HomeMy WebLinkAboutReso 2001-147 RESOLUTION NO. 2001-147
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA ADOPTING THE CITY OF CHULA VISTA
FAMILY AND MEDICAL LEAVE ACT (FMLA) POLICY
WHEREAS, in 1993, the California Family Rights Act (CFRA) and the Federal Family
and Medical Leave Act (FMLA) were enacted to protect an employee's fight to take time off
from work for their own or family member's illness without fear of discrimination or retaliation
by their employer; and
WHEREAS, while the City has complied with these laws since their inception, some of
the administrative details need to be memorialized in a formalized City policy; and
WHEREAS, this resolution not only memorializes those details in a formal policy but
also demonstrates the City's commitment to the needs of today's families.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula
Vista does hereby adopt the City of Chula Vista Family and Medical Leave Act (FMLA) Policy
set forth in Attachment "A," attached hereto and incorporated herein by reference as if set forth
in full.
Presented by Approved as to form by
E y )
Director of Human Resources City Attorney
Resolution 2001 - 147 '
Page 2
PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista,
California, this 15th day of May, 2001, by the following vote:
AYES: Councilmembers: Padilla, Rindone, Salas and Horton
NAYS: Councilmembers: None
ABSENT: Councilmembers: Davis
Shirley Horto~ Mayor
ATTEST:
Susan Bigelow, City Cle~
STATE OF CALIFORNIA )
COUNTY OF SAN DIEGO )
CITY OF CHULA VISTA )
I, Susan Bigelow, City Clerk of Chnla Vista, California, do hereby certify that the foregoing
Resolution No. 2001-147 was duly passed, approved, and adopted by the City Council at a
regular meeting of the Chula Vista City Council held on the 15th day of May, 2001.
Executed this 15th day of May, 2001.
Susan Bigelow, City Clerk
R2001-147
City of Chula Vista
Family and Medical Leave Act (FMLA) Policy
L S TA TEMENT OF POLICY
To the extent not already provided for under current leave policies and
provisions, the City of Chula Vista will provide Family and Medical Care leave for
eligible employees as required by state and federal law. The following provisions
set forth certain rights and obligations with respect to such leave. Rights and
obligations which are not specifically set forth below are set forth in the
Department of Labor regulations implementing the federal Family and Medical '
Leave Act of 1993 (FMLA), and the regulations of the California Family Rights
Act (CFRA). Unless otherwise provided by this article, "Leave" under this article
shall mean leave pursuant to the FMLA and CFRA.
II. DEFINITIONS
A. "12-Month Period" means a rolling 12-month period measured
backward from the date leave is taken and continuous with each
additional leave day taken.
B. "Child" means a child under the age of 18 years of age, or 18
years of age or older who is incapable of self-care because of a
mental or physical disability. An employee's child is one for whom
the employee has actual day-to-day responsibility for care and
includes a biological, adopted, foster or step-child, legal ward, or a
child of a person standing in Ioco parentis (in place of parent).
A child is "incapable of self-care" if he/she requires active
assistance or supervision to provide daily self-care in three or more
of the activities of daily living or instrumental activities of daily living
- such as, caring for grooming and hygiene, bathing, dressing,
eating, cooking, cleaning, shopping, taking public transportation,
paying bills, maintaining a residence, using telephones and
directories, etc.
C. "Parent" means the biological parent of an employee or an
individual who stands or stood in Ioco parentis (in place of a parent)
to an employee when the employee was a child. This term does
not include parents-in-law.
D. "Spouse" means a husband or wife as defined or recognized
under California State Law for purposes of marriage.
Page 1 of 12 4/2001
City of Chula Vista
Family and MediCal Leave Act (FMLA) Policy
E. "Serious health condition" means an illness, injury impairment,
or physical or mental condition that involves:
1) Inpatient Care (i.e., an overnight stay) in a hospital,
hospice, or residential medical care facility, including any
period of incapacity (i.e., inability to work, or perform other
regular daily activities due to the serious health condition,
treatment involved, or recovery therefrom); or
2) Continuing treatment by a health care provider: A serious
health condition involving continuing treatment by a health
care prorider includes any one or more of the following:
a) A period of incapacity (i.e., inability to work, or
perform other regular daily activities due to serious
health condition of more than three consecutive
calendar days, and any subsequent treatment or
period of incapacity relating to the same condition,
that also involves: '
i) Treatment two or more times by a health care
provider, by a nurse or physician's assistant
under direct supervision by a health care
provider, or by a prorider of health care
services (e.g., a physical therapist) under
orders of, or on referral by a health care
prorider; or
ii) Treatment by a health care provider on at least
one occasion which results in a regimen of
continuing treatment under the supervision of
the health care prorider. This includes for
example, a course of prescription medication
or therapy requiring special equipment to
resolve or alleviate the health condition. If the
medication is over the counter, and can be
initiated without a visit to a health care
prorider, it does not constitute a regimen of
continuing treatment.
Page 2 of 12 4/2001
City of Chula Vista
Family and Medical Leave Act (FMLA) Policy
b) Any period of incapacity due to pregnancy or for
prenatal care.
c) Any period of incapacity or treatment for such
incapacity due to a chronic serious health condition.
A chronic serious health condition is one which:
i) Requires periodic visits for treatment by a
health care provider, or by a nurse or
physician's assistant under direct supervision
of a health care prorider;
ii) Continues over an extended period of time
(including recurring episodes of a single
underlying condition); and
iii) May cause episodic rather than a continuing
period incapacity (e.g., asthma, diabetes,
epilepsy, etc). Absences for such incapacity
qualify for leave even if the absence lasts only
one day.
d) A period of incapacity, which is permanent or long-
term due to a condition for which treatment may not
be effective. The employee or family member must
be under the continuing supervision of, but need not
be receiving active treatment by a health care
provider.
e) Any period of absence to receive multiple treatments
(including any period of recovery therefrom) by :a
health care provider or by a provider of health care
services under orders of, or on referral by, a health
care provider, either for restorative surgery after an
accident or other injury, or for a condition that would
likely result in a period of incapacity of more than
three consecutive calendar days in the absence of
medical intervention or treatment.
Page 3 of 12 4/2001
City of Chula Vista
Family and Medical Leave Act (FMLA) Policy
F. "Health Care Provider" means:
1 ) A doctor of medicine or osteopathy who is authorized to
practice medicine or surgery by the State of California;
2) Individuals duly licensed as a physician, surgeon, or
osteopathic physician or surgeon in another state or
jurisdiction, including another country, who directly treats or
supervises treatment of a serious health condition;
3) Podiatrists, dentists, clinical psychologists, optometrists, and
chiropractors (limited to treatment consisting of manual
manipulation of the spine to correct a subluxation as
demonstrated by X-ray to exist) authorized to practice in
California and performing within the scope of their practice
as defined under California State law;
4) Nurse practitioners, nurse-midwives and clinical social
workers who are authorized to practice under California
State Law and who are performing within the scope of their
practice as defined under California State Law;
5)Christian Science practitioners listed with the First Church of
Christ, Scientist in Boston, Massachusetts; and
6) Any health care provider from whom an employer or group
health plan's benefits manager will accept certification of the
existence of a serious health condition to substantiate a
claim for benefits.
IlL REASONS FOR LEAVE
Leave is only permitted for the following reasons:
1 ) The birth of a child or to care for a newborn of an employee;
2) The placement of a child with an employee in connection with the adoption
or foster care of a child;
3) Leave to care for a child, parent or a spouse who has a serious health "',
condition; or
Page 4 of 12 4/2001
City of Chula Vista
Family and Medical Leave Act (FMLA) Policy
4) Leave because of a serious health condition that makes the employee
unable to perform th~ functions of his/her position.
IV. EMPLOYEES ELIGIBLE FOR LEAVE
An employee is eligible for leave if the employee:
1. Has been employed for at least 12 months; and
2. Has been employed for at least 1,250 hours during the 12-month period
immediately preceding the commencement of the leave.
V. AMOUNT OF LEA VE
Eligible employees are entitled to a total of 12 workweeks of leave during any 12-
month period.
A. Duration of Leave
The leave can be taken at one time, intermittently or on a reduced
schedule up to 12 workweeks or until the FMLA condition ends, whichever
comes first. If leave is requested for the birth, adoption or foster care
placement of a child of the employee, leave must be concluded within one
year of the birth or placement of the child.
B. Spouses Both Employed By the City of Chula Vista
In any case in which a husband and wife both employed by the City of
Chula Vista are entitled to leave, the aggregate number of workweeks of
leave to which both may be entitled is limited to 12 workweeks during any
12-month period if leave is taken for the birth or placement for adoption or
foster care of the employees' child (i.e., bonding leave). This limitation
does not apply to any other type of leave under this policy.
Page 5 of 12 4/2001
City of Chula Vista
Family and Medical Leave Act (FMLA) Policy
VI. SUBSTITUTION OF PAID ACCRUED LEA VES
While on leave under this 15olicy, as set forth herein, the City of Chula Vista will
require the employee to concurrently use applicable paid accrued leaves.
A. Employee's Right to Use Paid Accrued Leaves Concurrently
With Family Leave
Where an employee has earned or accrued paid vacation, floating holiday,
administrative leave, compensatory time, that paid leave must be
substituted for all or part of any (otherwise) unpaid leave under this policy.
B. City of Chula Vista's Right to Require An Employee To Use
Paid Leave When Using FMLA/CFRA Leave
Employees must exhaust their accrued leaves concurrently with
FMLA/CFRA leave to the same extent that employees have the right to
use their accrued leaves concurrently with FMLA/CFRA leave with two
exceptions:
1. Employees are not required to use accrued compensatory
time earned in lieu of overtime earned pursuant to the Fair
Labor Standards Act (FLSA). However, the employee may
elect to use FLSA compensatory time for an FMLA reason,
and such time off shall be counted as FMLA leave; and
2. Employees will only be required to use sick leave
concurrently with FMLNCFRA leave if the leave is for the
employee's own serious health condition or to take care of a
spouse, parent or child with serious health condition.
The maximum allowable Sick Leave usage for male
employees to bond with a newborn child and care for their
spouse immediately after giving birth is 40 hours. If the
employee's spouse or child has a serious health condition
that requires assistance for basic medical and personal
needs, the employee may request additional Sick Leave.
Page 6 of 12 4/2001
City of Chula Vista
Family and Medical Leave Act (FMLA) Policy
C. City of Chula Vista's Right to Require An Employee To
Exhaust FMLA/CFRA Leave Concurrently With Other Leaves
If an employee takes a leave of absence for any reason which is
FMLA/CFRA qualifying, the City of Chula Vista will designate that leave as
running concurrently with the employee's 12-week FMLNCFRA leave
entitlement. The only exception is for peace officers who are on leave
pursuant to Labor Code 4850.
D. City of Chula Vista and Employee's Rights If An Employee
Requests Accrued Leave Without Mentioning Either the FMLA
orCFRA
If an employee requests to utilize accrued vacation leave or other accrued
paid time off without reference to a FMLA/CFRA qualifying purpose, the
City of Chuia Vista may not ask the employee if the leave is for a
FMLA/CFRA qualifying purpose. However, if the City of Chula Vista
denies the employee's request and the employee provides information
that the requested time off is for a FMLA/CFRA qualifying purpose, the
City of Chula Vista may inquire further into the reason for the absence. If
the reason is FMLA/CFRA qualifying, the City of Chula Vista will require
the employee to exhaust accrued leave as described above.
VII. EMPLOYEE BENEFITS WHILE ON LEAVE
While on FMLA leave, the employee will continue to be covered by the City of
Chula Vista Flexible Benefit Plan to the same extent as coverage would have
provided if the employee had been employed continuously during the entire
FMLA period.
FMLA Paid Leave
An employee who requests leave and is eligible for paid leave under the
City's paid leave provisions, and who qualifies for and is approved for
FMLA, shall be on FMLA Paid Leave.
The City's Flexible Allotment for the employee and the employees' payroll
deduction for all insurance premiums, shall continue during the period of
FMLA Paid Leave in order to continue all the employee's insurance
coverage.
Page 7 of 12 4/2001
City of Chula Vista
Family and Medical Leave Act (FMLA) Policy ,
FMLA Unpaid Leave
An employee who requests leave and is not eligible for paid leave under
the City's paid leave 'provisions, but who qualifies for and is approved for
FMLA, shall be on FMLA Unpaid Leave.
During the period that an employee is on FMLA Unpaid Leave, the City
shall continue to make its Flexible Allotment contributions for the
employee and shall maintain all other group insurance benefits, including
Flexible Spending Accounts, in accordance with Internal Revenue Service
(IRS) Section 125.
If the employee has out-of-pocket contributions, the City shall pay the
insurance payments on behalf of the employee on an advance basis in
order to maintain all of the employee's insurance coverage. The
employee shall continue to be obligated for these premiums and shall
reimburse the City for the payments upon the employee's return to work
from leave through payroll deductions. The amount of each added payroll
deduction shall be equal to the amount of each separate premium not paid
by the employee. This added payroll deduction shall be entered on each
of the employee's biweekly paycheck until the full amount of the premiums ,
is paid in full.
If an employee fails to return to work after his/her leave entitlement has been
exhausted or expires, the City of Chula Vista shall have the right to recover its
share of insurance premiums for the entire leave period, unless the employee
does not return because of the continuation, recurrence, or onset of a serious
health condition of the employee or his/her family member which would entitle
the employee to leave, or because of circumstance beyond the employee's
control. The City of Chula Vista shall have the right to recover premiums through
the deduction from any sums due to the employee from any required payoffs
owed to the employee from vacation or sick leave balances. If at the time of the
employee's termination, there is not enough money in the final check to cover the
outstanding balance, the employee will be responsible for paying the balance.
Any unpaid balance at the end of the repayment schedule will be referred to
collections.
VIII. MEDICAL CERTIRCA TION
Employees who request leave for their own serious health condition or to care for
a child, parent or a spouse who has a serious health condition must provide
written certification from the health care provider of the individual requiring care if
requested by the City of Chula Vista. --,
Page 8 of 12 4/2001
City of Chula Vista
Family and Medical Leave Act (FMLA) Policy
If the leave is requested because of the employee's own serious health condition,
their certification must include a statement that the employee is unable to ~zork at
all or is unable to perform th~ essential functions of his/her position.
A. Time To Provide A Certification
When an employee's leave is foreseeable and at least 30 days notice has
been provided, the employee must provide the medical certification
before the leave begins. When this is not possible, the employee must
provide the requested certification to the City of Chula Vista within the time
frame requested by the City of Chula Vista, unless it is not practicable
under the particular circumstances to do despite the employee's diligent,
good faith efforts.
B. Consequences For Failure To Provide An Adequate Or Timely
Certification
If an employee provides an incomplete medical certification, the employee
will be given a reasonable opportunity to cure any such deficiency.
However, if an employee fails to provide a medical certification within the
time frame established by this policy, the City of Chula Vista may delay
the taking of FMLNCFRA leave until the required certification is provided.
C. Recertification
If the City of Chula Vista has reason to doubt the validity of a certification,
the City may require a medical opinion of a second health care provider
chosen and paid for by the City of Chula Vista. If the second opinion is
different from the first, the City of Chula Vista may require the opinion of a
third prorider jointly approved by the City of Chula Vista and the
employee, but paid for by the City of Chula Vista. The opinion of the third
provider will be binding. An employee may request a copy of the health
care provider's opinions when there is a recertification.
D. Intermittent Leave Or Leave On A Reduced Leave Schedule
If an employee requests leave intermittently (a few days or hours at a
time) or on a reduced leave schedule to care for an immediate family
member with a sedous health condition, the employee must provide
medical certification that such leave is medically necessary. "Medically
necessary" means that there must be a medical need for the leave, and
Page 9 of 12 4/2001
City of Chula Vista
Family and Medical Leave Act (FMLA) Policy
that the leave can best be accomplished through an intermittent or
reduced leave schedule.
IX. EMPLOYEE NOTICE OF LEAVE
Although the City of Chula Vista recognizes that emergencies arise which may
require employees to request immediate leave, employees are required to give
as much notice as possible of their need for leave. If leave is foreseeable, at
least 30 days notice is required. In addition, if an employee knows that he/she
will need leave in the future, but does not know the exact date(s) (e.g. for the
birth of a child or to take care of a newborn), the employee shall inform his/her
supervisor as soon as possible that such leave will be needed. Such notice may
be orally given. If the City of Chula Vista determines that an employee's notice is
inadequate or the employee knew about the requested leave in advance of the
request, the City of Chula Vista may delay the granting of the leave until it can, in
its discretion, adequately cover the position with a substitute.
REINSTATEMENT UPON RETURN FROM LEAVE
A. Right To Reinstatement
Upon expiration of leave, an employee is entitled to be reinstated to the
position of employment held when the leave commenced, or to an
equivalent position with equivalent employment benefits, pay, and other
terms and conditions of employment. Employees have no greater rights to
reinstatement, benefits and other conditions of employment than if the
employee had been continuously employed during the FMLA/CFRA
period.
If a definite date of reinstatement has been agreed upon at the beginning
of the leave, the employee will be reinstated on the date agreed upon. If
the reinstatement date differs from the original agreement of the employee
and the City of Chula Vista, the employee will be reinstated within two
business days, where feasible, after the employee notifies the employer of
his/her readiness to return.
Page 10 of 12 4/2001
City of Chula Vista
Family and Medical Leave Act (FMLA) Policy
B. Employee's Obligation To Periodically Report On His/Her
Condition
Employees may be r~quired to periodically report on their status and intent
to return to work. This will avoid any delays to reinstatement when the
employee is ready to return.
C. Fitness For Duty Certification
As a condition of reinstatement of an employee whose leave was due to
the employee's own serious health condition, which made the employee
unable to perform his/her job, the employee must obtain and present a
fitness-for-duty certification from the health care provider that the
employee is able to resume work. Failure to provide such certification will
result in denial of reinstatement.
D. Reinstatement Of "Key Employees"
The City of Chula Vista may deny reinstatement to a "key" employee (i.e.,
an employee who is among the highest paid 10 percent of all employed by
the City of Chula Vista), if such denial is necessary to prevent substantial
and grievous economic injury to the operations of the City of Chula Vista,
and the employee is notified of the City of Chula Vista's intent to deny
reinstatement on such basis at the time the employer determines that
such injury would occur.
XI. REQUIRED FORMS
Employees must fill out the following applicable forms in connection with leave
under this policy:
1. Application for Family and Medical Leave Form (HRI47) - NOTE:
Employee will receive a response from the City of Chula Vista to their
request which will set forth certain conditions of the leave;
2. Health Care Provider Certification (HR234)- Either for the employee's
own serious health condition or for the serious health condition of a child,
parent or spouse;
3. FMLA Repayment Agreement (HR242) - Authorization for payroll
deductions for benefit plan coverage continuation; and
: 4. Family and Medical Leave Return to Work Certification (HR241)
Page 11 of 12 4/2001
................... City 0f"~hula vista
I ~Family and Medical Leave Act (FMLA) Policy
XIL Relationship Between Pregnancy Disability Leave and FMLA Leave
Pregnancy Leave will be administered in accordance with the California
Fair Employment and Housing Act Sections 7291.2 through 7291.16. A
pregnant employee shall be entitled to a leave of absence without pay for
up to four (4) months so long as the employee's attending physician
certifies that she is physically unable to work due to pregnancy or a
pregnancy-related condition. The City of Chula Vista will count the
employee's pregnancy disability leave toward her FMLA entitlement.
XIII. Relationship Between CFRA, Pregnancy Disabi~ty Leave and FMLA
Leave
The right to take a pregnancy disability leave is separate and distinct from
the right to take a CFRA leave under the California Family Rights Act. At
the end of the employee's period(s) of pregnancy disability, or at the end
of four months pregnancy disability leave, whichever occurs first, a CFRA-
eligible employee may request to take CFRA leave of up to 12 workweeks
for reason of the birth of her child. There is no requirement that either the
employee or the child have a serious health condition in order for the
employee to take CFRA leave.
The maximum possible combined statutory leave entitlement for
CFRA/FMLA employees for both pregnancy disability leave and CFRA
leave for reason of the birth of the child is four months and 12 workweeks.
This assumes that the employee is disabled by pregnancy for four months
and then requests, and is eligible for a 12-week CFRA leave for reason of
the birth of her child.
Page 12 of 12 4/2001