| 1.0 |
SUBJECT:
FMLA Guidelines for the State of Kansas |
|
|
| 2.0 |
EFFECTIVE DATE:
April 5, 2009 |
|
|
| 3.0 |
DISTRIBUTION:
State HR Directors |
|
|
| 4.0 |
FROM: George
Vega, Director DATE: March 25, 2009 |
|
|
| 5.0 |
PURPOSE:
This Bulletin is being issued to update and replace Bulletin 05-06
due to changes and clarifications in the Amended Family Medical
Leave Act, effective January 16, 2009. Bulletin 05-06 is hereby
revoked.
|
| 6.0
| BACKGROUND:
|
|
Bulletin 09-03 sets out the statewide policy with respect
to the FMLA. That policy had formerly been set out in regulation but
at the suggestion of a team of state human resource personnel, the
FMLA policy had been transferred to a Bulletin since the basic protections
and rights afforded by the FMLA are set out in federal law.
The FMLA specifies: “a State is a single employer”.
With that in mind it is the official position of the State of Kansas
that all state agencies will administer the FMLA in a uniform and
consistent manner in compliance with the federal law as outlined
below.
|
| 7.0 |
PROCEDURES: |
|
7.1 |
Pursuant to 29 U.S.C. 2601 et seq., each eligible employee
is entitled to 12 workweeks of paid or unpaid leave during any 12-month
period, beginning the first day leave is taken.
|
|
7.2 |
In order to be eligible for leave under the FMLA, an employee must
have: a) been employed by the State of Kansas for at least 12 months;
and
1) the 12 months an employee must have been employed by the state
of Kansas need not be consecutive months.
b) worked for the State of Kansas for at least 1,250 hours during
the 12-month period immediately preceding the beginning of the leave
designated as FMLA leave.
1) for the purposes of determining whether intermittent/occasional/casual
employment qualifies as “at least 12 months”, the
employee must have been in pay status for any part of a week for
at least 52 weeks, including any period of paid or unpaid leave
during which other benefits or compensation were provided to the
employee.
|
|
7.3 |
Circumstances for which an employee would be eligible for FMLA
leave include
the following: a) the birth of the employee’s child and the
care of the child within the 12 months immediately following birth;
b) the placement of a child with the employee for adoption or foster
care within the 12 months immediately following placement;
c) physical or psychological care due to a serious health condition
of any of the following individuals:
1) the employee’s spouse;
2) a child of the employee who meets one of the following criteria:
A) the child is under age 18; or
B) the child is 18 or older and incapable of daily self-care
because of a mental or physical disability as defined by the
Americans with Disabilities Act, 42 U.S.C. 12101 et seq,;
3) the employee’s parent;
4) the employee’s own serious health condition that prohibits
the employee from performing all or part of the essential functions
of the employee’s position within the meaning of the Americans
with Disabilities Act, or
5) Qualifying Exigency Military Leave
A) For employees whose spouse, child, or parent is on active
duty or call to active duty (members of regular armed services
are not included);
B) Short term deployment issues, can be used for a period of
7 calendar days beginning on the date of notification;
C) Military event and related activities;
D) Counseling;
E) Financial and legal arrangement;
F) Rest and recuperation;
G) Post-deployment activities
6) Leave to care for a covered service member with a serious
injury or illness
A) Injury or illness is incurred in the line of duty on active
duty
B) Employee must be a spouse, child, parent, or next of kin
of the covered service member
|
|
7.4 |
For purposes of the FMLA, “serious health condition”
means an illness, injury, impairment, or physical or mental condition
that involves one of the following: a) inpatient care; or
b) continuing treatment by a health care provider. A serious health
condition involving continuing treatment by a health care professional
shall involve at least one of the following:
1) a period of incapacity of more than three consecutive calendar
days, and any subsequent treatment or period of incapacity relating
to the same condition, if it involves either of the following:
A) treatment two or more times by a health care provider or
a provider of health care services under orders of the health
care provider; or
B) at least one treatment by a health care provider that results
in a regimen of continuing treatment under the health care provider's
supervision;
2) any period of incapacity due to pregnancy or for prenatal
care;
3) any period of incapacity or treatment for incapacity due
to one of the following chronic serious health conditions:
A) a condition that requires periodic treatment by a health
care provider;
B) a condition that continues over an extended period of time;
or
C) a condition that causes episodic incapacity rather than
a continuing period of incapacity;
4) a period of incapacity that is permanent or long-term and
is due to a condition for which treatment may not be effective;
or
5) any absence to receive multiple treatments by a health care
provider for one of the following:
A) restorative surgery after an accident or other injury; or
B) a condition that would likely result in a period of incapacity
of more than three consecutive calendar days in the absence
of treatment.
|
|
7.5 |
As the US Department of Labor views the State of Kansas as one employer,
the state’s official position is that the administration of
the FMLA will be uniform and consistent for all state agencies.
a) The agency should begin the FMLA notification within five days
after a request for leave is submitted by the employee, or of the
date the employer becomes aware of a potential FMLA event, regardless
of whether the employee does or does not have paid leave time available.
The agency must provide the employee with written notice detailing
the specific expectations and obligations of the employee under
the FMLA, a copy the appropriate federal Certification form and
an explanation of any consequences of a failure to meet these obligations.
b) If the employee has paid leave time available, the FMLA will
run concurrently. If the employee does not have paid leave to cover
the FMLA absences, the FMLA leave will be leave without pay.
c) The federal FMLA forms should be used for all FMLA notifications.
A list of these forms is as follows:
1) Notice of Eligibility and Rights and Responsibilities - WH-381
2) Certification of Health Care Provider for Family Member’s
Serious Health Condition – WH-380-F
3) Certification of Health Care Provider for Employee’s
Serious Health Condition – WH-380-E
4) Certification of Qualifying Exigency for Military Family Leave
– WH-384
5) Certification for Serious Injury or Illness of Covered Service
member for Military Family Leave – WH-385
6) Designation Notice – WH-382
|
|
7.6 |
Once an agency has determined that the employee is eligible
for leave and the reported condition qualifies as a “serious
condition” under the FMLA, the agency must notify the employee
that the requested leave has been designated as FMLA leave.
a) The agency’s notice to the employee that the leave has been
designated as FMLA leave may be orally or in writing.
b) If the notice is oral, it must be confirmed in writing, no later
than the following payday (unless the payday is less than one week
after the oral notice, in which case the notice must be no later
than the subsequent payday).
c) The written notice may be in any form.
Note – Examples of documents that can be
used to satisfy the notice requirements set out in sections 7.5
and 7.6 can be found at the following link: http://www.dol.gov/esa/whd/fmla/finalerule.htm
|
|
7.7 |
All time away from work that is taken due to circumstances that
qualify under subsection 7.4 must be approved by the agency and must
count against the employee’s 12 workweek leave entitlement,
beginning with the first day that the agency has knowledge of a possible
situation that may qualify for FMLA leave. a) Exempt employees
are still required to use sick, shared and vacation leave, as well
as any holiday compensatory time, in half or full day increments
and leave without pay in full day increments.
b) In accordance with recommendations of US DOL, exempt employees
using leave without pay for FMLA purposes are to use leave without
pay only in full-day increments.
c) Only the actual time spent away from work may be counted against
an employee’s 12 workweek leave entitlement.
d) If an employee is on unpaid FMLA leave for greater than 30 days,
their length of service will not be negatively affected by such
absence. Unpaid FLMA leave will continue to count toward the employee’s
length of service.
|
v
|
7.8 |
An employee must receive intermittent leave or a reduced work schedule
when medically necessary for the employee’s serious health condition
or to care for a family member with a serious health condition. An
employee may receive intermittent leave or a reduced work schedule
for the birth of the employee's child or for the placement of a child
with the employee for adoption or foster care. a) The exempt status
of an exempt employee shall not be affected if deductions are made
from the employee's salary for any hours taken as intermittent leave
or a reduced work schedule within a work week.
b) The appointing authority may transfer any employee to an available
position with equivalent pay and benefits during a period of intermittent
leave or a reduced work schedule.
c) Any employee returning from intermittent leave or a reduced
work schedule must be returned to the same or equivalent position
with equivalent pay, benefits, and terms and conditions of employment,
in accordance with K.A.R. 1-9-6.
|
|
7.9 |
The appointing authority shall require an employee to provide
a certification containing evidence necessary to establish that the
employee is entitled to leave under the FMLA. The employee must be
given a written notice of the requirement. The first certification
shall be at employee expense. The appointing authority may require
a second certification at agency expense when the validity of the
first certification is in doubt. A third certification may be required
at agency expense when the first and second certifications differ,
and the third certification shall be final and binding. Employees
must be allowed at least 15 calendar days to provide the requested
certification.
|
|
7.10 |
The agency may require the employee to provide no more than
one recertification opinion for each qualifying condition every 30
days in conjunction with an absence, at employee expense, for long-term
conditions under continuing supervision of a health care provider
except that a recertification opinion may be required before the end
of 30 days if circumstances described by the previous medical certification
have changed significantly or the agency receives information that
casts doubt upon the employee's reason for the absence.
|
|
7.11 |
Each agency shall maintain the employee's group health insurance
coverage during an employee’s 12 workweek FMLA leave entitlement
under the same conditions and with the same agency contributions as
provided when no leave is
taken.
|
|
7.12 |
Each agency must post a notice that provides information regarding
the FMLA in a conspicuous place accessible to employees and applicants.
|
|
7.13 |
The agency's obligations under the FMLA shall cease when the
employee gives notice of the employee's intent not to return to work.
|
| 8.0 |
REFERENCES:
29 U.S.C 2601 et seq. The FMLA may be viewed in its entirety, at
the following website. http://www.dol.gov/esa/whd/fmla/finalrule.htm
|
|
|
| 9.0 |
CONTACT PERSONS: Pat Writt at
pat.writt@da.ks.gov or
by telephone at (785) 296-4352.
|
