D.5. Leaves of Absence

D.5. a. Family/Medical Leave

A. General Provisions

This policy is designed to provide the leaves required by the federal Family and Medical Leave Act and California state law. This policy provides for paid and unpaid family and medical leave under the terms and conditions set forth below. Leaves are available for:

the birth or adoption or foster care placement (by the state) of a child; or
to care for the employee's child, parent, spouse, or domestic partner who has a serious health condition; or
a serious health condition that makes the employee unable to perform one or more of the essential functions of her/his job.

There are special rules that apply only to pregnancy-related disabilities.

B. Eligibility for Leave

In order to qualify for unpaid family and medical leave, other than a

pregnancy disability leave, the employee must:

be employed for at least 12 months and have worked at least 1,250 hours within the 12-month period prior to making a request for such leave;
complete a certification of eligibility.

C. Family and Medical Leave Definitions

The unpaid family and medical leave policy is administered in accordance with the following definitions:

"Child" means biological, adopted, or foster child, a step-child, a legal ward or a child to whom the employee stands in loco parentis, who is under the age of 18, or is an adult dependent child, i.e., one who is incapable of self-care because of a mental or physical disability.
"Spouse" means the employee's husband or wife as recognized by state law.
"Parent" means the employee's biological parent or the individual who stood in loco parentis when the employee was a child. It does not include a grandparent or parent-in-law.
"Serious Health Condition" means an illness, injury, impairment, or physical or mental condition that includes:

1. in-patient care in a hospital, hospice, or residential medical care facility; or

2. continuing treatment by a health care provider which includes

any period of incapacity due to:

(a) a health condition lasting more than three consecutive days, and any subsequent treatment or period of incapacity relating to the same condition, that also includes: treatment two or more times by or under the supervision of a health care provider; or one treatment by a health care provider with a continuing regimen of treatment; or

(b) a chronic serious health condition which continues over an extended period of time, requires periodic visits to a health care provider, and may include occasional episodes of incapacity (e.g., asthma, diabetes). A visit to a health care provider is not necessary for each absence in this category; or

(d) a permanent or long-term condition for which treatment may not be effective (e.g., Alzheimer’s, a severe stroke, terminal cancer). Only supervision by a health care provider is required, rather than active treatment; or

(e) any absences to receive multiple treatments for restorative surgery or for a condition which would likely result in a period of incapacity of more than three days if not treated (e.g., chemotherapy or radiation treatments for cancer).

A "serious health condition" generally will not include conditions like the common cold, the flu, earaches, upset stomach, minor ulcers, headaches (other than migraines), or routine dental problems, unless complications arise.

D. Duration of Family and Medical Leave

Employees may be granted a maximum of 12 weeks of family or medical leave in any 12-month period, unless otherwise required by law. For purposes of determining eligibility, the 12 months will be calculated backward from the date on which the employee first takes family or medical leave.

Leave for the birth, adoption, or foster care placement of a child must be concluded within one year of the birth or placement of the child. If both parents of a child are employed by the Institute and request family care leave to care for a newly arrived child, their aggregate childcare leave is limited to 12 weeks. The time each parent takes off will count against her/his 12-week allotment of family and medical leave. If an employee uses less than 12 weeks to care for a newly arrived child, the remainder of his/her 12 weeks of leave can be used for any permissible FMLA purpose.

If there is a medical need, leave may be taken intermittently or on a reduced work schedule basis to care for a sick family member or for an employee's own serious health condition. If the need for intermittent leave is foreseeable based on a planned medical treatment, the Institute reserves the right to require the employee to temporarily transfer to an equivalent position that can better accommodate the recurring periods of leave.

Intermittent leave for the birth, adoption, or foster care of a child generally must be taken in two-week increments. However, the employee can take childcare leave in increments of less than two weeks on two occasions in connection with each birth, adoption, or placement for foster care.

E. Notice/Certificates for Family and Medical Leave

Employees must give the Institute as much advance notice as possible of the need for family or medical care leave. If the employee knows about the leave more than 30 calendar days before the leave is to commence, the employee must give the Institute at least 30 days written notice. If 30 days notice is not possible, i.e., the need for the leave is not known more than 30 days prior to its commencement, or because there has been a change in circumstances or a medical emergency, the employee must give as much notice as possible.

Where the employee's need for the leave is for planned medical treatment or supervision, s/he must consult with the Institute to schedule the treatment to minimize the disruption of the Institute's business.

The employee is required to provide a certificate from the health care provider setting out, among other things, the expected duration of the leave and certifying the condition warrants family or medical care. If the Institute does not receive proper certification prior to commencement of the leave or within 15 calendar days of requesting the certification, the absence from work may be deemed unexcused unless the delay was caused by circumstances truly beyond the employee's control.

The Institute reserves the right to require a second opinion, at its own expense, regarding the employee's serious health condition. Also, in certain circumstances, recertification by the doctor may be requested.

Generally, if given advance notice of the need for the leave, the Institute will designate the leave as family and medical leave before the employee goes out on leave. However, the Institute reserves the right to designate a leave as family and medical leave after the leave has begun if it learns of additional facts that allow it to make a determination while the employee is on leave. In addition, the Institute reserves the right to designate the leave as a family and medical leave after the employee returns to work if it does not have sufficient facts on which to make a determination while the employee is out on leave.

If the Institute does not have sufficient information regarding why an employee is off work, it will inquire as to the reason for the employee's absence. If the employee establishes that the absence is for a family and medical leave or other permissible leave, the time off will be treated consistent with the applicable policy. However, if the employee does not provide the requested information or the information provided is insufficient to establish that the leave is for a purpose covered by the Family and Medical Leave Policy, the leave will be treated as an unexcused absence.

In order to return to work from a medical leave for the employee's own serous health condition, s/he must submit a release to work certification form her/his health care provider.

F. Benefits during Family or Medical Leave

Employees must take any accrued sick leave reserve as part of any family and medical leave for their own serious health condition, including a pregnancy-related condition. In other circumstances, employees may take any accrued sick leave reserve as part of an unpaid family and medical leave when permitted by the sick leave policy. Employees must take any accrued CTO as part of any unpaid family and medical leave; special rules may apply to pregnancy disability leaves. After all paid leave is exhausted, the remaining period of the leave will be unpaid. Benefit Eligible Employees will continue earn CTO during the unpaid portion of any family or medical leave, but not during an accommodation leave.

While taking unpaid family and medical leave, the Institute will continue to provide health benefits, including during pregnancy disability leave and child care leave, under the same terms and conditions as if the employee was still working. The employee will be required to continue paying the employee's portion of any premiums.

Employees may arrange to pay for their own life insurance premiums and premiums for any other insurance during the unpaid portion of the leave. Coverage will terminate at the end of the last period for which premiums are received.

G. Reinstatement

If an employee returns to work at the end of an unpaid family or medical leave which lasts 12 weeks or less, s/he will be returned to the same position held before the leave or to an equivalent position with the same equivalent pay, benefits, and terms and conditions of employment. Special circumstances apply to pregnancy disabilities.

An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the unpaid family and medical leave.

If the employee fails to return to work on the next regularly scheduled workday following the expiration of the leave of absence, her/his employment will be subject to termination.

All requests for family or medical leave of absences will be administered in compliance with applicable federal, state, and local laws.

In addition to the provisions above, the following policies apply when pregnancy results in a disability. Pregnancy related disability leave will be designated as leave under the federal Family and Medical Leave Act, but not under the equivalent California statute.

1. Duration of Leave

If an employee is disabled because of childbirth, pregnancy, or a related condition, she may take a leave of absence of up to four months with medical verification of the disability. Paid family leave is not available for care of a newborn, but only for the mother's own disability. However, after her doctor releases the employee to work, she may apply for a family care leave to care for her newborn.

The estimated duration of pregnancy related disability leave is initially determined by the employee and her doctor. To assist in a smooth transition, employees should share this information with the Institute as far in advance as possible.

I. Transfer Rights

An employee who is pregnant is entitled to a transfer from her current position to a less strenuous or hazardous position or duties if:

the employee provides a certification from her doctor stating less strenuous work is medically advisable; and
transfer can be reasonably accommodated by the Institute.

If it is foreseeable that it would be medically advisable for a pregnant employee to take intermittent leave or work a reduced schedule, the Institute may require the employee to transfer temporarily to an available alternative position that has equivalent pay and benefits, so long as the employee is qualified for the position, and the position better accommodates recurring absences than the employee's regular job.

The employee will be reinstated to her regular job or a comparable position when the employee's health care provider certifies that there is no further need for less strenuous work, intermittent leave, or a reduced work schedule.

J. Rights to Reasonable Accommodation

The Institute will make a reasonable accommodation for conditions that are related to pregnancy, childbirth, or related medical conditions if requested by an employee, with the advice of her health care provider, to the extent provided by law.

An employee must take any accrued sick leave reserve as part of her pregnancy related disability leave. An employee may take any accrued CTO as part of her pregnancy disability leave. After all paid leave is exhausted, the remainder of the employee's pregnancy disability leave will be unpaid.

The Institute will continue to provide health benefits for an employee on pregnancy related disability under the same terms and conditions as if the employee were still working. The employee will be required to continue paying the employee's portion of any premiums. For policies regarding other benefits, refer to the section of this handbook dealing with benefits during family and medical leave. With respect to all benefits, an employee on paid family leave will be treated no less favorably than employees on other disability related leaves.

If an employee returns to work at the end of a pregnancy disability of four months or less, she will be reinstated to her former position unless the position no longer exists because of business changes, such as a reduction in force or job abolishment. If the employee's former position does not exist, she will be reinstated to an equivalent position, if one is available.

The employee will be required to provide the Institute with a fitness for duty certification from her doctor stating she is released to return to work and indicating any work restrictions she may have.

If the employee fails to return to work at the end of any authorized leave, her employment will be subject to termination, unless she is eligible for another form of leave.

M. Child Care Leave After a Pregnancy Related Disability Leave

After the employee is released to return to work from a pregnancy disability, she may request any remaining family and medical leave to care for her newborn, pursuant to the terms of the family and medical leave policy above.

N. Employee Responsibilities

Furnish evidence as requested to substantiate the medical need for disability leave.
Notify the Institute in the event the need for or anticipated duration of the leave has changed.
Notify supervisor in writing or in person two (2) weeks prior to the expiration of the leave to confirm interest in return to work.
Notify supervisor in writing or in person of any address or telephone number changes while on leave.
Return to work promptly at the end of an authorized leave.

D.5.b. Other Disability Leaves

In addition to family/medical and pregnancy-related disability leaves, employees may request a temporary disability leave of absence if in the judgment of the Institute, it is necessary to accommodate reasonably a workplace injury or an ADA-qualified disability to the extent mandated by law. Any disability leave under this section may run concurrently with any medical leave to which the employee is entitled under the Family/Medical leave section of this handbook.

Employees taking disability leave must comply with the family/medical leave provision of this handbook regarding substitution of paid leaves, notice, and medical certification. For the purpose of applying these provisions, a disability leave will be considered a medical leave.

An employee taking a disability leave will not be paid and must exhaust her/his sick leave reserve and accrued CTO time.

If a disability leave under this section extends beyond 12 weeks in a 12-month period, the employee will not be entitled to any continued employer contributions towards any employee benefit plan. An employee, however, may elect to continue participating in such benefit plans, at the employee’s own expense, to the extent permitted by such plans.

The duration of a leave under this section will be consistent with applicable law, but in no event will the leave extend past the date on which an employee becomes capable of performing the essential functions of her/his position, with or without reasonable accommodation. For a full explanation of leave duration and reinstatement rights, employees should contact the Human Resources Office.

D.5.c. Jury Duty and Witness Leave

The Institute encourages employees to serve on jury selection or jury duty when called. Any employee summoned for compulsory jury duty will be excused for the duration of the trial.

A regular employee will receive her/his full salary for the time s/he is on duty, up to a maximum of 30 days in a 12-month period. An employee should notify her/his supervisor of the need for time off for jury duty as soon as a notice or summons from the court is received. A copy of the summons should be submitted when recording jury duty leave at the end of the pay period.

An employee may be requested to provide written verification from the court clerk of having served for Jury Duty. If work time remains after any day of jury selection or jury duty, the employee will be expected to return to work for the remainder of the work schedule.

Jurors’ fees, exclusive of mileage, that are received should be remitted to the Institute Cashier's office. Normal work hours that are spent on jury duty will not be considered as time worked for the purpose of computing overtime pay for non-exempt employees.

An employee who is required by law to appear in court or at another legal proceeding to which s/he is not a party will be provided time off for that purpose, provided s/he provides the Institute with reasonable advance notice. For non-exempt employees, this leave will be unpaid. For exempt employees, salary during leave will be offset by any amounts received as witness fees and no salary will be paid for workweeks in which no Institute work is performed.

D.5.d. Bereavement Leave

In the event of a death in an employee's immediate family, s/he may be granted a leave of absence with pay not to exceed three working days, without any deduction from CTO or SLR balances.

Immediate family includes mother, step-mother, father, step-father, spouse, domestic partner, child, step-child, brother, step-brother, sister, step-sister, current mother-in-law, current father-in-law, grandparents, and grandchildren. Bereavement leave requests must be made known to the supervisor as soon as the employee has need for the leave.

Approved time taken in excess of three working days may be recorded as CTO or SLR.

Regular Full-Time, Regular Part-Time and Temporary Employees with six months or more of service are eligible for Bereavement Leave.

D.5.e. Military Leave

The Institute complies with the Uniformed Services Employment and Reemployment Rights Act (USERRA), which guarantees reemployment rights and benefits if an employee leaves to serve in the uniformed services as long as the cumulative period of absence from employment does not exceed five years.

If an employee serves in the military and needs to take military leave, s/he must inform her/his supervisor and contact the Human Resources Office for information about the employee’s rights and responsibilities before and after such leave. A regular employee will receive her/his full salary for the time s/he is recalled to active duty, up to a maximum of 30 days in a 12-month period. Annual training leave or leave for related schooling and/or training is considered leave without pay, although the employee may elect to use her/his CTO to cover the leave.

The employee is entitled to reinstatement upon completion of military service provided s/he returns or applies for reinstatement within the time allowed by law.

D.5.f. Personal Leave

A staff employee may apply for a non-medical leave of absence without pay of up to six months. Requests for leave of absence will be considered on the basis of the employee’s length of service, performance, responsibility level, the reason for the request, whether other individuals are already out on leave, and the expected impact of the leave on the Institute.

Because of the essential functions of most staff positions and the Institute’s lean staffing, approved personal leaves of absence are very limited. Requests must be submitted in writing to the supervisor and must be approved by the administration in writing before the leave begins.

It is the employee’s responsibility to report to work at the end of the approved leave. An employee who fails to report to work on the first working day after the leave expires will be considered to have voluntarily resigned.

D.5.g. School Activities

If an employee is the parent or guardian of a child and it becomes necessary to attend the child's school because of a suspension, the employee should alert her/his supervisor as soon as possible. Pursuant to California Labor Code Section 230.7, no discriminatory action will be taken against an employee for taking time off for this purpose.

Any school activity absence is subject to the following provisions:

Parents, guardians, or grandparents having custody of one or more children in pre-school, kindergarten, or grades 1 to 12 may take time off for a school activity.
The time off for school activity participation cannot exceed 40 hours for the entire school year and cannot exceed eight hours in any one calendar month.
Employees must provide as much advance notice as possible to their supervisor.
If both parents are employed by the Institute, the first employee to request such leave will receive the time off. The other parent will receive the time off only if the leave is approved by her/his supervisor.
Non-exempt employees must use CTO leave in order to receive compensation for this time off.
Exempt employees may take less than a full day off without loss of pay.
Employees who do not have paid CTO time available will take the time off without pay, or complete a make-up time arrangement through her/his supervisor.

D.5.h. Domestic Violence Leave

The Institute will maintain the confidentiality of any employee requesting domestic violence leave to the extent possible.

Employees who are victims of domestic violence are entitled to take time off to:

get medical attention for injuries caused by domestic violence,
get services from a domestic violence shelter or rape crisis center,
get psychological counseling for a domestic violence related experience,
try to ensure safety from future violence, including seeking restraining orders or other injunctive relief and/or temporary or permanent relocation.

To be eligible for leave, employees must qualify as domestic violence victims. This includes individuals who are being abused by:

a spouse or former spouse,
someone living with them,
someone they are (or were) dating,
someone they are (or were) engaged to,
someone they have a child with, or
a member of their immediate family or a very close relative.

Generally, employees must give their employers reasonable advance notice that they need time off for domestic violence leave. However, in certain circumstances, employees may take an unscheduled leave without giving advance notice.

Certification for domestic violence leave may include:

a police report which indicates that the employee was a victim of domestic violence;
a court order protecting or separating the employee from the abuser, or other evidence from the court or prosecuting attorney that the employee appeared in court; or
a report from a medical professional, domestic violence advocate, health care provider, or counselor documenting that the employee was treated for mental or physical injuries.

Domestic violence leave is unpaid. However, the employee may use any accrued CTO.

D.5.i. Required Use of Sick Pay Before Unpaid Leave

Employees are required to take accrued and unused paid CTO/sick leave reserve before taking unpaid leave, or having unpaid absences. Family and Medical Leave (under both state and federal law) is included in this requirement.

If you are absent for a reason that qualifies you for Paid Family Leave (PFL) payments, and you have not yet accrued or have no CTO available, you are required to use any accrued and unused sick leave reserve during the 7-day waiting period before PFL benefits begin.

You must exhaust all paid CTO/sick leave reserve before taking any unpaid absences.

PFL benefits do not replace all of your usual wages. Your PFL benefits will be supplemented with any accrued and unused CTO/sick leave reserve. If you have no sick leave reserve, or once you exhaust your sick leave reserve, accrued and unused CTO will be used to supplement your PFL benefits.

Employees who are absent because of their own disability may be eligible for State Disability Insurance (SDI) benefits. SDI payments do not begin until after you have been absent from work for 7 calendar days. If you have accrued paid sick leave reserve, sick leave reserve will be used for the first 7 days, before SDI payments begin. If you have no accrued sick leave reserve, any accrued CTO will be used during this waiting period.

SDI benefits do not replace all of your usual wages. Your SDI benefits will be supplemented with any accrued and unused sick leave reserve. If you have no sick leave reserve, or once you exhaust your sick leave reserve, accrued and unused CTO will be used to supplement your SDI benefits.

D.5.j. Sick Pay and Workers’ Compensation Benefits

Paid sick leave is a benefit that also covers absences for work-related illness or injury. Employees who have a work-related illness or injury are covered by workers’ compensation insurance. However, workers’ compensation benefits usually do not cover absences for medical treatment. When you report a work-related illness or injury, you will be sent for medical treatment, if treatment is necessary. You will be paid your regular wages for the time you spend seeking initial medical treatment.

Any further medical treatment will be under the direction of the health care provider. Any absences from work for follow-up treatment, physical therapy, or other prescribed appointments will not be paid as time worked. If you have accrued and unused sick leave, the additional absences from work will be paid with the use of sick leave. If you do not have accrued, paid sick leave, or if you have used all of your sick leave, you may choose to substitute CTO/paid time off for further work absences related to your illness or injury.

D.5.k. Safety Personnel Leave

Eligible employees may take time off to serve as volunteer firefighters, reserve police officers, or emergency rescue personnel during emergencies. This leave is unpaid, though the employee can use any accrued CTO time.

Volunteer firefighters, reserve police officers, and emergency rescue personnel may take leave only for emergency duty. There is no limit on the amount of time they may take off to perform emergency duties.

Volunteer firefighters are also entitled to take up to 14 days each calendar year for fire or law enforcement training.