GCBDA/GDBDA-AR - Federal Family and Medical Leave/State Family Medical Leave
The Family and Medical Leave Act (FMLA) generally took effect as federal law August 5, 1993. The Oregon Family Leave Act (OFLA) became effective as state law September 9, 1995. Military Family Leave (MFLA) as part of the National Defense Authorization Act became effective January 28, 2008, which gave leave to military families for specific circumstances. Oregon House Bill 2744, Oregon Military Family Leave Act (OMFLA), became effective June 25, 2009.
Federal law for FMLA and MFLA applies to employees who have worked for the district for at least 12 months and for at least 1250 hours during the year preceding the start of the leave. State law generally applies to employees who work an average of 25 hours or more per week for the district during the 180 days or more immediately prior to the first day of the start of the requested leave. For parental leave purposes, an employee becomes eligible upon completing at least 180 days immediately preceding the date on which the parental leave begins. There is no minimum average number of hours worked per week when determining employee eligibility for parental leave.
In determining that an employee has been employed for the preceding 180 calendar days, the District must count the number of days an employee is maintained on the payroll, including all time paid or unpaid. In determining 25 hours average workweek, the District must count the actual hours worked using guidelines set out pursuant to the Fair Labor Standards Act.
Federal vs. State Law
Both federal and state law contain provisions regarding leave for family illness. Federal regulations require an employer to comply with both laws; that the federal law does not supersede any provision of state law that provides greater family leave rights than those established pursuant to federal law. State and federal leave entitlements may run concurrently, when possible. For example, due to differences in regulations, an employee who takes leave after 180 days of employment but before one year, is still eligible to take a full 12 work weeks of federal leave after meeting the one-year work requirement. After the first work year, leave will run concurrently during events that qualify for both OFLA and FMLA.
Purpose of Leave
Federal and state law allow employees to take leave for the following purposes:
1. Birth of the employee’s child (eligibility expires 12 months after the birth);
2. Placement of a child for adoption or foster care when the child is under 18 or older than 18 years of age if incapable of self-care (eligibility expires 12 months after placement);
3. Care of a spouse, child or parent with a serious health condition;
4. Employee’s own serious health condition.
Additionally, state law also allows employees to take leave to care for a parent-in-law, grandparent, grandchild, and same sex domestic partner with a serious health condition and for the care of a sick or injured child who requires home care but is not suffering from a serious health condition.
An employee who is a military member’s spouse, son, daughter, or parent who is on active duty or called to active duty status qualifies for Federal and state Military Family Leave. Military Family Leave is used for qualifying exigency and military care giver leave.
Length of Leave
An employee eligible for FMLA leave under federal law is entitled to a total of 12 work weeks of leave during any 12 month period for a qualifying event. A husband and wife who are eligible and who both work for the district may only take a combined total of 12 work weeks of leave if the leave is taken to care for a parent with a serious health condition or if the leave is for the birth of a child or the placement of a child for adoption or foster care.
An employee eligible for OFLA leave under state law is entitled to a total of 12 workweeks of leave during any 12-month period for the purposes specified above. Two family members who are eligible and who both work for the district may not take family leave at the same time unless one employee needs to care for the other employee who is suffering from a serious health condition or one employee needs to care for a child who has a serious health condition while the other employee is also suffering from a serious health condition or if the concurrent leave in such instances is permitted by the district.
In addition to the 12 work weeks of leave authorized above, under state law a female employee may take an additional 12 work weeks of leave within any one-year period for an illness, injury or condition related to pregnancy or childbirth that disables the employee from performing her work duties. An employee who takes 12 work weeks of parental leave may also take up to an additional 12 work weeks of sick child leave. If the employee takes less than 12 work weeks of parental leave, the employee is entitled to the balance of the 12 weeks for any other family leave purpose except that the leave taken for parental leave shall not reduce the leave available for sick child leave.
Sick child leave need not be provided if another family member is available to care for the child.
Special Rules for Teachers
Special rules apply if leave is requested to be taken near the end of a semester (or end of school term).
Under FMLA and OFLA leave, if a teacher:
1. Requests leave because of the serious health condition of the teacher or a member of the teacher’s family; and
2. The need for the leave is foreseeable; and
3. The teacher would be on family leave for more than 20 percent of the total number of working days during the period over which the leave would be taken; then
a. The employer may require the teacher to elect one of the following two options:
(1) To take family leave for one uninterrupted period of time as necessary to complete medical treatment. (School holidays and school vacation days are not counted as family leave.);
(2) To transfer temporarily into an available alternative position which better accommodates periodic absences.
If a teacher begins family leave more than five weeks before the end of the academic term because of the teacher’s own serious health condition, the employer may require the teacher to remain on leave until the end of the term if:
1. The family leave is at least three weeks long; and
2. The teacher’s return to work would occur within three weeks of the end of the term.
If a teacher begins family leave within five weeks of the end of the academic term because of parental leave or the serious health condition of a family member, the employer may require the teacher to remain on family leave through the end of the term if:
1. The leave is at least two weeks long; and
2. The teacher’s return would occur within the last two weeks of the term.
If a teacher begins family leave within three weeks of the end of the academic term because of parental leave or to care for a family member with a serious health condition and the leave is greater than five working days, the employer may require the teacher to remain on family leave until the end of the term.
Calculating the 12-Month Period for Leave
The district will use the same method for calculating the 12-month period in which the 12 work week FMLA and OFLA leave entitlement occurs for all employees. The district will use the 12-month period measured backward from the date the employee’s leave begins.
The district requires the employee to use all accrued paid leave, including but not limited to sick , personal, discretionary, accrued vacation leave before taking FMLA and/or OFLA leave without pay for the leave period. The employee may select the order in which the paid leave is used. Employees on OMFLA are not required to use accrued paid leave.
The district will notify the employee that the requested leave has been designated as FMLA and/or OFLA leave and that accrued paid leave shall be used during the leave period. Such notification will be given to the employee prior to the commencement of the leave or within five working days of the employee’s notice of an unanticipated or emergency leave.
When the district does not have sufficient information to make a determination of whether the leave qualifies as FMLA or OFLA leave, the district will provide the required notice promptly when the information is available but no later than five working days after the district has received the information. Oral notices will be confirmed in writing no later than the following payday. If the payday is less than one week after the oral notice is given, written notice will be provided no later than the subsequent payday.
Continuation of Health Insurance Benefits
Under federal law, group health insurance benefits and premium payments must be continued on the same basis as coverage would have been provided and premiums paid if the employee had been continuously employed during the leave period. The district will continue to pay the district’s contribution toward the employee’s premiums. The employee will continue to pay the employee’s share of premiums, if any. A 30-day grace period will be allowed for receipt of employee contributions. The district’s obligation to maintain the employee’s benefits will cease if the employee’s contribution is more than 30 days late. The district will provide written notice that the premium payment is more than 30 calendar days late. Such notice will be provided within 15 calendar days before coverage is to cease.
Under state law, if an employee cannot or will not pay health or other insurance premiums during OFLA leave, the District may elect to discontinue benefit coverage, unless to do so would render the employer unable to restore the employee to full benefit coverage.
In the event the district is required to pay or elects to pay any part of the costs of providing health, disability, life or other insurance coverage for an employee during the period of FMLA or OFLA leave that should have been paid by the employee, the district may deduct, on the employee’s return to work, such amounts from the employee’s pay as have been advanced.
In no event may the total deducted exceed ten percent of the employee’s gross pay each pay period.
If an employee gives written notice of intent not to return to work from Family Medical Leave, the District’s obligation to restore benefits (subject to COBRA requirements) cease and the District is not required to hold a position vacant or available for the employee.
Return to Work
After leave, granted under federal and state law, an employee is generally entitled to be returned to the same position the employee held when leave commenced or to an equivalent position with equivalent benefits, pay and other terms and conditions of employment unless otherwise excepted by law.
If the leave was required for the employee’s own serious health condition, the district may require the employee to obtain and present certification from the health care provider that the employee is able to resume work.
Special rules for teachers will apply if FMLA leave is requested to be taken near the end of a semester.
Under federal and state law, an employee requesting FMLA and/or OFLA leave shall provide at least 30 days notice prior to the leave date if the leave is foreseeable. The notice shall be written and include the anticipated start, duration and reasons for the requested leave. The employee must make a reasonable effort to schedule treatment, including intermittent leave and reduced leave, so as not to unduly disrupt the operation of the district.
If advance notice is not possible, for example due to a change in circumstances or medical emergency, an employee eligible for FMLA leave must provide notice as soon as practicable. “As soon as practicable”, under federal law means at least oral notification within one or two business days of when the need for leave becomes known to the employee.
An employee eligible for OFLA leave is required, under state law, to provide oral or written notice within 24 hours in unanticipated or emergency leave situations. The employee may designate a family member or friend to notify the district during that period of time.
Failure of an employee to provide the required notice for FMLA leave may result in the district delaying the employee’s leave for up to 30 days after the notice is received.
Failure of an employee to provide the required notice for OFLA leave under state law may result in the district deducting up to three weeks from the employee’s leave period.
If the employee provides 30 or more days notice when applying for FMLA and/or OFLA leave, employees shall be required to provide medical documentation when appropriate to support the request for leave. The district will provide written notification to employees of this requirement within five working days of employee’s request for leave. If the employee provides less than 30 days notice, the employee is required to submit such medical certification no later than 15 calendar days after receipt of the district’s notification that medical certification is required.
Under federal and state law, a second medical opinion may be required whenever the district has reason to doubt the validity of the initial medical opinion. The health care provider may be selected by the district. The provider shall not be employed by the district on a regular basis. Should the first and second medical certifications differ, a third opinion may be required. The district and the employee will mutually agree on the selection of the health care provider for a third medical certification. The third opinion will be final. Second and third opinions and the actual travel expenses for an employee to obtain such opinions will be paid for by the district.
If the leave is for the purpose of an employee’s own serious health condition, he/she must also provide a fitness for duty medical release from the health care provider before returning to work.
The district may require an employee who is using OFLA leave to care for a sick child to provide medical certification after the use of more than three days of such leave in a one-year period. The district will pay the cost of the medical certification not covered by insurance or other benefit plan.
The District will post notice of Federal Family and Medical Leave Act and Oregon Family Leave Act requirements. Additional information may be obtained by contacting the superintendent/human resources director.
The district will maintain all records as required by federal and state laws including dates leave is taken by employees, identified separately from other leave; hours/days of leave; copies of general and specific notices to employees, including Board policy(ies) and regulations; premium payments of employee health benefits while on leave and records of any disputes with employees regarding granting of leave.
Medical documentation will be maintained separately from personnel files as confidential medical records.
The Director of Human Resources has been designated to coordinate compliance with these legal requirements, including OFLA, OMFLA, FMLA, and MFMLA who can be contacted at the Roseburg Public Schools human resource office for additional information and/or compliance issues.