Current through Rules and Regulations filed through March 20, 2024
(1)
Introduction. Family and
Medical Leave is a benefit and entitlement intended to assist eligible
employees with balancing work/life demands by providing job-protected time off
from work for qualifying reasons. State agencies shall administer Family and
Medical Leave in accordance with the federal Family and Medical Leave Act
(FMLA) and related regulations. Any updates to applicable federal law or
regulation take precedence over provisions within this Rule that are found to
be in conflict.
(a) State employers will not
interfere with, restrain, or deny the rights provided to an employee by the
FMLA, but shall be entitled to require appropriate medical certification and/or
validation of family member status to determine eligibility for Family and
Medical Leave.
(b) State employers
will not discriminate or retaliate against an individual for exercising any
FMLA right.
(c) Nothing in this
Rule or the FMLA shall 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.
(2)
Applicability. The policies
and procedures within 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.
(3)
Definitions. For the purposes of this Rule, the following terms
and definitions apply in addition to those in Rule
478-1-.02 (Terms and Definitions).
(a) "Child" means a biological, 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. This age limit does not
apply for purposes of military Family and Medical Leave (i.e., leave for a
qualifying exigency or to care for a covered service member.)
(b) "Covered active duty" means deployment to
a foreign country as a member of the regular Armed Forces or as a result of a
federal call to active National Guard or Reservist military duty in support of
a contingency operation (typically during a war or declared national
emergency).
(c) "Healthcare
provider" means a doctor of medicine or osteopathy, podiatrist, dentist,
clinical psychologist, optometrist, chiropractor (limited to manual
manipulation of the spine to correct a subluxation shown on X-ray), nurse
practitioner, nurse midwife, clinical social worker, physician assistant,
Christian Science Practitioner listed with the First Church of Christ,
Scientist, in Boston, Massachusetts, and other provider to whom the State
Health Benefit Plan will pay benefits.
(d) "In loco parentis" means
having day-to-day responsibilities to care for and financially support a child.
A biological or legal relationship is not necessary.
(f) "Key employee" means a salaried employee
among the highest-paid 10% of the agency's total workforce.
(g) "Parent" means a biological, adoptive,
step, or foster father or mother or any other individual who stands or stood in
loco parentis to an employee when the employee was a child. "Parent" does not
include a parent-in-law.
(h)
"Qualifying exigency" means an activity that requires leave because the
employee's spouse, child, or parent is a military member on covered active duty
or on notice of upcoming covered active duty.
(i) "Reduced Schedule Leave" means using
leave to reduce the number of hours worked each workday or each
workweek.
(j) "Rolling 12-month
Period" or "Rolling Year" is the 12-month period measured backward from the
date an employee uses any Family and Medical Leave. Under the "rolling year,"
each time an employee takes Family and Medical Leave, the remaining leave
entitlement would be the balance of the 12 weeks which has not been used during
the immediately preceding 12 months.
(k) "Serious health condition" means an
illness, injury, impairment, or physical or mental condition that involves
either:
1. An overnight stay in a hospital,
hospice, or residential medical facility and any period of incapacity or
treatment related to the reason for inpatient care; or,
2. Continuing treatment by a health care
provider that involves at least one of the following:
(i) Incapacity of more than three consecutive
days, plus treatment that includes at least two medical examinations or one
examination followed by treatment under the healthcare provider's
supervision;
(ii) Prenatal care or
incapacity because of pregnancy;
(iii) Periodic treatment or incapacity for a
chronic serious health condition that:
(I)
Requires periodic visits (at least twice per year) to a health care provider
for treatment,
(II) Continues over
an extended period of time, and
(III) May cause episodic rather than
continuing periods of incapacity;
(iv) Permanent or long-term condition for
which treatment may not be effective; or,
(v) Absence to receive multiple treatments
for:
(I) Restorative surgery following an
accident or other injury, or
(II)
For a condition that, if left untreated, would likely result in incapacity of
more than three consecutive days (i.e., chemotherapy, dialysis,
etc.).
(l) "Spouse" means a husband or wife in a
lawful marriage.
(m) "Workweek"
means the number of hours an employee typically works during a seven day
period. Most full-time employees have a 40-hour workweek. Appropriate pro rata
adjustment is made for part-time employees. Employees required to work
overtime, may have a workweek of more than 40 hours.
(4)
Employee Eligibility.
(a) For purposes of determining an employee's
eligibility for Family and Medical Leave, the state is considered one
employer.
(b) To be eligible, an
employee must meet all of the following four (4) criteria as of the date the
Family and Medical Leave is to start.
1. Have
been employed by the State of Georgia for a total of at least 12 months,
whether consecutive or non-consecutive, within the past seven (7) years. (See
Section (4)(e), below).
2. Have
worked at least 1,250 hours for the State of Georgia in the 12 months
immediately preceding the start date of Family and Medical Leave. Holidays and
time spent on paid or unpaid leave or suspension do not count toward the 1,250
hours worked. An exception exists for military leave as outlined in (4)(d),
below.
3. Have a qualifying reason
for the absence (as outlined in section (5) of this Rule).
4. Have not already exhausted the available
Family and Medical Leave entitlement for the 12-month period.
(c) Time worked for the State of
Georgia in any employment capacity will count toward meeting the eligibility
requirements in (4)(b)1 and (4)(b)2, above. Such employment includes:
full-time, part-time, temporary, seasonal, and sporadic employment, whether
paid on a salaried or hourly basis, and previous employment with a temporary
services agency on assignment with the state.
(d) Absences covered by the Uniformed
Services Employment and Reemployment Rights Act (USERRA) will count toward
meeting the eligibility requirements in (4)(b)1 and (4)(b)2, above.
(e) State employment that occurred before a
break in service of seven (7) years or more will not contribute toward meeting
the 12 months of employment eligibility requirement in (4)(b)1, above, unless
the break was for the purpose of fulfilling service covered by
USERRA.
(f) Agencies are not to
extend Family and Medical Leave benefits to ineligible employees.
(5)
FMLA Qualifying Reasons
& Leave Entitlement.
(a) An
eligible employee is entitled to take up to 12 workweeks of Family and Medical
Leave during a rolling 12-month period, measured backward from the date an
employee uses any Family and Medical Leave, for any one or combination of the
following reasons.
1. Birth of the employee's
child, including care for the employee's child during the first 12 months after
birth;
2. Placement of a child with
the employee for adoption or foster care, including care for the newly placed
child during the first 12 months after placement and any preliminary
proceedings required prior to placement;
3. Care for the employee's spouse, child, or
parent (not including in-laws) who has a serious health condition;
4. The employee's own serious health
condition that makes him or her unable to perform one or more of the essential
functions of the job; and,
5. Any
qualifying exigency arising because the employee's spouse, child, or parent
(not including in-laws) is a military member on covered active duty or on
notice of upcoming covered active duty. "Covered active duty" means deployment
to a foreign country as a member of the regular Armed Forces or as a result of
a federal call to active National Guard or Reservist military duty in support
of a contingency operation (typically during a war or declared national
emergency). A qualifying exigency refers to any of the following activities
that may be required because of the military member's covered active duty:
(i) Addressing issues resulting from the
military member receiving short-notice of deployment (seven days or less
advanced notice);
(ii) Attending
military events, family support or assistance activities, or information
briefings related to the deployment;
(iii) Arranging for care of the military
member's child or parent incapable of self-care;
(iv) Making or updating financial or legal
arrangements;
(v) Attending
non-medical counseling;
(vi)
Spending time with the military member while on rest and recuperation leave
(maximum of 15 calendar days);
(vii) Engaging in post-deployment activities;
and,
(viii) Other activities
related to the military duty as agreed upon by the employer and
employee.
(b)
Military Caregiver Family and Medical Leave.
1. An eligible employee is entitled to take
up to 26 workweeks of Family and Medical Leave during a single 12-month period
to care for a covered service member undergoing medical treatment,
recuperation, therapy, or outpatient services, or who is otherwise on the
temporary disability retired list, for a serious injury or illness received or
aggravated in the line of active military duty.
(i) The single 12-month period begins on the
first day the employee takes leave to care for the covered service member and
ends 12 months later.
(ii) The 26
workweeks are reduced by any Family and Medical Leave for other qualifying
reasons used during the single 12-month period.
2. To qualify for Military Caregiver Family
and Medical Leave, the employee must be the spouse, child, parent, or next of
kin (nearest blood relative other than a spouse, child, or parent) of the
covered service member. In-law relationships do not qualify.
3. The service member may be either a member
of the Armed Forces (including the National Guard and Reserves) or a veteran.
(i) Military Caregiver Family and Medical
Leave is not available to care for a dishonorably discharged veteran;
(ii) Military Caregiver Family and Medical
Leave for a veteran must typically begin within five 5 years of the veteran's
discharge or release from the military. Exception: In accordance with federal
regulation, the period between October 28, 2009, and March 8, 2013, does not
count toward this 5-year period.
4. Military Caregiver Family and Medical
Leave is to be applied on a per-covered-service member,
per-serious-injury/illness basis. An eligible employee with multiple qualifying
reasons for Military Caregiver Family and Medical Leave is limited to a
combined total of 26 workweeks in any single 12-month period.
(c) Family and Medical Leave for
Military Caregivers and for the Serious Health Condition of the employee,
spouse, child, or parent, is limited to the time determined medically necessary
by the attending healthcare provider.
(d) Spousal Limitation.
1. If an employee's spouse is also a state
employee, the couple is limited to a combined total of 12 workweeks of Family
and Medical Leave during the rolling 12-month period for any one of the
following qualifying reasons.
(i) To care for
the employee's parent with a serious health condition;
(ii) For the birth of the employee's child,
including care for the child after birth; and,
(iii) For the placement of a child with the
employee for adoption or foster care, including care for the child after
placement.
2. If an
employee's spouse is also a state employee, the couple is limited to a combined
total of 26 workweeks of Military Caregiver Family and Medical Leave during a
12-month period.
3. Each spouse is
entitled to use the remainder of his/her individual Family and Medical Leave
entitlement for other qualifying reasons.
(6)
Intermittent/Reduced Schedule
Leave.
(a) Eligible employees are
entitled to take Family and Medical Leave on an intermittent or reduced
schedule basis under the following conditions:
1. When certified as medically necessary for
a serious health condition of the employee, spouse, child, or parent;
2. When certified as medically necessary to
care for a covered service member's serious injury or illness;
3. For a qualifying exigency arising out of a
spouse's, child's, or parent's military duty;
4. When required for preliminary activities
needed for an adoption or foster care placement to proceed.
(b) An agency has the discretion
to permit its eligible employees to use Family and Medical Leave on an
intermittent or reduced schedule basis for other FMLA qualifying reasons (such
as for care of a healthy newborn or newly placed child), provided such
permission is granted in a consistent manner to staff.
(c) An agency may temporarily reassign an
employee to a different position for which the employee is qualified and that
better accommodates the recurring absences while the employee uses Family and
Medical Leave on an intermittent or reduced schedule basis for any of the
following reasons.
1. Planned medical
treatment, including recovery;
2.
Birth of the employee's child, including care of the newborn child;
and,
3. Adoption or foster care,
including care of the newly placed child.
(d) While in the temporary position, the
employee will receive pay and benefits equivalent to the original position;
however, the duties need not be equivalent. An employee will not be assigned to
a temporary position that represents a hardship for the employee. The agency
will return the employee to the original position or an equivalent position at
the end of the temporary assignment. The employee will not be required to
continue in the temporary assignment beyond the date on which the employee is
able to resume the regular work schedule.
(7)
Notice and Certification
Requirements.
(a) Employee Notice
Requirements:
1. When the need for Family and
Medical Leave is foreseeable (e.g., childbirth, adoption, planned medical
treatment, etc.), an employee is expected to provide the agency with at least
30 calendar days advance notice of the requested leave. When the need for FMLA
leave is not foreseeable 30 days in advance, the employee is expected to
provide the maximum notice practicable, generally within one to two business
days from the date the employee becomes aware of the need for and timing of the
leave. When the need for FMLA leave arises suddenly, and the absence is
unplanned, the agency may require the employee to follow customary call-in
procedures.
2. Employees must make
a reasonable effort to schedule medical treatments so as not to unduly disrupt
the agency's operations whenever possible.
3. An employee's notice of leave does not
need to specifically mention the FMLA, but must include, at a minimum, an
FMLA-qualifying reason for the leave, the anticipated start date, and the
anticipated duration.
4. If an
employee is unable to communicate, then an agency may receive notice of the
need for Family and Medical Leave from a responsible spokesperson (e.g.,
spouse, doctor, etc.);
5. An
employee's failure to provide timely notice with no reasonable excuse, as
determined by the agency, may result in delay of Family and Medical Leave
protection.
(b)
Supporting Documentation.
1. An agency may
require its employees to submit appropriate supporting documentation for the
use of Family and Medical Leave. Examples of supporting documentation include:
(ii) The attending healthcare provider's
certification of a serious health condition serving as the basis for Family and
Medical Leave;
(ii) The attending
healthcare provider's certification of a covered service member's serious
injury or illness;
(iii)
Certification of qualifying family relationship; and,
(iv) Copy of the spouse's, child's, or
parent's orders for covered active duty that supports the qualifying
exigency.
2. If an
employee does not submit supporting documentation when giving notice of the
need for Family and Medical Leave, the agency may request such documentation.
The agency must allow the employee at least 15 calendar days from the date of
the agency's request to provide the requested documentation.
3. To ensure compliance with the Genetic
Information Nondiscrimination Act (GINA), when requesting supporting
documentation from an employee's healthcare provider, the agency must specify
that it is not seeking genetic information. If an agency receives genetic
information from a request for supporting documentation, such information must
be treated as a confidential medical record and stored separately from the
employee's personnel file.
4.
Failure to submit timely, complete, and sufficient supporting documentation may
result in delay or denial of Family and Medical Leave.
5. Clarification & Authentication of
Medical Certification. An agency may designate one or more officials to contact
the certifying healthcare provider, when needed, to clarify or authenticate a
Family and Medical Leave medical certification. The employee's direct
supervisor is not permitted to contact the certifying healthcare
provider.
6. An agency that
reasonably doubts the validity of a medical certification may require the
employee to obtain a second opinion at the expense of the agency. The
healthcare provider will be designated, but not employed, by the
agency.
7. When a second opinion
differs from the initial medical certification, the agency may require the
employee to obtain a third opinion at the expense of the agency. The healthcare
provider must be jointly approved by the agency and employee. The opinion of
the third healthcare provider will be considered final and binding.
8. An agency may require a second or third
opinion for Military Caregiver Family and Medical Leave only when the original
certification was completed by a healthcare provider not affiliated with the
Department of Defense, Department of Veterans Affairs, or TRICARE.
(c) Recertification.
1. An agency may require reasonable
recertification of a medical condition in connection with an employee absence.
Typically, such recertification may be required no more often than every 30
calendar days or after the minimum duration of the condition identified on the
previous certification expires, whichever occurs later. An agency may require
an earlier recertification for the following reasons:
(i) The employee requests an extension of
leave;
(ii) The circumstances
(e.g., duration or frequency of absences) described within the previous
certification change significantly; or,
(iii) The employer receives information that
casts doubt on the continuing validity of the previous certification.
2. In any case, even for lifetime
conditions, an agency may require recertification every six 6 months.
(d) Employer Notice Requirements.
Agencies are responsible for meeting all employer notice requirements for
Family and Medical Leave. Requirements include: a posted notice in the
workplace, a general notice to employees, an Eligibility, Rights, &
Responsibilities notice to each employee who requests Family and Medical Leave
or whose leave may qualify for FMLA protection, and a Designation notice for
each employee whose absence is being considered for FMLA protection.
1. Posted & General Notices:
(i) Posted Notice. Each agency will post and
keep posted in conspicuous places where notices to employees and applicants are
typically posted, notice explaining the provisions of the Family and Medical
Leave Act and how to file a complaint.
(ii) General Notice. In addition to the
posted notice, each agency must include the information from the FMLA poster in
its handbook or other written material on leave and benefits, or distribute
such information to new employees upon hire.
(iii) Both the posted and general notices may
be posted or distributed electronically to meet these requirements.
2. Eligibility, Rights, and
Responsibilities Notice: Once an employee requests Family and Medical Leave, or
once the agency becomes aware that an employee's leave may qualify for Family
and Medical Leave, the agency must notify the employee, within five (5)
workdays (unless extenuating circumstances, such as an emergency office
closure, delay notice) of the following.
(i)
Whether the employee meets the employment eligibility criteria for Family and
Medical Leave;
(ii) Whether the
employee has any remaining Family and Medical Leave available; and,
(iii) The employee's rights and
responsibilities for taking Family and Medical Leave.
(iv) If the employee did not submit
supporting documentation with a request for Family and Medical Leave, the
agency should include in this notice any requirement to provide such
documentation and give a deadline for submission that is at least 15 calendar
days after the notice is provided to the employee.
3. Designation Notice: Once an agency has
sufficient information to determine whether the leave qualifies for Family and
Medical Leave Protection (e.g., after receiving supporting documentation), the
agency must notify the employee within five (5) workdays (unless extenuating
circumstances, such as an emergency office closure, delay notice) whether the
leave will be designated as Family and Medical Leave and count against the
employee's entitlement.
4. The
Designation Notice can be combined with the Eligibility, Rights, &
Responsibilities Notice if the agency has sufficient information to designate
the leave as Family and Medical Leave at the time it becomes aware of the
employee's need for leave.
5.A
Family and Medical Leave denial must include at least one reason for
denial.
(8)
Charging FMLA.
(a) Each agency
is responsible for charging time off that qualifies for Family and Medical
Leave protection against an employee's entitlement.
(b) Only the amount of leave actually taken
may be counted toward the employee's FMLA entitlement.
1. When calculating the amount of
intermittent or partial workweek absences for Family and Medical Leave, an
agency must use the shortest increment used to account for other types of
leave. (Refer to Rule
478-1-.16(1)(a) [Absence from Work] for applicable provisions.);
2. Employees will not be required to remain
on leave longer than necessary, unless an exception for flight crews or
employees of primary or secondary schools is authorized by Family and Medical
Leave regulations.
(c)
Holidays:
1. If a holiday falls within a full
week of Family and Medical Leave, then it counts toward the Family and Medical
Leave entitlement as if it were a workday.
2. If a holiday falls within a week during
which an employee used Family and Medical Leave for only part of the week, then
the holiday does not count toward the Family and Medical Leave
entitlement.
(d)
Retroactive Designation:
1. An agency may
retroactively designate time off as Family and Medical Leave with appropriate
notice to the employee, provided the failure to timely designate the leave does
not harm the employee.
2. In all
cases where leave would qualify for Family and Medical Leave protection, the
agency and employee can mutually agree to designate the leave retroactively as
Family and Medical Leave.
3.
Retroactive designation of Family and Medical Leave should be applied
consistently across an agency's workforce.
(9)Use of Paid Leave during FMLA Leave.
(a) The Family and Medical Leave Act
provides job-protected leave for specified family and medical reasons, but does
not provide pay.
(b) An eligible
employee is entitled to use available paid leave, State compensatory time, or
FLSA compensatory time to continue to receive compensation from the agency
during Family and Medical Leave. Use of paid leave must comply with Rule
478-1-.16 (Absence from Work). Any
period of Family and Medical Leave not covered by available paid leave or
compensatory time will be without pay.
(c) An agency may, by written policy, require
an employee to use any available paid leave and/or compensatory time during
Family and Medical Leave. Such policy must apply uniformly to all Family and
Medical Leave, and the use of available paid leave must comply with Rule
478-1-.16 (Absence from Work). The
following two exceptions apply:
1. If an
absence qualifies for Workers' Compensation wage loss benefits, the employee
may choose to receive such benefits rather than use paid leave or compensatory
time during Family and Medical Leave.
2. An employee will not be required to use
paid leave and compensatory time while receiving short-term or long-term
disability insurance payments.
(d) Any paid leave or compensatory time used
by the employee will run concurrently with Family and Medical Leave.
(e) An employee on paid Family and Medical
Leave is eligible to accrue paid leave in accordance with Rule
478-1-.16 (Absence from
Work).
(10)
Return
to Work/Fitness-for-Duty.
(a)
Typically, at the expiration of Family and Medical Leave, an employee is
entitled to reinstatement to the same or equivalent position held prior to the
leave, provided the employee is able to perform the essential functions, with
or without reasonable accommodation, and has complied with the terms of the
Family and Medical Leave;
1. An equivalent
position has substantially similar duties and responsibilities and equivalent
pay, benefits, terms, and conditions of employment.
2. If an employee cannot perform the
essential job functions, the agency is responsible for meeting any obligations
it may have for accommodation under the Americans with Disabilities Act, as
amended.
(b) Family and
Medical Leave does not provide any greater right to reinstatement than if the
employee had remained at work, rather than take the leave. For example, an
employee whose position is eliminated through staff reduction is not entitled
to return to work at the expiration of the Family and Medical Leave.
(c) An employee who fraudulently obtains
Family and Medical Leave is not entitled to reinstatement.
(d) A "key employee" may be denied
reinstatement if the agency determines that reinstatement would cause
substantial and grievous economic injury to its operations and the employee was
given the proper notice and failed to return to work by the timeframe
identified in such notice.
(e)
Fitness-for-Duty Certification:
1. An agency
may require as a condition for reinstatement that employees returning to work
from a continuous period of Family and Medical Leave for their own serious
health condition submit a fitness-for-duty certification from the same
attending healthcare provider that certified the Family and Medical Leave. The
medical documentation must certify that the employee is able to resume work and
perform the essential functions of the job, with or without reasonable
accommodation.
2. An agency may
require fitness-for-duty certification as a condition of reinstatement
following use of intermittent or reduced schedule Family and Medical Leave for
an employee's own serious health condition only if the agency has a reasonable
belief that reinstatement could pose significant risk of harm to the individual
employee or others. Such certification may not be required more often than
every 30 calendar days.
3. The need
for fitness-for-duty certification must be established at the time an agency
designates Family and Medical Leave.
4. An agency may delay and/or deny
reinstatement to an employee who does not provide required fitness-for-duty
certification.
5. Any
fitness-for-duty certification requirement must be applied uniformly to all
similarly situated employees (e.g., all in the same job, all with the same
serious health condition).
(11)
Record Maintenance.
(a) Any documentation that includes personal
health information must be maintained confidentially.
(b) Agencies are to retain records related to
Family and Medical Leave for three years, in accordance with statewide
retention schedules.
O.C.G.A. Secs.
45-20-3, 45-20-3.1, 45-20-4(duties and functions of the State Personnel Board and Department of Services
related to the Rules of the State Personnel Board).
Federal References.
29 USC 2601, et seq. - Family and
Medical Leave Act; 29 CFR
Part 825, US DOL Family and Medical Leave
Regulations; 29 CFR Part
1630, EEOC Americans with Disabilities Act
Regulations; 29 CFR Part
1635, EEOC Genetic Information
Nondiscrimination Act Regulations.