1005 Family and Medical Leave

Georgia Department of Human Services
Human Resources Policy #1005

Family and Medical Leave

Release Date:

November 1, 1999

Revised Date:

October 18, 2024

Next Review Date:

October 17, 2026

References:

U.S. Department of Labor
29 U.S. Code Chapter 28 — Family and Medical Leave
29 CFR Part 825 — The Family and Medical Leave Act of 1993
Rules of the State Personnel Board 478-1-.23 — Family and Medical Leave

The Family and Medical Leave Act (FMLA) provides job-protected leave without pay to eligible employees for the birth and care of their newborn child, placement of a child for adoption or foster care, to care for an immediate family member with a serious health condition, or for their own qualifying serious health condition. The FMLA also provides job-protected leave without pay to eligible employees due to a family member’s call to active duty in the Armed Services or to care for an injured service member. It is the policy of the Georgia Department of Human Services (DHS) to grant up to twelve (12) workweeks of Family and Medical Leave (FML) leave during any rolling twelve (12) month period to eligible employees or up to twenty-six (26) workweeks of military caregiver leave to care for a covered service member with a serious injury or illness.

Section A: Use of Paid Leave

DHS permits employees to use accrued annual, compensatory, personal, and/or sick leave while on FML to remain in pay status. The employee’s need for leave must warrant use of sick leave if sick leave is requested. See DHS Policy #1006: Absence from Work for guidance regarding sick leave usage.

Section B: Use of FML

Authorized officials cannot deny the use of FML when the provisions of this policy have been met. It is unlawful to interfere with, restrain, or deny the exercise of (or attempts to exercise) any right provided by the FML. Further, it is unlawful to discharge or discriminate against employees for opposing any practice made unlawful by the FML or for involvement in any proceeding relating to the FML. This policy does not, however, insulate any employee from disciplinary action based on conduct or performance deficiencies.

Section C: QUALIFYING REASONS

Employees are eligible for FML for any of the following reasons:

Pregnancy and/or birth of the employee’s child.

Pregnancy is considered a serious health condition under the FML, and all pregnancy related absences from work [e.g., morning sickness, prenatal examinations, birth, etc.] qualify for FML and sick leave.

Care of the employee’s newborn child.
The placement of a child with the employee for adoption or foster care, and to care for the child after placement.
A serious health condition which makes the employee unable to perform the essential functions of the position; or,
Care of the employee’s child, spouse, stepchild, or parent who has a serious health condition.

A qualifying exigency arising out of a covered family member’s active duty or call to active duty in the Armed Services in support of a contingency operation.
1. An employee whose spouse, (also including same-sex spouse), son, daughter or parent either has been notified of an impending call or order to active military duty or who is already on active duty may take up to twelve (12) weeks of leave for reason related to or affected by the family member’s call-up or service when it constitutes a qualifying exigency.
2. Qualifying exigencies include: (1) short notice deployment, (2) military events and related activities, (3) childcare and school activities, (4) financial and legal arrangements, (5) counseling, (6) rest and recuperation, (7) post-deployment activities, and (8) additional activities to address other events that arise out of the covered service member’s active duty or call to active duty status, provided that DHS and employee agree that such leave shall qualify as an exigency and agree to both the timing and duration of the leave. The leave may commence as soon as the individual receives the call-up notice.
Care of an injured service member who is the employee’s family member or nearest blood relative.
1. An employee may take up to twenty-six (26) weeks of FML in a twelve (12) month period to care for a covered service member with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the service member.
For the qualifying reasons for taking FML the following definitions apply:
1. “Child” means a biological child, adopted or foster child, stepchild, regardless of whether the in loco parentis requirement of providing day-to-day care or financial support for the child is met, legal ward, or a child of an employee standing in loco parentis who is either under age 18 or is age 19 or older and incapable of self-care because of mental or physical disability. This age limit does not apply for purposes of military Family and Medical Leave.
2. “Family member” means the employee’s spouse, child, or parent.
3. “Parent” means a biological parent or an individual who stands or stood in loco parentis to an employee when the employee was a child under age 18. “In loco parentis” means having day-to-day responsibility ties to care for and financially support a child. “Parent” does not include parents-in-law.
4. “Spouse” means a husband or wife as defined or recognized in the state where the individual was married and includes individuals in a common law marriage or same-sex marriage. The place where the marriage was entered into (referred to as a “place of celebration” rule) rather than the law of the employee’s state of residence.
5. Common Law Marriage: The rule would also extend FML to common law spouses in all 50 states, as long as the relationship is legally recognized in at least one state. This includes live-in relationships between same sex and opposite sex couples.
6. “Next-of-kin are the closest blood relative of the injured or recovering service member other than the covered service member’s spouse, parent, or children.
7. “Covered active duty” means deployment to a foreign country as a member of the regular Armed Forces or as a result of a federal call to active National Guard or Reservist military duty in support of a contingency operation.

Section D: ELIGIBILITY

To be eligible for FML, employees must:
1. Have been employed with State government for a minimum of twelve (12) months, whether consecutive or non-consecutive, within the past seven (7) years.
2. Time worked for the State of Georgia in any employment capacity will count toward meeting the eligibility requirements. Such employment includes full-time, part-time, temporary, seasonal, and sporadic employment, whether paid on a salaried or hourly basis, and previous employment with a temporary services agency on assignment with the state.
3. Have been present at work for a minimum of 1,250 hours during the twelve (12) months immediately preceding the beginning of the FML (does not include holidays or time away from work on paid or unpaid leave); and
4. Have a qualifying reason for taking FML.
Eligibility for FML to care for a newborn child begins on the date of birth and ends twelve (12) months after the date of birth.
Eligibility for FML due to the placement of a child with the employee for adoption or foster care may begin prior to the date of placement if absence from work is needed for the placement to proceed. Eligibility ends twelve (12) months after the date of placement.
FML for a serious health condition is limited to the time determined to be medically necessary by the attending health care provider.
1. FML to care for a family member with a serious health condition ends if the family member dies. The date of death is the last day that qualifies for FML.
2. Authorized officials may approve leave after the date of death of an employee’s family member in accordance with DHS Policy #1006: Absence from Work.
3. A leave of absence without pay may also be considered in accordance with DHS policy.
In accordance with Federal regulations, when married individuals are both eligible State employees, they are limited to a combined total of twelve (12) workweeks of FML for the following reasons:
1. Bonding with the employee’s newborn child within twelve (12) months from date of birth; or
2. Placement of a child with the employee for adoption or foster care, or to care for the child within twelve (12) months after placement; or
3. Care of an individual who stood in loco parentis or the employee’s biological parent who has a serious health condition.
4. Each spouse is entitled to use the difference between the amount of FML each has taken individually for one of the above reasons.

Section E: Serious Health Condition

A “serious health condition” is defined as an illness, injury, impairment or physical or mental condition that involves:
1. Inpatient care in a hospital, hospice, or residential medical care facility, including any period of incapacity or any further treatment in connection with inpatient care.
2. Continuing treatment by a health care provider which includes one (1) or more of the following:
  1. A period of incapacity of more than three (3) consecutive calendar days, and any additional treatment or period of incapacity relating to the same condition that also involves:
  2. Treatment two (2) or more times by a health care provider, by a nurse or physician’s assistant under direct supervision of a health care provider, or other referred health care services provider; or,
  3. Treatment by a health care provider at least once that results in a regimen of continuing treatment (e.g., prescription medication) under the supervision of the health care provider.
Any period of incapacity due to pregnancy, or for prenatal care.
Any period of incapacity or treatment due to a chronic serious health condition that requires periodic treatment, continues over an extended period of time, and may cause episodic rather than a continuing period of incapacity.
Any period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer’s disease).
Any period of absence to receive multiple treatments (including recovery period) either for restorative surgery after an accident or other injury or for a condition that would likely result in incapacitation of more than three (3) calendar days if not treated (e.g., chemotherapy for cancer, dialysis for kidney disease, etc.).
Substance abuse may meet the criteria for a serious health condition. FML may be taken for substance abuse treatment or to care for a child, spouse or parent who is receiving substance abuse treatment. FML for substance abuse treatment does not prevent DHS from taking appropriate disciplinary action against an employee for conduct or performance deficiencies.

Section F: Healthcare Provider

“Healthcare provider” means the following:
1. Doctor of Medicine or osteopathy.
2. Podiatrists, dentists, clinical psychologists, optometrists.
3. Chiropractors.
4. Nurse practitioners, nurse-midwives, clinical social workers.
5. Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts.
6. Any health care provider from whom DHS or the State Health Benefit Plan will accept certification of the existence of a serious health condition to substantiate a claim for benefits; and,
7. Health care providers listed above who practice in a country other than the United States.

Section G: Time Frames

Eligible employees are entitled up to twelve (12) workweeks of FML during any rolling twelve (12) month period to eligible employees or up to twenty-six (26) workweeks of military caregiver leave to care for a covered service member with a serious injury or illness.
1. The twelve (12) or twenty-six (26) workweeks of FML are based on an employee’s regular work schedule. If a holiday(s) occurs during a week of FML, the holiday(s) counts toward FML as if it were a workday.
2. Under the rolling twelve-month period, each time an employee takes FML for any reason except military caregiver leave, DHS will measure the twelve (12) month period backward from the date the employee uses any FML. Each time the employee takes FML, DHS will compute the amount of leave the employee has taken within the current FMLA year and subtract it from the twelve (12) weeks of available leave, and the balance remaining is the amount of leave available to the employee for the duration of the eligibility year.
3. For military caregiver leave only, DHS will measure the rolling twelve (12) month period going forward. The leave year is based on a single twelve (12) month period and begins with the first day the employee takes leave. Any FML already taken for other FML circumstances will be deducted from the total twenty-six (26) weeks available.

Section H: Intermittent/Reduced Leave Schedule Option

FML may be taken intermittently or on a reduced leave schedule under certain circumstances. FML cannot exceed 480 hours for that given year.
1. Intermittent leave is leave taken in separate blocks of time due to a single qualifying reason (e.g., morning sickness, prenatal examinations).
2. A reduced leave schedule reduces employees’ normal work hours per workweek or per workday.
FML may be taken intermittently or on a reduced leave schedule when medically necessary or to provide care or psychological comfort to a qualifying family member with a serious health condition. A medical statement is not required for each absence when FML is taken intermittently. Documentation may be required initially, and recertification may be required no more often than every thirty (30) calendar days.
FML may be taken intermittently or on a reduced leave schedule to care for a newborn child or for placement of a child for adoption or foster care ONLY with supervisory approval unless the absence involves a qualifying serious health condition.
Employees who request FML on an intermittent or reduced leave schedule basis may be required to temporarily transfer to an available alternative position that better accommodates recurring periods of absence.
1. The alternative position must have equivalent pay and benefits but is not required to have equivalent duties.
2. Employees must not be transferred to alternative positions in order to discourage the use of FML or to positions that represent a hardship (e.g., employees may not be transferred to a less desirable shift.).
3. When the need for intermittent leave or a reduced leave schedule ends and employees are able to return to their normal work schedules, they must be returned to their former positions or equivalent positions.
Only the amount of leave actually taken on an intermittent or reduced leave schedule basis may be counted toward the twelve (12) workweeks of FML. For example, employees who normally work five (5) days per workweek and take off one (1) day for intermittent FML will be charged 1/5 workweek of FMLA. Similarly, full-time employees who reduce a workweek from forty (40) to twenty (20) hours are charged ½ workweek of FML.

Section I: Request

Employees are responsible for notifying supervisors or authorized officials of the need for FML.
1. Employees must give supervisors or authorized officials adequate notice (usually thirty [30] calendar days) when FML is foreseeable.
2. When thirty (30) calendar days advance notice is not possible, employees must give supervisors or authorized officials notice as soon as they become aware that FML is necessary. FML may be delayed when adequate notice is not provided.
3. If FML is foreseeable based on planned medical treatment, employees must make a reasonable effort to schedule the FML, subject to the approval of the attending health care provider, when the operations of the work unit will not be unduly disrupted.

When requesting FML, employees are to provide a completed Certification of Health Care Provider for Employee’s Serious Health Condition to their designated FML Specialist or authorized officials (e.g., Human Resources Representative), unless submitting this form is not possible. The following information must be provided:

Beginning and ending dates of requested FML.
Request for use of compensatory time, annual, sick and/or personal leave or leave without pay; and,

Reason for the FML. The reason for the absence must be explained in order to determine whether the absence qualifies for FML.

If employees request to use paid leave while on FML, they are to submit the appropriate leave request forms in addition to the Certification of Health Care Provider for Employee’s Serious Health Condition.

Employees requesting FML due to adoption or foster care are to provide to their designated FML Specialist or authorized officials (e.g., Human Resources Representative) the completed Certification of Adoption or Foster Care Form or similar form, whichever is appropriate. Separate FML request forms and certification forms are not needed to cover each absence. These forms need to be submitted only one time, unless the circumstances regarding placement change to the extent that updated information is needed.
Employees requesting FML due to a serious health condition (including pregnancy/childbirth) must provide to their designated FML Specialist or authorized officials (e.g., Human Resources Representative) a Certification of Serious Health Condition Form, or other medical statement with similar information, completed by the attending health care provider. When a single serious health condition requires multiple absences (e.g., asthma, chemotherapy, etc.), a separate medical statement is not required for each absence.
1. When FML for a serious health condition is foreseeable, this certification should be provided before the absence begins.
2. When it is not possible to provide this certification before the absence begins, employees must provide the certification within fifteen (15) calendar days of the date it is requested.

Section J: Response-Eligibility, Rights & Responsibilities Notice

Once an employee requests FML, or once the Department becomes aware that an employee’s leave may qualify for FML, DHS must notify the employee, within five (5) workdays (unless extenuating circumstances occur, such as an emergency office closure) of the following:
1. Whether the employee meets the employment eligibility criteria for FML.
2. Whether the employee has any remaining FML.
3. The employee’s rights and responsibilities for taking FML.
4. If the employee did not submit supporting documentation with a request for FML OR if sufficient information is not available to determine whether FML should be approved, DHS should include in this notice any requirement to provide the necessary documentation and give a deadline for submission that is at least fifteen (15) calendar days after the notice is provided to the employee. During this period of time, authorized officials may conditionally approve the FML contingent upon receiving the required documentation.
If there is a question as to the validity of the certification for FML, and ONLY with the approval of the Deputy Commissioner of the Office of Human Resources or his or her designee, the employee may be required to obtain a second opinion from a health care provider chosen or paid for by DHS.
Supervisors or authorized officials who do not comply with the requirements of this policy are subject to disciplinary action up to and including dismissal.

Section K: Designation Notice

Once DHS has sufficient information to determine whether the leave qualifies for FML Protection (e.g., after receiving supporting documentation), DHS must notify the employee within five (5) workdays (unless extenuating circumstances occur, such as an emergency office closure) whether the leave will be designated as FML and count against the employee’s entitlement.
The Designation Notice can be combined with the Eligibility, Rights, & Responsibilities Notice if DHS has sufficient information to designate the leave as FML at the time it becomes aware of the employee’s need for leave.
FML denial must include at least one reason for denial.
It is the employee’s designated FML Specialist or authorized officials (e.g., Human Resources Representative) responsibility to designate FML as appropriate. If FML is determined appropriate, employees are to be placed on FML even when they do not submit a request. The employee’s designated FML Specialist or authorized officials (e.g., Human Resources Representative) may learn that an absence or part of an absence, from work qualifies for FML either during or after the period of absence. In these circumstances, FML should be designated as follows:
1. When the employee’s designated FML Specialist or authorized officials (e.g., Human Resources Representative) learn that an employee is eligible for FML during a period of absence, any portion of the absence from work that qualifies for FML should be designated as such. When FML is designated, medical certification is still required to confirm that the absence qualifies as FML.
2. Generally, absences from work may not be retroactively designated as FML after an employee has returned to work. However, FML may be designated retroactively under the following circumstances:
  1. When the employee was absent for an FML reason, and DHS did not learn of the reason for the absence until the employee’s return. The retroactive designation must be made within fifteen (15) calendar days of the employee’s return to duty unless extenuating circumstances occur, such as an emergency office closure etc.
  2. When DHS knows the reason for leave but has not been able to confirm that the leave qualifies under FML. In such cases, the FML designation must be made promptly upon receipt of appropriate certification.
3. When the reason for the absence is known beforehand by DHS (e.g., pregnancy/childbirth), employees are not to be retroactively placed on FML after they return to work. However, if DHS does not timely designate FML leave, DHS may retroactively designate the absence as FML leave if the employer provides appropriate notice to the employee and the retroactive designation does not cause harm or injury to the employee.

Section L: Exhaustion or Ineligible for FML

Definitions
1. Catastrophic Leave – Catastrophic means a life-threatening injury or illness of an employee or member of an employee’s immediate family, including only a child, parent, spouse or “next of kin” for covered service member which totally incapacitates the employee from work, as verified by a licensed physician. Allows an employee who has been employed with DHS for a minimum of three (3) continuous months immediately prior to take paid/unpaid time off for up to three (3) continuous months.
2. Contingent Leave - In order to qualify an employee or member of an employee’s immediate family, including only a child, parent, spouse or “next of kin” for covered service member must be experiencing an illness which prevents the employee from working, as verified by a licensed physician. Leave of absence without pay is similar to a regular leave of absence, but only allows the employee to take up to three (3) months of unpaid leave and does not guarantee a position will be available for the employee’s return.
3. Leave of Absence - In order to qualify an employee or member of an employee’s immediate family, including only a child, parent, spouse or “next of kin” for covered service member must be experiencing an illness which prevents the employee from working, as verified by a licensed physician. Allows an employee who has been employed with DHS for a minimum of 12 continuous months immediately prior to requesting a Leave of Absence (LOA) to take paid/unpaid time off for up to three (3) continuous months (six (6) months if Catastrophic Leave applies) and be granted return to work if the employee returns within the terms of the leave approval.
Exhaustion of FML
1. Designate LOA then Contingent Leave
  1. Compliance Management determines an employee has exhausted their twelve (12) week FML entitlement and will notify the employee of appropriate next steps via written correspondence.
  2. Compliance Management will designate a LOA for employees who have satisfied the twelve (12) months of employment requirement with DHS, if appropriate.
  3. Upon exhaustion of the designated three (3) months LOA period, Compliance Management will review the updated documentation to determine the employee’s eligibility for an extended LOA under the Catastrophic Leave exception, when appropriate.
  4. Upon utilization of the designated three (3) months LOA (six (6) months if Catastrophic Leave applies), Compliance Management will work collaboratively with the employee’s Human Resources Representative to designate a contingent leave of absence, if appropriate.
  5. Upon utilization of the designated Contingent Leave period (up to three (3) months), Compliance Management will work collaboratively with the employee’s Human Resources Representative to determine the next steps.
Ineligible for FML
1. Move to LOA then Contingent Leave
  1. Compliance Management determines the employee is ineligible for FML.
  2. Compliance Management will designate a LOA for employees who have satisfied the twelve (12) months of employment requirement with DHS, if appropriate.
  3. Upon exhaustion of the designated three (3) months LOA period, Compliance Management will review the updated documentation to determine the employee’s eligibility for an extended LOA under the Catastrophic Leave exception, when appropriate.
  4. Upon utilization of the designated three (3) months LOA (six (6) months if Catastrophic Leave applies), Compliance Management will work collaboratively with the employee’s Human Resources Representative to designate a contingent leave of absence, if appropriate.
  5. Upon utilization of the designated Contingent Leave period (up to three (3) months), Compliance Management will work collaboratively with the employee’s Human Resources Representative to determine the next steps.
2. Ineligible for LOA then Contingent Leave
  1. Employees who have not satisfied the 12 continuous months of employment requirement with DHS will be deemed ineligible for a LOA.
  2. Compliance Management will work collaboratively with the employee’s Human Resources Representative to designate a contingent leave of absence, if appropriate.
  3. Upon utilization of the designated Contingent Leave period (up to three (3) months), Compliance Management will work collaboratively with the employee’s Human Resources Representative to determine the next steps.

Section M: Pay Status Benefits

Employees must use paid leave (compensatory time, annual, sick, or personal, Short-term disability, etc.) if appropriate, or use a combination to cover the absence from work. Use of paid leave must comply with DHS Policy #1006: Absence from Work. Leave without pay should only be used when paid leave has been exhausted or Short-term disability is being utilized.
1. Absences due to morning sickness and other pregnancy related absences (including the two [2] weeks immediately before delivery) generally qualify for use of sick leave by female employees.
2. The first six (6) weeks following the birth of a child generally qualify for use of sick leave by the employee giving birth. Additional use of sick leave due to the birth of a child must be supported by a medical statement. The employee’s spouse or partner would generally be eligible to use sick leave if their presence is needed due to the serious health condition of an eligible family member.
Absences related to adoption when the employee’s presence is required for health- related reasons qualify for use of sick leave. Other FML absences related to adoption qualify for use of compensatory time, annual, personal leave, or authorized leave without pay.
Since leave donations are credited to recipients’ sick leave balances, employees who are on FML can only use donated leave for absences that qualify for use of sick leave.
While on FML, employees who have health insurance benefits through the State Health Benefit Plan are entitled to maintain this health insurance coverage at the employee rate. If premiums change while employees are on FML, they are responsible for paying the new premiums.
In order to maintain health insurance and any benefits through the Flexible Benefits Program, employees on FML with pay (those using compensatory time, sick/donated, annual or personal leave) continue to pay premiums through payroll deductions.
Employees on FML without pay will be advised of the cost for maintaining health insurance and any benefits through the Flexible Benefits Program, arrangements for making payments and consequences for not making timely payments.
1. Employees on FML without pay must complete and submit the following forms to their designated Human Resources Representative.
  1. Request to Continue Health Benefits During Leave of Absence Without Pay.
  2. Disability Certification, if appropriate.
2. Employees with at least one (1) year of participation in the Group Term Life Insurance Program under the Employees’ Retirement System (ERS) may retain coverage while on FML without pay. A request to continue coverage must be made in writing to ERS prior to beginning the FML without pay. Coverage terminates if this written request is not received.
Employees must coordinate with their leadership regarding the use of paid leave. If the employee exhausts FML and the employee enters into a leave without pay status, health insurance and flexible benefits may be continued by paying the monthly premiums in a timely manner.

Section N: System Entry

Supervisors, authorized officials or designees are to complete the Request for Personnel/Payroll Action Form to place employees on FML with and/or without pay. The completed forms are to be submitted to the appropriate transactions center for entry.

Section O: Recertification

Employees on FML due to a serious health condition may be required to provide recertification of the serious health condition on a reasonable basis. Recertification cannot be required more often than every thirty (30) calendar days.

Section P: Return to Work

Employees who have complied with the terms and conditions in the FML approval notice are entitled to return to the same position, or an equivalent position with the same pay and grade, benefits, and comparable working conditions, at the expiration of FML.
1. Employees do not retain this entitlement if at the expiration of FML they are unable to perform the essential functions of the position, with or without reasonable accommodation, due to physical or mental condition.
2. Employees on FML do not have greater rights to return to work than they would have if they had continuously remained at work. For example, employees who are on FML during a staff reduction do not have a right to return to work if they are laid off due to the staff reduction.
Employees returning from FML due to their own serious health condition must submit return-to-work documentation from the attending health care provider prior to returning to work. This statement must certify that the employee is capable of performing the essential functions of the position, with or without reasonable accommodation. Employees who do not provide a required statement or have restrictions that cannot be reasonably accommodated should not be allowed to return to work.
Supervisors, authorized officials, or designees are to submit completed Request for Personnel/Payroll Action Form to the appropriate transactions center for entry for employees returning from FML.

Section Q: Posting FML Notice

Information regarding FMLA and procedures for filing complaints of violations can be found in Attachment #7 — Employee Rights under the Family and Medical Leave Act.
DHS organizational units are to permanently post the notice in prominent locations where notices to employees and applicants are customarily displayed and are to post such revised notices as they become available.

Section R: Concerns with Process

Employees who believe that their FML requests have not been processed correctly should discuss concerns with their Human Resources Representative.

Section S: Confidentiality

Medical information related to FML is strictly confidential and is available to individuals on a “need-to-know” basis only. Supervisors should not request FML related medical information from employees.

For additional information or assistance, please contact your designated Human Resources Representative.