Leave Information

A summary of an employee’s rights and responsibilities under the federal Family and Medical Leave Act (FMLA) may be access at the following link: http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf.

In general, the FMLA provides up to twelve (12) weeks of unpaid, job-protected leave for eligible employees for certain family and medical reasons.  The Personnel Cabinet leave regulations provide additional benefits to certain state employees as well.  The information below reflects the combined federal and additional protections for all employees who are covered by the administrative regulation 101 KAR 2:102 and 101 KAR 3:015.

EMPLOYEE ELIGIBILITY

To be eligible for family and medical leave, an employee must have:

1. Completed at least twelve (12) months of state service; and
2. Worked or been on paid leave for at least 1,250 hours in the twelve (12) months immediately preceding the first day of family and medical leave. See the FMLA provisions in 101 KAR 2:102 Section 3 and 101 KAR 3:015 Section 3.

LEAVE ENTITLEMENT

An eligible employee must be granted at least twelve (12) weeks of unpaid family and medical leave during the calendar year for one or more of the following reasons:

• For the birth of a son or daughter, and to care for the newborn child;
• For placement with the employee of a son or daughter for adoption or foster care;
• To care for the employee’s spouse, son, daughter, parent, or someone of similarly close relationship with a serious health condition;
• Because of a serious health condition that makes an employee unable to perform the functions of the employee’s job;
• Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, parent, or someone of similarly close relationship is a covered military member on active duty (or has been notified of an impending call or order to active duty) in support of a contingency operation;
• To care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, next of kin, or someone of similarly close relationship to the servicemember.  NOTE: An eligible employee is entitled to up to 26 workweeks of leave to care for a covered servicemember with a serious injury or illness during a single twelve (12) month period. 

In general, an employee shall not be placed on family and medical leave until the employee has exhausted all accumulated paid leave such as sick, annual, or compensatory leave.  However, upon written request, the employee may reserve up to ten (10) days of accumulated sick leave and be placed on family and medical leave.  An employee may not elect to reserve annual or compensatory leave. 

Alternatively, the employee may elect to utilize family and medical leave concurrently with other accumulated paid leave.    An eligible employee is not entitled to the protections of the federal FMLA until the employee elects to utilize family and medical leave.  In other words, an employee utilizing accumulated paid leave must elect to use family and medical leave concurrently with paid leave in order to be entitled to the protections contained in the federal FMLA while on paid leave. If an eligible employee does not elect to use family and medical leave concurrently with paid leave, the employee must comply with the applicable paid leave regulations contained in 101 KAR 2:102 and 101 KAR 3:015.

LEAVE TO CARE FOR A SPOUSE, SON, DAUGHTER, PARENT, OR SOMEONE OF SIMILARLY CLOSE RELATIONSHIP

• A spouse is a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in the States where it is recognized.
• A parent is a biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the employee when the employee was a son or daughter as defined below.  The term does not include parents “in law.”
• A son or daughter means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under age 18, or age 18 or older and incapable of self-care because of a mental or physical disability at the time that family and medical leave is to commence. 
• Someone of similarly close relationship means an individual 1) who has resided with the employee for at least thirty days at the time that family and medical leave is to commence, or 2) for whom the employee is legally responsible. 

LEAVE FOR THE BIRTH OR PLACEMENT OF A CHILD

• In the case of an eligible husband and wife who are employed by the Executive Branch, both are entitled to twelve (12) weeks of leave due to the birth or placement of a child (i.e., bonding time).
• There may be some instances where an employee may qualify for family and medical leave prior to the birth of a child.  For example, an expectant mother may take family and medical leave for prenatal care or if her condition makes her unable to work (such as in the case of severe morning sickness or if placed on bed rest by a physician).  The mother is entitled to family and medical leave for incapacity due to pregnancy even though she does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three (3) consecutive calendar days (the typical requirements for FMLA).  
• In the case of an adoption or foster care, an employee is eligible to receive family and medical leave before the placement or adoption in some instances.  For example, the employee may be required to attend counseling sessions, appear in court, consult with his or her attorney or the doctor(s) representing the birth parent, submit to a physical examination, or travel to another country to complete an adoption. 
• An employee ordinarily must provide advance notice of his or her intent to use leave due to the birth or placement of a child through adoption or foster care. 
• In general, upon the conclusion of the twelfth week of leave, if an employee has not exhausted his or her accrued leave and unpaid family and medical leave, an employer may require an employee to provide medical certification of the need for any additional leave time. 

ADVANCE NOTICE AND MEDICAL CERTIFICATION

The employee may be required to provide advance leave notice and medical certification or other supporting documentation.  Request for leave may be denied if requirements are not met.

• The employee ordinarily must provide advance notice when the need for leave is foreseeable.  .
• An employer may require medical certification to support a request for family and medical leave because of a serious health condition, and may require second or third opinions (at the employer's expense) and a fitness for duty report to return to work.

INTERMITTENT FAMILY AND MEDICAL LEAVE

Family and medical leave may be taken intermittently or on a reduced leave schedule under certain circumstances.  Intermittent leave is family and medical leave taken in blocks of time due to a single qualifying reason.  A reduced leave schedule is a leave schedule that reduces an employee’s usual number of working hours per workweek, or hours per workday.

• Intermittent leave must be granted for the following qualifying conditions when medically necessary:
  • An employee’s own serious health condition;
  • To care for the employee’s spouse, son, daughter, parent, or someone of similarly close relationship with a serious health condition;
  • To care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, next of kin, or someone of similarly close relationship to the servicemember; and 
  • Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, parent, or someone of similarly close relationship is a covered military member on active duty (or has been notified of an impending call or order to active duty) in support of a contingency operation.

JOB BENEFITS AND PROTECTION

• While an employee is on unpaid family and medical leave, the state contribution for health and life insurance shall be maintained by the employer.  If applicable, arrangements will need to be made for employees to pay their share of health and life insurance premiums while on unpaid family and medical leave.
• On return from family and medical leave, an employee is entitled to be returned to the same position the employee held when leave commenced, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment.  .
• An employee shall be free from interference with, restraint, or the denial of any rights provided by the federal FMLA. 
• An employee may not be discharged or discriminated against for opposing or complaining about any unlawful practice under the federal FMLA.

SUMMARY OF LEAVE ENHANCEMENTS

• The federal FMLA provides that an employee must have worked at least 1,250 hours in the twelve (12) months immediately preceding the first day of family and medical leave in order to be eligible for family and medical leave.  However, the Personnel Cabinet leave regulations allow time worked and time spent on paid leave to count towards the 1,250 hour eligibility requirement. 
• The federal FMLA allows an employer to require an employee to run his or her family and medical leave entitlement concurrently with accrued paid leave.  However, the Personnel Cabinet leave regulations allow employees to choose whether family and medical leave will run concurrently or consecutively with accrued paid leave. 
• The federal FMLA allows leave to care for only a spouse, son, daughter, or parent with a serious health condition.  However, state government allows employees covered by the Personnel Cabinet leave regulations to take family and medical leave to care for other immediate family members as well, as defined above.
• The federal FMLA entitles a husband and wife employed by the same employer to only a combined twelve weeks of family and medical leave for bonding time following the birth or placement of a child.  However, state government agencies covered by the Personnel Cabinet leave regulations must allow each spouse twelve weeks of family and medical leave for bonding time under the above-specified situation.

All covered state agencies shall comply with the federal FMLA statutes and regulations, as well as the family and medical leave provisions contained in 101 KAR 2:102 Section 3 and 101 KAR 3:015 Section 3. 

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