CITY OF PORTLAND
HUMAN RESOURCES
ADMINISTRATIVE RULES
LEAVES
| CITY OF PORTLAND HUMAN RESOURCES ADMINISTRATIVE RULES | LEAVES |
FAMILY MEDICAL LEAVE |
General |
It is the policy of the City of Portland, and in accordance with federal and state law, to grant family medical leave to eligible employees. Generally, eligible employees are entitled up to 12 weeks of unpaid leave of absence per calendar year except as noted below under “special circumstances”. Federal and state laws protect an employee against loss of employment for reasons related to the leave and, in some cases, against loss of insurance coverage in the event an employee must be absent from the workplace due to his or her own serious health condition or the serious health condition of a family member. The law guarantees a maximum amount of time off which is either paid or unpaid depending upon available unused leave accruals.
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Eligibility for Family Medical Leave |
Federal Law (Family Medical Leave Act) (FMLA)
Employee must have worked for the City of Portland at least twelve (12) calendar months (not necessarily consecutive months) and 1250 hours immediately preceding the leave.
State Law (Oregon Family Leave Act) (OFLA)
Employee must have been employed by the City for at least 180 days and worked an average of 25 hours per week in the previous 180 days to qualify for family medical leave. Employees taking leave to care for a newborn, adopted, or newly placed foster child only have to meet the 180-day employment requirement (regardless of the number of hours worked).
In determining the 180 calendar days, the supervisor must count the number of days an employee has been on the payroll, including all paid and unpaid time.
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Reasons for Family Leave |
Federal/State Laws
An employee may qualify for Family Medical Leave under federal and/or state law for the following reasons:
□ The addition of a child to a family through birth, adoption, or placement by foster care (parental leave).
□ The employee’s own serious health condition which prevents the employee from performing his or her job. This includes pregnancy-related disability and absences from work due to prenatal care. See attachment for definition of a serious health condition.
□ The employee must care for a family member with a “serious health condition.” A spouse, domestic partner, child (whether or not the employee is the custodial parent), parent, parent-in-law (including the parent of a same-sex domestic partner), or biological, adopted or foster child (or person with whom the employee has or had an in loco parentis relationship) is a family member for purposes of this rule.
□ To care for a minor child who is ill and requires home care (even if the child does not have a serious health condition), provided another family member is not available to care for the child.
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Special Circumstances |
In addition to 12-weeks of family medical leave, female employees may qualify for an additional 12 weeks of leave for an illness, injury or condition related to pregnancy or childbirth that disables the employee prior to the birth of the child. Employees of either sex who take parental leave are entitled to an additional 12 weeks of dependent care leave (provided they use up their full 12 weeks of parental leave).
If two family members work for the City, they may take family leave (including parental leave) at the same time unless both work for the same Bureau. Under that circumstance, the employees may not take family medical leave (including parental leave) at the same time unless:
1. Approved by the Bureau Director; or
2. in situations where one employee needs to care for the other employee with a serious health condition; or
3. one employee is needed to care for a child with a serious health condition and the other employee is suffering from a serious health condition.
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Domestic Partners |
For purposes of Family Medical Leave, the City agrees "spouse" includes "domestic partner”. Employees must file an affidavit of domestic partnership with Benefits in order to take FMLA due to a serious health condition for a domestic partner. The City of Portland recognizes both same sex and heterosexual domestic partnerships.
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Use of Sick Leave and Qualifying Family Medical Leave Conditions |
If employee has not previously requested Family Medical Leave but has used sick leave for three (3) consecutive workdays, the employer must inquire into the reason for the use of sick leave in order to determine if employee's leave qualifies under FMLA or OFLA leave provisions. Examples of appropriate questions to ask to determine if absence qualifies under the leave acts include: "Is this a serious or chronic condition or a condition related to pregnancy?" or "Have you obtained medical treatment?" The “three day rule” does not apply to intermittent absences that qualify an employee for family medical leave and should be so designated such as pregnancy disability, absences for prenatal care, absences for chronic conditions or absences for multiple treatments.
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Process for Requesting and Receiving Family Leave |
Employees requesting to take family medical leave must fill out a Family Medical Leave of Absence Application Form and provide it to their supervisor or responsible administrator in accordance with the notification requirement in this rule. The request must include enough information for the supervisor or administrator to determine a qualifying reason exists and a proposed schedule of leave dates.
Upon receipt of an employee's request for leave, the supervisor shall provide the employee with a Notice to Employee to include:
1. Approval or denial of requested leave;
2. Applicable healthcare certification requirements and the consequences for not providing such information as requested. The employing bureau must pay the cost of the healthcare verification not covered by insurance or other benefit plan;
3. Notification of requirements for use of accrued leave in accordance with the Section on Use of Paid Leaves.
4. Notification that employer health care contributions shall continue if the leave has been designated as FMLA. In this case, the employee shall be advised of the liability to reimburse the City for health plan premiums if the employee fails to return from leave provided that such reimbursement conform with the provisions of the FMLA.
5. An explanation of the employee's return rights in accordance with provisions contained in the designated leave law and applicable labor contract.
If employee appears to qualify for leave under FMLA/OFLA or City provisions, the supervisor must inform the employee: "This absence will be counted toward your Family Medical Leave entitlement pending final approval after the healthcare certification process".
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Eligible Health Care Providers |
FMLA/OFLA:
□ doctors of medicine or osteopathy who are state licensed
□ Podiatrists, dentists, clinical psychologists, optometrists, chiropractors authorized to practice in their respective states
□ Nurse practitioners, nurse midwives, and clinical social workers authorized to practice under state law
□ Christian Science Practitioners listed with the First Church of Christ Scientists in Boston, Massachusetts
□ Any health care provider from whom an employer or the employer's group health plan will accept certification of the existence of a serious health condition to substantiate a claim for benefits
□ Naturopaths
o Midwives
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Use of Accumulated Paid Leaves |
Use of Unused Vacation and Sick Leave Accruals When on FMLA/OFLA
1. Eligible employees are required to use accrued and accumulated paid leaves, including vacation and, when applicable, sick leave, prior to a period of unpaid leave of absence. Employees not otherwise covered by a collective bargaining agreement, may, however, reserve a total of 80 hours of combined compensatory and vacation leave for future use.
2. Use of vacation and sick leave will run concurrently with family medical leave, as well as qualifying absence resulting from a Workers' Compensation claim.
3. Eligible employees may, but are not required, to use accrued compensatory time during family medical leave. If compensatory time is used, it will not count against the 12-week leave entitlement
4. Sick leave will run concurrently with family leave for a maximum of 5 days per year, except as noted below, where the employee is absent for the purpose of caring for an ill or injured family member who is the employee’s spouse, domestic partner, parent, child or other person for whom the employee is a legal guardian.
5. If an employee has qualified for family medical leave for a serious health condition as defined by OFLA (an illness, disease or condition that poses an imminent danger of death, is terminal in prognosis, or requires constant care) of an employee’s family member and has exhausted all other forms of paid leave, the employee may use additional sick leave. If the duration of the employee’s family leave is longer than the amount of the employee’s accrued paid leave (not including sick leave), the employee may choose to be placed on unpaid leave of absence or sick leave for the duration of the family leave after using all other accrued paid leave. In no event may an employee use sick leave under this section to extend family leave beyond twelve (12) weeks per calendar year.
6. An employee will be required to follow all of the stated rules for Family Medical Leave authorization in order to use additional sick leave.
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Notice of Need for Family Leave |
Employees are required to give the City 30 days notice of the need for leave when it is foreseeable (such as in the case of childbirth or non-emergency surgery). If the reason for the leave is unforeseeable, the employee must give the City oral notice within 24 hours of when the leave starts and provide written notice within three days of his/her return to work. Requests for FMLA must be made to the immediate supervisor or responsible administrator.
An employee must make a reasonable effort to schedule treatment for serious health conditions in a manner that does not unduly disrupt City business. |
Healthcare Certification Requirements |
For requests for family medical leave due to the serious health condition of the employee's spouse, domestic partner, parent or child or the employee's own serious health condition, written certification from a health care provider must be supplied by the employee as soon as possible but no later than 15 calendar days following a request for certification by the supervisor or administrator. The City's Certification of Health Care Provider form must be used. Employees who use dependent care leave on more than three occasions in a 12-month period may be required to provide medical certification for all subsequent uses of sick child leave in the 12-month period.
The certification may be a doctor's note but it must include the name of the child, dates the child was sick, the opinion of the doctor that the child was sick and required home care, and the doctor's signature.
A supervisor may request a new healthcare certification under the following conditions:
1. The employee requests extension of leave; or
2. Circumstances described by the previous certification have changed significantly
The cost of any healthcare verification not covered by insurance or other benefits will be paid for by the City of Portland.
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Intermittent/Reduced Schedule Leave |
Employees may take intermittent leave or work a reduced schedule when the leave/reduced schedule is taken for the employee's own serious health condition or to care for a family member with a serious health condition. Example: An employee normally works 40 hours per week. The employee is on a reduced schedule of 20 hours per week. The family medical leave may continue for up to 24 weeks.
All intermittent or reduced schedules must be approved at the time leave is requested.
Parental leave must be taken in one uninterrupted period and must be taken within 12 months of the birth, adoption or placement of the child unless otherwise approved by the employee's supervisor. Parental leave taken for the purpose of arranging the adoption of a child does not have to be taken in one, uninterrupted period.
An employee may be transferred to an alternate position (with the same pay) during the period of intermittent leave provided that a transfer is voluntary on the part of the employee, that no other options are available and the transfer is consistent will all applicable collective bargaining agreements.
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Continuation of Benefits |
If an employee is eligible and qualifies for Federal Family Medical Leave (FMLA), the City will maintain his or her group health insurance coverage as if the employee had been continuously employed up to a maximum of 12 weeks per calendar year.
Any share of health plan premiums that an employee paid prior to leave must continue to be paid by the employee during the leave period.
If the employee's failure to make the premium payment leads to a lapse in coverage, the City must still restore the employee upon return to work to the health coverage equivalent to that which the employee would have had if leave had not been taken and the premium payments had not been missed without any waiting period or preexisting condition limitations.
The Benefits Department will notify an employee as to the status of their health benefits.
The City may recover premiums paid for an employee's insurance if the employee fails to return after the period of leave to which the employee is entitled has expired unless there is a continuation, recurrence or onset of a serious health condition.
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Applicability of Most Generous Provisions |
Provisions under FMLA control unless OFLA, Human Resources Administrative Rules, or applicable collective bargaining agreements provide more generous provisions for the employee. In that case, the City will grant the employee the more generous provision.
Where the leave is authorized under FMLA and state law, Human Resources Administrative Rules, and/or collective bargaining agreement, the leave shall be designated as FMLA qualifying and shall simultaneously exhaust both the FMLA and OFLA, Human Resources Administrative Rule or contractual leave entitlement.
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Return to Work |
When an employee takes leave for his/her own serious health condition, the supervisor must require a treatment provider’s release for the employee to return to work. The employee shall be reinstated to the same position held when the leave began or one of like paygrade, pay, benefits and other conditions of employment.
An employee must return to work on the date specified and mutually agreed upon by the parties. Failure to return to work on the date designated, unless extended, will be treated as any other unauthorized absence.
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Records Compliance |
The appointing authority shall maintain employee treatment certification records in a confidential medical file detailing compliance with FMLA, OFLA and City Administrative Rules to include;
1. An employee’s requests for family medical leave;
2. written record of notice;
3. dates leave is taken;
4. timesheets and other related payroll earnings records.
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Timeframe for Leave |
For purposes of determining an employee's remaining FMLA and OFLA leave benefit, a calendar year period (January through December) shall be used.
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Designation of Leave |
It is the responsibility of the employer to designate leave, paid or unpaid, as FMLA/OFLA qualifying and to give notice to the employee. Generally, such designation must occur before the leave commences.
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Extension of Family Medical Leave |
Employees who require additional leave from work beyond the 12 weeks provided within this rule may request the use of any remaining accrued paid leave or unpaid leave, but such additional leave is granted solely at the discretion of the bureau director unless otherwise required by law. If additional leave is granted, the provisions of state and federal law governing family medical leave do not apply, including, but not limited to, continued City-paid benefits unless the employee continues in a pay status during the extension. Employees may also contact supervisors regarding Catastrophic Leave or Long-Term Disability or request a medical layoff.
Catastrophic Leave
See Administrative Rule on Catastrophic Leave.
Long-Term Disability
Employees should apply for long-term disability at the onset of their family medical leave if it appears that they will need it after 60 days. If you have any questions or concerns, please contact Risk Management 503. 823.6123.
Medical Layoff for Non-Work Related Medical Reasons
See Administrative Rule on Medical Layoff.
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Attachments
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The attachments to this administrative rule, except for Attachment B, are not considered part of the binding Human Resources Administrative Rule.
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References |
Family Medical Leave Act 29 USC 2601-2654 and Federal Regulations Part 825; Oregon Revised Statute 659.479-659.494; Americans with Disabilities Act 42 USC 2101 et seq; Fair Labor Standards Act 29 USC 216(b); BOLI regulations.
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Administrative Rule History |
Adopted by Council March 6, 2002 Effective April 5, 2002 |
Attachment A ROLES
Employee's Role:
o Requests leave verbally or in writing
o Provides Healthcare Certification
o Provides supervisor with periodic status updates and intent to return to work
o Provides release to work prior to being restored to employment
Supervisor's Role:
o Determines if employee's request, three day absence, or reoccurring illness meets FMLA/OFLA eligibility requirements
□ If employee appears to qualify for FMLA/OFLA, verbally informs employee, "This absence will be counted towards your FMLA/OFLA entitlement pending final approval from Human Resources."
□ Fill out Family Medical Leave Form and copy the Benefits office and Payroll
o Notifies Human Resources
o Periodically checks-in with employee for status update
o Ensures time sheets are appropriately coded to reflect FMLA/OFLA
o Request release to work prior to return to employment
o Tracks leave time usage through exhaustion. Notifies Human Resources of exhaustion.
Human Resource Coordinator/Analyst Role:
o Requests Healthcare Certification
o Review Healthcare Certification for eligibility
o Notifies employee of approval or denial of FMLA/OFLA. Provides copies to supervisor, payroll, and employee medical file
o Tracks FMLA/OFLA hours via monthly report (timekeepers)
o If employee exhausts leave, provides notification to employee, supervisor, payroll and employee medical file
Benefits Role:
□ Benefits receives a copy of FMLA/OFLA notification
□ Benefits determines required coverage for eligible period
□ Benefits notified an employee of any requirements to self pay for voluntary benefits
□ Ensures employee's health benefits continue if qualified as FMLA |
Attachment B
DEFINITION OF SERIOUS HEALTH CONDITION
A "serious health condition" means an illness, injury, impairment, or physical or mental condition that involves one of the following:
1. Hospital Care
Inpatient care (i.e. overnight stay in a hospital, hospice, or residential medical facility, including any period of incapacity or subsequent treatment in connection with or consequent to such inpatient care.
2. Absence Plus Treatment
A period of incapacity of more than three consecutive calendar days (including any subsequent treatment or period of incapacity relating to the same condition), that also involves:
(1) Treatment two or more times by a health care provider, by a nurse or physician's assistant under direct supervision of a health care provider of health care services (e.g., physical therapist) under order of, or on referral by, a health care provider, or
(2) 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.
3. Pregnancy
Any period of incapacity due to pregnancy, or for prenatal care.
4. Chronic Conditions Requiring Treatments
A chronic condition which:
(1) 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;
(2) Continues over an extended period of time (including recurring episodes of a single underlying condition); and
(3) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.)
5. Permanent/Long-term Conditions Requiring Supervision
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. Examples include Alzheimer's, a severe stroke, or the terminal stages of a disease.
6. Multiple Treatments (non-Chronic Conditions)
Any period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider or by a provider of heath 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, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), kidney disease (dialysis).
7. An illness, disease or condition that poses an imminent danger of death, is terminal in prognosis, or requires constant care (OFLA).
Attachment C
FMLA GLOSSARY OF TERMS
1. Constant Care
Care wherever performed, whether at home or any nursing home, institution, hospice, or health care facility. Where the family member is receiving long-term physical care at a nursing home, institution, hospice or other health care facility, leave shall apply only to those periods of transitions, or when the family member requires transportation or other assistance in obtaining care from a physician.
2. Domestic Partner
A "domestic partner" is defined as:
1. Shares the same regular and permanent residence for one year
2. Have a close personal relationship, and are each other's sole domestic partner
3. Not married to anyone
4. Each eighteen (18) years of age or older
5. Not related by blood, closer than would bar marriage in the state of residence
6. Mentally competent to consent to contract when domestic partnership began
7. Responsible for each other's common welfare
8. Jointly responsible for "basic living expenses". Basic living expenses means the cost of basic food, shelter and any other expenses. The individuals need not contribute equally or jointly to the cost of these expenses, as long as they agree that both are responsible for the cost.
3. Essential Functions/ Essential Job Functions
An employee is "unable to perform the functions of the position" where the health care provider finds that the employee is unable to work at all or is unable to perform any one of the essential functions of the employee's position within the meaning of the Americans with Disabilities Act (ADA) 42 USC 12101 et seq., and the regulations at 29 CFR 1630.2(n).
4. Extended Period of Time
5. Fitness-for-duty Certificate
A statement of an employee's ability to return to work certified by a health care provider.
6. Hospice Care
Medically necessary and/or symptom controlling treatment administered to a patient who is terminally ill. Treatment must be rendered by a state licensed agency and may be on an inpatient or outpatient basis
7. Incapacity
"Incapacity," for purposes of family medical leave, is defined to mean inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom.
8. Intermittent Leave
Leave taken in separate periods of time due to a single illness/injury, rather than for one continuous period of time, and may include leave of periods from an hour or more to several weeks.
EXAMPLE: Leave taken on an occasional basis for medical appointments, or leave taken several days at a time spread over a period of six months.
9. Loco Parentis
Individuals with day-to-day responsibilities to care for and financially support a child, or, in the case of an employee, who had such responsibility for the employee when the employee was a child. A biological or legal relationship is not necessary.
10. Medical Intervention (Treatment)
Treatment includes examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations.
11. Periodic Visits
Sporadic or episodic care associated with a single illness/injury
12. Restorative Surgery
Surgical treatment that is curative in nature.
Attachment D
SUPERVISOR/HR MANAGER CHECKLIST -
FMLA/OFLA LEAVE
o Notification
□ Receive notice from employee in either oral or written form
□ After three (3) days sick, confirm with employee reason for sick leave
□ Reoccurring Illness - Chronic Condition
□ Recertification
□ Has healthcare certification, when appropriate, been requested?
□ Eligibility
□ Determine if employee meets length of employment (payroll)
□ Determine if employee has worked the required number of hours in the last year (payroll)
□ Determine if qualifying serious health condition
□ Determine how much FMLA/OFLA leave time an employee has remaining in calendar year
□ Types of Leave
□ Intermittent
□ Reduced Schedule
□ Continuous Block
□ Contact Human Resources
□ Forward healthcare information to Bureau Human Resources Analyst
□ If any questions regarding qualifying and eligibility, contact designated Employee Relations Human Resources Coordinator
□ If Approved
□ Follow up with employee to confirm return date
□ Send Family Medical Leave Notice to employee
□ Send a copy of the approved FMLA/OFLA Leave of Absence Form to Benefits
□ If leave is for employee, advise employee that a release from his/her healthcare provider is required prior to returning to work
□ Has the timekeeper been instructed to record and report time as FMLA leave?
□ Has the timekeeper been instructed to send copies of the timesheets to Employee Benefits?
o Have all documents with medical information about the employee been transferred to appropriate, locked medical files?
□ Track FMLA/OFLA leave (Timekeepers)
□ If NOT approved
□ Send notice of denial of FMLAOFLA to employee including reason (i.e. insufficient hours worked) and a copy of the disapproved Leave of Absence Application Form.
□ Send a copy of the notice of denial to the Benefits Office
□ Return to Work
□ Obtain Release to Return to Work