NEW YORK STATE DEPARTMENT OF CIVIL SERVICE
ATTENDANCE AND LEAVE MANUAL
POLICY BULLETIN 94-01
Appendix I
January 31, 1994

TO: State Departments and Agencies
FROM: Josephine L. Gambino, Commissioner
SUBJECT: The Family and Medical Leave Act of 1993

This bulletin replaces Policy Bulletin 93-06, dated August 5, 1993 and provides more detailed guidelines on New York State's implementation of the Family and Medical Leave Act (FMLA) which was signed into law on February 5, 1993.

Agencies are encouraged to contact the Employee Relations Section of the Department of Civil Service at (518) 457-2295 with any questions regarding implementation of the FMLA. Agencies should be aware, however, that, unlike leave benefits which are based in rule or negotiated agreement, the Department of Civil Service has no statutory authority for implementation of the FMLA, a federal law which is administered by the U.S. Department of Labor. The policies and procedures set forth in this memorandum represent New York State's interpretation, as an employer, of the rights and obligations under the FMLA and its impact on benefits currently provided by law, rule, regulation and/or negotiated agreement. As issues are clarified by the Wage and Hour Division of the U.S. Department of Labor or by court decision, we will provide additional information.


Introduction

The Family and Medical Leave Act (FMLA) is intended to balance the demands of the workplace with the needs of families. By providing workers faced with family obligations or serious family or personal illness with reasonable amounts of leave, the FMLA encourages stability in the family and productivity in the workplace.

The FMLA gives eligible employees of a covered employer the right to take unpaid leave, or paid leave charged to appropriate leave credits under certain circumstances, for a period of up to 12 workweeks in a 12-month period due to: 1) the birth of a child or the placement of a child for adoption or foster care; 2) the employee's need to care for a family member (child, spouse, or parent) with a serious health condition; or 3) the employee's own serious health condition which makes the employee unable to do his or her job. Under certain conditions, FMLA leave may be taken on an intermittent basis. Employees are also entitled to continuation of health and certain other insurances, provided the employee pays his or her share of the premium during this period of leave.

The employer has a right to 30 days' advance notice from the employee, where practicable. In addition, the employer may require an employee to submit certification from a health care provider to substantiate that the leave is due to the serious health condition of the employee or member of the family. The employer may also require medical documentation from an employee absent due to personal illness as a condition of return to work.

New entitlements for State employees as a result of the FMLA are the following:

Additionally, the FMLA contains procedural requirements that impact on employee absences requiring agencies to make changes in their current procedures.


Effective Dates

FMLA is effective for employees covered under collective bargaining agreements on February 5, 1994, and for non-represented employees on August 5, 1993. (Non-represented employees include Managerial/Confidential employees and other Executive Branch employees not assigned to bargaining units.)


Basic Eligibility Requirements

Public employers are covered by FMLA regardless of the number of individuals they employ. In addition, each state constitutes a single employer for FMLA purposes. Executive Branch employees are covered by the provisions of the FMLA regardless of negotiating unit status, jurisdictional class, appointment type, etc. Attendance Rules coverage is not a criteria for coverage under the FMLA. To be eligible to be granted leave under the FMLA, however, employees must meet certain minimum service requirements as detailed below.

Since New York State is to be treated as a single employer for purposes of determining whether an employee meets the service requirements for establishing eligibility under FMLA, service in any combination of agencies is to be counted. In addition, the FMLA does not require that an employee have continuous service; the FMLA only requires a minimum amount of service over a period of time as follows:

an eligible employee is one who has been employed for at least 12 cumulative months (52 cumulative weeks) and has performed a minimum of 1250 hours of service during the 12 consecutive months immediately preceding the date the leave is requested to begin.

Executive Branch employees will be deemed to have met these minimum service requirements to request FMLA leave if:

Categories of FMLA Leave

Leave may be requested under FMLA for the following reasons:

  1. For the birth, adoption or foster placement of a child.
  2. For personal illness resulting from a serious health condition that makes the employee unable to perform the functions of his or her job. (This includes a serious health condition that results from an on-the-job injury.)
  3. To care for an employee's spouse, parent, son or daughter with a serious health condition.

FMLA Definitions

The FMLA contains the following definitions:

  1. A serious health condition means an illness, injury, impairment or physical or medical condition that involves:
    1. Any period of incapacity or treatment in connection with or consequent to inpatient care in a hospital, hospice, or residential medical care facility; or
    1. Any period of incapacity requiring absence from work, school or other regular daily activities of more than three calendar days, that also involves continuing treatment by (or supervision of) a health care provider; or
    2. Continuing treatment by or under the supervision of a health care provider for a chronic or long-term health condition that is incurable or so serious that if not treated would result in a period of incapacity of more than three calendar days; or
    3. Ongoing prenatal care and treatment.

    It should be noted that routine preventive physical exams, apart from prenatal exams, do not meet the FMLA definition of continuing treatment for a serious health condition. See Attachment A for the full definition of a serious health condition as it appears in the FMLA.

  1. A child is a biological, adopted or foster child, a stepchild, a legal ward or a child of a person standing in loco parentis who is either under age 18 or age 18 or older and incapable of self-care because of a physical or mental disability.
  2. A parent is a biological or adoptive parent or an individual who stands or stood in loco parentis to an employee when the employee was a child.
  3. A spouse is a husband or wife as recognized under State law for purposes of marriage, including common law marriages where recognized. (New York State recognizes only those common law marriages which originated in states that recognize their legal status.)

Comparisions of FMLA Leave Definitions with Attendance Rules
Provisions and Negiotiated Agreements

New York State currently provides leave benefits which can be used for many of the same reasons for which FMLA is available. The following are examples of leave entitlements under FMLA and how they relate to current State policy:

Foster Care

Under FMLA, leave must be granted for official placement of a foster child, as well as for adoption and for child care in connection with childbirth. Leave for foster placement is a new entitlement for State employees; current State policy provides a seven-month leave in connection with adoption or child care following childbirth, but does not provide a similar leave for foster care placement. Therefore, covered employees requesting leave for foster placement are eligible only for the 12-week leave authorized by the FMLA.


Pregnancy, Childbirth and Child Care

With respect to leave for disability in connection with pregnancy and childbirth and leave for child care following childbirth or in connection with adoption, FMLA should be designated to run concurrently with leave pursuant to State policy for the employee's available entitlement to FMLA leave. Once that FMLA entitlement is exhausted, the eligible employee may continue on leave pursuant to State policy.

Under New York State's child care leave policies, mandatory leave is granted for up to seven months beginning with the date of birth. In the case of adoption, leave may commence at any point from placement to the actual date the adoption is finalized; the leave is mandatory for seven months from the date it begins. Under the FMLA, an employee may choose to begin his/her 12-week child care leave at any point within the first 12 months following birth or placement. Such leave must end, however, within this same 12-month period. Since New York State is designating leaves to run concurrently, however, generally FMLA will be exhausted within the seven-month period of mandatory leave under New York State policy.


Serious Health Condition

The FMLA definition of a serious health condition is generally more restrictive than the reasons an employee can use sick leave (or other credits as sick leave) under the Attendance Rules. Therefore, there will be occasions when an employee is on sick leave when it is not countable toward the 12-week entitlement under FMLA. In other situations where the nature of the disability meets the FMLA definition of a serious health condition, an employee on sick leave under the Rules would also have his/her absence count against the 12-week FMLA entitlement. The agency makes the determination as to whether the absence qualifies as an FMLA absence whether or not the employee makes a request. (See Amount of Leave to be Granted and Use of Leave Credits.)


Family Illness

Leave for family illness under FMLA differs from family sick leave under the Attendance Rules in both definition of a qualifying medical condition (as described above) and in the categories of family members the employee can be granted leave to care for (refer to the chart below which summarizes the differences in categories of relatives):

Eligibility for Leave for Illness in Family

Relationship New York State
Family Sick Leave
(FSL)
Federal
Family and Medical Leave Act (FMLA)
Spouse
Yes
Yes
Spousal Equivalent
Only if residing with employee
No, regardless of residence
Child Under 18 or Impaired
Yes
Yes
Child Over 18, not Impaired
Yes
No
Foster Child or Child in Loco Parentis
Only if residing with employee
Yes, regardless of residence
Parents
Yes
Yes
Parent-in-Law
Yes
No
Foster Parent or Parent in Loco Parentis
Only if residing with employee
Yes, regardless of residence
Other Relatives or Relatives-in-Law
Yes
No

Use of Leave Credits

FMLA leave is unpaid except where employees exercise their option to substitute use of appropriate leave credits. The FMLA does not require an employer to authorize the use of paid sick leave in any circumstance when it would not otherwise authorize it. As a matter of State policy, when use of leave credits would be allowed under the Rules, employees may elect to use appropriate leave credits during a period of FMLA leave or may choose not to use credits at their option. The term "appropriate leave credits" means credits that are available for absences for that specific reason. For example, no more than 15 days of accrued sick leave may be used in any calendar year for illness in the family, although an employee may elect to use accrued vacation, personal leave and holiday leave to cover the remainder of his/her absence. It is expected that agencies will assist employees in determining the best use of their available accruals depending on their particular situation.


Amount of Leave to be Granted

Note: For employees who first became covered by FMLA on August 5, 1993, no absences prior to August 5 counted against the 12-week FMLA entitlement for the period August 5, 1993--December 31, 1993, even if the absences were for the same reason that FMLA leave was requested during that period. Similarly for employees who first become covered by FMLA on February 5, 1994, no absences prior to February 5, 1994, count against the 12-week FMLA entitlement for the period February 5, 1994--December 31, 1994, even if the absences were for the same reason that FMLA leave is being requested during this period.

The FMLA entitles employees to up to 12 weeks of leave in a 12-month period as defined by the employer. For employees covered by this memorandum, the calendar year has been designated as the 12-month period. This means that State employees are eligible for up to12 weeks of leave for qualifying events under FMLA each calendar year.

Employees who first became covered under the FMLA on August 5, 1993, were eligible for up to 12 weeks of FMLA leave between August 5, 1993, and December 31, 1993, and are now eligible for 12 weeks of FMLA leave on a calendar year basis. Employees who first become covered under the FMLA on February 5, 1994, will be eligible for up to 12 weeks of FMLA leave between February 5, 1994, and December 31, 1994. Thereafter, all eligible employees will be eligible for up to 12 weeks of FMLA leave in each calendar year.

An employee is entitled to a total of 12 weeks of leave in each calendar year for any qualifying circumstance or combination of circumstances. For example, an employee who has used eight weeks of FMLA leave in a calendar year to care for an ill parent has only four weeks of FMLA leave eligibility remaining in that calendar year should that employee require leave for other covered reasons. However, nothing in the FMLA diminishes an employee's eligibility for leave pursuant to the Attendance Rules although, in most cases, the employee will be using FMLA leave and leave pursuant to the Rules concurrently.

Under FMLA, a husband and wife who are employed by New York State are only entitled to take a combined total of 12 weeks for birth, adoption or foster care placement of a child. If each spouse took six weeks of leave following placement of a foster care child, for example, each could later use six weeks due to a personal illness or to care for a child or parent with a serious health condition.

The 12 weeks of FMLA leave may be taken on a continuous or on an intermittent basis, for both personal illness and illness of covered family members based on the medical necessity for the absence. However, leave in connection with child care following childbirth, adoption and foster placement is continuous, unless agency permission is granted to take such leave on an intermittent basis. Whenever leave is taken on an intermittent basis, it may be used in units as small as 1/4 hour. When counting leave taken on an intermittent basis, agencies need to count in hours and equate these to portions of a workweek.

The first 12 weeks of absence in a calendar year for FMLA-qualifying reasons normally will be deemed to be leave under FMLA by the appointing authority and the employee must be so notified. For example, an employee who has used ten days of family sick leave in the calendar year for the serious health condition of a child (as defined under FMLA) should have been notified that he/she has used two weeks of his/her 12-week FMLA entitlement in that calendar year, even if the family sick leave was not specifically requested as FMLA leave. (This notice must have been provided to the employee prior to return to work from the designated FMLA absence. Once employees have returned to work, no retroactive designation can be made.) However, if the ten days of family sick leave used was for reasons which do not meet FMLA criteria (for example, routine medical appointments) that employee still has 12 weeks of FMLA eligibility remaining in that calendar year despite having used 10 days of family sick leave.

The amount of FMLA leave granted to part-time employees is based on their regularly scheduled workweek. For example, an employee who normally works 30 hours per week has used one week of entitlement after being absent for his/her entire week's schedule. This employee, when absent on an intermittent basis, has also used one week of entitlement when his/her intermittent absences total 30 hours.


Procedures

Each time an employee requests leave the agency must determine the following:

  1. the circumstances constitute a qualifying FMLA event as identified in Categories of FMLA Leave. When an employee requests leave, the agency determines if the request is a qualifying event under FMLA based on the verbal or written information the employee provides, even if the employee does not specifically request the leave as FMLA leave. Normally, this determination will be made at the point the request is made. If the information provided is insufficient or unclear, the agency may request additional information in order to make the determination. See Medical Certification for additional information. In every case, the agency must inform the employee that the leave has been designated as FMLA before the leave ends and the employee returns to work.

    It is always the employer's responsibility to designate leave as FMLA whether or not the employee specifically requested the leave as FMLA. It is New York State policy that the first 12 weeks in each calendar year of qualifying absence be designated as FMLA.

  2. the employee will have been employed for 12 cumulative months as of the date the leave is scheduled to begin, as explained under Basic Eligibility Requirements.
  1. the employee has met the requirement of completing 1250 hours of service within the 52 consecutive week period immediately preceding the date leave is to begin, as described under Basic Eligibility Requirements.
  1. the amount of FMLA leave the eligible employee can be granted for this period of absence. If the absence falls entirely within one calendar year, the employee is entitled to 12 weeks minus any FMLA leave already used within that year. If the period of absence spans two calendar years, the employee must be granted the remaining balance for the current year and may access the next year's full 12-week entitlement as soon as that year begins.

Notification

FMLA requires that when the need for leave is foreseeable, for example in cases of birth, placement for foster care or adoption or planned medical treatment, the agency may require that the employee provide 30 calendar days' advance notice prior to the commencement of leave. Agencies should be aware, however, of State policy which may impact on this process. For example, New York State policy on leave for childbirth, child care and adoption makes the granting of leave mandatory for the eligible employee whether or not prior notice is given.

If the agency requires the 30-day advance notification allowed under the FMLA (for absences other than those for childbirth, child care or adoption) and the employee fails to meet this requirement, with no reasonable excuse, the FMLA permits leave to be delayed until 30 days after the employee makes the request.

When the need for FMLA leave is not foreseeable, for example in the case of medical emergencies or change in circumstances, the FMLA requires notification to the employer "as soon as practicable," which is defined as within one or two workdays of the employee's knowledge of the need for leave. However, nothing exempts the employee from following normal agency call-in procedures to report his/her absence, separate and apart from the time limits which apply to requesting FMLA leave.

Agencies cannot impose notification requirements which are more restrictive than those required under the FMLA. Agencies should discuss the circumstances of any FMLA leave request with the Employee Relations Section before seeking to delay the start of a requested leave due to insufficient notification.

Agencies are required to provide notice that leave has been designated as FMLA leave prior to the employee's return to work. When chronic illness results in long-term intermittent absence, agencies should give advance notice to the employee that all absences for that qualifying event will be designated FMLA leave. Each time an employee is absent after receiving that initial notice, the agency should provide written notice advising the employee that the absence was counted against the employee's entitlement.


Pay Status

Employees have the option of requesting leave with pay charged to appropriate accruals or leave without pay and must indicate the chosen option at the time request for leave is made. An employee who elects not to use leave credits during a period of requested FMLA leave remains eligible to request use of leave credits under the Attendance Rules following exhaustion of his/her entitlement to leave under FMLA. For example, an employee who requests 12 weeks of unpaid leave under FMLA remains eligible, at the conclusion of the 12-week period, to request use of vacation, personal leave, holiday leave and available family sick leave, if appropriate, for absence beyond the 12-week period. See Use of Leave Credits above.


Work-Related Disability

Pursuant to State policy, disability absences in connection with a job-related accident, which also meet the definition of a serious health condition under FMLA, should be designated as FMLA leave and employees should be so notified. Although the medial certification form used for other FMLA absences is still appropriate for agency use, the employee and his/her health care provider must continue to submit all required State Insurance Fund and Workers' Compensation Board forms pursuant to New York State Workers' Compensation Law.


Medical Certification

Medical certification to support an FMLA leave request may be required if the employee is informed that such medical documentation is necessary. An updated sample medical certification form is attached (Attachment B) [Not attached here. See the List of Attachments to Policy Bulletin 95-01.] which agencies can have employees submit when requesting leave pursuant to the FMLA. Agencies also can continue to use any internal forms which provide comparable information so long as such form does not require more information than that of the sample form attached.

The FMLA allows the employer to require medical recertification every 30 days. More frequent medical recertification can only be requested if:

The following are the health care providers currently listed in the FMLA regulations as acceptable for providing any required medical certifications: Doctor of Medicine, Doctor of Osteopathy, Podiatrist, Dentist, Optometrist, Psychologist, Chiropractor, Nurse Practitioner, Nurse Midwife, Christian Science Practitioner. If the United States Department of Labor amends this list, we will advise you accordingly.

Any medical information submitted with an FMLA leave request must be treated in a confidential manner in accordance with regular agency procedures and the Americans With Disabilities Act (ADA).

In the majority of cases, the agency will be able to verify the need for FMLA leave based on the completed medical certification form provided by the employee at the time request for leave is made. In those exceptional cases where the agency has a valid reason to question whether an employee has a "serious health condition," the Employee Health Service of the New York State Department of Civil Service will assist the agency in obtaining a second opinion.

If an employee has filed a request for FMLA leave and the employer has questioned the medical certification submitted by the employee, the employer may have the request reviewed by the Employee Health Service (EHS). The employee's request must be transmitted to EHS along with a completed PS-707, Agency Request for Medical Examination. Upon receipt of this information, EHS will conduct an evaluation of the medical documentation supporting the employee's request and render an opinion as to whether the individual meets the FMLA criteria.

If the basis of the request is a family member's medical condition, EHS will render an opinion following review of the medical documentation submitted. If the employee's FMLA request is based upon his or her own medical condition, EHS may schedule a medical examination. The medical examination may be conducted at the EHS medical examination center, or at an EHS consultant physician's office.

Based upon available medical documentation and/or examination results, the EHS physician will render an opinion as to whether the medical criteria for FMLA leave are met. EHS will notify the employing agency of this opinion. The employing agency can then make the administrative decision to approve or disapprove the employee's FMLA leave request.

Should the employee wish to appeal an FMLA disapproval decision, a third opinion may be obtained from a physician who is jointly chosen by the employer and the employee. The EHS maintains a list of physicians who can be contacted to perform this function. The decision of the third physician is binding on both parties. In both the second and third opinion reviews, the cost of the medical examination must be paid for by the agency.

Included as Attachment C [Not attached here. See the List of Attachments to Policy Bulletin 95-01.] is the procedure to be followed when requesting EHS assistance. This procedure will be incorporated in State Personnel Management Manual Section 2620.


Recordkeeping

Agencies will need to keep an ongoing record of all FMLA leave granted to an employee throughout each calendar year. Copies of the notifications to the employee that leave is deemed to be pursuant to FMLA should also be retained with leave accrual records. Agencies may choose to modify time records, for example, to add a space for "FMLA Leave Used" each calendar year or develop some other mechanism for accumulating leave use data. When an employee moves between agencies, FMLA leave information needs to be transferred along with accrual balances.


Insurance Continuation

The FMLA also affects an employee's health insurance and other insurance benefits. The FMLA requires continuation of existing benefits during the period of FMLA leave for employees who are otherwise eligible for these benefits. This means that if an employee is enrolled for health, dental, vision or life insurance coverages, these benefits must continue during the FMLA leave period if the employee wishes to continue them and the employee is required to pay the same cost he/she would pay while in active work status. (If the employee pays no cost for a benefit in active status [e.g., dental coverage], the benefit must continue during the FMLA period at no cost.) Detailed information on benefit requirements and how you report benefit transactions for FMLA leaves without pay are explained in the memorandum of August 16, 1993, to State Agency Health Benefit Administrators from the Employee Benefits Division of this Department.


Posting and Notice Requirements

Employers are required to post notices in conspicuous places on their premises describing the provisions of the FMLA and providing information concerning the process for filing complaints of violations of the Act with the Wage and Hour Division. Failure to post may result in monetary fines. A sample posting notice is attached (Attachment D) and may be reproduced. As long as all of the same information is included, agencies may create their own posting notices.

Agency handbooks and other written information about leave rights must be updated to include information about the FMLA.

Whenever an employee requests FMLA leave or the agency designates a period of absence as FMLA leave, the agency is required to provide written notice to the employee describing all the employee's rights and obligations under the FMLA. The United States Department of Labor has prepared sample memoranda that we have revised and may be used for this purpose (Attachment E). Agencies are free to use these memoranda or prepare their own as long as all of the required information is included. Additionally, agencies should continue to provide the routine information that accompanies an employee's request for or placement on leave without pay.


Reinstatement Rights

Employees returning to work from FMLA leave are entitled to be returned to the same or an equivalent position with equivalent pay, benefits, and other terms and conditions of employment.

The only limitations on an employer's obligation to reinstate an employee are that the employee does not have greater rights than he/she would have had he/she been at work. It is our understanding, therefore, that placement on FMLA leave does not continue employment beyond the point it would otherwise have terminated by operation of law, rule or regulation. Examples include layoff, expiration of a temporary position, expiration of a season for seasonal employees, termination during probationary period, disciplinary termination or disability termination under Section 71 (for occupational injury) or Section 73 (for nonoccupational injury).


Enforcement Mechanisms

Employees who believe their rights under FMLA have been violated can file a complaint with the United States Department of Labor or file a private lawsuit. Complaints can be filed at any local office of the Wage and Hour Division, Employment Standards Administration, United States Department of Labor.

The FMLA regulations contain a section on protection of employee rights which states, in summary, that:



Attachment A. Definition of Serious Health Condition (pdf87KB) [pdf]*

Attachment B. Medical Certification Form (pdf74KB) [pdf]*

Attachment C. EHS Procedure for FMLA Second Opinion Request (pdf95KB)[pdf]*

Attachment D. Posting Notice (pdf72KB) [pdf]*

Attachment E(1). Sample Memorandum for Agency Response to Employee Request for Family or Medical Leave (pdf128KB) [pdf]*

Attachment E(2). Agency Designation of Family or Medical Leave (pdf94KB) [pdf]*

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