The Family and Medical Leave Act of 1993 (FMLA) provides job and health insurance protection for eligible employees who must take certain types of leave. Leave in accordance with this Act may be paid if the employee has sufficient applicable sick, vacation and/or compensatory leave balances, or unpaid if all leave balances have been exhausted (see the “Pay During Leave” section later in this policy). Family and Medical Leave runs concurrent with an employee’s paid leave or other form of unpaid leave for absences permitted under this law. In the event of a conflict between this policy and the applicable FMLA regulation, the FMLA regulations will govern.

Types of Leave

Basic Leave

For eligible employees, up to 12 weeks of unpaid leave in a 12-month period is available for one or more of the following purposes:

• For the birth and care of a newborn child of the employee (leave to be completed within one year of the child’s birth);
• For the care and/or placement of a child for adoption or foster care and to care for the newly placed child (leave to be completed within one year of the child’s placement);
• To care for a spouse, child, or parent with a serious health condition; a child, for purposes of this policy, includes an individual who is either (1) under the age of 18 or (2) older than 18 but incapable of self-care because of a physical or mental disability; or
• For an employee’s own serious health condition.

The 12-month period used by the City of Melbourne is the measure “forward” basis. Therefore, leave begins with the first date of an FMLA absence and is tracked from that date forward. 

Qualifying Exigency Leave

For eligible employees, up to 12 weeks of unpaid leave, in a 12 month period, is available for an eligible employee where the employee’s spouse, son, daughter or parent is on “covered active duty” and leave is needed for a “qualifying exigency.” “Covered active duty” includes: (1) in the case of a member of a regular component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country; and (2) in the case of a member of a reserve component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country under a call or order to active duty.

A "qualifying exigency" includes but is not limited to:

• Short notice deployment;
• Military events and related activities;
• Childcare and school activities;
• For the purpose of making financial and legal arrangements;
• To attend counseling; 
• Rest and recuperation; 
• Post deployment activities; and/or,
• Additional qualifying activities.

The “forward” method used for measuring “Basic Leave” is also used to measure the 12 month period for “Qualifying Exigency Leave.”

Covered Service Member Care Leave

Leave is available for an eligible employee to care for a spouse, child, parent or next of kin who:

1. is a current member of the Armed Forces or a member of the Armed Forces who is on the temporary disability list, and who has a “serious injury or illness” for which he or she is undergoing medical treatment, recuperation, or therapy; or, otherwise in outpatient status; or, otherwise on the temporary disability retired list, or 
2. is a veteran of the Armed Forces who is undergoing medical treatment, recuperation, or therapy, for a “serious injury or illness” and who was a member of the Armed Forces at any time during the period of 5 years preceding the date on which the veteran undergoes the medical treatment, recuperation, or therapy.

For purposes of this section the following definitions apply:

1. The term “Armed Forces” includes Armed Forces, National Guard, and Reserves

2. The term “serious injury or illness” means:

• For current members of the Armed Forces - an injury or illness that was incurred by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating.
• For veterans of the Armed Forces - an injury or illness that was incurred by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that manifested itself before or after the member became a veteran.
• The term “Next of kin” of a covered service member is the nearest blood relative other than the covered service member’s spouse, son, or daughter, unless the covered service member has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave under the FMLA.
• For Covered Service member Care leave, an employee is entitled to 26 workweeks of leave during any single 12 month period measured forward from the date an employee’s first FMLA leave to care for the covered service member begins.  

Intermittent Leave

Intermittent leave or leave on a reduced leave schedule must be medically necessary due to a serious health condition or a serious injury or illness, except in the case of intermittent leave for a Qualifying Exigency.
Intermittent leave may be in the form of blocks of time off, or a reduced normal weekly or daily schedule. An employee is obligated to schedule treatments with limited interruption to City operations. Intermittent leave may also be requested for the birth of a child or placement of a child for adoption or foster care; however, since such leave is generally not a medical necessity, it is at the discretion of the Department Director and the Director of Human Resources.

Provisions for Leave

Eligibility for FMLA Leave

Employees are eligible for unpaid FMLA leave if they: (1) have a cumulative (not necessarily continuous) 12 months of prior service within a period of 7 years, and (2) have worked at least 1250 hours during the 12 months immediately prior to the date on which the FMLA leave would begin.

Requesting Leave

Eligible employees are asked to provide the City with 30 days advance written notice before FMLA leave begins. Failure to provide advance notice may cause delay or denial of leave. In cases of unforeseeable leave, notice to the supervisor or Department Director must be given as soon as practicable under the circumstances of the situation. The City will generally notify the employee of their eligibility to take Family and Medical Leave within 5 business days of receipt of the FMLA request. If an employee is not eligible, the City will provide the reason.

Documentation of Eligible Leave

In most cases the City will request that an eligible employee provide documentation certifying the leave. A certification form specific to the type of leave the employee is requesting must be completed and returned to the Human Resources Department within 15 days of the City’s request absent extenuating circumstances.

Designation of Leave

Within 5 business days after the employee has submitted the appropriate documentation and/or the City has sufficient information to determine whether the leave requested is FMLA covered, the Human Resources Department will complete and provide the employee with a written response to the employee’s request for FMLA leave.

Exemption for Key Employees

Key employees are defined as salaried and FMLA-eligible employees who are among the highest paid 10% of all employees at a worksite or within 75 miles of that worksite. Upon returning from FMLA leave, key employees may not be returned to their former or an equivalent position following FMLA leave if restoration of employment will cause substantial and serious economic injury to the operations of the City. This fact-specific determination will be made by the City on a case-by-case basis. You will be notified if you qualify as a key employee, if the City intends to deny reinstatement, and of your rights in these instances.

Intent to Return to Work from FMLA Leave

Consistent with the handling of other types of medical and personal leave, the City may require an employee on FMLA leave to report periodically on the employee’s status and intent to return to work.

Pay During Leave

If the reason for the leave is also covered by the City’s sick and/or vacation leave policies and there is available sick, vacation, or compensatory leave, the employee is required to use his sick, vacation and compensatory leave if applicable while taking FMLA leave (excluding those on military or exigency leave). Once paid leave is exhausted, an employee is placed in an unpaid leave status for the remainder of the FMLA period and leave accruals will cease. Both paid and unpaid leave count towards the 12 week (or 26 week in the case of Covered Service member Care Leave) limit. FMLA is a designation of leave to comply with federal law, and does not determine a paid or unpaid leave status.

Leave taken while receiving a benefit under the City offered short-term disability leave plan or leave due to a Workers’ Compensation covered absence will be counted as FMLA leave if it meets the above criteria for a serious health condition. While this leave is designated as FMLA leave, an employee will not be required to use his paid sick, vacation or compensatory leave accruals while he is receiving disability pay or supplemental pay through Workers’ Compensation, but may choose to supplement his pay with his personal leave if sufficient leave balances are available. The City may not restrict this decision, and the total of Workers’ Compensation and sick and/or vacation leave supplement shall not exceed the employee’s base hours for that period.

Benefits During Leave

Health care benefits will be maintained during FMLA leave. An employee must continue to pay the employee portion of health insurance premiums whether in a paid or unpaid leave status. Employees who fall more than 30 days behind in insurance payments are subject to cancellation. Subject to certain conditions, the City may attempt to recover any premiums paid on an employee’s behalf while on FMLA if the employee fails to return to work at the expiration of the FMLA period.

Returning from Leave

Employees released to full duty will be restored to the same or equivalent position, unless he would not otherwise have been employed at the time of reinstatement (e.g., due to an intervening reduction in force or discharge for misconduct or poor performance). The City reserves the right not to rehire a "key" employee if rehire would cause substantial economic harm to its business. Key employees are generally those in the top 10% of compensation.

Return from Leave/Fitness For Duty Certification

Any employee who takes leave for his own serious health condition will be required, as a condition of restoration, to provide certification that he is able to return to work and perform the essential functions of the job. In addition, the City may require a Fitness for Duty Certification which is paid by the employee. The City may delay or deny a return to work if a required Fitness for Duty Certification is not provided. The City may request a Fitness for Duty Certification for leave taken on an intermittent or reduced leave schedule basis if reasonable safety concerns exist regarding the employee's ability to perform his duties based on the serious health condition for which the employee took leave.

Leave Beyond FMLA

If an employee is unable to return to work following the expiration of an FMLA period, he has the option to request a leave of absence beyond that period. If the employee has leave accruals, the absence will be paid. If the employee has exhausted his leave accruals, then any additional leave period would be unpaid. Approval of additional leave beyond FMLA is at the discretion of the Department Director. If an employee fails to return to work at the end of an approved leave of absence, including any extension of the leave, the employee will be considered to have voluntarily terminated employment. If an employee has been absent from work on either paid or unpaid leave beyond the FMLA period, the City will evaluate the employee’s likelihood of returning to duty. If it is determined unlikely that the employee will return to duty in a reasonable period of time beyond FMLA due to the specific circumstances of the employee’s condition, the Department Director may initiate separation from employment with the understanding that the City is unable to keep jobs unfilled indefinitely and a continued vacancy will become an undue hardship on the Department.