4430.01 - FAMILY & MEDICAL LEAVES OF ABSENCE ("FMLA")

Lakewood City Schools

Bylaws & Policies

4430.01 - FAMILY & MEDICAL LEAVES OF ABSENCE ("FMLA")
Eligibility

An eligible employee may take up to twelve (12) work weeks of unpaid ("FMLA leave") in any school year (August 1 through July 31) for one (1) or more of the following circumstances:

		1.	the birth of an employee’s child to care for the child up to age one (1);
		2.	the placement of a child with an employee for adoption or foster care, up to a twelve (12) month period after the placement;
		3.	to care for the spouse, child, or parent of an employee when that family member has a serious health condition;
		4.	the employee’s inability to perform the functions of the position because of the employee’s own serious health condition.

To be eligible for FMLA Leave, the employee must:

		1.	have been working for the Board for at least twelve (12) months before the leave request (these do not need to be consecutive months); and
		2.	have worked at least one thousand two hundred fifty (1,250) hours during the twelve (12) month period preceding the FMLA leave.

Serious Health Condition - Defined

"Serious health condition" means an illness, injury, impairment, or physical or mental condition that involves:

		1.	Inpatient care, (i.e., an overnight stay) in a hospital, hospice or residential medical care facility including any period of incapacity (defined to mean inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment, therefore, or recovery therefrom), or any subsequent treatment in connection with such inpatient care.
		2.	Continuing treatment by a health care provider. A serious health condition involving continuing treatment by a health care provider includes any one (1) or more of the following:

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 by a provider of health care services;
				2)	Treatment by a health care provider on at least one (1) occasion which 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 which:

				1)	Requires periodic visits for treatment by a health care provider, or by a nurse or physician’s assistant under direct supervision of a health care provider;
				2)	Continues over an extended period of time (including recurring episodes of a single underlying condition); and
				3)	May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).

			d.	a period of incapacity which 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 the terminal stages of a disease.)
			e.	any period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider or 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 of incapacity of more than three (3) consecutive calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), kidney disease (dialysis).

		3.	Treatment for purposes of paragraph 1 of this section includes (but is not limited to) examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations. A regimen of continuing treatment includes, for example, a course of prescription medication or therapy requiring special equipment to resolve or alleviate the health condition (e.g., oxygen). A regimen of continuing treatment that includes the taking of over-the-counter medications (e.g., aspirin), or bed-rest, drinking fluids, exercise and other similar activities that can be initiated without a visit to a health care provider, is not, by itself, sufficient to constitute a regimen of continuing treatment for purposes of FMLA leave.
		4.	Conditions for which cosmetic treatments are administered are not "serious health conditions" unless inpatient hospital care is required or complications develop. Restorative dental or plastic surgery after an injury or removal of cancerous growths are serious health conditions provided all the other conditions of this section are met. Mental illness resulting from stress or allergies may be serious health conditions, but only if all the conditions of this section are met.
		5.	Substance abuse may be a serious health condition if the conditions of this section are met. However, FMLA leave may only be taken for treatment for substance abuse by a health care provider or by a provider of health care services on referral by a health care provider. Absence because of the employee’s use of the substance, rather than for treatment, does not qualify for FMLA leave.
		6.	Absences attributable to incapacity under paragraphs A 1 2(b) and (c) qualify for FMLA leave even though the employee or the immediate family member does not receive treatment from a health care provider during the absence, and even if the absences do not last more than three (3) days. (Examples: an employee with asthma may be unable to report for work due to the onset of an asthma attack or because the employee’s health care provider has advised the employee to stay home when the pollen count exceeds a certain level; a pregnant employee may be unable to report to work because of severe morning sickness.)

"Health care provider" is defined as:

	A.	A doctor of medicine or osteopathy who is authorized to practice medicine or surgery by the State in which the doctor practices; or
	B.	Podiatrist, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice in the State and performing within the scope of their practice as defined under State law; and
	C.	Nurse practitioners and nurse-midwives who are authorized to practice under State law and who are performing within the scope of their practice as defined under State law; and
	D.	Christian Service practitioners listed with the First Church of Christ Scientist in Boston, Massachusetts.

Voluntary or cosmetic treatments (such as most treatments for orthodontia or acne) which are not medically necessary are not "serious health conditions", unless inpatient hospital care is required. Treatments for allergies or stress, or for substance abuse, are serious health conditions if all the conditions of the regulation are met. Prenatal care is included as a serious health condition. Routine preventive physical examinations are excluded.

In cases in which the Board employs both husband and wife, the total amount of FMLA leave for the couple for the birth or placement of a child or to care for an ill parent (not "parent-in-law") is limited to a total of twelve (12) weeks. Where the husband and wife both use a portion of the total twelve (12) week FMLA leave entitlement for one (1) of the reasons in this paragraph, the husband and wife would each be entitled to the difference between the amount s/he has taken individually under this paragraph and twelve (12) weeks for FMLA leave for a purpose other than those contained in this paragraph.

FMLA does not limit or enlarge entitlement to paid or unpaid leave for which an employee is otherwise eligible under the Agreement.

Notice – Forms M, N, O and P

	A.	The employee shall provide the Director of Personnel with no fewer than thirty (30) days prior written notice to take unpaid FMLA leave for the birth or placement of a child when the employee’s need for leave is foreseeable.
	B.	Whenever unpaid FMLA leave is necessitated by the serious health condition of the employee of his/her family member and is foreseeable based upon planned medical treatment, the employee shall provide the Director of Personnel with no fewer than thirty (30) days prior written certification (Appendix/FMLA Form M or Form N) issued by a health care provider to support his/her request for leave. If an employee requires intermittent leave or a reduced work schedule as set forth below, the employee shall provide the Director of Personnel with no fewer than thirty (30) days prior written certification (Appendix/FMLA Form O) if the need for leave is foreseeable.
	C.	If the employee’s need for leave is not foreseeable, notice must be given as soon as possible and practical, taking into account all of the facts and circumstances in the individual case. It is expected that an employee will give notice to the Director of Personnel within one (1) or two (2) working days of learning of the need for leave, except in extraordinary circumstances. The employee should provide notice to the Director of Personnel either in person or by phone, telegraph, facsimile ("fax") machine or other electronic means. Notice may be given by the employee’s representative (e.g., a spouse, family member, or other responsible party) if the employee is unable to do so personally.

Calculation of Total Unpaid/Paid FMLA Leave

	A.	The Board shall require that paid sick leave taken under Article 8 of the Agreement shall be counted as FMLA leave if (1) the reasons for taking it qualify as FMLA reasons and (2) if the employee had been notified by the Director of Personnel while on paid leave that this leave would be counted as FMLA leave.
	B.	Where an employee has earned paid essential business leave days, the paid leave shall be substituted, at the employee’s request, for all or part of any unpaid FMLA leave relating to both placement of a child for adoption or foster care or to care for an employee’s own serious health condition or that of a family member.
	C.	Where an employee has earned paid sick leave days, this paid leave shall be substituted to care for a family member or for the employee’s own serious health condition. However, no more than twenty-five (25) days of sick leave and four (4)/five (5) days as appropriate for essential business leave shall be substituted to care for a family member.
	D.	When an employee has been on sick leave for three (3) or more days, if the employee is notified by the Board that said sick leave days qualify as FMLA leave and if the employee does not believe s/he meets the criteria of a serious health condition, the employee must notify the Director of Personnel within fifteen (15) days of receiving the notice and shall explain why his/her sick leave use does not meet the criteria of a serious health condition. Unless the employee again hears from the Director of Personnel on this specific situation, the Director of Personnel will correct the personnel files to reflect that said sick leave use shall not also be considered to be FMLA leave. If the employee does not notify the Director of Personnel within fifteen (15) days, the correction will not be made.
	E.	When an employee uses essential business leave days, if the employee is notified that said essential business leave days qualify as FMLA leave and if the employee does not believe s/he meets the FMLA criteria, the employee must notify the Director of Personnel within fifteen (15) days of receiving the notice and shall explain why his/her essential business leave use does not meet the criteria of FMLA leave. Unless the employee again hears from the Director of Personnel on this specific situation, the Director of Personnel will correct the personnel files to reflect that said essential business leave use shall not also be considered to be FMLA leave. If the employee does not notify the Director of Personnel within fifteen (15) days, the correction will not be made.

Intermittent Leave and Reduced-Work Schedule

	A.	Intermittent leave means leave taken in separate periods of time due to a single illness or injury, rather than for one (1) continuous period of time, and may include leave of periods from an hour or more to several weeks. Examples of intermittent leave would include leave taken on an occasional basis for medical appointments, or leave taken several days at a time spread over a period of six (6) months, such as chemotherapy.
	B.	When medically necessary, an employee may take intermittent FMLA leave or a reduced-work schedule to care for a spouse, child, or parent who has a serious health condition, or if the employee has a serious health condition. The employee shall make reasonable efforts to schedule treatment so as not to unduly disrupt the regular operations of the Board.
	C.	Where FMLA leave is taken because of birth or placement for adoption or foster care, an employee may take leave intermittently or on a reduced leave schedule only if the Board agrees.

Medical Opinion

For unpaid FMLA leave the Board retains the right, at its own expense, to require the employee to obtain the opinion of a second health care provider designated by the Board. If the second opinion is in conflict with the first, the Board may request, at the Board’s expense, the employee to see a mutually agreed upon health care provider to give a final and binding opinion regarding eligibility for unpaid FMLA leave. The employee and Board must each act in good faith to attempt to reach agreement on whom to select for the third opinion provider. If the Board does not attempt in good faith to reach agreement, the Board will be bound by the first certification. If the employee does not attempt in good faith to reach agreement, the employee will be bound by the second certification.

Benefits

The Board shall maintain coverage under the group health plan for the duration of the unpaid FMLA leave at the level and under the conditions that would have been provided if the employee had continued to work and not taken leave. These group health plans include hospitalization, major medical, dental, prescription drug, and vision. The employee may opt to continue the life insurance coverage, but payment of the life insurance premium will be at the employee’s own expense. Payment of the employee’s required contribution toward the premium (if any) is due the first day of each month. Failure to make payment within thirty (30) days will result in termination of coverage during the unpaid FMLA leave. The employee shall not accrue seniority, sick leave or any other employment benefits during the unpaid FMLA leave.

Return to Work

	A.	When an employee is medically able to return to work after a serious health condition for unpaid FMLA leave, s/he shall provide the Board with a statement from his/her health care provider (Appendix/FMLA Form P) that the employee is able to resume the job functions for his/her position.
	B.	At the end of the unpaid FMLA leave, the Board shall restore the employee to the same or equivalent position with equal benefits, pay and other terms and conditions of employment.
	C.	Should an employee not return to work at the end of the unpaid FMLA leave or contractual leave that is adjacent to the FMLA leave for reasons other than the continuation, recurrence, or onset of the serious health condition that gave rise to the leave or for circumstances beyond the employee’s control, the employee shall reimburse the Board for the health insurance premiums paid by the Board during the unpaid FMLA leave period. An employee shall be required to support his/her claim of inability to return to work because of the continuation, recurrence, or onset of the serious health condition. Certification (Appendix/FMLA Form M) from the employee’s health care provider shall be provided in a timely manner, and no later than thirty (30) days after the claimed inability to return. If this certification is not provided in a timely manner, the Board may recover the health benefit premiums it paid during the period of unpaid FMLA leave.

Inconsistencies Between the Agreement and FMLA

All terms which are not defined in Section 8.8 of the Agreement shall have the same meaning as those terms defined in the Family and Medical Leave Act of 1993. If there are any inconsistencies between Section 8.8 of the Agreement and the Family and Medical Leave Act of 1993, the Family and Medical Leave Act of 1993 shall prevail.

29 U.S.C. 2601 et seq.
29 C.F.R. Part 825
45 C.F.R. Part 160, 164