2230-9

Family and Medical Leave

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The Family and Medical Leave Act (FMLA) of 1993 provides qualified employees with up to a 12 weeks (maximum) of unpaid leave each year for the birth or adoption of a child, for care of a spouse or an immediate family member with a serious health condition, or for their own qualifying medical condition. In 2008 the FMLA was expanded with the passage of the National Defense Authorization Act which provides additional FMLA leave for military families.  This act provides qualified employees with up to 26 weeks (maximum) of unpaid leave each year as caregiver of a covered service member who is recovering from a serious illness or injury sustained in the line of duty on active duty.
 The Department has elected to use the calendar year as the basis for administering Family and Medical Leave.


USE OF PAID LEAVE
The Georgia Department of Transportation (GDOT) permits employees to use available annual, sick, personal leave and/or State compensatory time, if appropriate, while on Family Medical Leave (FML) in order to remain in pay status. If sick leave is requested, absences must be for reasons that qualify for sick leave usage. (See GDOT Personnel Policy Section 2230 for specific requirements.) If state compensatory time is requested, it must be used prior to the use of annual leave.


Note: Under Federal regulations, FLSA compensatory time may not be used while on FML.
USE OF FAMILY AND MEDICAL LEAVE
Authorized officials cannot deny the use of FML when the provisions of this policy have been met. It is unlawful to interfere with, restrain, or deny the exercise of (or attempt to exercise) any right provided by the FMLA. Further, it is unlawful to discharge or discriminate against employees for opposing any practice made unlawful by the FMLA or for involvement in any proceeding relating to the FMLA. This policy does not, however, insulate any employee from disciplinary action based on conduct or performance deficiencies.


QUALIFYING REASONS
Both male and female employees may be eligible for FML for any of the following reasons:

  1. Pregnancy and birth of the employee’s child;
  2. Care of the employee’s newborn child;
  3. The placement of a child with the employee for adoption or foster care and to care for the child after placement;
  4. A serious health condition which makes the employee unable to perform the essential functions of the position; or
  5. Care of the employee’s child, spouse or parent who has a serious health condition.
  6. Call to Active Duty of the employee’s child, spouse, or parent.
  7. Care of the employee’s child, spouse, parent, or next of kin who is a covered service member.

TERMS
For purposes of this policy, the following terms have the stated meanings.

  1. “Spouse” means a husband or wife as defined or recognized under State law for purposes of marriage, including common law marriage, in the State where the employee resides.
  2. “Parent” means a biological parent or an individual who stands or stood in loco parentis to an employee when the employee was a son or daughter as defined under “child” below. The term does not include parents-in-law.
  3. “In loco parentis” means having day-to-day responsibilities to care for and financially support a child.
  4. “Child” means a biological child, adopted child, foster child, stepchild, legal ward, or child of a person standing in loco parentis, who is either under age 18 or is age 18 or older and incapable of self-care because of a mental or physical disability.
  5. “`Family member" means spouse, parent or child as defined above.
  6.  “Next of kin” means the nearest blood relative of that individual.
  7. “Incapable of self-care” means that the individual requires active assistance or supervision in areas such as grooming, hygiene, bathing, dressing, eating, cooking, cleaning, etc.
  8. “Physical or mental disability” means a physical or mental impairment that substantially limits one or more of the major life activities of an individual.
  9. “Active Duty” means duty under a call or order to active duty under a provision of law referred to in section 101(a)(13)(B) of title 10, United States Code

ELIGIBILITY

  1. In order to be eligible for FML, employees must:
    1. Have been employed with State government for a minimum of twelve (12) months. (The twelve (12) months do not need to be consecutive; there can be a break in service. Time worked for State government through a temporary services agency may count toward the twelve (12) months minimum requirement if all other conditions are met);
    2. Have been present at work for a minimum of 1,250 hours during the twelve (12) months immediately before the beginning of FML (does not include holidays or time away from work on paid or unpaid leave, but does include any overtime worked and may include time spent on active military duty); and
    3. Have a qualifying reason for taking FML.
  2. Eligibility for FML to care for a newborn child begins on the date of birth and ends twelve (12) months after the date of birth.
  3. Eligibility for FML due to the placement of a child with the employee for adoption or foster care may begin prior to the date of placement if absence from work is needed for the placement to proceed. Eligibility ends twelve (12) months after the date of placement.
  4. FML for a serious health condition is limited to the time determined to be medically necessary by the attending health care provider.
  5. Eligibility for FML due to the care of a spouse, son, daughter, parent or next of kin of a covered service member is limited to the time determined to be medically necessary by the attending health care provider.
  6. FML to care for a family member with a serious health condition ends if the family member dies. The date of death is the last day that qualifies for FML.
    1. Authorized officials may approve other types of leave after the date of death of an employee's family member in accordance with Office of Personnel Policy Section 2230 - LEAVE and HOLIDAYS.
    2. A leave of absence without pay may also be considered in accordance with DOT policy.
  7. In accordance with Federal regulations, when both husband and wife are eligible State employees, they are limited to a combined total of twelve (12) work weeks of FML in a calendar year for the following reasons:
    1. Birth of the employee’s child;
    2. Care of the employee’s newborn child;
    3. Placement of a child with the employee for adoption or foster care, or to care for the child after placement; or
    4. Care of the employee’s parent with a serious health condition.

Each spouse is entitled to use the difference between the amount of FML he or she has taken individually for one of the above reasons and the twelve (12) work week maximum for other qualifying reasons.

SERIOUS HEALTH CONDITION
A “serious health condition” is defined as an illness, injury, impairment or physical or mental condition that involves:

  1. Inpatient care in a hospital, hospice or residential medical care facility, including any period of incapacity (i.e., inability to work, attend school or perform other regular daily activities), or any further treatment in connection with inpatient care; or
  2. Continuing treatment by a health care provider which includes any one (1) or more of the following:
    1. A period of incapacity of more than three (3) consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition that also involves:
      1. Treatment two (2) or more times by a health care provider, by a nurse or physician’s assistant under direct supervision of a health care provider, or other referred health care services provider; or
      2. Treatment by a health care provider at least once which results in a regimen of continuing treatment (e.g., prescription medication) under the supervision of the health care provider;
    2. Any period of incapacity due to pregnancy or for prenatal care;
    3. Any period of incapacity or treatment due to a chronic serious health condition which requires periodic treatment, continues over an extended period of time, and may cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, migraines, etc.);
    4. Any period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer’s Disease, a severe stroke, etc.); or
    5. Any period of absence to receive multiple treatments (including recovery period) either for restorative surgery after an accident or other injury, or for a condition that would likely result in incapacitation of more than three (3) calendar days if not treated (e.g., chemotherapy for cancer, dialysis for kidney disease, etc.)
  3. Substance abuse may meet the criteria for a serious health condition. FML may be taken for substance abuse treatment or to care for a child, spouse or parent who is receiving substance abuse treatment. FML for substance abuse treatment does not prevent the Department from taking appropriate disciplinary action against an employee for conduct or performance deficiencies.

HEALTH CARE PROVIDER
“Health care provider” means the following:

  1. Doctors of medicine or osteopathy;
  2. Podiatrists, dentists, clinical psychologists, optometrists;
  3. 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 of Georgia;
  4. Nurse practitioners, nurse-midwives, clinical social workers;
  5. Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts;
  6. Any health care provider from whom the Department or the State Health Benefit Plan will accept certification of the existence of a serious health condition to substantiate a claim for benefits; and
  7. Health care providers listed above who practice in a country other than the United States who are authorized to practice in accordance with the law of that country, and who are performing within the scope of their practice as defined under such law.

TIME FRAMES

  1. Eligible employees are entitled up to twelve (12) work weeks of FML between January 1 and December 31 each year.
  2. The twelve (12) work weeks of FML are based on an employee’s regular work schedule. For example, full-time employees who regularly work five (5) days per work week will be charged one (1) work week of FML for every five (5) days absent from work. Similarly, part-time employees who regularly work three (3) days per work week will be charged one (1) work week of FML for every three (3) days absent from work. If a holiday(s) occurs during a week of FML, the holiday(s) counts toward FML as if it were a work day.
  3. Eligible employees are entitled up to 26 weeks (maximum) work weeks of unpaid FML as caregiver of a covered service member between January 1 and December 31 each year

POSTING FMLA NOTICE

  1. Information regarding FMLA and procedures for filing complaints of violations is included in the FMLA notice, YOUR RIGHTS UNDER THE FAMILY AND MEDICAL LEAVE ACT OF 1993. This notice is available on TOPPS under 2110-4, Workplace Notices.
  2. Districts and Offices are to permanently post the notice in prominent locations where notices to employees and applicants are customarily displayed and are to post such revised notices as they become available.

REQUEST

  1. Employees are responsible for notifying supervisors or authorized officials of the need for FML.
    1. Employees must give supervisors or authorized officials adequate notice (usually thirty [30] calendar days) when FML is foreseeable.
    2. When thirty (30) calendar days advance notice is not possible, employees must give supervisors or authorized officials notice as soon as they become aware that FML is necessary. FML may be delayed when adequate notice is not provided.
    3. If FML is foreseeable based on planned medical treatment, employees must make a reasonable effort to schedule the FML, subject to the approval of the attending health care provider, when the operations of the work unit will not be unduly disrupted.
  2. When requesting FML, employees are to provide a completed FAMILY AND MEDICAL LEAVE REQUEST FORM (See form DOT 4120) to supervisors or authorized officials, unless submitting this form is not possible. The following information must be provided:
    1. Beginning and ending dates of requested FML;
    2. Request for use of available annual, sick, personal leave and/or State compensatory time, if appropriate, or leave without pay; and
    3. Reason for the FML. The reason for the absence must be explained in order to determine whether the absence qualifies for FML.
  3. Employees requesting FML due to a serious health condition (including pregnancy/child birth) must provide to supervisors or authorized officials a CERTIFICATION OF SERIOUS HEALTH CONDITION Form (See Form DOT 4122) or other medical statement with similar information, completed by the attending health care provider. The certification must be provided as follows:
    1. When FML for a serious health condition is foreseeable, this certification should be provided before the absence begins.
    2. When it is not possible to provide this certification before the absence begins, employees must provide the certification within fifteen (15) calendar days of the date it is requested.

When a single serious health condition requires multiple absences (e.g., asthma, chemotherapy, etc.), a separate medical statement is not required for each absence.

  1. Employees requesting FML due to adoption or foster care are to provide to supervisors or authorized officials the completed CERTIFICATION OF ADOPTION OR FOSTER CARE Form (See Form DOT 4121) or similar form. Separate FML request forms and certification forms are not needed to cover each absence. These forms need to be submitted only one time, unless the circumstances regarding the placement change to the extent that updated information is needed.

RESPONSE

  1. Supervisors or authorized officials are to respond to FML requests within two (2) business days after notice of the need for leave, if feasible. Such initial notice may be oral, but must be confirmed in writing by the next payday (or by the subsequent payday if the next payday is less than one week away.)
  2. If the request for FML is approved, the approval notice must include the following:
    1. That the leave will count against the employee’s annual FML entitlement;
    2. Any requirements for furnishing medical certification and the consequences for failing to do so;
    3. The employee’s right to substitute paid leave and any conditions related to substitution;
    4. Any requirements for making premium payments to maintain health benefits and the consequences for failing to do so;
    5. Any requirements for presenting fitness for duty certificates prior to returning to work; and
    6. The employee’s right to the same or an equivalent job upon return from FML.
  3. If the employee is not eligible for FML, a notice shall be provided to the employee stating the reason(s) that the FML was not approved.
  4. If sufficient information is not available to determine whether FML should be approved, authorized officials may conditionally approve the FML contingent upon receiving required documentation.
    1. If the request is based on a serious health condition, the conditional approval notice is to include a statement that a completed CERTIFICATION OF SERIOUS HEALTH CONDITION Form or other medical statement with similar information must be submitted to supervisors or authorized officials within fifteen (15) calendar days.
    2. When the required documentation is received, employees will be advised if the FML is approved or denied.
    3. If the required documentation is not provided by the deadline date, the absence may not qualify for FML, or the use of FML may be delayed.
  5. If there is a question as to the validity of the certification for FML, the employee may be required to obtain a second opinion from a health care provider chosen by the Department and paid for by the Department. The Department cannot select a health care provider who regularly provides services to the Department.
  6. If the initial certification and the second opinion differ, the employee may be required to obtain a third opinion from a health care provider jointly selected by the employee and the Department. The third opinion, if required, will be at the Department’s expense and will be final and binding.
  7. If timely notices are not provided by supervisors or authorized officials, employees are NOT entitled to additional time beyond the maximum amount of twelve (12) work weeks for FML.
  8. Supervisors, managers or other Department official are prohibited from directly contacting the employee’s health care provider (except in workers’ compensation cases.)
  9. Supervisors or authorized officials who do not comply with the requirements of this policy are subject to disciplinary action up to and including separation.

CONCERNS WITH PROCESS
Employees who believe that their FML requests have not been processed correctly should discuss their concerns with supervisors or authorized officials, their personnel representative or the Office of Personnel – Employee Management Relations Section.
DESIGNATING FAMILY AND MEDICAL LEAVE
It is the responsibility of supervisors or authorized officials to designate FML as appropriate. If FML is determined appropriate, employees are to be placed on FML even when they do not submit a request. Supervisors or authorized officials may learn that an absence or part of an absence from work qualifies for FML either during or after the period of absence. In these circumstances, FML should be designated as follows:

  1. When supervisors or authorized officials learn that an employee is eligible for FML during a period of absence, any portion of the absence from work which qualifies for FML should be designated as such.
  2. Generally, absences from work may not be retroactively designated as FML after an employee has returned to work. However, FML may be designated retroactively under the following circumstances:
    1. When the employee was absent for an FML reason and the Department did not learn of the reason for the absence until the employee’s return. The retroactive designation must be made within two (2) business days of the employee’s return to duty.
    2. When the Department knows the reason for leave but has not been able to confirm that the leave qualifies under the FMLA. In such cases, the FML designation must be made promptly upon receipt of appropriate certification.

When the reason for the absence is known by the Department beforehand (e.g., pregnancy/child birth), employees are NOT to be retroactively placed on FML after they return to work.

PAY STATUS/BENEFITS

  1. Employees may use paid leave (annual, sick, personal and/or State compensatory time, if appropriate), may take leave without pay, or may use a combination of both to cover the absence from work. Use of paid leave must comply with Office of Personnel Policy Section 2230 – LEAVE and HOLIDAYS (e.g., sick leave may be used only for reasons that qualify for sick leave.) Even with the use of paid leave, the absence is charged against the employee’s twelve (12) week FML entitlement.
    1. Absences due to morning sickness and other pregnancy related absences (including the two (2) weeks immediately before delivery) generally qualify for use of sick leave by female employees.
    2. The first six (6) weeks following the birth of a child generally qualify for use of sick leave by female employees. Additional use of sick leave due to the birth of a child must be supported by a medical statement (e.g., serious health condition of the mother or child). Fathers (male employees) would generally be eligible to use sick leave if their presence is needed due to the serious health condition of the mother or child but would not be eligible to use sick leave otherwise.
    3. Fathers (male employees) are generally NOT eligible to use sick leave for the birth of a child, unless his presence is needed due to the serious health condition of the mother or child.
  2. Since leave donations are credited to recipients’ sick leave balances, employees who are on FML can only use donated leave for absences that qualify for use of sick leave.
  3. FLSA compensatory time cannot be used in conjunction with the twelve (12) work weeks of FML.
  4. While on FML, employees who have health insurance benefits through the State Health Benefit Plan are entitled to maintain this health insurance coverage at the employee rate. If premiums change while employees are on FML, they are responsible for paying the new premiums.
  5. In order to maintain health insurance and any benefits through the Flexible Benefits Program (e.g., Accidental Death and Dismemberment Insurance, Dental Insurance, etc.), employees on FML with pay will continue to pay premiums through payroll deductions.
  6. Employees on FML without pay will be advised of the cost for maintaining health insurance and any benefits through the Flexible Benefits Program, arrangements for making payments, and consequences for not making timely payments.
    1. Employees on FML without pay must complete and submit the following forms to their human resource/personnel representative or the Office of Personnel, as appropriate, to continue health insurance benefits:
      1. REQUEST TO CONTINUE HEALTH BENEFITS DURING LEAVE OF ABSENCE WITHOUT PAY (SHBP Form 66-003);
      2. DISABILITY CERTIFICATION (SHBP Form 66-005), if appropriate; and
      3. A copy of the completed CERTIFICATION OF SERIOUS HEALTH CONDITION Form (See DOT Form 4122) or other medical statement with similar information.
  7. Employees with at least one (1) year of participation in the Group Term Life Insurance Program under the Employees’ Retirement System (ERS) may retain coverage while on FML without pay. A request to continue coverage must be made in writing to ERS prior to beginning the FML without pay. Coverage terminates if this written request is not received.

SYSTEM ENTRY
When an employee is on FML for one (1) or more continuous work weeks, the appropriate personnel representative should complete and submit the EMPLOYEE DATA CHANGE FORM (EDC) to place the employee on FML with and/or without pay. When an employee is absent for less than one (1) continuous work week (including intermittent FML absences or reduced leave schedules), it will not be necessary to submit an EDC; however, appropriate documentation of the FML absence must be maintained on the employee’s semi-monthly timesheet and on leave request forms.

RECERTIFICATION
Employees on FML due to a serious health condition may be required to provide recertification of the serious health condition at the employee’s expense. Recertification cannot be required more often than every thirty (30) calendar days.

INTERMITTENT/REDUCED LEAVE SCHEDULE

  1. FML may be taken intermittently or on a reduced leave schedule under certain circumstances.
    1. Intermittent leave is leave taken in separate blocks of time due to a single qualifying reason (e.g., morning sickness, prenatal examinations).
    2. A reduced leave schedule reduces an employee’s normal work hours per work week or per work day.
  2. An employee may take FML intermittently or on a reduced leave schedule when medically necessary due to his or her own serious health condition or when necessary to provide care or psychological comfort to a qualifying family member with a serious health condition. A medical statement is not required for each absence when FML is taken intermittently. However, documentation may be required initially, and recertification may be required no more often than every thirty (30) calendar days.
  3. FML may not be taken intermittently or on a reduced leave schedule after the birth of a child or placement of a child for adoption or foster care, unless the mother has a serious health condition in connection with the birth of her child or if the child has a serious health condition.
  4. Employees who request FML on an intermittent or reduced leave schedule basis may be required to temporarily transfer to an available alternative position that better accommodates recurring periods of absence.
    1. The alternative position must have equivalent pay and benefits, but is not required to have equivalent duties.
    2. Employees must not be transferred to alternative positions in order to discourage the use of FML or to positions that represent a hardship (e.g., employees may not be transferred to a less desirable shift).
    3. When the need for intermittent leave or a reduced leave schedule ends and employees are able to return to their normal work schedules, they must be returned to their former positions or equivalent positions.
  5. Only the amount of leave actually taken on an intermittent or reduced leave schedule basis may be counted toward the twelve (12) work weeks of FML. For example, employees who normally work five (5) days per work week and take off one (1) day for intermittent FML will be charged 1/5 work week of FML. Similarly, full-time employees who reduce a work week from forty (40) to twenty (20) hours are charged ½ work week of FML.

RETURN TO WORK

  1. Employees who have complied with the terms and conditions in the FML approval notice are entitled to return to the same position, or an equivalent position with the same pay and grade, benefits and comparable working conditions, at the expiration of FML.
    1. Employees do not retain this entitlement if, at the expiration of FML, they are unable to perform the essential functions of the position, with or without reasonable accommodation, due to physical or mental condition.
    2. Employees on FML do not have greater rights to return to work than they would have if they had continuously remained at work. For example, employees who are on FML during a staff reduction do not have a right to return to work if they are laid off due to the staff reduction.
  2. Employees returning from FML (other than intermittent FML) due to their own serious health condition will be required to submit a return-to-work statement from the attending health care provider prior to returning to work (See Form DOT 4123, which may be used for this purpose.) This statement must certify that the employee is capable of performing the essential functions of the position, with or without reasonable accommodation. Employees who do not provide a required statement should not be allowed to return to work.
  3. When an employee returns to duty following FML, the appropriate personnel representative should submit a completed EMPLOYEE DATA CHANGE FORM (EDC) to the appropriate transactions staff for entry.

RECORD KEEPING
All FML related employment records must be maintained for at least three (3) years and made available upon request by the U. S. Department of Labor. These records include, but are not limited to, the following:

  1. Correspondence between the employee, supervisor or authorized official regarding FML;
  2. Records of any dispute regarding designation of leave as FML; and
  3. Any documents describing employee benefits or Department policies and practices regarding the taking of leave with and without pay.

CONFIDENTIALITY
Medical information related to FML is confidential and is available to individuals on a “need to know” basis only. FMLA is a complex Federal Law that is used often and must be applied accurately.

CONCURRENT DESIGNATION OF FAMILY MEDICAL LEAVE
FML may run concurrently with other State and Federal laws, including: workers’ compensation, reduced work schedules under the Americans with Disabilities Act, etc., or with other benefit programs, including short term disability. It is the supervisor’s or manager’s responsibility to designate all FML-qualifying absences as FML in addition to making any other appropriate leave designations.
Any questions or concerns about this policy should be directed to the Office of Personnel Employee Management Relations Section.

REFERENCES:
Federal Family and Medical Leave Act (FMLA) 29 USC 2601 et seq.
U.S. Department of Labor 29 CFR Part 825

Authored by the Office of Personnel, 404-656-5260
Document History:

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