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Family & Medical Leave (FMLA)

The Family and Medical Leave Act (FMLA) of 1993 requires the employer to give eligible employees job-protected leave for the birth, adoption, or foster care of a child; or the serious health condition of the employee or the employee's immediate family member. Eligible employees may also request leave for qualifying exigencies and to care for a covered service member. Supervisors should contact the Department of Human Resources immediately for guidance when it appears an employee will be out for an extended period. FMLA requires prompt notification of the provisions of the Act to affected employees.

Leave Benefits

Eligible employees are entitled to 12 weeks of unpaid leave during any 12-month period for the following circumstances:

  • birth, adoption or foster care of a child;
  • serious health condition of a spouse, child or parent;
  • serious health condition of the employee.

If both spouses work for the same employer, they are entitled to an aggregate of 12 weeks of leave per 12-month period for birth, for placement for adoption or foster care, or to care for a sick parent. However, if leave is for a seriously ill spouse or child or for the employee's own serious illness, the husband and wife are each entitled to a 12-week period. Certain kinds of paid leave, according to applicable agency leave policies, will be substituted for unpaid leave.

Leave Because of Qualifying Exigency

An employee may take family and medical leave for qualifying exigencies while his or her spouse, son, daughter, or parent who is a member of a regular component of the Armed Forces, or a member of the National Guard or Reserves is on active duty or called to active duty status in support of a contingency operation.

The first time an employee requests leave because of a qualifying exigency, he or she must provide a copy of the covered military member's active duty orders or other documentation issued by the military. This documentation must include the dates of the covered military member's active duty service. This information need only be provided once. A copy of new active duty orders or other documentation issued by the military shall be provided if the need for leave because of a qualifying exigency arises out of a different active duty or call to active duty status of the same or a different covered military member.

Leave to Care for a Covered Servicemember

An eligible employee is entitled to receive up to 26 weeks of unpaid leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent or next of kin of the servicemember.

The single 12-month period commences the first day leave is taken to care for the covered servicemember and expires 12 months later. Note: An eligible employee is entitled to a combined total of 26 weeks of unpaid leave during a single 12-month period for any FMLA-qualifying reason.

Example: An eligible employee may take 16 weeks of family and medical leave to care for a covered servicemember and 10 weeks of family and medical leave to care for a newborn child.

Use of Paid Leave

The agency will require classified employees to use their accrued paid leave at the beginning of the 12-week FMLA-approved leave period. The types of paid leave that may be used are:

Leave Under the Act

accrued paid Leave for Use (as applicable)

Birth, adoption, foster care

annual, compensatory, overtime, personal, recognition,33% of available sick leave (as stipulated above)

Care for spouse, child, or parent

family sick, annual, overtime, compensatory, recognition, 33% of available sick leave (as stipulated above)

Employee's serious health condition

sick, annual, compensatory, overtime, recognition

Qualifying Exigency

annual, compensatory, overtime, personal, recognition,33% of available sick leave (as stipulated above)

Care for covered servicemember

annual, compensatory, overtime, personal, recognition,33% of available sick leave (as stipulated above)

According to state policy provisions, classified employees are provided paid leave for personal health reasons through the use of their accrued sick leave balances, VSDP sick leave balances, or short-term disability. Employees may also use their accrued annual, compensatory, or overtime leave balances for absences due to health reasons. For family reasons versus the employee's personal illness, employees may also use 33% of available sick leave hours during the FMLA-designated leave period.

Note: employees are permitted to use up to six days of sick leave (if in the accrued sick leave system) or whatever family/personal leave they have available (if in the VSDP sick leave system) for short-term family illnesses in the 12 month period from January 10 through January 9.

Employee Responsibilities

An employee must give 30 days advance notice to the supervisor of the need to take FMLA leave when it is foreseeable for the birth or placement of a child for adoption or foster care, or for planned medical treatment. When it is not possible under the circumstances to provide advance notice, the employee must notify the supervisor as early as is practicable (usually within one to two work days of when the employee learns of the need for leave).

If an employee takes leave based on planned medical treatment for the employee or the employee's child, spouse or parent, the employee must also make reasonable efforts to schedule the treatment to minimize disruptions to their department's operations.

Supervisor Responsibilities

Supervisory staff are responsible for notifying the Department of Human Resources immediately upon request for or notification of an employee's FMLA leave. They are also responsible for informing Human Resources when an employee has been absent due to health reasons for more than five (5) consecutive work days. Human Resources will provide formal notification to the employee of his/her FMLA status.

Additionally, supervisors must approve intermittent leave work schedules and Human Resources should be notified of any change in the employee's status as soon as the supervisor is notified.

Medical Certification

A request for leave due to a serious health condition must be supported by a certification from the health care provider. This includes the employee's or family member's health care provider. The certification should include the date on which the health condition began and its probable duration. The certification for a family member should include a statement from the health care provider that the employee is needed to care for the family member. The medical certification should be provided within 15 calendar days of the request to use FMLA leave. Upon return to work, employees must provide a medical release statement to their supervisors. The employer, at its expense, may require a second medical opinion.

Intermittent Leave

An employee may take leave intermittently (take a day or days periodically when needed) or use leave to reduce the work day or work week, resulting in a reduced work schedule. The supervisor must approve these variations if the employee is taking leave for the birth, adoption or foster care placement of a child.

For leave related to a serious health condition, the supervisor's consent is not required when an employee needs to use intermittent leave that is medically necessary. Employees are encouraged to provide proper notice to the supervisor even though the supervisor's permission to use FMLA leave is not required.

Medical Certification for Intermittent Leave Should Include the Following Information:

  • a statement confirming the necessity for intermittent leave;
  • the planned duration of the medical treatment;
  • the expected dates for the medical treatment.
  • The supervisor may request medical certification to verify that the actual work hours or days missed were medically necessary.

The employee may be reassigned to an alternative position that could better accommodate the use of an intermittent leave schedule.

Benefit & Job Protection

The employer will continue to provide health insurance coverage and pay its portion of the premium under its group health plan during the leave period at the same level and conditions as if the employee had continued to work.

The employer will place classified employees who return from leave under the FMLA in their same jobs unless extenuating circumstances occur. Should extenuating circumstances occur, employees returning from leave under the FMLA will be placed in a job with equivalent status and pay.

FMLA Forms


Eligible Employee

Those employed for at least 12 months by the State and who have provided at least 1250 hours of service during the 12 month period prior to the leave request.

Immediate Family Member

The employee's child, spouse, or parent.


Biological, adopted or foster child; step child, legal ward, or a child for whom the employee has day-to-day responsbility; child must be under 18 years of age; Exception: May be 18 or older if incapable of self-care.

Spouse, Parent

The employee's husband or wife. The person who acted as the employee's parent when the employee was a child. The term does not include parent-in-law.

Serious Health

An illness, injury, impairment, or condition physical or mental condition involving either inpatient care or continuing treatment by a health care provider.

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