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HRD
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State of Ohio Family and Medical Leave Act Policy
PLEASE NOTE: On January 28, 2008, the President signed into law the National Defense Authorization Act (HR 4986), which expands the FMLA to include employees caring for an injured service member, as well as family members who have a family member called to active duty. The federal of Department of Labor is expeditiously preparing regulations to clarify the new language and we have plans to update our state policy once those regulations have been released. In the interim, agencies should contact the Office of Policy Development at (614) 752-5393 for assistance in processing employee FMLA claims that may be covered under this new language.
The Family and Medical Leave Act (FMLA) allows eligible state employees to take up to twelve workweeks of leave per rolling twelve-month period for the following qualifying events:
- The birth
of a child;
- placement
with an employee of a child for adoption or foster care;
- caring
for a spouse, child, or parent with a serious health condition; or
- the serious
health condition of the employee.
EMPLOYEE
ELIGIBILITY
- Employees who have been employed by the state for at least twelve months; and have actually worked (i.e., in "active work status") at least 1,250 hours during the past twelve months are entitled to FMLA leave regardless of gender. Previous employment with the state in which the employee was paid directly by warrant of the Auditor of State shall count toward meeting the twelve-month employment requirement. Active work status is defined as "the conditions under which an employee is actually in a work status and is eligible to receive pay but does not include vacation pay, sick leave, bereavement leave, compensatory time, holidays, personal leave, and disability leave." (AC 123:1-47-01 (A)(3)).
MILITARY LEAVE
- The Uniformed Services Employment and Reemployment Rights Act (USERRA) requires that a person reemployed under its provisions be given credit for any time he or she would have been employed but for the military service in determining eligibility for FMLA leave. This credit includes time toward the requirements of twelve months of employment and the 1,250 hours in active work status.
- Each month served performing military service counts as a month actively employed by the employer.
- A person reemployed following military service has the hours that would have been worked for the employer added to any hours actually worked during the previous 12-month period to meet the 1,250 hours in active work status requirement. In order to determine the hours that would have been worked during the period of military service, the employee's preservice work schedule can generally be used for calculations.
REQUESTS
FOR FMLA LEAVE
- If the need for leave is foreseeable, employee requests must be submitted at least thirty days prior to taking leave or, if this is not possible, as soon as practicable.
- Requests must be submitted on a standard leave form (ADM 4258). Employees who know the requested leave is for an FMLA-qualifying event may specify that the leave is requested pursuant to the FMLA by checking the appropriate box.
- Leave must be taken in increments of no less than 1/10 hour.
- Requests must include a completed State of Ohio Physician or Health Care Provider Certification For the Family & Medical Leave Act form (ADM 4260); or equivalent documentation in the case of an adoption/foster care. The certification form shall be maintained separately in a confidential manner.
- Leave taken for the birth or placement of a child must be taken within one year of the date of birth or placement.
USE
OF PAID LEAVE
- Employees
shall exhaust all accrued sick, vacation, and personal leave
balances, as appropriate, prior to going on unpaid leave.
- Pursuant
to 29
CFR Part 825, Section 207 (i):
- Employers
may not require employees to use compensatory time as a
substitute for unpaid FMLA leave.
- Employees
may request to use compensatory time for a FMLA-qualifying
illness. If the employer permits the use of compensatory
time (in compliance with 29
CFR Section 553.25), it shall not be counted toward
the employees' twelve workweek FMLA leave entitlement.
- When FMLA
leave is used concurrently with Disability Leave, Workers' Compensation,
or Adoption/Childbirth Leave, the leave policies for those programs
shall override the requirement of this policy for employees
to exhaust all of their accrued leave.
- Whether
leave is paid, unpaid, or a combination, the employee is entitled
to only twelve workweeks of FMLA leave within a rolling twelve-month
period.
- Agencies
may designate paid or unpaid leave as FMLA leave, whether the
employee designates it as such or not if all of the following
apply:
- The
agency has compelling information based on information provided
by the employee that leave was taken for an FMLA-qualifying
event; and
- The
employee is properly notified of his or her FMLA rights.
- Agencies
shall at a minimum notify employees of their FMLA rights:
- verbally
within two days of their agency counting the leave as FMLA
leave; and
- in
writing by the payday following the date leave is designated
as FMLA leave.
- If
the following payday is less than one week from the date
leave is designated as FMLA leave, agencies shall provide
written notice to the employee by the next payday.
- Agencies
shall at a minimum provide written notice to employees the
first time they are granted FMLA leave in each six-month
period.
WORKERS'
COMPENSATION, OCCUPATIONAL INJURY LEAVE, AND DISABILITY LEAVE
Employees requesting Workers' Compensation, Occupational Injury
Leave, or Disability Leave who are also eligible for FMLA leave
shall have up to twelve weeks of the non-working portion of the
approved benefit period, including any required waiting period,
count concurrently as FMLA leave. Agencies may also grant FMLA leave
to employees while their request is being reviewed. The granting
of FMLA leave shall have no bearing on the approval or disapproval
of employees' requests.
ADOPTION/CHILDBIRTH
LEAVE
Employees requesting Adoption/Childbirth leave benefits who are also eligible for
FMLA leave
shall have the entire non-working portion of Adoption/Childbirth leave,
including the required waiting period, count concurrently as FMLA leave.
An employee who is not eligible for FMLA leave (e.g., the employee has not been in active work
status for 1,250 hours during the previous twelve months or has already
used his or her twelve workweeks of FMLA leave) shall retain his
or her right to Adoption/Childbirth leave upon meeting the Adoption/Childbirth
leave eligibility requirements.
INTERMITTENT
FMLA LEAVE
- Employees
are entitled to take intermittent leave for the employee's serious
health condition or due to the serious health condition of a
parent, spouse, son or daughter.
- To be
entitled to intermittent leave, the employee must submit certification
to establish the medical necessity of the leave (e.g., periodic
testing and treatments). In reviewing the request, the Human
Resources office shall determine whether or not an acceptable
leave schedule can be arranged and may consider a temporary
transfer to an alternative, comparable position.
- Agencies
may require employees to provide recertification of the medical
necessity for intermittent leave no more than once every
thirty days in conjunction with an employee's absence unless:
- the
employee requests an extension of leave;
- circumstances
described by the previous certification have changed significantly
(e.g., the duration of the illness, the nature of the
illness, complications); or
- the
agency receives information that casts doubt upon the continuing
validity of the certification.
- Agencies
may grant employees intermittent leave for the birth or placement
of a child. Intermittent leave for the birth or placement of
a child shall be upon approval of the employee's supervisor
and the Human Resources office. Employees should request such
leave from their supervisors and may request a review from their
Human Resources office of any decision made.
EMPLOYEE
BENEFITS
- Agencies are required
to continue paying the employer's portion of health insurance premiums during
approved FMLA leave.
- Employees are required
to continue paying the employees' portion of health insurance premiums.
Information on how health insurance premiums are to be paid while on FMLA
leave may be obtained from the Human Resources or Payroll office.
- Employees shall be
given a thirty-day grace period from the due date of their health insurance
premium. Employees who fail to pay their portion of the health insurance premium
within this grace period may, with fifteen days notice from their agency Human
Resources or Payroll office, be removed from their respective health insurance plan.
Agencies that cancel an employee's health insurance without giving fifteen days notice
become liable for the employee's health care costs.
- If an employee chooses
not to continue health care coverage during FMLA leave, the employee will be
entitled to reinstatement into the benefit plan upon return to work.
- Agencies may seek
reimbursement for any health insurance premiums paid on behalf of the employee
if the employee fails to return to work from FMLA leave. Agencies may not seek
reimbursement if the reason for the employee failing to return to work is due to
the continuation or recurrence of the serious health condition or is otherwise
beyond the employee's control as defined in the FMLA.
- Employees who
are reinstated will not lose any service credit and FMLA leave will be
treated as continuous service for the purpose of calculating any
benefits that are based on length of service.
MEDICAL
CERTIFICATION
- In addition
to the certification required with a request for leave that qualifies
as a serious health condition, agencies may require a second opinion
from a second health care provider designated by and paid for by the agency.
- If the
first and second opinions conflict, agencies may require the
employee to submit to a third examination at the agency's expense
by a health care provider chosen jointly by the employee and the
agency. In choosing the third health care provider, both the
employee and the agency must be reasonable and act in good faith.
The opinion of the third health care provider is final and binding.
- Under this
policy, agencies may require the employee to report their health
status and intent to report to work no more than once every thirty days.
If agency officials have reason to believe that the employee's health
status has changed such that the employee may no longer be eligible for
FMLA leave, they may require the employee to get a second or third opinion
as outlined.
REINSTATEMENT
- Employees are
entitled to reinstatement to the same or similar position upon
return from leave.
- If the
same job is not available, the agency's Human Resources office
will determine in which similar position the employee should be
placed, making sure that the position has equivalent pay, benefits
and conditions of employment.
- Employees
who take leave due to their own serious health condition may be
required to provide certification from a health care provider that
they are able to perform the essential functions of their position.
RECORDKEEPING
- Agency Human
Resources or Payroll offices will maintain records of leave balances
and FMLA leave usage.
- Medical
records accompanying FMLA requests will be kept separate from
personnel files in a confidential manner.
Questions
or requests for assistance should be addressed to each agency Human
Resources Office.
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