NEW YORK STATE DEPARTMENT OF CIVIL SERVICE
DIVISION OF STAFFING SERVICES
ATTENDANCE AND LEAVE MANUAL
GENERAL INFORMATION BULLETIN 95-01
June 6, 1995
TO: State Departments and Agencies
FROM: Peter Elmendorf, Director - Personnel Services Division
SUBJECT: Update on the Family and Medical Leave Act
This Bulletin is a compilation of questions and answers concerning implementation of the Family and Medical Leave Act (FMLA) and supplements the guidance provided in Policy Bulletin 95-01 dated April 19, 1995. General Information Bulletins will be issued as additional questions are raised and clarified.
Agencies are reminded that, unlike leave benefits which are based on rule or negotiated agreement, the Department of Civil Service has no statutory authority for implementation of the FMLA, which is a federal law administered by the U.S. Department of Labor (DOL). The responses set forth in this Bulletin represent the Department of Civil Service's interpretation of the rights and obligations of employees and employers under the FMLA, and its impact on benefits currently provided by law, rule, regulation and/or negotiated agreement. Relevant sections of DOL's final regulations implementing the FMLA are cited in brackets at the end of each answer for your reference.
Question No. 1:
How are workweeks of FMLA leave calculated for employees who work on alternative work schedules?
An employee is entitled to take up to 12 workweeks of FMLA leave per calendar year. A workweek is comprised of the number of days and hours in the employee's normal workweek. For example, an employee who normally works a 40-hour workweek of four ten-hour days is entitled to up to 12 workweeks of FMLA leave which equates to 48 ten-hour days or 480 hours. A part-time employee who normally works 20 hours a week (5 four-hour days) is eligible for up to 12 workweeks of FMLA leave which equates to 60 four-hour days or 240 hours. A part-time employee who normally works 20 hours a week (2 eight-hour days and one four-hour day) is eligible for up to 12 workweeks of FMLA leave (24 eight-hour days and 12 four-hour days or 240 hours).
If an employee's schedule varies from week to week, a weekly average of the hours worked over the 12 weeks prior to the beginning of the leave period must be used to calculate the
employee's normal workweek.[29 CFR Section 825.205]
Question No. 2:
How is FMLA leave calculated where an employee uses it on an intermittent or reduced leave basis?
The FMLA permits employees to take leave on an intermittent or reduced leave schedule under certain circumstances.
A full-time employee who normally works five days per week and who takes intermittent FMLA leave one day per week uses 1/5 of a week of FMLA leave.
When an employee reduces his/her hours worked because of an FMLA absence, the amount of FMLA leave used is calculated by subtracting the hours in the FMLA reduced leave schedule from the hours in the employee's normal work schedule. For example, a part-time employee who normally works 30 hours per week and works an FMLA reduced leave schedule of 20 hours per week has used ten hours of FMLA leave in the workweek (1/3 of a workweek). A full-time employee who normally works 40 hours per week and works an FMLA reduced leave schedule of 20 hours per week has used 20 hours of FMLA leave in the workweek (1/2 of a workweek). [29 CFR Section 825.203, 825.205]
Question No. 3:
What happens when a holiday falls during a period of FMLA leave? Does it count as a day of FMLA leave used?
A holiday counts as a day of FMLA leave used, whether or not the agency is closed on that day. [29 CFR Section 825.200(f)]
Question No. 4:
Must an employee always be incapacitated for a minimum of three consecutive days before the employee is deemed to have an FMLA-qualifying serious medical condition?
No. For example, the three consecutive calendar day requirement does not apply to:
- cases involving inpatient care (an overnight stay in a hospital or other residential medical care facility)
- any period of incapacity due to pregnancy or for prenatal care
- any period of incapacity or treatment for a chronic serious health condition (such as asthma, which may cause episodic incapacity)
- any period of absence to receive multiple treatments for a condition that might otherwise, if untreated, result in incapacity of more than three consecutive calendar days.
(See page 2 and Appendix [Attachment] A of Policy Bulletin 95-01 for a more detailed description of a serious health condition.) [29 CFR Section 825.1141]
Question No. 5:
What happens when the absence of an employee on FMLA leave spans two calendar years?
An employee absent on intermittent FMLA leave for the same illness (personal or family) in 1994 and again in 1995 is eligible for up to 12 weeks of FMLA leave in each of those two years. An employee continuously absent on FMLA leave in 1994 whose absence continues uninterrupted into 1995 is eligible for up to 12 weeks of FMLA leave in 1994 and another 12 weeks beginning January 1, 1995, even though the absence is due to the same illness (personal or family). (This assumes that the employee meets all eligibility criteria for each period of FMLA leave.) [29 CFR Section 825.200(c)]
Example: An employee becomes disabled on October 1, 1994, and continues to be absent due to this illness until March 31, 1995. The employee receives 12 weeks of FMLA leave in 1994 and another 12 weeks of FMLA leave beginning January 1, 1995.
Example: An employee becomes disabled on September 1, 1994, and continues to be absent due to this illness until March 31, 1995. The employee receives 12 weeks of FMLA leave followed by four weeks of undesignated absence charged to credits or leave without pay in 1994, and another 12 weeks of FMLA leave beginning January 1, 1995.
Question No. 6:
An employee met the FMLA eligibility requirement of rendering at least 1250 hours of service within the 12-month period immediately preceding his FMLA leave which began in April 1994. He had 12 weeks of FMLA leave from April 1994 through June 1994 and was in LWOP status from July 1994 through December 1994. He is still disabled as of January 1995 but, because of this continuous leave without pay, has not met the 1250 hour requirement during the 12-month period immediately preceding January 1995. Is he eligible to be granted another 12 weeks of FMLA leave as of January 1, 1995?
No. Each time an employee is granted FMLA leave, he/she must requalify in terms of having rendered 1250 hours of service within the 12-month period immediately preceding that period of FMLA leave. An employee must requalify for each period of FMLA leave even if such periods are part of a single continuous absence. Had this employee met the 1250 hour requirement he would have been eligible for FMLA leave again as of January 1, 1995. [29 CFR Section 825.110]
Question No. 7:
An employee has been absent continuously since before April 6, 1995. The agency intended to designate the leave as FMLA but had not yet done so because the interim regulations permitted designation at any point prior to the employee's return to work. What impact do the new regulations have on this case since they require that FMLA leave be designated within two workdays of the commencement of the leave, provided the employer has sufficient information?
For continuous leaves which began before April 6, the designation rule as set forth in the Interim Final Rule applies. However, agencies that have not already done so should immediately notify affected employees that they are designating such ongoing leave as FMLA leave retroactively to the date the leave began. (Agencies are reminded that the notice to the employee may be oral, but must be confirmed in writing no later than the following payday, unless the payday is less than one week after the oral notice, in which case it must be no later than the subsequent payday.)
[29 CFR Section 825.208 (b) (2)]
Question No. 8:
An employee's absence began April 12, 1995. The agency intended to designate the leave as FMLA but has not yet done so. At what point can the agency designate the leave as FMLA?
The new regulations apply to any absence that began on or after April 6, 1995. Where an agency knows that leave is for an FMLA reason, the agency cannot retroactively designate an absence which began after April 6 as FMLA leave. The first date the agency can designate as FMLA leave is the date of notice to the employee. (See pages 3-4 of Policy Bulletin 95-01 for more detailed information on designation of FMLA leave.) [29 CFR Section 825.208]
Question No. 9:
Policy Bulletin 95-01 states that an employee cannot be limited to one 12-week period of FMLA leave for birth or placement of a son or daughter if the 12-month period immediately following childbirth, adoption or foster care placement spans two calendar years. If, prior to receipt of this bulletin, an employee was restricted by the agency to one 12-week FMLA leave for a qualifying absence that spanned two calendar years, is the agency now required to notify the employee of this change and, if so, how?
All employees should be notified that eligible employees are entitled to up to 12 weeks of FMLA leave per calendar year for personal or family illness or for child care in connection with birth or placement for adoption or foster care. They should be further advised that child care leave must be taken within the 12 month period immediately following birth or placement for adoption or foster care. Employees who have questions about their eligibility and entitlement should be encouraged to contact their Personnel Office.
[29 CFR Section 825.200, 825.201, 825.300, 825.3011]
Question No. 10:
An employee who gives birth on September 15, 1994, is out on FMLA leave through December 8, 1994. The employee returns to work on December 9, 1994. Is this employee eligible to take 12 weeks of FMLA leave for child care in 1995?
Assuming the employee still meets the eligibility criteria, the employee is eligible for 12 weeks of FMLA in 1995 for child care as long as the leave is concluded within 12 months following birth, i.e., September 1995. Once the employee has exhausted this leave, she has exhausted her FMLA leave for calendar year 1995. [29 CFR Section 825.201]
Question No. 11:
An employee who gives birth on September 15, 1994, is out on FMLA leave through December 18, 1994. The employee goes on LWOP on December 19, 1994, and is expected to return to work on June 1, 1995. Does the agency designate any of the absence in 1995 as FMLA? Since it is now past April 6, 1995 (effective date for final FMLA regulations) can the agency designate retroactive to January 1995?
Assuming the employee still meets the eligibility criteria and is still absent, the agency should retroactively designate the first 12 weeks of absence in 1995 as FMLA leave.
[29 CFR Section 825.2011]
Question No. 12:
The new medical form attached to Policy Bulletin 95-01 does not permit the employer to request a diagnosis. Under the Attendance Rules and negotiated agreements, agencies can request medical documentation satisfactory to management (which includes a diagnosis) in order to use sick leave, other credits as sick leave, and sick leave at half-pay. Can we still require a diagnosis when an employee elects to charge such leave credits during an FMLA leave?
Yes. While in most instances the documentation from the employee's physician will contain sufficient infcrmation both to grant FMLA leave and to approve use of leave credits, any time an employee chooses to use leave credits during an FMLA leave, the agency can require the employee to meet the standards set forth in the Rules and negotiated agreements for use of such credits -- including the requirement that more detailed medical documentation including a diagnosis be provided. The agency needs to make the distinction between documentation submitted to support a request for FMLA leave and documentation required to support use of credits during that leave. The two requirements must be kept completely separate. The agency needs to be very clear that submission of a diagnosis is not a condition of FMLA leave but is a condition of charging leave credits as sick leave.
On Attachments E1 and E2 to Policy Bulletin 95-01, it is recommended that the agency type in the following notation under block 4 on E1 and block 2 on E2:
Provisions set forth in the Attendance Rules and negotiated agreements continue to govern your use of any paid leave.
Question No. 13:
An employee requests and is granted full-time FMLA leave. After being on FMLA leave for four weeks the employee (who still has eight weeks of FMLA leave entitlement remaining) submits a doctor's statement indicating that he can return to work on a half-time basis. The employee requests an FMLA reduced leave schedule. Is the agency compelled to approve this request and allow the employee to return to work on a part-time basis?
Yes. The employee is entitled to FMLA leave on a reduced leave schedule where medically necessary for the balance of the 12 week FMLA leave entitlement. However, after the 12 weeks, an agency does not have to continue to provide a reduced schedule. An employee should be provided with written notice that he/she will be required to return full-time at the
expiration of the FMLA leave.[29 CFR Section 825.203, 825.117]