Introduction
This document is intended to be an administrative guideline to help supervisors and managers administer provisions of FMLA/CFRA and does not substitute for the County’s FMLA/CFRA policy or the County code regarding FMLA (2.78.765). FMLA rules relating to military service are covered in the Military Leave Under FMLA section of this policy.
If there are any inconsistencies between the information contained in this administrative guideline and with County Policy L-9 and/or ordinance, the County Policy and Ordinance shall prevail. To the extent that there are any inconsistencies between these guidelines and existing memoranda of understanding covering employees in any representation unit created pursuant to Chapter 2.79 of the Sacramento Code, the provisions of the memoranda of understanding shall prevail.
Eligibility
Employees who have at least 12 months of service and who have worked at least 1,250 hours during the previous 12-month period are eligible for FMLA/CFRA leave. The FMLA/CFRA leave period is calculated from the first day that the employee takes FMLA/CFRA leave, whether paid or unpaid, for the first qualifying event.
Non-Military
12 Months of Service:
The 12 months of service need not be consecutive months worked and may be intermittent. For example: an employee who worked as an intermittent county temporary employee for seven months in 2004 and six months in 2005 would satisfy the 12 month service requirement.
If an employee terminates from the County and then returns to County employment after a break lasting 7 years or more, the prior service period does not count. However, the period of service prior to a continuous break in service of 7 or more years is counted if 1) the employee's break in service is due to the fulfillment of National Guard/Reserve military service; or 2) a written agreement exists concerning the County's intention to rehire the employee after the break in service. If an employee is on the payroll during any part of the week, the week counts as a week of employment. For example: An employee works two days of the workweek and takes three days off of paid or unpaid time for the remainder of the workweek. That week would count as a week of employment.
Worked at Least 1,250 hours:
“Hours worked” includes only those hours actually worked. Unpaid leave and paid leave (vacation, CTO, HIL, or sick leave, etc.) as well as FMLA/CFRA leave time are not included in calculating the 1,250 hours.
Overtime hours are included in calculating the 1,250 hours worked.
The 1,250 hours must have been worked during the 12-month period immediately preceding commencement of the leave.
Eligibility Established During Leave Period:
Leave that begins before FMLA eligibility may start out as non-FMLA-qualifying leave, but if an employee becomes eligible for FMLA leave in during the absence, FMLA is triggered from that point forward.
Example: An employee during his/her tenth month of employment has a need for FMLA qualifying leave of three months. The first two months of the absence are not covered by FMLA; however the remaining month would be covered, providing he/she has worked 1,250 hours.
Military
12 Months of Service:
Upon return from military service, an employee should be given credit for the period of military service towards the months-of-employment eligibility requirement. Each month served performing military service counts as a month of employment by the County:
For example: An employee who has been employed for six months is ordered to active service for nine months. Upon returning, the employee must be considered to have been employed for 15 months and is considered to have more than the required 12 months for purposes of FMLA/CFRA eligibility.
Worked at Least 1,250 hours:
An employee returning after military service should be credited with the hours-of-service that would have been performed but for the period of military service. In order to determine the hours that would have been worked during the period of military service, the employee’s pre-service work schedule can generally be used for calculations.
Example: An employee who works 40 hours per week for the County returns to employment following 20 weeks of military service and requests FMLA leave. To determine eligibility the hours she/he would have worked during the period of military service (20 X 40=800) must be added to hours actually worked during the 12-month period prior to the start of the leave to determine if the 1,250 requirement was met.
Calculation of Leave Time
Employees are entitled to up to 12 weeks of time off whether paid or unpaid, for the purposes of FMLA/CFRA during a 12-month period. The commencement of the 12-month period is measured forward from the date an employee’s first FMLA/CFRA leave begins. The 12-month period for military caregiver leave is measured differently and may not overlap with other types of FMLA leave. More detail on the calculation of leave time for military caregiver leave is in the Military Leave Under FMLA section to this policy.
Full-time employees, who work an 80-hour schedule per pay-period, are entitled to up to 480 hours of FMLA/CFRA leave in a 12-month period.
Full-time employees who work a 7/12 shift are entitled to up to 504 hours of FMLA/CFRA leave in a 12 month period.
Part-time employees will have their FMLA/CFRA period prorated to the employee’s regular workweek. For example: If an employee works 64 hours per pay-period (4/5 time), he/she is entitled to up to 384 hours of FMLA/CFRA leave.
Intermittent employees will have their FMLA/CFRA period prorated based on the hours worked in the 12 months immediately preceding the leave. For example, if the employee worked 1400 hours in the preceding 12 months, he would be eligible for 323 hours of FMLA/CFRA leave. Calculated as follows: 1400 hours worked /2080 work hours in year = 67.3% then 67.3% x 480 FMLA/CFRA leave = 323 hours.
Employees who regularly work beyond their scheduled hours per pay period will have their FMLA/CFRA period prorated based on the overtime hours worked in the twelve months immediately preceding the leave.
Example of Multiple Events: In February, an employee is absent from work for four weeks due to an unexpected surgery for his first FMLA/CFRA qualifying event. Upon return to work, from March – May, the employee has taken off four to six hours per week for continuing treatment, totaling 80 hours (two weeks) of sick leave used. In September, the employee has requested an additional six weeks of time away from work to care for his father who has an FMLA/CFRA qualifying illness. The employee has used only six weeks of his FMLA/CFRA time available; therefore this request should be approved.
Overlapping Military Caregiver Leave:
When an eligible employee takes leave to care for more than one covered service member or for a subsequent serious injury or illness of the same covered service member, and the single 12-month periods corresponding to the different military caregiver leave entitlements overlap, the employee is limited to taking no more than 26 work weeks of leave in each single 12-month leave period.
Timeoff under FMLA/CFRA
Mandatory Use of Accrued Leave:
FMLA/CFRA leave can be either paid or unpaid leave. If an employee is receiving a wage replacement benefit (e.g., SDI, Workers’ Compensation, etc.), he/she cannot be required to use his/her available leave balances.
If the employee is not receiving a wage replacement benefit, and if an employee or the employee's family member has a serious health condition, the employee must use all available sick leave, vacation, HIL balances and may opt to use compensatory time off (CTO), during the FMLA/CFRA related absence. In the case of care for a new child (including under CFRA only, the child of an employee's registered domestic partner), an employee is required to use all available vacation, HIL and parental leave prior to authorization of unpaid leave to care for that child. An employee may not choose to defer the use of FMLA/CFRA leave until after his/her leave balances have been exhausted.
Different rules apply for pregnancy; see the Pregnancy Disability Leave (PDL) policy.
Intermittent and Reduced Schedule Leave:
Both FMLA and CFRA provide for leave on an intermittent or reduced schedule basis for:
a) The serious health condition of the employee or family member; or
b) The birth or placement of a child; or
c) Military caregiver leave; or
d) Military exigency leave.
Only the amount of leave actually taken while on intermittent or reduced schedule leave may be charged as FMLA/CFRA leave. Employees are not allowed to take more FMLA/CFRA leave than necessary to address the circumstances that cause the need for leave. The requirements for military leaves are separately addressed in the Military Leave Under FMLA section to this policy.
If an employee requests leave on an intermittent or reduced schedule basis for planned medical treatment appointments under the military caregiver provisions for the covered service member, the certification may seek information as to whether there is a medical necessity for the covered service member to have such periodic care and an estimate of the treatment schedule of such appointments. A certification may also be obtained to determine if there is a medical necessity for the covered member to have periodic care that requires the employee to have intermittent or reduced schedule leave.
The County accounts for leave in increments of six-minutes or 0.1 hour.
Employees needing intermittent/reduced schedule leave for foreseeable medical treatment may be asked to work with their supervisors/managers to schedule the leave so as not to unduly disrupt the business operations, but cannot be required to do so.
Relationship to Pregnancy Disability Leave (PDL):
CFRA:
Under CFRA, an employee’s pregnancy is not considered a serious health condition that would allow her to take CFRA leave. However, an employee may be entitled to leave under CFRA as well as FMLA for the pregnancy disability of an employee’s eligible family member. A woman who is disabled by pregnancy, childbirth or related conditions is entitled to up to four months of leave (for a full-time employee who works five eight-hour days per week, four months means 86.6 working and/or paid eight hour days of leave entitlement, based on an average of 22 working days per month for four months) under the PDL law. Where an employee has used all four months of PDL before the birth of a child, and her health care provider determines that a continuation of the leave is medically necessary, the County may, but is not required to allow an eligible employee to utilize CFRA leave prior to the birth of her child. The County is not required to provide more CFRA leave than the amount to which the employee is otherwise entitled. If the child has been born by the end of the four months of PDL, the employee may take “baby bonding,” if she has not previously exhausted CFRA leave entitlement time.
FMLA:
Under FMLA, a pregnancy is a serious health condition that would allow family leave. However, the FMLA leave runs concurrently with PDL as long as the employee is notified within the proper time frame that her PDL is also being considered as FMLA leave. This means that the employee who uses all four months of PDL will exhaust her FMLA leave entitlement during her PDL.
The diagram shows an employee taking the maximum time granted under PDL (4 months = 17 and 1/3 weeks) followed by CFRA leave (12 weeks) for baby bonding. CFRA does not run concurrently with PDL. View the diagram.
PDL time available is 4 months, or 86.6 working days, or 17 weeks plus 3 days, or 693 hours, of which 12 weeks, or 60 days, or 480 hours is concurrent FMLA.
Four months is the maximum leave entitlement; however, the employee must be designated as disabled because of pregnancy, childbirth, or related medical condition by her treating physician, if required by the County.
CFRA taken after a FMLA/PDL leave is 12 weeks (which can be calculated also as 60 days or480 hours) for full-time employees. The amount of leave available may vary depending on hours worked. CFRA may be taken for purposes of bonding with the baby.
FMLA/CFRA Timeoff for a Registered Domestic Partner
FMLA and CFRA run concurrently except for pregnancy disability leaves and leaves for the registered domestic partner and, in some cases, the child of an employee's registered domestic partner. If the employee acts in loco parentis to the child of the employee's registered domestic partner, FMLA and CFRA would run concurrently. However, if the employee does not act in loco parentis, FMLA and CFRA would run separately for a leave to care for that child.
Example 1: A full-time employee with five years of county service takes eight weeks off work to care for his registered domestic partner starting in February through the end of March and returns to work in April. This time is designated as CFRA leave. On October 5th, the employee needs to take six weeks off work to care for his father who suffered a serious illness. This employee would be eligible for up to 12 weeks of FMLA time to care for his father even though the employee had already used eight weeks of CFRA time to care for his registered domestic partner. The first four weeks of leave for the father is designated as FMLA/CFRA and the remaining two weeks is FMLA leave only.
Example 2: A full-time employee with five years of county service takes 12 weeks of FMLA/CFRA off work starting in February thru April to care for his father who suffered serious health condition. On June 1st, the employee requests to take six weeks off work to care for his registered domestic partner who suffered a serious health condition. The employee would not be eligible for additional time off under CFRA to take care of his registered domestic partner because his CFRA leave was previously exhausted by his leave to care for his father. In this case, unlike Example 1, FMLA/CFRA ran concurrently.
Notification
Employee Notice:
There are circumstances when an employee is aware of the need for FMLA/CFRA leave in advance.
For example:
- Scheduled surgery; or
- Continuous medical treatment; or
- Birth or adoption
In these circumstances, the employee must provide the County at least 30 days advance notice of the need for leave, the reason and dates. If the 30-day notice is not possible, or the qualifying event is not foreseeable, the employee should contact his/her supervisor as soon as practical. In most cases this means either the same or the next business day of learning of the need for leave. The first time that an employee seeks leave for an FMLA-qualifying reason; the employee need not specifically mention FMLA/CFRA leave by name. However, once FMLA leave has been granted, the employee must subsequently specifically reference either the qualifying reason or the need for FMLA leave. Calling in "sick" is not sufficient.
The employee’s request for time off may be made verbally or in writing; however, the employee is still required to complete an Absence Request Form.
County Notification
The County is responsible for providing FMLA notices to an employee.
Eligibility Notice:
When an employee requests (or the County identifies) a potential FMLA-qualifying leave for the first time during the applicable 12-month period, the County must notify the employee of his/her FMLA eligibility status within 5 business days. If the employee is not eligible for FMLA leave, the notice must state "at least one reason" why the employee is ineligible, including whether the employee fails to meet the 12 months service, 1,250 hours of work or other eligibility standards. This notice can be delivered verbally or in writing; however, should be finalized in writing. If the employee's eligibility does not change by the next time FMLA leave is requested, no new eligibility notice needs to be provided.
Rights and Responsibilities Notice:
This must be given each time an eligibility notice is given and must be given in writing. It must include:
a) an explanation that if FMLA leave is granted, it will be deducted from the employee's 12 week allowance; and
b) requirements for employees to submit medical certifications and the consequences for failing to do so; and
c) any County requirements regarding the substitution of paid leave such as sick time or vacation; and
d) requirements for employee to maintain health benefits during FMLA leave including payment of premiums; and
e) employee rights to maintain benefits and to job restoration following leave; and
f) employee's potential liability for unpaid health insurance premiums if the employee fails to return to work following leave; and
g) if the employee is receiving SDI, PFL or WC, the employee is not required to use his/her balances during his/her FMLA/CFRA protected leave.
This must be provided in writing within 5 days after obtaining sufficient information to know whether a given absence is FMLA-qualifying or not. If leave is granted, the designation notice must include any "return to work" certification that may be required before returning the employee to work. It must also specifically inform the employee of the amount of leave (hours, days or weeks) that will apply to the maximum 12 weeks of FMLA leave allowable. If this breakdown is unknown at the time the leave is granted, the County must provide such information on an employee's request, but the County need not provide such breakdowns more often than every 30 days.
Because the employee need not specifically request FMLA/CFRA leave by name, it is important that the supervisor or manager recognize circumstances that may trigger FMLA/CFRA notification. For example: An employee, who frequently calls in with migraines, chronic asthma, diabetes, or back pain, may qualify under FMLA/CFRA leave for those absences.
This list is not inclusive and the policy should be referred to for a detailed description of qualifying events. Written notice confirming the employee’s eligibility must be provided to the employee normally within five business days. If verbal notice is given to the employee, written notice must be provided to the employee no later than the following payday, unless the payday is less than one week after the oral notice, in which case the notice must be no later than the subsequent payday.
Retroactive Desgnation
If the County fails to timely designate leave as FMLA/CFRA leave, the County may retroactively designate the leave time as FMLA/CFRA if the failure to timely designate the leave does not cause harm or injury to the employee. In any case, where leave would qualify as FMLA/CFRA leave, an employee and the County may mutually agree that the leave shall be retroactively designated.
Medical Certification
If an employee takes leave due to his/her serious health condition or that of an eligible family member, the County may require within five days after learning of the need for leave that the need for time off be verified by a medical certification such as Certification of Health Care Provider form signed by a health care provider for the employee or an eligible family member. This certification may be requested following the employee’s notice of the need for a leave due to a serious health condition. The County may not require the disclosure of a specific serious health condition (diagnosis) of an employee or an eligible family member. The employee may opt to identify a serious health condition, but identification of the specific condition is not required by the County. If the employee believes that the information provided on the medical certification form, has changed, is insufficient or incomplete, it is the responsibility of the employee to discuss the concerns with his/her medical provider and secure an updated medical certification form, if appropriate.
The County may require information sufficient to establish that the employee cannot perform the essential functions of the employee's job as well as the nature of any other work restrictions and the likely duration of such inability. If the employee provides an incomplete certification, the County must advise the employee in writing of the deficiency and provide the employee with 7 days to cure the problem.
The County must state in writing what additional information is necessary to make the certification complete and sufficient. A certification is considered incomplete if one or more of the entries has not been completed. A certification is considered insufficient if the County receives a complete certification, but the information provided is vague, ambiguous or non-responsive.
If the medical certification form is not timely received a requested leave would not normally be designated as FMLA/CFRA. However, the County may determine on a case-by-case basis whether there is justification for approval of an FMLA/CFRA leave if the medical certification is not timely returned.
The County may contact the employee's health care provider for authentication of the medical certification after the employee has had an opportunity to resolve any deficiencies. Authentication means verifying that the provider completed and/or authorized the information on the certification form. If the County needs clarification of the certification form, the County must contact the employee to secure the needed clarification. Contact with the health care provider may only be made by a Human Resources representative. Clarification means inquiring to understand the handwriting on the form or to understand the meaning of a response. The FMLA/CFRA approval may be delayed until such information is provided.
If an employee does not provide sufficient FMLA/CFRA certification, the leave will not be treated as FMLA/CFRA time and the employee’s absence may be considered AWOL. The decision to mark an employee AWOL shall be determined on a case-by-case basis based on the circumstances. For clarification or added guidance, contact your Human Resources office.
Second/Third Medical Opinions:
If the FMLA/CFRA designation is made because of the employee’s own serious health condition, and the County has reason to doubt the validity of the medical certification provided, the County may require, at its expense, a second opinion from a health care provider that the County chooses. The health care provider designated to provide a second opinion must not be one who is employed on a regular basis by the County. If the opinions of the employee’s and the County’s designated health care providers differ, the County may require the employee to obtain certification from a third health care provider, at the County’s expense. The opinion from the third health care provider, who is selected jointly, is final and binding.
Pending receipt of additional opinions, the employee’s leave should be preliminarily designated FMLA/CFRA leave and the employee is entitled to benefits of FMLA/CFRA leave pending resolution of the certification issues.
The copies of the medical opinions should be provided, if they have been requested by the employee, within five business days unless extenuating circumstances prevent such action.
If the County requires a second or third opinion, the County must reimburse the employee for any reasonable out-of-pocket travel expenses incurred to obtain the opinions.
The County cannot require a second or third opinion concerning the serious health condition of a child, parent, spouse, registered domestic partner or child of the registered domestic partner of an employee.
Recertification
Under FMLA, the County may ask for recertification at reasonable intervals, but no more often than every 30 days, unless the original certification states the incapacity will continue longer than 30 days, in which case the County may request recertification after that date. In all cases, the County may request recertification every 6 months in connection with an employee's absence.
The County may also request recertification more frequently under any of the following circumstances:
- If the employee requests a leave extension; or
- if circumstances from the previous certification significantly changed; or
- If the County receives information casting doubt on the validity of the certification or reason for absence.
The recertification must be provided within the time frame requested by the County, but the County must allow at least 15 days after the date of the request. The employee bears any expense of the recertification. Under CFRA re-certification can only be requested upon expiration of the original time period.
Continuation of Benefits
An employee on FMLA/CFRA leave is entitled to continue to participate in employee benefits on the same basis as active employees. The County must continue the same level of coverage not only for the employee, but also for covered dependents. To the extent that an employee exhausts his/her CFRA leave entitlement to care for a registered domestic partner and has not used all of the FMLA entitlement, the County is required to provide health benefits for the duration of any remaining unpaid FMLA leave. The employee is responsible for paying his/her portion of any premium for the following benefits: medical, optional life insurance, flexible spending, and health savings account(s). For example, if the cost of the employee’s health plan is $742.24 per month, but the County contribution is $593.79 per month, the employee is still responsible for paying the $148.45 per month difference that he/she would normally have deducted from his/her pay check.
The County is required to provide a maximum of 12 weeks of health benefits for any FMLA/CFRA leave. If you are on leave for more than 12 weeks and are also on unpaid status, the County is not required to pay for your benefits. However, you will be given the option to continue your benefits through COBRA at your own expense. During the period of unpaid leave, you are not entitled to cash back subsidy or Plan Selection Incentive.
The County may recover from an employee premiums paid to maintain health coverage if the employee fails to return to work following FMLA/CFRA leave.
Upon release from pregnancy disability, the employee is still entitled to a full 12 weeks of CFRA to the extent the employee has not previously used her 12-weeks of CFRA leave, although the early use of the medical benefit entitlement may cause County paid coverage of the medical premium to cease before the completion of the CFRA leave if the employee was on unpaid leave.
Continuation of health benefits for unpaid absence beyond CFRA/FMLA leaves are covered by COBRA benefits. Employees with questions on continuation of benefits should be directed to contact the Benefits Office at 874-9092.
Retirement Service Credit
Under the FMLA/CFRA, the employee may make arrangements with the Sacramento County Employees’ Retirement Services (SCERS) Office to pay retirement contributions and thereby receive up to 12 weeks of retirement service credit during a period of unpaid family medical leave which is approved under the guidelines of the FMLA. To be eligible to receive credit, these arrangements must be made at the time the leave is approved. All questions regarding this benefit must be directed to the SCERS Office at 874-9119.
Return to Work Certification Requirements
As long as there is a uniformly applied practice of requiring return to work reports as a condition for return to work, the County may require such certification. The health care provider must certify that the employee is able to resume work. The County must notify the employee of the need to provide the return to work certification to return to work from the leave. The County may require that the certification specifically address the employee's ability to perform essential job functions. The County may contact the health care provider to authenticate the return to work certification, but the County may not delay the employee's return to work while contact is being made.
The County cannot require a return to work release from employees returning from intermittent or reduced schedule leave. However, the County can require such certification for an employee on intermittent or reduced leave up to once every 30 days if reasonable safety concerns exist regarding the employee's ability to perform his duties. Reasonable safety concerns mean a reasonable belief that there is a significant risk of harm to the employee or to others.
Return from FMLA/CFRA Leave
Upon return from FMLA/CFRA leave, the employee has the right to return to the same or equivalent position even if the employee has been replaced or the employee’s position has been restructured to accommodate the employee’s absence. If the returning employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition, there is no right to return to another position under the FMLA/CFRA. However, the ADA or FEHA may be applicable.
An equivalent job is one that is virtually identical to the employee’s former job in terms of pay, benefits and working conditions, including work shift and location privileges, pre-requisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility and authority. Equivalent pay means the same pay as before the leave plus any cost of-living-adjustments (COLA’s) or equity increases generally applicable to all employees in the employee’s job.
If an employee is no longer qualified for the job because of the employee’s inability to attend a necessary course, renew a license, etc., as a result of the leave, the employee must be given a reasonable opportunity to fulfill those conditions upon return to work.
Employees are entitled to equivalent benefits upon return from leave.
Employees may not be required to re-qualify for any benefits. No restrictions, exclusions, or waiting periods can be imposed except those that affect the entire workforce or all employees in the employee’s job category.
Employee Protection
An employee’s use of FMLA/CFRA will not result in the loss of any employment benefit that the employee earned before using FMLA/CFRA leave, which includes all benefits provided or made available to employees by the County, including group life insurance, health insurance, sick leave, vacation leave, educational benefits and pensions. The employee may not be disqualified from the wellness certificate program for taking time under the FMLA/CFRA.
The County may not use the taking of FMLA/CFRA leave as a negative factor in employment actions such has hiring, promotions, performance evaluations, placing an employee on controlled leave or disciplinary actions.
Forms and Checklists
All forms and supervisor checklists can be found on the Personnel Services intranet website (Employee log in is required) or from your Human Resources office.
The County uses the Military Leave forms available on the DOL website for leave necessitated by military service.