RESOLUTION

 

            WHEREAS, the County of Albemarle Personnel Policy Manual has been adopted by the Board of Supervisors; and

 

            WHEREAS, the Board finds that an amendment to Personnel Policy P-90 is necessary to clarify policies relating to paid leave and the Family and Medical Leave;

 

            NOW, THEREFORE, BE IT RESOLVED THAT the Board of Supervisors of Albemarle County, Virginia, hereby amends the following sections of the County of Albemarle Personnel Policy Manual:

 

By Amending:

Section P-90     Family and Medical Leave Act, Supplemental Leave

 

 

Section P-90    FAMILY AND MEDICAL LEAVE ACT - Supplemental Leave

 

            Any eligible employee is entitled, as a matter of legal right, to up to a combined total of twelve (12) work weeks of paid or unpaid leave per year for the following leave situations:

 

1.     The birth and first-year care of a child;

 

2.     The adoption or foster placement of a child;

 

3.     The illness of an employee’s spouse, parent, or child; and,

 

4.     The employee’s own illness.

 

Child:                                           Includes those over 18 who are disabled and cannot care for themselves, legal wards, stepchildren and others for whom the employee stands in the place of parent.

 

Eligible Employee:                        An employee who has been employed at least one year and has worked at least 1250 hours during the 12 months immediately preceding the proposed leave.

 

Family:                                         Immediate family is defined as the employee’s or spouse’s children, parents, siblings, and grandparents.

 

Health Care Provider:                   A licensed doctor of medicine or osteopathy or any other person determined by the U.S. Secretary of Labor to be capable of providing health care service.

 

Parent:                                         Biological parents as well as any others who have acted in the place of a parent to the employee.

 

Serious Medical Condition:            A physical or mental illness or an injury requiring inpatient care at a medical facility or continued treatment by a health-care provider.

 

Supplemental Leave:                     Leave granted under the terms of the Family Medical Leave Act (FMLA) this is in general, the 12 weeks of leave required by the Act.  Any such leave shall be termed Supplemental Leave.

 

            To be eligible for leave under this policy, the employee must have at least twelve (12) months of service with Albemarle County and have worked at least 1250 hours during the year preceding the commencement of the leave without pay and the employee must have exhausted all eligible compensated leave (i.e., Annual, Sick or Compensatory).

 

Parental Leave

 

            Upon request, any eligible employee shall be granted a leave of absence without pay for the purpose of caring for a newborn or newly adopted child for a period of up to twelve (12) weeks per year.  Employees requesting parental leave must provide reasonable notice of the expected birth or adoption (30 days or more).  Upon request, an eligible employee may have this leave extended to a maximum of one (1) year.

 

Employee’s Own Illness or Illness of Employee’s Spouse, Parent, or Child

 

            If medically necessary, medical leave without pay may be taken on an intermittent or reduced leave schedule until the amount of leave totals twelve (12) weeks.  However, if an employee requests intermittent medical leave that is foreseeable based on planned medical treatment, the Board reserves the right to require the employee to transfer temporarily to an alternative position with equal pay and benefits which better accommodates recurring periods of absence or a part-time schedule.

 

            The medical certification for the employee’s personal illness must identify the nature of the illness, the date the illness began and the projected return-to-work date.  For leave to care for a seriously ill child, spouse, or parent, the medical certification must include an estimate of the amount of time the employee is needed to provide care.  At the employer’s discretion, recertification may be required.

 

Congruity of Supplemental Leave with Other Leave Rules and Regulations

 

            Whenever appropriate, the rules and regulations regarding leave contained in all other sections of County Policy and the remainder of the manual shall apply, except that (1) eligible employees may elect to be paid from any Annual Leave account balances if a period of Supplemental Leave would otherwise be Leave Without Pay greater than one week (40 hours) and (2) the County shall continue any paid medical insurance benefit during any unpaid period of Supplemental Leave.  The County may recover any premiums paid during unpaid Supplemental Leave if the employee fails to return to work, unless the failure to return to work is beyond the employee’s control.  Any paid leave granted for the purposes of the Act shall be deducted from the 12 weeks (480 hours) of Supplemental Leave available.

 

Taking/Scheduling and Medical Certification of Supplemental Leave

 

            Supplemental Leave may be taken intermittently when medically necessary Supplemental Leave for birth, adoption or foster placement of a child must be scheduled in one continuous period unless otherwise approved by the Principal/Department Head.  The employee may be required to give at least 30 days written notice in the event of foreseeable need and make a reasonable effort to schedule Supplemental Leave to minimize disruption of County operations.

 

Taking/Scheduling and Medical Certification of Supplemental Leave (continued)

 

            Those employees on an approved leave of absence, under this policy, will receive the Board’s health insurance contribution not to exceed twelve (12) weeks per year.  Life and hospitalization insurance may be maintained during parental or medical leave for any additional time beyond twelve (12) weeks per year if the full premium for coverage is paid to the division by the employee.  All benefits presently contributed towards will remain in effect, i.e. annual/sick leave, during the 12 week period.

 

            To the extent that an employee is entitled to compensated leave under other Board policies, the employee must take the paid leave first (Annual/Sick/Compensatory).

Reinstatement

 

            An employee returning to work from Supplemental Leave shall be reinstated in the former position held, or one equivalent in pay, benefits and terms of employment, unless the employee is (1) among the 10% highest paid of eligible employees, (2) denial of return is necessary to prevent substantial or grievous economic injury and (3) notice of intent not to reinstate is given either before Supplemental Leave begins or together with a reasonable period to return stated if Supplemental Leave has already begun.

 

            Employees on Supplemental Leave without pay are not eligible for any unemployment benefits.

 

Record-Keeping and Anti-Retaliation

 

            The Director of Human Resources shall maintain records necessary to demonstrate compliance with the Act.  The Act requires also that no employee be subject to any penalty for seeking rights under the Act or for testifying for or otherwise helping other employees seek rights under the Act.

 

Adoption

 

            This Section P-90 of the Personnel Manual was adopted and is intended to fully implement the Act, subject to the penalties prescribed in the Act.

 

            Any variation between this policy and the Family and Medical Leave Act will be determined in favor of the Act.

 

A. Purpose of Policy

 

This policy is written to assist the Albemarle County Local Government in complying with the federal Family and Medical Leave Act of 1993. This policy seeks to balance the needs of the employer with the needs of its employees and their families.

 

B. Definitions

 

Child:                                           Includes biological, adopted, foster, step, or legal ward child for whom the employee acts in a parental role, providing care and financial support.  The child must be under age 18, unless he/she is incapable of self-care due to mental or physical disability. 

 

Eligible Employee:                        An eligible employee: 1) Has been employed at least one year; 2) Has worked at least 1250 hours during the 12 months immediately preceding the proposed leave; 3) Has not used all available Family Medical Leave (FML) in the previous rolling year; and 4) Meets the conditions of the FMLA.

 

Family:                                         Family is defined as the employee’s spouse, children, and parents.

 

Health Care Provider:                   A licensed doctor of medicine or osteopathy or any other person determined by the U.S. Secretary of Labor to be capable of providing health care service.

 

Parent:                                        Biological parents as well as any others who have acted in the place of a parent to the employee.

 

Serious Health Condition:              A physical or mental illness or an injury requiring inpatient care at a medical facility or continued treatment by a health-care provider that causes the employee to be absent from work on a recurring basis or for more than three full days.

 

Job-Protected:                              The employee is guaranteed the right to return to his former position or to an equivalent position.

 

Week:                                          A week is defined as the annual authorized regular hours of the employee’s position, divided by 52.

C. Conditions of Leave

 

1.      General Information

 

    The Family and Medical Leave Act (FMLA) provides up to 12 workweeks of unpaid job-protected leave per year to eligible employees for one or more of the following qualifying events:

 

1)      The birth and first-year care of the employee’s newborn child;

2)      Placement of a child with the employee for adoption, or by the State for foster care;

3)      To care for the employee’s spouse, child or parent with a serious health condition (this does not include in-laws); and

4)      The employee’s own serious health condition.

 

2.      Notification Requirements

 

          When the need for leave under FMLA is foreseeable, as in the case of the expected birth, adoption or foster care placement of a child or planned medical treatment for a serious health condition of the employee or a family member, the employee is required to provide at least 30 days advance notice to his supervisor either verbally or in writing.  In the event that it is not practicable to give such advance notice, due to a lack of knowledge of approximately when leave will be required to begin, a change in circumstances, or a medical emergency, the employee should give as much advance notice as is practicable, ordinarily within one or two business days of when he learns of the need for the leave. 

 

          The administrative process will be initiated by the employee submitting an FMLA Request Form, which is available from the Human Resources Department.  If the reason for leave involves a serious health condition of either the employee or the employee’s family member, the employee will be given a Certification of Health Care Provider form that must be completed by the patient’s physician and returned to HR within 15 calendar days. Employees granted leave under FMLA will receive a Notice of Employee Obligations under FMLA outlining conditions governing the leave.

 

If an employee does not notify his supervisor that he requests FML, but the supervisor has reason to believe that a leave request would meet the guidelines covered under the Act, the supervisor should contact Human Resources, which will then provide the employee with information regarding the FMLA.  If an employee is eligible for FML, then the leave time will be counted against FML. 

 

3.         Both Parents Working for the County

 

In cases where both parents are County employees, they may take a combined total of 12 weeks of FML for birth, adoption, and foster care placement.  They may each take 12 weeks for their own illness or that of their spouse, child or parent. 

 

4.      Covered Time Period

 

          Eligible employees may take up to 12 weeks of leave during a rolling 12-month period. This is defined as the 12-month period measured forward from the date an employee’s first FML begins.

 

5.      Intermittent or Reduced Leave


          While most family and medical leave occurrences will necessitate leave to be taken in a single block of several weeks, the employee may request “intermittent” leave or “reduced leave schedule” to care for a seriously ill family member or for the employee’s own serious health condition where the need for leave is foreseeable and based on planned medical treatment.  In the case of the need for a reduced leave schedule or intermittent use of leave, a certification of medical necessity is required from the health care provider and an appropriate work schedule should be planned in advance with the supervisor, when possible. An employee may take reduced leave for the birth, adoption or foster care placement of a son or daughter only if the employee and employer agree to such an arrangement.

 

          If the employee requests intermittent leave or reduced leave schedule, the County may temporarily transfer the employee to an available alternative position with equivalent pay and benefits, if the employee is qualified for the position and it better accommodates recurring periods of leave than the employee’s regular job.

 

D.  Medical Certification Requirements

 

When the necessity for FML exists due to the employee’s own serious health condition or the serious health condition of a spouse, parent, or child, certification of the condition and a statement of the need for leave are required from the health care provider(s), using the Certification of Health Care Provider form provided by Human Resources.  If the employee fails to provide the requested information to the designated HR Specialist within 15 calendar days of receipt of the form, the leave may not be job-protected under the FMLA.

 

The County may require a second opinion by a health care provider of its choice, and at its expense.  If the two opinions differ, a third opinion may be requested from a provider selected jointly by the employee and the County.  This third opinion, to be paid for by the County, is final and binding. It is the employee’s responsibility to maintain up-to-date medical status while on FML.

 

The County may also require periodic reports from the employee as to the employee’s status and intent to return to work.

 

E.  Substitution of Paid Leave

 

The FMLA provides for a maximum of 12 weeks of unpaid leave. If the FML is due to the employee’s own medical condition, the employee will first be compensated using any accrued sick leave and sick bank benefits, as applicable.  Time will be charged concurrently against these paid types of leave and FML for a period of up to 12 weeks. 

 

If the FML is due to the illness of an employee’s spouse, parent, or child, the employee will first be compensated using accrued sick leave. (Employees are not eligible for sick bank benefits in these circumstances.) Time will be charged concurrently against the available accrued sick leave and FML for a period of up to 12 weeks.

 

 The remainder, if any, of the leave requested will be charged against accrued annual leave and compensatory leave prior to the employee going on unpaid leave, except that the employee may save one (1) week of annual leave for use at a later time.  Employees should check with HR to determine what types of leave will run concurrently with their FML. The type of leave taken must be in compliance with the provisions of the applicable leave policy found in this manual.

 

Time missed during worker’s compensation related injuries, which otherwise meet the requirements of the FMLA, may run concurrently with FML.

 

F.  Benefits

 

1.      Insurance Continuation Privileges

 

          Employees on unpaid leave that is designated as FML will continue to receive their employer portion of the medical and dental insurance benefits up to the maximum 12 workweeks allowed.  These benefits will continue on the same basis as an active employee during this 12-week period.  Employees must remit the necessary premium for the employee portion to cover themselves and eligible dependents.  As in the case of any unpaid leave of absence, the employee must make arrangements to pay applicable medical, dental, and life insurance premiums.

 

2.      Other Employee Benefits

 

In all cases where an employee is using some form of approved, accrued leave such as annual leave, compensatory leave, sick leave, or sick bank, all employee benefits continue as long as the employee remains on the payroll through the use of such leave time.  If unpaid leave is taken, employee benefits other than health, dental and life insurance are discontinued for the duration of the unpaid leave status as follows:

 

a)      The accrual of annual or sick leave is discontinued after ten (10) days of unpaid leave and for the duration of the unpaid leave status.

 

b)      The Virginia Retirement System (VRS) contribution is based on a percent of the employee’s income.  No contribution is made for periods of unpaid leave.  Upon returning to work, the employee may be eligible to purchase the lost service with VRS, if the leave is necessitated by birth or adoption, as defined by VRS policies.

 

G.  Returning from FML

 

1.      Medical form

 

          An employee returning from FML due to his own serious health condition must submit a statement on the required form to Human Resources, from his attending physician, indicating the employee is physically and mentally capable of returning to work.

 

2.      Restoration to Position

 

When an eligible employee is released to return to work following FML, he will be restored to the position held at the time the leave began or to an equivalent position with equivalent benefits, compensation and other terms and conditions of employment.  Any issues regarding equivalency should be reviewed with Human Resources.  In order to be guaranteed restoration, the employee must return to work at or before the end of the 12-week family leave period. If an employee would have been laid off had he not been on FML, any right to reinstatement would be whatever it would have been had the employee not been on FML.

 

Certain “key” employees may be denied job restoration.  A “key” employee is defined as a salaried FMLA-eligible employee who is among the highest paid 10 percent of all County employees.  A key employee will be notified as soon as practicable after receipt of a request for FML that he is considered to be a key employee.

 

        Employees on unpaid FML are not eligible for any unemployment benefits.

 

H.  Record Keeping and Anti-Retaliation

 

The Director of Human Resources shall maintain records necessary to demonstrate compliance with the Act.  The Act requires also that no employee be subject to any penalty for seeking rights under the Act or for testifying for or otherwise helping other employees seek rights under the Act.

 

I.  Adoption of Policy

 

            This Section P-90 of the Personnel Manual was adopted and is intended to fully implement the Act, subject to the penalties prescribed in the Act.

 

            Any variation between this policy and the Family and Medical Leave Act will be determined in favor of the Act.

 

Adopted:  September 1, 1993

 

Legal Ref.:  Family and Medical Leave Act – Public Law 103-3, 1993

 

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