SECTION 10: INTERMITTENT LEAVE, REDUCED WORK SCHEDULE
AND ASSIGNMENT TO AN ALTERNATIVE POSITION
Intermittent Leave and Reduced Work Schedule
Under most circumstances, FMLA and CFRA leave may be taken intermittently or on a reduced work schedule. Intermittent leave is leave taken in separate increments. A reduced work schedule is a leave schedule that reduces an employee's usual number of working hours per workweek or hours per workday. A reduced work schedule is a change in the employee's schedule for a period of time, normally from full time to part-time.
The County may proportionally reduce benefits (such as vacation accrual, sick leave accrual, etc.) when an employee chooses a reduced work schedule. Refer to the Interpretive Manual, Chapter 1, Section III, and (D) Automated Leave Accrual in CWTAPPS and Chapter VII, Section IV Designating Work Schedules. 6
Intermittent leave and a reduced work schedules can be used for the following:
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For the serious health condition of the employee, a qualifying family member,7 or under CFRA only domestic partner or a domestic partner's child8.
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Planned and/or unanticipated medical treatment when medically necessary for recovery from treatment of a serious health condition of the employee or a family member.
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To provide care and/or psychological comfort to a qualifying family member with a serious health condition; under CFRA this also includes a domestic partner or a domestic partner's child.
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A serious health condition which requires periodic treatment rather than one long period of treatment such as doctor appointments, physical therapy, chemotherapy, etc.
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For prenatal care and periods of disability due to pregnancy, under FMLA but not CFRA.9
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For absences where the employee or family member is incapacitated or unable to perform the essential functions of the position because of a chronic serious health condition (see Serious Health Condition, pg. 10), even if the employee does not receive treatment by a health care provider.
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With some limitations, baby bonding time. Any leave taken shall be concluded within one year of the birth or placement of the child with the employee. Intermittent leave in less than two week increments or a reduced work schedule can only be taken with Departmental approval.
6 The
Interpretive Manual can be retrieved from http://dhrdcap.co.la.ca.us/IM/
7
Family member means a spouse, parent, child
and/or next of kin (under NDAA only).
8 Domestic partnership applies under CFRA but not FMLA.
9 CFRA does not cover prenatal care. In California such care is covered under Pregnancy Disability Leave.
Intermittent Leave and Employee Responsibility
An employee must provide the County at least 30 days advance notice before FMLA and/or CFRA leave is to begin if the need for leave is foreseeable. If 30 days notice is not possible, such as due to lack of knowledge of approximately when leave will be required to begin, notice must be given as soon as possible minus extenuating circumstances.
If the leave is foreseeable, employees must make a reasonable effort to schedule their intermittent leave to not disrupt the work of the department. Likewise, management must make a reasonable effort to meet the employee's needs. This can mean changing the employee to a reduced work schedule, an alternative work schedule (if available) or another arrangement agreeable to both management and the employee, in accordance with the medical certification.
When planning medical treatment, the employee must consult with management and make a reasonable effort to schedule the leave to not disrupt the department's operation, in accordance with the medical certification. Employees are ordinarily expected to consult with their departments prior to the scheduling of treatment in order to work out a treatment schedule which best suits the needs of both the department and the employee.
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Departmental
Human Resources Offices can request that |
The ultimate resolution of the leave schedule remains subject to the approval of the health care provider and the schedule established for the planned medical treatment. If an employee who provides notice of the need to take FMLA and/or CFRA leave on an intermittent basis for planned medical treatment neglects to consult with management to make a reasonable attempt to arrange the schedule of treatment to not disrupt the department's operation, management may initiate discussion with the employee and require the employee to attempt to make such arrangements.
Intermittent Care of a Newborn or Placement of a Child
Eligible employees are entitled to take CFRA leave for baby bonding for a one year period starting from the birth date of the baby. In cases of adoption or foster care placement, the one-year period starts on the date the baby was placed with the parent(s).
Under CFRA provisions, baby bonding leave is allowed in increments of two weeks or longer. However, on two occasions only, parents may request baby bonding leave for less than two weeks.
EXAMPLE
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On 05/01/14 Macy requests two days off to bond with her child. (This is considered the first occasion in which leave is being granted for less than two weeks.)
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On 08/01/14 Macy requests four days off to bond with her child. (This is considered the second occasion in which leave is being granted for less than two weeks block.)
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On 09/01/14 Macy requests eight days off to bond with her child. Since Macy has already completed taking leave in less than two-week increments on two separate occasions, allowing such leave will be at the discretion of management. In this same situation, if the employee had requested 10 days of leave (2 weeks), management would have been obligated to grant the leave.
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If the Department opts to waive the CFRA two-week minimum duration for bonding with a newborn child and allows a parent to take intermittent leave in less than two-week increments, then the Department must also afford the same allowance to all other similarly situated employees requesting time to bond with a newborn child.
The two week minimum duration for intermittent leave is only applicable for time off for bonding with a newborn child. For example, leave related to the mother's illness (even if it is a result of her pregnancy) or leave taken to care for a child that has a serious health condition are not subject to the baby bonding intermittent leave limitations.
Only Time Taken Off Counts
An employee may take intermittent leave during all or any portion of the 12-month period as long as the total amount of leave does not exceed the 12 or 26 workweeks (under NDAA only) in one 12-month period. Only the actual time taken can be charged against the employee's entitlement. In other words, if the employee was not scheduled to work (e.g., holiday, weekend, etc.), the time cannot be counted as FMLA and/or CFRA time in accordance with departmental attendance policies.
EXAMPLE
An
employee assigned to a 5-day, 40-hour workweek remains on that schedule,
but takes off one day a week to take a family member for medical treatment.
Each week, eight (8) hours are deducted from the 12 workweeks of FMLA and
CFRA.
EXAMPLE
An
employee is assigned to work five days a week, 6 hours per day (30 hours
per week). The employee asks to take off one day per week to attend therapy
sessions. Each week, six (6) hours are deducted from the 360 hours (12
workweeks) of FMLA and CFRA leave allotment.
A holiday occurring when a full week is taken as FMLA leave will be deducted from the employee's FMLA leave. The entire week is counted as a week of FMLA leave. However, if for any reason, the office or department is closed (e.g. work furlough, earthquake, etc.) the days of the closure cannot be applied against the 12 or 26 workweek entitlement.
If an employee needs less than a full week of FMLA leave and a holiday falls within the partial week of leave, the hours that employee does not work on the holiday cannot be counted against the employee's FMLA leave entitlement if the employee would not otherwise have been required to report to work on that day.
EXAMPLE
Susan is on certified FMLA leave from July 1 through July 30th. The 4th of July would be counted against her FMLA entitlement because she was scheduled be off on FMLA the entire week.
EXAMPLE
Susan is scheduled to be off on intermittent
FMLA leave every Tuesday in November and December to receive treatment.
She takes off the Tuesday before Thanksgiving. Thanksgiving and the day
after both holidays. Because she is only off part of the work week, Thanksgiving
and the day after would not
be counted against her FMLA entitlement
because she would otherwise be at work.
Incremental Usage of FMLA/CFRA
Although there is no limit on the size of the increment an employee may take (i.e. the number of minutes or hours), management cannot require that more leave be taken than is needed. However, when intermittent leave taken is for less than a one-hour period, management may limit leave increments to the shortest period of time that the department's payroll system uses to account for leave or absences.
Assignment to an Alternative Position
Management may temporarily assign an employee who needs intermittent leave or a reduced work schedule to an available alternative position for which the employee is qualified and which better accommodates the recurrent periods of leave. However, management may not transfer an employee to an alternative position in order to discourage the employee from taking leave or otherwise create a hardship for the employee. For example, assigning an employee to another work site could be considered a hardship, if it substantially increases the employee's commute to and from work.
Assignment to an alternative position must comply with Civil Service Rules, existing MOUs and state and federal laws. Management should consult with their Departmental Human Resources Office in these circumstances.
Management may also transfer the employee to a part-time position as long as the employee receives the same hourly equivalent in terms of pay and benefits. Management may not transfer an employee to a part-time position if doing so would result in the employee taking more leave than needed. For example, if an employee required four hours of FMLA and/or CFRA leave each day, the employee could be transferred to a part-time position. However, if the employee only requires two hours per day, the employee could not be transferred to a 4-hour per day part-time position as the job he or she left when the leave commenced.
When FMLA and/or CFRA leave is no longer needed, the employee must be returned to the same position or an equivalent full-time position.
Alternative Position Pay and Benefits
An alternative position offered to an employee to accommodate intermittent leave or a reduced leave schedule must provide the employee with the same pay and benefits and be in compliance with other state or federal laws, County ordinance, and/or labor agreements. However, the employee's duties need not be the same while on a foreseeable intermittent or reduced leave schedule.
For Los Angeles County, same pay and benefits include the class item, maximum salary range and salary provisions under “Notes” as reflected in the County's Schedule A, as well as the item sub of the class encumbered by the employee. It is imperative that there is no change to the employee's “Item Sub” when an alternative position is used with intermittent FMLA leave. For example, if an “A item” (full-time permanent) switches to a “N” item (grant funded), the employee will lose permanent employment status; while a switch to an “U item” (half-time) the employee will lose the cafeteria plan contribution and benefits (e.g., Choices, Options, etc).
The reduction in pay associated with the reduced work hours can be achieved by coding the unworked hours as unpaid FMLA leave. However, the employee is free to use accrued time to cover the unworked hours.
EXAMPLE
Matthew is a full time permanent employee who is a participant in the Choices cafeteria plan. His salary, in his regular position, is the equivalent of $17.50 per hour. The employee requires FMLA and CFRA leave for four hours each day for the next six months. Management elects to assign the employee to an alternative half-time position which pays $12.00 per hour for the entire 6-month period. He must keep his “A” Item and continue to receive $17.50 per hour and his Choices contributions during the 6-month period he is working in the alternative position. The unworked four hours are coded as unpaid FMLA and/or CFRA leave or the employee may cover the daily four hours with accrued time.
Benefits that are Directly Proportional to Hours Worked
Benefits which are directly proportional to hours worked such as vacation, sick leave, and non-elective leave may be proportionally reduced. However, vacation, sick leave, and annual leave benefits cannot be eliminated for a full-time employee who is taking FMLA leave on a reduced work schedule even though the County Code may limit such benefits to employees who work a certain number of hours.
EXAMPLE
Shawn
accrues vacation at the rate of .060 for each hour worked. When he works
a 40-hour week, the employee accrues 2.4 hours of vacation. When he is
working a 20-hour week, due to the need for intermittent FMLA leave, he
accrues 1.2 hours of vacation.
Reduced Work Schedule for FLSA-Exempt Employees
In a normal situation, an FLSA exempt employee is compensated with a set salary, regardless of the number of hours worked per week. However, under FMLA, an exempt employee on intermittent leave or a reduced work schedule can be docked for hours not worked if the time off is for a FMLA qualifying reason and is designated as FMLA leave by management. The docking cannot take place prior to the first day of the FMLA intermittent leave or reduced work schedule. Reduction in wages based on hours not worked will not affect the employee's exempt status if the time is taken for an FMLA qualifying reason. The guideline must be universally applied to all similarly situated employees.
NOTE: Time taken for a reason other than an FMLA qualifying reason may not be deducted from the exempt employee's salary.
EXAMPLE
Audrey,
who is an exempt employee, leaves three hours early every Wednesday for
six months to receive medical treatment. In this situation, the three
hours will be deducted and/or charged against her accrued time. If Audrey
takes a three hour leave for a non-FMLA and/or CFRA reason (e.g. routine
dental visit, etc.),
wages and/or accrued time may not be deducted from the employee.