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HomeMy WebLinkAboutReso 2002-108 · RESOLUTION NO. 2002-108 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA REVISING THE CITY'S FAMILY AND MEDICAL LEAVE ACT POLICY PURSUANT TO LABOR CODE SECTION 4850 WHEREAS, on May 15, 2002, the City of Chula Vista approved the City's Family and Medical Leave Act (FMLA) Policy in order to protect an employee's right 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, Labor Code Section 4850 entitles peace officers to a leave of absence while disabled, by injury or illness arising out of and in the course of his or her duties, without loss of salary in lieu of temporary disability payments or maintenance allowance payment, but not exceeding one year, or until earlier date as receiving disability pension payments; and WHEREAS, Labor Code Section 4850 has been revised and pursuant to the its provisions, leave of absence taken by firefighters who are out on disability fi.om injury or illness arising out of and in the course of employment will not constitute Family and Medical Leave; and WHEREAS, the City's Family and Medical Leave Act Policy is being revised to incorporate this change. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby adopt the revised City's Family and Medical Leave Act Policy pursuant to Labor Code Section 4850, attached hereto as Attachment "A," and incorporated herein by reference as if set forth in full. Presented by Approved as to form by C n J~ol~vl. Kaheny Human Resources Director ~J2~ty Attorney Resolution 2002-108 Page 2 PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista, California, this 9th day of April, 2002, by the following vote: AYES: Councilmembers: Davis, Padilla, Rindone, Salas and Horton NAYS: Councilmembers: None ABSENT: Councilmembers: None Shirley Hor~n, Mayor ATTEST: Susan Bigelow, City Clerk ''~ STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) CITY OF CHULA VISTA ) I, Susan Bigelow, City Clerk of Chula Vista, California, do hereby certify that the foregoing Resolution No. 2002-108 was duly passed, approved, and adopted by the City Council at a regular meeting of the Chula Vista City Council held on the 9th day of April, 2002. Executed this 9th day of April, 2002. Susan Bigelow, City Clerk City of Chula Vista Family and Medical Leave Act (FMLA) Policy I. STATEMENT OF POLICY To the extent not already previded 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 pureuant 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 af 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 REV. March 2002 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 provider 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 provider of health care services (e.g., a physical therapist) under orders of, or on referral by a health care provider; 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 provider. 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 provider, it does not constitute a regimen of continuing treatment. Page 2 of 12 REV. March 2002 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 provider; 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 REV. March 2002 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. II1. 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 REV. March 2002 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 the 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 REV. March 2002 City of Chula Vista Family and Medical Leave Act (FMLA) Policy VI. SUBSTITUTION OF PAID ACCRUED LEAVES While on leave under this policy, 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 FMLNCFRA 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 FMLA/CFRA 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 REV. March 2002 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 FMLAJCFRA leave entitlement. The only exception is for peace officers and firefighters 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 or CFRA 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 Chula 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 REV. March 2002 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 CERTIFICATION 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 REV. March 2002 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 work at all or is unable to perform the 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 FMLA/CFRA 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 provider 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 serious 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 REV. March 2002 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 LEA VE 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. X. 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 REV. March 2002 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 required 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. Xl. 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 (HR147) - 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 sedous 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 REV. March 2002 City of Chula Vista Family and Medical Leave Act (FMLA) Policy XII, Relationship Between Pregnancy Disability Leave and FMLA Leave Pre§nancy Leave will be administered in accordance with the Ca!ifomia Fair Employment and Housing ^ct Sections 729'1.2 throu§h 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 Disability 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 REV. March 2002