[Amended 8-8-2005]
Medical leave, when used, shall be charged to
an employee's medical leave account. Each department head shall review
medical leave records pertaining to his/her department on a monthly
basis and shall have authority to investigate cases where there is
reason to suspect that abuse is occurring.
Medical leave is designed by the Town to give
employees protection against loss of income during periods of illness
or injury as described above. Willful abuse of the medical leave privilege
shall be cause for dismissal or other disciplinary action. After an
absence of three or more consecutive workdays, the employee, if requested,
shall furnish his/her department head a statement from the employee's
attending physician.
[Amended 9-13-2016]
Employees who are eligible for workers' compensation for a service-connected
injury may elect to take earned sick leave in addition to workers'
compensation to the extent that it provides no more than full regular
pay, and to the extent of earned sick leave credit. Employees with
accumulated sick leave shall continue to receive weekly paychecks
to offset the workers' compensation wages, not to exceed 100% of regular
weekly wages.
Upon retirement from service from the Town of
South Berwick or upon death, an employee or his/her estate will be
compensated for 25% of his/her medical leave balance at a rate equal
to his/her rate at retirement or death.
[Added 12-8-2015]
(includes qualifying exigency and military caregiver leave)
The Town of South Berwick will provide family and medical leave
to its eligible employees. The Town posts the mandatory FMLA notice
and upon hire provides all new hires with notices required by the
United States Department of Labor (DOL) on employee rights and responsibilities
under the Family and Medical Leave Act posted in the Town Hall on
the second floor and in each of the Town facilities.
The function of this policy is to provide employees with a general
description of their FMLA rights. In the event of any conflict between
this policy and the applicable law, employees will be afforded all
rights required by law.
A. General provisions. Under this policy, the Town of South Berwick
(hereinafter referred to as "the Town") will grant up to 12 weeks
(or up to 26 weeks of military caregiver leave to care for a covered
service member with a serious injury or illness) during a twelve-month
period to eligible employees. The leave may be paid, unpaid or a combination
of paid and unpaid leave, depending on the circumstances of the leave
and as specified in this policy.
B. Eligibility. To qualify to take family or medical leave under this
policy, the employee must meet all of the following conditions:
(1)
The employee must have worked for the Town for 12 months or
52 weeks. The 12 months or 52 weeks need not have been consecutive.
Separate periods of employment will be counted, provided that the
break in service does not exceed seven years. Separate periods of
employment will be counted if the break in service exceeds seven years
due to National Guard or Reserve military service obligations or when
there is a written agreement, including a collective bargaining agreement,
stating the employer's intention to rehire the employee after the
service break. For eligibility purposes, an employee will be considered
to have been employed for an entire week even if the employee was
on the payroll for only part of a week of if the employee is on leave
during the week.
(2)
The employee must have worked at least 1,250 hours during the
twelve-month period immediately preceding the commencement of the
leave. The 1,250 hours do not include time spent on paid or unpaid
leave. Consequently, these hours of leave should not be counted in
determining the 1,250 hours eligibility test for an employee under
FMLA.
(3)
The employee must work in a worksite where 50 or more employees
are employed by the company within 75 miles of that office or worksite.
The distance is to be calculated by using available transportation
by the most direct route.
(4)
An employee who does not qualify for the federal FMLA leave
may qualify for leave under the Maine Family Medical Leave Law. Under
Maine state law, an employee who has worked for the Town for 12 consecutive
months and meets the other qualifying criteria is eligible for up
to 10 work weeks of family medical leave during any two-year period.
C. Type of leave covered. To qualify as FMLA leave under this policy,
the employee must be taking leave for one of the reasons listed below:
(1)
The birth of a child and in order to care for that child.
(2)
The placement of a child for adoption or foster care and to
care for the newly placed child.
(3)
To care for a spouse, child or parent with a serious health
condition (described below).
(4)
The serious health condition (described below) of the employee.
(a)
An employee may take leave because of a serious health condition
that makes the employee unable to perform the functions of the employee's
position.
(b)
A "serious health condition" is defined as a condition that
requires inpatient care at a hospital, hospice or residential medical
care facility, including any period of incapacity or any subsequent
treatment in connection with such inpatient care or a condition that
requires continuing care by a licensed health care provider.
(c)
This policy covers illnesses of a serious and long-term nature,
resulting in recurring or lengthy absences. Generally, a chronic or
long-term health condition that would result in a period of three
consecutive days of incapacity with the first visit to the health
care provider within seven days of the onset of the incapacity and
a second visit within 30 days of the incapacity would be considered
a serious health condition. For chronic conditions requiring periodic
health care visits for treatment, such visits must take place at least
twice a year.
(d)
If an employee takes paid sick leave for a condition that progresses
into a serious health condition and the employee requests unpaid leave
as provided under this policy, the company may designate all or some
portion of the related leave taken as leave under this policy, to
the extent that the earlier leave meets the necessary qualifications.
(5)
Qualifying exigency leave for families of members of the National
Guard or Reserves or of a regular component of the Armed Forces when
the covered military member is on covered active duty or called to
covered active duty.
(a)
An employee whose spouse, son, daughter or parent either has
been notified of an impending call or order to covered active military
duty or who is already on covered active duty may take up to 12 weeks
of leave for reasons related to or affected by the family member's
call-up or service. The qualifying exigency must be one of the following:
[2]
Military events and activities;
[3]
Child care and school activities;
[4]
Financial and legal arrangements;
[7]
Post-deployment activities; and
[8]
Additional activities that arise out of active duty, provided
that the employer and the employee agree, including agreement on timing
and duration of leave.
(b)
Eligible employees are entitled to FMLA leave to care for a
current member of the Armed Forces, including a member of the National
Guard or Reserves, or a member of the Armed Forces, the National Guard
or Reserves who is on the temporary disability retired list, who has
a serious injury or illness incurred in the line of duty on active
duty 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. Eligible employees may not take
leave under this provision to care for former members of the Armed
Forces, former members of the National Guard and Reserves, and members
on the permanent disability retired list.
(c)
In order to care for a covered service member, an eligible employee
must be the spouse, son, daughter, parent, or next of kin of a covered
service member.
[1]
A "son or daughter of a covered service member" means the covered
service member's biological, adopted, or foster child, stepchild,
legal ward, or a child for whom the covered service member stood in
loco parentis and who is of any age.
[2]
A "parent of a covered service member" means a covered service
member's biological, adoptive, step or foster father or mother, or
any other individual who stood in loco parentis to the covered service
member. This term does not include parents "in law."
[3]
Under the FMLA, a "spouse" means a husband or wife, including
those in same-sex marriages, which were made legal in all 50 United
States as of June 26, 2015.
[4]
The "next of kin of a covered service member" is the nearest
blood relative, other than the covered service member's spouse, parent,
son or daughter, in the following order of priority: blood relatives
who have been granted legal custody of the service member by court
decree or statutory provisions, brothers and sisters, grandparents,
aunts and uncles, and first cousins, 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. When no such designation is made, and there are multiple
family members with the same level of relationship to the covered
service member, all such family members shall be considered the covered
service member's next of kin and may take FMLA leave to provide care
to the covered service member, either consecutively or simultaneously.
When such designation has been made, the designated individual shall
be deemed to be the covered service member's only next of kin. For
example, if a covered service member has three siblings and has not
designated a blood relative to provide care, all three siblings would
be considered the covered service member's next of kin. Alternatively,
where a covered service member has a sibling(s) and designates a cousin
as his or her next of kin for FMLA purposes, then only the designated
cousin is eligible as the covered service member's next of kin. An
employer is permitted to require an employee to provide confirmation
of covered family relationship to the covered service member pursuant
to 29 CFR 825.122(k).
(d)
"Covered active duty" means:
[1]
"Covered active duty" for members of a regular component of
the Armed Forces means duty during deployment of the member with the
Armed Forces to a foreign country.
[2]
"Covered active duty or call to covered active duty status"
in the case of a member of the Reserve components of the Armed Forces
means duty during the deployment of the member with the Armed Forces
to a foreign country under a federal call or order to active duty
in support of a contingency operation, in accordance with 29 CFR 825.102.
(e)
The leave may commence as soon as the individual receives the
call-up notice. ("Son or daughter" for this type of FMLA leave is
defined the same as for child for other types of FMLA leave except
that the person does not have to be a minor.) This type of leave would
be counted toward the employee's twelve-week maximum of FMLA leave
in a twelve-month period.
(6)
Military caregiver leave (also known as "covered service member
leave") to care for an injured or ill service member or veteran.
(a)
An employee whose son, daughter, parent or next of kin is a
covered service member may take up to 26 weeks in a single twelve-month
period to take care of leave to care for that service member.
(b)
"Next of kin" is defined as the closest blood relative of the
injured or recovering service member.
(c)
The term "covered service member" means:
[1]
A member of the Armed Forces (including a member of the National
Guard or Reserves) who is undergoing medical treatment, recuperation,
or therapy, is otherwise in outpatient status, or is otherwise on
the temporary disability retired list, for a serious injury or illness;
or
[2]
A veteran who is undergoing medical treatment, recuperation,
or therapy, for a serious injury or illness and who was a member of
the Armed Forces (including a member of the National Guard or Reserves)
at any time during the period of five years preceding the date on
which the veteran undergoes that medical treatment, recuperation,
or therapy.
(d)
The term "serious injury or illness" means:
[1]
In the case of a member of the Armed Forces (including a member
of the National Guard or Reserves), an injury or illness that was
incurred by the member in the 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 the line of duty on active duty in
the Armed Forces) and that may render the member medically unfit to
perform the duties of the member's office, grade, rank, or rating;
and
[2]
In the case of a veteran who was a member of the Armed Forces
(including a member of the National Guard or Reserves) at any time
during a period when the person was a covered service member, a qualifying
(as defined by the Secretary of Labor) injury or illness incurred
by a covered service member in the line of duty on active duty that
may render the service member medically unfit to perform the duties
of his or her office, grade, rank or rating.
(e)
"Outpatient status," with respect to a covered service member,
means the status of a member of the Armed Forces assigned to either
a military treatment facility as an outpatient; or a unit established
for the purpose of providing command and control of members of the
Armed Forces receiving medical care as outpatients.
D. Amount of leave.
(1)
An eligible employee can take up to 12 weeks for the FMLA circumstances in Subsection
C(1) through
(5) above under this policy during any twelve-month period. The Town will measure the twelve-month period as a rolling twelve-month period measured backward from the date an employee uses any leave under this policy. Each time an employee takes leave, the Town will compute the amount of leave the employee has taken under this policy in the last 12 months and subtract it from the 12 weeks of available leave, and the balance remaining is the amount the employee is entitled to take at that time.
(2)
An eligible employee can take up to 26 weeks for the FMLA circumstance in Subsection
C(6) above (military caregiver leave) during a single twelve-month period. For this military caregiver leave, the company will measure the twelve-month period as a rolling twelve-month period measured forward. FMLA leave already taken for other FMLA circumstances will be deducted from the total of 26 weeks available.
E. Employee status and benefits during leave.
(1)
While an employee is on leave, the Town will continue the employee's
health benefits during the leave period at the same level and under
the same conditions as if the employee had continued to work.
(2)
If the employee chooses not to return to work for reasons other
than a continued serious health condition of the employee or the employee's
family member or a circumstance beyond the employee's control, the
Town will require the employee to reimburse the Town the amount it
paid for the employee's health insurance premium during the leave
period.
(3)
Under current Town policy, the employee pays a portion of the
health care premium. While on paid leave, the Town will continue to
make payroll deductions to collect the employee's share of the premium.
While on unpaid leave, the employee must continue to make this payment,
either in person or by mail. The payment must be received in the Finance
Office by the first and the 15th of each month. If the payment is
more than 30 days late, the employee's health care coverage may be
dropped for the duration of the leave.
(4)
The Town will provide 15 days' notification prior to the employee's
loss of coverage.
(5)
If the employee contributes to a life insurance, disability
plan, dental coverage or flexible spending account, the Town will
continue making payroll deductions while the employee is on paid leave.
While the employee is on unpaid leave, the employee may request continuation
of such benefits and pay his or her portion of the premiums, or the
Town may elect to maintain such benefits during the leave and pay
the employee's share of the premium payments. If the employee does
not continue these payments, however, the Town may discontinue coverage
during the leave. If the Town maintains coverage, the Town may recover
the costs incurred for paying the employee's share of any premiums,
whether or not the employee returns to work.
F. Employee status after leave. An employee who takes leave under this
policy may be asked to provide a fitness for duty (FFD) clearance
from the health care provider. This requirement will be included in
the Town's response to the FMLA request. Generally, an employee who
takes FMLA leave will be able to return to the same position or a
position with equivalent status, pay, benefits, and other employment
terms. The position will be the same or one which is virtually identical
in terms of pay, benefits and working conditions. The Town may choose
to exempt certain key employees from this requirement and not return
to the same or similar position.
G. Use of paid and unpaid leave.
(1)
An employee who is taking FMLA leave because of the employee's
own serious health condition or the serious health condition of a
family member must use all paid time off (PTO), paid vacation, personal
or sick leave prior to being eligible for unpaid leave. Sick leave
may be run concurrently with FMLA leave if the reason for the FMLA
leave is covered by the established sick leave policy.
(2)
Disability leave for the birth of the child and for an employee's
serious health condition, including workers' compensation leave (to
the extent that it qualifies), will be designated as FMLA leave and
will run concurrently with FMLA. The employee will be required to
substitute accrued (or earned) paid leave as appropriate before being
eligible for unpaid leave for the duration of twelve-week entitlement.
An employee who is taking leave for the adoption or foster care of
a child must use all paid time off (PTO), paid vacation, personal
or family leave prior to being eligible for unpaid leave.
(3)
An employee who is using military FMLA leave for qualifying
exigency must use all paid time off (PTO), paid vacation and personal
leave prior to being eligible for unpaid leave. An employee using
FMLA military caregiver leave must also use all paid time off (PTO),
paid vacation, personal leave or sick leave (as long as the reason
for the absence is covered by the company's sick leave policy) prior
to being eligible for unpaid leave.
H. Intermittent leave or a reduced work schedule.
(1)
The employee may take FMLA leave in 12 consecutive weeks, may
use the leave intermittently (take a day periodically when needed
over the year) or, under certain circumstances, may use the leave
to reduce the workweek or workday, resulting in a reduced-hour schedule.
In all cases, the leave may not exceed a total of 12 work weeks (or
26 work weeks to care for an injured or ill service member over a
twelve-month period).
(2)
The Town may temporarily transfer an employee to an available
alternative position with equivalent pay and benefits if the alternative
position would better accommodate the intermittent or reduced schedule,
in instances when leave for the employee or the employee's family
member is foreseeable and for planned medical treatment, including
recovery from a serious health condition or to care for a child after
birth, or placement for adoption or foster care.
(3)
For the birth, adoption or foster care of a child, the Town
and the employee must mutually agree to the schedule before the employee
may take the leave intermittently or work a reduced-hour schedule.
Leave for birth, adoption, or foster care of a child must be taken
within one year of the birth or the placement of the child.
(4)
If the employee is taking leave for a serious health condition
or because of the serious health condition of a family member, the
employee should try to reach agreement with the Town before taking
intermittent leave or working a reduced-hour schedule. If this is
not possible, then the employee must prove that the use of the leave
is medically necessary.
I. Certification for the employee's serious health condition.
(1)
The Town will require certification for the employee's serious
health condition. The employee must respond to such a request within
15 days of the request or provide a reasonable explanation for the
delay. Failure to provide certification may result in a denial of
continuation of leave. Medical certification will be provided using
the DOL Certification of Health Care Provider for Employee's Serious
Health Condition.
(2)
The Town may directly contact the employee's health care provider
for verification or clarification purposes using a health care professional,
an HR professional, leave administrator or management official. The
Town will not use the employee's direct supervisor for this contact.
Before the Town makes this direct contact with the health care provider,
the employee will be given an opportunity to resolve any deficiencies
in the medical certification. In compliance with the HIPAA Medical
Privacy Rules, the Town will obtain the employee's permission for
clarification of individually identifiable health information.
(3)
The Town has the right to ask for a second opinion if it has
the reason to doubt the certification. The Town will pay for the employee
to get a certification from a second doctor, which the Town will select.
The Town may deny FMLA leave to an employee who refuses to release
relevant medical records to the health care provider designated to
provide a second or third opinion. If necessary to resolve a conflict
between the original certification and the second opinion, the Town
will require the opinion of a third doctor. The Town and the employee
will mutually select the third doctor, and the Town will pay for the
opinion. This third opinion will be considered final. The employee
will be provisionally entitled to leave and benefits under the FMLA
pending the second and/or third opinion.
J. Certification for the family member's serious health condition.
(1)
The Town will require certification for the family member's
serious health condition. The employee must respond to such a request
within 15 days of the request or provide a reasonable explanation
for the delay. Failure to provide certification may result in a denial
of continuation of leave. Medical certification will be provided using
the DOL Certification of Health Care Provider for Family Member's
Serious Health Condition.
(2)
The Town may directly contact the employee's family member's
health care provider for verification or clarification purposes using
a health care professional, an HR professional, leave administrator
or management official. The Town will not use the employee's direct
supervisor for this contact. Before the Town makes this direct contact
with the health care provider, the employee will be given an opportunity
to resolve any deficiencies in the medical certification. In compliance
with HIPAA Medical Privacy Rules, the Town will obtain the employee's
family member's permission for clarification of individually identifiable
health information.
(3)
The Town has the right to ask for a second opinion if it has
a reason to doubt the certification. The Town will pay for the employee's
family member to get a certification from a second doctor, which the
Town will select. The Town may deny FMLA leave to an employee whose
family member refuses to release relevant medical records to the health
care provider designated to provide a second or third opinion. If
necessary to resolve a conflict between the original certification
and the second opinion, the Town will require the opinion of a third
doctor. The Town and the employee will mutually select the third doctor,
and the Town will pay for the opinion. This third opinion will be
considered final. The employee will be provisionally entitled to leave
and benefits under the FMLA pending the second and/or third opinion.
K. Certification of qualifying exigency for military family leave. The
Town will require certification of the qualifying exigency for military
family leave. The employee must respond to such a request within 15
days of the request or provide a reasonable explanation for the delay.
Failure to provide certification may result in a denial of continuation
of leave. This certification will be provided using the DOL Certification
of Qualifying Exigency for Military Family Leave.
L. Certification for serious injury or illness of covered service member
for military family leave. The Town will require certification for
the serious injury or illness of the covered service member. The employee
must respond to such a request within 15 days of the request or provide
a reasonable explanation for the delay. Failure to provide certification
may result in a denial of continuation of leave. This certification
will be provided using the DOL Certification for Serious Injury or
Illness of a Covered Service Member.
M. Recertification. The Town may request recertification for the serious
health condition of the employee or the employee's family member no
more frequently than every 30 days unless circumstances have changed
significantly, or if the Town receives information casting doubt on
the reason given for the absence, or if the employee seeks an extension
of his or her leave. Otherwise, the Town may request recertification
for the serious health condition of the employee or the employee's
family member every six months in connection with an FMLA absence.
The Town may provide the employee's health care provider with the
employee's attendance records and ask whether need for leave is consistent
with the employee's serious health condition.
N. Procedure for requesting FMLA leave.
(1)
All employees requesting FMLA leave must provide verbal or written
notice of the need for the leave to the HR Manager. Within five business
days after the employee has provided this notice, the HR Manager will
complete and provide the employee with the DOL Notice of Eligibility
and Rights.
(2)
When the need for the leave is foreseeable, the employee must
provide the employer with at least 30 days' notice. When an employee
becomes aware of a need for FMLA leave less than 30 days in advance,
the employee must provide notice of the need for the leave either
the same day or the next business day. When the need for FMLA leave
is not foreseeable, the employee must comply with the company's usual
and customary notice and procedural requirements for requesting leave,
absent unusual circumstances.
O. Designation of FMLA leave. Within five business days after the employee
has submitted the appropriate certification form, the HR Manager will
complete and provide the employee with a written response to the employee's
request for FMLA using the DOL Designation Notice.
P. Intent to return to work from FMLA leave.
(1)
On a basis that does not discriminate against employees on FMLA
leave, the Town may require an employee on FMLA leave to report periodically
on the employee's status and intent to return to work.
(2)
If the employee's FMLA leave is exhausted and the release-to-work
date is reasonably close, the employee may request permission from
the Town Manager to extend the medical leave of absence until the
anticipated return-to-work date. These requests are on a per-case
basis.