notice is required when an employee is requesting leave?

Failure to provide such notice without reasonable excuse may delay the taking of the FMLA leave until at least 30 days after the date the employee provides notice.

4. If a HR/FMLA Consultant fails to tell the employee that the leave is FMLA leave, does the time already taken off count against the 12 weeks of FMLA leave?

In most situations, the City cannot count leave as FMLA leave retroactively. The employee must be notified in writing that an absence is being designated as FMLA leave. If the supervisor and/or HR/FMLA Consultant were not aware of the reason for the leave, leave may be designated as FMLA leave retroactively only while the leave is in progress or within two business days of the employee’s return to work.

5. Can the City refuse to grant FMLA leave?

If an eligible employee has met FMLA notice and certification requirements and has not exhausted their FMLA leave entitlement for the year, the City may not deny FMLA leave.

D. Designating Family or Medical Leave as FMLA

1. How do I designate a medically related leave as FMLA?

Before a qualifying leave can be designated as FMLA,

2. How does the City determine if the employee has a serious health condition?

The "Medical Facts" and the "Amount of Care/Leave Needed" on the Certification of Healthcare Provider Form will help the City determine if there is a serious health condition and indicate the period of incapacity and the need for intermittent or reduced schedule leave. Refer to the definition of "Serious Health Condition."

3. What if the certification form is incomplete or seems suspicious?

The employee must provide information that is complete and sufficient. If not the employee has seven (7) days to "cure the deficiency," that is, provide the needed information. If the City doubts the validity of a certification, the City can obtain a second or even a third opinion.

4. When is it appropriate to request a recertification of a serious health condition?

The City may request recertification if:

If there is cause to suspect that FMLA leave is being used fraudulently, speak with your HR/FMLA Consultant about requesting a re-certification.

Other situations:

5. Who may contact the employee’s healthcare provider?

Only the Citys doctor, a human resources professional, a leave administrator, or a management official may contact the employees healthcare provider. The employees immediate supervisor may not contact the employee’s health care provider.

E. Designating Military Leave as FMLA

1. What is a "qualifying exigency?"

"Qualifying exigency" arises out of the fact that a covered military member (a member of the National Guard or Reserves) is on active duty or called to active duty. The regulations list a number of issues that arise when a covered military member is deployed, such as attending military-sponsored functions, making appropriate financial and legal arrangements, and arranging for alternative childcare. For a complete list of qualifying exigencies, see Section XVI – Definitions in the FMLA Procedures.

2. What are the certification procedures for qualifying exigency leave?

The HR/FMLA Consultant may require a copy of the covered military member’s active duty orders or other documentation issued by the military that indicates that the covered military member is on active duty or called to active duty status in support of a contingency operation, and the dates of the covered military member’s active duty service. Employers are not permitted to require second or third opinions on qualifying exigency certifications. Employers are also not permitted to require recertification for such leave.

3. What is military caregiver leave?

Military Caregiver Leaves provides for up to 26 weeks FMLA leave for the care of an employee’s spouse, son or daughter, parent, or next of kin who is a covered service member in the Regular Armed Forces, National Guard or Reserves and who has incurred a serious injury or illness in the line of duty while on active duty.

4. What are the certification requirements for taking military caregiver leave?

An employee must provide the requested certification to the employer within 15 calendar days after the employers request.

The HR/FMLA Consultant may require a military caregiver to obtain a certification completed by an authorized health care provider of the covered servicemember. The City is permitted to authenticate and clarify medical certifications but is not permitted to require second or third opinions on military caregiver leave. The City is not permitted to require recertification for such leave.

F. Use of Paid Leave

1. How does an employee stay in paid status while on FMLA leave?

FMLA is unpaid leave. An employee may elect to use sick leave, vacation or comp time for use during FMLA absences. The employee must follow department policy and practice for using sick, vacation and comp time, including seeking prior permission. The City does not require the use of paid leave during FMLA absences.

2. Can an employee on FMLA leave claim the time off as comp time on their time sheet?

Yes. Absences paid from the employee’s accrued comp time account do count against the employee’s FMLA leave entitlement as long as the employee complies with City requirements for use of comp time.

3. Is an employee on FMLA leave allowed to earn holiday pay during the leave?

Only if they are in a paid status on the normal work day before and after the holiday or pursuant to the terms of the applicable collective bargaining agreement.

G. Employee Rights

1. What rights does an employee have while on FMLA leave?

The FMLA prohibits an employer from interfering with, restraining, or denying the exercise of (or attempting to exercise) any rights provided by the Act. The FMLA requires that an eligible employee be restored to the same position that the employee held when the FMLA leave began, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment such as same shift, equivalent hours, etc.

2. How long does the City have to hold an employee's position open?

The FMLA guarantees job protection. While a City does not need to hold an employee's position open during the 12 weeks he/she is gone, the City must reinstate the employee upon return from leave – even if doing so means transferring or terminating the employee who filled in during leave.

3. What happens if a person is out for a medical reason beyond 12 weeks in a 12-month rolling period?

Any leave beyond 12 weeks is handled under non-FMLA policies. Refer to the Civil Service Rules or appropriate labor agreement for additional information on City leave policies. Contact your supervisor or HR Generalist team for additional information.

4. Are there any restrictions on how time is spent during FMLA leave?

Generally an employee’s activities are not restricted while on FMLA leave. The protections of FMLA will not, however, cover situations where the reason for leave no longer exists, where the employee has not provided required notices or certifications, or where the employee has misrepresented the reason for leave.

5. Can the City deny continuation of FMLA?

If an employee fails to fulfill any obligations to provide supporting certification, the City may deny continuation of leave.

6. Can the City require an employee to return to work before the end of FMLA leave?

As long as a valid reason for the leave exists, the City may not require an employee to return to work any sooner than the period specified in the Certification of Healthcare Provider Form.

H. Employee Benefits

1. May an employee continue health insurance benefits during FMLA leave?

During FMLA leave, single or dependent health insurance coverage, in addition to dental, life and long-term disability coverage, is maintained on the same basis as coverage would have been provided if the employee had been continuously employed during the entire leave period.

An employee must continue to pay their portion of the premium in order to retain this coverage. Employee contributions will continue to be made via payroll deduction for an employee on paid leave. A Human Resources Department Benefits staff member will forward monthly invoices for the employee contribution to an employee on unpaid leave. If an employee fails to make premium payments, he or she will lose the coverage and may not be covered for any claims, which may have occurred while on FMLA leave.

2. May an employee continue other voluntary insurance coverage during FMLA leave?

An employee may continue all coverage, which they had prior to going on the FMLA leave, by paying the employee’s portion of the premium. This includes, but is not limited to, optional, spouse, and child life insurance and short-term and long-term disability insurance.

3. May an employee choose not to retain health insurance coverage while on FMLA leave?

An employee may choose not to retain health insurance coverage. The coverage will be reinstated upon the employee’s return to work.

4. May an employee choose not to retain other voluntary coverage while on FMLA leave?

An employee may have the coverage reinstated upon return to work, if the return to work is within the allotted 12 weeks of FMLA leave. If the leave goes beyond 12 weeks, the employee may have to reapply with evidence of good health. If an employee chooses not to retain optional coverage, they will not be covered for any claims that may have occurred while they were on leave.

5. What happens to retirement contributions when an employee takes FMLA leave?

Salary deductions for retirement will continue to be taken from an employee's pay as long as the employee is on paid leave, including sick and vacation, and comp time. For any time that is unpaid, contributions will cease, however, an employee may be able to purchase service credit.

6. What are an employee’s COBRA rights in relation to an FMLA leave?

As it relates to FMLA leave, the COBRA qualifying event is termination of employment, or the end of the leave, whichever comes first. Once the COBRA qualifying event occurs, the employee may choose to "continue" health and dental by paying the entire cost of coverage, even though the employee did not pay their share of the premium during the FMLA leave.

7. Does an employee earn sick and vacation accruals when they are on unpaid FMLA leave?

An employee only earns sick and vacation accruals when they are in paid status. In addition, an employee paid less than eighty (80) hours in a pay period due to FMLA unpaid leave will have their sick and vacation accruals prorated.

Last updated Sep 27, 2011