Table of Contents: Chapter 3

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309. FAMILY AND MEDICAL LEAVE 3/1/10

309.1. Purpose

The Family Medical Leave (FMLA) is a federal law intended to guarantee job reinstatement for eligible employees on leave due to serious medical conditions of themselves, their spouse, step/child, or parent. FMLA guarantees eligible employees at least twelve (12) weeks of leave in a twelve (12) month period. The City has adopted leave policies which are more generous than the minimum amounts required under the FMLA.

Further, the City has the discretion to authorize extended unpaid leave as defined in Section 311.

309.2. Eligibility

To be eligible for FMLA leave, an employee must have worked for the City of Lee's Summit for at least one year, which does not need to be continuous, and performed at least 1,250 hours of work during the 12 month period immediately preceding the commencement of the requested leave.

309.3. Types of Leave and Covered Family and Medical Reasons

In accordance with the FMLA, leave may be taken consecutively, intermittently, or on a reduced schedule as
determined by the healthcare provider. Eligible employees may take up to 12 weeks of paid or unpaid leave as set forth in this policy in a 12 month period for any of the following reasons:

309.3.1. To care for a newborn child or a newly adopted or newly placed foster care child, as long as the leave is taken in the year following the child's birth or placement;

309.3.2. Because of an employee's own serious health condition that leaves the employee unable to perform the essential functions of his or her job.

309.3.3. To care for the employee's spouse, step/child, or parent with a serious health condition. A "serious health condition" is defined as any illness, injury, impairment, or physical or mental condition that involves any of the following:

309.3.3.1. Inpatient care in a hospital, hospice, or residential medical care facility for a medical necessity;

309.3.3.2. Any period of incapacity due to a medical necessity that lasts for more than three full consecutive calendar days that also involves "in-person" treatment by (or under the supervision of) a health care provider within 7 calendar days of the first day of incapacity and a second visit to the healthcare provider within 30 calendar days of the first day of incapacity if no medication was originally prescribed;

309.3.3.3. Any period of incapacity due to pregnancy or prenatal care;

309.3.3.4. Continuing treatment by a health care provider for a chronic health condition that continues over an extended period of time requiring two "inperson" treatments in 12 months.

309.3.3.5. Because of exigency leave as a result of an employee's spouse, child, or parent serving under Federal duty orders . There must be a direct connection between the employee's need to engage in non-medical, nonroutine activities during regular work hours and the family member's current military service. For more information, contact Human Resources.

309.3.3.6. To care for a spouse, child, or parent injured in the line of military duty or whose pre-existing injury or illness was aggravated by service in the line of active duty who becomes incapable of self care within five years of the date the veteran undergoes medical treatment, recuperation or therapy.. The employee is eligible for up to an additional 14 weeks in a 12 month FMLA qualifying period.

309.4. Calculation of FMLA Leave

Eligible employees can use up to 12 weeks of FMLA leave during any 12 month period. The City will use a rolling 12 month period measured forward from the first date an employee uses any FMLA leave.

309.4.1.Exception. If both the employee and the employee's spouse are employed by the City, the maximum combined leave for both to care for a parent, or to bond with or care for a child after birth or placement for adoption or foster care is 12 weeks.

309.5. Requesting Leave/Application

The employee has the responsibility to give notice to the City and apply for FMLA leave for any qualifying event for which the employee will be requesting leave by completing a FMLA Leave Request Form (available in Human Resources) including the appropriate healthcare provider's certification.

The City will notify the employee in writing of his/her rights, responsibilities, and eligibility or non eligibility within 5 business days of receiving the leave request.

309.5.1. Certification Required. In all cases of applying for FMLA leave, the employee must provide written certification of the serious health condition issued by the health care provider for the employee or the employees' spouse, step/child or parent. The City will provide a certification form for the employee which must be completed by the healthcare provider and returned to Human Resources. The certification is due 15 calendar days after the City requests the certification from the employee. If the certification is deemed incomplete, the employee will be given an additional 7 calendar days to correct the deficiency with the healthcare provider.

The City maintains the right to authenticate, clarify, and verify information.

309.5.2. In cases where the need for the FMLA leave is foreseeable based on a planned medical treatment for a serious health condition of the employee, spouse, step/child, or parent; or the birth or placement of a child, the employee must request the leave at least 30 days in advance of the requested leave. When planning medical treatment, the employee must consult with the supervisor and make reasonable effort to schedule the leave so as not to unduly disrupt the department's operations, consistent with the health care provider's medical judgment.

309.5.3. If 30 days notice is not feasible under the circumstances, such as a medical emergency, notice must be given as soon as possible, generally the work day after the calendar day on which the employee learns of his/her need for leave. The notice under this section must set forth the reason(s), the anticipated duration, and the anticipated start of the leave. For leave related to a serious health condition of the employee, spouse, step/child, or parent, certification by the health care provider will also be required.

309.6. Approval and Designation of Leave

Department of Labor regulations require the City to designate leave as FMLA leave within 5 business days of receiving the healthcare provider certification. If the leave is determined to be non FMLA qualifying, the reasons will be provided. Designation of leave by the City will be administered in the following manner, according to whether the leave is for an employees' own serious health condition, or for the serious health condition of an employee's spouse, step/child, or parent.

309.6.1. When an employee needs leave for his or her own serious health condition, the City will give notice to the employee as to the FMLA benefits when the leave has been requested by the employee as outlined in this policy, or when the employee has not requested FMLA leave but the City has sufficient knowledge that the leave has been taken for a reason that would qualify under this policy. The leave will be structured as follows:

309.6.1.1. If the employee has no sick leave left to utilize, the City will immediately designate the leave as FMLA leave. Any other accrued paid time will be used as outlined in Section 309.7.

309.6.1.2. When the employee has used an entire pay period of earned sick leave but has not requested FMLA, the City will designate the leave as FMLA leave concurrently with the use of the balance of earned sick leave or other paid time. The leave will commence at the time of the qualifying event after three full consecutive calendar days. The use of paid time off benefits while on leave does not extend the employee's maximum FMLA leave allowance. However, additional earned paid time off may extend employment beyond the 12 week entitlement if the healthcare provider has not released the employee to work.

309.6.1.3. When an employee uses FMLA leave for the serious health condition of a spouse, step/child, or parent, the City will designate leave as FMLA leave when the leave has been requested by the employee, or when the FMLA leave has not been requested but the City has sufficient knowledge that the leave has been taken for a reason that would qualify under this policy. FMLA leave will commence at the time of the qualifying event after three days use of dependent sick leave (Section 301.2).

309.7. Use of Paid and Unpaid Leave

Employees on FMLA leave must use sick, vacation, compensatory time accrued, and personal leave to the extent available. This leave will be paid in cases where the employee has accumulated sick, vacation, compensatory time, or personal leave. Those employees who do not have accumulated paid leave will still be allowed to take up to 12 weeks of unpaid leave in accordance with this policy.

In cases where the employee is seeking additional unpaid leave beyond the 12 weeks, the employee may request additional time off in accordance with the discretionary leave policy in Section 311.

309.7.1. If an employee is approved for FMLA leave because of his or her own serious health condition, the employee must first use all paid leave (sick, vacation, comp, personal) before applying for short-term disability or unpaid leave.

309.7.2. If an employee uses leave for giving birth to a child, the employee must first use sick leave for the time she is personally recuperating and unable to work as determined by the healthcare provider, then vacation leave, any earned compensatory time or personal leave (in that order) for family leave before being eligible for unpaid leave for the remainder of the leave up to 12 weeks.

309.7.3. If an employee uses FMLA leave as the father of a newborn, he must use all dependent sick, all vacation leave, any earned compensatory time or personal leave (in that order), and then all regular sick leave as indicated by the healthcare provider before being eligible for unpaid leave for the remainder of the 12 weeks.

309.7.4. If an employee uses leave because of the serious health condition of the employee's step/child, spouse or parent rendering them incapable of self care; the employee must first use all dependent sick, vacation leave, any earned compensatory time or personal leave (in that order), and then use all sick leave as indicated by the healthcare provider before being eligible for unpaid leave for the remainder of the 12 weeks.

309.7.5. Exigency leave, adoption, or bonding leavewill require use of vacation, compensatory, and/or personal earned hours.

309.7.6. Holidays. Holidays occurring during a full week of FMLA leave will count as FMLA leave; if an employee works any part of a work week during which a holiday falls, the holiday will not count as FMLA leave unless the employee was scheduled to work on the holiday.

309.8. Consecutive, Reduced Work Schedule, or Intermittent Leave

309.8.1. When leave is taken to care for an employee's own serious health condition or that of a spouse, parent or step/child, leave may be taken consecutively, intermittently, or on a reduced schedule when medically necessary.

309.8.2. When leave is taken because of adoption, placement of a child in foster care, or to bond with a newborn child, an employee may take leave consecutively or intermittently only upon approval of the employee's Department Director.

309.8.3. Intermittent Leave. Time away for sporadic leave will be tracked in a minimum of ½ hour increments, rounded up to the nearest 30 minutes. Further, the employee must provide at least one hour advance notice to the supervisor giving a reason for the absence. The employee is required to provide proper verification from the healthcare provider of date and time of each appointment upon return to work.

Recertifications may be required as requested by the City and will be due within 15 calendar days after the date requested. The healthcare provider may be asked to evaluate the employee's attendance record to determine if the employee's absence pattern is consistent with the need for leave and if the absences were medically necessary.

309.8.4. Reduced Schedule Leave. In the case of a foreseeable leave because of planned medical treatment, the City may temporarily transfer an employee on a reduced schedule to a different job with equivalent pay and benefits if another position would better accommodate the reduced schedule.

309.8.5. Continuous Leave. The employee is required to report any changes in leave reasons. Further, s/he may be asked to periodically report on his/her status or the status of the spouse, step/child, or parent and when the healthcare provider states the employee can return to work.

The City may contact an employee to obtain periodic reports about the employee's progress or other information about the
employee's activities. The employee is expected to provide the supervisor with a telephone number where the employee can be reached. If the City is unable to reach an employee while the employee is on leave, after making at least two attempts (one each on two separate consecutive calendar days), or the City leaves a message for the employee and the employee (or designated caregiver if the employee is medically unable to communicate) does not contact the City within 24 hours, the City will assume that the employee's activities are not consistent with the reason for the leave and may take appropriate disciplinary action.

309.9. Work while on leave

Any employee taking FMLA Leave pursuant to this section agrees that s/he will not accept or perform any work for the City, any other employer or engage in any self-employment work activity during his/her leave of absence; if an employee works for another employer or engages in any self-employment without prior approval, s/he acknowledges that in such circumstances his/her conduct will be deemed to be a violation of the terms of the leave of absence and that his/her employment with the City will be considered to have been terminated voluntarily on the employee's part as of the first day of such a violation.

309.10. Maintenance of Benefits

309.10.1. An employee shall be entitled to maintain group health insurance coverage on the same basis as if s/he had not taken leave. Insurance premiums will continue to be made through payroll deductions when the employee is on paid leave. In cases where unpaid leave is taken, the employee will be required to pay his/her share of insurance premium payments. This payment shall be made either in person or by mail to Human Resources, Insurance Specialist by the first day of each month. If the employee's payment is more than 30 calendar days overdue, the coverage may be dropped by the City.

309.10.2. If an employee informs the City that s/he does not intend to return to work at the end of the leave period, the City's obligation to provide health benefits ends.

If an employee chooses not to return to work for at least 30 calendar days for reasons other than a continued serious ealth condition or circumstances beyond the employee's control, the City will require the employee to reimburse the City the amount the City contributed towards the employee's health insurance during the leave period.

309.11. While on leave

Employees will continue to accrue vacation and sick leave as long as there are earned hours in the employee's banks. Performance or merit increases which would have been effective during a time when an employee is on approved FMLA will be granted as if the employee was actively at work.

309.12. Return to Work

An employee on continuous leave of two weeks or more for the employee's own serious health condition will be required to submit a fit for duty certification form from his/her own healthcare provider upon conclusion of the leave and consistent with the essential functions of the employee's job. If it is not presented to the supervisor on the first date of return, non FMLA leave will be applied for up to 15 calendar days and the employee will not be permitted to work until the release to work is submitted.

309.13. Job Abandonment

Absence from duty for two consecutive working days without prior notice and approval of the appropriate supervisor is considered job abandonment.

309.14. Job Placement Upon Return to Work

While an employee is on leave of absence, the employee has no greater reinstatement rights than s/he would otherwise have had if the employee had not taken a leave. For example, the City may take appropriate action (up to and including termination of employment), the an employee's job would have been eliminated for legitimate business reasons (whether or not the employee took a leave), or the City learns of performance issues while the employee is on leave that the City would have addressed if learned about while the employee was working. If an employee returns from FMLA leave before exhausting his/her FMLA leave allowance, the employee will be placed in the same or equivalent job, with equivalent pay, benefits and other employment terms. A
determination as to whether a position is an "equivalent position" will be made by the City Manager.

309.15. Other Laws

To the extent that any federal, state or local law provides greater or different benefits than provided in this policy, the City will comply with all applicable laws to the extent they do not conflict. In the event of a conflict between particular provisions of two laws that apply, the City will comply with the provision that provides the greatest rights to the employee.

309.16. Unlawful Acts by Employers and Enforcement

The FMLA makes it unlawful for any employer to: (1) interfere with, restrain, or deny the exercise of any right provided under FMLA; and (2) discharge or discriminate against any person for opposing any practice made unlawful by FMLA or for involvement in any proceeding under or relating to FMLA. If an employer violates the FMLA, an employee may file a complaint with U.S. Department of Labor or may bring a private lawsuit against an employer. FMLA does not affect any Federal or State law prohibiting discrimination or supersede any State or local law which provides greater family or medical leave rights. An employee may obtain additional information from the U.S. Department of Labor by calling 1-866-4US-WAGE (1-866-487-
9243 or TTY: 1-877-889-5627) or at the following website: www.wagehour.dol.gov