Administrative
  Services
    Letter

02-05
Work and Family Programs

   
Signed By
Larry Morris, Chief
Administrative Services Division
Number
02-05
Distribution
All Employees
Date Issued
June 19, 2002
Subject
Work and Family Programs
Expires
When Canceled
Guide Section
Reference
Cancels ASL 98-02

This ASL provides you with detailed information on ARB's procedures for the following programs:

Changes from the prior ASL include:A change in the method of determining FMLA leave entitlement from a 12-month rolling backward method to a 12-month calendar year method effective January 2002 for employees in bargaining units 1, 2, 3, 4, 7, 11, 12, 13, 14, 15, 17, 18, 19, 20, and 21, and all excluded employees.Procedures for implementing the FCL, FAL, and Transfer of Leave Credits for Family Members.Any questions on the information contained in this ASL should be directed to your assigned Human Resources Analyst.

FAMILY AND MEDICAL LEAVE ACT

BACKGROUND

On February 5, 1993, the Federal Family and Medical Leave Act (FMLA) was signed into law. This law requires covered employers to provide up to twelve (12) weeks of unpaid, job-protected family care or medical leave per year for eligible employees who have a valid family/medical reason. The FMLA requires employers to continue medical benefit coverage (health, dental and vision) at the same level while the employee is on unpaid FMLA leave. The FMLA was effective August 5, 1993 for all excluded employees. For employees who are covered by collective bargaining agreements, the law took effect February 4, 1994. FMLA does not supersede any Memorandums of Understanding that provide greater family or medical leave rights. FMLA is a Federal law and is administered and enforced by the U.S. Department of Labor Employment Standards Administration, Wage and Hour Division.

In 1993 the California Family Rights Act (CFRA) was revised to conform to the FMLA. CFRA is a State law and is administered and enforced by the California Department of Fair Employment and Housing.

ELIGIBILITY To be eligible for leave under FMLA, an employee must meet both of these requirements:

  • An employee must have at least twelve (12) months of state service; and
  • The employee, on the date on which any FMLA/CFRA leave is to commence, has worked at least 1,250 hours (actual time worked) during the prior twelve months (the hours need not be consecutive).

12-MONTH PERIOD

For employees in bargaining units 1, 2, 3, 4, 7, 11, 12, 13, 14, 15, 17, 18, 19, 20, and 21, and all excluded employees the 12-month period is calculated by calendar year, beginning on the first day of January and ending on the last day of December. For employees in bargaining units 5, 6, 8, 9, 10, and 16 a "rolling" 12-month period is measured backward from the date an employee uses any FMLA/CFRA leave. Each time the employee takes FMLA/CFRA leave, the remaining leave entitlement would be any balance of the twelve (12) workweeks which have not been used during the 12-month period. FMLA/CFRA leave may be taken in one twelve (12) workweek stretch, or in increments of one hour or more that total twelve (12) workweeks. When a leave is taken for a medical or other FMLA/CFRA related appointment, the employee must make a reasonable effort to schedule the appointment at a time that minimizes disruption to the Air Resources Board's (ARB) operations.

QUALIFYING EVENTS

FMLA/CFRA leave can be taken for the following reasons:

  • The birth of an employee's newborn child and to care for the newborn Care for a newly adopted or placed foster care child (written verification required) Care for an employee's child, spouse, domestic partner, or parent who has a serious health condition which requires the employee to provide care
  • Employee's recovery from a serious health condition that makes him/her unable to work

DEFINITION OF FAMILY MEMBER

  • A spouse is a husband or wife as defined or recognized under State law.
  • Domestic partners are two adults, of the same sex and at least 18 years of age or of the opposite sex and over 62 years of age, who have chosen to share one another's lives in an intimate and committed relationship of mutual caring, who share a common residence and are jointly responsible for each other's basic living expenses incurred during the domestic partnership. Neither person is married or a member of another domestic partnership. The two persons are not related by blood in a way that would prevent them from being married to each other in this state and both persons are capable of consenting to the domestic partnership. A Declaration of Domestic Partnership must be filed with the Secretary of State pursuant to Division 2.5 of the Family Code, Section 297. Further information and the Declaration are available at www.ss.ca.gov/business/sf/sf_dp.htm. Neither person has previously filed a Declaration of Domestic Partnership with the Secretary of State that has not been terminated pursuant to Division 2.5 of the Family Code, Section 299.
  • A child is a biological or adopted son or daughter, foster child, stepchild, legal ward or a child of a person standing "in loco parentis" (in the place of a parent, or of a parent's authority) who, regardless of age, needs care.
  • A parent is a biological parent or a person who stood "in loco parentis" to an employee when the employee was a child. The term does not include parents-in-law.

SERIOUS HEALTH CONDITION

A serious health condition means an illness, injury, impairment, or physical or mental condition that involves:

  • Any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical-care facility, and any period of incapacity or subsequent treatment in connection with such inpatient care. (Incapacity for purposes of this section is defined as the inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom.)
  • Any period of incapacity of more than three consecutive calendar days, and any subsequent treatment or period of incapacity, relating to the same condition, that involves: continuing treatment two or more times by a health care provider; or treatment which results in a regimen of continuing treatment that would include a course of prescription medication (e.g. an antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition.
  • Continuing treatment by or under the supervision of a health care provider for a chronic health condition. A chronic health condition is one which requires periodic visits for treatment by a health care provider, continues over an extended period of time, and may cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.). 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 (e.g., Alzheimer's, a severe stroke, or the terminal stages of a disease).
  • Any period of absence to receive multiple treatments (including any period of recovery therefrom) 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).
  • Any period of incapacity due to pregnancy or for prenatal care.
  • Voluntary or cosmetic treatments (such as treatments for orthodontia or acne) which are not medically necessary are not "serious health conditions, unless in-patient hospital care is required. Restorative dental surgery after an accident, or the removal of cancerous growths are serious health conditions if all the conditions of the regulation are met. Routine preventive physical examinations are excluded.

HEALTH CARE PROVIDER

A health care provider is:

  • A doctor of medicine or osteopathy authorized to practice medicine or surgery by the state in which the doctor practices.
  • A podiatrist, dentist, clinical psychologist, optometrist, or chiropractor (a chiropractor is limited to manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist) authorized to practice, and performing within the scope of his/her practice, under state law.
  • A nurse practitioner, or nurse-midwife, or clinical social worker authorized to practice, and performing within the scope of his/her practice, as defined under state law.
  • A Christian Science practitioner listed with the First Church of Christ Scientist in Boston, Massachusetts.
  • A health care provider listed above who practices in a country other than the United States, who is authorized to practice in accordance with the law of that country, who is performing within the scope of his or her practice as defined under the law.

LEAVE ENTITLEMENT

ARB must provide up to twelve (12) weeks or sixty (60) workdays, or 480 hours for full-time employees working a regular or alternate work week schedule (fractional employees are pro-rated according to their time base), of unpaid FMLA/CFRA leave in a 12-month period to eligible employees. FMLA/CFRA leave does not have to be taken in one continuous period of time. When FMLA/CFRA leave is taken for the serious health condition of the employee or the employee's spouse, parent, or child, leave may be taken intermittently or on a reduced work schedule when the health care provider of the person with the serious health condition indicates that it is necessary. If an employee needs intermittent leave or leave on a reduced work schedule that is foreseeable based on planned medical treatment, ARB may require the employee to transfer to an available alternative position with equivalent pay and benefits. A leave of twelve (12) weeks is provided to either parent for birth, adoption, or foster care placement of a child. FMLA limits the total aggregate number of workweeks of leave to which a husband and wife are both entitled, if they work for the same employer, to a total of twelve (12) workweeks (combined between the two parents). In other words, married parents who both work for ARB are only entitled to take twelve (12) weeks of leave under FMLA. The limitation does not apply to unmarried parents. Parents may be on leave simultaneously. When CFRA leave is taken for the birth, adoption, or foster care placement of a child, the leave must be completed within one (1) year of the birth, adoption, or foster care placement of the child. Additionally, the basic minimum duration of such leave is two (2) weeks, with the exception that on any two (2) occasions, ARB shall grant a request for CFRA leave of less than two (2) weeks duration. When leave is taken after the birth or placement of a child for adoption or foster care, an employee may take leave intermittently or on a reduced work schedule. An employee who wishes to take leave by using an intermittent or reduced work schedule must obtain his/her supervisor's approval. The employee should submit a proposed work schedule to his/her supervisor sufficiently in advance to allow the supervisor a reasonable time to review the schedule before approving it.

BENEFIT ENTITLEMENT

During FMLA/CFRA leave, ARB will continue to pay its share of an employee's health, dental and vision benefits. Employees who pay a portion of the premium toward these benefits are still responsible for paying their share. However, ARB will pay the full premium while the employee is on an unpaid FMLA/CFRA leave and establish an accounts receivable when the employee returns from the FMLA/CFRA leave to recover the employee's portion of the premium. If the employee returns to work for less than thirty (30) calendar days or if the employee chooses not to return to work upon expiration of the FMLA/CFRA leave, the employee must reimburse the state for premiums paid on his/her behalf. EXCEPTION: The employee would not have to reimburse the state if the employee retires during the FMLA/CFRA leave or during the first thirty (30) calendar days after his/her return to work; or the reason the employee does not return to work is due to the continuation, recurrence, or onset of a serious health condition affecting the employee or immediate family member. An employee who currently receives the "cash option" in lieu of health benefits under the State's FlexElect program will not receive the "cash option" during an FMLA/CFRA leave.

USE OF LEAVE CREDITS

An employee may use paid leave credits such as vacation, annual leave, and personal leave during FMLA/CFRA leave. However, sick leave may only be used in accordance with collective bargaining agreements and/or applicable civil service laws, rules, and policies. An employee who has been placed on attendance restriction for sick leave shall not be prohibited from using vacation leave for a qualifying FMLA/CFRA leave. Employees may use accumulated compensating time off (CTO) during FMLA/CFRA leave, however, the CTO will not be counted toward the employee's FMLA/CFRA leave entitlement. Paid leaves due to job-related accidents or injuries under Industrial Disability Leave or Temporary Disability are not counted as an employee's FMLA/CFRA leave.

RETURN TO WORK

If the FMLA/CFRA leave was for the employee's own serious illness, the employee must provide his/her supervisor with a medical release outlining any restrictions before the employee returns to work. Upon return from FMLA/CFRA leave, the employee will be returned to his or her former position or to an equivalent position with equivalent pay, benefits and other employment terms and conditions. If the employee is unable to perform an essential function of the former position because of a physical or mental condition, including the continuation of a serious health condition, the employee has no right to restoration to another position under the FMLA. However, the employee may have a right to reasonable accommodation under the Americans with Disabilities Act. In addition, an employee's use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave. Under specified and limited circumstances where restoration to employment will cause substantial and grievous economic injury to its operations, ARB may refuse to reinstate certain highly-paid key employees after using FMLA leave during which health coverage was maintained. In order to do so, ARB must:

  • Notify the employee of his/her status as a key employee in response to the employee's notice of intent to take FMLA leave.
  • Notify the employee as soon as ARB decides it will deny job restoration and explain the reasons for this decision.
  • Offer the employee a reasonable opportunity to return to work from FMLA leave after giving this notice.
  • Make a final determination as to whether reinstatement will be denied at the end of the leave period if the employee then requests restoration.

A key employee is a salaried eligible employee who is among the highest paid ten percent of employees in ARB.

PROCEDURES FOR FMLA/CFRA LEAVE

The following procedures must be followed when an employee requests FMLA/CFRA leave or a supervisor becomes aware of circumstances that indicate an employee's request for leave may fall under the criteria for FMLA/CFRA:

REQUEST FOR FMLA/CFRA LEAVE

  • At least thirty (30) days prior to commencement of the leave the employee must inform his/her supervisor of the need for FMLA/CFRA leave.
  • If the leave was not foreseeable thirty (30) days prior, the employee must give notice as soon as the necessity for the leave arises.

TIME FRAMES

  • The same day the supervisor receives a request for FMLA/CFRA leave or becomes aware of circumstances that indicate an employee's request for leave may fall under the criteria for FMLA/CFRA, he/she will contact the assigned Human Resources Analyst.
  • The same day the Human Resources Analyst is contacted by the supervisor he/she will consult with the FMLA Analyst to determine whether the absence meets one of the conditions for FMLA/CFRA leave. They will also determine whether the employee meets the eligibility requirements.
  • The next business day, the supervisor, Human Resources Analyst, and FMLA Analyst will meet with the employee. The employee will receive the FMLA letter provisionally designating the leave as FMLA; the Family Medical Leave Request Form and the Certification of Health Care Provider Form which the employee must have completed and returned to his/her supervisor within fifteen (15) days; and a copy of Your Rights under the Family and Medical Leave Act of 1993" along with the Receipt for Notice to Employees of Rights under the FMLA. The employee must sign the receipt and return to his/her supervisor within one (1) business day.

FINAL DETERMINATION

Upon receipt of the Family Medical Leave Request Form and Medical Certification of Health Care Provider Form from the employee, the supervisor and Division Chief will review, sign, and forward the forms to the Human Resources Analyst.

  • The Human Resources Analyst and the FMLA Analyst will review the forms and make a final determination whether the absence meets the conditions for FMLA/CFRA leave. The forms are then forwarded to the Assistant Chief, Personnel Management Branch, for final approval or denial.
  • The original signed Family Medical Leave Request Form is returned to the employee and a copy is kept in the FMLA files. The returned request form will serve as the final designation of approval or denial of FMLA/CFRA leave.

REPORTING AND TRACKING FMLA LEAVE

The Human Resources Information System (HRIS) is ARB's leave accounting system. The following FMLA attendance and balance codes have been developed to track FMLA leave usage.

ATTENDANCE CODES

CODE DESCRIPTION
ATTENDANCE CODE
Family Medical Leave Act - No leave credits used
FML
Family Medical Leave Act - Annual Leave
AF
Family Medical Leave Act - Vacation
VF
Family Medical Leave Act - Sick Employee
SEF
Family Medical Leave Act - Sick Family
SFF
Family Medical Leave Act - Catastrophic Leave Recipient
CTF
Family Medical Leave Act - Holiday Credit
HCF
Family Medical Leave Act - Nonindustrial Disability Leave
NDF
Family Medical Leave Act - Personal Holiday
PHF

BALANCE CODE

CODE DESCRIPTION
BALANCE CODE
Family Medical Leave Act
FML

The employee must enter the appropriate attendance codes on their Time Report, ASD 26, when reporting FMLA usage.;The Attendance Coordinator will key enter these codes on the "Full Screen" portion of HRIS. In the event the employee has elected not to use paid leave credits while on FMLA leave, the "Full Screen" option might not be available. In those instances it will be necessary for the Attendance Coordinator to enter the amount of FMLA leave used on the "Maintain Balance" screen after the regular attendance cycle has run. The FMLA entries will print on the employee's "Monthly Leave Balance" statement as hours used.;The "Leave Encumbrance Report" will be generated to track FMLA balances for ARB Management upon request.;

PREGNANCY DISABILITY LEAVE (GOVERNMENT CODE SECTIONS 12926[o], 12940, AND 12945)

In addition to leave taken under the provisions of FMLA/CFRA, an employee who is disabled on account of pregnancy, childbirth, or related medical conditions is entitled to take a pregnancy disability leave (PDL) for the period of the actual disability of six weeks up to four months. An employee need not meet the eligibility requirements for FMLA/CFRA to be eligible for pregnancy disability leave. The disability leave shall not be counted against an employee's entitlement to leave under the CFRA but will be counted against an employee's entitlement to leave under the FMLA. Health benefit coverage is maintained for only a total of twelve (12) weeks in a 12-month period under the FMLA/CFRA/PDL. Reporting and tracking of PDL will not need to be listed separately on an employee's Time Report when running concurrently with FMLA leave. If an employee does not qualify for FMLA/CFRA leave then the following attendance code will be used on the Time Report to report PDL usage: PDL.

FAMILY SCHOOL PARTNERSHIP ACT

Assembly Bill 2590 was signed into law in 1995. This bill amends Labor Code Section 230.8 to allow eligible State civil service employees to use up to 40 hours of vacation, annual leave, personal leave, or compensating time off to participate in school activities of any of their children attending kindergarten or grades one through 12. Eligible employees include a parent, guardian, or grandparent having custody of the child. The employee, prior to taking the time off, must give reasonable notice to the employer of the planned absence. Time off may not exceed eight hours in any calendar month of the school year. The employee shall use existing vacation, annual leave, personal leave, or compensating time off unless otherwise provided in a collective bargaining agreement entered into before January 1, 1995 and still in effect during the planned absence. Unpaid leave may not be used without prior approval from the employee's supervisor.All current State collective bargaining agreements provide that the appointing authority has the discretion to determine when annual leave, vacation, personal leave, and compensating time off may be taken. Any dispute resulting from the denial of leave to a represented employee is subject to the grievance and arbitration process specified in the appropriate Memorandum of Understanding. A dispute of an excluded employee should be directed to the Department of Industrial Relations.Supervisors may request the employee provide written documentation from the school to verify he or she participated in the school activity on the specified date and time.

FAMILY CRISIS LEAVE

The State recognizes that on occasion it may be necessary for employees to take time off to attend to family crisis situations, including, but not limited to, divorce counseling, family or parenting conflict management, family-care urgent matters, and/or emergencies. Subject to departmental operational needs and reasonable notice to the employee's supervisor, excluded employees and rank and file employees in bargaining units that have adopted these provisions, shall be permitted to use accumulated leave credits to attend to family crisis situations. Where appropriate, sick leave credits may be used consistent with sick leave policies and bargaining unit agreements. In addition to requesting leave, the employee may also request to adjust their work hours or schedules, or request other flexible arrangements.

DEFINITION OF FAMILY MEMBER

A family member is defined as the parent, spouse, domestic partner who has been certified with the Secretary of State's Office in accordance with AB 26 (Chapter 588, Statutes of 1999), son daughter, or any child the employee stands in-loco parentis to, grandchild, grandparent, brother, sister, or any person residing in the immediate household.

REPORTING AND TRACKING FAMILY CRISIS LEAVE

The following Family Crisis Leave attendance and balance codes have been developed to track Family Crisis leave usage.

ATTENDANCE CODES

CODE DESCRIPTION
ATTENDANCE CODE
Family Crisis Leave Annual Leave
FCA
Family Crisis Leave Sick Leave
FCS
Family Crisis Leave Vacation
FCV
Family Crisis Leave Compensating Time Off
FCC
Family Crisis Leave Holiday
FCH

BALANCE CODE

CODE DESCRIPTION BALANCE CODE
Family Crisis Leave
FCL

FAMILY ACTIVITY LEAVE

The State recognizes that on occasion it may be necessary for employees to take time off to attend family or school-related activities in which the employee's child is participating, including, but not limited to, plays, graduations, field trips, organized sports events, recitals, Scouts, 4-H, Junior Achievement, and Grange.Subject to departmental operational needs and reasonable notice to the employee's supervisor, excluded employees and rank and file employees in bargaining units that have adopted these provisions, shall be permitted to use no fewer than 20 hours per calendar year of accumulated leave credits to attend family or school-related activities. In addition to requesting leave, the employee may also request to adjust their work hours or schedules, or request other flexible arrangements.Supervisors may require the employee to provide substantiation to support his/her request.

Note: Sick leave credits may not be used. Use of this leave shall not diminish the 40 hour leave entitlement provided under the Family School Partnership Act.REPORTING AND TRACKING FAMILY ACTIVITY LEAVE

The following Family Activity Leave attendance and balance codes have been developed to track Family Activity leave usage.

ATTENDANCE CODES

CODE DESCRIPTION
ATTENDANCE CODE
Family Activity Leave Annual Leave
FAA
Family Activity Leave Vacation
FAV
Family Activity Leave Compensating Time Off
FAC
Family Activity Leave Holiday
FAH

BALANCE CODE

CODE DESCRIPTION
BALANCE CODE
Family Activity Leave
FAL

TRANSFER OF LEAVE CREDITS FOR FAMILY MEMBERS

There are occasions in a family when one member becomes the primary caretaker who stays home to care for ill family members. Under such circumstances, the "caretaker" may exhaust his/her leave credits. This benefit provides that excluded employees and rank and file employees in bargaining units that have adopted these provisions will be permitted to transfer eligible leave credits between family members. Eligible leave credits may also be transferred to a family member who is on leave for a serious health condition, or for parental or adoption leaves.

ELIGIBILITY AND PROGRAM REQUIREMENTS

Under this program, employees do not have to suffer a financial hardship to be eligible to receive donated leave credits. Leave credits may be transferred between family members for the following conditions:

  • to care for a child, parent, spouse, domestic partner who has been certified with the Secretary of State's Office in accordance with AB 26 (Chapter 588, Statutes of 1999), brother, sister, or other person residing in the immediate household who is suffering from a serious health condition a medical leave for the employee's own serious health condition
  • parental leave to care for a newborn or adopted child

A serious health condition under this program is as defined by the Family and Medical Leave Act or the California Family Rights Act. Donated leave credits will be transferred in one-hour increments and used only when needed. Unused donated leave credits will be returned to the donor. Leave credits that may be transferred include:

  • Vacation Annual leave CTO Personal leave
  • Holiday credits

Please Note: Sick leave may not be transferred.

The receiving family member must have exhausted all leave credits. The donating family member must maintain a minimum balance of 80 hours of paid leave time.Transfer of leave credits may be interdepartmental in accordance with the policies of the receiving department. The department shall approve transfer of leave credits only after having verified that the leave is for an authorized reason. Use of donated credits may not normally exceed three (3) months. However, if approved by the department, the total leave credits received may be up to six (6) months.

PROCEDURES FOR REQUESTING TRANSFER OF LEAVE CREDITS FOR FAMILY MEMBERS

EMPLOYEE

In order to participate, an employee must submit a written request to the Division Chief, through the immediate supervisor, for authorization to receive donated leave credits. The employee's written request must include:

  • A physician's verification of the injury or illness. An anticipated date for return-to-work. Estimated date when all of the employee's leave credits will be exhausted.
  • Anticipated number of leave credits required.

SUPERVISOR

The supervisor will review the employee's request for completeness then forward to the Division Chief for approval or denial.

DIVISION CHIEF

The Division Chief will consult with the appropriate Human Resources Analyst to ensure all necessary documentation is received and complete. The Division Chief and Human Resources Analyst will review the documentation submitted and recommend either approval or denial to the Assistant Chief, Office of Human Resources, who has the ultimate authority to approve or deny the request.

ASSISTANT CHIEF, OFFICE OF HUMAN RESOURCES

Once the Assistant Chief, Office of Human Resources has approved or denied the request, the Human Resources Analyst will notify the requesting employee and the employee's Division Chief.

EXTENSION REQUEST

If the original time period authorized for receipt of donated leave credits is subsequently determined inadequate, a request for authorization to receive additional time, accompanied by a physician's verification that additional time off for the illness is necessary, may be submitted by the employee for consideration. The approval for receipt of additional leave credits, when added to the credits already received, shall not exceed the maximum time limits.