Library: Policy

OKDHS:2-1-47. Family and medical leave

Revised 10-1-10

(a) Purpose.  Family and medical leave (FMLA leave) is provided to employees in accordance with the federal  Family and Medical Leave Act(FMLA) of 1993, as amended effective January 16, 2009, the provisions of the National Defense Authorization Act of 2008 as it applies to active duty leave and caregiver leave, and OAC 530:10‑15-45 of the Merit Rules.  This Section is not a comprehensive listing of FMLA of 1993, and is not intended to conflict with either the Act or regulations.  For more detailed information regarding employee and employer rights, responsibilities, and procedures to be followed, refer to the Guide to Administering the Family and Medical Leave Act, found under Employee Info, Employee Rights and Responsibilities, Family and Medical Leave Act (FMLA) on Your InfoNet.

(b) Definitions.  The following words and terms, when used in this Section, shall have the following meaning unless the context clearly indicates otherwise:

• (1) "Activities of daily living" means adaptive activities such as caring appropriately for one's grooming and hygiene, bathing, dressing, and eating.

• (2) "Incapable of self care" means the person requires active assistance or supervision to provide daily self care in three or more of the activities of daily living or instrumental activities of daily living.

• (3) "In loco parentis" means in place of a parent or instead of a parent.  In loco parentis includes those with day-to-day responsibilities to care for or financially support a child.  Those with no biological or legal relationship with a child may stand in loco parentis.

• (4) "Instrumental activities of daily living" means cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, and similar activities.

• (5) "Parent" means a biological parent or a person who stands or stood in loco parentis to an employee when the employee was a child as defined in the definition of "son or daughter."  This term does not include parents-in-law.

• (6) "Son or daughter" means a biological, adopted or foster child, stepchild, 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.

• (7) "Spouse" means a husband or wife as defined or recognized under state law.

• (8) "Incapacity" means inability to work, attend school, or perform other regular daily activities due to the serious health conditions, treatment therefore, or recovery therefrom.

(c) Eligibility and exceptions.  An employee must be employed by the State of Oklahoma for a minimum of 12 months and have worked a minimum of 1,250 hours during the preceding 12-month period.  Time worked is defined literally.  It does NOT include paid or unpaid leave or holidays.  An employee on active military duty receives credit for the hours and months he or she would have worked but for the employee's military service, in compliance with the requirements of the Uniformed Services Employment and Reemployment Rights Act (USERRA).  An eligible employee is entitled to FMLA leave as a result of:

• (1) the birth of the employee's child and to care for the newborn child.  The leave must be initiated and concluded within one year of the birth of the child;

• (2) the placement with the employee of a child for adoption or foster care.  The leave must be initiated and concluded within one year of the placement of the child;

• (3) a serious health condition of the employee's spouse, child, or parent necessitating care from the employee.  Care includes providing physical and psychological support, as deemed necessary by a health care provider;

• (4) a serious health condition that makes the employee unable to perform the essential functions of the employee's job.  A serious health condition is defined as an illness, injury, impairment, or physical or mental condition that involves:

• (A) any period of incapacity or treatment connected with inpatient care in a hospital, hospice, or residential medical-care facility;

• (B) continuing treatment by a health care provider, including any one or more of the situations described in (i) - (v).

• (i) Incapacity and treatment. A period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:

• (I) treatment two or more times by a health care provider, within 30 days of the first day of incapacity, unless extenuating circumstances exist; or

• (II) treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of a health care provider.

• (ii) Pregnancy or prenatal care.  Any period of incapacity due to pregnancy or for prenatal care.  This includes severe morning sickness.

• (iii) Chronic conditions.  Any period of incapacity or treatment for such incapacity due to a chronic serious health condition.  A chronic serious health condition is one which:

• (I) requires periodic visits, defined as at least twice a year, for treatment by a health care provider;

• (II) continues over an extended period of time, including recurring episodes of a single underlying condition; and

• (III) may cause episodic rather than a continuing period of incapacity.

• (iv) Permanent or long-term conditions.  A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective.

• (v) Conditions requiring multiple treatments.  Any period of absence to receive multiple treatments, including recovery, from a health care provider for:

• (I) restorative surgery after an accident or injury; or

• (II) a condition that would likely result in a period of incapacity of more than three consecutive, full calendar days, in the absence of medical intervention or treatment;

• (5) any qualifying exigency arising out of the fact that the spouse, son, daughter, or parent of the employee is on active duty or has been notified of an impending call or order to active duty in the Armed Forces in support of a contingency operation and is a covered servicemember.

• (A) Son or daughter for this type of FMLA leave is defined as for other types of FMLA leave, except that the individual does not have to be a minor.

• (B) Covered servicemembers, for purposes of this Section are:

• (i) current members of the Armed Forces, including members of the National Guard or Reserves;

• (ii) retired members of the regular Armed Forces;

• (iii) retired members of the Reserve who retired after completing at least 20 years of active service.

• (C) Qualifying exigencies include:

• (i) short-notice deployment.  Leave taken for this purpose can be used for a period of seven calendar days;

• (ii) military events and related activities; and

• (iii) child care and school activities;

• (iv) financial and legal arrangements;

• (v) counseling;

• (vi) rest and recuperation.  Eligible employees may take up to five work days for each period of rest and recuperation;

• (vii) post-deployment activities; and

• (viii) additional activities as mutually agreed by employer and employee.

• (D) Leave may commence as soon as the person receives the call-up notice.

• (E) Leave is counted toward the 12-week maximum of FMLA leave allowed in a 12-month period.

• (F) The requesting employee must provide proof of the qualifying member's call-up or active military service.  Documentation may be a copy of the military orders or other Armed Forces communication; or

• (6) caring for an injured or ill servicemember.

• (A) Leave can extend up to 26 weeks in a single 12-month period for an employee whose spouse, son, daughter, parent, or next of kin is injured or recovering from an injury suffered while on active military duty and who is unable to perform the duties of the servicemember's office, grade, rank, or rating.

• (B) Next of kin of a covered servicemember means the nearest blood relative other than the servicemember's spouse, parent, son, or daughter, in the following order of priority:  blood relatives who have been granted legal custody of the covered servicemember by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins, unless the covered servicemember has specifically designated in writing another blood relative as his or her next of kin.

• (C) An employee is also eligible for this type of leave when the servicemember is receiving medical treatment, recuperation, or therapy, even if the servicemember is on the temporary disability retired list.

• (D) An employee must provide certification of the family member or next-of-kin's injury, recovery, or need for care.  Documentation can include a copy of the military medical information, orders for treatment, or other official Armed Forces communication pertaining to the servicemember's injury or illness incurred on active military duty that renders the member medically unfit to perform his or her military duties.

(d) Limitations.  Unless complications arise, the common cold, flu, ear ache, upset stomach, minor ulcer, headache other than migraine, routine dental or orthodontia problem, and periodontal disease are not considered serious health conditions.  Routine physicals, eye examinations, and dental examinations are not considered treatment. Examinations to determine if a serious health condition exists or to evaluate the serious health condition are considered treatment.

• (1) When both husband and wife are employed by the same division and in the same office, the total number of workweeks of FMLA leave to which both are entitled is limited to combined 12 workweeks for leave taken in accordance with (c)(1) or (2) of this Section or a combined 26 workweeks for leave taken in accordance with (c)(6) of this Section.

• (2) OKDHS utilizes a rolling 12‑month period.  This is the current monthly pay period and the preceding 11 monthly pay periods beginning with the first day of the approved leave.

(e) Leave charges.  FMLA leave is not a separate type of leave, and is not accrued or accumulated.  It is a designation specified by law and is independent of actual leave used to cover the absence.  When FMLA leave is taken to care for a sick family member or for the employee's own serious health condition, the leave may be taken either consecutively or on an intermittent basis.  A FMLA qualifying absence is filed as such from the onset of the absence.

• (1) If the employee is eligible for a paid holiday while on FMLA leave, that leave day is not designated as FMLA leave.

• (2) If the employee elects to use compensatory time earned in accordance with the Fair Labor Standards Act, such leave is designated as FMLA leave.

• (3) If an absence is work-related, it is not exempt from the FMLA leave designation.  All FMLA-qualifying absences must be designated and charged as such.  The first 12 weeks of leave taken for a work-related injury are designated as FMLA leave, if the employee is eligible for FMLA leave and chooses not to supplement temporary total disability (TTD) payments with sick leave, annual leave, compensatory time or compensatory holiday leave.

• (4) The options an employee has for charging FMLA leave are:

• (A) charge to accumulated annual leave;

• (B) charge to accumulated sick leave;

• (C) charge to accumulated compensatory time;

• (D) record as leave without pay (LWOP); or

• (E) charge to shared leave after all available paid leave has been exhausted.

(f) Employee responsibility.  When possible, an employee schedules FMLA leave to accommodate OKDHS operations.  The employee provides the supervisor notice and a leave request a minimum of 30 calendar days before the leave is to begin, when the leave is foreseeable.  When the need for FMLA leave is unforeseeable, the employee gives the supervisor as much notice and provides a leave request as soon as possible following discovery of the need.  The notice and leave request must:

• (1) be in writing;

• (2) refer to Merit Rule OAC 530:10-15-45;

• (3) describe the reason for the FMLA leave;

• (4) specify the type of leave to be charged during the absence; and

• (5) include any information or documentation required for the type of absence requested, including such documents as Form 10AD001E, Request for Approval of Leave; and requested certification or supporting documentation.  The employee's supervisor only requests what is traditionally required for that particular type of absence.  A diagnosis is not requested.  Information sufficient to establish the medical necessity for leave, the employee's ability to perform the essential functions of the job as well as other work restrictions and duration of treatment may be requested.

(g) Supervisor responsibility.  The employee's immediate supervisor is responsible for reviewing all requests for leave.  FMLA-qualifying absences are designated and charged as such.  Within five business days of an employee giving notice of leave under this regulation or the supervisor acquiring information that an employee's leave may be FMLA-qualifying, the supervisor provides the employee with Form 11PE073E, Notice of Eligibility and Rights and Responsibilities Family and Medical Leave Act (FMLA).  Form 11PE073E serves as notice of employee's FMLA eligibility and rights and responsibilities under this regulation, including the responsibility of required certification or documentation to determine that the absence qualifies as FMLA leave.    Once requested certification or documentation is submitted by the employee, the supervisor, within five business days, determines whether leave qualifies for FMLA, notifies the employee as to how leave will be designated, and provides the employee with Form 11PE074E, Designation Notice Family and Medical Leave Act (FMLA).  A supervisor does not interfere with, restrain, or deny the exercise of any right provided under this regulation. 

• (1) If the absence qualifies and the employee has complied with regulations, leave cannot be denied.

• (2) The employee must be informed of such designation before returning from leave and advised of his or her rights and responsibilities.  The supervisor does not designate leave as FMLA leave after the employee has returned to work except in the situations described in (A) and (B) of this paragraph.

• (A) If the employee was absent for a reason under FMLA and the supervisor was not aware of the reason for the absence until the employee's return, the supervisor, within five business days of the employee's return to work, designates the leave retroactively with the appropriate notice to the employee.

• (B) If the employee's supervisor knows the reason for the leave but has not been able to confirm that the leave qualifies under this regulation, or where the supervisor has requested medical certification which has not yet been received, the supervisor makes a preliminary designation and notifies the employee at the time leave begins or as soon as the reason becomes known.  Upon receipt of the requisite information from the employee or medical certification, the preliminary designation becomes final.  If medical certification fails to confirm the reason for the absence qualified under the regulation, the employee's supervisor withdraws the designation.

• (3) If the employee is not eligible for leave due to lack of tenure or time worked, the employee is notified of the determination prior to the date the leave commences or as soon as practicable.  In the event of extenuating circumstances, notice of determination must occur within five business days from the beginning of the absence or receipt of request, whichever is sooner.

• (A) If an employee is ineligible when leave is requested, the employee is advised as to the number of months worked toward the 12-month service requirement or hours worked for the employer in the preceding 12-month period.

• (B) After eligibility is confirmed, or if the employee is not advised of ineligibility, the employee is deemed eligible.  The employee's eligibility is not later challenged.

• (4) If the employee's supervisor doubts the validity of a medical certification, the supervisor may require the employee to obtain a second opinion at OKDHS expense.

• (A) A second or third medical opinion can only be requested upon receipt of the original medical certification for the FMLA qualifying condition and when a new certification is requested at the beginning of each new rolling calendar year.

• (B) Pending receipt of a second or third medical opinion, the employee is provisionally entitled to FMLA benefits, including maintenance of group health benefits.

• (C) When a certification does not ultimately establish the employee's entitlement to leave, the leave is not designated as FMLA leave.  It may be treated as paid or unpaid leave under the leave regulations.

• (D) The local administrator is permitted to designate a health care provider to furnish the second opinion, provided the selected health care provider is not employed on a regular basis by OKDHS.  OKDHS does not regularly contract with or otherwise regularly utilize the services of the health care provider furnishing the second opinion.

• (E) If the opinions of the employee's and the OKDHS designated health care provider differ, the local administrator requires the employee to obtain certification from a third health care provider, again at OKDHS expense.

• (i) The third opinion is final and binding.

• (ii) The third health care provider is designated or approved jointly by both the local administrator and the employee.

• (iii) OKDHS and the employee act in good faith to attempt to reach agreement on the third opinion provider.  If OKDHS does not attempt to reach agreement, OKDHS is bound by the first certification.  If the employee does not attempt to reach agreement in good faith, the employee is bound by the second certification.  For example, an employee who refuses to agree to see a doctor in the specialty in question may be failing to act in good faith.  If OKDHS refuses to agree to any doctor on a list of specialists in the appropriate field provided by the employee and whom the employee has not previously consulted, OKDHS may be failing to act in good faith.

• (F) The local administrator provides the employee with a copy of the second and third medical opinions, when applicable and upon written request.  Requested copies are provided within five business days unless extenuating circumstances prevent such action.

• (G) If the local administrator requires the employee to obtain a second or third opinion, the employee or family member is reimbursed for any reasonable out-of-pocket travel expenses incurred.  The local administrator cannot require an employee or family member to travel outside normal commuting distance for the purpose of obtaining the second or third medical opinions except in very unusual circumstances.

• (H) A request for an additional medical opinion is approved by the employee's division director or designee.

(h) OKDHS responsibility.  Upon return from FMLA leave, the employee is restored to the same or equivalent position with all benefits the employee would have had if he or she had been continuously employed during the period.  The taking of FMLA leave is not used as a factor in employment actions.  Benefit anniversary dates which normally are extended due to LWOP are subject to extension in accordance with applicable regulations.  This includes, but is not limited to, longevity pay, leave accrual, and retention points.  Time worked toward qualifying work experience is extended under this regulation only if an extension would apply to an absence under other regulations.

(i) Insurance coverage.  OKDHS pays its portion of the group insurance premium, including the benefit allowance for dependent health coverage.  The employee is responsible for paying the employee's portion of the applicable insurance premiums.  If the employee remains on LWOP after exhausting FMLA leave, the employee is responsible for the insurance premium paid on his or her behalf.  Failure to maintain premiums results in termination of coverage.

• (1) If coverage has lapsed due to the non-payment of premiums and the employee returns during the 12-week period, he or she is eligible to re-enroll in coverage previously held at the time leave began.

• (2) If coverage has lapsed due to non-payment of the premiums and the employee returns after the 12-week period, OKDHS restores coverage provided the employee notifies his or her local administrator within 30 calendar days of the employee's return to work.  Failure to provide proper notification results in the loss of any optional coverage for a period of 12 months.  The employee is not eligible for re-enrollment until the next plan year option period following the expiration of the 12-month waiting period.

(j) Failure to return from FMLA leave.  Unless medically unfeasible, the employee is expected to return from FMLA leave.  Failure to do so, when the FMLA leave is taken as unpaid leave, may subject the employee to liability for all insurance premiums paid by OKDHS pursuant to this Act.

(k) Examples of computation of available FMLA leave (rolling 12-month period). These examples assume an employee is on extended FMLA leave for a qualifying event.