§ 82-606. Requirements

(a) Medical leave. If the employee is requesting leave due to the employee's own or a covered family member's serious health condition, the employee and the relevant health care provider must supply appropriate medical certification (HR/CS form 16 for employee or HR/CS form 17 for family members). The county may also require a second opinion or third opinion at the county's expense. In the event of a third opinion, the third opinion will be binding. The county may require recertification of a medical condition:

(1) Every 30 days if deemed necessary by the manager/supervisor;

(2) When the employee requests an extension of leave;

(3) If the circumstances surrounding the leave change (for example, the employee has been absent continuously but the medical certification provides for intermittent leave for one to two episodes of two days each quarter);

(4) When the department receives information that casts doubt upon the continuing validity of the first certification; or

(5) The employer receives information that casts doubts upon the employee's stated reason for the absence.

(b) Medical certification. It is the employee's responsibility to provide the manager/supervisor a complete and sufficient medical certification. If the supervisor believes the medical certification is incomplete, the supervisor must return the medical certification to the employee, specify in writing what additional information is required, and allow the employee seven calendar days to provide the requested information (HR/CS form 15, Designation Notice). A certification is incomplete if:

(1) If one or more of the applicable entries on the form have not been completed or;

(2) If the information provided is vague, ambiguous, or non-responsive.

Under no circumstances may the employee's supervisor contact the employee's health care provider. If further assistance is required, the supervisor shall contact the human resources/civil service department.

Failure to provide the requested medical certification in the allotted time may result in a delay or denial of the family and medical leave and subject the employee to disciplinary action, up to and including termination for violation of the attendance policy.

(c) Employee leave request. Under this act, each employee is fully responsible for notifying the manager/supervisor of an injury or illness that will prevent him from working on a continuous basis for more than three days or that will require periodic absences for treatment and/or recovery from a serious health condition over the course of several months.

For example, an employee's minor child may not be able to go to school for three consecutive days due to the onset of an asthma attack or the health care provider has advised the employee to keep the child at home when the pollen count exceeds a certain level.

If leave is taken for a family and medical leave reason and the supervisor has not been made aware of the reason, the employee must notify the supervisor within two business days of returning to work of the reason for the leave. The employee may not assert FMLA protection for the leave in the absence of such timely notification.

Failure to properly notify may result in disciplinary action being taken, up to and including termination. When requesting family and medical leave:

(1) If the event is unplanned, such as a sudden illness or injury of the employee or an eligible members of the employee's family, the employee or a responsible party shall notify the county within 24 hours (see subsection 82-607(c));

(2) If the event is planned, such as surgery or childbirth, then the employee shall make every reasonable effort to provide the county with at least 30 days' notice of the dates the employee will be absent from work (see subsection 82-607(b)).

(d) Supervisor's role. The supervisor and employee must understand that the purpose of family and medical leave is to protect the job of an employee during a qualifying event. If an employee is out for more than three working days for a medical reason and has not requested family and medical leave by the fourth day or if an employee is periodically out for three or more working days in a three-month period for a medical reason and has not requested family and medical leave, the supervisor shall:

(1) Immediately send the employee all necessary forms for requesting such leave;

(2) Assess the medical absence in conjunction with the human resources/civil service department to determine if the employee is eligible for family and medical leave; the supervisor does not have to wait for a request from the employee; and

(3) Follow all outlined policies and procedures related to this matter.

If the supervisor fails to properly designate paid or unpaid leave as family and medical leave and the supervisor and/or the county later determines that the leave would qualify under FMLA guidelines, the entire leave period will be counted towards the employee's 12 weeks of FMLA entitlement. For example, if an employee has been off for a FMLA qualifying event and the department fails to send a notification, when the oversight is realized, a notice should to be sent to the employee. The time charged to FMLA leave begins the day the employee's absence began.

(e) Leave limits. Whether paid or unpaid, all eligible county employees are entitled to a total of 12 weeks of family and medical leave or 26 weeks of military care giver leave during a consecutive 12-month period. This leave is only paid during the portion of leave for which the employee has sick leave, vacation and personal leave accrued. The employee shall use the following paid leave before moving to a without pay status:

(1) Sick leave;

(2) Vacation leave;

(3) Holiday credit; and

(4) Personal day.

With the approval of the elected official/department head, employees may elect to use accrued compensatory time at the beginning or end of the family and medical leave period. The employee shall indicate his request to use accrued compensatory time on P/CS form 13; however, granting such leave is at the sole discretion of the elected official/department head since it will extend the time an employee is absent from work. However, use of the compensatory time does not run concurrently with FMLA and may not be counted against the employee's FMLA leave entitlement. Employees on paid leave will continue to accrue vacation and sick leave.

Example: If an employee has two weeks of approved accrued compensatory leave, he may utilize the compensatory leave at the time the family and medical leave would otherwise begin. After the two weeks of accrued compensatory leave has been used, the employee will have 12 weeks of paid (sick, vacation or personal) or unpaid family and medical leave available for the remainder of his medical condition.

(f) Workers' compensation and family and medical leave. All workers' compensation injuries which result in a "serious health condition," requiring the employee to be off work for more than three days or will require continuous treatment for which the employee will be absent from work will be designated as family and medical leave and will run concurrently. If workers' compensation payments are appropriate, they will be made in full compliance with all applicable laws. For employees who are off work due to a workers' compensation injury/illness, please refer to the county's workers' compensation policy.

(g) Pay increases and family and medical leave. Only paid time covered under family and medical leave shall count as time worked for purposes of merit increases, step increases, promotional increases, etc. Any and all unpaid time will not be counted as time worked. Once family and medical leave has been exhausted, all other time (paid or unpaid) taken during the applicable 12-month period will not be counted as time worked for these purposes. These provisions also apply to employees who are out on workers' compensation due to work-related injuries.

However, if the county makes salary/benefit modifications to all employees or to employees in the absent or injured employee's specific job category, then the employee may be impacted by these changes, if he meets all specified requirements.

(h) Insurance coverage; payments. While an employee is out on family and medical leave, the county will continue to provide group health benefits to the employee at the same level. However, the employee may choose not to retain this benefit. For dependent coverage:

(1) The employee may continue to pay premiums for all other insurance deductions, such as dependent coverage, additional life insurance, dental, etc.; or

(2) The employee may temporarily drop all other deductions, including employee group health plan for dependents, during the leave and reinstate them upon returning to work;

(3) If the employee does not make additional insurance payments (such as optional life, dental and dependent coverage) on a timely basis as specified by the auditor's office, the insurance coverage will be terminated; and

(4) Notices of billings and intent to cancel insurance coverage will be sent by the auditor's office to the employee's elected official/department head.

(i) Return to work. If an employee has been out on medical leave due to the employee's own health condition, the elected official/department head shall require a fitness for duty release from the employee's health care provider prior to allowing the employee to return to work. The fitness for duty release must be received from the employee no less than 48 hours prior to the return to work date. Law enforcement officers of the sheriff's department may require additional review by the employee health center physician before return to work. See sheriff's department, return to work guidelines, Appendix A, section 2.68 of the Sheriff's Department Civil Service Rules and Regulations for more information.

(j) Reimbursement of premiums.

(1) If an employee is able to return to work (as defined in subsection (j)(3) below) but fails to do so, the employee may be required to reimburse the county for the premiums the county paid on the employee's behalf during the family and medical leave. The only exceptions to this requirement are:

a. Failure to return to work as a result of a documented serious health condition affecting the employee or a family member which would otherwise entitle the employee to leave under FMLA;

b. The result of other circumstances beyond the employee's control, such as a spouse being unexpectedly transferred to a job location more than 75 miles from the employee's worksite; or

c. An employee who transfers directly from taking FMLA leave to retirement, or who retires during the first 30 days after the employee returns to work.

An employee will be required to submit appropriate documentation to substantiate reason for nonpayment of premiums.

(2) Reimbursement of sick leave. If an employee does not return to work after a fitness for duty release from the health care provider has been issued, the employee will be required to reimburse the county for sick leave taken after the release date and disciplinary action may be taken up to and including termination.

(3) Return to work determination. An employee who returns to work for at least 30 calendar days is considered to have returned to work. An employee who transfers directly from taking FMLA leave to retirement, or who retires during the first 30 days after the employee returns to work, is deemed to have returned to work.

(k) Additional time off. If an employee requires time off beyond the 12 weeks of leave, the employee must submit a written request to the supervisor immediately upon learning of the need to extend the leave. Additional leave is considered to be leave of absence and is granted at the discretion of the elected official/department head. See leave of absence policy found at sections 86-471 through 86-478. Failure to submit the written request before the family and medical leave period ends may result in the employee's separation of employment. This separation shall be treated as a voluntary resignation.

If an employee is granted additional time off in a nonpaid status beyond the 12 weeks of family and medical leave, the employee will be required to elect continuation of health coverage under COBRA. The COBRA benefit period will run concurrently with the individual's leave without pay status period. Any coverage not continued during FMLA status will not be eligible to be continued under COBRA. For more information, see sections 82-335 and 82-442 through 82-446 of this Code.

(l) Other. Falsification of documents is a violation of county policy which may result in the termination or denial of family and medical leave and also disciplinary action, up to and including termination.

(m) Violation of rights. It is unlawful for the county to interfere with, restrain or deny the exercise of any rights provided under this article. If an employee believes his rights under the Family and Medical Leave Act have been violated, the employee should contact the human resources/civil service department.

(Ord. No. 2000-485, §§ 5.12—5.21, 3-7-2000; Ord. No. 2002-1977, 10-29-2002; Ord. No. 2009-0883, 5-12-2009)