Chapter 13. Family Medical Leave
Regulation .01 Purpose.LinkCopy Citation
These regulations implement the provisions of the Family and Medical Leave Act of 1993 (FMLA) and are intended to balance the demands of the work place with the needs of families, to promote stability and economic security of families, and to promote national interests in preserving family integrity.
Regulation .02 Definitions.LinkCopy Citation
A.
In this chapter, the following terms have the meanings indicated.
B.
Terms Defined.
(1)
“Chronic serious health condition” means a condition which:
(a)
Requires periodic visits for treatment by a health care provider, or by a nurse or physician's assistant under the direct supervision of a health care provider;
(b)
Continues over an extended period of time, including recurring episodes of a single underlying condition; and
(c)
May cause episodic, rather than continuing, periods of incapacity, for example, asthma, diabetes, or epilepsy.
(2)
“Continuing treatment by a health care provider” has the meaning stated in §C of this regulation.
(3)
“Employment benefits” means benefits provided or made available to employees by the Department, including group life insurance, health insurance, disability insurance, sick leave, annual leave, educational benefits, and pensions.
(4)
“Equivalent position” means a position having:
(a)
The same pay, benefits, and working conditions;
(b)
The same or substantially similar duties and responsibilities;
(c)
Substantially equivalent skill, effort, responsibility, and authority;
(d)
The same work site or a geographically proximate work site;
(e)
The same shift or an equivalent schedule; and
(f)
The same opportunity for nondiscretionary payments.
(5)
“Family member” means a spouse, parent, son, or daughter.
(6)
“FMLA leave” means unpaid family medical leave taken under the provisions of this chapter.
(7)
“Group health plan” means any plan of, or contributed to by, the Department, including a self-insured plan, to provide health care, directly or otherwise, to the Department's employees.
(8)
“Health care provider” means a:
(a)
Doctor of medicine or osteopathy who is authorized to practice medicine or surgery;
(b)
Podiatrist, performing within the scope of the podiatrist's practice as defined under State law;
(c)
Dentist, performing within the scope of the dentist's practice as defined under State law;
(d)
Clinical psychologist, performing within the scope of the clinical psychologist's practice as defined under State law;
(e)
Optometrist, performing within the scope of the optometrist's practice as defined under State law;
(f)
Chiropractor, limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist, performing within the scope of the chiropractor's practice as defined under State law;
(g)
Nurse practitioner, nurse midwife, and clinical social worker who are authorized to practice under State law and who are performing within the scope of their practice as defined under State law;
(h)
Christian Science practitioner listed with the First Church of Christ, Scientist in Boston, Massachusetts; and
(i)
Health care provider from whom a benefits manager for State of Maryland group health plans will accept certification of the existence of a serious health condition to substantiate a claim for benefits.
(8-1)
“Incapacity” means an inability to work, attend school, or perform other regular daily activities because of a serious condition, treatment, or recovery.
(9)
“Intermittent leave” means leave taken in separate periods of time due to a single illness or injury of an employee or family member.
(10)
“Paid leave” means vacation, personal, compensatory, holiday, and earned sick leave.
(11)
“Parent” means the biological parent of an employee or an individual who stands or stood in loco parentis to an employee when the employee was a child.
(12)
“Physical or mental disability” means a physical or mental impairment that substantially limits one or more of the major life activities of an individual.
(13)
“Reduced work schedule” means a leave schedule that reduces the usual number of hours per workweek, or hours per workday, of an employee.
(13-1)
Return to Work.
(a)
“Return to work” means a return to work by an employee for a period of at least 30 calendar days.
(b)
“Return to work” includes cases in which an employee retires within 30 calendar days or retires directly from FMLA leave.
(14)
Serious Health Condition.
(a)
“Serious health condition” means an illness, injury, impairment, or physical or mental condition that involves:
(i)
Inpatient care, any subsequent treatment in connection with the inpatient care, or continuing treatment by a health care provider;
(ii)
Restorative dental or plastic surgery after an injury or removal of cancerous growths if all FMLA requirements are met;
(iii)
Mental illness resulting from stress or allergies, if all FMLA requirements are met; or
(iv)
Substance abuse, if all FMLA requirements are met and treatment for the substance abuse is provided by a health care provider or a provider of health care services.
(b)
“Serious health condition” does not include:
(i)
Conditions for which cosmetic treatments are administered, such as most treatments for acne or plastic surgery, unless inpatient hospital care is required or complications develop;
(ii)
Absences resulting from substance abuse, except as specified in §B(14)(a)(iv) of this regulation;
(iii)
The common cold, the flu, earaches, upset stomach, headaches other than migraines, routine dental or orthodontic problems, periodontal disease, and other routine health problems.
(14-1)
“Son or daughter” means a biological child, adopted child, foster child, stepchild, or legal ward of a person standing in loco parentis, who is younger than 18 years old, or 18 years old or older and incapable of self-care because of a physical or mental disability.
(15)
“Spouse” means a husband or wife as defined or recognized by the state in which the employee resides.
(16)
“State” means any state of the United States, the District of Columbia, or a possession of the United States.
C.
Continuing Treatment by a Health Care Provider.
(1)
Specific.
(a)
“Continuing treatment by a health care provider” means a situation in which the employee or family member has a serious health condition involving a period of incapacity of more than 3 consecutive calendar days, including any subsequent treatment or period of incapacity relating to the same condition, and that also involves treatment:
(i)
Two or more times by a health care provider, a nurse or physician's assistant under the direct supervision of a health care provider, or a provider of health care services, such as a physical therapist, under orders of, or on referral by, a health care provider; or
(ii)
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.
(b)
In this subsection, “treatment” includes, but is not limited to, examinations to determine if a serious health condition exists and evaluations of that condition. “Treatment” does not include routine physical, eye, or dental examinations.
(2)
General. “Continuing treatment by a health care provider” also means a period of:
(a)
Incapacity for pregnancy or for prenatal care;
(b)
Incapacity or treatment for the incapacity due to a chronic serious health condition;
(c)
Incapacity which is permanent or long-term due to a condition for which treatment may not be effective, and for which the employee or family member is under the continuing treatment of, but not necessarily receiving active treatment from, a health care provider, for example, Alzheimer's disease or a severe stroke;
(d)
Absence taken to receive multiple treatments, including periods of recovery, from a health care provider or by a provider of health care services under the orders of, or on referral by, a health care provider.
Regulation .03 Eligibility and Use.LinkCopy Citation
A.
In order to be entitled to FMLA leave, an employee shall have a minimum of 12 months employment with the State.
B.
An employee may not be disqualified on the basis that fewer than 50 employees work within a 75-mile radius of the work site.
C.
FMLA leave may be used for:
(1)
The birth of a child and subsequent care;
(2)
The care of a child placed with the employee for adoption or foster care;
(3)
The care of a seriously ill spouse, child, or parent; or
(4)
A serious health condition that makes an employee unable to perform the essential functions of the employee's position.
D.
Employees may use up to 12 weeks of unpaid leave under these regulations within a 12-month period.
E.
Calculation of the 12-Month Period.
(1)
The 12-month period is calculated backward from the date FMLA leave is first taken under this policy.
(2)
The Department may change to another method of calculating the 12-month period by giving at least 60 days notice to employees and ensuring that the change takes place in such a way that employees retain the full benefit of 12 weeks of FMLA leave.
F.
Employees requesting leave under these regulations shall first use any available paid leave, which shall be deducted from the 12-week maximum entitlement set forth in §D of this regulation.
G.
Except for work injury leave, advanced sick leave, extended sick leave, donated leave or leave from the Leave Bank, and earned sick leave used under the provisions of COMAR 11.02.03.07B(3), any leave used before a request for FMLA leave may not be deducted from the employee's FMLA entitlement set forth in §D of this regulation.
H.
Work injury leave, advanced sick leave, extended sick leave, donated leave or leave from the Leave Bank, and earned sick leave used under the provisions of COMAR 11.02.03.07B(3), used during the 12-month period specified in §D of this regulation, shall automatically be counted against the employee's entitlement set forth in §D of this regulation.
I.
Employees shall continue to accrue leave, service credits, and other benefits under the provisions of this subtitle during paid leave.
J.
The entire 12 weeks of family medical leave taken for the birth of a child or the placement of a child for adoption or foster care shall be taken within 12 months of the birth or placement.
K.
A husband and wife shall be allowed a total of 12 weeks of FMLA leave for the birth of a child or the placement of a child for adoption or foster care.
L.
An employee may not be required to take a position with reasonable accommodation instead of FMLA leave entitlement.
M.
An employee may not be required to take FMLA leave instead of reasonable accommodation.
N.
An employee who has exhausted FMLA leave entitlement shall retain any applicable right to reasonable accommodation.
O.
An employee's rights under these regulations remain in effect until the employee gives unequivocal notice of intent not to return to work.
P.
Except as specified in §H of this regulation, leave previously taken for which the employee would have been entitled to FMLA leave may not be designated as FMLA leave after the leave has ended.
Regulation .04 Continuation of Health Care Benefits.LinkCopy Citation
A.
During the period of FMLA leave, the employee shall be entitled to continuation of health benefits coverage, and shall be entitled to any added coverage or changes in health care benefits that are made available to other employees.
B.
During periods in which the employee is receiving pay, the employee's share of health insurance premiums shall continue to be deducted from the employee's pay.
C.
During periods of unpaid FMLA leave, the Department shall pay both the employer and employee portions of health insurance premiums.
D.
Within six pay periods of the employee's return to work, the employee shall reimburse the Department for the employee's portion paid by the Department while on unpaid leave. Repayment shall be by payroll deduction unless the employee elects to make repayment by lump sum.
E.
If the employee does not return to work, the employee shall repay both the employee's and the Department's portion of any health insurance premiums paid by the Department during periods of unpaid FMLA leave. The employee may elect to repay the Department either by a lump sum or by a mutually agreeable payment plan.
F.
Employee Not Returning to Work Due to Serious Health Condition.
(1)
The Department may not require the employee to repay health insurance premiums paid by the Department if the employee does not return to work due to a serious health condition that would entitle the employee to FMLA leave or because of other circumstances beyond the employee's control.
(2)
If an employee does not return to work due to a serious health condition of the employee or a family member, the Department may require medical certification of the serious health condition.
(3)
If the certification specified in §E(1) of this regulation is not provided within 30 days, the employee may be required to repay the Department all costs of health insurance payments made during unpaid FMLA leave.
Regulation .05 Restoration to Work.LinkCopy Citation
A.
An employee returning from FMLA leave shall be returned to the employee's former position or an equivalent position.
B.
If special qualifications that are required for the position have lapsed during the employee's leave, the employee shall be given reasonable opportunity to fulfill the requirements after returning to work.
C.
An employee returning to work has no greater right to the employee's former job or an equivalent position, or to other benefits, than if the employee had been continuously employed during the period of leave.
D.
An employee who is hired for a specific term, or only to perform work on a specific project, has no right to the employee's former job or an equivalent position if the employment term or project is over and the employer would not otherwise have continued employment.
E.
Employees who did not choose to continue health care coverage or other employer-provided insurance coverage during periods of FMLA leave shall have benefits resumed at the same level as when leave began without a new qualification period.
F.
If an employee is unable to perform an essential function of the employee's former position or an equivalent position because of a physical or mental condition, including the continuation of a serious health condition, the employee has no right to restoration to another position under the FMLA. However, the provisions of the Americans with Disabilities Act shall apply, as appropriate.
Regulation .06 Certification by Health Care Provider.LinkCopy Citation
A.
If the certification required by this regulation is not provided by the health care provider, the Department may deny FMLA leave until the certification is received.
B.
Leave to Care for Family Member.
(1)
The Department may require an employee applying for FMLA leave to care for a family member to provide certification from a health care provider that the employee is needed to care for the family member.
(2)
Care for a family member includes providing psychological comfort and arranging for third-party care.
(3)
Certification by a health care provider shall indicate that:
(a)
Third-party care is necessary for the family member; or
(b)
The employee's presence would provide psychological comfort and be beneficial to the family member.
C.
Employee Serious Health Condition.
(1)
The Department shall require an employee applying for FMLA leave to provide certification from a health care provider that the employee has a serious health condition and is unable to perform the function of the employee's job.
(2)
The Department may require the employee to obtain a second opinion from a health care provider not employed by the Department.
(3)
If the first and second opinions differ, the Department may require a third opinion from a health care provider mutually selected by the employee and the Department.
(4)
The cost of second and third opinions shall be paid by the employing administration.
(5)
Pending receipt of the second or third opinions, the employee is provisionally entitled to FMLA leave.
D.
If the need for FMLA leave is foreseeable and certification is not provided within 15 days of the Department's request for certification, the leave may be denied until certification is received.
E.
Recertification. The Department may not require recertification of FMLA leave status more frequently than every 30 days unless:
(1)
The employee requests an extension;
(2)
Circumstances regarding the illness or injury change significantly; or
(3)
New information casts doubt upon the validity of the most recent certification.
Regulation .07 Fitness for Duty.LinkCopy Citation
A.
An administration may require fitness for duty certification for employees who return to work from FMLA leave only if the administration has a uniformly applied policy or procedure that requires employees in the same occupation and with the same serious health condition who take FMLA leave for this condition to obtain and present certification from the employee's health care provider that the employee is able to resume work.
B.
A fitness for duty certification is only in regard to the particular health condition that caused the employee's need for FMLA leave.
C.
A fitness for duty medical evaluation shall be job related.
D.
The department may not require a second or third opinion for a fitness for duty certification.
E.
The Department shall notify an employee applying for FMLA leave that a fitness for duty certification is required before the employee returns to work.
Regulation .08 Intermittent FMLA Leave and Reduced Work Schedules.LinkCopy Citation
A.
Intermittent FMLA leave or a reduced work schedule due to a serious health condition of an employee or family member may be arranged when medically necessary. Medical necessity includes planned medical treatment and recovery from serious health conditions.
B.
Intermittent leave or a reduced work schedule for birth or placement of a child for adoption or foster care may be taken with the Department's consent.
C.
An employee who requests intermittent FMLA leave may be temporarily reassigned to an alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee's regular position.
D.
An alternative position has equivalent pay and benefits but does not necessarily have equivalent duties. However, benefits earned based upon hours worked, such as vacation and sick leave, are reduced accordingly.
E.
The Department may request the employee to provide the reason why the leave must be taken on an intermittent leave or reduced work schedule basis, and the schedule for treatment, if applicable.
F.
An employee requesting intermittent FMLA leave or a reduced work schedule due to a serious health condition may be required to provide certification from the health care provider that the leave is medically necessary. The expected duration and schedule of the leave must also be provided.
G.
Only the leave actually taken is counted toward the 12-week entitlement. The amount of FMLA leave used is calculated based upon the proportion of the normal workweek. If an employee's schedule varies from week to week, a weekly average of the hours worked over the 12 weeks before the beginning of the leave period is used for calculating the employee's normal workweek.
Chapter annotations
Authority: Transportation Article, §§2-102 and 2-103.4, Annotated Code of Maryland
History: Effective date: September 12, 1994 (21:18 Md. R. 1509)
History: Regulation .02 amended effective January 27, 1997 (24:2 Md. R. 116)
History: Regulation .03 amended effective January 27, 1997 (24:2 Md. R. 116)
History: Regulation .05F adopted effective January 27, 1997 (24:2 Md. R. 116)
History: Regulation .06A, C amended effective January 27, 1997 (24:2 Md. R. 116)
History: Regulation .07A amended effective January 27, 1997 (24:2 Md. R. 116)