§ VIII. Family and medical leave of absence.

A.

Pursuant to the Federal Family and Medical Leave Act of 1993 (FMLA), which requires employers with fifty (50) or more employees to provide up to twelve (12) weeks of unpaid family leave per year, the following policy is designed to provide FMLA leave to employees for:

1.

The birth, adoption or foster care placement of a child. However, the right to this leave expires twelve (12) months after the birth, adoption or foster care placement of the child.

a.

The use of a licensed adoption agency is not required to qualify for FMLA leave.

b.

Foster care is defined as requiring state action, rather than just an informal arrangement to take care of another person's child.

2.

The care of a serious health condition which affects an employee or the employee's spouse, child or parent.

a.

A "spouse" is defined as an employee's husband or wife (as those terms are recognized and given legal effect by the statutes and court decisions of the Supreme Court of the State of Arkansas) at the time the FMLA leave is sought. This term does not include, however, alleged "spouses" of common law marriages unless those marriages have previously been recognized specifically by a court of competent jurisdiction in the State of Arkansas. Unmarried domestic partners do not qualify for family leave to care for their partner.

b.

A "child" is defined as an employee's biological, adopted, or foster child, stepchild, legal ward or a child for whom the employee acts as a parent. The child must be under eighteen (18) years of age; or eighteen (18) years of age or older and incapable of self-care because of a mental or physical disability.

c.

A "parent" is defined as the biological parent of an employee or an individual who filled a parental role for the employee when that employee was a child.

B.

A city employee is eligible for FMLA leave if:

1.

The employee has worked for the City of Fort Smith for at least twelve (12) months; and,

2.

The employee has worked a minimum of one thousand two hundred fifty (1,250) hours during the twelve (12) month period immediately preceding the start date of the leave.

C.

If two (2) employees are spouses of each other and working for the City of Fort Smith, they are jointly entitled to a combined total of twelve (12) weeks of FMLA leave per year for the birth, adoption or foster care placement of a child. This limitation does not apply, however, to leave taken by either spouse to care for the other who is seriously ill and unable to work; to care for a child with a serious health condition; or to care for the employee's own serious health condition.

D.

A "year" in which an employee may be eligible for up to twelve (12) weeks of FMLA leave is defined as the period beginning at the start date of the first leave request and ending on the same date twelve (12) months later.

E.

A serious health condition means an injury, illness, impairment, or physical or mental condition that involves:

1.

Any period of incapacity or treatment connected with inpatient care (an overnight stay) in a hospital, hospice or residential medical care facility; or,

2.

Any period of incapacity requiring the absence from work of more than five (5) calendar days that also involves continuing treatment by (or under the supervision of) a health care provider; or,

3.

Continuing treatment by (or under the supervision of) a health care provider for a chronic or long-term health condition that is incurable or so serious that, if not treated, would likely result in a period of incapacity of more than five (5) calendar days, and for prenatal care.

a.

Continuing treatment includes:

i.

Two (2) or more visits to the health care provider;

ii.

Two (2) or more treatments by a health care practitioner on referral from, or under the direction of, a health care provider; or

iii.

A single visit to a health care provider that results in a regimen of continuing treatment under the supervision of the health care provider.

F.

In addition to doctors of medicine and osteopathy, health care providers under FMLA include podiatrists; dentists; clinical psychologists; optometrists; chiropractors; nurse practitioners and nurse midwives, all of the foregoing only in so far as they perform within the scope of their licensed practice under Arkansas law; and Christian Science practitioners.

G.

Employees seeking to use FMLA leave will be required to utilize the following notice and certification procedures:

1.

A thirty (30) day advance notice of the need to take an FMLA leave will be provided to the director of human resources when the need is foreseeable (birth or placement of a child for foster care, or for planned medical treatment). Employees will attempt to schedule foreseeable leave so as not to unduly disrupt city operations.

2.

When it is not practical under the circumstances to provide such advance notice, notice must be given within two (2) working days of when the employee learns of the need for an FMLA leave. Notice will be given to the director of human resources or the department director either in person or by telephone when medical emergencies are involved, and may be given by the employee's spouse or other family member if the employee is unable to do so due to a personal serious health condition.

3.

A verbal notice is sufficient to satisfy the FMLA notice requirement. However, employees are encouraged to request an FMLA leave in writing.

4.

Medical certification from the health care provider supporting a leave request either to care for an employee's seriously-ill family member, or for leave due to the serious health condition that makes the employee unable to perform his or her job functions will be provided to the director of human resources within fifteen (15) calendar days of the leave request, unless it is not practical to do so under the circumstances.

a.

A certification for medical leave will include the statement that the employee "is needed to care" for a seriously-ill family member or, in the case of an employee's own serious health condition, a statement that the employee is "unable to perform the functions" of the position.

b.

A certification of the medical necessity of intermittent leave or leave on a reduced leave schedule will include the specified description of the treatment program.

5.

The director of human resources may require an employee to obtain a second medical opinion, at the city's expense. If the opinions of the first and second health care provider differ, the director of human resources may require a third medical opinion, again at the city's expense, from a health care provider mutually agreed upon by the director of human resources and the employee. The third medical opinion will be final and binding.

6.

The director of human resources may, not more often than every thirty (30) days, require an employee to obtain subsequent re-certifications to support continuing FMLA medical leave, unless:

a.

The employee requests an extension of the leave.

b.

Changed circumstances occur regarding the illness or injury; or,

c.

The director of human resources receives information that casts doubt upon the continuing validity of the most recent certification.

H.

An employee on an approved FMLA leave will maintain group benefits on the same terms as was provided before the leave was taken and on the same terms as if the employee had continued to work for the city. Any share of benefit premiums which had been paid by the employee prior to the commencement of FMLA leave will continue to be paid by the employee during FMLA leave.

1.

An employee's medical, dental, vision and or life benefit coverage will end if the employee's share of the applicable benefit premium remains unpaid for more than thirty (30) days past the date due. Claims related to treatment during the dates when premiums remain unpaid will not be eligible for payment. However, if the employee fails to make a premium payment during an FMLA leave, and such failure causes coverage to end, the terminated benefit coverage will be reinstated effective on the date the employee returns to work following the FMLA leave, without the need for the employee to meet qualification requirements.

2.

The period an employee is on an approved FMLA leave will be treated as continued service (i.e., no break in service) for purposes of vesting and eligibility to participate in any pension or retirement plan sponsored by the city.

I.

Upon return from FMLA leave, an employee will be restored to his or her original job (or to an equivalent job with equivalent pay), benefits and other terms and conditions of employment.

1.

An employee returning from FMLA leave, taken for a serious personal health condition, will be required to provide certification from the employee's health care provider that the employee is able to resume work, i.e., is fit for duty for the job the employee had when FMLA leave commenced or a job of similar pay and stature.

2.

An employee, upon returning from an FMLA leave, who is no longer qualified for a position because of a failure to attend a class or renew a license, will be allowed a reasonable opportunity to fulfill those conditions upon return to work. What constitutes a reasonable opportunity will be determined by the director of human resources.

3.

An employee is considered to have failed to return to work from an FMLA leave thirty (30) calendar days following the end date of the maximum twelve (12) week leave period.

J.

An employee will be required to utilize any accrued paid time off (vacation and sick leave benefits) concurrently with FMLA leave.

1.

In all circumstances, it is the director of human resource's responsibility to designate leave, paid or unpaid, as FMLA qualifying, based on information provided by the employee or otherwise obtained.

K.

Under some circumstances approved by the director of human resources, employees may take FMLA leave intermittently, which means taking leave in blocks of time, or by reducing their normal weekly or daily work schedule.

1.

An employee must support a request for intermittent leave or leave on a reduced leave schedule due to a serious health condition of the employee or immediate family member with a certification from the health care provider that such leave is medically necessary and the expected duration and schedule of such leave.

2.

The certification from the employee's health care provider must include:

a.

The existence of a medical need for the leave; and

b.

That the medical need can best be accommodated through an intermittent or reduced leave schedule.