3430.01 - FAMILY AND MEDICAL LEAVE

Genesee Intermediate School District

Bylaws & Policies

3430.01 - FAMILY AND MEDICAL LEAVE
Purpose

Basic Leave Entitlement. The Genesee Intermediate School District Family and Medical Leave Policy allows eligible employees to take up to twelve (12) work weeks of unpaid leave per year for their own serious health condition, childbirth, or to provide care for the employee’s newborn child, newly-adopted child, newly-placed foster child, or a child, parent or spouse with a serious health condition. Further, certain eligible employees may receive up to twelve (12) work weeks of unpaid leave for military exigencies, and up to a total of 26 work weeks of unpaid leave to care for a covered military service member.

Additional information and forms relating to Family and Medical Leaves are available from Human Resources and Operations. Hereinafter, this policy refers to the Genesee Intermediate School District as "District" and to the Family and Medical Leave Act or policy as "FMLA."

Effect of Collective Bargaining Agreement(s)

All provisions of this policy shall prevail except as modified by, or as may be inconsistent with, applicable collective bargaining agreements. To the extent that this policy conflicts with the terms of the collective bargaining agreements, the agreements shall prevail to the extent of such conflict or inconsistency where the contract provides greater rights to the employee than are otherwise secured through the FMLA.

Definitions

A.	Determination of Leave Year. The District uses the following methods for determining the twelve (12) month period for non-military related leave:

	1.	The twelve (12) month rolling period is calculated backwards from the date the requested leave commences. This method determines FMLA leave entitlement based upon how much FMLA leave an employee has taken the preceding twelve (12) months, measured backwards from the date the leave is to commence; or

	2.	A fixed twelve (12) month leave year (e.g., the previous full fiscal year).

	For Military Caregiver Leave, the leave period begins the first day the leave begins, regardless of past non-military leave taken and regardless of the leave period for other FMLA qualifying leave.

B.	Spouse means a husband or wife, but does not include unmarried domestic partners. If both spouses work for the District, their total leave in any twelve (12) month period may be limited to an aggregate of twelve (12) weeks if the leave is taken for either the birth or placement for adoption or foster care of a child or to care for a sick parent.

	The aggregated amount of leave in a twelve (12) month period is twenty-six (26) weeks in situations where the leave is based on the care for a covered service member.

C.	Parent means biological, adoptive, step or foster parent, or any other individual who stood in loco parentis to the employee when the employee was a child. A parent-in-law does not meet this definition.

D.	Child means a son or daughter under age eighteen (18) or eighteen (18) years or older who is incapable of self-care due to mental or physical disability. Employees who are in loco parentis include those with day-to-day responsibility for care and financially support the child. A biological or legal relationship is not necessary in this case.

E.	Next of Kin of a Covered Service Member means the nearest blood relative other than a spouse, parent, son, or daughter, in the following order: blood relatives who have been granted legal custody of the covered service member by court decree or statutory provision, brother and sister, grandparent, aunt and uncle, and first cousin, unless the covered service member designated in writing another blood family member as his/her nearest blood relative for purposes of military caregiver leave.

F.	Military Family Leave means either "Military Caregiver Leave" or "Qualifying Exigency Leave" as set forth below:

	1.	Military Caregiver Leave. An eligible employee may take up to twenty-six (26) weeks of leave to care for a covered service member during a single twelve (12) month period. The covered service member must be a current member of the Armed Forces, which includes membership in the National Guard or Reserves. The covered service member must have sustained the serious injury or illness in the line of duty while on active duty which may render the service member medically unfit to perform his/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 retired list.

	2.	Qualifying Exigency Leave. An eligible employee with a spouse, son, daughter, or parent on covered active duty in the United States Armed Forces or called to covered active duty status in the National Guard or Reserves in support of a contingency operation may also use their twelve (12) leave entitlement to address certain qualifying exigencies. Covered active duty means deployment with the Armed Forces to a foreign country. The Department of Labor defines qualifying exigencies as:

		a.	short-notice deployment (up to seven (7) days from date of notification),

		b.	military events and related activities,

		c.	child care and school activities,

		d.	financial and legal arrangements,

		e.	counseling,

		f.	rest and recuperation (up to five (5) days for each instance),

		g.	post-deployment activities occurring within ninety (90) days following the termination of active duty status, and

		h.	additional activities arising from the service member's active duty or call to active duty not encompassed in the other categories, but agreed to by the employer and employee.

G.	Serious Health Condition means an illness, injury, impairment, or physical or mental condition that involves:

	1.	inpatient care (an overnight stay);

	2.	a period of incapacity from work requiring continuing treatment by a healthcare provider;

		Continuing treatment by a healthcare provider must involve a period of incapacity of more than three (3) *full* consecutive calendar days (including subsequent treatments or periods of incapacity relating to the same condition) that also involves either:

		a.	treatment of two (2) or more times within thirty (30) days of the first day of incapacity by a healthcare provider; or

		b.	treatment on at least one (1) occasion by a healthcare provider which results in a regimen of continuing treatment under the supervision of a healthcare provider (e.g., a course of prescription drugs, physical therapy). The first (or only) in-person treatment visit to the healthcare provider must occur within seven (7) days of the first day of incapacity.

	3.	a period of incapacity from work due to pregnancy or for prenatal care;

	4.	a period of incapacity from work requiring treatment for chronic or permanent/long-term conditions (e.g., asthma, diabetes, epilepsy, cancer); or

	5.	a period of absence to receive multiple treatments by a healthcare provider for a non-chronic condition that, if left untreated, could result in a period of incapacity of more than three (3) consecutive calendar days (e.g., dialysis for kidney disease or chemotherapy for cancer).

	Unless complications arise, the common cold, flu, upset stomach, headache, routine dental problems and cosmetic treatments do not meet the definition of serious health condition

H.	Instructional Employee means a person whose principle function is to teach and instruct students in a class, a small group or an individual setting. This term includes teachers or ancillary personnel principally engaged in direct delivery of instruction (e.g., signers for hearing impaired, speech and language instructors, occupational therapists, physical therapists, adaptive physical education teachers). This definition *does not include* ancillary personnel working as counselors, teacher assistants, aides, psychologists, social workers, and non-instructional support personnel.

I.	District means the Genesee Intermediate School District. This policy has been adopted by the Board of Education and shall be implemented by the Superintendent/designee.

General

	A.	Eligibility. An employee who has worked at least 1,250 hours during the twelve (12) month period before commencement of the leave is eligible for FMLA leave after having completed at least twelve (12) months of service, including previous service with the District up to seven (7) years before commencement of the leave. Instructional employees will not be eligible if it is clearly demonstrated that the employee did not work the requisite hours during the twelve (12) month period, unless otherwise provided by a collective bargaining agreement.

B.	Eligible employees may use FMLA leave for one (1) or more of the following reasons:

	1.	the birth of a child and care for a newborn;

	2.	the care for a newly-adopted child or child recently placed in an employee’s home for foster care;

	3.	to care for a spouse, child (who is less than age eighteen (18), or eighteen (18) but incapable of self-care) or a parent (but not parent-in-law) who has a serious health condition;

	4.	an employee’s own serious health condition that makes the employee unable to perform one (1) or more of the essential functions of his/her job; or

	5.	to address certain qualifying exigencies or care giving associated with a covered service member. The employee may be required to provide information supporting the need for military family leave.

C.	An eligible employee may take up to twelve (12) weeks of unpaid leave during any twelve (12) month period for a purpose which qualifies for a leave under the FMLA policy. As identified under Definitions F. 1. above, an eligible employee may take up to twenty-six (26) weeks Military Caregiver Leave measured from the first day the military-related leave commences during a single twelve (12) month period.

	An eligible part-time employee is entitled to leave on a pro-rata basis.

	If spouses are both employed by the District and both are eligible for FMLA leave, spouses may take up to a combined total of twelve (12) weeks of leave for the birth and care of a newborn child, the placement of a child in the spouse’s home for adoption or foster care, or the care of a seriously ill parent. This limitation does not apply to the care of a spouse or child with a serious health condition or to the employee’s own serious health condition. For example, if spouses each take four (4) weeks to care for a newborn child, each spouse will have eight (8) weeks remaining within the twelve (12) month period to use for other kinds of FMLA leaves, if necessary.

Family leave to care for a newborn child or for adoption or foster care placement of a child must be completed within twelve (12) months of the birth, adoption, or placement of the child.

Notice

A.	Notice by Employee. The employee shall give notice for FMLA leave according to the following:

	1.	When the need for FMLA is foreseeable (i.e., for birth of a child, adoption, foster placement, or planned medical treatment for yourself or a family member or to care for a covered service member) thirty (30) days notice is required. If the employee fails to give thirty (30) days notice with no reasonable excuse, the District reserves the right to delay the employee’s FMLA leave until at least thirty (30) days after the leave request is made.

	2.	When the need for FMLA leave is unexpected, absent unusual circumstances, the employee must provide notice to the District either the same business day or the next business day after the employee learns of the need for the FMLA leave.

	With respect to both foreseeable and unexpected leave, employees must comply with District policies, work rules, collective bargaining provisions, and customary time off or call-in notice procedures.

	At the time of requesting leave from work, the employee is required to complete District-approved forms for leave utilization. The District will provide a copy of this policy and District-approved forms which advises the employee of his/her FMLA rights and responsibilities. When any leave from work is requested, the District will inquire about the circumstances to determine if the requested leave appears to qualify as FMLA leave. Any leave request determined by the District to qualify as FMLA leave will be credited against the employee’s FMLA leave for the twelve (12) month period described under Definitions A. above of this policy.

District Notification of FMLA Leave. After Human Resources and Operations determine that the leave request qualifies for FMLA leave, the request will be submitted to the Board for approval. Those leaves deemed by Human Resources and Operations to be ineligible will be denied, and the employee will be notified within five (5) business days barring any extenuating circumstances.

Substitution of Paid Leave Time

If paid leave is available and utilized, it shall run concurrently with the FMLA leave, unless otherwise specified by a collective bargaining agreement or individual employment contract.

Medical Certification

	A.	If an employee requests FMLA leave due to a serious health condition or to care for a parent, child, or spouse with a serious health condition, or to attend to specific matters concerning a covered service member, the employee will be required to provide medical certification from a healthcare provider of the serious health condition involved and, if applicable, verification that the employee is needed to care for the ill family member and for how long.

	B.	The employee will be required to provide supporting information concerning military family leave. Forms for this purpose will be provided by Human Resources and Operations when the employee notifies the District of the need for the leave. Employees must provide the requested medical certification within fifteen (15) days of being supplied with the necessary certification form from Human Resources and Operations or a request for FMLA leave may be delayed or denied.

C.	After an employee submits the required medical certification, the District may require (at its option and expense) that a medical certification be obtained from a healthcare provider of the District’s own choosing to verify the need for the requested FMLA leave. If the first and second certifications differ, the District may require (at its option and expense) that a third certification by a specialist mutually acceptable by both parties be obtained. The third medical certification will be final and binding on both parties. If the employee refuses to be examined by the third healthcare provider or refuses to cooperate in the examination, the employee will be bound by the second certification.

D.	The District may request medical re-certification for leave taken because of an employee's own serious medical condition or the serious medical condition of a family member. Re-certification may be requested pursuant to the following:

	1.	The District may request re-certification no more often than every thirty (30) days and only in connection with the absence by the employee, unless paragraphs b. or c. below apply.

	2.	If the initial medical certification indicates that the minimum duration of the condition is more than thirty (30) days, the District will wait until the minimum duration expires or six (6) months, whichever is less, before requesting a re-certification, unless paragraph c. applies.

	3.	The District may request re-certification in less than thirty (30) days if:

		a.	an employee requests an extension of leave;

		b.	circumstances described by the previous certification have changed significantly; or

		c.	the District receives information that casts doubt upon the employee's stated reason for the absence or the continuing validity of the certification.

The employee must provide the requested re-certification to Human Resources and Operations using the District certification form within fifteen (15) calendar days unless it is not practicable under the particular circumstances to do so despite the employee's diligent good faith efforts. The District may ask for the same information as that permitted for the original certification. The employee has the same obligations to participate and cooperate in the re-certification process as in the initial certification process. Any re-certification requested by the employer shall be at the employee's expense unless the District provides otherwise (e.g., District policy or collective bargaining agreement).

Intermittent or Reduced Schedule Leave

	A.	An intermittent and/or reduced schedule leave may be available for an eligible employee to attend to a serious health condition requiring periodic treatment by a healthcare provider, or because the employee (or family member) is incapacitated due to a chronic serious health condition. An employee on leave due to the birth of a child (unless a serious health condition is involved) or leave for care of an adopted, foster, or newborn child is not eligible for intermittent leave.

	B.	If an employee requests an intermittent or reduced schedule leave, the District will require the employee to explain why the intermittent or reduced schedule leave is necessary. An employee must meet with the District and attempt to work out a leave schedule which meets the employee’s needs for leave without unduly disrupting the District’s operations. Whenever possible, the employee should meet with the District before treatment is scheduled. If the meeting takes place after treatment has been scheduled, the District may, in certain instances, require an employee to attempt to reschedule treatment.

C.	If an eligible instructional employee requests an intermittent or reduced schedule leave to care for a family member having a serious health condition, or for the employee’s own serious health condition, which is foreseeable based on planned medical treatment, and the instructional employee would be on leave for more than twenty percent (20%) of the total number of working days over the leave, the District may require the instructional employee to choose either to:

	1.	take leave for a period or periods of a particular duration, not greater than the duration of the planned treatment; or

	2.	transfer temporarily to an available alternative position for which the instructional employee is qualified, which has equivalent pay and benefits and which better accommodates recurring leave periods than does the instructional employee’s regular assignment.

Benefits

	A.	During the period of an approved FMLA leave, the District will continue the employee's health insurance premium uninterrupted.

	B.	If the employee makes a contribution toward coverage, the employee must make arrangements to continue his/her contributions during the leave to continue the basic health insurance coverage at its existing level. An employee's failure to pay his/her share of health insurance premium during FMLA leave may result in loss of coverage if the employee’s contribution is more than thirty (30) days late. If the employee’s premiums are in arrears, the District will provide the employee at least fifteen (15) days written notice that coverage will be dropped prior to canceling coverage. Employee contributions will be required either through payroll deduction (if the employee is working a reduced schedule or utilizing paid leave time) or by direct payment to the District. The employee will be advised in writing at the beginning of the leave as to the amount and method of payment. Employee contribution amounts are subject to any change in premium rates that occur while the employee is on leave.

C.	If the District pays any employee premium contributions in arrears from the employee while on FMLA leave, the employee will be required to reimburse the District for delinquent payments (through authorized payroll deduction or otherwise) upon return from leave. If the employee fails to return from unpaid leave for reasons other than the continuation, recurrence or onset of a serious health condition of the employee or a covered family member, or circumstances beyond the employee’s control, the District may seek reimbursement from the employee for the portion of the premiums paid by the District on behalf of that employee (employee contribution) during the leave period, excluding the period where the District or the employee has substituted paid leave for FMLA leave.

D.	Except as required under bargaining unit agreements and the Consolidated Omnibus Budget Reconciliation Act (COBRA), the District's obligation to maintain health benefit premium contributions for an employee on FMLA leave ceases when:

	1.	the employment relationship would have terminated, irrespective of the FMLA leave (e.g., reduction in force);

	2.	when the employee advises the District of his/her intent not to return from leave; or

	3.	when the FMLA leave expires and the employee has not returned from leave.

E.	An employee is not entitled to seniority or benefits accrual (e.g., sick, vacation, personal business) during the unpaid leave, unless otherwise specified by the collective bargaining agreement or individual employment contract. An employee who takes FMLA leave will not lose any seniority or employment benefits that accrued before the beginning date of the leave.

Disability Plans and FMLA Leave:

	A.	Worker's Compensation Leave. If the employee has a work-related illness or injury that qualifies as a serious health condition under this policy, leave from the job for which the employee receives worker's compensation payments will be considered FMLA leave. Employees may coordinate accumulated sick/vacation time with worker's compensation benefits.

	B.	Disability Leave. Any employer-sponsored disability plan leave will be considered as FMLA leave. Employees may coordinate accumulated sick/vacation time with disability benefits.

Return to Work

	A.	Upon conclusion of FMLA leave, an employee will be returned to the same or an equivalent position with respect to pay, benefits and other terms and conditions of employment, and the collective bargaining agreements, provided the position remains.

	B.	If an instructional employee (i.e., a person whose principle function is to teach and instruct students in a class, a small group or an individual setting) begins FMLA leave more than five (5) weeks before the end of a semester, the District may require that the leave be taken until the conclusion of the semester if the leave is to last at least three (3) weeks and the instructional employee would return to work during the three (3) week period before the conclusion of the semester.

		If an instructional employee begins FMLA leave (other than for the instructional employee’s own serious health condition) during the five (5) week period before the end of a semester, the District may require that leave be taken until the end of the semester if the instructional employee would return to work during the two (2) week period immediately before the end of the semester and if the leave period is to last more than two (2) weeks.

		If an instructional employee begins FMLA leave (other than for the instructional employee’s own serious health condition) during the three (3) week period before the end of a semester and the leave will last more than five (5) working days, the District may require the instructional employee to take leave until the end of the semester.

Fitness-for-Duty Certification: An employee shall submit a written statement from a physician which addresses the employee's ability to return to work and perform the essential functions of the position, consistent with District policy or collective bargaining agreements. In the case of intermittent or reduced schedule leave, where reasonable job safety concerns exist, the District may require the employee to provide a fitness-for-duty certification up to once every thirty (30) days before s/he may return to work.

Key Employees

	A.	Definition. A key employee is an administrator, supervisor, or bargaining unit FMLA-eligible employee who is among the highest paid ten percent (10%) of District employees.

	B.	Job Restoration. While the District will not deny FMLA leave to an eligible key employee, the District may deny job restoration to a key employee (unless covered by a collective bargaining agreement) when the restoration to employment will cause the District substantial and grievous economic injury or substantial, long-term economic injury.

	C.	Qualifications. Each employee who is designated as a key employee will be notified of that fact when s/he requests FMLA leave, or at the commencement of such leave, whichever occurs first; or if the notice cannot be given then because of the need to determine whether the employee is a key employee, as soon thereafter as practical.

		In any situation in which the District determines that it will deny restoration or employment to a key employee, the District will issue a hand-delivered or certified letter to the key employee explaining the finding that the required injury to the District exists. Additionally, the District will inform the key employee of the potential consequences with respect to reinstatement and maintenance of health benefits (unless covered by a collective bargaining agreement) should employment restoration be denied.

	D.	Timelines. If a key employee does not return to work in response to the District’s notification of its decision to deny restoration of employment, the District will continue to provide the key employee with health benefits (to the extent of the FMLA leave period) and the District will not seek to recover its cost of health benefit premiums. A key employee’s FMLA rights will continue until the employee gives notice that s/he no longer wishes to return to work or until the District denies reinstatement at the end of the leave. The key employee has the right, at the end of the FMLA leave, to request reinstatement and the District will reevaluate the extent of its injury due the requested reinstatement based on the facts at that time.

		If the District again determines that the reinstatement will still cause the injury, the key employee will be notified in writing by hand-delivered or certified letter of the denial of his/her reinstatement to employment. If the District finds that reinstatement will not result in the required injury, the key employee will be granted reinstatement.

Request for Extension of Leave and Failure to Return

An employee who requests an extension of an approved leave due to the continuation, recurrence or onset of his/her own serious health condition, or of the serious health condition of the employee’s spouse, child, or parent, must submit a written request for an extension in writing, to the employee’s immediate supervisor. This written request should be made as soon as the employee realizes that s/he will not be able to return at the expiration of the leave period. Medical certification or re-certification will be required to support any request for leave extension. An employee's failure to return to work upon expiration of FMLA leave will subject the employee to termination unless an extension is granted, as required by law or under a collective bargaining agreement.

Forms

The following forms, where applicable, must be filed with Human Resources and Operations in accordance with Board policy and administrative guidelines:

	WH-380-E Certification of Health Care Provider for Employee's Serious Health Condition

	WH-380-F Certification of Health Care Provider for Family Member's Serious Health Condition

	WH-381 Notice of Eligibility and Rights & Responsibilities

	WH-384 Certification of Qualifying Exigency for Military Family Leave

	WH-385 Certification for Serious Injury or Illness of Covered Service Member for Military Family Leave

Legal Authority: Family and Medical Leave Act of 1993, P.L. 103-3;
National Defense Authorization Act for FY 2008, P.L. 110-118
P.L. 111-84, Sec. 565 – National Defense Authorization Act (October 28, 2009)

Revised 10/12/04
Revised 6/24/08
Revised 7/13/09
Revised 12/14/10