LOA Guide - UCLA Health
LEAVES OF ABSENCE
EMPLOYEE AND EMPLOYER RIGHTS AND OBLIGATIONS
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MANAGERS’ AND SUPERVISORS’ MANUAL
This information is a resource to managers and supervisors in the administration of the Family Medical Leave Act (FMLA), the California Family Rights Act (CFRA), the California Pregnancy Disability Leave and other University leave policies. The goal of these materials is to provide basic grounding in the fundamentals of leave laws and policies. They are not a substitute for a discussion with your Employee Relations and Employee Benefit Consultants. We strongly advise you to confer with Medical Center Human Resources on personnel actions so there can be an examination of options, risks, and liabilities for each case.
TABLE OF CONTENTS
EMPLOYER’S OVERLAPPING RIGHTS AND OBLIGATIONS 3
QUALIFYING REASONS FOR FMLA AND CFRA LEAVE 4
DEFINITION OF A SERIOUS HEALTH CONDITION 4
LEAVE “NEEDED TO CARE FOR” A FAMILY MEMBER 5
EMPLOYEE ELIGIBILITY 6
DURATION OF FMLA LEAVE 7
LEAVE FOR BIRTH, ADOPTION, OR PLACEMENT OF A CHILD 7
BOTH EMPLOYEES WORK FOR THE UNIVERSITY 7
CALCULATING THE 12-MONTH LEAVE PERIOD 7
EMPLOYER NOTICE OBLIGATIONS 8
DESIGNATION OF LEAVE 9
EMPLOYER’S DUTY TO GIVE EMPLOYEE NOTICE OF FMLA RIGHTS 9
EMPLOYERS MUST RESPOND TO FMLA REQUEST WITHIN 2 DAYS 9
FMLA ABSENCE MUST BE PROMPTLY DESIGNATED IN WRITING 9
RETROACTIVE DESIGNATION 10
MEDICAL CERTIFICATION 11
EXCEPTION TO CERTIFICATION REQUIREMENTS 12
DENIAL (DELAY) OF LEAVE AND DISCIPLINE FOR UNAPPROVED LEAVES 12
SECOND AND THIRD MEDICAL OPINIONS 13
RECERTIFICATION 13
RETURN TO WORK CLEARANCE 13
INTERMITTENT AND REDUCED SCHEDULE LEAVE 14
PAY DOCKING 14
CALCULATING AMOUNT OF LEAVE 14
PAY ISSUES DURING AND AFTER FMLA LEAVE 16
REINSTATEMENT GUARANTEE 17
EXCEPTIONS TO THE FMLA REINSTATEMENT GUARANTEE 17
EQUIVALENT JOB 17
THE CALIFORNIA FAMILY RIGHTS ACT (CFRA) 18
CALIFORNIA PREGNANCY DISABILITY LEAVE (PDL) 19
UCLA MEDICAL ENTERPRISE LEAVE OF ABSENCE PACKET 21
DEPARTMENT LEAVE OF ABSENCE CHECKLIST 21
EMPLOYEE RIGHTS AND OBLIGATIONS UNDER THE FMLA ACT OF 1993 22
LEAVE OF ABSENCE REQUEST FORM 24
HEALTH CARE PROVIDER MEDICAL CERTIFICATION FORM 25
HEALTH CARE PROVIDER RETURN TO WORK CERTIFICATION 27
EMPLOYER’S OVERLAPPING RIGHTS AND OBLIGATIONS
A health condition that qualifies for protection under more than one statute or collective bargaining agreement may trigger inconsistent or contradictory employer rights and obligations under each of the statutes or agreements that applies. In such a case, the employer should follow the statute or collective bargaining agreement that offers the employee the most protection, unless some legal authority allows the employer to do otherwise.
CRITICAL QUESTIONS
1. Is the employee an “eligible” employee?
2. Does the employee have a qualifying injury or illness?
3. Does the employee have a right to time off and for how long?
4. Is there job protection and for what duration? (When can I permanently fill the job?)
5. At what point in time can the employee be terminated?
QUALIFYING REASONS FOR FMLA AND CFRA LEAVE
You are required to provide employees with family or medical leave under the following circumstances:
For their own serious health condition;
To care for a newborn, newly adopted or placed foster child; or
To care for a spouse, child or parent with a serious health condition.
DEFINITION OF A SERIOUS HEALTH CONDITION[1]
An illness, injury, impairment, or physical or mental condition that involves one of the following:
Hospital Care: Inpatient care, such as an overnight stay, in a hospital, hospice, or residential medical care facility, including any period of incapacity or later treatment in connection with that inpatient care.
Incapacity of More Than Three Days Plus Medical Treatment: A period of incapacity lasting more than three consecutive calendar days (including any later treatment or period of incapacity relating to the same condition), that also involves treatment two or more times by a health care provider, or treatment by a health care provider on at least one occasion and a regimen of continuing treatment, such as prescription medicine or physical therapy.
Pregnancy (FMLA only): Under the FMLA, any period of incapacity due to pregnancy or for prenatal care. However, these are not “serious health conditions” under the CFRA. Instead, California provides special rights for pregnant employees in addition to the FMLA.
Chronic Conditions Requiring Medical Treatment: A chronic condition which requires periodic visits for treatment by a health care provider, and continues over an extended period of time (including recurring episodes of a single underlying condition), and may cause episodic rather than a continuing period of incapacity, such as asthma, diabetes, epilepsy, etc.
Permanent/Long-Term Conditions Requiring Medical 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 not be receiving active treatment by, a health care provider. Examples include Alzheimer’s, a severe stroke, or the terminal stages of a disease.
Multiple Treatments (Non-Chronic Conditions): Any period of absence to receive multiple treatments, including any later period of recovery, by a health care provider either for restorative surgery after an accident or other injury, or 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.), sever arthritis (physical therapy), or kidney disease (dialysis).
QUALIFYING REASONS FOR LEAVE (continued)
LEAVE “NEEDED TO CARE FOR” A FAMILY MEMBER
Leave to care for a seriously ill family member is limited to an employee’s:
spouse (not a domestic partner)*,
own parent (not in-laws), or
the employee’s child (or a child for whom the employee is the primary caretaker, as defined under FMLA).
Caring for a family member includes:
psychological care, such as comfort and support, and
physical care, such as feeding, dressing and transporting to the doctor.[2]
However, caring for a family member does not include:
visiting a sick parent, who is being cared for by another family member,[3]
attending a funeral or bereavement leave (once the family member dies, the need for “care” ends along with FMLA protection) or
attending to the deceased’s estate.[4]
*University of California policy includes domestic partner in its definition of family member.
EMPLOYEE ELIGIBILITY
AN EMPLOYEE IS ENTITLED TO FMLA LEAVE AS AN “ELIGIBLE EMPLOYEE” WHEN:
The employee has completed 12 months of service, including 1,250 hours of service within the preceding 12 months;
The employee works within 75 miles of 50 other University employees; and
The employee has complied with the Department’s leave request requirements, including notice and medical certification, if applicable.[5]
You have the burden of showing that an employee has not worked the required hours to qualify for FMLA leave.[6] If you are unable to meet this burden due to a failure to keep an accurate record of hours worked (as defined under FMLA), the presumption is that the employee meets the hours worked requirement. However, you can overcome this presumption by providing evidence, such as affidavits and testimony from co-workers, to establish that the requisite hours were not worked.[7]
DURATION OF FMLA LEAVE
Employees are entitled to a cumulative maximum of 12 weeks of family or medical leave within a 12-month period. Furthermore, employees may be entitled to additional leave under:
the Personnel Policies for Staff Members or one of the collected bargaining agreements in effect,
the California Family Rights Act (CFRA),
California workers’ compensation law,
the federal Americans with Disabilities Act (ADA), or
other applicable state laws.
LEAVE FOR BIRTH, ADOPTION OR PLACEMENT OF A CHILD
An employee’s entitlement to leave begins to run on:
the date of the child’s birth, or
the date of the child’s placement with the employee.
An employee’s entitlement expires:
at the end of the 12-month period measured from the date of the birth or placement. Any such family leave must be concluded within this one-year period.
BOTH EMPLOYEES WORK FOR THE UNIVERSITY
If a husband and wife both working for the University are eligible for family leave because of the birth or placement of a child or for the care of the child after birth or placement, then the husband and wife combined are only entitled to take a total of 12 weeks. However, if family leave is taken to care for a spouse or child with a serious health condition or because of the employee’s own serious health condition, the husband and wife each are entitled to 12 weeks of unpaid family leave.
CALCULATING THE 12-MONTH LEAVE PERIOD
The FMLA allows employees to take up to 12 weeks leave in a 12-month period. To calculate the 12-month period, employers may choose one of four methods, so long as the chosen method is applied consistently and uniformly.
The University of California has chosen calendar year as its method for calculating the 12-month period.
EMPLOYER NOTICE OBLIGATIONS
You have an affirmative duty to provide employees notice of their rights under the federal Family and Medical Leave Act. Among the notice requirements are the following:
We are required to post, on the employee bulletin boards, a notice explaining the FMLA and providing information regarding the procedures for filing complaints with the Wage and Hour Division.[8] The notice must be posted prominently where it can be readily seen by employees and applicants for employment. If a significant portion of the workforce is not literate in English, we are also required to post the required information in the language in which the employee’s are literate.[9]
Our handbooks and benefits booklets must include information about the FMLA.
INDIVIDUAL NOTICE TO EMPLOYEE REQUESTING A LEAVE
When notified of an employee’s absence or need for a leave for a purpose that qualifies under the FMLA, you must provide the employee with notice of his/her FMLA rights and obligations while on leave, including the consequences of failure to meet those obligations (see appendix A).
DESIGNATION OF LEAVE
EMPLOYERS HAVE AN AFFIRMATIVE DUTY TO GIVE INDIVIDUAL NOTICE OF FMLA RIGHTS
An employee does not have to mention the family and medical leave laws to trigger your obligation to notify the employee of his or her FMLA rights and to designate the absence as counting against the annual 12-week FMLA entitlement.
Additionally, if you know the reason for the leave but have not been able to confirm that the leave qualifies as FMLA leave, or you have requested medical certification and have not received it, you should preliminarily designate the absence as FMLA leave at the time the leave begins or as soon as the reason becomes known. Once the needed information is received, designation should become final or be withdrawn, as appropriate, with written notice to the employee in either case (see appendix B).
EXAMPLE: An employee schedules vacation time and mentions that she plans to care for a parent following surgery. The employer must give the employee notice that the absence may qualify as a FMLA leave and explain the employee’s rights and obligations under the company’s policy.
EMPLOYERS MUST RESPOND TO FMLA REQUESTS WITHIN TWO BUSINESS DAYS
You must notify an employee within two business days (absent extenuating circumstances) that an absence or requested leave will be counted against an employee’s 12-week FMLA leave entitlement.[10] In order to comply with the two business day rule, you frequently will need to approve leave requests by eligible employees subject to receipt of appropriate medical certification from the employee’s health care provider (or health care provider of the employee’s family member).[11]
FMLA ABSENCE MUST BE PROMPTLY DESIGNATED IN WRITING
Your notice to an employee designating leave as FMLA leave may be oral or in writing.[12] If oral, the notice must be confirmed in writing no later than the next regular pay day. The written notice may be in any form. However, we do have a standard form that employees may use.
You can unilaterally designate an absence as FMLA leave, so long as the employee personally verifies that he or she is absent for a reason that qualifies for FMLA leave.[13] For example, an employee who requests vacation time to be home with a newborn child may be required to count the time against his or her annual FMLA entitlement.
DESIGNATION OF LEAVE (continued)
NOTE: You cannot rely on second or third-hand information to determine whether an employee’s absence qualifies for FMLA leave. The employee must personally verify the reason for his or her absence, e.g., to stay home with a newborn child. You then must follow up with an individual notice of the employee’s rights and obligations under the FMLA.
RETROACTIVE DESIGNATION
Normally, you cannot designate leave as FMLA leave after the employee has returned to work.[14] However, if an employee was absent for a FMLA reason and the employer did not learn the reason for the absence until the employee’s return, the employer may, within two business days of the employee’s return to work, designate the absence as FMLA leave. If the employer was not aware of the reason for the employee’s absence upon return, and the employee wants the leave to be counted as FMLA, the employee must notify you within two business days. In the absence of a timely notification by the employee, the employee may not subsequently assert FMLA protection for the absence.
MEDICAL CERTIFICATION
WHEN YOU MAY REQUIRE MEDICAL CERTIFICATION AND WHAT INFORMATION YOU CAN COMPEL
You may require that leaves taken for an employee’s own serious health condition or that of a covered family member be supported by medical certification. You may require medical certification verifying the serious health condition to be submitted within 15 calendar days of the leave request. If the need for the leave was unforeseeable, such as a medical emergency, certification can be required within 15 calendar days or as soon as reasonably possible under the circumstances. The following information may be required as part of the medical certification:
The date the serious health condition began;
The probable duration of the condition;
The appropriate medical facts within the knowledge of the health care provider regarding the condition (only permissible with the employee’s written permission);
A statement that the employee is unable to perform the essential functions of his or her job or is needed to care for a family member; and
If for an intermittent leave for planned medical treatment, the dates and expected duration of the treatment.
If an employee submits a complete certification, you may not request additional information from the employee’s health care provider, but may have the Vocational Rehabilitation Counselor contact the employee’s health care provider for the purposes of clarification or authentication of the medical certification.[15] This contact can only occur with the employee’s permission.[16] If you have reason to doubt the validity of a medical certification, you have the option to obtain, at the University’s expense, a second opinion regarding the medical certification.[17]
California law does not allow you to require that medical certifications specify the medical facts regarding the serious health condition at issue, although the employee may choose to provide these facts. In addition, unlike the FMLA and most other state laws, California law does not require certification that an employee is “needed” to care for a family member. An employee can be required to certify only that the serious health condition “warrants the participation” of the employee to provide care.
MEDICAL CERTIFICATION (continued)
EXCEPTION TO CERTIFICATION REQUIREMENTS
If an employee has requested and received approval for paid, scheduled time off and will be using the time for family or medical leave purposes, you may not impose additional requirements, such as medical certification, as a condition of the paid leave if such requirements would not otherwise apply to paid time off. For example, if an employee schedules vacation in order to take care of a parent recuperating from major surgery, medical certification may not be required for the vacation time. The vacation time may still be counted against the 12-week entitlement once you properly designate the time as FMLA leave and notify the employee. Any time off beyond the scheduled vacation may, of course, be subject to certification requirements.
DENIAL (DELAY) OF LEAVE AND DISCIPLINE FOR UNAPPROVED ABSENCES
You are permitted to exercise control over family and medical leaves through medical certification requirements. If an employee fails to provide certification after being requested to do so, the leave may be denied until the certification is submitted. Careful adherence to the FMLA’s “procedural” requirements will enable you to deny or delay leaves and to discipline employees for unapproved absences.
1. Denial (Delay) Of Leave
You may deny a leave request if the leave was foreseeable and the employee failed to provide medical certification in a timely fashion (within 15 calendar days) after you request certification. CAUTION: Once an eligible employee complies with the certification requirement, the leave must be granted.
2. Denial of Continuation of Leave
You may deny the continuation of a nonforeseeable leave if the employee fails to comply with a request for certification. You must allow the employee 15 calendar days to comply or, if due to a medical emergency, the time reasonably necessary under the circumstances.
3. Discipline
An employee who fails to comply with a medical certification request is not entitled to FMLA leave until the requirement is met. Consequently, if the employee takes FMLA leave, it may be considered unapproved and the employee may be disciplined consistent with policy and practice.
CAVEAT: If the employee uses accrued vacation or other paid leave for the entire duration of an absence for a FMLA purpose but refuses to provide medical certification,
MEDICAL CERTIFICATION (continued)
no discipline can be taken based on the time off. The time may still be counted against the FMLA entitlement so long as the employer has determined from the employee that the time off was for a FMLA purpose, even without medical certification.
SECOND AND THIRD MEDICAL OPINIONS
If you have reason to doubt the validity of a medical certification, you can require a second opinion from a health care provider designated by the University. The second opinion may not be provided by a health care provider regularly employed by the University. If the two opinions differ, a third health care provider may be jointly designated by you and the employee. The third opinion is final and binding.
NOTE: The California Fair Employment and Housing Act (FEHA) requires employers to grant pregnancy disability leaves based on certification by the woman’s “own health care provider.” Second or third opinions are not authorized and should not be requested during an FEHA protected leave.
RECERTIFICATION
You may require periodic recertification of medical conditions to support leaves, but not more often than every 30 days unless:
The employee requests an extension of the medical or family care leave;
Circumstances described by the original certification have changed significantly, such as duration or nature of illness or complications;
Information surfaces which casts doubt on the validity of the certification;
An employee is unable to return from FMLA leave as scheduled and you are trying to determine whether insurance premium payments may be recovered from the employee.
RETURN TO WORK CLEARANCE
Employees are required, as a condition of returning to work, to provide a medical certification of fitness to return to work. Employees must be notified of the requirement at the time the leave is requested. If an employee fails to provide a return to work clearance, you may refuse to restore the employee to his/her job until the clearance is provided.
INTERMITTENT AND REDUCED SCHEDULE LEAVE
FMLA leave may be taken “intermittently” or as a reduced schedule leave. A reduced schedule leave reduces the usual number of hours per workweek or workday. Intermittent leave is taken in separate blocks of time due to a single illness or injury and may include leave periods from one hour or more to several weeks. Employees may request such leaves under the following circumstances:
Where leave is taken due to the birth, adoption or placement of a foster care child, an employee may take an intermittent or reduced schedule leave only if you and the employee agree to such an arrangement; and
A leave taken due to the serious health condition of a family member or the employee may be taken intermittently or on a reduced schedule leave when medically necessary.
You may temporarily transfer an employee on an intermittent or reduced schedule leave to an available alternative position for which the employee is qualified. The position must provide equivalent pay and benefits to the employee’s regular job, prorated to reflect the employee’s work hours during FMLA leave. In addition, employees using intermittent leave must cooperate with you to minimize workplace disruption.
PAY DOCKING AND BENEFITS DOCKING FOR EXEMPT AND NON-EXEMPT EMPLOYEES
You may dock accrued benefits, such as vacation and sick days, or dock the pay of exempt and non-exempt employees for any full day absence. You may also dock benefits for partial day absences for exempt and non-exempt employees. Significantly, the FMLA carves out a narrow exception to the federal Fair Labor Standards Act (FLSA) salary basis requirement for white-collar exempt employees and permits pay docking for partial day absences if, and only if, the absence qualifies for FMLA protection.
CAUTION: University of California Personnel Policies for Staff Members and some (but not all) of the collective bargaining agreements are more generous than the FMLA, i.e., leave is provided for employees for more than the required 12 weeks per leave year. Docking an exempt employee’s pay for partial day absences that do not qualify for FMLA protection violates the salary basis test and jeopardizes exempt status under the FLSA. Remember, you may always dock the pay of non-exempt employees for partial day absences.
CALCULATING THE AMOUNT OF LEAVE USED DURING AN INTERMITTENT OR REDUCED SCHEDULE LEAVE
If an employee takes leave on an intermittent or reduced schedule leave, only the amount of leave actually taken may be counted against his or her 12-week FMLA leave entitlement.
INTERMITTENT AND REDUCED SCHEDULE LEAVE (continued)
Determining the amount of leave actually taken will depend on the employee’s normal workweek and the employee’s appointment rate. For example, a 100% employee who normally works 5 days a week goes to a 3 day per week schedule for a FMLA qualifying reason, she uses 2/5 of a week of FMLA leave per reduced workweek. If that employee normally worked 4 days a week and takes the same two days off, the employee would be using ½ of a week of FMLA leave per reduced workweek.
For a part-time employee, the amount of leave taken is determined on a pro-rata basis, comparing the old schedule with the new reduced schedule. For example, if a part-time employee who normally works 30 hours per week works only 15 hours, she uses ½ of a week of FMLA leave per reduced workweek.
To determine the amount of leave taken for employees with variable schedules, calculate the weekly average hours worked by the employee over the 12 weeks prior to beginning leave. For example, if an employee who, on average, worked 35 hours per week goes to a 20 hour week schedule, she uses 3/7 (15/35) of a week of FMLA leave while working the reduced schedule.
PAY ISSUES DURING AND AFTER FMLA LEAVE
USE OF VACATION AND SICK LEAVE BENEFITS DURING FMLA LEAVE
Federal law allows you to require employees to use accrued paid vacation or comp time during FMLA leave for any reason. If an employee takes FMLA leave due to the serious health condition of the employee or a family member, an employer may require the employee to use accrued sick leave benefits. An employee has the right to use accrued vacation or comp time for any FMLA absence that would qualify for benefits under the University’s standard sick leave policy.
The use of paid sick leave and/or accrued vacation benefits during a FMLA leave does not increase the maximum 12 weeks annual FMLA leave an employee may take. In other words, these paid leaves run concurrently with FMLA leave.
REINSTATEMENT GUARANTEE
Employees returning from FMLA leave are entitled to be reinstated to their same position, or an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. An employee is entitled to such reinstatement even if the employee has been replaced or the employee’s position has been restructured to accommodate the employee’s absence.[18]
EXCEPTIONS TO THE FMLA REINSTATEMENT GUARANTEE
If an employee’s job was eliminated due to reasons unrelated to the employee’s FMLA leave, you have no reinstatement duty.[19]
The University may deny job restoration to “key employees’ if necessary to prevent “substantial and grievous economic injury to the operations of the employer.”[20] A “key employee” is a salaried employee who is among the highest paid 10% of the University’s workers within 75 miles of the employee’s worksite.[21] A key employee must be given written notice that his or her reinstatement may be denied at the time the employee requests FMLA leave or shortly thereafter.
Employees who are unable to perform an essential function of their job due to a physical or mental condition have no right to reinstatement to another position under FMLA. (In this situation, the University’s obligations may be governed by the Americans with Disabilities Act (ADA) and/or California Worker’s Compensation laws.)
EQUIVALENT JOB
For all intents and purposes, an “equivalent” job must be virtually identical to the employee’s job prior to leave. The equivalent job must have the same pay, duties, benefits, working conditions, work hours, opportunities for advancement, and geographic location. Most often, you do not have truly “equivalent” jobs. Consequently, you must keep an employee’s original job open (or temporarily filled) during the first 12 weeks of FMLA leave. However, so long as an equivalent job will be available, you can fill the employee’s former position without causing a de facto violation of FMLA.
FMLA’s reinstatement guarantee applies only where the employee returns immediately from FMLA leave, not from any other kind of leave taken after exhaustion of the employee’s FMLA entitlement.
THE CALIFORNIA FAMILY RIGHTS ACT (CFRA)
CFRA is substantially similar to the federal FMLA, with one major exception: CFRA excludes from the definition of “serious health condition” disability “on account of pregnancy, childbirth, or related medical conditions.” Leave for pregnancy disabilities is a separate leave entitlement under the California Fair Employment and Housing Act (FEHA), and is in addition to the employee’s leave entitlement for other “serious health conditions” under CFRA. However, CFRA does provide up to 12 weeks of leave in a 12-month period because of the birth of a child (child bonding leave). For all leaves except pregnancy disability, CFRA leave runs concurrently with FMLA leave.
CALIFORNIA PREGNANCY DISABILITY LEAVE (PDL)
The FEHA prohibits discrimination against pregnant employees and requires employers to provide women disabled due to pregnancy, childbirth or related conditions an unpaid leave of absence for the duration of the disability up to a maximum of four months. This specific leave is known as Pregnancy Disability Leave (PDL) and is an entitlement distinct from leaves under CFRA, including child bonding leave. Employees are eligible for PDL upon hire (including probationary, per diem, and casual employees). PDL need not be taken in one block of time or only after the birth of a child. While on PDL, employees are protected from absence counseling and have a greater job reinstatement guarantee than what is required under FMLA or CFRA. The FEHA furthermore requires employers to transfer a pregnant employee to a less strenuous or hazardous position upon the employee’s request.
Pregnancy includes pregnancy, childbirth and related medical condition, as well as the employer’s mere perception that the employee is pregnant or has a related medical condition. Affected by pregnancy means that a health care provider has certified that it is medically advisable for a woman who is pregnant or who has a related medical condition to transfer to another job.
DURATION OF PREGNANCY DISABILITY LEAVE
An employee who is disabled because of pregnancy or a related condition is entitled to a pregnancy disability leave (PDL) for the period of actual disability, up to four months. PDL need not be taken in one block of time or only after the birth of the child, but is available on an intermittent basis as well, upon proper certification by the health care provider. The employees’ four-month PDL entitlement is measured by the number of days she would normally work within a four-month period.
PDL is separate and apart from the employee’s 12-week entitlement under CFRA for child bonding leave. Thus the two types of leave run consecutively and not concurrently. CFRA child bonding leave is available to eligible employees after the baby has been born, even if the employee is still disabled. If the baby has not yet been born and the employee has exhausted her four-month PDL entitlement, the employer has the option of allowing her to begin CFRA leave but is not required to do so. Thus, the maximum leave entitlement surrounding pregnancy and childbirth is seven months, assuming that the employee is actually disabled for four months.
PDL is unpaid unless the employer pays for other temporary disability leaves. Moreover, employees may use sick leave or vacation time to continue their wages during PDL; the employer may require the employee to use sick leave but not vacation. Employers are not required to pay medical benefits for a PDL under the FEHA. If the employer and employee are both covered by FMLA, however, the PDL and FMLA leaves will run concurrently. This means that the employer will be required to continue providing health benefits during the first 12 weeks (the FMLA portion) of PDL. They need not provide an additional 12 weeks of benefits under a subsequent CFRA “child bonding” leave, however.
CALIFORNIA PREGNANCY DISABILITY LEAVE (PDL)
MEDICAL CERTIFICATION
An employer may require a medical certification from employees who are affected or disabled by pregnancy or related medical conditions only if it requires medical certifications of non-pregnant employees in similar situations. The certification should contain 1) the date on which the woman became disabled because of pregnancy or upon which the transfer became medically advisable; 2) the probable duration of the period of disability or need to transfer; and 3) an explanatory statement that, due to the disability, the employee is unable to work or perform essential job function(s) without undue risk or that, due to the pregnancy, a transfer is medically advisable. Employers must accept certification from the woman’s own health care provider and are not permitted to require the second or third opinion otherwise allowed by FMLA and CFRA.
REINSTATEMENT
Subject to narrow exclusions, an employee returning from PDL has a right to reinstatement to the same position and has the right to a written guarantee of reinstatement from the employer upon request. Reinstatement to a comparable position is permissible only in limited circumstances.
If an employee, at the expiration of a pregnancy disability, has taken a CFRA “child bonding” leave, the employee’s right to reinstatement is governed by the CFRA and not by the FEHA. Under the CFRA, the employer may reinstate the employee either to the same or to a comparable position.
UCLA MEDICAL ENTERPRISE
DEPARTMENT LEAVE OF ABSENCE CHECKLIST
GENERAL INSTRUCTIONS
Documents in the employee packet are used to:
Inform an employee of his/her rights and procedures to follow under the University’s policies for Leaves of Absence including Family Care and Medical Leave, Pregnancy Disability Leave, Disability Leave, Personal Leave, Administrative Leave, Military Leave, and Union Business Leave.
Document a request for leave for any purpose, its approval or denial, and FMLA designation if the employee is subject to FMLA.
Obtain medical certification of an employee’s need for Family Care and Medical Leave, Pregnancy Disability Leave, and/or Disability Leave.
Obtain medical certification that an employee is able to return to work from a Family Care and Medical Leave, Pregnancy Disability Leave, or Disability Leave.
Review and document the steps required when an employee requests a leave of absence.
This checklist should be used when an employee requests a leave of absence:
Employee Name Department
Employee Information Packet: Date Provided to Employee:
Rights and Obligations under FMLA Provided By:
Leave of Absence Request Form
Medical Certification Form Method: In Person Certified Mail
Return to Work Certification Form
Test for Eligibility: Requested Leave Start Date:
Employee has: at least 12 months cumulative service
worked at least 1250 hours in the prior 12 months
Is employee eligible for FMLA? Yes No
Has this employee used FMLA within the last 12 months? Yes, leave began: Remaining entitlement: weeks
Reason for Leave:
own serious health condition pregnancy disability to care for a newborn
to care for a newly adopted child, or a child recently placed into foster care
to care for a child, spouse, or parent with a serious health condition
Action Checklist:
Received Medical Certification Date:
Copy of approved or denied Leave of Absence Request Form given to employee Date:
Copy of approved Leave of Absence Request Form sent to Supervisor Date:
Received Return to Work Certification Date:
UCLA MEDICAL ENTERPRISE
EMPLOYEE LEAVE OF ABSENCE PACKET
This packet includes 1) Statement of Your Rights and Obligations, 2) Leave of Absence Request Form, 3) Medical Certification Form, and 4) Return to Work Certification Form
YOUR RIGHTS AND OBLIGATIONS UNDER THE FEDERAL FAMILY AND MEDICAL LEAVE ACT OF 1993
It is the policy of the University of California to provide family and medical leave to eligible employees in accordance with the federal Family and Medical Leave Act of 1993 (FMLA) and the California Family Rights Act of 1993 (CFRA). This notice sets forth your rights and obligations under FMLA. If you are eligible and the leave you have requested pursuant to University policy or collective bargaining agreement qualifies as Family and Medical Leave, up to 12 workweeks will be counted against your annual entitlement of 12 workweeks in a rolling 12-month period.
Eligibility
If you have at least 12 months of service (all prior University service counts) and if you have worked at least 1,250 hours during the last 12 months prior to the requested leave, you are covered by the provisions of FMLA. (Only hours actually worked count toward FMLA qualification. Hours paid for standby, vacation, sick leave, holiday, comp time, or other hours paid but not worked will not be counted.)
Purpose of Leave
To care for your child after birth or placement by adoption or foster care;
To care for your spouse, child, or parent who has a serious health condition;
For your own serious health condition.
Length of Leave
Under FMLA, you are entitled to up to 12 workweeks of Family and Medical Leave during a rolling 12-month period. FMLA leave on an intermittent basis or on a reduced work schedule may be requested when medically necessary for a serious health condition. When possible, you should attempt to schedule medical treatments to minimize disruption to your department.
Additional leave beyond 12 workweeks may be requested pursuant to State law if you take pregnancy disability leave that runs concurrently with Family and Medical Leave under Federal law or pursuant to other provisions of the University’s leave policies and collective bargaining agreements.
Pay
Family and Medical Leave is normally unpaid leave; however, you may request or be required to substitute paid leave (i.e., accrued vacation, sick leave, PTO, or extended sick leave) for all or a portion of the unpaid leave in accordance with appropriate policies and collective bargaining agreements.
If you have requested Family and Medical Leave for your own serious health condition, you may be eligible during the unpaid portion of your leave for temporary disability payments under the University-Paid Disability Plan and/or the Employee-Paid Disability Plan or temporary disability payments under the Workers Compensation Act.
Advance Notice
30 days advance notice is required if your need for Family and Medical Leave is foreseeable (e.g., the birth of a child or a planned medical treatment). If you fail to provide 30 days notice for a foreseeable leave, your department may deny leave until 30 days after the date you provide notice.
If your need for leave is not foreseeable, you should provide notice within a reasonable time after learning of the need for leave. Written notice is recommended.
Medical Certification
Written certification from a health care provider may be required for either your own serious health condition or the serious health condition of your family member. Failure to provide required certification within 15 calendar days of the date you receive this notice may result in delay or denial of leave until the certification is provided. Recertification of your own serious health condition or the serious health condition of your family member may be required periodically. If required, a medical certification form will be provided by your department.
If the leave you have requested is for your own serious health condition, you will be asked to authorize your health care provider to provide your diagnosis. Failure to disclose the diagnosis of your serious health condition is one of the reasons why your department, at its own expense, may
Your Rights and Obligations Under the Federal Family and Medical Leave Act of 1993
Page 2 of 2
require you to obtain the opinion of a second health care provider, and if the second opinion differs from the original certification, the opinion of a third health care provider. The opinion of the third health care provider shall be final and binding.
Under Federal regulations, a “health care provider” is defined as: a doctor of medicine or osteopathy, podiatrist, dentist, chiropractor, clinical psychologist, optometrist, nurse practitioner, nurse-midwife, or a clinical social worker who is authorized to practice by the State and performing within the scope of the practice as defined by State law, or a Christian Science practitioner. A health care provider also is any provider from whom the University or the employee’s group health plan will accept medical certification to substantiate a claim of benefits.
Health Benefits
Coverage under any group health plan (medical, dental, optical) will be maintained during any leave covered by FMLA (up to 12 workweeks) to the extent coverage would be maintained if you have been actively at work during the leave period. You are responsible for arranging with the Payroll Office for the payment of the employee portion of any premiums that are not fully covered by a University contribution. Failure to pay the employee portion of the premiums within 30 days of the due date will result in cancellation of your enrollment in that plan.
If you do not return to work at the conclusion of your approved Family and Medical Leave, you will be liable for payment of the health plan premiums (medical, dental, optical) paid by the University during any unpaid portion of your leave. The University may recover its share of health plan premiums by taking deductions, to the extent permitted by law, from your unpaid wages, if any, vacation pay, or other pay due you, or by initiating legal action. However, you will not be liable for the premiums if your failure to return to work is due to continuation of your own serious health condition or other reasons beyond your control. You will be considered to have returned to work if you work for at least 30 calendar days commencing with your scheduled return date.
Reinstatement
Under Federal law (FMLA), you must be reinstated to the same position you had prior to taking the leave, or to an equivalent position provided that you return to work immediately following the conclusion of Family and Medical Leave. If your position is unavailable (due to, for example, a temporary or indefinite layoff), you have no greater right to reinstatement than had you been continually employed during the FMLA leave period. You are not entitled to reinstatement if your appointment end date occurs before your scheduled return date from Family and Medical Leave.
The University may require periodic notice of your intent to return to work following family and medical leave. The University’s responsibility to continue your health plan coverage ends (except for COBRA continuation coverage) upon notice that you do not intend to return to work at the end of the approved leave, even though you are able to work at that time.
Return to Work Clearance
If the FMLA leave you have requested is for your own serious health condition, you are required to present medical certification upon your return stating that you are able to return to work to perform the functions of your job. A return to work medical certification form is included in this packet. You must take this form to the Occupational Health Facility for clearance prior to the date you are scheduled to return to work.
University Designated FMLA Leave
The University may designate leave as FMLA leave if the leave meets the requirements listed above, even when an employee does not specifically request FMLA or Family and Medical Leave.
University Personnel Policies and Collective Bargaining Agreements
For more information about Family and Medical Leave and related leaves, please contact the Human Resources Department.
Privacy Notification
The State of California Information Practices Act of 1977 requires the University to provide the following information to individuals who are asked to supply information.
The principal purpose for requesting the information on the attached forms is to process requests for leaves of absence. The Federal Family and Medical Leave Act of 1993 and University policy authorize maintenance of this information.
Information furnished on this form may be used by various University departments for benefits, payroll and personnel administration, and will be transmitted to the Federal and State governments as required by law.
Individuals have the right to review their own records in accordance with University personnel policy and collective bargaining agreements. Information on applicable policies and agreements can be obtained from you Human Resources Department.
The Human Resources Department is responsible for maintaining the information contained on this form.
YOUR RIGHTS AND OBLIGATIONS UNDER THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT’S PREGNANCY DISABILITY LEAVE
It is the policy of the University of California to provide pregnancy disability leave to eligible employees in accordance with the California Fair Employment and Housing Act’s Pregnancy Disability Leave (PDL). This notice sets forth your rights and obligations under PDL. If you are eligible and the leave you have requested pursuant to University policy or collective bargaining agreement qualifies as Pregnancy Disability Leave, up to 4 months will be counted against your entitlement.
Eligibility
Upon hire
Purpose of Leave
For the employee’s own disability due to pregnancy, childbirth or related conditions.
Length of Leave
Under PDL, you are entitled to an unpaid leave of absence for the duration of the disability up to a maximum of four months. PDL on an intermittent basis or on a reduced work schedule may be requested when medically necessary. Pregnant employees may request to be transferred to a less strenuous or hazardous position when medically necessary.
Pay
Pregnancy Disability Leave is normally unpaid leave; however, you may request or be required to substitute paid leave (i.e., accrued vacation, sick leave, PTO, or extended sick leave) for all or a portion of the unpaid leave in accordance with appropriate policies and collective bargaining agreements.
If you have requested Pregnancy Disability Leave, you may be eligible during the unpaid portion of your leave for temporary disability payments under the University-Paid Disability Plan and/or the Employee-Paid Disability Plan.
Advance Notice
30 days advance notice is required if your need for Pregnancy Disability Leave is foreseeable.
If your need for leave is not foreseeable, you should provide notice within a reasonable time after learning of the need for leave. Written notice is recommended.
Medical Certification
Written certification from your health care provider may be required. Failure to provide required certification within 15 calendar days of the date you receive this notice may result in delay or denial of leave until the certification is provided. Recertification of your own serious health condition or the serious health condition of your family member may be required periodically. If required, a medical certification form will be provided by your department.
If the leave you have requested is for your own serious health condition, you will be asked to authorize your health care provider to provide your diagnosis. Failure to disclose the diagnosis of your serious health condition is one of the reasons why your department, at its own expense, may
Your Rights and Obligations Under the Federal Family and Medical Leave Act of 1993
Page 2 of 2
require you to obtain the opinion of a second health care provider, and if the second opinion differs from the original certification, the opinion of a third health care provider. The opinion of the third health care provider shall be final and binding.
Under Federal regulations, a “health care provider” is defined as: a doctor of medicine or osteopathy, podiatrist, dentist, chiropractor, clinical psychologist, optometrist, nurse practitioner, nurse-midwife, or a clinical social worker who is authorized to practice by the State and performing within the scope of the practice as defined by State law, or a Christian Science practitioner. A health care provider also is any provider from whom the University or the employee’s group health plan will accept medical certification to substantiate a claim of benefits.
Health Benefits
Coverage under any group health plan (medical, dental, optical) will be maintained during any leave covered by FMLA (up to 12 workweeks) to the extent coverage would be maintained if you have been actively at work during the leave period. You are responsible for arranging with the Payroll Office for the payment of the employee portion of any premiums that are not fully covered by a University contribution. Failure to pay the employee portion of the premiums within 30 days of the due date will result in cancellation of your enrollment in that plan.
If you do not return to work at the conclusion of your approved Family and Medical Leave, you will be liable for payment of the health plan premiums (medical, dental, optical) paid by the University during any unpaid portion of your leave. The University may recover its share of health plan premiums by taking deductions, to the extent permitted by law, from your unpaid wages, if any, vacation pay, or other pay due you, or by initiating legal action. However, you will not be liable for the premiums if your failure to return to work is due to continuation of your own serious health condition or other reasons beyond your control. You will be considered to have returned to work if you work for at least 30 calendar days commencing with your scheduled return date.
Reinstatement
Under Federal law (FMLA), you must be reinstated to the same position you had prior to taking the leave, or to an equivalent position provided that you return to work immediately following the conclusion of Family and Medical Leave. If your position is unavailable (due to, for example, a temporary or indefinite layoff), you have no greater right to reinstatement than had you been continually employed during the FMLA leave period. You are not entitled to reinstatement if your appointment end date occurs before your scheduled return date from Family and Medical Leave.
The University may require periodic notice of your intent to return to work following family and medical leave. The University’s responsibility to continue your health plan coverage ends (except for COBRA continuation coverage) upon notice that you do not intend to return to work at the end of the approved leave, even though you are able to work at that time.
Return to Work Clearance
If the FMLA leave you have requested is for your own serious health condition, you are required to present medical certification upon your return stating that you are able to return to work to perform the functions of your job. A return to work medical certification form is included in this packet. You must take this form to the Occupational Health Facility for clearance prior to the date you are scheduled to return to work.
University Designated FMLA Leave
The University may designate leave as FMLA leave if the leave meets the requirements listed above, even when an employee does not specifically request FMLA or Family and Medical Leave.
University Personnel Policies and Collective Bargaining Agreements
For more information about Family and Medical Leave and related leaves, please contact the Human Resources Department.
Privacy Notification
The State of California Information Practices Act of 1977 requires the University to provide the following information to individuals who are asked to supply information.
The principal purpose for requesting the information on the attached forms is to process requests for leaves of absence. The Federal Family and Medical Leave Act of 1993 and University policy authorize maintenance of this information.
Information furnished on this form may be used by various University departments for benefits, payroll and personnel administration, and will be transmitted to the Federal and State governments as required by law.
Individuals have the right to review their own records in accordance with University personnel policy and collective bargaining agreements. Information on applicable policies and agreements can be obtained from you Human Resources Department.
The Human Resources Department is responsible for maintaining the information contained on this form.
UCLA HEALTH CARE
LEAVE OF ABSENCE REQUEST FORM
EMPLOYEE SECTION:
Employee Name: Phone:
Department: Payroll Title:
Request for:
Leave of Absence Extension of Leave of Absence Intermittent Leave/Reduced Work Schedule
Explain:
Reason for Request:
| Own Serious Health Condition (not work-related) | Personal |
| Care for Own Newborn or Own Adopted or Foster Care Child | Military |
|Date of Birth or Placement: | |
| Care for Own Child, Parent, or Spouse with Serious Health Condition | Administrative or Legal Proceedings |
| Pregnancy Disability | Union Business |
| Work-Incurred Disability | Professional Development |
Requested Start Date: Anticipated Date of Return:
A leave of absence is normally unpaid. Paid leave, including accrued sick and vacation time shall be substituted for all or a portion of the unpaid leave in accordance with the appropriate policies or contracts.
I wish to use the following paid leave: Sick Accruals Comp Time Vacation/PTO Accruals
I have the following insurance: UC Medical UC Dental UC Optical
Employee Signature: Date:
[pic]
Employer Section:
Your request is approved.
Your request is approved with the following modifications:
Your request is not approved for the following reason(s):
Your leave is designated as:
Pregnancy Disability Beginning: Ending:
FMLA Leave Beginning: Ending:
Disability Leave Beginning: Ending:
Work-Related Disability Beginning: Ending:
Personal Leave Beginning: Ending:
Military Leave Beginning: Ending:
Administrative Leave Beginning: Ending:
Union Business Leave Beginning: Ending :
Professional Development Beginning: Ending:
Supervisor’s Signature: Date:
UCLA HEALTH CARE
HEALTH CARE PROVIDER MEDICAL CERTIFICATION FORM
Dear Health Care Provider:
Our employee has requested a leave of absence. In order for the University to determine whether this leave qualifies for Federal and/or California Family and Medical Leave status, California Pregnancy Leave Disability status, or for University Medical Disability status, please complete the brief Health Care Provider section on the reverse of this form.
If you have any questions, please call the employee’s supervisor listed below.
Thank you for your assistance.
[pic]
EMPLOYEE SECTION:
Employee Name:
Patient Name:
Patient’s Relationship to Employee:
Requested Leave Start Date:
Anticipated Date of Return:
Supervisor’s Name: Phone:
If leave is for my own serious health condition, I authorize my health care provider to provide my diagnosis. (Leave will not be denied based upon your refusal to authorize this provision.)
Employee Signature: Date:
Health Care Provider Medical Certification Form
Page 2 of 2
HEALTH CARE PROVIDER SECTION:
If leave is because of employee’s or family member’s illness, injury, impairment or physical or mental condition, please answer the following questions:
Yes No
Is this employee incapacitated or does this employee require treatment in connection with or consequent to an overnight stay in a hospital, hospice, or residential medical care facility? or
Does this employee require continuing treatment by a health care provider for a period of incapacity for more than
three (3) consecutive calendar days that also involves treatment two or more times or treatment on at least one
occasion which results in a regimen of continuing treatment under the supervision of a health care provider?
Does this employee require continuing treatment by a health care provider for a period of incapacity due to
pregnancy for prenatal care?
Does this employee require continuing treatment by a health care provider for a period of incapacity due to a
chronic serious health condition that requires periodic visits for treatment, continues over an extended period of
time, and may cause episodic rather than a continuing period of incapacity?
Does this employee require continuing treatment by a health care provider for a period of incapacity which is long
term due to a condition for which treatment may not be effective?
Does this employee require continuing treatment by a health care provider for a period of absence required to
receive multiple treatments (including the period of recovery) either for restorative surgery after an accident or
other injury, or for a chronic condition?
If leave is because of employee’s or family member’s allergies, stress, or substance abuse, please answer the following questions:
Yes No
Is inpatient hospitalization required?
Does this employee or family member require continuing treatment by a health care provider for a period of incapacity of more than three (3) consecutive calendar days?
Does the employee or family member have a serious long-term health condition?
If leave is because of employee’s or family member’s voluntary treatment or voluntary surgery, please answer the following question:
Yes No
Is inpatient hospital care required?
When did the serious health condition begin? What is the anticipated return to work date?
If intermittent leave or a reduced work schedule is being considered, please describe the recommended schedule:
If leave is for employee’s serious health condition and if authorized above, what is the employee’s diagnosis?
If leave is for a family member’s serious health condition, is the employee’s presence necessary or would it be beneficial to the patient (this may include psychological comfort and/or arranging for third-party carte for the family member)? Yes No
Name of Health Care Provider: Specialty:
Address: Phone:
Health Care Provider Signature: Date:
Place stamp here:
UCLA HEALTH CARE
HEALTH CARE PROVIDER RETURN TO WORK CERTIFICATION
EMPLOYEE SECTION:
Employee Name: Department:
Supervisor’s Name: Phone:
[pic]
HEALTH CARE PROVIDER SECTION:
Is the employee able to perform all of the functions of the job? Yes No
Yes, with restrictions
Please list any restrictions or describe accommodations which the department should consider (if any).
Are the restrictions permanent? Temporary? Until what date:
Comments:
The effective date that the employee is released to return to work is:
Name of Health Care Provider:
Specialty: Phone:
Address:
Health Care Provider Signature: Date:
Place stamp here:
-----------------------
[1] CFR § 825.114(a)(1)(2)(i)(ii)(iii)(iv)(v) and § 825.114(e)
[2] § 825.116
[3] Cianci v. Pettibone Corp., 1997 U.S. Dist. LEXUS 4482 (N.D. Ill. 1997)
[4] Brown v. J.C. Penney Corp., 924 F. Supp. 1158 (S.D. Fla. 1996))
[5] see infra, § 825.110
[6] § 825.110
[7] Rich v. Delta Airlines, 921 F. Supp. 767 (N.D. Ga. 1996)
[8] § 825.300(a)
[9] § 825.301(a)(1)
[10] § 825.208(a)
[11] § 825.301
[12] § 825.208(b)(2)
[13] §825.208(a)
[14] § 825.208(e)
[15] § 825.307(a)
[16] Id
[17] § 825.307(a)(2)
[18] § 825.214)
[19] § 825.216(a)
[20] § 825.216
[21] § 825.217(a)
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