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HomeMy WebLinkAboutAgenda - 05-18-2010 - 4oORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: May 18, 2010 Action Agenda Item No. SUBJECT: Amendment to the Orange County Personnel Ordinance, Article IV, Section 14.0, Family Leave to Add Provisions for Family Medical Leave Act of 1993 DEPARTMENT: Human Resources PUBLIC HEARING: (Y/N) No ATTACHMENT(S): Current: Orange County Personnel Ordinance Article IV, Section 14.0, Family Leave and Proposed: Amendment to Orange County Personnel Ordinance Article IV, Section 14.0 of the Personnel INFORMATION CONTACT: Michael McGinnis, Human Resources Director, 245-2552 Diane Shepherd, Benefits Manager, 245-2558 Ordinance, Family Medical Leave Annette Moore, Staff Attorney, 245-2317 2. Administrative Rules and Regulations PURPOSE: To consider an amendment to Article IV, Section 14.0 of the Orange County Personnel Ordinance to add provisions relating to the Family and Medical Leave Act of 1993 ("FMLA"). BACKGROUND: The Orange County Personnel Ordinance was adopted in 1985. Since its adoption, laws affecting the rights and responsibilities of both employees and employers have changed significantly. In 1993, Congress enacted the Family and Medical Leave Act. Although the County has been complying with all aspects of the FMLA since its enactment, the Personnel Ordinance was not amended to include FMLA provisions. The FMLA originally provided for employees to take up to 12 weeks of unpaid, job-protected leave in a 12-month period to care for a family member with a serious health condition; for the birth, adoption, or fostering of a child; and to care for a personal serious health condition. FMLA leave can be taken intermittently, and can run concurrently with accrued paid leave (such as sick and vacation leave) to cover some or all of the FMLA leave. It also requires covered employers to provide health insurance during the absences as if the employee were actively employed. Orange County employees are eligible for FMLA if they have: Worked for the County for a total of 12 months; and Worked at least 1,250 hours over the previous 12 months In 2008 and 2009, the National Defense Authorization Act of 2008 and 2010 amended the FMLA to expand its coverage to family members of military personnel. These changes became 2 effective in 2009 and 2010. The expanded coverage provided that family members of military personnel are eligible to receive: • Up to 12 weeks of unpaid, job protected leave in a 12-month period for specified family and medical reasons, or for any "qualifying exigency"~ arising out of the fact that a covered military member is on active duty, or has been notified of an impending call or order to active duty, in support of a contingency operation. • Up to 26 weeks of job protected leave in a "single 12-month period" to care for a covered servicemember with a serious injury or illness. Currently, the language in Article IV, Section 14.0 of the Orange County Personnel Ordinance (see attachment 1) which addresses Family Leave provides for up to three consecutive days of paid leave for the birth or adoption of a child for all employees, including part-time and probationary employees. The language currently in the Ordinance allows part-time and probationary employees who may not be covered under FMLA to have up to three consecutive days of leave for the birth or adoption of a child. At this time, staff is not recommending a change to the leave entitlement. Staff recommends that Article IV, Section 14.0 Orange County Personnel Ordinance be amended to add the provisions of the FMLA as provided in Attachment 1 with the corresponding Rules and Regulations (Attachment 2) proffered by the County Manager. This amendment would make Orange County's Personnel Ordinance compliant with the Family Medical Leave Act of 1993, and any amendment thereto. FINANCIAL IMPACT: There is no financial impact associated with the consideration of this amendment to the Orange County Personnel Ordinance. RECOMMENDATION(S): The Manager recommends the Board approve the amendment to Article IV, Section 14.0, Family Medical Leave to be effective upon signature of the Administrative Rules and Regulations by the County Manager. Examples of qualifying exigencies are: short notice deployment; military events and related activities, child care and related activities arising out of call to services; making financial and legal arrangements to address military members' absence, and post deployment activities. U.S Depmtment of Labor Wage and Hour Division, Fact Sireet #28A: The Fmnily and Medical Leave Act Military FanrtlyLeave Entitlenrenls. o~p-~~io-ohs Attachment 1 Current Orange County Personnel Ordinance Article IV, Section 14.0 Family Leave 14.0 Family Leave 14.1 Three (3) consecutive days of paid Family Leave may be taken by a fiill- Amenaca time or part-time permanent or probationary employee upon the birth of o3/osl9o the employee's child. This leave must be taken during the child's first week of life. 14.2 An employee adopting a child will be eligible to take tluee (3) consecutive Amenaea days of paid Family Leave. The employee will be eligible to take this leave 03/05/90 after the adoption has been finalized during the first week the child is in the employee's home. Proposed Amendment to Orange County Personnel Ordinance Article IV, Section 14.0 Family Medical Leave 14.0 Family Medical Leave 14.1 In accordance with the provisions of the Family and Medical Leave Act (FMLA) of 1993 and any amendments thereto, Orange County will provide qualified employees up to twelve weeks of unpaid leave in a 12-month period for specified family and medical reasons, or for any "qualifying exigency" arising out of the fact that a covered military member is on active duty, has been notified of an impending call for duty or• is ordered to active duty, in support of a contingency operation, or to take up to 26 weeks of job-protected leave in a single 12-month period to care for a covered service member with a serious injury or illness. 14.2 An employee may take up to tluee days of consecutive paid leave for the birth or adoption of his or her child during the child's first week of life or first week in the home or for the fostering of a child under the age of five during the child's first week in the home. 14.3 The County Manager will provide Rules and Regulation to carrry out the purpose of this section of the Ordinance. %~~~~- ~ Orauge County Personnel Rules and Regulations Effective Date: May 17, 2010 4 Family and Medical Leave I. ORDINANCE Arllcle IY, Section I4 Fafnily and Medical Leave 14.1 In accordance with the provisions of the Family and Medical Leave Act (FMLA) of 1993 and any amendments thereto, Orange County will provide qualified employees up to twelve weeks of unpaid leave in a 12-month period for specified famil}= and medical reasons, or for any "qualifying exigency" arising out of the fact that a covered military member is on active duty, has been notified of an impending call for duty or is ordered to active duty, in support of a contingency operation, or to take up to 26 weeks of job- protected leave in a single 12-month period to care for a covered service member with a serious injury or illness. 14.2 An employee may take up to tluee days of consecutive paid leave for the birth or adoption of his or her child during the child's first week of life or first week in the home or for the fostering of a child under the age of five during the child's first week in the home. 14.3 The County Manager will provide Rules and Regulation to carry out the purpose of this section of the Ordinance. IL AUTHORITY The purpose of this rule is to implement and give effect to Article IV, Section 14.0 of the Orange County Personnel Ordinance, Family and Medical Leave. These Administrative Rules and Procedures provide for consistent application of the Ordinance to ensure that Orange County employees are treated in a manner that equals or exceeds the requirements of the Family and Medical Leave Act, and any amendments thereto. III. RULE The Orange County Family and Medical Leave (hereinafter "FML") section of the Persormel Ordinance provides employees, who have worked for Orange County for a total of 12 months and have worked for Orange County at least 1,250 hours over the previous 12 months to take up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons: • for the birth and care of a newborn child of the employee; • for placement with the employee of a son or daughter for adoption or foster care; • to care for a spouse, son, daughter, or parent with a serious health condition; • to take medical leave when the employee is unable to work because of a serious health condition; or • for qualifying exigencies arising out of the fact that the employee's spouse, son, daughter, or parent is on active duty or call to active duty status in support of a contingency operation. • Emplo}=ees may also take up to 26 weeks ofjob-protected leave in a single 12-month period to care for a covered service member with a serious injury or illness. Issue Hate: May 17, 2010 Page 1 Orange County Personnel Rules and Regulations Effective Date: May 17, 2010 5 IV. ADMINISTRATIVE RULE5 AND REGULATIONS A. FML Employee Eligibility. 1. An employee's eligibility for family and medical leave shall be made based on the employee's months of service and hours of work as of the date leave is to commence. Employees must have worked for Orange County for a total of 12 months and have worked at least 1,250 hours over the previous 12 months in any category of employment. 2. Employment periods prior to a break in service of seven years or more need not be counted in determining whether the employee has been employed by the County for at least 12 months. Time spent in the National Guard or reserves counts as time . worked to determine eligibility for family and medical leave. B. FML Leave Entitlement 1. Family and Medical Leave. An eligible employee is entitled to a total of 12 workweeks, paid or unpaid, leave during the 12-month period beginning with the first day of Family and Medical Leave taken: a. For the birth of a child and to care for the newborn child after birth, provided the leave is taken within a 12-month period following birth; or b. For the placement of or to care for a child placed with the employee for adoption or foster care, provided the leave is taken within a 12-month period following placement, or c. For the employee to care for the employee's child, spouse, domestic partner or parent, where that child, spouse, domestic partner or parent has a serious health condition; or d. Because the employee has a serious health condition that prevents the employee from performing one or more essential functions of the position; or e. Because of any qualifying exigency arising out of the fact that the spouse, domestic partner or a son, daughter, or parent is a covered military member on active duty (or has been.notified of an impending call or order to active duty=) in support of a contingency operation. 2. Military Caregiver Leave (Covered Service Member Leave). a. Eligible Employee. An eligible employee who is the spouse, domestic partner, son, daughter, parent, or next of kin of a covered service member shall be entitled to a total of 26 workweeks of leave during a single 12- month period (commencing on the date the employee first takes leave) to care for a covered service member who has a serious injury or illness Issue Date: May 17, 2010 Page 2 Orange County Personnel Rules and Regulations Effective Date: May 17, 2010 6 incurred in the line of duty on active duty for which he or she is undergoing medical treatment, recuperation or therapy; or othervrise in outpatient status; or on the temporary disability retired list. b. The 26-workweek entitlement is to be applied as aper-covered service member, per-injury basis such that an eligible employee may be entitled to take more than one period of 26 workweeks of leave if the leave is to care for different covered service members or to care for the same service member with a subsequent serious injury or illness. During the single 12- month period, an eligible employee shall be entitled to a combined total of 26 workweeks of leave for any qualifying reason. c. Covered Servicemember. A current member of the Armed Forces, including a member of the national Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is other•~vise in outpatient status, or is othertivise on the temporary disability retired list, for a serious injury or illness. 3. Serious Health Condition-Definition. For purposes of this section, a serious health condition is defined as: a. An illness, injury, impairment, or physical or mental condition that involves either an overnight stay in a hospital, hospice or residential medical facility, including any period of incapacity or continuing treatment by a health care provider for a condition that either prevents the employee from performing the functions of the employee's job, or prevents the qualified family member from participating in school or other daily activities. b. Depending on the circumstances, the continuing treatment requirement may be a period of incapacity of more than three consecutive calendar days combined with at least two visits to a health care provider or one visit and a regimen of continuing treatment, or incapacity due to pregnancy, or incapacity due to a chronic condition. 4. Covered Period. The period of eligibility is measured forward from the first date the employee's farnily and rnedical leave is taken. The next 12 month period begins the first time leave is taken after completion of the previous 12 month period. For example, if an employee first used FML on March 15, 2009, the twelve week entitlement ends on March 14, 2010 and a new 12 rnonth period would begin when the employee again needed leave. 5. Immediate Family. Immediate family members are defined as the employee's spouse, domestic partner, parent, son and daughter (which also includes step, foster and domestic partnership relationships}. 6. Paid or Unpaid Leave. An employee may use paid leave (e.g., personal, sick, vacation leave) concurrently with FML to supplement any unpaid leave or may use a combination of paid and unpaid leave. Issue Date: May 17, 2010 Page 3 Orange County Personnel Rules and Regulations Effective Date: May 17, 2010 7 a. Fair• Labor Standards Act. Employees subject to the Fair Labor Standards Act ("FLSA") must first use any accrued overtime compensatory time during FML. b. Overtime Compensatory Time. All overtime compensatory time and paid leave used shall be counted against the employee's FML entitlement. c. 12 ~TJeek Entitlement. All approved periods of paid leave and periods of leave without pay (including leave without pay while drawing short-term disability benefits) count towards the 12 (or 26, as appropriate} workweeks to which the employee is entitled. d. Worker's Compensation. If an employee is out on workers' compensation leave, the time away from work is not considered as a part of the FML entitlement. e. Leave Without Pay Status. The Department shall keep track of the employee's leave and notify Human Resources if the employee enters leave without pay status. (Use Personnel Action Form) 7. Intermittent Leave. Intermittent leave may be taken "intermittently or on a reduced leave schedule" under certain circumstances. a. Increments of Leave. Intermittent leave can be taken in separate blocks of time due to a single qualifying reason. A reduced leave schedule is a leave schedule that reduces 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. b. Medical Need. There must be a medical need for leave and it must be that such medical need can be best accommodated through an intermittent or reduced leave schedule. The treatment regimen and other information described in the certification of a serious health condition and in the certification of a serious injury or illness, if required, must address the medical necessity of intermittent leave or leave on a reduced leave schedule. c. Intermittent Leave may be taken intermittently or on a reduced schedule for the following: i. When medically necessary, to care for the employee's child, spouse, domestic partner, parent who has a serious health condition, or because the employee has a serious health condition. (This would also apply to next of kin to care for a service member.) ii. Because of any qualifying exigency arising out of the fact that the spouse, domestic partner, son daughter, or parent is on active duty or has been notified of an impending call or order to active duty. Issue Date: May 17, 2010 Page 4 Orange County Personnel Rules and Regulations Effective Date: May 17, 2010 8 iii. When leave is taken after childbirth or for adoptionlfoster care, the employee may take leave intermittently or on a reduced schedule if the County agrees. County's agreement is not required for leave during which the mother has a serious health condition in connection with the birth of the child or if the newborn child has a serious health condition. d. If leave is foreseeable, based on planned medical treatment, the County may require the employee to h~ansfer temporarily to an available alternative position for which the employee is qualified and that has equivalent pay and benefits and better accommodates recurring periods of leave. 8. FMLA Poster. Each department is required to post in conspicuous places a notice explaining the Family and Medical Leave Act's provisions and providing information concerning the procedures for filing complaints of violations of the Family and Medical Leave Act with the North Carolina Wage and Hour Division. The notice must be posted prominently where it can be readily seen by employees and applicants for employment. The Human Resource Department shall ensure that each Department is provided a copy of the approved notification. 9. Notice of Eligibility Provided. When an employee request FML or when the employee's department acquires knowledge that an employee leave maybe for an FML-qualifying reason, the department shall notify Human Resources of the possibility of FML within 24 hours. The Human Resource Department will provide both the employee and the department notification of the employee's eligibility to take FML within five business days, absent extenuating circumstances. a. The Human Resource Department shall provide the employee with written notice detailing the specific expectations and obligations of the employee and explaining any consequences of failure to meet those obligations. Notice shall be provided to the employee each time FML is requested. If the employee's leave has already begun, the notice of eligibility shall be mailed to the employee's address of record. Such notice must include, as appropriate: i. That the leave may be designated and counted against the employee's annual FML entitlement; ii. Requirements for the employee to provide health care or other certifications; iii. The employee's right to substitute paid leave for unpaid leave; iv. Requirement for the employee to make any premium payments to maintain health benefits and the arrangements for making such payments; v. The employee's status as a "key employee" and the potential consequence that restoration may be denied following FML, explaining the conditions required for such denial; Issue Date: May 17, 2010 Page 5 Orange County Personnel Rules and Regulations Effective Date: May 17, 2010 9 vi. The employee's rights to maintenance of benefits during the FML and restoration to the same or an equivalent job upon return from FML; and vii. The employee's potential liability for pa}=ment of health insurance premiums paid by the County during the employ=ee's unpaid FML if the employee fails to return to work after taking FML. b. An employee eligibility is determined (and notice must be provided) at the commencement of the first instance of leave for each FML-qualifying reason in the applicable 12-month period. i. All FML absences for the same qualifying reason are considered a single leave and employee eligibility as to that reason for leave does not change during the applicable 12-month period. ii. If, at the time an employee provides notice of a subsequent need for FML during the applicable 12-month period due to a different FML-qualif}=ing reason, and the employee's eligibility status has not changed, no additional eligibility notice is required. iii. If, an employee's eligibility status has changed Human Resources shall notify the employee of the change in eligibility status within five business days, absent extenuating circumstances. c. If the employee is not eligible for FML, the notice must provide the reason(s) why the employee is not eligible for FML. Notification of eligibility must be in writing. 10. Designation of Leave as FML. a. The Human Resource Department will provide the employee with Designation of Family and Medical Leave based upon a FML qualifying reason and designate an employee's leave, whether paid or unpaid, as FML. i. The Human Resource Department will provide the employee with notice of the designation within five business days, absent extenuating circumstances. The notice may be oral or in writing, but must be confirmed in writing no later than the following payday. ii. FML will be designated as FML qualifying reason(s), based upon information provided by the employee or the employee's representative (e.g., spouse, parent, physician, etc.). iii. If the Human Resource Department determines the employee's leave will not be designated as FML-qualifying (e.g., if the leave is not for a reason covered by FML or FML entitlement has been exhausted), Human Resources will notify the employee of the determination. iv. For FML for Military Caregiver that also qualifies as leave taken to care for a family member with a serious health condition, the County must designate such leave as Military Caregiver Leave Issue vale: May 17, 2010 Page 6 Orange County Personnel Rules and Regulations Effective Date: May 17, 2010 ~ ~ first. The leave cannot be counted against both an employee's entitlement to 26 workweeks of leave for a military caregiver and 12 workweeks of FML for other FML-qualifying reasons. v. If employee will be required to present a fitness-for-duty certification to be restored to employment, the designation notice shall provide notice of the requirement. If afitness-for-dut}~ certification that addresses the employee's abilit}~ to perform the essential functions of the employee's position is needed, the designation notice will include a list of the essential firncfions of the employee's position. vi. The designation notice shall also contain the amount of leave counted against the employee's FML entitlement. b. An employee's leave may retroactively be designate as FML. However, if leave is designated as FML retroactively, timely notice must be given to the employee of such designation such that the designation does not cause hatrrt or injury to the employee. In all cases where leave qualifies for FML protections, the County and employee can mutually agree that leave be retroactively designated as FML. c. When an employee is on paid leave but has not given notice of the need for FML, the County shall, after a period of 10 workdays, request that the employee provide sufficient information to establish whether the leave is for aFML-qualifying reason. This does not preclude the County from requesting the information sooner, or at any time an extension is requested. d. If an absence which begins as other than FML later develops into an FML qualifying absence, the entire portion of the leave period that qualifies under FML may be counted as FML. e. The County may not designate leave that has already been taken as FML after the employee returns to work, except if an employee is out for a reason that qualifies for FML and the County does not learn of the reason for the leave until the employee returns to work, the County may designate the leave as FML within two business days of the employee's return (such as when the employee's medical certification is received within the 15 day timeframe, but after a return to work). f An employee who gives notice of the reason for leave more than two days after returning to work, shall not entitled to the protection of the FML. Issue Date: May 17, 2010 Page 7 Orange County Personnel Rules and Regulations Effective Date: May 17, 2010 ~ 1 11. Employee Responsibilities to Provide Notice. It is the employee's responsibility to provide notice to the supervisor of the intention to take FML unless the FML is unforeseeable or medical emergency. The notice must follow the County's usual and customary call-in procedures for reporting an absence. The employee must explain the reasons for the needed leave in order to allow the County to determine whether the leave qualifies as FML. a. If the need for leave is foreseeable, as in the case of planned medical treatment, birth, adoption or foster care, the employee shall give not less than a 30-day notice, in writing. If the date of the birth or adoption requires leave to begin in less than 30 days, the employee shall provide such notice as is practicable, which means within one or two business days of when the need for leave becomes known to the employee. For planned medical treatment, the employee shall make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the department. b. For leave due to Active Duty of Family Member, the employee shall provide such notice as is reasonable and practicable. c. If the employee will not return to work after the period of leave, the employee's supervisor shall be notified in writing. Failure to report at the expiration of the leave, unless an extension has been requested and approved, may be considered as a resignation. 12. Certification a. Certification Requirements. Human Resources shall request the employee provide medical certification will be requested within five business days after the employee provides notice of the need for FML or if leave is unforeseeable five days after the leave has commenced. The employee shall provide a copy of the health care provider's certification within the time frame requested by the County, but no more than 15 calendar days after requested, unless it is not practicable under the particular circumstances to do so despite the employee's diligent, good faith efforts. If the employee does not provide medical certification, any leave taken is not protected by FML. b. Validity of Certification. If an employee submits a complete certification signed by the health care provider, the Human Resource Department may not request additional information; however, a health care provider, humazl resource professional, or a management official representing the County may contact the employee's health care provider, with the employee's permission, for purposes of clarification and authenticity of the medical certification. However, in no case, shall the employee's direct supelvisor contact the employee's health care provider. If the County deems a medical certification to be incomplete or insufficient, the County must specify in writing what information Issue Date: May 17, 2010 ~ Page S Orange County Personnel Rules and Regulations Effective Date: May 17, 2010 ~ 2 is lacking, and give the employee seven calendar days to cure the deficiency. ii. Second Opinion. The County is permitted to designate the health care provider to furnish the second opinion, but the selected health care provider map not be employed on a regular basis by the Counf~~. If there is reason to doubt the validity of a medical certification, the County may require the employee to obtain a second opinion with the following conditions: 1. The County bears the expenses, including reasonable "out of pocket" travel expenses. 2. The County may not require the employee or family member to travel outside normal commuting distance except in very unusual circumstance. 3. Pending receipt of .the second (or third) opinion, the employee is provisionally entitled to FML. 4. If the certifications do not ultimately establish the employee's entitlement to FML, the leave shall not be designated as FML. iii. Third Opinion. If the opinions of the employee's and the County designated health care providers differ, the County may require the employee to obtain certification from a third health care provider, again at the County's expense. Tlris third opinion shall be final and binding. The third health care provider rnust be designated or approved jointly by the County and the employee. iv. The County is required to provide the employee, within two business days, with a copy of the second and third medical opinions, where applicable, upon request by the employee. 13. Recertification of Medical Conditions. a. The County may request recertification no more often than every 30 days unless: i. An extension is requested; ii. Circumstances described by the previous certification have changed significantly; or iii. The County receives information that casts doubt upon the employee's stated reason for the absence. b. If the minimum duration specified on a certification is more than 30 days, the County may not request recertification until that minimum duration has passed, unless the duration is "lifetime" or "unknown," the County may request recertification of an ongoing condition every six months in conjunction with an absence. c. The employee must provide the requested recertification to the County within the time flame requested by the County (which must allow at least 15 calendar days after the CountS~'s request), unless it is not practicable under the particular circumstances. Issue Dafe: May 17, 2010 Page 9 Orange County Personnel Rules and Regulations Effective Date: May 17, 2010 13 d. Any recertification requested by the County shall be at the employee's expense unless the County provides otherwise. No second or third opinion on recertification may be required. 14. Certification Requirements for Military Caregiver Leave. When leave is taken to care for a covered service member with a serious injury or illness, the County may require an employee to obtain a certification completed by an authorized health care provider of the covered service member. If the authorized health care provider is unable to make certain military-related determinations outlined below, the authorized health care provider may rely on deternnations from an authorized DOD representative (such as a DOD recovery care coordinator). a. The health care provider shall be requested to provide the following information: i. The name, address, and appropriate contact information (telephone number, fax number, and/or email address) of the health care provider, the type of medical practice, the medical specialty; ii. Whether the covered service member's injury or illness 'was incurred in the line of duty on active duty; iii. The approximate date on which the serious injury or• illness commenced, and its probable duration; iv. Information sufficient to establish that the covered service member is in need of care and whether the covered service member will need care for a single continuous period of time, including any time for treatment and recovery, and an estimate as to the beginning and ending dates for this period of time; v. If an employee requests leave on an intermittent or reduced schedule basis for• planned medical treatment appointments for the covered service member, whether there is a medical necessity for the covered service member to have such periodic care and an estimate of the treatment schedule of such appointments; vi. If an employee requests leave on an intermittent or reduced schedule basis to care for a covered service member other than for planned medical treatment (e.g., episodic flare-ups of a medical condition), whether there is a medical necessity for the covered service member to have such periodic care, which can include assisting in the covered sen=ice member's recovery, and an estimate of the frequency and duration of the periodic care. b. In addition the County may also request that such certification set forth the following information provided by an employee and/or covered service member: i. The name of the employee requesthrg leave to care for a covered service member and the name of the covered service member for whom the employee is requesting leave to care; ii. The relationship of the employee to the covered service member for whom the employee is requesting leave to care; Issue Date: may 17, zoro Page 10 Orange County Personnel Rnles and Regulations Effective Date: May 17, 2010 14 iii. Whether the covered service member is a current member of the Armed Forces, the National Guard or Reserves, and the covered service member's military branch, rank, and current unit assignment; iv. Whether the covered service member is assigned to a military medical facility as an outpatient or to a unit established for the purpose of providing command and control of members of the Armed Forces receiving medical care as outpatients (such as a medical hold or warrior transition unit), and the name of the medical treatment facility or unit; v. Whether the covered service member is on the temporary disability retired list; vi. A description of the care to be provided to the covered service member and an estimate of the leave needed to provide the care. d. An employee may use the Department of Labor form, WH-385; to obtain certification that meets FML's service member medical caregiver certification requirements. (httn:!/www.dol.gov/whd/formslWH-385.pdf) This form allows an employee to furnish appropriate information to support his or her request for leave to care for a covered service member with a serious injury or illness. An alternate form containing the same basic information may be used. e. The County may seek authentication and/or clarification of the certification. However, second and third opinions are not permitted for leave to care for a covered service member. Additionally, a recertification is not permitted for leave to care for a covered service member. 15. Certification for Leave for Qualifying Exigencies. The County may require that leave for any qualifying exigency be supported by a certification from the' employee that sets forth the following information: a. A statement or description, signed by the employee, of appropriate facts regarding the qualifying exigency for which FML is requested. The facts must be sufficient to support the need for leave. Such facts should include information on the type of qualifying exigency for which leave is requested and any available written documentation which supports the request for leave; such documentation, for example, may include a copy of a meeting announcement for informational briefings sponsored by the military, a document confirming an appointment with a counselor or school official, or a copy of a bill for services for the handling of legal or financial affairs; b. The approximate date on which the qualifying exigency commenced or will commence; i. If leave is for a single, continuous period of time, the beginning and end dates for such absence; rss~e Hate: May r~, zoro Page 11 Orauge County Personnel Rules and Regulations Effective Date: May 17, 2010 15 If leave requested is for an intermittent period or a reduced schedule, then an estimate of the frequency and duration of the qualifying exigency; and a If the qualifying exigency involves meeting with a third party, appropriate contact information for the individual or entity with whom the employee is meeting (such as the name, title, organization, address, telephone number, fax number, and e-mail address} and a brief description of the purpose of the meeting. d. An employee may use DOL Form WH-384, which meets the FML's certification requirements for qualifying exigencies. This form permits the employee to famish appropriate information to support his or her request for leave because of a qualifying exigency. Form WII-384, or another form containing the same basic information, may be used; however, no information will be required beyond that information specified in Form WH-384. http://www.dol.gov/~a~hd/forms/WH-384.pdf e. Verification. The County may contact the individual or entity with whom the employee is meeting fox purposes of verifying a meeting or appointment schedule and the nature of the meeting between the etployee and the specified individual or entity. The County also may contact an appropriate unit of the Department of Defense to request verification that a covered military member is on active duty or call to active duty status; no additional information may be requested and the employee's permission is not required. I6. Intent to Return to Work. The County may require an employee on FML to report periodically on the employee's status and intent to return to work. a. If an employee gives unequivocal notice of intent not fo return to work, the County's obligations under FML to maintain health benefits (subject to COBRA requirements) and to restore the employee cease. However, these obligations continue if an employee indicates he or she may be unable to return to work but expresses a continuing desire to do so. b. An employee may not be required to take more FML than necessary to resolve the circumstance that precipitated the need for leave. An employee may take more leave than originally anticipated or may because of a change in circumstances take less leave than originally anticipated. a All employee shall provide reasonable notice of their intent not to return to work and to provide reasonable notice (i.e, within two business days) of the changed circumstances where foreseeable. In addition, the County may obtain information on such changed circumstances through requested status reports; however, this does not negate the employee's responsibility to provide notice to the County. Issue Date: May 17, 2010 Page 12 Orange County Personnel Rules and Regulations ]Jffective Date: May 17, 2010 16 17. Fitness-For-Duty Certifications. Where reasonable job safety concerns exist, based on the nature of the condition and the job duties, the Counts= may also require afitness-for-duty certification before an employee may return to work when the employee takes intermittent leave or returns on a reduced schedule. 18. Reinstatement. An employee shall be rehnstated to the same position held when FML began or one of like pas= grade, pap, benefits, and other conditions of employment. a. The County may require an employee to report at reasonable intervals to the County on the employee's status and intention to return to work. The County may require that the employee provide Fitness-for-Duty Certification that the employee is able to return to work. b. Reinstatement is not required if an employee is reduced in force during the course of taking FML. The Counts= has the burden of proving that the reduction would have occurred had the employee not been on FML. 19. Benefits. The employee shall be reinstated without loss of benefits accrued when the leave began. All benefits accrue during any period of paid leave; however, no benefits or leave will be accrued during any period of leave without pay. 20. Health and Dental Benefits. The County shall maintain coverage for the employee under the County Health Plan for the duration of leave at the level and under the conditions coverage would have been provided if the employee had continued employment. a. Any share of health and dental plan premiums which an employee had paid prior to leave must continue to be paid by the employee during the leave period. The Counts= will give advance written notice to employees of the terms for payment of premiums during FML. The obligation to maintain health insurance coverage stops if an employee's premium payment is more than 30 days late. The County shall provide 15 das=s notice that coverage will cease. b. If an employee's failure to make the premium payments leads to a lapse in coverage, the County will restore the employee, upon return to work, to the health coverage equivalent to that which the employee would have had if leave had not been taken and the premium payments had not been missed without any waiting period or preexisting conditions. c. The County may recover the premiums if the employee fails to return to work after the period of leave to which the employee is entitled has expired for a reason other than the continuation, recurrence, or onset of a serious health condition or other circumstances beyond the employee's control. For this purpose, return to work is defined as 30 calendar days; therefore, if the employee resigns any time within 30 days after the return to work, the insurance premium may be recovered unless the reason for the resignation is related to the continuation, recurrence, or onset of a Issue Date: May 17, 2010 Page 13 Orange County> Personnel Rules and Regulations Effective Date: May 17, 2010 1 7 serious health condition or other circumstances beyond the employee's control. 21. Vacation, Sick Leave and Holidays. During paid leave, vacation and sick leave accrue in accordance with the Orange County Personnel Ordinance, Article IV, Sections 5.3 and 6.1. Employees in pay status the day before and the day after a holiday receive Holiday Pay, in accordance with Article IV, Section 4.3 of the Personnel Ordinance. 22. Interference with Rights. It is unlawful to interfere with, restrain, or decry any right provided by this policy or to discharge or in any other manner discriminate against an employee for opposing any practice made unlawful by this policy. It is unlawful to discharge or in any other manner discriminate against any employee because the employee does any of the following: a. Files any civil action, or institutes or causes to be instituted any civil proceeding under or related to this policy; b. gives, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided by this policy; or c. Testifies, or is about to testify, in any inquiry or proceeding relating to any right provided under this policy. C. Family Leave. Notwithstanding Sections A and B above, any permanent, provisional, probationary or part-time Orange County employee may take up to three days of consecutive paid leave for: a. The birth his or her child during the child's first week of life or the first week in the home; b. The adoption of his or her child during the child's first week in the home; and c. During the first week of placement of a foster child under the age of five years old in the employee's home. 2. The employee shall provide the Department with at least 14 days notice of birth, adoption or foster placement of child if it is foreseeable and reasonable notice of birth, adoption or foster placement of a child if it is unforeseeable. This Policy wilt be effective: Frank W. Clifton, County Manager Issue Dafe: May 17, 2010 Page 14