• Introduction
  
  

1. How does a City employee get FMLA leave?
   
   
2. Who is eligible? Who qualifies?
   
   
3. How much FMLA leave is allowed?
   
   
4. What are the FMLA occasions?
   
   
5. Definitions.
   
   
6. How may FMLA leave be taken?
   
   
7. Can I be transferred to an alternate position if I use FMLA leave intermittently or on a reduced leave schedule?
   
   
8. Does my department have to restore me to my old position when I return from FMLA?
   
   
9. What benefits does FMLA guarantee?
   
   
10. Is FMLA leave paid time?
    
    
11. Is maternity leave sick leave or family care leave paid time?
    
    
12. How does my FMLA leave relate to the six months of City Maternity/Paternity leave?
    
    
13. How may maternity/paternity FMLA leave be taken?
    
    
14. Can husbands and wives both take 12 weeks of FMLA upon the birth or receipt of a child?
    
    
15. What notice is required if an employee wants to take FMLA leave?
    
    
16. How soon is notice required if the need for FMLA leave is un-foreseeable?
    
    
17. When must an employee provide medical certifications?
    
    

18. What may a City departmental manager do if he or she questions the adequacy of the medical certification?
    
    
19. What recertifications during the use of FMLA leave may be required?
    
    
20. Are the FMLA users required to give periodic updates of their status and intention to return to work?
    
    
21. What documentation is required if a FMLA leave user wishes to return to work after recovering from a serious health condition?
    
    
22. Can the City Department (the employer) refuse to grant FMLA leave?
    
    
23. Under what conditions might reinstatement be denied?
    
    
24. What recourse does a City employee have if he or she feels that their FMLA rights are being denied?
    
    
25. What is City policy regarding unpaid leaves of absence as they relate to FMLA?
    
    
26. What happens to health benefits if the employee cannot return after FMLA leave? COBRA benefits?
    
    
27. What will the City do if the employee elects not to return after my FMLA leave expires?
    
    
28. What if the employee pays part of his or her health care costs? How does he or she guarantee that they continue?
    
    
29. Can employees use their own sick time to get paid time while using FMLA for family care?
    
    
30. Can the Department Managers designate an employee's use of regular City sick time as FMLA even though the employee doesn't request FMLA leave?
    
    

• Appendixes
  
  

The Family and Medical Leave Act (FMLA) was first effective February 5, 1993.  FMLA entitles an eligible employee to take up to a total of twelve (12) work weeks of unpaid leave during any twelve month period for such occasions as pregnancy and post-natal care of a child, for the placement (receipt) of a child for adoption or foster care, for the care of a spouse, a parent or a child with a serious health condition, or for the treatment or course of one's own serious health condition.  (See Appendix A for full definition of serious health condition.)

The City is required to continue any pre-existing health benefit coverage during the leave period and once the leave period is concluded to reinstate the employee to the same or equivalent job with equivalent benefits, and other terms and conditions of employment.  Employees have the right to substitute accrued leave of an appropriate nature toward the FMLA leave in order to have paid time, and the City exercises its right to require such use with the exception that it does not require the application of accrued vacation or compensatory time.  Further, the City requires that employees have their health care providers certify the existence and probable duration of all serious health conditions for those occasions where applicable in order to request FMLA leave.  As authorized by the Act, each City Department may require further certifications and periodic condition reports consistent with their own policy.  Further, as authorized by the Act, the City requires a fitness-for-duty certification from the employee's health care provider upon return to work.

Medical information shall be collected on federal government forms and will be received, processed and maintained as confidential and private material.  (Forms WH-380 and WH-381 are included as Appendix B.)

The following definitions and Questions and Answers are provided to explain the Law and City Policy.  They are based upon Title 29, Part 825 of the Code of Federal Regulations as published by the U.S. Department of Labor, April 1995, "The Family and Medical Leave Act."  The information also relies upon City Leave Policy as embodied in Civil Service Regulations and procedure developed to implement FMLA.  Employees should read this brochure and if questions remain they should consult their Personnel Officer or the EEO/Affirmative Action Unit of Central Personnel.

The Family and Medical Leave Act is a relatively simple law whose provisions overlay basic City leave policy, which in many instances is more generous.  This brochure is meant to help explain, the provisions of the Act, how the federal and city rules relate to one another, and to satisfy notification requirements enumerated by the Department of Labor.  In order to read text of the Act and to get further information employees are advised to speak to their Personnel Officers.

Employees who qualify request FMLA leave from their personnel officer who is designated as the departmental FMLA leave authorizing agent.  He or she will advise anyone about the features of the Law and how to apply.

A City worker

1. who has been employed a total of 12 months on the date on which any FMLA leave is to begin; and
   
   
2. who, on the FMLA leave beginning date, has been employed for at least 1,250 hours (about 24 hours a week) during the previous 12 month period.  The 1,250 hours must be on the job, not counting hours in leave status.
   
   

The entitlement lasts up to a total of 12 work weeks within a calendar year, which, once FMLA leave is first used, dates from that same day 12 months later.  The city adopted the "rolling" year concept, so the 12 month period is calculated from the first day of the previous year's use.  A new entitlement begins on the anniversary of that first use and each new entitlement 12 months later is earned according to the schedule it was first used.  An employee who uses 1 month in March 1994, and 2 months starting November 1994 has a new entitlement of 1 month in March of 1995 and 2 more months from November 1995.  An employee who uses one month in March of 1994, and no more FMLA time in the next eleven months, has 3 months of new entitlement starting in March of 1995.

1. The birth of a son or daughter, and to care for the newborn child.
   
   
2. The placement with the employee of a son or daughter by adoption or foster care, and to care for the newly placed child.
   
   
3. To care for a spouse, son, daughter or parent with a serious health condition.
   
   
4. An employee's own serious health condition that makes it impossible for the employee to perform one or more of the essential functions of the job.
   
   

PARENT

The biological parent of an employee or an individual who stands or stood in loco parentis to the employee when the employee was a child.  This term does not include parent "in-law."

SON or DAUGHTER

The biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is under 18 years of age or 18 years of age or older and incapable of self-care because of a mental or physical disability.

SPOUSE

The husband or wife as defined or recognized under State law for purposes of marriage in the state where the employee resides, including common law marriage in states where it is recognized.  This term does not include "domestic partner."

SERIOUS HEALTH CONDITION

See explanation on pages 3 and 4 of the accompanying WH-380 form "Certification of Health Care Provider".  (Also see Appendix A.)

HEALTH CARE PROVIDER

(quoted from CFR TITLE 29, Part 825 the Family and Medical Leave Act of 1993):

1. A doctor of medicine or osteopathy who is authorized to practice medicine or surgery by the State in which the doctor practices; or
2. Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice in the State and performing within the scope of their practice as defined under State law; and
3. Nurse practitioners, nurse-midwives and clinical social workers who are authorized to practice under State law and who are performing within the scope of their practice as defined under State law; and
4. Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts.
5. Any health care provider from whom an employer or a group health plan's benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits.
6. A health care provider as defined above who practices in a country other than the United States, who is licensed to practice in accordance with the laws and regulations of that country.

As a block of time up to 12 weeks and/or intermittently or on a reduced leave schedule.  Intermittent means leave taken in separate blocks of time due to a single qualifying reason.  A reduced leave schedule is an agreed upon reduction of an employee's usual number of working hours per workweek, or hours per workday.  A reduced leave schedule is a change in the employee's schedule for a period of time, normally from full-time to part-time.  Once designated as FMLA occasions both intermittent and reduced leave schedules will be counted as accumulations against the annual allowance approved for the original FMLA event, e.g. times off for asthma, physical therapy, recurring mental condition, etc.

When FMLA leave is taken for the birth or receipt of a child it is meant to be taken as single block of time for as much of the twelve week allowance as the parent wishes.  The employer may consider and grant alternative scheduling up to 12 weeks if the employee so requests.  Leave for such events must be taken within 12 months of the arrival of the child.

In other cases there is no federal limit on the size of an increment of leave, however, the City rule requiring that no interval be smaller than 1/2 (one-half) hour chargeable time does operate.

Yes, for as long as the FMLA leave is used, and provided that equivalence of pay, working conditions and benefits are granted by the employer.

Yes, or a precisely equivalent position which includes equivalent benefits, pay, and other terms and conditions of employment.  Restoration rights are absolute unless layoff, furlough, job action or some other event affecting similar employees has occurred, in which case, the employee is treated like the other worker in the same category.  Also, non-represented employees in the top 10% of their department's pay plan may not be allowed to return if that return represents a substantial and grievous economic injury.  Such employees, identified as key employees, must be advised of the potential for this rule to apply to their own case before they begin the FMLA leave.  This provision does not apply to represented employees.

Unlike leaves of absence, FMLA leave guarantees the continuation of health benefits including dental, optical and prescription plans (DOP's).  Upon re-instatement all other benefits that may have frozen must be restored under the same conditions as when the employee left, unless overall changes, affecting all other employees in the same category were made, in which case the returning employee will receive those changes.

No, but it can be if the one elects and/or the employer requires the application of accrued time toward the FMLA leave.  As a matter of policy Philadelphia does require that employees apply accrued Sick and Annual Administrative leave toward those FMLA leave occasions that are for their own serious health conditions, and if they are civil service, District Council 47 represented or non-represented, that they apply accrued Family Medical Leave and Administrative Leave toward a family care occasion (See below for special rules for maternity related FMLA leave).  Also employees may volunteer to apply any of their other accrued vacation and/or compensatory time to any remaining portion of unpaid FMLA leave, as they see fit.

Maternity leave is a special case.  It may begin as a serious health condition sick leave and change over into infant care.

When used as a serious health condition, accrued sick time must be used.

Prior to FMLA city departments often granted 4 weeks of pre-natal and 4 weeks post-partum as maternity related sick time.   Barring complications, which could extend this allowance, pregnant city employees have traditionally received 8 weeks of accrued sick time toward a maternity.  That time must now be seen as an FMLA occasion and an employee's accrued sick time must be used.  Any pregnancy related prenatal or post-partum sick leave must be applied to (subtracted from) an employee's FMLA entitlement.

After the mother's recovery any remainder of FMLA time used, i.e. up to twelve weeks will continue as unpaid maternity time and health benefits will continue. Consistent with the condition stated above the mother may wish to apply vacation time toward the rest of her FMLA leave; or may elect to take the remaining FMLA leave time unpaid.

Under Civil Service Regulation 22 you can get maternity/paternity leave.  This leave and FMLA leave can overlap.  The city's Maternity/Paternity Leave of Absence is meant to start with the birth or receipt of the child, and to run consecutively as a block of days from that point up to a total six month allowance.  As such it will commonly be overlapped by FMLA leave used for maternity/paternity occasions, and will normally follow 4 weeks of pre-natal FMLA/sick leave.  Because Maternity/Paternity Leave does not provide medical benefits FMLA leave, which does, will often work to the mother's advantage.  See also question #26, COBRA benefits.

As a consecutive block of days.  When a birth is involved the mother's time will normally start as prenatal sick leave, and unless the employer agrees to a different arrangement will run consecutively until the FMLA leave is exhausted or the mother elects to return, whichever is sooner.   If the occasion is an adoption or receipt of a child for foster care FMLA time is expected to begin upon receipt of the child and run consecutively to exhaustion or the personal decision to return.  The requirement for block usage applies whether the leave is requested for a mother or father.  If one parent decides not to use all of his or her FMLA leave for the birth or receipt of the child of course he or she could use any remainder of that time or for any other FMLA occasion.  (Not all possible instances of FMLA leave rules can be arrayed here. As questions arise, consult your department's personnel staff or the EEO/Affirmative Action Office of Central Personnel.)

No, a husband and wife who are eligible and are employed by the same covered employer, interpreted here as the same city department (appointing authority), are limited to a combined total of 12 weeks of leave during any 12 month period for a birth, a placement for adoption or foster care, or to care for the child after placement, or to care for one of the employee's parents.  Note that after such a combined use, say four weeks for the wife, and eight weeks for the husband, both employees retain an entitlement of eight and four weeks respectively for different FMLA qualifying occasions.  Note that this limitation on total FMLA time does not shorten the six month maternity/paternity leave of absence permitted under Civil Service Regulations and labor contracts.

Employees need to give verbal notice that they have an FMLA type occasion.  They do not need to use the words "FMLA Leave" or even refer to FMLA rights.  It is the City's policy to positively inform employees of the FMLA rights whenever a potential need arises.

Employees should provide their department managers with at least 30 days advance notice before FMLA leave is to begin if the need for the leave is foreseeable, based on an expected birth, placement for adoption or foster care, or planned medical treatment for a serious health condition of the employee or a family member.  If 30 days' notice is not practicable, because of a lack of exact knowledge of when leave will begin, or a change in circumstances, or a medical emergency, notice should be given as soon as practicable.

As soon as practicable means as soon as both possible and practical, taking into account all of the facts and circumstances in the individual case.  For foreseeable leave where it is not possible to give as much as 30 days notice, as soon as practicable ordinarily would mean at least verbal notification to the employer within one or two business days of when the need for leave becomes known to the employee.

Department managers may delay the taking of FMLA leave up to 30 days after the date the employee provides notice of the need for FMLA leave if the employee fails to provide a reasonable excuse for the delay.  If management takes this step the FMLA occasion must have been clearly predictable.

When the approximate timing of the need for leave is not foreseeable the employee should give notice to the employer as soon as practicable under the facts and circumstances of the particular case.  In such situations it is ordinarily expected that the employee will give notice to the employer within one or two working days of learning of the need.  Notice by telephone, facsimile or other electronic means given by the employee or an adult family member or other responsible spokesperson will be sufficient to begin the leave.

When FMLA leave is needed for a serious health condition for yourself or for a family member medical certification from the health care provider is required.  When the leave is foreseeable the certification should be submitted before the leave begins.  When it is not foreseeable certification should be given by two business days after the FMLA leave has been requested or begun but in no event later than 15 days after the employee receives a copy of the required certification form (Department of Labor Form WH-380) which will be transmitted from the employee's personnel office.  The health care provider must fill out the appropriate information.  Failure to return this certification can result in the denial of the FMLA leave request.

A city manager who has reason to doubt the validity of a medical certification may require the employee to obtain a second medical opinion at his or her department's expense.  Pending receipt of a second (or third) medical opinion the employee is provisionally entitled to the benefits of the Act.  If the certifications do not ultimately establish the employee's entitlement, the leave shall not be designated as FMLA leave and may be treated as paid or unpaid leave under established city procedure.

An employee who, in good faith, has participated in the medical certification review process and who ends up being unable to certify a serious health condition shall not be subject to further action other than losing that time he or she took off during the processing of the second and, if done, the third review.

It is city policy that the departmental managers consult with the Medical Evaluation Unit (MEU) Staff prior to deciding to require an employee to seek a second medical opinion.  The MEU staff will communicate with the employee's health care provider for purposes of clarification of the authenticity of the medical certification.  If, in the opinion of the MEU staff a second opinion is warranted, the MEU will advise the employee's department officials of an appropriate practitioner(s) who will examine/evaluate the condition claimed as FMLA qualifying.  A third practitioner, approved by both the employee and department manager, will make the final evaluation if the first and second opinions contradict.  The City and the employee must act in good faith in their attempts to reach agreement and resolution.

Depending upon individual departmental practice, Personnel Managers may require recertification of the serious health condition of the employee every 30 days for the absent employee unless the original certification specified a longer duration for recuperation, in which case they should not request recertification until that time period has passed.

Yes, on a pre-determined schedule by departmental officials, or at the moment any significant change affecting the duration of FMLA leave or intention to return occurs.

It is city policy to require a fitness-for-duty report from the employee's own health care provider if the FMLA leave was for the employee's own serious health condition.  Such documentation will establish that the employee may return to work.  However, in accordance with Civil Service Regulation 9.141, the City also requires that a person shall submit to a medical examination by the staff at the City Medical Examination Unit under two conditions:

1. if the individual to be reinstated was hospitalized or treated by a physician during his or her absence (with Reg. 9.1411)
   
   
2. if the employee has been absent due to illness or non-service connected injury for fifteen (15) or more consecutive working days (with Reg. 9.1414)

Normally such MEU examination will be limited to those indicators necessary to determine the individual's ability to perform the essential job functions related to his or her job without injury to self or others.  MEU will make every effort to conduct this examination on the day of the employee's return.  An employee's return to work cannot be delayed pending MEU evaluation.

Yes, if

• the employee fails to give timely advance notice when the leave is foreseeable.  Also, the law allows the employer to delay the leave up to 30 days after the date the employee provides notice.  See questions 15 and 16.
  
  
• the employee fails to provide a required medical certification to substantiate the need for FMLA leave.  It is city policy to require such medical certification for all requests for FMLA leave involving a serious health condition.  If no certification is received and the employee stays absent the time off is not FMLA leave.

1. An employee has no greater right to reinstatement or to other benefits and conditions of employment then if the employee had been continuously employed during the FMLA leave period.  Thus an employee's rights to continued leave, maintenance of health benefits and restoration cease if and when the employment relationship terminates (such as for a layoff, or settlement of a dismissal which was pending before the employee qualified for FMLA leave).
   
   
2. If the employee states a clear intention not to return after FMLA the employer can discontinue FMLA and the health benefit effective to the day the employee exhausts their accrued time (such as sick leave, vacation, compensatory time, etc.).
   
   
3. If the employee is a "key" employee, defined in the Act as one who is among the highest paid 10% of all the employees employed by the employer within 75 miles of the employee's worksite, he/she may be denied reinstatement if such denial is necessary to prevent substantial and grievous economic injury to the operations of the employer.  Refer to the Department of Labor guidelines for further information about this condition of the Act.  The City has agreed that it shall not apply to any employee in a recognized bargaining unit.
   
   
4. An employee who fraudulently obtains FMLA leave is not protected by FMLA's job restoration or maintenance of health benefits provisions.
   
   
5. An employee who willfully fails to comply with the procedural requirements to obtain FMLA leave or to document fitness-for-duty to return to work from FMLA leave may be denied reinstatement.
   
   

An employee who is denied FMLA leave but who meets the conditions of timely request and appropriate certification has a number of places to appeal.  Represented people may wish to have their union representatives pursue their case; both individual or union representatives can contact Central Personnel's EEO/Affirmative Action Unit to receive counseling about the law and the City's procedure.

In addition to the right to sue one can appeal or register a complaint to the Secretary of Labor by contacting the local Department of Labor's Wage and Hour Division in person, by mail or by telephone. The phone number is 215-597-4950.

Unpaid leaves of absence are governed by with Civil Service Regulation 22.  They are granted by the appointing authority subject to the approval of the Personnel Director.  Also entitlement to leaves of absence may be covered by applicable collective bargaining agreements.

Generally speaking Leaves of Absence will be considered only after any applicable FMLA leave is expended and accrued paid leaves are exhausted, with the exception of maternity\paternity leave which overlaps FMLA leave from the birth or receipt date of the child.  They are granted on a case by case basis and may not exceed one year, unless specifically extended by approval of the appointing authority and the Personnel Director.

If the LOA is denied and that denial has the effect of separating the employee from City service the former employee may appeal to the Civil Service Commission within thirty (30) calendar days.

LOAs are unpaid separations taken without health benefits, although the employee can pay for the continuation of health insurance while the LOA is in effect.  (See question 26, COBRA benefits.)  For persons involved with extended serious health conditions LOAs preserve the right of re-instatement for up to twelve (12) additional months.

The City obligation to continue health benefits under FMLA ceases if the employee does not return to work and the 12 week entitlement is exhausted.  This occasion creates the qualifying event enabling the employee to elect to continue 18 months of the health benefits by paying their own insurance premiums, a right created by federal COBRA legislation.  See your Personnel Officer if you need to use this entitlement.

The City will recover the money it spent for the health benefits used during the unpaid portion of your FMLA leave unless you stay away for one of the following:

1. The continuation, recurrence or onset of a serious health condition of the employee or the employee's family member which would otherwise entitle the employee to leave under FMLA; or
   
   
2. Other circumstances beyond the employee's control
   
   

Group health plan benefits must be maintained on the same basis as coverage would have been provided if the employee had been continuously employed during the FMLA leave period for that portion which is taken as unpaid time.  Those persons who participate in co-pay health plans must arrange to continue payment or their health benefit may cancel.

The requirement for the employee to continue co-payments is part of the Act; the manner in which it is done should be arranged between the employee and his or her personnel office.  The resultant payment schedule should not require advances or prepayments unless the employee so volunteers.

Not unless he or she is a member of District Council 47 or is a non-represented employee.  Such employees can apply up to 5 days of the Family Sick Leave provided for them in with Civil Service Regulation 22.023.  Other City employees do not have the benefit of Civil CSC Reg. 22.023 and cannot use their accrued sick leave to get paid FMLA leave while they are caring for a sick relative . See Question 10.

Yes, in all circumstances it is the employer's responsibility to designate leave, paid or unpaid as FMLA qualifying, and to give notice of the designation to the employee.

Once the employer, (the FMLA leave approving authority for a City agency) has acquired knowledge that the leave is being taken for an FMLA required reason the employer must promptly (within two business days absent extenuating circumstance) notify the employee that the paid leave is designated and will be counted as FMLA leave.  Such notice may be orally or in writing.  If the notice is oral, it shall be confirmed in writing within six days.  The employer's decision must be made within two days of the time the employee gives notice of the need for the leave, or, where the employer does not initially have sufficient information to make a determination, when the employer determines that the leave qualifies as FMLA leave if this happens later.  The employer's designation must be made before the leave starts, unless the employer does not have sufficient information as to the employee's reason for taking the leave until after the leave commenced.  If the employer has the requisite knowledge to make a determination that the paid leave is for an FMLA reason at the time the employee either gives notice of the need for leave or commences leave and fails to designate the leave as FMLA leave, the City cannot designate the leave retroactively, and may date only prospectively as of the date of the notification.  In such circumstances, the employee is subject to the full protection of the Act, and none of the absence preceding the notice to the employee of the designation may be counted against the employee's 12 week FMLA leave entitlement.

1. CFR Title 29, Part 825: Definition of Serious Health Condition.
   
   
2. U.S. Department of Labor Forms:
   • WH 380
   • WH 381
   
   
   
3. U.S. Department of Labor Publication WH-1420: Notice to Employees of Rights Under FMLA.