State Employee FMLA and Federal FMLA

1. State Employee FMLA and Federal FMLA CSEA December 6, 2010 Heidi Lane Office of Program Policy Connecticut Department of Labor

2. There are 2 FMLA laws that you need to understand • State Employee FMLA – Section 5-248a et seq. of the Connecticut General Statutes • Federal FMLA • (There is a 3rd FMLA law, but it is for private sector employers with 75 or more employees)

3. This is an overview of those 2 laws. It is not intended as legal advice. If you have questions, you should contact either DAS (for State Employee FMLA) or USDOL (for federal FMLA)

4. State Employee FMLA Basic Employee Eligibility • To be eligible - must be “permanent employee” • “Permanent” does not include a newly hired employee in working test period • Temporary and durational employees are not eligible for State Employee FMLA

5. Federal FMLA Basis Employee Eligibility • The Employee must have: • Worked for the employer for at least 12 months prior to commencing FMLA leave • Worked at least 1,250 hours in the 12 months prior to commencing FMLA leave

6. FMLA eligibility • If an employee is not eligible to take State Employee FMLA leave (for example; not a permanent employee), then look to see if the employee is eligible under the Federal FMLA • If employee is not eligible to take the federal FMLA (for example; has only worked for the State for 10 months), then look to see if the employee is eligible under the State Employee law

7. State Employee FMLA Basic Provisions • 24-week entitlement every two years • An employee’s 24-week entitlement does not begin to run until after he or she has exhausted his or her sick leave entitlements • The two year period begins the first day of the leave • Ex.: If leave begins on February 5, 2009, the two year period begins on that date and ends on February 5, 2011

8. Federal FMLA Basic Provisions • For federal FMLA, 12 weeks every 12 months • The State, as an employer for federal FMLA purposes, uses the 12 months measured forward from the date the leave begins • Ex.: If leave begins on February 5, 2009, the 12 month period begins on that date and ends on February 5, 2010

9. If both you and your spouse work for the State of Connecticut and are eligible for federal FMLA leave, you may be limited to a combined total of 12 weeks of leave during any 12-month period, if the reason for the leave is the birth or adoption of a child, the placement of a foster child or to care for a parent who has a serious health condition • There is no spousal limitation under State Employee FMLA

10. Is Federal FMLA Paid or Unpaid? • Generally, federal FMLA leave is unpaid • An eligible employee may choose accrued paid leave to run concurrently with federal FMLA or the State as the employer may require employee’s accrued paid leave to run concurrently with FMLA leave • The State does require employees to use accrued sick leave for the employee’s own serious health condition under the federal FMLA

11. Is State Employee FMLA Paid or Unpaid? • Any leave under the State Employee FMLA shall be unpaid (However, vacation leave does count towards State Employee FMLA leave) • If you are taking a leave of absence in connection with your own serious illness or serious health condition, you are required to exhaust all accrued sick leave unless your labor contract states otherwise.

12. If you are eligible for State Employee FMLA, your State Employee FMLA will not start until after you exhaust all of your own accrued sick leave

13. Generally, federal FMLA is an unpaid leave • If you are eligible for federal FMLA leave, taking a leave for your own serious health condition, and getting paid for the time, the leave will run concurrently with the use of your accrued sick leave (and any other paid leave accruals you may choose to use) ∗ Donated sick time or benefits under a Sick Leave Bank will run concurrently with both your federal and/or state leave entitlement

14. If you are eligible for both State Employee FMLA and federal FMLA leave, generally the leaves will run concurrently • The use of accrued sick time, however, may affect when the leaves run concurrently • There are special rules regarding when Military Family leave runs concurrently with federal FMLA leave

15. Definitions • Parent - a biological, foster, adoptive or stepparent, or legal guardian of an eligible employee, or an individual who stood in loco parentis to an employee when the employee was a son or daughter (parent-in-law is not covered by either FMLA law)

16. Definitions • Son or daughter - a biological, adopted, foster child, stepchild, legal ward, or child of a person standing in loco parentis, who is • (A) under eighteen years of age; or • (B) eighteen years of age or older and incapable of self-care because of a mental or physical disability

17. Definitions • Incapable of self-care - requires active assistance or supervision to provide daily self-care in several of the “activities of daily living” or “instrumental activities of daily living”

18. Definitions • Spouse • Federal - husband or wife • State Employee FMLA - includes same sex marriage

19. State Employee FMLA - Serious Illness • An illness, injury, impairment or physical or mental condition that involves • (1) inpatient care in a hospital, hospice or residential care facility or • (2) continuing treatment or continuing supervision by a health care provider (This definition under the State Employee FMLA gives little guidance or explanation so refer to the federal FMLA definition of serious health condition for guidance)

20. SERIOUS HEALTH CONDITION An illness, injury, impairment, or physical or mental condition which involves: (1) Inpatient care and treatment therefor or recovery therefrom

21. SERIOUS HEALTH CONDITION (2) Continuing treatment by a health care provider with incapacity of more than 3 full consecutive calendar days, AND: • 2 or more treatments by a health care provider • (1st visit within 7 days of first day of incapacity and 2nd visit within 30 days of first day of incapacity) OR

22. SERIOUS HEALTH CONDITION (3) Continuing treatment by a health care provider with incapacity of more than 3 full consecutive calendar days, AND: • 1 treatment by a health care provider (within 7 days of the first day of incapacity) with a regimen of continuing treatment • regimen of continuing treatment includes prescription medication or physical therapy • incapacity means inability to work or go to school or perform other regular daily activities

23. SERIOUS HEALTH CONDITION (4) Any period of incapacity because of pregnancy or prenatal care • A doctor’s visit at the time of each absence is not required • Pregnancy Disability Act (Commission on Human Rights and Opportunities) In Connecticut, a pregnant employee is entitled to a “reasonable leave of absence for the period of disability resulting from pregnancy.”

24. SERIOUS HEALTH CONDITION (5) Chronic condition Any period of incapacity due to a chronic condition which : • Requires periodic visits for treatment (2 per year) • Continues over an extended period of time • May cause episodic rather than continuous incapacity, i.e., “intermittent leave” • A doctor’s visit at the time of each absence is not required • Examples - Asthma, Migraines

25. SERIOUS HEALTH CONDITION (6) Any period of incapacity for restorative surgery or for conditions that if left untreated would result in incapacity of more than three consecutive calendar days • Chemotherapy or radiation for cancer • Dialysis for kidney disease

26. SERIOUS HEALTH CONDITION (7) Any period of incapacity for a permanent or long term condition under the continuing supervision of a health care provider • Alzheimer’s, stroke

27. SUMMARY OF SERIOUS HEALTH CONDITION • Inpatient • Incapacitated more than 3 consecutive calendar days plus two HCP visits (1st within 7 days, 2nd within 30 days) • Incapacitated more than 3 consecutive calendar days plus one HCP visit (within 7 days) and regimen of treatment (prescription medicine, physical therapy, etc.) • Chronic • Pregnancy • Restorative surgery/illness left untreated • Long-term condition

28. What triggers the FMLA? • The birth of a child and the care for such child within the first year after birth; • The placement of a child with the employee for adoption or foster care and the care for the newly placed child (Foster care is not covered by the State Employee FMLA); • To care for a spouse, son, daughter or parent with a serious health condition; • Because of the employee’s own serious health condition; • To serve as an organ or bone marrow donor

29. Placement of Foster Child/Adoption • In the case of the placement of a foster child, you must provide a letter from the state establishing the placement date • In the case of adoption, you must provide a letter from the adoption agency establishing the date of the adoption

30. Initiating the Leave • When the need for leave is FORESEEABLE: • Typically 30 day advance request • When the need for leave is NOT FORESEEABLE: • Notify employer as soon as practicable

31. EMPLOYEE NOTICE • If the employee is calling in absent, he or she must give adequate information to indicate that the illness may be FMLA qualifying • “I am sick” is not sufficient • When employee calls in absent due to an already approved leave, employee must notify employer that the leave is due to previously qualifying FMLA reason

32. Request for Leave • Complete the Form FMLA-HR1 Employee Request for Leave of Absence under the federal FMLA and/or state FMLA - C.G.S. 5-248a

33. NEW FORMS • Notice of Eligibility and Rights and Responsibilities(Form FMLA-HR2a) • The employer must provide a notice detailing expectations and obligations, and explaining the consequences of failing to comply • Leave may count towards FMLA entitlement • Medical certification requirements • Right to substitute paid leave • Right to reinstatement

34. Medical Certification • Employer may request certification of the serious health condition by a health care provider • Employee must be given at least 15 days after receipt of the form from the employer to return the medical certification

35. Medical Certification Forms • Form P-33A-Employee – Medical certificate to be completed when the leave is employee’s own illness, including the disability portion of maternity leave • Form P-33B-Caregiver – Medical certificate to be completed when employee requests a leave to care for a child, spouse or parent with a serious health condition/serious illness • An employee may also be required to produce documentation demonstrating the required relationship between the employee and the family member

36. MEDICAL CERTIFICATION Cure If employer finds certification incomplete or insufficient: • Must give employee 7 days to cure an incomplete certification

37. MEDICAL CERTIFICATION • Incomplete - one or more of the entries have not been completed • Insufficient - the information provided is vague, ambiguous, or non-responsive

38. MEDICAL CERTIFICATION Authentication and Clarification • Employer personnel such as HR (not supervisor) may call HCP for authentication and clarification • If employee fails to give authorization (after opportunity to cure), then may be in jeopardy of being denied FMLA

39. MEDICAL CERTIFICATION • SECOND OPINION • Employee or the employee’s family member must release relevant medical information pertaining to the serious health condition to second opinion HCP • THIRD OPINION - binding

40. MEDICAL CERTIFICATION TRANSLATION • Employees must provide a translation for any medical certification in a foreign language

41. NEW FORM • Form FMLA-HR2b - Designation Notice • The employer must inform the employee whether the leave has been approved and designated as FMLA • Whether leave designated as qualifying • Requirements for substitution of paid leave • Requirements for fitness-for-duty • Amount of leave counted against entitlement

42. RECERTIFICATION • RULE – recertifications no more than every 30 days in conjunction with an absence • Employer may ask for recertification on a “reasonable basis” • Federal FMLA permits more frequent recertification in cases of fraud, significantly changed circumstances of the leave or in response to requests for extension of the leave

43. RECERTIFICATION The Employer has the right to request recertification if the employee has a pattern of taking Mondays and Fridays off

44. Fitness-for-Duty Certification • Employer can require employee to provide a “fitness-for-duty” certification upon return from continuous absence due to employee’s own serious health condition • Federal FMLA allows employers to seek a more detailed fitness-for-duty certification addressing whether the employee can perform essential functions

45. Fitness-for-Duty Certification • Federal – allows employer to require “fitness for duty” note every 30 days for employee on intermittent leave in conjunction with an absence • Must be “reasonable safety concerns” regarding employee’s ability to perform job

46. Confidentiality of Health Records • Records and documents relating to medical information created for the FMLA shall be maintained as separate, confidential medical records

47. Federal FMLA Intermittent Leave • Federal FMLA leave may be taken intermittently or on a reduced leave schedule under certain circumstances • When medically necessary for planned and/or unanticipated medical treatment or for recovery from treatment or recovery from a serious health condition or for the care and comfort of a family member or for absences where employee or family member is incapacitated

48. NO INTERMITTENT LEAVE UNDER THE STATE EMPLOYEE FMLA THERE IS NO INTERMITTENT LEAVE UNDER THE STATE EMPLOYEE FMLA If an employee needs intermittent leave, he or she must qualify as an eligible employee under the federal FMLA

49. Scheduling of Intermittent Leave Under the federal FMLA • If an employee needs leave intermittently or on a reduced leave schedule for planned medical treatment, then the employee must make a reasonable effort to schedule the treatment so as not to disrupt unduly the employer’s operations

50. Transfer • If an employee needs intermittent leave or leave on a reduced leave schedule that is foreseeable based on planned medical treatment the employer may require the employee to transfer temporarily, during the period that the intermittent or reduced leave schedule is required, to an available alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee’s regular position • The alternative position must have equivalent pay and benefits but does not have to have equivalent duties