THE FAMILY AND MEDICAL LEAVE ACT

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www.in.gov/spd/2397.htm


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 12-week 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 post-deployment reintegration briefings.
FMLA also includes a special leave entitlement that permits eligible employees to take up to 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 3 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.
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.

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Family-Medical Leave January 16, 2009
Policy
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FAMILY – MEDICAL LEAVE SCOPE This policy applies to merit and non-merit employees subject to the executive authority of the Governor except employees of the State Police. STATEMENT OF POLICY It is the policy of the State of Indiana to allow eligible employees to take leave for the following qualifying events in accordance with the Family and Medical Leave Act of 1993, as amended. 29 CFR §825.100(a)
1. birth of a child;
2. placement of a child for adoption or foster care;
3. for the care of a spouse, child, or parent who has a serious health condition;
4. the serious health condition of the employee which prevents the employee from performing the essential functions of his/her job;
5. because of a qualifying exigency arising out of the fact that the employee’s spouse, child, or parent is on active duty or call to active duty status in the National Guard or Reserves in support of a contingency operation; or
6. for the care of a covered servicemember with a serious injury or illness.
Employee Eligibility 29 CFR §825.110
Employees who have been employed in an agency under the executive authority of the Governor for at least twelve (12) months (consecutive or non-consecutive); worked at least 1250 hours in the twelve-month period immediately preceding the need for family-medical leave; and not exhausted their allotment of family-medical leave in the applicable time period
are eligible for family-medical leave (FML).
Requests for Family-Medical Leave If the need for leave is foreseeable, requests must be submitted at least thirty (30) days prior to taking the leave, or if this is not possible, on the same or next business day of learning of the need for leave. Documentation supporting the need for foreseeable leave must be submitted prior to the beginning of the leave, but in no circumstances later than fifteen (15) calendar days after notice of the need for leave. 29 CFR §825.302 If the need for leave is not foreseeable, requests must be submitted in accordance with general leave request policies – fifteen (15) minutes before the shift or one (1) hour before shift in a 24/7 operation - barring extenuating circumstances which prevent notice by the employee, or employee’s spokesperson, within that time frame. Documentation supporting the need for unforeseeable leave must be submitted no later than fifteen (15) calendar days after the beginning of the leave. 29 CFR §825.303 Requests may be oral; however, they must be submitted in writing as soon as practicable. Employees requesting leave for which FML may apply are required to provide sufficient information to the employer for a determination to be made whether the absence qualifies for FMLA leave coverage. The employer is responsible for designating leave as FML if appropriate based on the information available without regard to an employee’s request to have or not have the leave so designated. 29 CFR §825.301 The following documentation may be required to support requests for leave, and must be provided if requested: 29 CFR §825.302(c)
Family-Medical Leave January 16, 2009
Policy
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a completed copy of the appropriate Certification of Health Care Provider for the medical condition of the employee, spouse, child, parent, or covered servicemember for whose care the leave is requested; 29 CFR §825.310 documentation of the qualifying exigency includes a copy of the orders for active duty and, if the leave is to meet with a third party, contact information and the purpose of the meeting; 29 CFR §825.309 documentation of the birth, adoption, or foster care relationship for which parenting leave is requested; 29 CFR §825.310 documentation of family relationship(s) may be required. 29 CFR §825.122(j) Leave may be taken in increments no less than fifteen (15) minutes. 29 CFR §825.205(a) Leave requested for birth, adoption, or foster care placement must be taken within one (1) year of the birth or initial placement. 29 CFR §825.121
Use of Paid Leave 29 CFR §825.207 Any use of paid leave for an FML-qualifying absence will run concurrently with the FML designation. Employer shall designate paid or unpaid leave as FML, whether the employee designates it as such or not, if all the following apply: The employer has compelling information based on information provided by the employee that leave was taken for an FML-qualifying event; and The employee is properly notified of his/her FML rights. Employees eligible for premium overtime with a balance of compensatory time shall be required to use such comp time concurrently with any FML absence prior to the use of any accrued benefit leave (sick, vacation, or personal leave). Employees shall be required to use any available sick leave if the FML is for the serious health condition of the employee, spouse, child, or parent who resides in the employee's household and is dependent upon the employee for care and support after exhausting any available compensatory time as required above and prior to use of other accrued benefit leave (vacation or personal leave). Employees may choose to use vacation and/or personal leave for an FML-qualifying absence if they want to receive compensation for that absence and they call-in and request that leave within fifteen (15) minutes of the beginning of their shift or one (1) hour prior to the beginning of their shift in a 24/7 operation. This option is available only if the employee does not have a balance of comp time which is required to be used as stated above or if sick leave is not available or appropriate under the circumstances of the leave. FML runs concurrently with the elimination and benefit periods of the State's Short/Long Term Disability Plan and may run concurrently with Workers' Compensation if the absence qualifies for both programs. Whether FML is paid, unpaid, or a combination, the employee is entitled to only twelve (12) weeks in each fiscal year for leave taken due to qualifying events 1 through 5 above. Leave taken due to qualifying event 6 above (alone or in combination with other qualifying events) is limited to 26 weeks in the single 12-month period designated to care for a covered servicemember.
Notice to Employee 29 CFR §825.300 Employer shall at a minimum notify employees of the FML rights: orally within five (5) days of counting the leave as FML; and in writing by the payday following the date leave is designated as FML. If the following payday is less than one week from the date leave is designated as FML, employer shall provide written notice to the employee by the next payday.
Family-Medical Leave January 16, 2009
Policy
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Intermittent Use of FML 29 CFR §825.205 Employees are entitled to take intermittent leave for the employee's serious health condition or due to the serious health condition of a parent, spouse, or child, or to care for a covered servicemember or because of a qualifying exigency. To be entitled to intermittent leave, the employee must submit certification to establish the medical necessity of the leave (e.g. periodic testing and treatments) and work with the employer to determine a schedule of treatments that causes the least disruption to operations subject to the approval of the health care provider. The agency may consider a temporary transfer to an alternative, comparable position which better accommodates the intermittent leave or reduced schedule for planned medical treatment. Employer may grant employees intermittent leave or a reduced work schedule for the birth or placement of a child if operational needs allow such intermittent leave or a reduced work schedule. Such leaves/schedule must be discussed and agreed upon by the employee and employer prior to the commencement of such leave/schedule.
Medical Certification 29 CFR §825.305 through -.313 In addition to the certification required with a request for leave that qualifies as a serious health condition, employer may require a second opinion from a second health care provider designated and paid for by the employer. 29 CFR §825.307 If the first and second opinions conflict, employer shall require the employee to submit to a third examination at the agency's expense by a health care provider chosen jointly by the employee and the agency. In choosing the third health care provider, both the employee and the employer must be reasonable and act in good faith. One method of choosing a third health care provider is to request a list of providers in the relevant specialty from the State’s third party administrator of the short/long term disability plan. The employee and employer can then work through the list until they agree upon a provider. The opinion of the third health care provider is final and binding. 29 CFR §825.307 Second and third opinions are not permitted for leave to care for a covered servicemember. 29 CFR §825.310(e)(2)
Recertification 29 CFR §825.308 Employer shall require employees to provide a new certification annually for each fiscal year for any medical condition for which the need for leave may be expected to continue beyond that fiscal year. The annual certification is subject to calculation of eligibility and second and third opinions may be obtained. Employer may require employees to provide recertification of the medical necessity for intermittent leave in any event every six (6) months. Except as provided above, employer may request recertification no more than once every thirty (30) days in conjunction with an employee's absence unless: the employee requests an extension of the leave; circumstances described by the previous certification have changed significantly (e.g. the duration of the illness, the nature of the illness, complications); or the employer receives information that casts doubt upon the continuing validity of the certification. Recertifications are at the employee’s expense. No second or third opinion on recertification may be required other than the annual certification described above. Recertifications are not permitted for leave to care for a covered servicemember or because of a qualifying exigency arising out of the fact that the employee’s spouse, child, or parent is on active duty or call to active duty status in support of a contingency operation.
Family-Medical Leave January 16, 2009
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Verification 29 CFR §825.300 through -.313 It is the employee’s responsibility to provide a complete and sufficient certification and to clarify the certification if necessary. Employees shall have an opportunity to cure any deficiencies in a medical certification. Subsequent to that opportunity, employer shall be entitled to contact the appropriate health care provider to authenticate the document submitted and/or to clarify the information on the document. Authentication and clarification do not involve gathering additional information not covered by the certification form. 29 CFR §825.307 Employees may provide the employer with authorization to contact their health care provider(s) directly, but are not required to do so. If the employee chooses not to provide authorization and does not otherwise clarify a deficient certification, leave will be denied. Contact with a health care provider may be made by another health care provider, a human resources professional, a leave administrator, or a management official. Under no circumstances may the employee’s direct supervisor contact the employee’s health care provider. 29 CFR §825.306(e) Employer may contact third parties or Department of Defense to verify meetings and/or active duty orders pursuant to leave requests because of a qualifying exigency arising out of the fact that the employee’s spouse, child, or parent is on active duty or call to active duty status in support of a contingency operation. No additional information may be requested and the employee’s permission is not required. 29 CFR §825.309(d)
Employee Benefits 29 CFR §825.209 through -.213 Employer is required to continue paying the employer's portion of health insurance premiums during approved FML. Employees are required to continue paying the employee's portion of health insurance premiums during approved FML. Information on how health insurance premiums are to be paid while on FML may be obtained from the designated human resources representative. Employees shall be given a thirty-day grace period from the due date of their health insurance premium. Employees who fail to pay their portion of the health insurance premium within this grace period may, with fifteen days notice, be removed from their respective health insurance plan. If an employee chooses not to continue health care coverage during FML, the employee will be entitled to reinstatement into the benefit plan upon return to work. Employer may seek reimbursement for any health insurance premiums paid on behalf of the employee if the employee fails to return to work from FML unless the reason for the employee failing to return to work is due to the continuation or recurrence of the serious health condition or is otherwise beyond the employee's control as defined in the FMLA. Employees who are reinstated will not lose any service credit and FML will be treated as continuous service for the purpose of calculating any benefits which are based on length of service.
Reinstatement 29 CFR §825.214 through -.216 Employees are entitled to reinstatement to the same or similar position upon return from FML. If the same job is not available, the employer will determine in which similar position the employee should be placed, making sure the position has equivalent pay, benefits, and conditions of employment.
Family-Medical Leave January 16, 2009
Policy
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Employees who take leave due to their own serious health condition may be required to provide certification from a health care provider that they are able to perform the essential functions of their position.
Recordkeeping 29 CFR §825.500 Employer will maintain records of leave balances and usage. Medical records accompanying FML requests will be kept separate from personnel files in a confidential manner.
REFERENCES 29 CFR Part 825 31 IAC 1-9 31 IAC 2-11 FMC 2007-5 Vacation Leave Policy Sick Leave Policy Personal Leave Policy Military Family Leave Policy 31 IAC 3 Workers' Compensation Law and Rules EFFECTIVE January 16, 2009 Supersedes Family-Medical Leave Policy dated May 1, 2005.
APPROVED __________________________________________________________________ Daniel L. Hackler, State Personnel Director DATE January 14, 2009