4-10 Medical Leave Policy - Section V: Leave of Absence Approval Process

Human Resources Disability Management 750

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Approved: Board of Supervisors
Authority: Human Resources
Resolution: 10-0852
Revised Date: December 14, 2010

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V. Leave of Absence Approval Process

The purpose of this section is to provide information to employees to successfully manage their medical leave. This section:

Explains how to begin the process of requesting a medical leave
Identifies the type of documentation to include in the request
Describes how to schedule or extend a medical leave, if necessary
Explains what is needed to return to work from a medical leave
Discusses requests for continuation of health benefits.

Employee Notice

To trigger FMLA/CFRA leave protections, employees must inform (verbally or in writing) their supervisor of the need for FMLA/CFRA qualifying leave and if known, the anticipated timing and duration of the leave. Employees may do this by either requesting FMLA/CFRA leave specifically, or explaining the reasons for leave so as to allow the department to determine that the leave is FMLA/CFRA-qualifying. For example, employees might explain that:
- a medical condition renders them unable to perform the essential functions of their job;
- they are pregnant and can no longer perform the essential functions of their jobs;
- they have been hospitalized overnight;
- they or a covered family member are under the continuing care of a health care provider;
- the leave is due to a qualifying exigency caused by a covered military member being on active duty or called to active duty status;
- or If the leave is for a family member, that the condition renders the family member unable to perform daily activities or that the family member is a covered servicemember with a serious injury or illness.
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Timing of Employee Notice

Calling in “sick,” without providing the reasons for the needed leave, will not be considered sufficient notice for FMLA/CFRA/CPDL leave under this policy. Employees must respond to the County’s lawful questions to determine if absences are potentially FMLA/CFRA/CPDL qualifying. Some absences for medical reasons require medical verification to be provided prior to returning to work. Please see the appropriate MOU for details.

If employees fail to explain the reasons for FMLA/CFRA qualified leave, the leave cannot be approved. When employees seek leave due to FMLA/CFRA qualifying reasons for which the County has previously provided FMLA/CFRA protected leave, they must specifically reference the qualifying reason for the leave or the need for FMLA/CFRA leave. NOTE: “Reason” does not mean “diagnosis”. Refer to section IV.A for FMLA/CFRA qualifying reasons.

When the need is foreseeable, employees must provide 30 calendar days advance notice of the need to take FMLA/CFRA leave. When 30 calendar days notice is not possible, or the approximate timing of the need for leave is not foreseeable, employees must provide the County notice of the need for leave as soon as possible under the facts and circumstances of the particular case

Employees who fail to give 30 calendar days’ notice for foreseeable leave without a reasonable explanation for the delay, or otherwise fail to satisfy FMLA/CFRA notice obligations, may have FMLA/CFRA leave delayed or denied.

The County may retroactively designate leave as FMLA/CFRA leave for a period of up o 30 calendar days with appropriate written notice to the employee. In all cases where a leave qualifies only for FMLA protection, the County and employee can mutually agree that leave be retroactively designated as FMLA leave.

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Required Documentation

The Request for Leave form is required to be completed for all leaves, along with a medical certification form. Medical certification forms are available for an Employee’s Serious Health Condition or a Family Member’s Serious Health Condition (see Appendices A, B and C), or an employee may submit their health care provider’s own form as long as it contains the required information. County agencies and special districts may have separate required forms; please contact your agency/special district human resources representative for more information.

For the medical certification for a covered servicemember, the Military FMLA Leave and the Certification of Qualifying Exigency for Family Military FMLA Leave forms will need to be completed to effectuate the leave (see Appendices D and E).

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Submit Medical Certifications Supporting Need for Leave (Non-Military FMLA Leave)

Employees are required to submit medical certifications (different certification is required for Military Family Leave, see section E below) supporting their need for FMLA/CFRA qualifying leave. As described below (see sections H, I & J), there generally are three types of FMLA/CFRA medical certifications: an initial certification, a recertification, and a return to work certification.

It is the employee’s responsibility to provide their Department with timely, complete and sufficient medical certifications. When the Department requests employees either verbally or in writing to provide FMLA/CFRA medical certifications, employees must provide the requested certifications within 15 calendar days after the Department’s request, unless it is not practical to do so despite an employee’s diligent good faith efforts. The Department shall inform employees if submitted medical certifications are incomplete or insufficient and provide employees at least 7 calendar days to cure deficiencies.

The failure to timely cure deficiencies or otherwise fail to submit requested medical certifications may result in the County not being able to approve FMLA/CFRA qualifying leave.

Medical certifications for both the employee’s own medical condition/disability and for family members’ medical condition/disability must include:
- The date, if known, on which the serious health condition commenced
- The probable duration of the condition
- An estimate of the amount of time the health care provider believes the employee needs to care for themselves, or the child, parent, spouse, or registered domestic partner
- A statement that, due to the serious health condition, the employee is unable to work at all or is unable to perform one or more of the essential functions of his or her job. When the leave is requested in order for the employee to care for a family member, a statement that the serious health condition of the family member warrants participation of the employee to provide care during a period of treatment and/or the need to provide direct care to the family member.
- Under no circumstance may the County inquire about or require information that identifies the serious health condition involved. The employee may identify the nature of the serious health condition, at the employee’s option.
With regard to medical certification for leave taken because of an employee’s own serious health condition or the serious health condition of a family member, if an employee does not submit complete and sufficient certification signed by his/her health care provider (i.e. the information is vague, ambiguous or non-responsive), the Human Resources Disability Management Unit may, after giving the employee 7 calendar days notice and an opportunity to cure any deficiencies, contact the health care provider for purposes of clarification and authentication of the medical certification (whether initial certification or recertification). In general the Human Resources Disability Management Unit will seek the medical clarification from the health care provider; however, this clarification can also be made through a health care provider, human resource professional, leave administrator or management official but not the employee’s direct supervisor.

If an employee chooses not to provide the employer with authorization allowing the employer to clarify the certification with the health care provider and if an employee does not otherwise clarify the certification, the County may deny the taking of FMLA leave if the certification is unclear.⁸

Employees requesting leave because of their own, or a covered relation’s, serious health condition, or to care for a covered servicemember, must supply medical certification supporting the need for such leave from their health care provider or, if applicable, the health care provider of their covered family or service member. When employees provide at least 30 calendar days advance notice of the need for a medical leave, they should submit the required medical certification with the request for medical leave. If the Department has reason to doubt initial medical certifications regarding an employee’s own serious health condition, it will consult with the Human Resources Disability Management unit, and may require employees to obtain a second opinion at the Department’s expense. If the opinions of the initial and second health care providers differ, the Department may, at its expense, require employees to obtain a third, final and binding certification from a health care provider designated or approved jointly by the Department and the employee. The Department will reimburse employees for any reasonable “out of pocket” travel expenses incurred to obtain second or third medical opinions.

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Submit Certifications Supporting Need for Military FMLA Leave

Upon request, the first time employees seek leave due to qualifying exigencies arising out of the active duty or call to active duty status of covered military members, the Department may require employees to provide: 1) a copy of the covered military member’s active duty orders or other documentation issued by the military indicating the covered military member is on active duty or call to active duty status and the dates of the covered military member’s active duty service; and 2) a certification from the employee setting forth information concerning the nature of the qualifying exigency for which leave is requested. Employees shall provide a copy of new active duty orders or other documentation issued by the military for leaves arising out of qualifying exigencies as a result of a different active duty or call to active duty status of the same or a different covered military member.

When leave is taken to care for a covered servicemember with a serious injury or illness, the Department will require employees to obtain certifications completed by an authorized health care provider of the covered servicemember. In addition, and in accordance with the FMLA regulations, the County may request that the certification submitted by employees set forth additional information provided by the employee and/or the covered servicemember confirming entitlement to such leave.

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Leave Approval Authority for Longer Duration Medical Leave Requests

Requests for medical leaves less than six months duration are submitted for consideration to the department head/designee. Requests for medical leaves of six months or longer in duration require approval by department heads/designee and the Human Resources Director. This differs from FMLA/CFRA/CPDL leaves, which are statutorily mandated and must be granted for all eligible employees. However, these leaves still require the appropriate documentation for approval.

As noted previously, appropriate documentation is required in order for leaves to be approved. Employees who are not on approved leave are considered absent without official leave, which could subject the employee to disciplinary action.

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Cooperating in the Scheduling of Leave

When planning medical treatment for the employee or family member or requesting to take leave on an intermittent or reduced schedule work basis, employees must consult with their supervisor or designee and make a reasonable effort to schedule treatment so as not to unduly disrupt the County’s operations. Employees must consult with their supervisor or designee prior to the scheduling of treatment in order to work out a treatment schedule which best suits the needs of both the Department and the employee, subject to the approval of the applicable health care provider. When employees take intermittent or reduced work schedule leave for foreseeable planned medical treatment for the employee or a family member, including a period of recovery from a serious health condition, or to care for a covered servicemember, the Department may temporarily transfer employees to alternative positions with equivalent pay and benefits for which the employees are qualified and which better accommodate recurring periods of leave.

Medical Recertification

Depending on the circumstances and duration of FMLA leave, the Department may require employees to provide recertification of medical conditions giving rise to the need for leave every thirty days. For chronic or long term conditions, the County may require certifications every six months. For leave that also qualifies under CFRA, recertification’s will be requested only when a prior medical certification has expired or is about to expire. The Department will notify employees if recertification is required and will give employees at least 15 calendar days to provide medical recertification. No medical recertification will be required for military caregiver leave.

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Return to Work Medical Certifications

Employee returning to work from a FMLA/CFRA leave that was taken because of their own serious health condition must provide their Department medical certification confirming (1) the employee is able return to work and (2) the employee’s ability to perform the essential functions of their position as outlined in the Essential Functions Worksheet (EFW) of their position, with or without reasonable accommodation.

The Department cannot approve job restoration until employees provide return to work certifications. The employee will remain on an approved medical leave until such return to work certification is received.

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Reporting Changes to Anticipated Return Date

If an employee’s anticipated return to work date changes and it becomes necessary for the employee to take more or less leave than originally anticipated, the employee must provide the Department with reasonable notice of the employee’s changed circumstances and new return to work date. If employees give the Department unequivocal notice of their intent not to return to work, the County’s obligation to maintain health benefits (subject to COBRA requirements) and to restore their positions will cease.

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Using Paid Leave for Unpaid FMLA/CFRA/CPDL Leave

If an employee requests FMLA/CFRA/CPDL leave because of their own serious health condition or their own disability due to pregnancy, childbirth or related medical conditions, they must first use accrued paid sick leave for otherwise unpaid family/medical leave, but they may elect to reserve a balance of 40 hours of accrued sick leave. Employees may choose to use accrued vacation or compensatory time off for unpaid FMLA/CPDL leave once the employees’ sick time is exhausted or reduced as described above, subject to department approval.

If an employee requests FMLA/CFRA (including Military FMLA) leave to care for a covered family member with a serious health condition, they must first use any accrued paid sick leave for otherwise unpaid family/medical leave up to 48 hours per occurrence of illness or injury, as allowed under their applicable MOU/Salary Resolution. However, employees may elect to reserve a balance of 40 hours of accrued sick leave. Once the employees’ sick time is exhausted or reduced as described above, employees must use accrued vacation or compensatory time off for unpaid family/medical leave. However, employees may elect to reserve a balance of 40 hours of any combination of accrued vacation or compensatory time off.

If an employee requests CFRA leave to bond with a newborn, adoptive or foster child, they must first use any accrued vacation or compensatory time off for unpaid family/medical leave. However, employees may elect to reserve a balance of 40 hours of any combination of accrued vacation or compensatory time off. Employees may not use accrued sick leave for the purposes of bonding with a newborn, adoptive, or foster child.

A leave of absence in connection with a workers’ compensation injury/illness or for which an employee receives short term or long term disability benefits shall run concurrently with FMLA/CFRA leave, except for those Safety personnel members on authorized on 4850 leave which does not run concurrently. Upon written request, the Department will allow employees to use accrued paid time off to supplement any paid workers’ compensation, short term disability or long term disability benefits consistent with the type of applicable leave and County policy.

The substitution of paid time off for unpaid family/medical leave time does not extend the length of FMLA leaves and the paid time off runs concurrently with the FMLA/CFRA/CPDL entitlement.

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Paying Employee’s Share of Health Insurance Premiums

During FMLA/CFRA leave, eligible employees are entitled to receive paid group health plan coverage while on leave for up to 480 hours at the same levels they had before they took leave. During this time, the County will continue paying the County portion of the health benefit premiums and the employee is responsible for paying the employee portion. Applicable MOU and Salary Resolution provisions also provide that the County continue to pay the County portion of insurance premiums for a period up to 13 pay periods of unpaid leave per illness or disability. The 13 pay period provision applies to the employee’s own serious health condition only, not to care for a family member.

If paid leave is used during family/medical leave, the County will deduct the employee’s shares of the health plan premium as a regular payroll deduction. If the family/medical leave is unpaid and the employee desires to continue health benefits while on medical leave, employees must pay their portion of the premium directly to the Auditor-Controller’s Office.

Please note the County’s obligation to maintain health care coverage ceases if an employee’s premium payment is late. Please see the applicable MOU/Salary Resolution for details. If benefit coverage lapses, the employee and/or the employee’s dependents may be eligible to enroll in COBRA benefits, Human Resources/Risk Management/Benefits will notify employees of their COBRA rights and eligibility as appropriate.

⁸ See 29 Code of Federal Regulations Section 825.307 (a) (c)