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478-1-.23 Family and Medical Leave
(1) Introduction.
All agencies shall comply with the Family and Medical Leave Act of 1993 ("FMLA") and all applicable revisions. The policies and procedures described in this Rule apply to all agencies of the executive branch, excluding authorities, public corporations, and the Board of Regents of the University System of Georgia.
(a) For the purposes of this policy, the following terms and definitions apply in addition to those in Rule 478-1-02 (Terms and Definitions):
1. "Family member" means the employee's spouse, biological child, adopted or foster child, stepchild, legal ward, or a child of an employee standing in loco parentis, who is either under age 18, or age 18 or older and incapable of self-care because of mental or physical disability, a biological parent or an individual who stands or stood in loco parentis to an employee when the employee was a child under age 18. ("In loco parentis" means having day-to-day responsibilities to care for and financially support a child. "Parent" does not include parents-in-law.)
2. "Key employees" means salaried employees who are among the highest-paid 10% of the agency's total workforce.
(2) Family and Medical Leave.
The State of Georgia prohibits any interference with, restraint of, or denial of an employee's rights provided by FMLA. An employee who believes that their rights have been violated under this policy may file a complaint with US Department of Labor. Retaliating against anyone because a complaint was filed regarding an alleged violation of the Family and Medical Leave policy is strictly prohibited. An employee who believes that he/she has been retaliated against for making a complaint must notify US Department of Labor as soon as possible. Each agency will act promptly to assure compliance with its anti-retaliation policy.
(a). Nothing in this Rule or the FMLA should be construed as limiting an agency's right to discipline, terminate, or otherwise manage its employees as it deems appropriate. However, the use of family and medical leave cannot be considered as a negative factor in any employment decision.
(b). An employee on paid Family and Medical Leave is eligible accrue paid leave in accordance with other sections of this policy.
1. Employee Eligibility. Agencies are prohibited from extending Family and Medical Leave Benefits to ineligible employees.
(i). Eligible employees are allowed up to 12 weeks of unpaid family/medical leave during any rolling 12-month period, measured backward from the first day of each approved family/medical leave. In accordance with the Family and Medical Leave Act, under certain circumstances
(ii). To be eligible, an employee must:
(I) Have been employed by the State of Georgia for a total of at least 12 months (which do not have to be consecutive; a break in service is permitted); and
(II) Has worked at least 1,250 hours as a state employee in the 12 months immediately preceding a leave. Hours worked do not include time spent on paid or unpaid leave.
(c). Time spent by reservists on active duty in the U.S. Armed Forces should be included in calculating hours worked to determine eligibility for Family and Medical Leave.
2. Section 23.201.1: Military Family Leave. An eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered service member who is recovering from a serious illness or injury sustained in the line of duty on active duty is entitled to up to 26 weeks of leave in a single 12-month period to care for the service member.
(i). Eligible employees are entitled to up to 12 weeks of leave because of "any qualifying exigency" arising out of the fact that the spouse, son, daughter, or parent of the employee is on active duty, or has been notified of an impending call to active duty status, in support of a contingency operation.
3. Substitution of Paid Benefits for Unpaid FMLA Leave. An agency may, by written policy, require an employee to use available annual, sick, personal leave, and/or State compensatory time when appropriate. When not required by written agency policy, an employee will be allowed to substitute available annual leave, sick leave (as appropriate), personal leave, or available State Compensatory Time for unpaid FMLA leave. In either case, any paid leave used by the employee will run concurrently with Family and Medical Leave. Family Medical Leave cannot run concurrently with FLSA compensatory time. If State compensatory time is requested or required by policy to be taken, it must be used prior to the use of annual leave. Any remaining Family and Medical Leave taken after all paid leave and compensatory time have been exhausted must be taken on an unpaid basis. An employee's total Family and Medical Leave, paid or unpaid, may not exceed 12 weeks in the rolling 12-month period.
4. Notice and Certification Requirements. When the need for Family and Medical Leave is foreseeable, an employee must provide the agency with at least 30 calendar days advance written notice of the requested leave. Otherwise, the employee must provide the maximum notice practicable, generally within one to two business days of the employee's knowledge of the probable need for leave. The notice of leave should be made in writing by completing a "Family and Medical Leave Request Form", including the reason for the leave and the amount of time required. Employees must attempt to schedule medical treatments so as not to unduly disrupt the agency's operations whenever possible.
(i). If an employee takes leave for the adoption, or foster placement of a child and to care for the child, the employee must have the "Certification of Adoption or Foster Care" completed by the official authorizing the adoption or foster care within 15 calendar days of the leave request, unless this is impossible despite diligent efforts.
(ii). If an employee takes leave for his/her own or a family member's serious health condition, the employee must have the treating health care provider complete the "Certification of Serious Health Condition" form within 15 calendar days of the leave request, unless this is impossible despite diligent efforts. The certification must state the date on which the condition started, the probable duration of the condition, and the appropriate medical facts regarding the condition. In some cases, the agency may require a second or third opinion from another health care provider at the agency's expense. The agency may require periodic recertification of a serious health condition during a leave, and periodic reports during the leave regarding an employee's status and intent to return to work. In addition, the agency may require an employee to provide certification of the ability to return to work at the end of a leave.
5. Response to Request for Family and Medical Leave. Each agency is responsible for designating leave, whether paid or unpaid, as qualifying for FMLA. Once a request for Family and Medical leave has been made, the agency will provide a written response to the employee within 2 business days, or as soon as practicable. The written response will indicate whether the request is denied or approved, or whether additional information is needed. If the request is denied, a notice of denial should be provided indicating the reason for denial.
(i). If the request is approved, a notice of approval should be provided explaining:
(I) That the leave will count against the employee's annual Family and Medical Leave entitlement;
(II) Any requirements for furnishing medical certification and the consequences for failing to do so;
(III) The employee's right to substitute paid leave and any conditions related to the substitution;
(IV) Any requirements for making premium payments to maintain health benefits, the arrangements for making such payments, and the consequences for failing to do so;
(V)Any requirements for presenting fitness for duty certificates prior to returning to work; and The employee's right to restoration to the same or equivalent job upon return from leave.
(ii). If information provided is insufficient, the agency may conditionally approve the Family and Medical Leave conditioned on receiving appropriate documentation.
(iii). Agencies are responsible for determining whether any extended leave requested by an employee is for an FMLA-qualifying reason and may ask such questions as may be necessary to make the determination. If the leave is for a FMLA-qualifying reason, the agency has two days from becoming aware to designate the leave as Family and Medical Leave.
6. Return to Work.
All employees returning to work from a Family and Medical Leave are required to submit documentation, completed by the health care provider, which certifies that the employee is capable of performing the essential functions of their position, with or without reasonable accommodation. Employees who do not provide a completed documentation will not be allowed to return to work.
