OFFICE OF EXECUTIVE POLICY AND PROGRAMS
FAMILY AND MEDICAL LEAVE ACT POLICY AND PROCEDURE

THE LANGUAGE USED IN THIS DOCUMENT DOES NOT CREATE AN EMPLOYMENT CONTRACT BETWEEN THE EMPLOYEE AND THE AGENCY.  THIS DOCUMENT DOES NOT CREATE ANY CONTRACTUAL RIGHTS OR ENTITLEMENTS. THE AGENCY RESERVES THE RIGHT TO REVISE THE CONTENT OF THIS DOCUMENT, IN WHOLE OR IN PART.  NO PROMISES OR ASSURANCES, WHETHER WRITTEN OR ORAL, WHICH ARE CONTRARY TO OR INCONSISTENT WITH THE TERMS OF THIS PARAGRAPH CREATE ANY CONTRACT OF EMPLOYMENT.

I. Eligibility

Any employee of the Governor’s Office who has worked for the State at least 12 months, not necessarily consecutive, and 1,250 hours during the 12-month period immediately prior to requesting leave under the Family and Medical Leave Act (FMLA) may be eligible for leave in accordance with this policy and the FMLA.

II. Use of FMLA Leave

An eligible employee may be granted up to a total of 12 workweeks, 60 workdays, 450 hours for employees who work 7.5 hours or 480 for employees who work 8 hours per day, of FMLA leave in each calendar year on a continuous or intermittent basis, for any of the following reasons:

1. Birth of a child and to care for the newborn child;
2. Placement of a child for adoption or foster care with the employee;
3. Serious health condition of the employee’s spouse, child or parent;
4. Serious health condition of the employee; or
5. Qualified exigencies that are the result of a covered service member being called to active duty in the Armed Forces.

In addition, an eligible employee may be granted up to a total of 26 weeks, 130 work days, 975 hours for employees who work 7.5 hours or 1,040 hours for employees who work 8 hours per day, of FMLA leave during a single 12-month period on a continuous or intermittent basis, for the following reason:

1. Military caregiver leave to care for a covered service member (spouse, son, daughter, parent, or next of kin) who is injured or becomes seriously ill while on active duty.

Generally, the 12-month period under South Carolina State Government is a calendar year, with the exception of leave for the birth of a child, to care for the newborn child, and for the placement of a child for adoption or foster care with the employee.  In these exceptions, the 12-month period begins on the date of the child’s birth or placement and ends 12 months later.

III. Definitions

Spouse means husband or wife as defined or recognized in the State where the employee resides, including common-law marriage.

Parent means a biological parent or an individual who stands or stood in when the employee was a son or daughter as defined below.  This term does not include “parent in-law.”  

Child, son or daughter means a biological, adopted, foster, stepchild, a legal ward or child incapable of self-care either under or over the age of 18 and mentally or physically disabled.
                                                                                   
Incapable of self-care means that the individual requires active assistance to provide daily self-care of three or more daily activities such as grooming, hygiene, bathing, dressing and eating.

Physical or mental disability means a physical or mental impairment that substantially limits one or more of the major life activities.

Qualifying exigency means one of the following:  1) short-notice deployment, 2) military events or activities, 3) child care and school activities, 4) financial activities and legal activities, 5) counseling, 6) rest and recuperation, 7) post-deployment activities and 8) additional activities that arise out of active duty, provided that the employer and employee agree.

Next of kin means the closest blood relative of the injured or recovering service member.

Serious health condition means:

1. An illness, injury, impairment, or physical or mental condition that involves either inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical-care facility, including any period of incapacity or subsequent treatment in connection with such inpatient care; or
   
   
2. Continuing treatment by a healthcare provider, which includes:
   1. A period of incapacity lasting more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition; or
   2. Any period of incapacity related to pregnancy or for prenatal care; or
   3. Any period of incapacity or treatment for a chronic serious health condition which continues over an extended period of time, requires periodic visits to a healthcare provider (at least twice a year), and may involve occasional episodes of incapacity.  A visit to a healthcare provider is not necessary for each absence; or
   4. A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective.  Only supervision by a healthcare provider is required, rather than treatment; or
   5. Any absences to receive multiple treatments for restorative surgery or for a condition that would likely result in a period of incapacity of more than three days if not treated.

IV. Scheduling FMLA Leave

An employee requesting FMLA leave must, when foreseeable, give 30 days advance notice to the Agency of the need to take FMLA leave.  When 30 days is not possible, the employee must provide notice as soon as practicable and must comply with the Agency’s normal call-in procedures.

V. Certification of FMLA Leave

The Governor’s Office may require employees requesting FMLA leave to provide a health care certification form to support the need for leave due to a serious health condition affecting the employee or the employee’s spouse, son, daughter or parent.  This may include periodic re-certification during FMLA leave.  The Governor’s Office also may require certification of a qualifying exigency for military leave or for serious injury and/or illness of the covered service member.  The Governor’s Office may request the employee to provide reasonable documentation or statement of family relationship.  The documents may include but are not limited to: child’s birth certificate, or a court document or statement from the employee.  All official documents obtained for these purposes will be returned to the employee.  The failure to comply with the health care certification forms may result in a delay or denial of FMLA leave. 

VI. Declaration and Charging of FMLA Leave

The Governor’s Office will notify the employee of his or her right to take FMLA leave, as well as the employee’s rights and responsibilities under FMLA.  It is the Governor’s Office’s responsibility to declare leave as FMLA leave based on the information provided by the employee and the health care certification form.  It is important that the Office/Division liaison, manager or supervisor notify the Human Resources Office immediately if an employee’s absence appears to be due to one of the FMLA qualifying reasons.  The Human Resources Office will coordinate the FMLA declaration process.   When FMLA leave is declared, the Human Resources Office must notify the employee of such declaration in writing by sending a declaration letter to the employee’s home address. 

• Generally, no leave will be designated as FMLA leave after the employee has returned to work. 
• An eligible employee’s FMLA leave allowance will be charged for the actual time an employee must be away from the job. 
• The FMLA leave will run concurrently with any other leave and should be charged against both leave categories’ allowances.
• Eligible employees will be required to use their accrued sick leave for FMLA leave. 
• If an employee’s sick leave options have been exhausted, they have the option of using annual leave or leave without pay. 
• If an eligible employee has accrued sick leave and the General Assembly has authorized voluntary furlough for that fiscal year, the employee may choose to voluntarily furlough in lieu of using accrued leave.  Refer to the Agency’s Furlough/Leave Without Pay Policy.

Spouses employed by the same employer (SC State Government) are jointly entitled to a combined total of 12 weeks of FMLA leave for the birth or placement of a child for adoption or foster care.   Likewise, they are jointly entitled to a combined total of 26 weeks of FMLA for the care of an ill or injured service member.

If an employee was absent for an FMLA reason and the Agency did not learn the reason for the absence until afterwards or upon the employee’s return, the Agency may designate the leave retroactively with appropriate notice to the employee.  It is imperative for the supervisor and/or liaison to contact the Human Resources Office when there is any question regarding FMLA qualifying reasons for absences. 

VII. Intermittent FMLA Leave/ Reduced Leave Schedule

Under certain circumstances, by following the information included in the healthcare certification form, employees may take FMLA leave intermittently by taking leave in blocks of time, or by reducing the normal weekly or daily work schedule.

When FMLA leave is medically necessary to care for a seriously ill family member or because the employee is seriously ill and limited to function in some specific job duties, FMLA leave may be taken intermittently in appropriate circumstances.  In certain instances, alternative job options may be explored to further assist the employee.

When FMLA leave is used for the birth or placement for adoption or foster care, use of intermittent leave is subject to approval by the Governor’s Office.

VIII.   Maintenance of Insurance Benefits

The Governor’s Office will maintain group insurance coverage for an employee on FMLA leave whenever such insurance was provided before the leave was taken and on the same terms as if the employee had continued to work.  The employee is responsible for the employee portion of the insurance premiums.  Should the employee take leave without pay during the FMLA leave, the employee must make arrangements with the Governor’s Office of Human Resources to pay for his/her share of the insurance premiums while on unpaid FMLA leave. 

The Governor’s Office is obligated to maintain group insurance benefits under FMLA leave. However, when the employee notifies the Governor’s Office of his/her intent not to return to work, the employee is responsible for the full insurance premium. 

IX.       Reinstatement from FMLA Leave

The employee may be required to provide a physician’s release, indicating the employee’s fitness for duty if applicable, upon their return to work. 

On return from FMLA leave, an employee is entitled to be returned to the same position the employee held when the FMLA leave commenced, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment.  That position must involve the same or substantially similar duties and responsibilities, which must entail equivalent skill, effort, responsibility and authority.

The Governor’s Office will not interfere, restrain, or deny the exercise of any rights provided by the FMLA.

X. FMLA Leave Records

The Human Resources Office will maintain a leave record for each employee covered under the provisions of FMLA.

XI. Transfer of FMLA Leave Records

For eligible employees who transfer from one state agency to another, the FMLA leave records for that calendar year will be transferred to the receiving agency.

 

Revised 3/09