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SUBJECT:
Family and Medical Leave Act (FMLA) Guidelines for the State of Kansas |
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EFFECTIVE DATE:
August 26, 2005 |
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DISTRIBUTION:
State HR Directors |
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FROM: Jack
E. Rickerson, Director DATE:
August 26, 2005 |
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PURPOSE:
This Bulletin is being issued to update and replace Bulletin 05-02 due to
a clarification from the Federal Department of Labor (DOL) concerning our
current policy regarding deductions of exempt employees who are taking
unpaid leave for situations covered by the Family Medical Leave Act (FMLA).
Bulletin 05-02 is hereby revoked.
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| 6.0
| BACKGROUND:
Bulletin 05-02 set 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.
Since Bulletin 05-02 was issued, we have received feedback from DOL on our
request for their opinion in connection with Bulletin 04-03 with regard to
the types of deductions that we allow to be made from exempt employees’
salaries. Based on their recommendation, exempt employees using leave
without pay for FMLA purposes are to use leave without pay only in
full-day increments.
In accordance with this decision, we have revoked Bulletin 04-03 and
issued Bulletin 05-06 to address that issue and we are also revoking
Bulletin 05-02 and issuing this Bulletin to replace it since that specific
policy is mentioned in Bulletin 05-02 as well. The removal of that option
is the only change that is being made in this Bulletin, so subsection 7.7
is the only portion of this Bulletin that differs from Bulletin 05-02. |
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PROCEDURES: |
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| 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
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) the 12 months an employee must have been employed by the State of
Kansas need not be consecutive months.
2) 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.
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| 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; or
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.
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| 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.
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| 7.5 |
Within two days after a request for leave is
submitted by the employee, the agency must provide the employee with
written notice detailing the specific expectations and obligations of the
employee under the FMLA and explaining any consequences of a failure to
meet these obligations.
Note – See Section 7.8 for issues regarding these notice
requirements for agencies that establish policies for the tracking of the
usage of FMLA leave under that
section.
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| 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:
/ps/documents/
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| 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) Only the actual time spent away from work may be counted against an
employee’s 12 workweek leave entitlement.
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| 7.8 |
Any agency may establish
a different policy with regard to when to begin
counting FMLA usage for employees provided the agency maintains a written
policy on FMLA for employees in the agency and insures that employees
within the agency are treated equitably with regard to any provisions that
are more permissive than the policy established by this bulletin.
Example – An agency may choose to wait until an employee begins using
shared
leave or goes into leave without pay status before beginning to track the
employee’s 12 workweeks of leave. However, that agency would need to
maintain a written policy on FMLA setting that practice out as the
agency’s policy and insure that the policy is applied to all employees in
the agency.
Note – Agencies that establish policies under this section and choose to
delay the
notification specified in section 7.5 to coincide with the agency’s policy
on
the tracking of FMLA leave must still provide employees with all
protections
afforded under the FMLA from the first time that the employee uses leave
for the serious health condition.
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| 7.9 |
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.
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| 7.10 |
The appointing authority
may 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.
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| 7.11 |
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.
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| 7.12 |
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.
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| 7.13 |
Each agency must post a
notice that provides information regarding the FMLA in
a conspicuous place accessible to employees and applicants.
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| 7.14 |
The agency's obligations
under the FMLA shall cease when the employee gives notice of the
employee's intent not to return to work.
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| 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/
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CONTACT PERSON:
Ken Otte at
ken.otte@da.ks.gov or (785) 296-4383.
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