To amend the procedure
which coordinates the granting of leave under the Family and Medical
Leave Act of 1993 ("FMLA") with leave provisions contained
in the Citywide Agreement between the City of New York and District
Council 37, the "Leave Regulations for Employees Who Are Under
the Career and Salary Plan," and the "Leave Regulations
for Management Employees." Personnel Policy and Procedure Bulletin
No. 600-94 established interim guidelines on the FMLA based on the
U. S. Department of Labor's Interim Final Rule. This Personnel Services
Bulletin establishes guidelines based on the federal agency's Final
Rule.
The federal Family and
Medical Leave Act of 1993 entitles eligible City employees to 12
weeks of leave in a 12-month period for child care and for the serious
health condition of the employee or covered family members. The
FMLA became effective on August 5, 1993 for managers and employees
in original jurisdiction positions; on February 5, 1994, it became
effective for employees covered under collective bargaining agreements
with the City of New York. (See Memorandum to Agency Heads dated
August 23, 1993.)
The following FMLA provisions
are integrated with existing time and leave benefits contained in
the Citywide Agreement, the "Leave Regulations for Employees
Who Are Under the Career and Salary Plan," and the "Leave
Regulations for Management Employees." FMLA provisions apply
to eligible full-time and part-time employees in all jurisdictional
classifications (competitive, non-competitive, labor, and exempt)
and include provisional, temporary, and seasonal employees. Each
agency must designate an FMLA Coordinator to assist in effectuating
these provisions.
1. Certain individuals
are excluded from the definition of "employee" under
the FMLA. A person who:
a. is not subject
to the civil service laws of the political subdivision which
employs the employee, and
b. holds a public
elective office; or
c. is selected by
the holder of such public elective office to be a member of
his/her personal staff; or
d. is appointed
by such public elective officeholder to serve on a policymaking
level; or
e. is an immediate
adviser to such public elective officeholder with respect to
the constitutional or legal powers of the office of such officeholder;
or
f. is an employee
in the legislative branch or legislative body of... [the] political
subdivision
is not eligible for
FMLA leaves.
2. An eligible employee
is one who has worked for the employer for a total of at least
12 months preceding the start of the leave. The 12 months need
not be consecutive. If an employee is maintained on the payroll
for any part of a week, the week counts as a week of employment.
To be eligible, the employee must also have actually worked 1,250
hours over the 12-month period immediately preceding the start
of the leave.
3. An eligible employee
is entitled to a total of 12 weeks of leave in a 12-month period.
Leave may be taken upon the birth of a child to the employee,
to care for such child; or upon the placement of a child with
the employee for adoption or foster care, to care for such child
("FMLA child care leave"). Leave may also be taken to
care for a child of the employee when the child has a serious
health condition, as defined herein; to care for the employee's
parent or spouse when such person has a serious health condition;
and for the employee's own serious health condition.
"Child"
means a biological, adopted or foster child of the employee; a
legal ward or stepchild of the employee; or a child for whom the
employee stands in loco parentis. A child must either be under
the age of 18 or incapable of self-care because of mental or physical
disability. "Spouse" means a husband or wife as defined
or recognized under state law for purposes of marriage in the
state where the employee resides. "Parent" means the
biological parent of the employee, or a person who stands or stood
in loco parentis for the employee when the employee was a child,
as defined herein; it does not include "in-laws."
4. In addition, an
eligible employee with a domestic partner may take up to 12 weeks
of leave to care for the employee's domestic partner if such person
has a serious health condition. Any FMLA leave already taken during
the previous 12 months, pursuant to Section 3 above, will be subtracted
from the 12 weeks allowed for this purpose. Leave taken for this
purpose does not diminish the employee's entitlement to the 12
weeks of FMLA leave permitted pursuant to Section 3 above. "Domestic
Partner" means domestic partner as defined in Section 1-112
(121) of the Administrative Code of the City of New York.
5. The 12-month period
in which the 12 weeks of leave entitlement occurs is a "rolling"
12-month period measured backward from the date any FMLA leave
is to be used. Under this method of leave calculation, each time
an employee is to take FMLA leave, the leave entitlement would
be the balance of the 12 weeks which had not been used during
the immediately preceding 12 months.
6. Serious health
condition, as further explained below, means an illness, injury,
impairment, or physical or mental condition that involves inpatient
care or continuing treatment by a health care provider.
A serious health
condition which involves inpatient care (i.e., overnight stay)
in a hospital, hospice, or residential medical facility also
includes any period of incapacity, and any subsequent treatment,
related to such inpatient care.
Incapacity means
inability to work, attend school, or perform other regular daily
activities due to the serious health condition, or consequent
treatment, or recovery from the serious health condition. When
leave is taken for the employee's own serious health condition,
incapacity means the inability to work at all or to perform
any one of the essential functions of the employee's position
within the meaning of the Americans with Disabilities Act of
1990 and its implementing regulations.
A serious health
condition which involves continuing treatment by a health care
provider includes one or more of the following:
a. A period of
incapacity of more than three consecutive calendar days, and
any subsequent treatment or period of incapacity relating
to the same condition, that also involves treatment two or
more times by a health care provider, a nurse or physician's
assistant under the direct supervision of a health care provider,
or by a provider of health care services (e.g., physical therapist)
under orders of, or on referral by, a health care provider;
or
b. A period of
incapacity of more than three consecutive calendar days, and
any subsequent treatment or period of incapacity relating
to the same condition, that also involves 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; or
c. Any period of incapacity due to pregnancy or for prenatal
care; or
d. Any period
of incapacity due to a chronic serious health condition which
requires periodic visits for treatment, continues over an
extended period of time, and may cause episodic rather than
a continuing period of incapacity (e.g., asthma, diabetes,
epilepsy, etc.); or
e. A period of
incapacity which is long term or a permanent incapacity due
to a condition for which treatment may not be effective (e.g.,
Alzheimer's Disease, stroke, etc.). Active treatment by a
health care provider may not be necessary but continuing supervision
by a health care provider is required; or
f. Any period
of absence to receive multiple treatments (including any period
of recovery resulting from treatment) by a health care provider
or by a provider of health care services under orders of,
or on referral by, a health care provider, for restorative
surgery after an 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 treatment, such as
cancer (chemotherapy, radiation, etc.), kidney disease (dialysis),
etc.
7. Health care providers
include doctors of medicine or osteopathy authorized to practice
medicine or surgery; podiatrists, dentists, clinical psychologists,
optometrists, chiropractors in certain instances, nurse practitioners,
nurse-midwives, and clinical social workers, authorized to practice
in the state; and Christian Science practitioners listed with
the First Church of Christ Scientist in Boston, Massachusetts;
or any other health care provider determined by the U.S. Department
of Labor to be capable of providing health care services.
8. Leave taken for
the employee's own serious health condition or to care for a covered
relative's serious health condition may be taken on an intermittent
or reduced leave schedule in cases of medical necessity. Certification
from a health care provider stating the medical necessity for
leave on an intermittent or reduced leave basis and the duration
and schedule of the leave satisfies the medical necessity requirement.
However, the employee must attempt to schedule leave so as not
to disrupt the agency's operations. If an employee requests intermittent
leave or leave on a reduced leave schedule that is foreseeable
based on planned medical treatment, including a period of recovery
from a serious health condition, the employer may require the
employee to transfer temporarily to an available alternative position
for which the employee is qualified and which has equivalent pay
and benefits, which better accommodates recurring periods of leave
than does the employee's regular position. Transfer to an alternative
position shall require compliance with any applicable collective
bargaining agreement, federal law (such as the Americans with
Disabilities Act), and State law.
9. Entitlement to
FMLA child care leave expires 12 months after the birth or placement
of the child with the adoptive or foster parent. Child care leave
may not be taken on an intermittent or reduced leave schedule.
Paid annual leave and non-FLSA compensatory time must be used
concurrently with FMLA child care leave, but if FMLA leave is
to be extended by City provided child care leave (for birth or
adoption), only that portion of the FMLA leave which is not coincident
with paid leave is to be counted against the City child care leave
entitlement. If an employee commences child care leave and has
no annual leave or compensatory time, FMLA child care leave is
to be counted in its entirety against the City child care leave
entitlement. If FMLA child care leave has not been taken and the
12-month eligibility period has elapsed, City child care leave
may be taken at any time until the child's fourth birthday.
10. When the need
for FMLA leave is foreseeable, an employee must give the agency
FMLA Coordinator at least 30 calendar days advance notice before
the leave begins. If the employee does not, the employer can delay
the start of the FMLA leave. If leave is to be delayed by the
agency because of the employee's failure to comply with the 30-day
requirement, it must be clear that the employee had notice of
this requirement. It is therefore imperative that the notice entitled
"Your Rights under the Family and Medical Leave Act of 1993"
be posted conspicuously at the worksite and, where appropriate,
included in the agency's employee handbook. If the employee's
foreseeable leave is to be delayed because there was no reasonable
cause for the untimely notification, an administrative review
must be conducted by designated agency personnel. If the need
for leave is unforeseeable, the employee is ordinarily required
to give notice within one or two business days of when the need
for leave becomes known to the employee.
In those cases where
paid leave is used concurrently with FMLA leave, if the City's
notice requirements are less stringent than the notice requirements
of the FMLA, only the less stringent requirements may be imposed.
11. When an employee
requests leave for an FMLA qualifying purpose but does not request
to use FMLA leave, it is the agency's responsibility to designate
such leave as FMLA leave. Such designation may be made before
or after the leave commences, as long as it is made within two
business days, absent extenuating circumstances, of the agency
acquiring knowledge that the leave is for an FMLA qualifying purpose.
If the agency learns, subsequent to the commencement of leave,
that the leave or some portion thereof, is or was for an FMLA
qualifying purpose, the agency must designate such leave as FMLA
leave retroactively to, and/or prospectively from, the FMLA qualifying
event.
The agency may designate
leave as FMLA leave after the employee returns to work only if
the agency was not aware of the reason for the leave prior to
such time or the agency preliminarily designated leave as FMLA
leave while awaiting medical certification. In the former instance,
leave must be designated as FMLA leave within two business days
of the employee's return to work, with appropriate notice to the
employee. In the latter case, the preliminary designation of FMLA
leave becomes final upon receipt of medical certification confirming
the leave was for an FMLA qualifying purpose. If the employee
requests leave to be counted as FMLA leave after returning to
work, the employee must notify the agency of the FMLA qualifying
purpose of the leave within two business days of returning to
work.
If the agency's initial notice to the employee designating FMLA
leave is oral, the agency must confirm the designation in writing,
in any format, no later than the following payday or, if there
is less than one week between the oral notice and the next payday,
written notice must be no later than the subsequent payday.
12. When an employee
requests leave for an FMLA qualifying purpose, the attached Form
DP-2494, "Request for Leave under the Family and Medical
Leave Act," and a copy of the notice entitled "Your
Rights under the Family and Medical Leave Act of 1993" must
be immediately provided to the employee. The employee must, in
turn, submit the completed form as soon as practicable. Please
note that the agency may not deny or delay the leave because the
employee has not submitted written notice as long as the employee
has provided timely oral notice of the need to take leave for
an FMLA qualifying reason. The agency FMLA Coordinator or designee
must sign the request form indicating the disposition and return
it to the employee within 5 working days of receipt. The approved
request form may be used as written confirmation of an FMLA designated
leave, as required in Section 11, if it is returned to the employee
within the time constraints stated in Section 11.
Please note that the
request form contains notice to the employee of specific obligations
of the employee and the consequences of the failure to meet these
obligations, as well as certain obligations of the employer. Among
the items discussed are the requirements for documents to support
the leave and the return to work, the employee's status as a "key"
employee, the right to be restored to the same or equivalent position,
and the requirement to substitute paid leave.
13. Appropriate paid
leave balances (including managers' vested or sub-managerial leave
balances as applicable) must be used concurrently with FMLA leave.
For instance, all paid sick leave must be used and counted against
the 12-week FMLA leave entitlement if absence is due to the employee's
own serious health condition. If all sick leave balances have
been exhausted and annual leave is used due to the employee's
own serious health condition, the annual leave used shall be counted
against the FMLA entitlement. Compensatory time balances, except
for compensatory time subject to the Fair Labor Standards Act,
must also be used and counted against the FMLA entitlement. Similarly,
all paid annual leave and non-FSLA compensatory time must be used
and counted as FMLA leave if absence is for any other FMLA qualifying
purpose. After all leave balances have been exhausted, any leave
that is advanced or granted for either the employee's own serious
health condition or other FMLA qualifying reasons will be counted
against the employee's FMLA entitlement. If an employee chooses
to use FLSA compensatory time for an FMLA qualifying purpose,
such time used may not be counted against the employee's FMLA
leave entitlement.
14. An employee will
be required to present medical documentation to support a request
for FMLA leave when a serious health condition is involved. For
the employee's own serious health condition, such documentation
should include the date the serious health condition commenced,
the probable duration of the condition, the diagnosis, the regimen
of treatment prescribed, a statement that the employee is unable
to perform all or any one of the essential functions of the employee's
position, or in the case of leave to care for a covered relative's
serious health condition, a statement that the relative requires
assistance for basic medical needs, hygiene, nutritional needs,
safety, transportation, or psychological comfort. Documentation
should be requested at the time the employee requests leave or
in the case of unforeseen leave, soon after the leave commences.
Documentation must be provided within 15 calendar days from the
agency's request where practicable. (Use attached Form DP-2496,
"Certification of Physician or Health Care Provider"
or if not practicable, provide appropriate documentation in another
form.)
15. An employee will
be required to present documentation to support a request for
FMLA leave to care for a newborn child or a child who has been
adopted or received into foster care. Documentation should be
requested at the time the employee requests leave, or in the case
of unforeseen leave, soon after the leave commences. Documentation
must be provided within 15 calendar days from the agency's request
where practicable. (See attached Form DP-2495, "Child Care
Leave Certification under the Family and Medical Leave Act.")
16. An employee on
FMLA leave for his/her own serious health condition may be required
to provide medical documentation certifying fitness to return
to work before restoration.
17. An employee who
returns from FMLA leave must be restored to his or her previous
position or to an equivalent position. An equivalent position
is a position in the same civil service title which has the same
pay, benefits, and working conditions (including the same worksite
or a geographically proximate worksite). A geographically proximate
worksite is one that does not involve a significant increase in
commuting distance or time. If the employee is denied restoration
or other benefits, the agency must be able to show that the employee
would not have continued to be employed, or to have received the
benefits, if the employee had been continuously employed during
the leave period.
18. FMLA leave is
not considered a break in service for the purpose of pay and benefits;
however, the time spent on unpaid leave is not counted as service
in determining benefits, including pensions.
19. Where the restoration
of a "key" employee would cause substantial and grievous
economic injury to its operations, an employer may refuse to restore
such employee provided certain procedures have been followed.
A "key" employee is a salaried employee who is among
the highest paid ten percent of salaried and unsalaried City employees.
A "key" employee must be advised in writing of his/her
status as such, and the implications of such status, at the time
leave is requested. If it is determined, while the employee is
on leave, that restoration will cause grievous economic injury,
the agency must notify the employee by certified mail that it
intends to deny restoration on completion of leave and must state
the basis for its determination. The "key" employee
must be given a reasonable time in which to return to work. If
he/she does not return to work at that time, the "key"
employee may still request restoration at the end of the leave
period. If the agency's determination remains the same, the employee
must be notified by certified mail that restoration is denied.
Please note that "key" employees who are also permanent
employees covered under Civil Service Law, Section 75, must be
restored to their positions unless the appropriate procedures
required by Civil Service Law have been followed. In addition,
"key" employees who are on City provided child care
leave concurrent with FMLA child care leave are to be restored
to their positions pursuant to the City's leave provisions.
20. Group health insurance
must be maintained for an employee on FMLA leave on the same terms
as if the employee had continued to work. However, the employer
may recover its share of health plan premiums for the period of
time the employee was on unpaid leave if the employee does not
return to work after the FMLA leave has expired, unless there
is a continuation or onset of a serious health condition or another
circumstance occurs which is beyond the employee's ability to
control. The NYC Office of Labor Relations has issued additional
information on health insurance and welfare funds under separate
cover.
21. FMLA leave records
must be maintained by the agency as described in Section 825.500
of the regulations issued by the U.S. Department of Labor, which
is attached.
22. Employees who
exercise their rights under the FMLA are protected as described
in Section 825.220 of the regulations issued by the U.S. Department
of Labor, which is attached.
23. The Office of
Payroll Administration has issued instructions under separate
cover with regard to the Payroll Management System and FMLA leave.
William J. Diamond
Commissioner
