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HomeMy WebLinkAboutResolution No. 187-14 RESOLUTION BE IT RESOLVED by the Common Council of the City of Rochester that the City adopt a personnel policy regarding Family and Medical Leave. A copy of the policy is attached. PASSED AND ADOPTED BY THE COMMON COUNCIL OF THE CITY OF ROCHESTER, MINNESOTA, THIS 4Z DAY OF '� _, 2014. PRESIDENT O SAID COMMON COUNCIL i ATTEST: f � ., d � CITY CLERK APPROVED THIS ad DAY OF �YJ , 2014. • MAYOR OF SAID CITY (Seal of the City of Rochester, Minnesota) Res 1 O%dopt.PersPolicy.FMU1 • CITY OF ROCHESTER ORGANIZATIONAL POLICY • FAMILY AND MEDICAL LEAVE A. Policy In accordance with the Family and Medical Leave Act(FMLA), the City of Rochester will provide eligible em- ployees with up to 12 weeks of paid or unpaid,job-protected leave for any of the following reasons: • The birth of a child, including prenatal care, or placement of a child with the employee for adoption or foster care; • To care for a spouse,child or parent who has a serious health condition; • Due to the serious health condition that makes the employee unable to perform the essential functions of their position;and • A covered military member's active duty or call to duty or to care for a covered military member(Military Caregiver and Qualified Exigency Leave,described below). B. Definitions "Caring" for a covered family member includes psychological as well as physical care. It also includes acquir- ing care and sharing care duties. An eligible "child" is defined as a person under 18 years of age (or a person incapable of self-care because of a physical or mental disability) who is a biological, adopted, foster, or step child, a ward of the employee, • or a person with whom the employee is charged with a parent's rights,duties and responsibilities. "Spouse"means man or woman as long as there is a legal marriage; it does not include domestic partners or common-law spouses. An eligible"parent" includes a biological parent or a person who was charged with parental rights,duties and responsibilities over the employee when the employee was under the age of 18;"parent"does not include in- laws. "Serious Health Condition" as defined under the FMLA means an illness, injury, impairment, or physical or mental condition that involves one of the following: • Hospital Care: Any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay)in a hospital,hospice,or residential medical care facility; • Pregnancy: Any period of incapacity due to pregnancy,prenatal medical care or child birth; • Absence Plus Treatment: A period of incapacity of more than three consecutive calendar days' that also involves continuing treatment by or under the supervision of a health care provider. Chronic Conditions Requiring Treatments: An incapacity from a chronic condition which requires periodic visits for treatment by a health care provider, continues over an extended period of time and may cause epi- sodic rather than a continuing period of incapacity; • ' Between November 1 and March 31, the period of incapacity may be extended to five consecutive calendar days for absences due to influenza-like illnesses. i CITY OF ROCHESTER ORGANIZATIONAL POLICY • Permanent/long-term conditions requiring medical supervision (i.e. Alzheimer's, a severe stroke, or terminal stages of a disease); Multiple Treatments: 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. "Incapacity"means inability to work, attend school or perform other regular daily activities. C. Eligibility To qualify for FMLA leave,an employee must meet the following two conditions: 1. Have worked for the City for 12 months (or 52 weeks) prior to the date the leave is to commence. The 12 months or 52 weeks need not have been consecutive; however, the City will not consider any service 7 years prior to the employee's most recent hire date2. 2. Have worked at least 1,250 hours during the 12-month period prior to the date when the leave is re- quested to commence. The principles established under the Fair Labor Standards Act (FLSA)determine the number of hours worked by an employee. The FLSA does not include time spent on paid or unpaid leave as hours worked. Consequently, these hours of leave are not to be counted in determining the 1,250 hours eligibility test for an employee under FMLA. D. Length of Leave • Eligible employees may take up to 12 weeks of leave per rolling 12-month period based on the preceding 12 month-period prior to the commencement of the leave. When an employee has a spouse also employed by the City, both may use a portion of the total 12-week leave entitlement for birth of a child, to care for an immediate family member, or their own serious health condition. The two employees are entitled to use a combined total of 12 weeks of leave. The entitlement to FMLA leave for the birth or placement of a child for adoption expires twelve (12) months after the birth or placement of that child. In the instance the child is hospitalized longer than the mother, the 12-month window within which the parent can take leave begins when the child leaves the hospital. E. How the Leave May Be Taken FMLA leave may be taken in 12 (or less) consecutive weeks, may be used intermittently (a day periodically when needed) or may be used to reduce the workweek or workday, resulting in a reduced-hour schedule. The workweek or workday is based on the employee's standard scheduled hours. In all cases, the leave may not exceed a total of 12 workweeks. Intermittent Leave may be taken when medically necessary for the employee's serious health condition or to care for a seriously ill family member. Intermittent leave must be documented in the medical certification form as medically necessary. If an employee is taking leave intermittent or leave on a reduced schedule for planned medical treatment, s/he should consult with their supervisor and must make a reasonable effort to schedule the treatment so as to not disrupt the City's business. 2 The 12 months need not be consecutive; however they need to have been within 7 years of the employee's rehire date, unless the break in service was due to National Guard or Reserves military service obligation. 2 CITY OF ROCHESTER ORGANIZATIONAL POLICY • In instances when intermittent or reduced schedule leave for the employee or employee's family member is foreseeable or is for planned medical treatment, including recovery from a serious health condition, the City may temporarily transfer an employee to an available alternative position with equivalent pay and benefits if the alternative position would better accommodate the intermittent or reduced schedule. Intermittent/reduced scheduled leave may be taken to care for a newborn or newly placed adopted or foster care child only with the approval of the supervisor and Human Resources. F. Interaction with Other Leaves FMLA runs concurrently with paid and unpaid leaves. Employees must use their accrued/saved sick leave and vacation prior to being placed on an unpaid leave of absence unless their medical condition/injury is covered by workers' compensation benefits or qualifies under the state of Minnesota Parental Leave Law. (Under the Parental Leave Law, employees are only required to use their vacation, not sick leave accrual, prior to being placed in an unpaid leave status.) Full-time employees may retain up to 40 hours of accrued vacation before being placed on an unpaid leave of absence. When an employee's medical condition is covered under Minnesota's workers'compensation and also meets eligibility requirements of this policy, s/he is considered to be on Family Medical Leave. Qualified FMLA leave, as determined by Human Resources, is automatically approved time off and is not subject to supervi- sory approval regardless of whether the leave involves the use of an employee's accrued paid time or is un- paid. In reference in paid holidays while in a FMLA leave status, refer to the City's organizational policy regarding • holidays or other leave. G. Notification Employees requesting FMLA leave must provide written or verbal notice of the need for the leave to the Hu- man Resources Department and their supervisor. When the need for leave is foreseeable, the employee must give verbal or written notice to his/her supervisor at least 30 days prior to the date on which leave is to begin. In unexpected or unforeseeable situations, an employee (or other family members or responsible par- ties) should provide as much notice as practicable, including following required departmental call-in practic- es. Request for a leave should-be made by completing a Leave of Absence form. Written notice will not be re- quired in the case of a medical emergency. If an employee fails to give 30 days'notice for a foreseeable leave with no reasonable explanation for the de- lay, the leave may be denied until 30 days after the employee provides notice. H. Certification and Documentation Requirements For leave due to an employee's serious health condition or a family member's, the City will require the com- pletion of a medical certification form by the attending physician or practitioner. The form must be submitted to the Human Resources Department within 15 calendar days after the request has been made. If the form is not submitted in a timely fashion, the employee must provide a reasonable explanation for the delay. Fail- ure to provide medical certification may result in denial or delay of the leave. The City may require an employee obtain a second opinion (at the City's expense) from a provider designat- ed by the City. If necessary to resolve a conflict between the original certification and second opinion, the City may require the opinion of a third health care provider,designated or approved jointly by the City and the 40 employee. This third opinion is final and binding by both the City and the employee. An employee will be provisionally entitled to leave and benefits under FMLA pending the second and/or third opinion. 3 CITY OF ROCHESTER ORGANIZATIONAL POLICY • All documentation related to the employee's or family member's condition will be held in strict confidence and maintained in the employee's medical records file. (Information may be shared with supervisory staff for op- erational purposes.) When leave is due to an employee's own serious health condition, a fitness for duly certification (FFD) may be required before an employee can return to work. Failure to timely provide such certification may eliminate or delay an employee's right to reinstatement under the FMLA. If an employee is using intermittent leave, and reasonable safety concerns exist regarding the employee's ability to perform his or her duties, a FFD certificate may be required as frequently as every 30 days during period when the employee has used inter- mittent leave. I. Recertification Recertification of the need for leave may be required periodically for intermittent leave, if the employee re- quests an extension of the original approved FMLA leave, or if the circumstances regarding the leave have changed. Recertification may also be required if there is a question as to the validity of the certification or if the employee is unable to return to work due to the serious health condition. J. Reinstatement Employees returning from FMLA will be reinstated in the same position or a position equivalent in pay, bene- fits, and other terms and conditions of employment. An employee's reinstatement rights are the same as they would have been had the employee not been on leave. Thus, if an employee's position would have been eliminated or an employee would have been termi- nated but for the leave, the employee would not have the right to be reinstated upon return from the leave. • H. Notice of Intent to Return from FMLA Leave Employees on FMLA leave are required to report periodically with their immediate supervisor and the Human Resource Department regarding their status and intent to return to work. I. Effects on Benefits An employee granted leave under this policy will continue to be covered by the City's group health and dental insurance plan under the same conditions and at the same level of City contribution as would have been pro- vided had s/he been continuously employed during the leave period. All paid benefits run concurrently with FMLA benefits. The employee will be required to continue payment of the employee's portion of group insurance coverage while on leave. Arrangements for payment of the employee's portion of premiums must be made by the em- ployee with the City. J. Use of Accrued Paid Leave or Compensatory Time During Family and Medical Leave Prior to taking unpaid FMLA leave, employees must use all eligible accrued sick leave, vacation leave and compensatory time prior to taking an unpaid leave unless their medical condition/injury is covered by work- er's compensation or the absence qualified under the Minnesota Parental Leave Law(see Section F). Sick leave and vacation will continue to accumulate only during the period of compensated FMLA leave. K. Seniority Seniority does not accrue during any period of unpaid FMLA leave except as allowed when the leave is cov- ered by worker's compensation. However, seniority accrued prior to commencement of FMLA leave will not be lost. 4 CITY OF ROCHESTER ORGANIZATIONAL POLICY • L. Failure to Return to Work After FMLA Under certain circumstances, if an employee returns to work for less than 30 days following the expiration of their FMLA leave, the City may require the employee to repay the portion of the monthly cost paid by the City for group health plan benefits. The City may also require the employee to repay any amounts the City paid on the employee's behalf to maintain benefits other than group health plan benefits. If an employee does not return to work following 12 weeks of FMLA leave, the employee may be subject to COBRA continuation benefits. If the employee fails to pay the City a portion of the premiums for which he or she is responsible during the FMLA leave and the employee fails to return to work,coverage may end. Loss of coverage for failure to pay premiums is not a qualifying event for purposes of continuation coverage under COBRA. M. Activities Prohibited During FMLA While on leave, an employee may not engage in activities (including employment) which have the same or similar requirements and essential functions of the employee's current position. While on leave, an employ- ee may not engage in any activity that conflicts with the best interests of the City. Such conduct will result in disciplinary action up to and including termination of employment. N. Additional Leave Employees who cannot return from an approved FMLA leave at the end of the approved leave period may request an extension (up to the maximum of 12 weeks allowed under FMLA). If the 12 FMLA weeks have been used, the employee can request a regular Leave of Absence (i.e. sick leave or unpaid)which is subject to supervisory approval. If the leave is approved and unpaid, the employee will be required to pay the full • cost of group insurance, as provided under COBRA, in order to continue coverage. If the unpaid leave of absence is not approved or the employee fails to request additional leave, the employ- ee will be considered to have voluntarily resigned. If circumstances beyond the employee's control prevent- ed the employee from requesting additional leave, a retroactive leave request may be allowed, subject to the approval requirements outlined in the City's leave of absence policy. 0. Qualified Exigency and Military Caregiver Leave Qualified Exigency FMLA provides that eligible employees (as described above) whose spouse, son, daughter or parent either has been notified of an impending call or order to covered active military duty or who is already on covered active military duty may take up to 12 weeks of leave for reasons related to or affected by the family mem- ber's call-up for service. The qualifying exigency must be one of the following: (1) short-notice deployment, (2) military events and ac- tivities, (3) child care and school activities, (4) financial and legal arrangements, (5) counseling, (6) rest and recuperation, (7) post-deployment activities and (8) additional activities that arise out of active duty, providing that the City and employee agree,including agreement on timing and duration of the leave. Military Caregiver_ Leave An employee eligible for FMLA leave (as described above)who is the spouse, son, daughter, parent, or next of kin of a covered service member may take up to 26 weeks in a single 12-month period to take care of leave to care for that service member. • The family member must be a current member of the Armed Forces, including a member of the National Guard or Reserves,or a member of the Armed Forces, the National Guard or Reserves who is on the tempo- u CITY OF ROCHESTER ORGANIZATIONAL POLICY • rary disability retired list,who has a serious injury or illness incurred in the line of duty on active duty for which he or she is undergoing medical treatment, recuperation, or therapy; or otherwise in outpatient status; or oth- erwise on temporary disability retired list. Eligible employees may not take leave under this provision to care for former members of the Armed Forces, former members of the National Guard and Reserves; and mem- bers on the permanent disability retired list. Definitions A"son or daughter of a covered service member' means the covered service member's biological, adopted, or foster child, stepchild, legal ward, or a child for whom the covered service member stood in loco parentis, and who is of any age. A"parent of a covered service member"means a covered service member's biological, adoptive, step or fos- ter father or mother, or any other individual who stood in loco parentis to the covered service member. This term does not include parents"in law." The "next of kin of a covered service member' is the nearest blood relative, other than the covered service member's spouse, parent, son, or daughter, in the following order of priority: blood relatives who have been granted legal custody of the service member by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins, unless the covered service member has specifically des- ignated in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave under the FMLA. When no such designation is made, and there are multiple family members with the same level of relationship to the covered service member, all such family members shall be considered the covered service member's next of kin and may take FMLA leave to provide care to the covered service • member, either consecutively or simultaneously. When such designation has been made, the designated in- dividual shall be deemed to be the covered service member's only next of kin. For example, if a covered ser- vice member has three siblings and has not designated a blood relative to provide care, all three siblings would be considered the covered service member's next of kin. Alternatively, where a covered service mem- ber has a sibling(s) and designates a cousin as his or her next of kin for FMLA purposes, then only the des- ignated cousin is eligible as the covered service member' s next of kin. An employer is permitted to require an employee to provide confirmation of covered family relationship to the covered service member pursuant to§825,1220). "Covered active duty" o "Covered activity duty"for members of a regular component of the Armed Forces means duty during deployment of the member with the Armed Forces to a foreign country. o "Covered active duty"for members of the reserve components of the Armed Forces (members of the U.S. National Guard and Reserves) means duty during deployment of the member with the Armed Forces to a foreign country under a call or order to active duty in a contingency operation as defined in section 101(a)(1 3)(B)of title 10, United States Code. (a) In the case of a mernber of a regular com- ponent of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country. "Covered service member"means: o A member of the Armed Forces (including a member of the National Guard or Reserves) who is un- dergoing medical treatment, recuperation,or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness;or 4 , CITY OF ROCHESTER ORGANIZATIONAL POLICY o A veteran who is undergoing medical treatment, recuperation, or therapy, for a serious injury or ill- ness and who was a member of the Armed Forces (including a member of the National Guard or Re- serves) at any time during the period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation,or therapy. "Serious injury or illness"means: o In the case of a member of the Armed Forces (including a member of the National Guard or Re- serves), means an injury or illness that was incurred by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member's active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that may render the member medi- cally unfit to perform the duties of the member's office,grade,rank,or rating;and o In the case of a veteran who was a member of the Armed Forces(including a member of the Nation- al Guard or Reserves) at any time during a period when the person was a covered service member, means a qualifying (as defined by the Secretary of Labor)injury or illness incurred by a covered ser- vice member in the line of duty on active duty that may render the service member medically unfit to perform the duties of his or her office,grade, rank or rating. o Outpatient status, with respect to a covered service member, means the status of a member of the Armed Forces assigned to either a military medical treatment facility as an outpatient; or a unit estab- lished for the purpose of providing command and control of members of the Armed Forces receiving medical care as outpatients. . Amount of Leave—Qualified Exigency An eligible employee can take up to 12 weeks of leave for a qualified exigency. Amount of Leave—Military Caregiver An eligible employee taking military caregiver leave is entitled to 26 workweeks of leave during a "single 12- month period."The "single 12-month period" begins on the first day the eligible employee takes FMLA leave to care for a covered service member and ends 12 months after that date. Leave taken for any FMLA reason counts towards the 26-week entitlement. If an employee does not take all 26 workweeks of leave entitlement to care for a covered service member during this"single 12-month period," the remaining part of the 26 workweeks of leave entitlement to care for the covered service member is forfeit- ed. Certification of Qualifying Exigency for Military Family Leave The City will require certification of the qualifying exigency for military family leave. The employee must re- spond to such a request within 15 days of the request or provide a reasonable explanation for the delay. Fail- ure to provide certification may result in a denial of continuation of leave. This certification will be provided us- ing the DOL Certification of Qualifying Exigency for Military Family Leave. Certification for Serious Injury or Illness of Covered Service Member for Military Family Leave The City will require certification for the serious injury or illness of the covered service member. The employee must respond to such a request within 15 days of the request or provide a reasonable explanation for the de- lay. Failure to provide certification may result in a denial of continuation of leave. This certification will be pro- vided using the DOL Certification for Serious Injury or Illness of Covered Service Member. 7 CITY OF ROCHESTER ORGANIZATIONAL POLICY • All other provisions of the FMLA policy, including use of paid leave, employee status and benefits during leave, the procedure for requesting leave, benefits during leave and reinstatement, are outlined above in the FMLA policy. Drafted November 3,2004,Revised March 17,2008,September 2008,Rewritten May 2014 • 8