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HomeMy WebLinkAbout93-19ORDINANCE q3 ~ ~ q ESTABLISHING THE FAMILY AND MEDICAL LEAVE ACT POLICY FOR THE TOWN'S PERSONNEL POLICIES AND PROCEDURES MANUAL • ADOPTED: August 3, 1993 EFFECTIVE: Auugst 3, 1993 • r' ORDINANCE N0. 93-19 ESTABLISHING THE FAMILY AND MEDICAL LEAVE ACT POLICY FOR THE TOWN'S PERSONNEL POLICIES AND PROCEDURES MANUAL BE IT ORDAINED by the Town Council of the Town of Pulaski, Virginia sitting in regular session on August 3, 1993, that Chapter Eleven of the Town of Pulaski Personnel Manual be and hereby is, amended to be in the form attached hereto and made a part hereof. This Ordinance is effective upon adoption and is adopted on August 3, 1993, by recorded vote of the Town Council as follows: Charles D. Crispin - Aye Andrew L. Graham - Aye • J. R. Schrader, Jr. Roy H. D'Ardenne _ Absent Aye E. G. Black, Jr. Alma H. Holston - Aye - Aye W. H. Schrader, Jr. - Aye Robert N. Glenn - Aye Attest: ,c.c.s-~:.. l~C - ,~ Rut A. Harrell Clerk of Council • TOWN OF PULASKI, V GINIA By: W. H. Sc der, Jr. Vice Mayor 171 TOWN OF PULASKI, VIRGINIA FAMILY LEAVE and FAMILY MEDICAL LEAVE POLICY 1. ELIGIBLE EMPLOYEES. An employee must have been employed by the Town for at least twelve (12) months and have at least 1,250 hours of service during the previous twelve (12) months. A. The 12 months of employment do not have to be 12 consecutive months with the Town. If an employee is on the payroll for any part of a week, the week counts as week of employment. B. Hours of service are measured using the standards established by the Fair Labor Standards Act of 1938. (ELBA). Executives, professional and administrative employees who have worked for the Town for at least 12 months will be presumed to have met the 1,250 hour requirement. The 12 month period for measuring the 1,250 hours of service is the previous 12 consecutive months determined as of the date leave begins. • C. Whether an employee has worked sufficient time under the preceding test must be made as of the date leave commences, not when leave is requested.. Z. FAMILY LEAVE. An eligible employee may take up to 12 weeks of leave during any 12 month period because of'the birth of the employee's son or daughter, and to care for that son or daughter or because of the placement of a son or daughter with the employee for adoption or foster care. A. A son or daughter includes a biological, adopted or foster child, a step child, a legal ward or a child of a person standing in place of the parent. B. The child must be under 18 or if incapable of self care because of mental or physical disability, 18 or older. C. Entitlement to leave for birth or placement for adoption expires at the end of the 12 month period beginning on the date of the birth or placement. However, circumstances may require that the leave begin before the actual date of birth or placement. • Draft 08/02/93 Printed 01:40 PM Page 1 172 D. Both males and females may take family leave. However, if both are employed by the Town, the Town is only required to grant an aggregate of 12 weeks during the 12 month period to the couple considered together. 3. FAMILY MEDICAL LEAVE. An eligible employee may take up to 12 weeks of unpaid leave during any 12 month period to care for the employee's spouse, son or daughter or parent, if that family member has a serious health condition. In addition, an eligible employee is also entitled to up to 12 weeks of unpaid leave during any 12 month period because the employee has a serious health condition that makes him unable to perform the functions of his position. A. Family Member. 1. Spouse is a husband or wife of any age as defined or recognized, for marriage purposes, by Virginia law. This does not include non-marital domestic partners. _ . 2. Son or daughter has the same meaning as described above. 3. Parent means the employee's biological parent or someone who stood in the place of a parent to the employee when the employee was a son or daughter. Parent does not include the employee's in-laws. • B. Serious Health Conditions. 1. A serious health condition is any illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential medical care facility, or any period of incapacity requiring absence from regular activities of more than 3 calendar days that also involves continuing treatment, or that involves continuing treatment of a condition that is so serious that, if not treated, would likely result in a period of incapacity of more than 3 calendar days. 2. The term continuing treatment means one or more of the following: a. The employee or family member is treated two or more times for an illness or injury by a health care provider. This normally requires visits to the health care provider or some other health care professional acting under the supervision of a health care provider. b. The employee or family member is treated for illness or injury two times by a provider of health care services (such as a physical therapist) under advice or referral by a health care provider or is treated least one • occasion by a health care provider which results in a continuing treatment regimen (such as a course of medication). Draft 08/02/93 Printed 01:40 PM 173 Page 2 • c. The employee or family member is under continuing supervision of, but not necessarily active treatment by, a health care provider due to a serious long-term or chronic disability or condition which cannot be cured, such as Alzheimer's, the aftermath of stroke or the terminal status of a disease. 3. The term health care provider means a doctor of medicine or osteopathy who is authorized to practice medicine or surgery by the state in which he practices or any other person determined by the Secretary of Labor to be capable of providing health care services. 4. With respect to the employee, a serious health condition is intended to cover conditions or illnesses that affect the employee's health to the extent that the employee must be absent from work on a recurring basis or for more than a few days for treatment or recovery, such that the employee is unable to perform any of the essential functions of his position within the meaning of the ADA. Restorative dental surgery after an accident, removal of cancerous growths, treatments for allergies or stress or for substance abuse and prenatal care are serious health conditions if all other conditions are met. • 5. With respect to a family member, a serious health condition is intended to cover conditions or illnesses that affect the health of the family member so that he or she is unable to participate in his or her regular daily activities. 6. Serious health condition is not intended to include short term conditions such as moor illnesses that last only a few days and surgical procedures that atypically do not involve hospitalization and required only a brief recovery period. Voluntary or cosmetic treatments not medically necessary are not serious health conditions unless inpatient care is required. 7. FMLA sets higher standards for the employee's own serious health condition than for the condition of the family member. An employee may take leave to care for a family member who merely has a serious health condition while the employee must be unable to perform to perform the functions of his or her position. C. Care for. • 1. The term care for is intended to be construed broadly to include both physical and psychological care. Draft 08/02/93 Printed 01:40 PM Page 3 174 2. The term appears to include care during periods of inpatient care as well as for home care for a family member who is unable to care for his or her own basic hygienic or nutritional needs or safety. D. Other general rules. 1. Availability of leave applies equally to males and females. 2. When two employees are married to each other, the time off to care for the parents of each is limited to an aggregate of 12 weeks. 4. TYPES OF LEAVE. A. Use of other leave. 1. The Town requires that all accrued annual leave be used first before granting any leave required by FMLA, and that all accrued sick leave be used prior to the granting of family medical leave. 2. The total paid and unpaid leave available is not required to exceed the 12 • weeks required under FMLA. B. Family leave. 1. In the case of family leave, unless the Town and employee agree otherwise, the 12 weeks of family leave available must be taken in consecutive weeks. 2. Unless the Town and employee agree, intermittent or reduced schedule leave is not applicable to family leave. C. Family medical leave. 1. Intermittent Leave. In the case of family medical leave, the leave may be taken whenever medically necessary. Intermittent leave will reduce the total leave available only for the time off actually used. 2. Reduced Schedule Leave. In the case of family medical leave, the leave may also be taken in the form of a reduced schedule leave whenever medically necessary. A reduced schedule leave means reducing the number of hours per week or hours per day worker. Only the time off actually used will be counted toward the 12 weeks. • Draft 08/02/93 Printed 01:40 PM 175 Page 4 • 3. Transfer. If an employee requests intermittent leave or reduced schedule leave, and the leave is foreseeable based on planned medical treatment, the Town may transfer the employee temporarily to an available alternative position for which the employee is qualified and that better accommodates the recurring leave periods than the employee's regular position. The alternative position must have equivalent pay and benefits. However, the Town may proportionately reduce earned benefits, such as annual leave, where such a reduction is normally made by an Town for its part-time employees and the employee transfers to a part-time job. D. Determination of 12-month period for 12-week per year leave limit. 1. Only leave starting on and after the effective date of FMLA can be counted against an employee's 12-week entitlement. 2. The Town has selected the following alternative for determining the "12-month period": TOWN COUNCIL ADOPTED ALTERNATIVE "D" 8/3j93 a. Calendar year, b. Any fixed 12-month "leave near" (including each employee's employment anniversary year), • c. The 12-month period measured forward from the date of any employee's first FMLA leave begins, d. A rolling 12-month period measured backward from the date an employee uses any FMLA leave. Under this choice, any time an employee takes FMLA leave, the remaining .leave entitlement would be used during the immediately preceding 12 months. 3. The employee may be entitled to 24 weeks of continuous leave depending on the 12-month period chosen and the timing of the leave. For example, under the calendar near or fixed year, an employee would be entitled to 12 weeks at the end of one year and 12 weeks at the beginning of the next near. 4. The Town may change its selection as long as it gives at least 60 days' notice to all employees of any change in method and the change is effected in a manner which preserves an employee's full benefit of 12 weeks under whichever method affords the greatest benefit to the employee. 5. EMPLOYEE'S RESPONSIBILITIES. • Draft 08/02/93 Printed 01:40 PM Page 5 176 Ruth Harrell Gerk of Council • • -191- • A. Notification. The employee must give the Town at least_thirty (30) days notice before the date leave is to begin if the leave is foreseeable. If the leave is not foreseeable or it is impossible to predict accurately when the leave will be needed, the employee must provide as much notice as is practicable. Notice need not be in writing to be valid. 1. If an employee fails to give 30 days' notice for foreseeable leave with no reasonable excuse for the delay, the Town may deny the taking of leave until 30 days after the date the employee provides notice. 2. In order for an FMLA leave to be delayed due to lack of notice, the Town must be able to show that the employee had actual notice of the FMLA notice requirements. This can be satisfied by proper posting of the DOL notice. B. Treatment Scheduling for Family Medical Leave. In the case of family medical leave, the employee must make a reasonable effort to schedule,medical treatment so as not to disrupt unduly the Town's operation subject to the approval of the health care provider. This is a vague standard that does not appear to permit the Town to be involved in the scheduling or to make changes to it. C. Certification for Family Medical Leave. In the case of family medical • leave, if an employee asks for leave on the basis of a serious medical condition, the Town may request that the leave requested be supported by a certification from the health care provider. 1. The certification must be provided in a timely manner and is sufficient if it contains the following information: a. The date on which the serious health condition began; b. Its probable duration; c. The appropriate medical facts regarding the condition; d. In the case of the serious health condition of a family member, a statement that the employee is needed to care for the son or daughter, parent or spouse with an estimate of the time that the care will require; e. In the case of the serious health condition of the employee, a statement that the employee is unable to perform the functions of his or her position; • Draft 08/02/93 Printed 01:40 PM Page 6 177 f. In the case of intermittent leave for planned medical treatment, the dates on which the treatment is expected to be given and the duration of the treatment; ~ ' g. In the case of intermittent leave or reduced schedule leave for an employee's own serious health condition, a statement of the medical necessity and expected duration of an intermittent or reduced schedule leave; and h. In the case of intermittent or reduced scheduled leave for a serious health condition of a family member, a statement that the type of leave is necessary or will assist in the recovery and the expected duration and schedule of the intermittent or reduced schedule leave. 2. The certification must be provided in a timely manner, when possible in advance or at the start of the leave. If the need does not permit an advance certification, the certification must be provided reasonably soon thereafter. 3. The Town may request a second opinion at its own expense if the Town doubts the validity of the certification. However, the provider of the second opinion may not be employed on a regular basis by the Town. • 4. If the second opinion differs, a third opinion may be sought from a third health care provider designated or approved jointly by the Town and the employee. The third health care provider opinion is final and binding. The third opinion is also at the Town's expense. 5. The Town may require that the employee obtain subsequent recertifications on a reasonable basis. An Town may request recertification no more often then every 30 days unless there is a change in circumstances or the Town receives information that casts doubt upon the continuing validity of the certification. 6. The Town may require that it be kept informed and that the employee on leave report periodically, at reasonable intervals, on the employee's status and intention to return to work. 7. If an employee has been on FMLA leave because of his own serious health condition, the employee must present certification from the health care provider that the employee is able to resume work before returning such employee to work. 8. Under certain circumstances failure to provide required certification can result in denial of FMLA leave. • 6. TOWN'S RESPONSIBILITIES. Draft 08/02/93 Printed 01:40 PM 178 Page 7 • A. Job Restoration. After a leave, the Town will restore the employee to the position he or she held at the' beginning of the leave or to an equivalent position, with equivalent benefits, pay and other terms and conditions of employment. 1. The Town. has a uniformly applied practice or policy requirement that employees returning from leave must receive a certification that they are able to resume work. 2. The term equivalent position does not mean comparable or similar. Instead it is intended that the position correspond with the duties and all other terms, conditions and privileges of the previous position. 3. An Town may deny restoration to a salaried employee ("salaried high paid employee") who is among the highest paid 10% of the employees of the Town, if the following conditions are met: a. The denial is necessary to prevent substantial and grievous economic injury to the Town's operations, b. The Town notifies the employee of the intent to deny restoration at the time the Town decides that such injury would occur, and • c. When the leave has already started, the employee chooses not to return to employment after receiving such notice from the Town. While the highly paid employee may be denied restoration, he or she must not be denied the leave. As a result the benefits must continue and the employee:may change its mind or have been unable to fill the position during the interim. 4. An employee returning from leave has no greater right to reinstatement or to other benefits than if the employee had been continuously emp{oyed during the leave period. B. Benefits Restoration. Taking leave may not result in the loss of any employment benefits accrued before the date the leave started. 1. Employment benefits means all benefits including group life insurance, health insurance, disability insurance, sick leave, annual leave, educational benefits and pensions regardless of whether such benefits are provided by a practice or written policy or through an employee benefit plan as defined by ERISA. • Draft 08/02/93 Printed 01:40 PM Page 8 179 • 2. Group term life insurance benefits may lapse during a period of unpaid FMLA leave; however, the Town may not require a returning employee to meet any qualifications in order to re-qualify for life insurance after such feave. 3. While the employee is .on leave and when the employee has his or her job restored, the employee is not entitled to accrue seniority or employment benefits during the leave period or any right, benefit or position of employment other than one to which the employee would have been entitled had he or she not taken the leave. 4. In the case of pension and other retirement plans, any period of FMIA leave must be treated as continuous service (i.e., no break in service) for vesting and eligibility to participate. C. Group Health Plan Maintenance During Leave. 1. If the Town maintains a group health plan, it will maintain the coverage in effect before the feave for the duration of the leave at a level and under the conditions coverage would have been provided if the employee had continued to work and not taken leave. a. If an active employee is required to contribute to or pay the cost of • coverage, the employee on FMIA leave may be required to pay that same (but no greater) share of the cost. b. If the employee substitutes paid leave for the FMIA leave, the employee may be required to pay premiums by the regular method required of all employees (presumably payroll deduction). c. If the FMtA leave is unpaid, the employee may be required to pay premiums in any of the following ways, but the Town must provide advance written notice of the terms and conditions under which payment will be made: (1) Payment would be due at the same time as it would have been due by payroll deduction. (2) Payment would be due on the same schedule as payments are made under COBRA. (3) Payment would be prepaid pursuant to a cafeteria plan at the employee's option. • (4) The Town's existing rules for payment by employees on leave without pay would be followed, provided such rules do not require Draft 08/02/93 Printed 01:40 PM Igp- Page 9 • prepayment (i.e., prior to the commencement of the leave) of the premiums that will become due during the FMLA leave. (5) Payment would be made in any manner that the Town and employee agree, including through prepayment of premiums (Such as through increased payroll deductions when the need is foreseeable). d. An Town may not require more of an employee on FMLA leave than the Town requires of employees on other unpaid leave. e. If the employee must pay all or part of the monthly premium in order to maintain health plan coverage, the Town's obligations to maintain health insurance coverage ceases if the employee's share of the premium is more than 30 days late. However, if coverage lapses, upon the employee's return from FMLA leave, coverage must be restored as if the employee had not taken leave and the premium payment had not been missed. In such case, the employee would not be required to meet any qualification requirements imposed by the plan, including any new preexisting condition, waiting period, to wait for an open season, or to pass a medical exam. • 2. If the health plan is established during the time~the employee is on leave, he or she must be entitled to start the benefits at the same time as if not on leave. 3. A salaried high paid employee who is denied job restoration is still eligible for continued health coverage even after being notified that his or her job restoration wi11 be denied. Under these circumstances, no recovery of premium is permitted if the salaried high paid employee elects to continue on leave rather than return to work. 4. If the employee does not return to work after the leave, the Town may recover the premium it paid for maintaining the group health plans coverage of the employee during any unpaid FMIA leave. a. An employee is considered to have returned to work if the employee works for at least 30 calendar days. . b. If the reason for not returning is either the continuation or reoccurrence of the original, or the onset of another, serious health condition of the employee or a family member or other circumstances beyond the employees contro{, the Town is not entitled to recover the premium paid. • Draft 08/02/93 Printed 01:40 PM Page 10 181 (1) According to the DOL regulations, included in those . circumstances beyond the employee's control is the situation where the employee's spouse is unexpectedly transferred to a job more than 75 miles from the employee's work site. (2) The Town is entitled to a certification from a health care provider regarding any serious medical condition that is the basis for the employee's not returning. The certification must be provided within 30 days of the Town's request. c. When the Town requires that paid leave be substituted for unpaid FMIA leave, the Town may not recover any part of the premium relating to the period covered by paid leave. d. In the case of aself-insured plan, the Town's recovery is based on the Town's share of the "premium" as calculated for "COBRA", without any 2°!° add-on for administrative expenses. e. The repayment obligation is a debt owed to the Town, not to the plan. The DOt_ regulations state that the repayment may be effected, subject to any federal or state law requirements, through deduction from any sums due the employee (for example, from unpaid wages, vacation pay, profit • sharing, etc.) or through legal action. 5. COBRA rights will be available at the end of the leave if the employee does not return to work. D. Other Benefits During Leave. 1. Under some circumstances, an Town may elect to continue other benefits (for example, life insurance, disability insurance, etc.) etc.} by paying premiums during unpaid FMIA leave. The Town then is entitled to recover any premium payment made on the employee's behalf during the unpaid FMIA leave pursuant to the rules for recovery of group health plan premiums paid by the Town, whether or not the employee returns from the FMLA leave. 2. If an employee wants to continue life insurance, disability insurance or other types of benefits for which the employee typically pays during unpaid FMLA leave, the Town must follow its established practices (if any) for continuing such benefits for other unpaid leave. • Draft 08/02/93 Printed 01:40 PM Page 11 I, Ruth A. Harrell, Clerk of the Councilof the Town of Pulaski, Virginia, do hereby certify that the foregoing Ordinance No. 93-19 is a true and correct copy of the Ordinance set out and adopted by the recorded vote of the Town Council on August 3, 1993. Ruth A. Harrell, Clerk of Council • •