ORDER NO. 31206
KERR COUNTY FAMILY MEDICAL LEAVE ACT (FMLA) POLICY
Came to be heard this the 13th day of February, 2009, with a motion made by
Commissioner Letz, seconded by Commissioner Williams, the Court unanimously
approved by a vote of 4-0-0 to:
Amend the Kerr County Personnel Policy Family Medical Leave Act (FMLA) Draft as
presented, replacing the existing provisions, and with the addition of a "Continuous
Leave" provision as being one continuous period of time.
(,3
31~a~
COMMISSIONERS' COURT AGENDA REQUEST
PLEASE FURNISH ONE ORIGINAL AND TEN (10) COPIES OF TH1S
REQUEST AND DOCUMENTS TO BE REVIEWED BY THE COURT
MADE BY: Eva Hyde
MF,ETING DATE: February 13, 2009
OFFICE: Human Resources
TIME PREFERRED:
SUBJECT: Consider, discuss and take appropriate action on Kerr County FMLA policy.
EXECUTIVE SESSION REQUESTED: (PLEASE STATE REASON)
NAME OF PF,RSON ADDRESSING THE COURT: Eva Hyde
ESTIMATED LENGTH OF PRESENTA"LION:
IF PERSONNEL MATTER -NAME OF EMPLOYEE:
Time for submitting this request for Court to assure that the matter is posted in
accordance with Title 5, Chapter 551 and 552, Government Code, is as follows:
Meeting scheduled for Mondays:
THIS REQUEST RECEIVED BY:
TI~IIS RQUEST RECEIVED ON:
5:00 PM previous Tuesday
@ .M.
All Agenda Requests will be screened by the County Judge's Office to determine if adequate
information has been prepared for the Court's formal consideration and action at time of Court
Meetings. Your cooperation will be appreciated and contribute towards your request being
addressed at the earliest opportunity. See Agenda Request Rules Adopted by Commissioners'
Court.
~~~/° ~ ~ Revised 02-12-2009
11.00 Family and Medical Leave (FMLA)
11.01 Family and Medical Leave Act
The Family and Medical Leave Act ("FMLA") provides eligible employees with leave
(with or without pay), certain benefits protections, and job restoration for qualifying
events. If a conflict exists between these provisions and the FMLA, the FMLA governs.
Employees may obtain forms for applying for FMLA from Human Resources.
Employees who experience a qualifying event shall be placed on FMLA and any paid
leave available to the employee shall run concurrently with their FMLA leave.
Definitions
The words and terms defined in this section have the meanings given unless the context
clearly indicates another meaning.
Child - A biological, adopted, foster, or stepchild, a legal ward, or a child of a
person standing in loco parentis, who is under 18 years of age or who is 18 years
of age or older and is incapable of self-care because of a mental or physical
disability.
Eligible Employee - An employee who:
• has been employed by the County for a total of at least 12
months and
• has at least 1250 hours actually worked during the 12 months
immediately preceding the leave.
Employment Benefits -All benefits the County provides or makes available to
Eligible Employees, including group life, health, and disability insurance, Sick
Leave, and Retirement.
Group Health Plan -Any plan of, or contributed to by, the County to provide
health care to employees or the families of such employees.
Health Care Provider - A doctor of medicine or osteopathy who is authorized
to practice medicine or surgery (as appropriate) by the State of Texas; or any
other person determined by the United States Secretary of Labor.
Intermittent Leave -Leave taken in separate blocks of time for a single illness
or injury, rather than one continuous period of time, which may include
periods from a portion of an hour or more to several weeks.
Parent -The biological parent of an employee or an individual who stood in
loco parentis to the employee when the employee was a child.
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~ ° ~ ~ Revised 02-12-2009
Serious Health Condition - An illness, injury, impairment, or physical or
mental condition that involves:
• inpatient care (i.e. an overnight stay) in a hospital, hospice, or
residential medical care facility, including any period of
incapacity (for purposes of this section, defined to mean inability to
work or perform regular daily activities due to the Serious Health
Condition, treatment therefore or recovery therefrom) or any
subsequent treatment in connection with the inpatient care; or
• continuing treatment by a health care provider. A Serious
Health Condition involving continuing treatment by a health
care provider includes any one or more of the following:
a) a period of incapacity of more than 3 consecutive
calendar days, and any subsequent treatment or period
of incapacity relating to the same condition, that also
involves:
treatment 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 by a provider of health care services
(e.g. physical therapist) under orders of, or on
referral by, a health care provider; or
treatment by a health care provider on at least
one occasion that results in a regimen of
continuing treatment under the supervision of
the health care provider
b) any period of incapacity due to pregnancy or for prenatal
care.
c) any period of incapacity or treatment for such incapacity
due to a chronic Serious Health Condition. A chronic
Serious Health Condition is one that:
Requires periodic visits for treatment by a health
care provider, or by a nurse's or physician's
assistant under direct supervision of a health care
provider
Continues over an extended period of time
(including recurring episodes of a single
underlying condition); and
May cause episodic rather than a continuing
period of incapacity (e.g. asthma, diabetes,
epilepsy, etc.)
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~~ ° o Revised 02-12-2009
d) a period of incapacity that is permanent or long-term
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.
Examples include Alzheimer's, a severe stroke, or
terminal stages of a disease.
e) any period of absence to receive multiple treatments
(including any period of recovery therefrom) by 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 incapacity
of more than 3 consecutive days in the absence of
medical intervention or treatment, such as cancer
(chemotherapy, radiation, etc.) severe arthritic (physical
therapy), or kidney disease (dialysis).
Spouse - A husband or wife as defined or recognized under Texas law,
including common law marriage.
Oualifyin~ Events
Eligible employees are entitled to FMLA for the following Qualifying Events:
^ The birth of a child of the employee an din order to care for such child;
^ The placement of the child with the employee for adoption or foster care;
^ To care for the Spouse, Parent, or Child of the employee if the Spouse, Parent,
or Child has a Serious Health Condition; or
^ The employee's own Serious Health Condition.
Entitlement to Leave
Eligible Employees with a Qualifying Event(s) are entitled to a maximum of 12
workweeks of leave per calendar year (See below for Military Family Leave
entitlements).
If a husband and wife both work for the County, they must split the 12
workweeks for the birth or placement of a child. They do not have to divide
the 12 workweeks evenly.
Military Family Leave
Oualifvin~ Exi~encv Leave
Eligible employees with a spouse, son, daughter, or parent on active duty or call for
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
74
~~ ~ Revised 02-12-2009
exigencies. Qualifying exigencies may include 1) short notice deployment, 2) attending
certain military events, 3) arranging for alternative childcare and school activities, 4)
addressing certain financial and legal arrangements, S) attending certain counseling
sessions, 6) rest and recuperation, 7) attending post deployment reintegration briefings,
and 8) additional activities agreed to by Kerr County and the eligible employee.
Military Caregiver Leave
FMLA also includes a special leave entitlement that permits eligible employees to take
up to 26 weeks of leave to care for a covered service member during a single 12-month
period. A covered service member is the employee's spouse, minor child, parent, or
next of kin who is a current member of the Armed Forces, including a member of the
National Guard or Reserves, who has a serious illness or injury incurred in the line of
duty on active duty that may render the service member medically unfit to perform his
or her duties for which the service member is undergoing medical treatment,
recuperation, or therapy; or is in outpatient status; or is on the temporary disability.
Types of Leave
If needed, Eligible Employees may take up to 12 weeks of leave at once.
Eligible Employees may take leave intermittently for any Qualifying Event except the
birth or placement of a child.
^ Alternative Position on Leave Taken Intermittently
If an employee requests intermittent leave that is foreseeable based on planned
medical treatment, the Department Head may temporarily transfer the
employee to another position that has equivalent pay and benefits and better
accommodates recurring periods of leave than the employee's regular position.
Concurrent Use of Paid Leave and FMLA Leave Substitution o e
Vacation and Sick Leave
Employees on continuous FMLA leave must exhaust all available Vacation Leave and
Sick Leave (if applicable) before resuming to unpaid FMLA leave. For intermittent
FMLA, employees must exhaust all Vacation Leave and Sick Leave (if applicable) before
taking unpaid FMLA leave. Sick Leave is only applicable if the Qualifying Event is the
employee's own serious health condition or if the employee uses Sick Leave for the
Serious Health Condition of a Spouse, Parent, or Child. FMLA will commence upon
occurrence of a qualifying FMLA event. Employees who experience a qualifying event
shall be placed on FMLA and any paid leave available to the employee shall run
concurrently with their FMLA leave.
Compensatory Time
An employee may choose to use their available Compensatory Time for an FMLA
qualifying event If they make that choice, then the absences are simultaneously
designated as FMLA and Compensatory Time and count toward FMLA leave.
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~~ ° ~ o Revised 02-12-2009
Workers Compensation Leave
Vacation and Sick Leave and Compensatory Time Sections above do not apply to
employees who are on Workers' Compensation Leave. Workers' Compensation Leave
and FMLA run concurrently.
Expiration of Entitlement to Leave
^ Entitlement to FMLA leave for the birth or placement of a child expires at the
end of the 12-month period beginnine on the date of the birth or placement.
For every other Qualifying Event, the entitlement to leave ends when the
~ualify~ Event stops or the employee exhausts 12 weeks of leave, whichever
occurs first. In either event, the employee must notify Human Resources
within 2 working days of learning that the need for FMLA leave ended and the
employee must return to work.
FMLA is based on a "rolling" year -measured forward from the date the employee is
approved for FMLA. The twelve-month period in which an employee is entitled to
twelve weeks of FMLA leave shall be the 12-month period measured forward from the
date an individual employee's first leave begins.
While on leave without pay under this policy, the employee shall not earn vacation,
sick leave, be eligible for holidays, or earn other benefits afforded to employees actively
at work, except for those stated in this policy.
Benefits Protection
During any period that an Eligible Employee takes FMLA leave, the County maintains
coverage under any Group Health Plan at the level, and under the condition coverage
would have been provided if the employee had continued in employment.
Employees who choose to continue coverage while on unpaid FMLA leave must pay
their share of premiums, if any, under the Group Health plans then in effect. The
employee must pay their premiums for any supplemental plans while on FMLA. The
County bills employees on unpaid FMLA one month in advance to maintain coverage.
If the County does not receive payment within 30 days of the due date, such coverage
ends on the 31'` day.
The County recovers the premium paid for maintaining coverage under such Group
Health Plan during any period of unpaid FMLA leave if:
^ The employee fails to return from FMLA leave after the expiration of the
designated leave period; and
^ The employees fails to return to work for a reason other than the continuation,
recurrence, or onset of a Serious Health Condition that entitles the employee
to leave or other circumstances beyond the employee's control.
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° ° ~ ~ Revised 02-12-2009
An employee who works less than 30 calendar days after returning to work is
considered to have failed to return to work and must reimburse the County for
any premiums paid for maintaining coverage during any unpaid FMLA leave.
Department Heads are responsible for notifying Human Resources if an employee fails
to return to work.
Employees continue to accrue Vacation Leave and Sick Leave during FMLA.
Employees do not accrue Sick Leave during unpaid FMLA.
Any area or issue regarding family and medical leave which is not addressed in this
policy shall be subject to the basic requirements of the Federal Family and Medical
Leave Act (FMLA) and the regulations issued to implement the Act.
]ob Protection
An employee who returns to work on or before the working day following the
expiration of the authorized FMLA leave period is entitled to be restored:
^ To the position held when the leave began; or
^ To an equivalent position with equivalent employment benefits, pay,
and other terms and conditions of employment.
An employee who exhausts the authorize FMLA leave and fails to return to work may
be subject to discipline, including separation.
Employees who fraudulently obtain FMLA leave are not protected by FMLA and will
be subject to criminal action and possible termination.
Foreseeable Leave
If the need for FMLA leave is foreseeable, the employee must provide the Department
Head and in turn Human Resources notice at least 30 days before the leave begins.
Failure to give 30-days notice results in the denial of leave until 30-days notice is
provided.
Scheduling Foreseeable Leave Based on Planned Medical Treatment
If the need for leave is foreseeable based on planned medical treatment, the employee
must make a reasonable effort to schedule the treatment so it does not disrupt the
operations of the department, subject to the approval of the appropriate Health Care
Provider.
Unforeseeable Leave
If the medical treatment is unforeseeable, the employee must provide such notice as is
practicable -within 1 or 2 business days of when they learn of the need for leave.
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L i ° ~ ~ Revised 02-12-2009
Designation Procedures
Human Resources or an authorized representative always has the responsibility to
designate leave as FMLA qualifying based upon the information the employee provides.
The designation of qualifying absences as FMLA leave is not optional for either the
employer or the employee.
Employee Request for Leave
When an employee specifically requests FMLA leave or when an employee requests
leave for any reason that is or may be a Qualifying Event, Human Resources or an
authorized representative should have the employee complete an application for FMLA
and provide them with the FMLA Notice to Employee of Responsibilities and
Requirements promulgated by the Human Resources office. If the employee is not
able to complete the FMLA application, Human Resources or an authorized
representative must complete the form based on information the employee or their
spokesperson provides. Information provided is released only to those with a
legitimate need-to-know. Employees who do not provide sufficient information for
Human Resources to determine whether the absence(s) are protected under FMLA do
not receive the protections under the law.
Preliminary Designations
If a department has reason to believe that an Eligible Employee's absence is because of
a Qualifying Event, the department preliminarily designates the absence as FMLA leave
and send the employee to Human Resources to complete the FMLA Notice to Employee
of Responsibilities and Requirements informing the employee of the preliminary
designation and requiring them to submit the appropriate supporting documentation
in a timely manner to quality the leave as FMLA. If the leave is determined not to be
for a Qualifying Event, Human Resources or an authorized representative must remove
the preliminary designation.
If an eligible employee is absent from work for four (4) consecutive calendar days and
the supervisor is uncertain whether the absence is for a Qualifying Event, the
department preliminarily designates the 4th day and any further consecutive absences as
FMLA leave and the department must inform Human Resources. Human Resources
will send the appropriate FMLA forms to the employee. If the leave is determined to
be for a Qualifying Event, the preliminary designation becomes permanent If the
leave is determined not to be for a Qualifying Event, Human Resources must remove
the preliminary designation.
Workers' Compensation and FMLA
If an employee is eligible for FMLA leave and has a Workers' Compensation injury
that is a Serious Health Condition as defined in 4.07, the Department Head
simultaneously designates the Workers' Compensation absences as FMLA.
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~~ ° ~C' ~ Revised 02-12-2009
Unless the reason for the leave is obviously a Qualifying Event, the Department Head
or authorized representative must give an Eligible Employee an FMLA Certification of
Health Care Provider form prescribed by Human Resources within 2 working days.
The employee must return the completed certification form within 15 calendar days of
receiving it.
Human Resources may, with the employee's permission, request a Health Care
Provider representing the County to communicate with the employee's Health Care
Provider for purposes of clarifying or authenticating such medical certification. Contact
Human Resources for assistance in this matter.
Re-Certification While on Leave or for Intermittent Leave
Human Resources may ask for re-certification any time the original certification expires
or, if no specific expiration date is given on the original certification, at any reasonable
interval of at least 30 days so long as the employee has had an FMLA protected absence
during that interval. Human Resources may ask for re-certification at any time if:
^ The employee requests an extension of the leave; or
^ Circumstances described by the previous certification form have changed
significantly; or
^ The County receives information that casts doubt on the continuing validity of
the original certification.
Status While on Leave and Return to Dutv
Status Reports
An employee on FMLA leave must report his/her status and intent to return to work
to his/her department periodically. These periodic reports must be made at least once
every 2 weeks or in accordance with the schedule designated in the Notice to Employee of
Responsibilities and Requirements.
Fitness for Duty Certification
Before returning to work, an employee who uses continuous FMLA leave because of
their own Serious Health Condition must provide a doctor's statement or a completed
fitness-for-duty certification pertaining to the same condition(s) for which they used
FMLA leave. The certification must state that they are fit for duty and able to return to
work. If the employee is unable to perform all of the essential functions of their job,
they must provide as much advance notice as possible to Human Resources and their
Department Head of any restrictions or limitations on their abilities so the department
can determine whether a reasonable accommodation is appropriate.
Outside employment during FMLA leave is prohibited, unless the employee receives
prior written permission from their Department Head or Elected Official and a copy
is placed into their personal FMLA file located in Human Resources.
79
REQUEST FOR FAMILY AND MEDICAL LEAVE:
NOTICE OF ACKNOWLEDGEMENT OF FAMILY MEDICAL GUIDELINES
Employee's Name:
Job Title:
Department:
Approximate Date Leave Will Begin:
Expected Date of Return:
Family Member's Name (if applicable):
Relationship:
The following FMLA Leave policy for Kerr CountyT is based upon Federal Legislation.
Kerr County provides for a leave under the Family Medical Leave Act (FMI_.A) for eligible
employees and is obligated by federal law to do so when the situation warrants.
FMLA is intended to allow employees to balance their work and family life by taking
reasonable unpaid leave for a serious health condition, for the birth or adoption of a child,
and for the care of a child, spouse, or parent who has a serious health condition. The Act is
intended to balance the demands of the workplace with the needs of families, to promote
the stability and economic security of families, and to promote national interests in
preser~-ing family integrity.
1. I understand that the length of leave will not exceed 12 weeks, in total for either
this leave alone, or together with any other medical or family related leave(s) taken
within the twelve months prior to this leave request; and that this leave will be
counted towards my annual FMLr, entitlement.
2. If my family and medical leave is for purposes of a serious health condition that
makes me unable to perform the functions of my job or to care for my spouse, son,
daughter or parent who has a serious health condition, I understand that I will be
required to furnish Kerr County with a completed medical certification form
attesting to my need for assisting in the caring for the seriously-ill family member, or,
if the leave is for my own serious health condition, in order to verify the medical
necessity of such care and subsequent leave of absence. This form needs to be filled
out and completed no later than 15 days after the employee's request for leave (or as
soon as possible in the event of unforeseeable ailment(s)).
Failure to furnish Kerr County with a completed medical certification form
according to this policy may result in a denial of my request for family and medical
leave until the certification form is completed and submitted to the Human
Resources Office.
3. I understand that I shall utilize all my available earned sick, vacation, and personal
time concurrent as part of my FMLA leave.
Revised February 12, 2009
4. I understand that, while I am out on family and medical leave, I will be required
to continue to make health insurance premium payments pursuant to Kerr County's
health insurance policy as if I were still working for Kerr County (i.e. Spousal or
Dependents). I also understand that any personal or supplemental deductions from
my payroll are my responsibility and I will be required to make payments as if I were
still working for Kerr County=. Kerr County= will not make any payments towards my
personal deductions during my leave. I have made arrangements with the Human
Resource Office concerning these payments.
5. I understand that if my leave is for the purposes of the birth of a child or because
of my own serious health condition, I understand that I will be required to obtain a
medical certification from their health care provider to attest that I am fit to resume
work. This certification shall be limited to an evaluation of the particular health
condition that resulted in my need for FMI.A leave.
6. The Human Resources Office has notified me on whether or not I am to be
classified as a "key employee". If my employment position qualifies me as a "key
employee", I understand that my position may not be available upon my return from
leave if Kerr County determines that the restoration of my employment will cause
"substantial and grievous economic injury" to the operations of Kerr County= or
would cause long-term economic injury to Kerr County.
7. I may return to the same or similar position with no loss of employment benefits
or status, unless other employees of equal length of service credit and status in the
same or similar position have been laid off due to economic conditions or other
changes in operating condition affecting employment during such family and medical
leave.
8. If my leave of absence is for purposes of caring for a serious health condition of a
covered family member or if it is due to my own serious health condition, then I may
be required to obtain medical recertification's during the course of my leave from the
health care provider supersrising the treatment for such serious health condition
concerning the medical necessity for my leap=e and will also be required to report
periodically during the course of my leave on my status and my intent to return to
work.
9. I also understand that if I fail to return to work after taking FML.~~ leave, then I
will be required to reimburse Kerr County for any premium costs of any health
insurance coverage paid by Kerr County during the course of my leave unless the
reasons for my inability to return to work are due to a serious health condition
incurred by a family member or myself or due to other circumstances beyond my
control which prevent me from returning to work with Kerr County.
Employee Signature Date:
Human Resources Signature Date:
Revised February 12, 2009