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19-023• • • • 9 RESOLUTION 19 -023 A RESOLUTION UPDATING THE SHOREWOOD EMPLOYEE PERSONNEL POLICY AS IT PERTAINS TO FAMILY MEDICAL LEAVE ACT (FMLA) WHEREAS, the City of Shorewood regularly reviews the Shorewood Personnel Policy for compliance with local, state and federal regulations and best practices; and WHEREAS, the latest review revealed a discrepancy in the personnel policy versus the legal requirements regarding hours worked required for employees to be eligible for FMLA leave from 1,040 hours to 1,250 hours in a 12 -month period; and WHEREAS, the circumstances under which FMLA leave is available has expanded since the last review /update of the policy and these circumstances have been included in the proposed update; and WHEREAS, FMLA provides four ways that the employer may calculate FMLA leave for its employees but if it does not specify a calculation method in its policy, employees may choose to use any of the four methods of their choice and to their advantage; and WHEREAS, Employers are required to use the same method of counting the leave year for all employees, and must notify employees of that method in their written FMLA materials; and WHEREAS, the Rolling Year Method was chosen as it is the best method that does not allow employees to stack their leave rights was added to the proposed policy to calculate FMLA leave for City of Shorewood employees; and WHEREAS, the personnel policy included examples of serious health conditions that would qualify for FMLA leave but did not reflect a complete and comprehensive list, therefore the list was removed and the reference to the Federal and State FMLA laws was added to aid staff in administering FMLA leave for employees that would cover all requirements of the law; and WHEREAS, the City of Shorewood has not had in the past an FMLA Policy and Procedure Guideline, this has been developed to help staff administer FMLA leave for employees according to Federal and State law. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Shorewood that the attached Personnel Policy Update as it Relates to FMLA and the FMLA Process for City of Shorewood Employees is adopted. ti . • . GRIAM 1 KOMI .. • • . • • ' • • ' • 1) Leave covered under FMLA must be designated as FMLA - protected and the City as the Employer must inform the Employee of the amount of leave that will be counted towards the employee's FMLA leave entitlement. Where an absence may trigger FMLA it is encouraged to obtain medical certification, although this is not required. 2) FMLA provides for 12 weeks of job-protected leave (unpaid) within a 12 -month period. Employees may be able to use paid leave while on FMLA. 3) FMLA ensures that Employers maintain Employee's health benefits for eligible employees as if they were working. 4) Employees are only allowed to use FMLA under certain circumstances. The Act requires the City as the Employer to provide leave to employees for certain family and medical reasons. Employees may need to provide proof for the condition or reason for requesting FMLA. Under FMLA, a serious medical condition is an illness, injury, impairment, or physical or mental condition that requires inpatient care (defined as an overnight stay in a hospital, hospice, or a medical care facility, any overnight stay is an automatic trigger for FMLA eligibility) or continuing treatment by a health care provider. It qualifies for you or for you to take care of a seriously ill family member. Medical Leave Examples are as follows: Continuing treatment by a health care provider that results in an incapacity (inability to work, attend school, or participate in other daily activities) of more than three consecutive calendar days with either two or more in- person visits to the health care provider within 30 days of the incapacity OR one in- person visit to the health care provider with a regimen of continuing treatment, such as prescription medication, physical therapy, etc. In either situation the visit to the health care provider must occur within seven days of the first date of incapacity. Examples include pneumonia, surgery or broken /fractured bones. • Chronic conditions that require periodic visits to a health care provider, continue over an extended period of time and may cause episodic rather than continuing periods of incapacity of more than three days. Examples of chronic conditions include asthma, diabetes and epilepsy. • Incapacity for pregnancy or prenatal care (any such incapacity is FMLA - protected regardless of the period of incapacity). For example, a pregnant employee may be unable to report to work due to severe morning sickness. • Permanent or long -term conditions such as Alzheimer's, severe stroke or terminal disease. • Conditions requiring multiple treatments and recovery from treatments, such as cancer, severe arthritis and kidney disease. • Treatment for substance abuse by a health care provider or by a provider of health care services on referral by a health care provider. Other Examples of FMLA Leave Include: ® Leave due to the birth, adoption or placement for foster care of a child does not require medical necessity or any period of incapacity. FMLA leave is available for bonding with the baby /child. ® Employees may take FMLA leave for themselves or to care for their parent, spouse, son or daughter whose medical condition meets the above criteria. The FMLA regulations specifically exclude the following conditions, unless inpatient care or complications develop that would meet the above criteria: cosmetic treatments, common colds, flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, and periodontal disease. 5) To qualify for FMLA leave, Employees must be employed for a minimum of 12 months and work at least 1,250 hours in that 12- months prior to the start of leave under FMLA. 6) Designating FMLA leave for an employee's extended leave avoids an unexcused absence and is best when employees have other forms of leave available them during this period. FMLA may run concurrently with PTO, short /long term disability and other forms of leave (vacation, sick pay, and comp time accrual). FMLA may run concurrently with Worker's Compensation if the illness or injury qualifies for FMLA. 7) If the City has sufficient information to designate the leave as FMLA leave immediately after receiving notice of the Employee's need for leave (you do not need medical certification in your hand to designate leave), the City may provide the Designation Notice (Form WH -382) to the Employee at that time. If the City at any other time afterward has reason to doubt the appropriateness or duration of the leave — the City may ask for medical certification at any time. Only designate FMLA leave without medical certification if you are certain that it qualifies as such. Incorrectly designating an FMLA claim can lead to a FMLA interference claim. Seek legal counsel if you are uncertain and do not have a medical certification. If there is any chance that an employee's medical condition might meet the definition of a serious health condition under the FMLA, it is important to issue the notification and certification forms to the employee and let the health care provider make the determination whether a serious health condition exists. 8) Provide Employee with Form WH -382: Designation Notice, 9) A fully completed WH -382 Form provides an easy method for the City to comply with written notification requirements to the employee (29 C F.R. §825.300(c) 825.301 and 825.301(c)). 10) During FMLA leave, the City will continue to maintain the Employee's health benefits as if the Employee were still working. 11) Calculating FMLA Leave: The City utilizes the "Rolling Year" Method to calculate the Employee's FMLA Leave. This is the only leave year calculation that does not allow employees to stack their leave rights. Here's how it works: When an employee takes FMLA leave, the leave year is measured backward from the employee's first day off. Each time the employee takes leave, any part of the 12 -week entitlement that was not used in the past 12 months is available to the employee. If they have not used any FMLA leave before, they would be entitled to 12 weeks off. But if, for example, they had already used six weeks of FMLA leave six months ago, they would only have six weeks to use. Six months later, they would be eligible for six more weeks of leave. "The City is required to use the same method of counting the leave year for all employees, and must notify employees of that method in their written FMLA materials. If the City does not have a policy that states how it calculates the leave year, employees may use whichever of the four methods is the most favorable to them. 12) Once FMLA leave is over, the Employee has the right to be reinstated to his /her position and the City will reinstate the employee to his /her position.