1. society
2. work
3. retirement

Managing
Leaves
Supervisory Development Core
Minnesota Management & Budget
Question 1: _____________________________________________________
________________________________________________________________
_______________________________________________________________
________________________________________________________________
_______________________________________________________________
Question 2: ____________________________________________________
________________________________________________________________
_______________________________________________________________
________________________________________________________________
_______________________________________________________________
Revised February 2009
Managing Leaves
Section 1
Introduction and Overview
I. Purpose
II. Objectives
III. Types of Leave
Section 2
The Family and Medical Leave Act
I. Major Components
II. Eligibility and Qualifications
III. What is a Serious Health Condition
IV. What is a Qualifying Exigency
V. Benefits of the Law for State Employees
VI. Key Concepts
VII. Key Points for Supervisors
VIII. Avoiding Liability
Section 3
Managing Sick Leave
I. Why Sick Leave Use is a Concern
II. Sources of Issues
III. Statewide Policy on Sick Leave
IV. Supervisory Responsibilities in Monitoring Sick Leave Use
V. Responding to Excessive Use or Abuse of Sick Leave
Managing Leaves
1
Managing Leaves
Section 1
Introduction and Overview
I.
Purpose
Ensure that supervisors possess the information and tools necessary to effectively
manage employee attendance and leaves.
II.
Objectives
♦ Identify the various types of leaves available under the labor contracts and the
law.
♦ Identify impact and processes related to FMLA.
♦ Differentiate legitimate use of sick leave from excessive use and abuse of sick
leave.
♦ Identify the effects of employee attendance on your unit’s work goals.
♦ Identify supervisory responsibilities pertaining to attendance management.
♦ Identify the practices needed to carry out these responsibilities.
♦ Present options for dealing with attendance problems that arise.
III.
Contractual Leaves
A. Paid/Unpaid
B. Mandatory/Discretionary
C. Leaves (not an all-inclusive list)
*
*
*
*
*
IV.
2
Vacation
Disability/medical leave
Sick
Leave without pay
Personal
Union
Jury duty
Voting time
Military
Education
Family and Medical Leave Act (FMLA)
Managing Leaves
The State of Minnesota must provide up to 12 or 26 weeks of job-protected leave
to “eligible” employees for certain family and medical reasons consistent with the
FMLA, relevant State law, and collective bargaining agreements and plans.
A. Supervisor’s Checklist
1.
Is the Employee eligible for FMLA coverage?
*
*
2.
Is the time off for an FMLA “Qualifying Event?”
*
*
*
*
*
*
3.
12 work weeks per for fiscal year for all qualifying events , except
26 work weeks during a 12 month period to care for a covered service
member who becomes seriously ill or who is injured while on active
duty.
Are there any record keeping requirements?
*
*
8.
Medical, personal, parenthood
How long does the FMLA leave last?
*
*
7.
Sick leave
Vacation leave
If unpaid leave, which type?
*
6.
In most Cases
Personnel office should have form to request necessary info
See Family and Medical Leave Reference Materials
Will the employee simultaneously be using any paid leave?
*
*
5.
For birth/care of employee’s newborn child
Placement of child for adoption/foster care with the employee
Care of employee’s seriously ill spouse, son, daughter, parent
Employee cannot perform job due to serious health condition
Qualifying exigency
Care of for covered service member
Do you need medical or other forms documentation?
*
*
*
4.
Must have worked for the state a year; and
Must have worked at least 1,250 hour in previous 12 months
Personnel office has special record keeping requirements
CHECK WITH THEM for what you need to do
When the FMLA leave is over, what are the employee’s job return rights?
Managing Leaves
3
*
9.
the same position or equivalent position with equivalent benefits.
Does an employee have appeal rights?
*
*
*
always advise to check with personnel and union
formal appeal rights to: federal DOL
private lawsuit
10. If employee does not return, we can recoup the costs of health insurance
paid unless special circumstances
11. How has the FMLA changed what the state has done in the past with
managing sick leave?
*
Can’t count FMLA leaves as part of “excessive use” for purposes of
discipline
FMLA Reference Materials: State FMLA Policy, Frequently Asked Questions, Notices,
Forms and Certifications
4
Managing Leaves
Section 2
Supervisory Responsibilities When Managing Sick Leave
I.
Why Sick Leave Use is a Concern
A. What is the potential effect on your unit?
1.
2.
3.
4.
Low productivity
Increased costs
Morale problems
Stress for supervisors
B. Why is there a problem?
1. Employee:
a. Is unaware of policies
b. Believes policies not enforced
c. Doesn’t value sick leave accrual
2. Supervisor:
a.
b.
c.
d.
II.
Avoids the problem as too difficult
May sympathize with employee
Believes action won’t be supported
Is “too busy”
Statewide Policy on Sick Leave
A. Managing sick leave is a statewide priority
B. Supervisors are responsible to implement policy and manage attendance
Reference Material: See State Sick Leave Policy pages 1-3
Managing Leaves
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III. Grant Sick Leave When Appropriate
A. Ensure appropriate use under collective bargaining unit agreements
Be certain to read the appropriate bargaining unit sick leave language for
each employee. There are slight variations between bargaining units as to
what constitutes legitimate use. Also, contracts can change when
renegotiated every other year. If the contract language seems unclear, or the
employee’s situation is unusual, get further information before granting or not
granting.
Reference Material: See AFSCME language pages 4, 5
Exercises: Refer to exercises on granting sick leave
B. Ensure confidentiality
Medical information and other information surrounding sick leave use is
confidential (private data). This information should not be part of an
employee personnel file. Talk to your Human Resource Office about what
information should be added to an employee medical file. Supervisors should
keep their notes and records in secured storage.
C. Determine if leave is also FMLA-qualifying
VI. Establish and Enforce Procedures and Work Rules on Sick Leave Use
A. Establishing work rules
1. Work rules must be reasonable
2. Meet with union before implementation
3. Post in advance of effective dates
If you are interested in developing a new work rule you should consult your
human resources office first.
B. Enforcing work rules
1.
2.
3.
4.
6
Clearly communicate rule to employee
Document that work rule communicated
Hold the employee accountable
Be consistent
Managing Leaves
V.
Monitor Sick Leave Use
A. Keep employee attendance records
1. Keep records current & accurate for each employee
2. Be open about documentation
3. Keep the records confidential
Reference Material: See the sample Attendance Logs pages 6-8
B. Analyze attendance records
1. Definitions
Abuse: Use of sick leave is for purposes other than those listed in the
collective bargaining agreement or plan.
Excessive Use: The purpose the sick leave is being used is legitimate, but
the amount is so great it is negatively affecting job performance.
2. Compute monthly totals
What is the number of incidents of sick leave use?
3. Compare to standard
Supervisors should review more closely sick leave usage for individual
employees when use exceeds six (6) separate instances in a (12)
month period. This standard does not define excessive use, but rather
the point at which the supervisor should begin to consider whether there is
a problem beginning to develop.
Instances shall include: All actual sick leave hours used as well as other
types of leave used in lieu of sick leave (e.g., same-day vacation leave
requested in lieu of sick leave, leave without pay taken for sick leave
reasons)
Instances shall not include: Time taken for prescheduled doctor
appointments, bereavement leave workers compensation or sick leave
used in conjunction with the birth or adoption of a child or for the period of
time that a doctor certifies a female employee unable to work because of
pregnancy. FMLA-qualifying time shall not be considered an instance.
Managing Leaves
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4. Check previous absences
May indicate excessive use: Look at numbers from previous months or
years; for sudden changes in use; frequency; length of absences; amount
of accrued sick leave in relation to years of service; how essential is the
position; impact on morale.
May indicate abuse: Are there discernible patterns to the absence?
Check for absences on Mondays and Fridays, or a day before of after a
holiday; day after payday, or on a day after a day off. Check for recurring
reasons. Check for reasons that are extraordinary or vague. Check to
see if the absence coincides with requested day off which was denied or
with an event (such as fishing opener)
VI.
Recognize Good Attendance
A. Intangible rewards
B. Formal presentations
C. Letters of recognition
D. Subject for local labor management committee?
E. FMLA-qualifying time may not be held against employees when recognizing
good attendance.
VII. Respond to Excessive Use or Abuse of Sick Leave
A. Counsel the employee
1. Purpose: to provide feedback to the employee regarding the problem and
expectations of future behavior.
2. Goal: to improve attendance.
3. Planning to Counsel
A.
B.
C.
D.
8
Review records/gather and analyze facts
Assess the option of having the union present
Decide the best time and place to meet
Never conduct a counseling session on an impulse
Managing Leaves
4. Counseling Session
a. Put the employee at ease - explain that you are not disciplining, but
could in the future.
b. Describe the attendance record/ problem
c. Discuss why attendance important to employee & to you
d. Indicate you expect improvement
e. Determine why the problem exists
f. Ask the employee for solutions
g. Agree on specific employee action
h. End on a positive note
i. Follow up.
Be certain to document counseling session for your records.
Reference Material: See sample memos on counseling pages 9, 10
B. Refer to Employee Assistance
How to make an EAP referral is covered in the EAP session of Supervisory
Core
C. If excessive use, consider alternative arrangements
1. Examples: disability leave, modified or reduced schedule, change in job
duties, “reasonable accommodation”
2. Note: Before taking any action on alternative arrangements, meet with
your Human Resources Office and discuss your ideas and possible
courses of action.
D. If abuse, require a medical practitioner’s statement.
1. Under the collective bargaining agreements or plans, it is management’s
right to require a medical practitioner’s statement if the “Appointing
Authority has reasonable cause to believe that an employee has abused
or is abusing sick leave”.
2. About the request for a medical statement (AFSCME language):
a.
b.
c.
d.
e.
Management’s request only applies to future absences
Request may be oral or written, but put oral request in writing ASAP
Employee usually bears expense
Statement must be satisfactory
You have a right to verify
Reference Material: See samples of medical statement request letters pages 11-14
Managing Leaves
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E. Deny the employee’s sick leave request if:
1. Have proof of abuse
2. Employee fails to bring in medical practitioner’s statement as required
3. Medical practitioner’s statement is not satisfactory
4. Call-in procedure not followed
Reference Material: See sample letter denying sick leave page 15
F. Address in the employee’s performance review
1. Quality vs. quantity
The quality of work may be satisfactory, but because of frequent absence
the quantity may fall below satisfactory.
2. Timeliness related to attendance
Comment section may say “because of erratic attendance, the employee
was not able to accomplish his/her work in a timely fashion”.
Generally, if an employee has also received disciplinary action for sick
leave abuse or excessive use, the specific disciplinary action should not
be mentioned on the performance review.
G. Non-certify a probationary employee with attendance problems
H. Discipline
1. Can be combined with other options for excessive use or abuse
2. Arbitrators opinion
“Absenteeism beyond a certain degree can constitute just cause for
discharge regardless of the validity of the reasons for such absenteeism.”
“Implicit in the employer-employee relationship is the right of the employer
to rely upon the presence of the employee during his assigned hours of
work and the obligation of the employee to be present.”
Reference Material: See arbitration award excerpts pages 16, 17 (note-arbitration
awards were issued prior to the enactment of the FMLA).
10
Managing Leaves
3. Just cause requirement
a. Did employee know attendance standard? Do you have
documentation? Notice consists of both what kinds of conduct can
lead to discipline and what kinds of discipline can result.
b. Was the standard reasonable?
c. Was an investigation conducted? Did employee violate standard?
d. Was the investigation fair?
e. Is there sufficient evidence?
f. Is the standard evenly applied?
g. Does the level of discipline fit the violation?
Reference Material: See Just Cause elements page 18
Just cause pertaining to discipline of employees is covered in the
Supervisory Core session Discipline, Termination and Grievances. For
more information please turn to that section in your Core Manual.
Reference Material: See samples of discipline letters pages 19, 20
tdrc/score03/mngleave/mngleav
Managing Leaves
11
Response for Both Excessive Use or Abuse: Discipline
MAPE and Department of Human Services (February 1982)
An employee was discharged for failure to follow reporting procedures when not able to report
for work, unauthorized absences, and continued abuse of sick leave. The employee had a history
of prior disciplinary actions, including an oral reprimand, a written reprimand, a five day
suspension and an eight month suspension. In upholding the discharge, the Arbitrator said that
the employee continually abused sick leave, was guilty of unauthorized absences from work and
failed to call in when he was unable to work. In particular, the Arbitrator was offended when the
employee attended a Vikings game when he had called in sick and stated that the employee's job
carried “elements of truth, responsibility, professional responsibility, and an obligation to the
staff and the patients in the hospital, all of which were breached by this incident.”
MAPE and Department of Transportation (May 1992)
The employer reasonably accommodated the Grievant’s disability, if any. The Employer
adjusted the Grievant’s work schedule in order to accommodate absences. The Grievant,
however, could not seem to arrive at work in a timely and regular manner. Moreover, the
Grievant had offered simply no excuse for his repeated late arrivals to work or his failure to meet
the sixty (60) hour standard just prior to his termination and the record does not support the
conclusion that the Grievant was repeatedly absent from work due to his disability. The
Grievant’s failure to improve his attendance over time indicates that he was no longer able to
perform one of the essential features of his position—timely and regular attendance.
Managing Leaves: Sick Leave Reference Materials
17
Response for Both Excessive Use or Abuse: Discipline
The “Just Cause” Requirement
Managers and supervisors must have “just cause” for disciplining permanent employees. The
following criteria are relevant in determining the existence of just cause.
1. Forewarning. Did the employee have knowledge and understanding of the rule or standard
and was the employee adequately forewarned of the consequences of his/her conduct? Some
severe offenses, such as stealing, do not require prior warning since employees are expected
to understand such offense will result in discipline.
2. Reasonable Rule. Was the violated rule or order reasonably related to orderly, efficient
and/or safe operations of the department, or to the performance that the supervisor could
properly expect of the employee?
3. Fair Investigation. Did the supervisor investigate before administering discipline, and was
the investigation fair and objective? The supervisor must attempt to discover the facts, talk
with others involved in the incident, and should give the employee the opportunity to explain
his/her side of the incident, including mitigating circumstances.
4. Proof. Did the investigation produce evidence or proof that the employee acted contrary to
the department’s rules or standards? Based on the facts he/she has gathered, is the
supervisor more convinced than not that the employee was guilty of the alleged misconduct?
5. Equal Treatment. Have the rules, standards, and resulting discipline been applied
evenhandedly to other employees in the past, without discrimination? Employees must be
judged by the same standards and rules must be applied equally to all employees.
Enforcement must be internally consistent to afford equal treatment.
6. Penalty Related to Offense. Was the level of discipline given out reasonable in relation to
the seriousness of the offense? The supervisor may not impose more severe discipline than
the offense reasonably merits. In deciding the appropriate level of discipline, the supervisor
may consider such things as: (a) the seriousness of the offense; (b) employee’s past record
and length of service; (c) the amount of elapsed time since any previous discipline; (d) the
department’s pervious history of treating similar cases.
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Managing Leaves: Sick Leave Reference Materials
Response for Both Excessive Use or Abuse: Discipline
Example of a Written Reprimand
Abuse of Sick Leave
DATE:
May 18, 2000
TO:
Linda Carter, DAP Assistant
FROM:
Jamie Quirk, DAP Director
This memorandum serves as an official written reprimand for abuse of sick leave.
On May 14, 2000, at 4:15 p.m. you called the Service AGS stating you were sick and unable to
report to work for your scheduled shift. At 6:45 p.m. on May 14 I observed you at McKnight
Park playing softball. The following day you submitted your leave request form. On it you
stated you were sick with flu symptoms. When I discussed this situation with you on May 16
you stated you were actually more sick than you had originally indicated; and that you were still
quite sick on May 15 and shouldn't have been at work.
My observation of you playing softball and my discussion with you regarding your illness has
led me to determine that you have misused your sick leave.
I am also denying your request for sick leave on May 14, 2000, and will be denoting that
unauthorized absence time be used for payroll purposes.
In the future you are to call the Service AGS per procedure, and submit your leave request to me
personally, immediately upon return to work.
Based on your actions of May 14, 2000, I also request that you bring a doctor's excuse whenever
you use sick time for a period commencing May 19, 2000, and ending on the completion of your
work shift on August 18, 2000. If there is no further problem in your use of sick time, you will
no longer be required to bring a doctor's excuse after August 18, 2000.
I expect that in the future you display a more responsible attitude in regard to the use of sick
time. Failure to follow the corrective action could result in further disciplinary action.
You may appeal this action pursuant to the Collective Bargaining Agreement between the State
and AFSCME, Council No. 6.
cc: Personnel File
Union
Managing Leaves: Sick Leave Reference Materials
19
Response for Both Excessive Use or Abuse: Discipline
Example of a Written Reprimand for
Excessive Use of Sick Leave
December 23, 2000
Mr. James Bond
Box 1808
Britt, MN 55710
Dear Mr. Bond:
You are hereby given this written reprimand as disciplinary action for your continuing inability
to report to work as scheduled.
The record indicates you were absent from work approximately 211 hours so far this year,
January 1, 2000 through December 20, 2000. The dates are as follows:
1-21-00
2-25-00
4-17-00
4-29-00
4-30-00
5-6-00
6-7-00
6-10-00
6-17-00
6-18-00
6-20-00
Mon.
Mon.
Wed.
Mon.
Tue.
Mon.
Fri.
Mon.
Mon.
Tue.
Thur.
8 hrs.
8 hrs.
1 hr.
8 hrs.
8 hrs.
3 hrs.
2 hrs.
8 hrs.
8 hrs.
8 hrs.
8 hrs.
7-17-00
8-2-00
8-16-00
8-19-00
8-20-00
8-21-00
8-22-00
8-23-00
8-26-00
8-27-00
9-13-00
Wed.
Fri.
Fri.
Mon.
Tue.
Wed.
Thur.
Fri.
Mon.
Tue.
Fri.
4 hrs.
6 hrs.
1 hr.
8 hrs.
8 hrs.
8 hrs.
8 hrs.
8 hrs.
8 hrs.
8 hrs.
2 hrs.
10-1-00
10-7-00
10-25-00
11-4-00
12-9-00
12-10-00
12-11-00
12-12-00
12-13-00
12-20-00
Tue.
Mon.
Fri.
Mon.
Mon.
Tue.
Wed.
Thur.
Fri.
Fri.
4 hrs.
4 hrs.
8 hrs.
8 hrs.
8 hrs.
8 hrs.
8 hrs.
8 hrs.
8 hrs.
8 hrs.
My records do not indicate that these absences were related to a FMLA-qualifying condition.
Please let me know if you have a serious health condition of which I should be aware. Absent
such a FMLA-qualifying condition, I must warn you in the future, should your attendance not
improve, you will be subject to further disciplinary action up to and including discharge.
You may appeal this action pursuant to the Collective Bargaining Agreement between the State
of Minnesota and AFSCME, Council No. 6.
Sincerely,
Glen Campbell
cc: Personnel File
Chief Steward, Local 007
tdrc/score98/mngleave/ml-ref
20
Managing Leaves: Sick Leave Reference Materials
Managing
Leaves:
Sick Leave
Reference Materials
Supervisory Development Core
Minnesota Management & Budget
Question 1: ___________________________________________________
________________________________________________________________
________________________________________________________________
Question 2: ___________________________________________________
________________________________________________________________
________________________________________________________________
Revised 12/03
Managing Sick Leave
Statewide Policy on Sick Leave.............................................................................................1
Language Regarding Sick Leave in the Agreement Between the State and AFSCME.........4
Monitor Employee Sick Leave Use .......................................................................................6
Attendance Logs ....................................................................................................................7
Example of Memo Documenting Counseling Session ..........................................................9
Example of Memo to Employee Regarding Excessive Use of Sick Leave
(Not Disciplinary Action) ......................................................................................................10
Example of a Request to an Employee to Produce a Statement From a
Medical Practitioner...............................................................................................................11
Example of Memo to Employee to Produce a Statement from a Medical Practitioner.........12
Example of a Standardized Form Requiring an Employee to Produce a Statement
From a Medical Practitioner ..................................................................................................13
Example of a Memo Informing Employee that Requirement to Produce Statements
From a Medical Practitioner is Removed ..............................................................................14
Example of a Memo Informing Employee That Sick Leave Will Not Be Granted
Until an Acceptable Statement From a Medical Practitioner is Produced ............................15
State Arbitration Awards Involving Abuse of Sick Leave and/or Excessive Use of
Sick Leave..............................................................................................................................16
The “Just Cause” Requirement ..............................................................................................18
Example of a Written Reprimand Abuse of Sick Leave........................................................19
Example of a Written Reprimand for Excessive Use of Sick Leave .....................................20
Statewide Policy
Statewide Policy on Sick Leave
Purpose
To provide guidelines to agencies on managing sick leave use by employees.
Objectives
1. To improve productivity through better attendance.
2. To minimize costs associated with employee absences due to sick leave.
3. To maintain overall agency morale by ensuring each employee meets his/her own work
requirements.
4. To ensure that sick leave use is consistent with the provisions of the collective bargaining
agreements or plans.
5. To standardize sick leave procedures.
6. To communicate to supervisors expectations regarding sick leave.
Supervisory Responsibilities
1. Analyze Attendance Records. Supervisors should regularly review employee attendance
records for evidence of abuse or excessive use.
2. Ensure Appropriate Use. Supervisors should ensure that the reason for the use of sick leave
is allowable under the terms of the collective bargaining agreement or plan.
3. Ensure Confidentiality. Supervisors should maintain the confidentiality of the reasons for
employees' use of sick leave.
4. Recognize Good Attendance. Supervisors should recognize good attendance through
appropriate methods.
5. Manage Sick Leave. Supervisors should regularly monitor and manage all of the sick leave
used by employees in accordance with the following guidelines.
Managing Leaves: Sick Leave Reference Materials
1
Statewide Policy
A. Use of Sick Leave Where no Abuse Has Occurred
1. Monitoring Use of Sick Leave
Supervisors should monitor the amount of sick leave used by employees and should
review sick leave usage for individual employees when use exceeds six (6) separate
instances in a fixed twelve (12) month period.
Instances shall include: All actual sick leave used as well as other types of leave
used in lieu of sick leave (e.g. same-day vacation leave requested in lieu of sick
leave, leave without pay taken for sick leave reasons).
Instances shall not include: Any FMLA qualifying time or time taken for
prescheduled doctor's appointments, bereavement leave, workers compensation, or
sick leave used in conjunction with the birth or adoption of a child or for the period
of time that a doctor certifies a female employee unable to work because of
pregnancy.
This standard does not define excessive use, but rather the point at which the
supervisor should begin to consider #2 below.
2. Recognizing Sick Leave Use Problems
If an employee meets the standard set out in #1 above, the supervisor needs to
consider the following factors to identify sick leave use problems:
a. The frequency of and the reasons for sick leave use. (Absences necessitated by
chronic long-term illnesses/disabilities may require different considerations than
casual, intermittent absences.)
b. The employee's unused sick leave balance.
c. The impact of the employee's absences on the workplace. (e.g., disruptions in
work schedules, overtime costs, incomplete projects).
3. Responding to Sick Leave Problems
If the supervisor determines a problem exists then the supervisor shall:
a. Counsel the employee on his/her use of sick leave.
b. Refer the employee to the Employee Assistance Program, if appropriate.
c. Check with the Personnel Office about possible alternative arrangements for the
employee (e.g., part-time work schedules, disability leaves of absence), if
appropriate.
2
Managing Leaves: Sick Leave Reference Materials
Statewide Policy
d. Document all of these actions.
If the above methods are unsuccessful, a supervisor should consider the effect that the
sick leave use has on the employee's performance and the operations of the employer.
Discipline may be taken on the basis of the absences affecting the employee's
performance, or the operations of the employer, and may be taken even when the
reasons for sick leave use have been legitimate.
If the employer is in the course of progressive discipline with an employee, the six
instance standard in a twelve month period is not renewed.
4. Performance Reviews
Supervisors should also reflect how the employee's attendance has affected his/her
ability to complete the tasks on the employee's performance review.
B. Sick Leave Abuse
Abuse of sick leave is defined as the use of sick leave for purposes other than those in the
collective bargaining agreements or plans.
1. Supervisors should periodically analyze attendance records for evidence of possible
abuse (e.g., patterns of absences on Fridays/Mondays, seasonal absences, absences
when a vacation request has been denied).
2. Sick leave should be denied when there is evidence or reason to believe abuse has
occurred until or unless the employee provides satisfactory evidence of legitimate use
of sick leave. Where a supervisor has reason to suspect that an employee is abusing
sick leave the supervisor may require the employee to provide doctor's statements for
a fixed duration to verify legitimate use of sick leave.
3. Discipline employees for the abuse of sick leave.
Employee Assistance Program
The State has in place a formal Employee Assistance Program to assist employees in addressing
problems which may affect an employee's performance, including absenteeism. Employees are
encouraged to seek assistance for these and other problems before they negatively impact
attendance and other aspects of job performance. Participation in this program is voluntary and
confidential.
Training
All supervisors are encouraged to attend the Managing Employee Sick Leave training course
presented by their Appointing Authority or the Department of Employee Relations as part of the
Supervisors CORE Training Program.
Managing Leaves: Sick Leave Reference Materials
3
AFSCME Language
Language Regarding Sick Leave in the 2003-2005 Agreement
Between the State and AFSCME Council No. 6
Article 9, Section 3
Sick Leave Use.
An employee shall be granted sick leave with pay to the extent of the employee’s accumulation
for absences necessitated by the following conditions:
A. Employee.
1. illness or disability, including the period of time that a doctor certifies a female
employee unable to work because of pregnancy.
2. medical, chiropractic, or dental care.
3. exposure to contagious disease which endangers the health of other employees,
clients, or the public.
B. Others. Sick leave granted under paragraphs 1 and 4 below shall be for such reasonable
periods as the employee’s attendance may be necessary. Leaves granted under 2 and 3
below shall be limited to not more than five (5) days to arrange for necessary nursing
care for members of the family or birth or adoption of a child.
1. illness of a spouse, dependent children/step-children/foster-children, (including
wards, and children for whom the employee is legal guardian), or parent/step-parent
who is living in the same household of the employee; illness of a minor child whether
or not the child lives in the same household of the employee.
2. birth or adoption of a child.
3. to arrange for necessary nursing care for members of the family, as specified in 3B1
above.
4. to accompany spouse, minor or dependent children/step-children/foster-children
(including wards or children for whom the employee is legal guardian) to dental or
medical appointments.
5. with fourteen (14) calendar days’ notice, to accompany parents to dental or medical
appointments not to exceed twenty-four (24) hours per calendar year.
4
Managing Leaves: Sick Leave Reference Materials
AFSCME Language
Article 10, Section 3
A. Bereavement Leave. The use of a reasonable period of sick leave shall be granted in
cases of death of the spouse, the domestic partner (same and opposite sex), or parents and
grandparents of the spouse, or the parents/step-parents, grandparents, guardian, children,
grandchildren, brothers, sisters, wards, or stepchildren of the employee. In addition,
bereavement leave limited to one (1) regularly scheduled shift shall be granted in the case
of the death of the parent of the employee’s minor child.
Time off to attend the funeral of individuals not listed above shall be charged against
vacation leave if the employee’s supervisor has approved the time off and such approval
shall not result in any additional costs.
The supervisor shall make a reasonable effort to adjust the hours of an employee in order
to permit his/her attendance at the funeral of a co-worker.
Managing Leaves: Sick Leave Reference Materials
5
Attendance Log
Monitor Employee Sick Leave Use
How to Use an Attendance Log
The basic procedure for maintaining the attendance log is very straightforward:
•
At the beginning of each month, bi-weekly, (or at the beginning of the year, if employees
under your supervision normally can be expected to work nothing but Monday through
Friday work weeks) or at such other time as may be appropriate for your scheduling need,
identify on the record for each employee the employee’s scheduled days off. This may be
done by drawing a diagonal through those days or highlighting them with a highlighting pen.
This step will help you spot any tendency for a subordinate to be absent on the day before or
after weekends, holidays or other scheduled days off.
•
As each instance of sick leave occurs, the supervisor should record on the face of the
attendance form the length of the use and the numerical code from the top of the form which
corresponds to the category of sick leave use.
In most cases, this will be the only entry that is required. This part of the task of maintaining
attendance records should be accomplished daily for each employee who was absent or late.
Many supervisors make this a regular part of each day’s routine: just before leaving, they
update attendance records.
•
For any absences warranting additional comments (which should include most casual uses of
sick leave) the supervisor should be certain that the reason given and any other brief
explanatory comments are recorded on the reverse of the form in the space provided. Thus,
if an employee’s spouse called at the beginning of the shift on January 19 and claimed that
the employee would be a couple of hours late due to an upset stomach, the entry on the front
of the form showing that the employee was absent for two hours should be supported by a
brief note on the back which might read, “1/19/86 J. Smith’s spouse called 8:18 a.m. to
report that Smith would be a couple of hours late; upset stomach. (Reported at 10:15 a.m.)”
6
Managing Leaves: Sick Leave Reference Materials
Attendance Log
Employee Last Name
First
Initial
V- Vacation
S - Illness
D - Family Death
J - Jury Duty
W/C - Work Comp
H - Holiday
SU - Suspension
U - Unexcused
ML - Military Leave
ME - Medical Leave
W/P - Leave w/o pay
__________________________________________
ATTENDANCE HISTORY:
S
1
8
15
22
29
M
2
9
16
23
30
S
M
5
12
19
26
6
13
20
27
T
3
10
17
24
31
January
W T
4
5
11 12
18 19
25 26
February
W T
1
2
7
8
9
14 15 16
21 22 23
28
T
F
6
13
20
27
S
7
14
21
28
F
3
10
17
24
S
4
11
18
25
7
14
21
28
March
W
1
8
15
22
29
T
2
9
16
23
30
F
3
10
17
24
31
S
4
11
18
25
M
T
April
W T
F
3
10
17
24
4
11
18
25
S
1
8
15
22
29
S
M
T
5
12
19
26
6
13
20
27
S
2
9
16
23
30
5
12
19
26
6
13
20
27
7
14
21
28
S
T
2
9
16
23
30
May
W
3
10
17
24
31
7
14
21
28
M
1
8
15
22
29
T
4
11
18
25
F
5
12
19
26
S
6
13
20
27
S
M
4
11
18
25
5
12
19
26
June
W T
1
6
7
8
13 14 15
20 21 22
27 28 29
F
2
9
16
23
30
S
3
10
17
24
S
M
T
July
W
T
F
2
9
16
23
30
3
10
17
24
31
4
11
18
25
5
12
19
26
6
13
20
27
7
14
21
28
S
1
8
15
22
29
S
M
6
13
20
27
7
14
21
28
T
1
8
15
22
29
August
W T
2
3
9 10
16 17
23 24
30 31
F
4
11
18
25
S
5
12
19
26
T
Managing Leaves: Sick Leave Reference Materials
S
M
September
T W T
3
10
17
24
4
11
18
25
5
12
19
26
S
1
8
15
22
29
M
2
9
16
23
30
T
3
10
17
24
31
7
14
21
28
F
1
8
15
22
29
S
2
9
16
23
30
October
W T
4
5
11 12
18 19
25 26
F
6
13
20
27
S
7
14
21
28
F
4
11
18
25
S
5
12
19
26
F
1
8
15
22
29
S
2
9
16
23
30
6
13
20
27
S
M
6
13
20
27
7
14
21
28
November
T W T
1
2
3
8
9 10
15 16 17
22 23 24
29 30
S
M
December
T W T
3
10
17
24
31
4
11
18
25
5
12
19
26
6
13
20
27
7
14
21
28
7
Attendance Log
Name: ________________________________________ Title: _________________________
Address: _____________________________________________________________________
Phone: ____________________________________ Employment Date: __________________
Floating Holiday Taken: ________________________ Evaluation Done: _________________
Date
8
Time Used
Reason
Action Taken
Managing Leaves: Sick Leave Reference Materials
Respond to Excessive Use - Counseling
Example of Memo Documenting Counseling Session
DATE:
January, 2000
TO:
Linda Evan's Supervisory File
FROM:
Sally Field, Supervisor
At 11:00 yesterday I had a meeting with Linda Evans to discuss her poor attendance. A copy of
her current leave record is attached.
At this meeting I pointed out that 9 uses of sick leave in the last 3 months is unacceptable. I
discussed the impact this was having on her job performance and stated that disciplinary action
could result if her attendance did not improve. I suggested if she had personal problems or was
unhappy with her job that she contact the personnel office or employee assistance.
I also asked her to let me know if she thought she might have a FMLA-qualifying condition.
We agreed we would meet again on May 13 to review her attendance and job performance.
Managing Leaves: Sick Leave Reference Materials
9
Respond to Excessive Use - Counseling
Example of Memo to Employee Regarding
Excessive Use of Sick Leave (Not Disciplinary Action)
DATE:
January, 2000
TO:
Brad Smith
FROM:
Tom Little, Supervisor
RE:
Attendance
This memo is to advise you of my concern over the rate at which you are utilizing sick leave. In
the last 3 months you have utilized a total of 76 hours of leave on the following dates:
July 5 - 8 hours
July 19 - 6 hours
July 22 - 8 hours
August 8 - 2 hours
August 9 - 8 hours
August 21 - 8 hours
August 27 - 2 hours
August 30 - 7 hours
September 9 - 8 hours
September 18 - 3 hours
September 20 - 8 hours
September 26 - 8 hours
Your absenteeism is causing staffing problems within our unit, and is the basis for some growing
and justifiable resentment on the part of your co-workers. I, therefore, encourage you to
examine your leave usage.
My records do not indicate that any of these absences were FMLA-qualifying. If you do have a
serious health condition of which I should be aware, please let me know.
I will be monitoring your attendance closely for the next month, and will schedule a meeting at
that time to review your attendance and determine whether further action will be necessary.
10
Managing Leaves: Sick Leave Reference Materials
Respond to Abuse: Medical Statements
Example of a Request to an Employee
to Produce a Statement From a Medical Practitioner
DATE:
December 22, 1999
TO:
Janet Jones
FROM:
Karen White, Supervisor
PHONE: 123-5467
RE:
Statement From a Medical Practitioner
This memo is to advise that effective December 23, 1999, you will be required to furnish to me a
statement from a medical practitioner each time you call in sick. This action is being taken
because there is reason to suspect abuse of sick leave.
The statement must indicate that you were unable to be present at work that day and information
as to the general nature of the illness. For absences because of a doctor's appointment, the
statement must indicate the time of the appointment and the time the visit was completed. A
statement that does not contain this information will not be accepted and any request for sick
leave will not be granted.
This requirement will continue in effect until February 21, 2000.
Managing Leaves: Sick Leave Reference Materials
11
Respond to Abuse: Medical Statements
Example of Memo to Employee to Produce a
Statement From a Medical Practitioner
April 1, 2000
Patty Patterson
ABC Regional Treatment Center
Dear Ms. Patterson:
On reviewing your sick leave usage since your employment at ABC Regional Treatment Center,
I have reason to suspect sick leave abuse. In particular, over the past four months, you have
been absent six times either before or after a regularly scheduled day off and you have been
absent the day after a scheduled holiday.
Any further use of sick leave will require a physician's statement stating the nature of the illness
and a clearance to return to work.
I will review this in 3 months and will re-evaluate the situation at that time.
Sincerely,
Randy Wright
Supervisor
cc: Personnel File
12
Managing Leaves: Sick Leave Reference Materials
Respond to Abuse: Medical Statements
Example of a Standardized Form Requiring an Employee
to Produce a Statement From a Medical Practitioner
TO:
FROM:
RE:
Sick Leave Verification
In reference to your request for sick leave, I am requiring medical verification as follows:
1. I am requesting from you a medical slip for reasons listed below:
2. This slip will be required from __________ to __________. Afterwards I will review your
sick leave usage to determine if the medical verification should continue.
3. This slip must be signed by a medical practitioner only.
4. The slip must state that you were seen by a medical practitioner and the date and time this
occurred.
5. The slip must state the nature of the illness.
6. The slip must indicate the date you are able to return to work and assume your regular duties.
Supervisor's Signature
Managing Leaves: Sick Leave Reference Materials
Date
13
Respond to Abuse: Medical Statements
Example of Memo Informing Employee That
Requirement to Produce Statements From a
Medical Practitioner is Removed
DATE:
March 31, 2000
TO:
Bill Wilson
FROM:
Ed Star
Supervisor
RE:
Attendance Record
On January 31, 2000, I sent you a memo stating that your attendance record would be reviewed
in 60 days, and if your pattern of sick leave use improved, you would no longer be required to
submit a doctor's statement covering your period of absence when calling in sick. Since that
time you have demonstrated improvement in your pattern of attendance. Therefore, I will be
dropping the stipulation of providing a doctor's statement for use of sick leave. This action will
take effect as of April 1, 2000.
I will continue to monitor your pattern of sick leave use and expect that you will continue to
cooperate in this area.
ES/cn
cc: Personnel File
14
Managing Leaves: Sick Leave Reference Materials
Respond to Abuse: Medical Statements
Example of a Memo Informing Employee That Sick Leave
Will Not be Granted Until an Acceptable Statement
From a Medical Practitioner is Produced
DATE:
April 1, 2000
TO:
Susie Hall
FROM:
Ellen Green, Supervisor
RE:
Sick Leave Request
This memo is to advise you that I will not approve your sick leave request for your absence on
March 31, 2000, without submission of an acceptable statement from a medical practitioner.
When you called in sick on March 21, 2000, you were informed that you would be required to
bring in an acceptable statement from a medical practitioner the next time you requested sick
leave. In addition, you received written notification of this requirement on March 22, 2000.
Therefore, until an acceptable statement is submitted, your sick leave will not be granted and
your absence will be without pay.
Managing Leaves: Sick Leave Reference Materials
15
Response for Both Excessive Use or Abuse: Discipline
State Arbitration Awards Involving
Abuse of Sick Leave and/or
Excessive Use of Sick Leave
* Note: These awards were issued prior to the enactment of the FMLA.
MMA and Department of Human Rights (June 1988)
The employee was discharged for his poor attendance record and work performance. The
Arbitrator agreed with the State that the employee had a long history of problems concerning
repeated absenteeism and poor performance. The Arbitrator also agreed that the employee was
repeatedly counseled, warned, and disciplined in an effort to correct these recurring problems.
Finally, the Arbitrator pointed out that the employee was given “one last chance,” but failed to
take advantage of it and thus the discharge was appropriate.
MAPE and Jobs and Training (April 1988)
An employee received a five day suspension for failure to report to work as scheduled. The
Arbitrator said the following:
1. it is reasonable to discipline an employee for reasons that stem from a serious illness,
2. there can come a time when legitimate illnesses become so excessive that they provide
just cause even to discharge,
3. the right to terminate employees for excessive absences, even where they are due to
illness, is generally recognized by Arbitrators.
In this particular case, the Arbitrator said that “even though the genuineness of [the employee's]
illness is unquestioned, the impact of his absences on his job performance remains a proper
subject of concern and inquiry.”
MAPE and Department of Revenue (April 1986)
The employee was discharged for tardiness and excessive absenteeism. The Arbitrator said the
grievant was aware for five years that he had a problem with his attendance and on at least ten
occasions during this time, he was formally reprimanded or suspended or otherwise warned that
he had a problem and needed to improve his attendance record. There was also a history of
counseling, informal warnings and referrals to the Employee Assistance Program. Moreover, the
employee signed two documents in which he acknowledged the seriousness of his problem and
that further violations relating to his attendance requirements would result in disciplinary actions
including discharge. The Arbitrator also pointed out that no other employee in the office had
problems with his/her attendance to the extent this employee did. “The [employee] stands in a
class by himself. His abysmal attendance record does not compare with that of anyone else in
the office.”
16
Managing Leaves: Sick Leave Reference Materials
Managing
Leaves:
Sick Leave Exercises
Supervisory Development Core
Minnesota Management & Budget
Question 1: ___________________________________________________
________________________________________________________________
________________________________________________________________
_____________________________________________________________
_____________________________________________________________
Question 2: ___________________________________________________
________________________________________________________________
________________________________________________________________
_____________________________________________________________
Revised 12/04
Managing Leaves: Sick Leave Exercises
1
Exercise 1
Is the Sick Leave Appropriate?
As a supervisor, how would you respond to these sick leave requests?
Approve
Partial
Approve
Withhold
Approval/
More Info
Deny
1. 8 hour - Funeral of uncle
2. 16 hours - Arrange for mother-inlaw to be placed in a nursing home
3. 4 hours - Funeral of spouse of coworker
4. 2 hours - Child to doctor for annual
exam
5. 80 hours - Stress
6. 2 hours - Appointment with mental
health care professional
recommended by EAP
7. 3 hours - Child to dentist for 3
fillings
2
Managing Leaves: Sick Leave Exercises
Explanation to Answers of Exercise 1
1. 8 Hours - Funeral of Uncle - DENY
The contracts state that an employee may use a “reasonable period of sick leave” in cases of
death for:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
Spouse;
Parent of spouse;
Grandparents of spouse;
Employee’s parent/step-parent;
Employee’s grandparents;
Employee’s guardian;
Employee’s children;
Employee’s grandchildren;
Employee’s brothers or sisters;
Employee’s wards;
Employee’s stepchildren.
This would be denied. An employee’s uncle is not an individual for whom sick leave can be
used.
Some of the Agreements do contain language regarding an employee’s use of vacation in this
situation. For example, in the Agreement between the State and AFSCME, the language
states that employees should be allowed to use vacation for other individuals, for example an
uncle, if:
1. The supervisor has approved the time off; and
2. The approval will not result in any additional costs.
There is also specific language regarding attending the funeral of a co-worker. In this
situation, a reasonable effort must be made to adjust the employee’s hours so he/she can
attend the funeral.
2. 16 hours - Arrange for mother-in-law to be placed in a nursing home - DENY
This would be denied. The specification of family members in the contracts is limited to
spouse, minor or dependent child/stepchild and parent/step living in the employee’s
household. A spouse’s mother is not included in this listing of individuals.
Managing Leaves: Sick Leave Exercises
3
3. 4 hours - Funeral of spouse of co-worker - DENY
The contract specifies for whom sick leave may be used to attend a funeral. The spouse of a
co-worker is not listed.
This would be denied. Employees may choose to request vacation leave in this situation.
4. 2 hours - Child to doctor for annual exam - Approve
The contracts state that an employee may use sick leave for illness of a minor or dependent
child living in the employee’s household if the employee’s attendance is necessary.
This would be approved. (Presumably, the child is a dependent of the employee and is living
with the employee.) Although an annual exam may not technically be considered an
“illness,” the time taken (2 hours) is not unreasonable and it is probably important that the
employee be at the doctor’s office during the examination.
The State’s “past practice” is that this type of sick leave is being granted to employees.
5. 80 hours - Stress - DENY - Insufficient Information
The contracts state that an employee may use sick leave for illness or disability of him/
herself.
Stress may be a legitimate use of sick leave and should be treated as would a physical illness
or disability. Appropriate medical statements can be required for a stress-related condition.
However, the contracts do not allow for “mental health” days.
In this particular situation, there is not enough information upon which to determine whether
the stress constitutes an illness or disability.
6. 2 hours - Appointment with mental health care professional recommended by EAP Approve
The contracts state that an employee may use sick leave for medical, chiropractic or dental
care.
In general, it has been the practice of the state to allow employees to use sick leave if they
are following a plan approved by EAP.
4
Managing Leaves: Sick Leave Exercises
7. 3 hours - Child to dentist for 3 fillings - Approve
The contracts state an employee may use sick leave for illness of a minor or dependent child
living in the employee’s household if the employee’s attendance is necessary.
This would be approved. The State’s “past practice” is that this type of sick leave is being
granted to employees.
However, there is no information about the age of the son. If the son is older, the approval
may be questionable because:
1. He may not fit the contractual definition of “minor or dependent child;”
2. There may be no reason why it would be necessary for the employee to be present with
the son during the procedure.
Managing Leaves: Sick Leave Exercises
5
Exercise 2
Is the Sick Leave Appropriate?
As a supervisor, how would you respond to these sick leave requests?
Approve
Partial
Approve
Withhold
Approval/
More Info
Deny
1. 3 hours - Spouse to dentist
2. 40 hours - Spouse hospitalized/
employee needs to stay home to
care for young children
3. 8 hours - Dentist appointment out
of town
4. 40 hours - Stay home/spouse had
serious complications with giving
birth
5. 8 hours - Spouse ill
6. 25 hours - Spouse had surgery
7. 52 hours - Funeral of mother
6
Managing Leaves: Sick Leave Exercises
Explanation to Answers of Exercise 2
1. 3 hours - Spouse to dentist - DENY - Insufficient Information
The contracts state that an employee may use sick leave for illness of a spouse if the
employee’s attendance is necessary.
This would be denied until more information is obtained. Although the time limit may be
reasonable, there is no reason without further information to believe that the employee needs
to be present with a spouse while at the dentist.
2. 40 hours - Spouse hospitalized/employee needs to stay home to care for young children DENY
The contracts state that an employee may use sick leave for the illness of a spouse if the
employee’s attendance is necessary.
This would be denied. It is not necessary for the employee to be with a spouse while s/he is
in the hospital. The employee is only serving a baby-sitting function; s/he is not caring for
the spouse (the hospital is).
3. 8 hours - Dentist appointment out of town - DENY - Insufficient Information
The contracts state that an employee may use sick leave for “dental care.”
This would be denied until further information was provided as to:
1. Why an out of town dentist was used.
2. Why the appointment - even including travel time - took 8 hours.
4. 40 hours - Stay home/spouse had serious complications giving birth - Approve
The contracts state an employee may use sick leave for the illness of a spouse if the
employee’s attendance is necessary.
It is reasonable to assume that the employee’s attendance is necessary for serious
complications.
However, an argument could also be made that additional information is needed regarding
the seriousness of the complications.
Managing Leaves: Sick Leave Exercises
7
5. 8 hours - Spouse ill - Deny - Insufficient Information
The contracts state that an employee may use sick leave for the illness of a spouse if the
employee’s attendance is necessary.
This would be denied until information was provided as to why the employee’s attendance
was necessary. Unlike a child, there is less of a presumption that an adult is unable to care
for him/herself even though he/she might be ill. There is no evidence that it was necessary
for the employee to be present for the care of the spouse.
6. 25 hours - Spouse had surgery- DENY - Insufficient Information
The contracts state that an employee may use sick leave for the illness of a spouse if the
employee’s attendance is necessary.
This would be denied until information was provided as to what kind of surgery the spouse
had and why the employee’s attendance was necessary.
7. 52 hours - Funeral of mother - Partial Approval
The contracts state that an employee may use a “reasonable period of sick leave” in cases of
death of a parent.
The time taken - 52 hours - 6 ½ days - appears unusually high. Therefore, part of the time
would be approved, depending on the specific circumstances of the situation. The remaining
28 hours might be denied pending more information.
However, it is appropriate to use bereavement leave for more than just the attendance of an
hour or so at the funeral itself. For example, some appropriate time could include grieving,
travel time, making appointments.
8
Managing Leaves: Sick Leave Exercises
Exercise 3
Is the Sick Leave Appropriate?
As a supervisor, how would you respond to these sick leave requests?
Approve
Partial
Approve
Withhold
Approval/
More Info
Deny
1. 48 hours - Receive child from
adoption agency
2. 2 hours - Appointment with
chiropractor to stop smoking
3. 56 hours - Stay home with child
who has chicken pox and cannot
attend day care
4. 2 hours - Pick up a prescription
5. 24 hours - Stay home due to stress/
8 year old daughter missing/found
2nd day/returned 3rd
6. 120 hours - Spouse had surgery for
gallbladder/employee needs to stay
home with spouse to change
bandages.
Managing Leaves: Sick Leave Exercises
9
Explanation to Answers of Exercise 3
1. 48 hours - Receive child from adoption agency -Partial Approval
The AFSCME contract states that an employee may use sick leave for the adoption of a
child, but is limited to no more than five days.
Part of the sick leave would be approved and part of the sick leave would be denied.
Five days - 40 hours would be approved in accord with the time limitation in the contract.
The rest of the time - 8 hours would be denied because it is beyond the contractual limit.
2. 2 hours - Appointment with chiropractor to stop smoking - Approve
The contracts state than an employee may use sick leave for chiropractic care.
This would be approved:
•
•
The amount of time is not unreasonable
This is an acceptable procedure
3. 56 hours - Stay home with child who has chicken pox and cannot attend day care Approve
The contracts state that an employee may use sick leave for the illness of a minor or
dependent child who is living in the same household of the employee if the employee’s
attendance is reasonably necessary.
This would be approved. Assuming all requirements are met (minor child living in
household), it is reasonable to assume that the employee’s attendance is necessary.
4. 2 hours - Pick up a prescription - DENY
This does not fit any of listed reasons in the contracts.
This would be denied.
10
Managing Leaves: Sick Leave Exercises
5. 24 hours - Stay home due to stress/8 year old daughter missing/found 2nd day/returned
3rd - Approve
The contracts state that an employee may use sick leave for illness or disability of him/
herself.
Stress may be a legitimate use of sick leave and should be treated as would a physical illness
or disability.
In this particular situation, the employee was probably under a sufficient amount of stress for
the three days to justify her inability to be able to come into work.
6. 120 hours - Spouse had surgery for gallbladder/employee needs to stay home with
spouse to change bandages - Partial Approval
The contracts state that an employee may use sick leave for the illness of a spouse if the
employee’s attendance is necessary.
Part of the sick leave would be approved. Although the employee’s attendance may be
necessary at times to care for spouse, three weeks is excessive. A possible way to deal with
it might be to allow the employee some time off each day to take care of the spouse.
tdrc/score03/mngleave/ml-exerc
Managing Leaves: Sick Leave Exercises
11
Managing
Leaves
Family and Medical
Leave Act Reference
Materials
Supervisory Development Core
Minnesota Management & Budget
Question 1: ___________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
Question 2: ___________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
DATE:
January 13, 2009
PERSL #1409
TO:
Human Resource Directors/Designees
Labor Relations Directors/Designees
FROM:
Carolyn Trevis, Assistant State Negotiator
Labor Relations Division
PHONE:
(651) 259-3758
RE:
Revised Statewide Policy on FMLA – REPLACES policy distributed on 5/06, and
all amendments thereto
Enclosed is a revised Statewide Policy on FMLA and the Frequently Asked Questions. This
revision replaces the policy/questions distributed in May, 2006 and the amendment to the policy
issued in March, 2008. Please distribute this revision to your staff and to all of your employees
in your agency. Effective January 16, please also refer to the MMB web page for a copy of this
Policy and the Frequently Asked Questions at www.mmb.state.mn.us/ag-serv/hr. This policy
applies to all state employees, regardless of collective bargaining agreement or pay plan. Please
also provide a copy of this policy to all new hires, and maintain a record that each new hire has
received a copy.
The U.S. Department of Labor, after notice and comment, made some significant changes to the
FMLA regulations, necessitating some major changes to the Statewide Policy. These changes
will be effective on January 16, 2009.
I have highlighted and summarized the most significant changes below:
∙
∙
∙
.
Adds two additional qualifying reasons for eligible employees to take FMLA leave: 1)
because of a qualifying exigency arising from the fact that a qualifying family member is a
military member on active duty or notified of a call to active duty; 2) to care for a covered
servicemember with a serious illness or injury.
Adds to the policy definitions of “qualifying exigency,” “covered servicemember,” “active
duty,” “next of kin,” and “serious injury or illness of a covered servicemember.”
Clarifies that the 12 months’ of required service with the State of Minnesota for eligibility
purposes need not be consecutive and includes service with the State within the prior seven
(7) years and also military service.
400 Centennial Building ● 658 Cedar Street ● St. Paul, Minnesota 55155
Voice: (651) 201-8000 ● Fax: (651) 296-8685 ● TTY: 1-800-627-3529
An Equal Opportunity Employer
January 13, 2009
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Modifies the notice requirements and notice forms for employers, when the employer is
notified of a request for FMLA leave. In most cases, the employer will have five (5)
business days to notify the employee of its determination, once it has sufficient information
to decide whether the leave is/is not FMLA-qualifying.
Provides for retroactive designation of leave in certain situations.
Clarifies that Appointing Authorities may require employees to comply with normal call in
procedures/requirements when requesting leave.
Modifies the policy regarding use of compensatory time during an FMLA leave. The
regulations now provide that compensatory time used by public employees is counted toward
the employees’ FMLA leave.
Allows for electronic posting of the general FMLA Notice.
Specifies that eligible employees may take up to 26 weeks within a single 12-month period to
care for a covered servicemember who became ill or was injured as a result of active duty or
a call to active duty.
Adds some clarification to the definition of “serious health condition” including:
 Requiring that if an employee is absent for 3+ days and incapacitated, that employee
must visit a health care provider within seven (7) days of the first day of incapacity
 Requiring that employees/family members with chronic health conditions visit a health
care provider at least two (2) times per year, to meet the definition
cc: MMB Labor Relations Staff
MMB Employee Insurance Division Staff
MnSCU Labor Relations
Cindy Storelee, Workers’ Compensation Division
Chad Thuet, Assistant State Negotiator
SEMA4
Kristyn Anderson, Attorney General’s Office
Gary Cunningham, Attorney General’s Office
Laurie Hansen, MMB
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1/09
STATEWIDE POLICY ON FMLA
Purpose
To provide guidelines to agencies on implementation of the Federal Family Medical Leave Act of
1993 (FMLA) and the regulations thereunder.
Policy
Every fiscal year, the State of Minnesota will provide up to 12 weeks of job-protected leave to
"eligible" employees for certain family and medical reasons consistent with the FMLA, relevant
State law, and collective bargaining agreements and plans.
In addition, an eligible employee is entitled to 26 workweeks of leave to care for a covered
servicemember with a serious injury or illness during a “single 12-month period.”
Definitions
Listed below are the definitions of specific words and phrases as used in the Family Medical Leave
Act. These definitions are intended to be used solely in relation to the provisions of the Family
Medical Leave Act, and should not be expanded to any other situation. Following each heading is
a citation number from the regulations published in 2009.
“ACTIVE DUTY” 825.126
“Active duty” is defined as duty under a call or order to active duty (or notification of an
impending call or order) in support of a contingency operation and includes,
1) Retired members of the Regular Armed Forces and members of retired Reserve who
retired after completing 20 years of active service;
2) All reserve unit component members in case of war or national emergency;
3) Unassigned members of the Ready Reserve; and
4) The National Guard and state military during war or cases of national emergency as
declared by the President or Congress.
“COVERED SERVICEMEMBER” 825.126
This includes the employee’s spouse, son, daughter (including employee’s biological, adopted,
or foster child, step child, legal ward or a child for whom the employee stood in loco parentis),
or parent (including employee’s biological adoptive, step or foster father or mother or any other
individual who stood in loco parentis) on active duty or called to active duty service.
"EMPLOYEE IS NEEDED TO CARE FOR A FAMILY MEMBER OR A COVERED
SERVICEMEMBER" 825.124 and 825.127
This encompasses both physical and psychological care which include situations where:
1) Because of a serious health condition, the family member or covered servicemember is
unable to care for his or her own basic medical, hygienic, nutritional needs or safety; or
is unable to transport himself or herself to the doctor.
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2) The employee is needed to provide psychological comfort and reassurance which
would be beneficial to a child, spouse or parent with a serious health condition who is
receiving inpatient or home care.
3) The employee may be needed to fill in for others who are caring for the family
members or covered servicemembers, or to make arrangements for changes in care,
such as transfer to a nursing home.
4) The employee may be needed to care for a covered servicemember with a serious
injury or illness incurred in the line of duty on active duty for which he or she is
undergoing medical treatment, recuperation, or therapy or in outpatient status, or
otherwise on the temporary disability retirement list.
"HEALTH CARE PROVIDER" 825.125
a) A doctor of medicine or osteopathy who is authorized to practice medicine or surgery by
the State in which the doctor practices.
b) Others capable of providing health care services including only:
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Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to
treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist) authorized to practice in the State.
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Nurse practitioners, nurse-midwives, clinical social workers and physician assistants
who are authorized to practice under State law.
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Christian Science practitioners listed with the First Church of Christ, Scientist in Boston,
Massachusetts.
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Any health care provider from whom an employer or the employer’s group health plan’s
benefits manager will accept certification of the existence of a serious health condition
to substantiate a claim for benefits, including a foreign physician.
"INCAPABLE OF SELF-CARE" 825.122
Incapable of self-care means that the individual requires active assistance or supervision to
provide daily self-care in three or more of the “activities of daily living” (ADLs) or “instrumental
activities of daily living” (IADLs).
"IN LOCO PARENTIS" 825.122
Persons who are “in loco parentis” include those with day-to-day responsibilities to care for and
financially support a child or, in the case of an employee, who had such responsibility for the
employee when the employee was a child. A biological or legal relationship is not necessary.
“NEXT OF KIN” 825.127
The next of kin of a covered service member is the nearest blood relative, other than the
covered servicemember’s spouse, parent, son or daughter, in the following order of priority:
1) Blood relatives who have been granted legal custody of the servicemember by court
decree or statutory provisions;
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2) Brothers and sisters;
3) Grandparents;
4) Aunts and uncles;
5) First cousins;
unless the covered servicemember has specifically designated in writing another blood relative
for the purposes of military caregiver leave under the FMLA.
"PARENT" 825.122
A biological, adoptive, step or foster parent or an individual who stands or stood in loco
parentis to an employee when the employee was a child. This term does not include parents
"in law".
"PHYSICAL OR MENTAL DISABILITY" 825.122
A physical or mental impairment that substantially limits one or more of the major life activities
of an individual.
“QUALIFYING EXIGENCY” 825.126
Eligible employees may take FMLA leave while the employee’s spouse, son, daughter or
parent (the “covered military member”) is on active duty or called to active duty for one or more
of the following qualifying exigencies:
1) Short notice deployment – leave to address issues that arise from the fact that a
covered servicememember is notified of an impending call or order to active duty seven
days or less prior to the date of deployment. Leave under this event can be used for a
period of seven calendar days beginning on the date the covered military member is
notified of the impending call or order to active duty.
2) Military events and related activities – leave to attend any official ceremony, program
or event sponsored by the military that is related to the active duty or call to active duty
status of the covered military member or to attend family support or assistance
programs and information briefings sponsored or promoted by the military, military
service organizations or the American Red Cross that relate to the active duty or call to
active duty.
3) Children and school activities – events include:
(a) Leave to arrange for alternative childcare if the call to duty necessitates a change in
existing childcare arrangements.
(b) Leave to provide childcare on an urgent immediate basis provided such care arises
from the call to active duty.
(c) Leave to enroll in or transfer to a new school or day care facility when necessitated
by the active duty status.
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(d) Leave to attend meetings with staff at a school or daycare facility, such as meeting
with school officials regarding disciplinary measures, parent-teacher conferences,
or meeting with school counselors when such meetings are necessary due to
circumstances arising from the call to active duty.
4) Financial and legal arrangements – events include:
(a) Leave to make or update financial or legal arrangements to address the covered
military member’s absence while on active duty or call to active duty such as
preparing and executing financial and healthcare powers of attorney, transferring
bank account signature authority, obtaining military identification cards or updating
a will or living trust.
(b) Leave to act as covered military member’s representative before a federal, state or
local agency for purposes of obtaining, arranging or appealing military services
benefits while the covered servicemember is on active duty and for a period of 90
days following the termination of the covered servicemember’s active status.
5) Counseling – leave to attend counseling provided by someone other than a health
care provider for oneself, for the covered military member or for a child, provided that
the need for counseling arises out of the active duty or call for active duty.
6) Rest and recuperation – leave to spend time with a covered military member who is
on short-term, temporary, rest and recuperation leave during a period of deployment.
Employees may take up to five days for each instance of rest and recuperation.
7) Post deployment activities – events include:
(a) Leave to attend ceremonies, reintegration briefing and events or any other official
programming or ceremony sponsored by the military for a period of 90 days
following the termination of the covered military member’s active duty status.
(b) Leave to address issues that arise from the death of a covered military member
while on active duty status such as meeting and recovering of the body and making
funeral arrangements.
8) Additional activities – Leave to address other events that arise out of the covered
military member’s active duty or call to active duty status provided that the employer
and employee agree that such leave qualifies as an exigency and both agree to the
timing and extent of the leave.
"SERIOUS HEALTH CONDITION" 825.114 and 825.115
For purposes of the FMLA, serious health condition means an illness, injury, impairment, or
physical or mental condition that involves:
A. Inpatient care, i.e., an overnight stay, in a hospital, hospice, or residential care facility,
including any period of incapacity or any subsequent treatment in connection with such
inpatient care; or
B. Continuing treatment by a health care provider that involves:
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1. A period of incapacity (i.e., inability to work, attend school or perform other regular
daily activities due to the serious health condition, treatment therefor, or recovery
therefrom) of more than three consecutive calendar days; and
2. Any subsequent treatment or period of incapacity relating to the same condition, that
also involves:
(a) Treatment two or more times within 30 days of the first day of incapacity, unless
extenuating circumstances, by a health care provider, by a nurse under direct
supervision of a health care provider, or by a provider of health care services (e.g.,
physical therapist) under order of, or on referral by, a health care provider; or
(b) Treatment 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.
The first (or only) treatment visit to a health care provider must be within seven (7) days
of the first day of incapacity.
C. Pregnancy. Any period of incapacity due to pregnancy, or for prenatal care. This
absence qualifies for FMLA leave even though the employee does not receive treatment
from a health care provider during the absence, and even if the absence does not last
more than three days; or
D. Chronic serious health condition. Any period of incapacity or treatment for such
incapacity due to a chronic serious health care condition.
Chronic serious health condition is defined as one which:
(a) Requires periodic visits (defined as at least twice per year) for treatment by a health
care provider, or by a nurse or physician’s assistant under direct supervision of a
health care provider; and
(b) Continues over an extended period of time; and
(c) May cause episodic rather than a continuing period of incapacity (e.g., asthma,
diabetes, epilepsy, etc.); or
E. Permanent or long term condition. A period of incapacity which is permanent or longterm due to a condition for which treatment may not be effective. The employee or family
member must be under the continuing supervision of, but need not be receiving active
treatment by, a health care provider, (e.g., Alzheimer’s, a severe stroke, or the terminal
stages of a disease); or
F. Multiple treatments. Any period of absence to receive multiple treatments (including any
period of recovery therefrom) by a health care provider or 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 such as cancer (radiation, chemotherapy, etc.), severe arthritis
(physical therapy), or kidney disease (dialysis).
Specific Exclusions. Routine physical, eye, or dental examinations, and cosmetic
treatments, cold, flu, and earaches without complications are ordinarily excluded.
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Specific Inclusions. The following conditions are included in the definition of serious health
condition if all the conditions of the FMLA are met:
A. Mental illness
B. Allergies; and
C. Substance abuse. Leave may only be taken for treatment of substance abuse by a health
care provider or by a provider of health care services on referral by a health care provider.
Absence due to an employee’s use of the substance does not qualify for FMLA leave.
825.119
“SERIOUS INJURY OR ILLNESS OF A COVERED SERVICE MEMBER” 825.127
An injury or illness incurred by a covered service member in the line of duty on active duty that
may render the servicemember medically unfit to perform the duties of his or her office, grade,
rank or rating.
"SON" OR "DAUGHTER" 825.122
A biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing
in loco parentis, who is either under age 18, or age 18 or older and "incapable of self-care"
because of a mental or physical disability at the time that FMLA leave is to commence.
"SPOUSE" 825.122
A spouse means a husband or wife as defined or recognized under state law for purposes of
marriage in the state where the employee resides, including common law marriage in states
where it is recognized.
"UNABLE TO PERFORM THE FUNCTIONS OF THE POSITION OF THE EMPLOYEE" 825.123
Where the health care provider finds that the employee is unable to work at all or is unable to
perform any one of the essential functions of the employee's position within the meaning of the
Americans with Disabilities Act. A person who must be absent to receive medical treatment for
a serious health condition is considered to be unable to perform the essential functions during
the absence for the treatment.
Procedures and Responsibilities
I. Eligibility
A. Employee Eligibility
1. The employee must have worked for the State of Minnesota for at least 12 months.
The 12 months need not be consecutive, provided the employee’s prior service
occurred within the last seven years or, if the break in service was longer than seven
years, was due to the employee’s duty to fulfill his or her National Guard or Reserve
military service obligation.
2. In addition, the employee must have worked at least 1,250 hours during the 12 months
immediately preceding the request. The Fair Labor Standards Act requires employers
to count hours of work only, not paid hours such as vacation, holidays, sick pay, unpaid
leave of any kind, or periods of layoff. An employee returning from fulfilling his or her
National Guard or Military obligation shall be credited with the hours of service that
would have been performed but for the period of military service.
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B. Reasons For Taking a Qualifying Leave
1. For the birth of the employee’s child, and to care for such child.
2. For the placement with an employee of a child for adoption or foster care.
3. To care for the employee's spouse, son or daughter, or parent with a serious health
condition.
4. Because of a serious health condition that makes the employee unable to perform one
or more of the essential functions of an employee’s job.
5. Because of any qualifying exigency arising out of the fact that the employee’s spouse,
son, daughter, or parent is a covered military member on active duty (or has been
notified of an impending call or order to active duty) in support of a contingency
operation.
6. To care for a covered servicemember with a serious injury or illness if the employee is
the spouse, son, daughter, parent or next of kin of the service member.
a) In order to care for a covered service member, the eligible employee must be the
spouse, son, daughter, parent, or next of kin of the covered service member.
b) Under this provision, employees are entitled to 26 weeks of leave during a single
12-month period.
c) The single 12-month period begins on the first day the eligible employee takes
FMLA to care for the covered servicemember and ends 12 months after that date.
d) If the member does not take the full 26 weeks during the single 12-month period,
any remaining part of the 26 weeks is forfeited.
e) Leave entitlement is to be applied on a per covered servicememember, per injury
basis, thus entitling an employee to more than one period of 26 weeks of leave if
the leave is to care for same service member with a subsequent injury or illness or
if it is to care for a different covered service member, except that no more than 26
workweeks of leave may be taken in a single 12-month period.
f)
An eligible employee is entitled to combine a total to 26 weeks of leave for any
FMLA qualifying reason during the single 12-month period provided that the
employee is entitled to no more than 12 weeks of leave for one or more of the
following:
i. Birth of son or daughter
ii. Placement of son or daughter with the employee for adoption or foster care
iii. To care for a spouse, son, daughter or parent who has a serious health
condition
iv. Because of the employee’s own serious health condition.
v. Because of a qualifying exigency.
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C. Employer’s Response to the Employee’s Request for FMLA Leave
When an employee requests FMLA qualifying leave, or when the employer acquires
knowledge that an employee’s leave may be for an FMLA-qualifying reason, the employer
must notify the employee of the employee’s eligibility to take FMLA leave. In addition,
each time an eligibility notice is given, the employer must provide the employee with the
following:
1. Notice describing the employee’s obligations and explaining the consequences of a
failure to meet the obligations.
2. The leave will be counted against the employee’s twelve weeks of FMLA leave.
3. Any certification requirements (of a serious health condition, serious injury or illness or
qualifying exigency) and the consequences of failing to furnish such certification.
4. Employee’s right to use paid leave, whether the employer requires the substitution of
paid leaves, and the employee’s right to take unpaid leave if the employee does not
meet the requirements for paid leave.
5. Requirements concerning payment of health insurance premiums.
6. The employee’s potential liability for payment of health insurance premiums paid by the
employer during FMLA leave if the employee fails to return to work after taking the
leave.
7. The employee’s rights to maintenance of benefits and restoration to the same or an
equivalent job upon return from FMLA leave.
8. The employee’s status as a “key employee” and its potential consequences.
D. Certification Requirements
1. In most cases, the Appointing Authority will request that an employee furnish
certification where the requested leave is to care for a covered family member with a
serious health condition or due to the employee’s own serious health condition.
2. The Appointing Authority may require that an employee’s leave because of a qualifying
exigency or to care for a covered servicemember with a serious injury or illness be
supported by a certification;
3. In most cases, the Appointing Authority will request the certification at the time the
request for leave is made, or in the case of an unforeseen leave, within five (5)
business days after the leave commences. However, the Appointing Authority may
request a certification at some later date if it has reason to question whether the leave
is appropriate or its duration.
4. If the Appointing Authority finds that any certification is incomplete or insufficient, it will
advise the employee, and will state what additional information is needed.
5. If the required certification is not provided, the taking of the leave may be denied. In all
cases it is the employee’s responsibility to provide a complete and sufficient
certification.
6. The Appointing Authority may request a fitness for duty certificate upon the employee’s
return to work.
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E. Designating Leave and Required Notices
When the employer has enough information to determine whether the leave is being taken
for an FMLA-qualifying reason (e.g. after receiving a completed certification), the employer
must notify the employee of its determination within five (5) business days absent
extenuating circumstances. If the employer is designating the leave as FMLA-qualifying,
this notification should include the following:
1. The amount of the leave counted against the employee’s leave entitlement, including, if
known, the number of days, hours or weeks that will be counted.
a. If it is not possible to provide the amount because the need for the leave is
unscheduled, the employee has the right to request this information but not more
often than once in a 30-day period and only if leave was taken during that period.
2. Whether the employer will require paid leave to be substituted for unpaid leave, and
that paid leave taken will be counted as FMLA leave.
3. Whether the employer will require the employee to provide a fitness-for-duty
certification, and whether the fitness-for-duty certification must address the employee’s
ability to perform the essential functions of the job.
If the employer determines that the leave will not be designated as FMLA-qualifying (e.g.
the leave is not for a reason covered by the FMLA or the FMLA leave has been exhausted),
the employer must notify the employee of that determination.
Retroactive Designation: The employer may retroactively designate leave as FMLA with
appropriate notice to the employee, provided that its failure to timely designate the leave
does not cause harm or injury to the employee. In all cases, the employee and employer
may mutually agree that leave be retroactively designated as FMLA leave.
II. Coordination With Collective Bargaining Agreements/Plans
A. FMLA qualifying leaves of absence will be identified as those authorized under collective
bargaining agreements or plans, i.e., medical leave or personal leave, dependent on which
leave is appropriate.
B. The FMLA provides for an unpaid leave under certain circumstances. The employer shall
require an employee to use sick leave for situations required by the collective bargaining
agreements (e.g., for the employee’s own serious health condition). The employer shall
only require an employee to use vacation in specific instances allowed by the collective
bargaining agreements. However, the employee may request and the employer shall grant
vacation or compensatory time. All paid time counts toward the twelve (12) weeks of
FMLA qualifying leave.
C. Complying with notice/call-in policies of the Appointing Authority. An Appointing Authority
may require an employee to comply with its usual and customary notice and procedural
requirements for requesting leave, absent unusual circumstances. Failure to comply may
result in the delay or the denial of the leave.
III. Job Benefits and Protection
A. During an FMLA qualifying leave, the employee and dependent health and dental
insurance is maintained on the same basis as coverage would have been provided if the
employee had been continuously employed during the entire leave period.
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B. An eligible employee returning from a FMLA qualifying leave is entitled to be returned to
the same position and shift that the employee held when the FMLA qualifying leave began,
or to an equivalent position and shift with equivalent benefits, pay, and other terms and
conditions of employment.
C. Provided the employee returns to work immediately following his/her FMLA qualifying leave
(i.e., does not follow the FMLA qualifying leave with additional unpaid leave), benefits must
be resumed upon the employee's return to work at the same level as were provided when
leave began. Any new or additional coverage or changes in health benefits must be made
available to an employee while on FMLA qualifying leave.
IV. General Provisions
A. Recordkeeping
1. FMLA provides that the Appointing Authority shall make, keep, and preserve records
pertaining to the obligations under the Act.
2. The records must disclose the following:
(a) Basic payroll data - name; address; occupation; rate of pay; hours worked per pay
period; additions and deductions from wages; total compensation paid.
(b) Dates FMLA qualifying leave is taken.
(c) If FMLA qualifying leave is taken in increments of less than one full day, the number
of hours taken.
(d) Copies of employee notices of leave provided to the employer; copies of all general
and specific notices given to employees by the employer.
(e) Any documents describing employee benefits or employer policies or practices
regarding taking of paid or unpaid leave.
(f) Premium payments of employee benefits.
(g) Records of any disputes between the employer and employee regarding
designation of FMLA qualifying leave.
(h) Records and documents relating to medical certifications or medical histories of
employees or employees' family members, which shall be maintained in separate
confidential files.
B. Posting Requirements
1. Appointing Authorities must post a notice describing the Act's provisions. The notice
must be posted in all areas where employees and applicants for employment would
normally expect to find official notices, and may also be posted electronically, provided
that it is in a conspicuous place on the Appointing Authority’s website and is accessible
to both applicants and current employees.
2. If an Appointing Authority publishes and distributes an employee handbook, information
on employee entitlements and obligations under the FMLA must be included.
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3. If the Appointing Authority does not publish or distribute a handbook, it must provide
written guidance to employees when they request a FMLA qualifying leave and to each
new employee upon hire.
C. Appeal Process
If an employee believes that their rights under the FMLA have been violated, he/she may:
1. Internal
a) Contact their Human Resources office, or;
b) Contact their Labor Union/Association.
2. External
a) File or have another person file on his/her behalf, a complaint with the Secretary of
Labor.
(1) The complaint may be filed in person, by mail or by telephone, with the Wage
and Hour Division, Employment Standards Administration, U. S. Department of
Labor. The complaint may be filed at any local office of the Wage and Hour
Division; the address may be found in telephone directories or on the
Department of Labor’s website.
(2) A complaint filed with the Secretary of Labor should be filed within a
reasonable time of when the employee discovers that his/her FMLA rights have
been violated, but in no event more than two (2) years from the date the
alleged violation occurred, or three (3) years for a willful violation.
(3) No particular form is required to make a complaint, however the complaint
must be reduced to writing and include a statement detailing the facts of the
alleged violation.
or;
b) File a private lawsuit pursuant to section 107 of the FMLA.
(1) If the employee files a private lawsuit, it must be filed within two (2) years of
the alleged violation of the Act, or three (3) years if the violation was willful.
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1/09
FREQUENTLY ASKED QUESTIONS
1.
Which employees are eligible for an FMLA qualifying leave?
An "eligible employee" is a State employee who:
a) Has been employed by the State for at least 12 months, and
b) Has worked and been compensated for at least 1,250 hours during the 12-month period
immediately preceding the leave (this does not include vacation, sick leave, other paid
leave, or compensatory time - this does include overtime worked).
2.
Are only permanent employees eligible for FMLA qualifying leave?
No, non-permanent employees are eligible if they meet the requirements stated under
question number one above. If employees are not in insurance eligible status, they are only
eligible for unpaid time off and not the insurance benefits.
3.
Under what circumstances are employees eligible to take a FMLA qualifying leave?
a) For birth of the employee’s child, and to care for the newborn child;
b) For placement with the employee of a child for adoption or foster care;
c) To care for the employee's spouse, son, daughter, or parent with a serious health
condition; and
d) Because of a serious health condition that makes the employee unable to perform the
functions of the employee's job.
e) Because of a qualifying exigency arising out of the fact that the employee’s spouse, son,
daughter, or parent is a covered military member on active duty (or has been notified of
an impending call or order to active duty) in support of a contingency operation.
f) To care for a covered service member who became ill or was injured as a result of active
duty service.
4.
How much time may an employee take as FMLA qualifying leave?
Eligible employees may take up to twelve work weeks of leave during each fiscal year with
the following exceptions:
Exceptions:
If the leave is to care for a covered service member who became ill or was injured as a result
of active duty or call to active duty service, refer to question No. 5.
If a husband and wife both work for the State, refer to Question Nos. 6 and 7.
If the leave is taken for the birth of a child or the placement of a child for adoption or foster
care, refer to Question No. 9.
5.
How much time may an employee take as FMLA qualifying leave to care for a covered
service member who became ill or is injured as a result of active duty or call to active duty
service?
Eligible employees may take up to 26 weeks within a single 12-month period. The 12 month
period begins on the date the employee first takes FMLA leave to care for the covered
service member and ends 12 months after that date.
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6.
If both husband and wife are State employees, are they both eligible for twelve weeks of
FMLA qualifying leave during the fiscal year?
Yes. However, a husband and wife may take only a combined total of twelve weeks of
FMLA qualifying leave per fiscal year under the following situations:
a)
b)
c)
d)
7.
For the birth of a son or daughter and to care for the newborn child;
For placement of a child with the employee for adoption or foster care;
To care for the employee’s parent (not parent-in-law) who has a serious health condition.
Because of a qualifying exigency arising out of the fact that the employee’s spouse, son,
daughter, or parent is a covered military member on active duty (or has been notified of
an impending call or order to active duty) in support of a contingency operation.
If both husband and wife are State employees, are they both eligible for 26 weeks of FMLA
qualifying leave to care for a covered service member who becomes ill or is injured as a
result of active duty or active duty service?
Yes. However, a husband and wife can may take only a combined total of 26 weeks of
FMLA qualifying leave during a single twelve month period.
8.
If an employee uses 12 weeks of FMLA qualifying leave in one fiscal year, are they allowed
another 12 weeks the following fiscal year for the same condition?
Yes, provided the employee still meets all the eligibility criteria (including 1250 hours worked
in the year preceding the request).
9.
If FMLA qualifying leave is taken for the birth of a child, or for placement of a child for
adoption or foster care, must the leave be completed within a specific period of time?
Although it is possible that an employee could qualify for two separate FMLA qualifying
leaves for the birth or placement of a child (under the condition explained in Question No. 5
above), all FMLA qualifying leaves must be completed within 12 months of the birth or
placement of a child. The 12-month period begins on the date of birth or placement.
10.
Does FMLA leave have to be taken all at once, or can it be taken intermittently?
FMLA qualifying leave taken for the employee’s own serious health condition, for the serious
health condition of the employee’s spouse, son, daughter, or parent, or to care for a covered
servicemember with a serious injury or illness may be taken intermittently or on a reduced
schedule if “medically necessary” and if that medical need can best be accommodated by an
intermittent schedule. If the need for intermittent leave or a reduced schedule is documented
by the employee’s or family member’s health care provider as “medically necessary”, such
leave shall be granted. Intermittent leave for the birth/placement of a child may be granted
at the discretion of the Appointing Authority. The Appointing Authority’s agreement is not
necessary if the mother has a serious health condition in connection with the birth or if the
newborn child has a serious health condition.
Leave due to a qualifying exigency may be taken on an intermittent or reduced schedule
basis.
11.
Is an employee required to use paid sick leave for certain FMLA qualifying leaves?
Yes. FMLA allows an employer to require the use of paid leave for certain qualifying events
as stated under the terms of the collective bargaining agreements and compensation plans.
Employees must use sick leave for the reasons authorized by the bargaining agreement/plan
provisions. The FMLA does not require an employer to expand the use of paid leave.
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12.
Are there circumstances under which an employee may request to receive paid vacation or
compensatory time in conjunction with FMLA?
An employee may request and receive paid vacation or compensatory time. Granting of
vacation or compensatory time is not subject to any other employer requirements such as
seniority or staffing needs.
However, the employee must make a reasonable effort to schedule foreseeable qualifying
leave so as not to unduly disrupt the employer's operation. If the employee is unable to
provide sufficient documentation to determine FMLA eligibility, the employee shall be placed
on unpaid leave until such documentation is made available to the employer.
13.
How do you determine the amount of FMLA qualifying leave used if an employee works a
fixed part-time schedule or the employee's schedule varies from week to week?
The amount of FMLA qualifying leave is determined on a prorata basis by comparing the
requested schedule with the employee's normal schedule.
Where the schedule varies from week to week to such an extent that the employer is unable
to determine with any certainty the number of hours the employee would have worked, a
weekly average of the hours scheduled over the 12 months prior to the beginning of the
leave period is used to calculate the employee's leave entitlement.
14.
How can an Appointing Authority determine if a request for leave is a FMLA qualifying leave?
a) An employee requesting leave shall be asked the question, "Is the request for paid or
unpaid time off for the purpose of an FMLA qualifying event (yes) (no)?" An employee
giving notice of the need for FMLA leave must explain the reasons for the needed leave
so as to allow the Appointing Authority to determine whether it is qualifying.
b) If an employee requests a leave prior to completing a request for leave slip, a supervisor
may ask the reason for the leave. The supervisor will ask for this information solely for
the purpose of determining whether the leave is FMLA qualifying and/or if under the
terms of the State's contracts or compensation plans an employee is eligible for paid or
unpaid time off.
c) If the employee fails to explain the reason, leave may be denied.
15.
How can an employee determine if his or her request for time off qualifies under FMLA?
a) Notices explaining the Act's provisions and providing information concerning the
procedures for filing complaints of violations of the Act shall be posted in conspicuous
places at the worksite.
b) An employee may ask his or her supervisor, contact the personnel office or their union to
ask questions concerning the employee's rights and responsibilities under the FMLA.
16.
Can an FMLA qualifying leave extend an employee's period of employment?
No.
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17.
What are an employee's job protection rights upon return from an unpaid FMLA qualifying
leave?
An eligible employee shall be restored to the same position that the employee held when the
FMLA qualifying 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.
18.
How does an FMLA qualifying leave coordinate with the Statewide Sick Leave Policy?
The Act prohibits an employer from discriminating against employees who use FMLA
qualifying leave. Therefore, the FMLA qualifying leave cannot be referred to in any
employment actions including but not limited to discipline and selection.
19.
Can employees choose whether or not they want to use FMLA qualifying leave?
No. It is the employer’s responsibility to designate leave as qualifying under FMLA. An
employee may not choose whether leave shall be counted as FMLA qualifying leave.
20.
How can an employer verify an employee’s need for leave because of a “serious health
condition”?
The Appointing Authority’s FMLA designation decision must be based only on information
received from the employee or the employee’s spokesperson.
An employer may also require an employee to obtain certification of a “serious health
condition” from the employee’s health care provider. The employer can pay for a second
opinion if it doubts the validity of the original certification. If the second opinion conflicts with
the first, the employer may pay for a third opinion. The provider of the third opinion must be
jointly approved by the employer and employee. The third opinion will be final.
If a leave request is for the serious health condition of a family member, the employer can
require the employee to provide certification from the family member’s health care provider.
21.
Is an employee eligible to continue health insurance benefits during a FMLA qualifying
leave?
During an FMLA qualifying leave, the employee and dependent health and dental insurance
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.
Employees who receive the partial employer contribution must continue to pay their portion
of the premium in order to retain this coverage. If the employee fails to make their premium
payments, they will lose the coverage and may not be covered for any claims which may
have occurred while on FMLA qualifying leave.
22.
What other insurance coverage may an employee continue during a FMLA qualifying leave?
An employee may continue all coverage which they had prior to going on the FMLA
qualifying leave, by paying the full cost of the premium. This includes, but is not limited to,
basic, optional, spouse, child life insurance and short term and long term disability insurance.
If the employee takes leave due to a work-related disability, short term disability may not be
continued. It may be reinstated upon the employee’s return to work.
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23.
May an employee choose not to retain health and dental coverages while on a FMLA
qualifying leave?
Yes, an employee may choose not to retain these coverages. The coverages will be
reinstated upon the employee’s return to work.
24.
May an employee choose not to retain optional coverages while on a FMLA qualifying leave?
Yes, however, they may have the coverages reinstated upon return to work, if the return to
work is within the allotted twelve weeks of FMLA qualifying leave. If the leave goes beyond
twelve weeks, the employee must reapply with evidence of good health. If an employee
chooses not to retain optional coverages, they will not be covered for any claims that may
have occurred while they were on leave.
25.
If an employee terminates employment during the FMLA qualifying leave, may the employer
recoup the costs of the premiums paid?
Yes, an employer may recover its share of health/dental insurance premiums paid during a
period of unpaid FMLA qualifying leave from an employee if the employee fails to return to
work for at least thirty (30) calendar days after the leave unless the employee does not
return due to the continuation, recurrence or onset of the serious health condition, or due to
other circumstances beyond the employee’s control.
26.
What are an employee’s COBRA rights in relation to an FMLA qualifying leave?
As it relates to FMLA qualifying 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 qualifying leave.
27.
What can employees do if they believe that their rights under FMLA have been violated?
The employee has the choice of:
a) Filing, or having another person file on his or her behalf, a complaint with the Secretary
of Labor, or
b) Filing a private lawsuit pursuant to section 107 of FMLA.
28.
How are employees protected who request leave or otherwise assert FMLA rights?
The FMLA prohibits an employer from interfering with, restraining, or denying the exercise of
(or attempts to exercise) any rights provided by the Act.
29.
Do State laws providing family and medical leave still apply?
Nothing in FMLA supersedes any provision of State law. However, if leave qualifies for
FMLA and for leave under State law, the leave used counts against the employee’s
entitlement under both laws.
30.
If an employee is on a non-medical leave of absence that also qualifies as an FMLAprotected leave, should that employee's leave accrual date be adjusted?
No. Accrual dates shall not be adjusted for employees on FMLA-qualifying leaves whether
medical or not.
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31.
Do employees earn sick and vacation accruals when they are on unpaid FMLA-qualifying
leaves?
No. Employees only earn sick and vacation accruals when they are in a paid status. In
addition, an employee being paid less than eighty (80) hours in a pay period due to an
FMLA-qualifying unpaid leave will have his/her sick/vacation accruals prorated.
32.
Are employees on FMLA-qualifying leaves allowed to earn holiday pay during their leave?
Only if they are in a paid status on the normal work day before and after the holiday.
33.
Does workers’ compensation leave count against an employee’s FMLA leave entitlement?
It can. FMLA qualifying leave and workers’ compensation leave may run concurrently,
provided the reason for the absence is due to a qualifying serious illness or injury, and the
employer properly notifies the employee in writing that the leave will be counted as FMLA
leave.
34.
Can an employer count missed overtime hours against the employee’s FMLA entitlement?
Yes, if an employee would normally be required to work overtime, but is unable to do so
because of an FMLA-qualifying reason that limits his/her ability to work overtime, the hours
which the employee would have been required to work may be counted against the
employee’s entitlement (e.g., employee normally would be required to work 48 hours, but
due to a serious health condition, can only work 40 hours. The employee would use 8 hours
of FMLA-protected leave). Voluntary overtime hours that an employee does not work due to
the FMLA reason may not be so counted.
For more information, contact human resources or your union representative.
lr-comp\labor\general\FMLA Policy-Final-01-09
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EMPLOYEE RIGHTS AND RESPONSIBILITIES
UNDER THE FAMILY AND MEDICAL LEAVE ACT
Basic Leave Entitlement
FMLA requires covered employers to provide up to 12 weeks of unpaid job-protected leave to
eligible employees for the following reasons:
• For incapacity due to pregnancy, prenatal medical care or child birth;
• To care for the employee’s child after birth, or placement for adoption or foster care;
• To care for the employee’s spouse, son or daughter, or parent, who has a serious health
condition; or
• For a serious health condition that makes the employee unable to perform the employee’s job.
Military Family Leave Entitlements
Eligible employees with a spouse, son, daughter, or parent on active duty or call to active duty
status in the National Guard or Reserves in support of a contingency operation may use their 12week leave entitlement to address certain qualifying exigencies. Qualifying exigencies may
include attending certain military events, arranging for alternative childcare, addressing certain
financial and legal arrangements, attending certain counseling sessions, and attending postdeployment reintegration briefings.
FMLA also includes a special leave entitlement that permits eligible employees to take up 26
weeks of leave to care for a covered servicemember during a single 12-month period. A covered
servicemember is a current member of the Armed Forces, including a member of the National
Guard or Reserves, who has a serious injury or illness incurred in the line of duty on active duty
that may render the servicemember medically unfit to perform his or her duties for which the
servicemember is undergoing medical treatment, recuperation, or therapy; or is in outpatient
status; or is on the temporary disability retired list.
Benefits and Protections
During FMLA leave, the employer must maintain the employee’s health coverage under any “group
health plan” on the same terms as if the employee had continued to work. Upon return from FMLA
leave, most employees must be restored to their original or equivalent positions with equivalent
pay, benefits, and other employment terms.
Use of FMLA leave cannot result in the loss of any employment benefit that accrued prior to the
start of an employee’s leave.
Eligibility Requirements
Employees are eligible if they have worked for a covered employer for at least one year, for 1,250
hours over the previous 12 months, and if at least 50 employees are employed by the employer
within 75 miles.
Definition of Serious Health Condition
A serious health condition is an illness, injury, impairment, or physical or mental condition that
involves either an overnight stay in a medical care facility, or continuing treatment by a health care
provider for a condition that either prevents the employee from performing the functions of the
employee’s job, or prevents the qualified family member from participating in school or other daily
activities.
Subject to certain conditions, the continuing treatment requirement may be met by a period of
incapacity of more than three consecutive calendar days combined with at least two visits to a
health care provider or one visit and a regimen of continuing treatment, or incapacity due to
pregnancy, or incapacity due to a chronic condition. Other conditions may meet the definition of
continuing treatment.
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Use of Leave
An employee does not need to use this leave entitlement in one block. Leave can be taken
intermittently or on a reduced leave schedule when medically necessary. Employees must make
reasonable efforts to schedule leave for planned medical treatment so as not to unduly disrupt the
employer’s operations. Leave due to qualifying exigencies may also be taken on an intermittent
basis.
Substitution of Paid Leave for Unpaid Leave
Employees may choose or employers may require use of accrued paid leave while taking FMLA
leave. In order to use paid leave for FMLA leave, employees must comply with the employer’s
normal paid leave policies.
Employee Responsibilities
Employees must provide 30 days advance notice of the need to take FMLA leave when the need
is foreseeable. When 30 days notice is not possible, the employee must provide notice as soon as
practicable and generally must comply with an employer’s normal call-in procedures.
Employees must provide sufficient information for the employer to determine if the leave may
qualify for FMLA protection and the anticipated timing and duration of the leave. Sufficient
information may include that the employee is unable to perform job functions, the family member is
unable to perform daily activities, the need for hospitalization or continuing treatment by a health
care provider, or circumstances supporting the need for military family leave. Employees also
must inform the employer if the requested leave is for a reason for which FMLA leave was
previously taken or certified. Employees also may be required to provide a certification and
periodic recertification supporting the need for leave.
Employer Responsibilities
Covered employers must inform employees requesting leave whether they are eligible under
FMLA. If they are, the notice must specify any additional information required as well as the
employees’ rights and responsibilities. If they are not eligible, the employer must provide a reason
for the ineligibility.
Covered employers must inform employees if leave will be designated as FMLA-protected and the
amount of leave counted against the employee’s leave entitlement. If the employer determines
that the leave is not FMLA-protected, the employer must notify the employee.
Unlawful Acts by Employers
FMLA makes it unlawful for any employer to:
• Interfere with, restrain, or deny the exercise of any right provided under FMLA;
• 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.
Enforcement
An employee may file a complaint with the 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 or collective bargaining agreement which provides greater family or medical leave
rights.
FMLA section 109 (29 U.S.C. § 2619) requires FMLA covered employers to post the text of
this notice. Regulations 29 C.F.R. § 825.300(a) may require additional disclosures.
For additional information:
1-866-4US-WAGE (1-866-487-9243) TTY: 1-877-889-5627
WWW.WAGEHOUR.DOL.GOV
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Appendix D to Part 825—Notice of
Eligibility and Rights & Responsibilities
(Form WH-381)
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Appendix E to Part 825—Designation
Notice to Employee of FMLA Leave
(Form WH-382)
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Appendix F to Part 825—[Reserved]
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Appendix G to Part 825—Certification
of Qualifying Exigency for Military
Family Leave (Form WH-384)
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Appendix H to Part 825—Certification
for Serious Injury or Illness of Covered
Servicemenber for Military Family
Leave (Form WH-385)
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[FR Doc. E8–26577 Filed 11–14–08; 8:45 am]
BILLING CODE 4510–27–C
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