HomeMy WebLinkAboutOrdinance 1948
ORDINANCE NO. 1948
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF NORTH
RICHLAND HILLS, TEXAS that this ordinance is adopted setting the
policy of the city to implement the Family and Medical Leave Act of
1993, as follows:
section 1. Definitions.
In this ordinance:
CHILD means a biological, adopted, or foster child, a
stepchild, a legal ward, or a child of a person standing in loco
parentis, who is:
(A) under 18 years of age; or
(B) 18 years of age or older and incapable of self-care
because of a mental or physical disability.
FMLA means the Family and Medical Leave Act of 1993, 29 U.S.C.
201 et seq.
HEALTH CARE PROVIDER means:
(A) a doctor of medicine or osteopathy who is authorized
to practice medicine or surgery by the State of Texas;
(B) a podiatrist, dentist, clinical psychologist,
optometrist, and chiropractor (limited to treatment consisting of
manual manipulation of the spine to correct a subluxation as
demonstrated by X-ray to exist) authorized to practice in the State
of Texas and performing wi thin the scope of their practice as
defined under state law; or
(C) a nurse practitioner and nurse midwife authorized to
practice under state law and performing within the scope of their
practice as defined under state law; or
(D) a Christian Science practitioner listed with the
First Church of Christ Scientist in Boston, Massachusetts. (Where
an employee or family member is receiving treatment from a
Christian Science practitioner, an employee may not object to any
requirement from the city that the employee or family member submit
to examination, though not treatment, to obtain a second or third
certification from health care provider other than a Christian
Science practitioner.)
PARENT means the biological parent of an employee or an
individual who stood in loco parentis to an employee when the
employee was a child.
Ord. 1948 Page 2
REDUCED LEAVE SCHEDULE means a leave schedule that reduces the
usual number of hours per work week, or hours per work day, of an
employee.
SERIOUS HEALTH CONDITION means an illness, injury, impairment,
or physical or mental condition that involves:
(A) any period of incapacity or treatment in connection
with an overnight stay in a hospital, hospice, or residential
medical care facility;
(B) any period of incapacity requiring absence from
work, school, or other regular daily activities, of more than three
calendar days, that also involves continuing treatment by or under
the supervision of a health care provider; or
(C) continuing treatment by or under the supervision of
a health care provider for chronic or long-term health condition
that is incurable or so serious that, if not treated, would likely
result in a period of incapacity of more than three calendar days.
SPOUSE means a husband or wife.
section 2. FMLA Leave. FMLA leave is provided in compliance with
the Family and Medical Leave Act of 1993.
(a) Eligibility. An employee is eligible for FMLA leave if
the employee is employed at a worksite where 50 or more city
employees work within 75 miles of that worksite and has been
employed by the city:
(1) for at least 12 months; and
(2) for at least 1,250 hours of service during the
previous 12-month period.
(b) Entitlement, oaloulation; purposes. An employee who is
eligible for FMLA leave, may take a total of 12 work weeks of leave
during a 12-month period measured forward from the date the
employee takes the first day of FMLA leave, for one or more of the
following purposes:
(1) To care for a newborn child of the employee;
(2) To care for a child newly placed with the employee
for adoption or foster care;
(3) To care for the spouse, child, or parent of the
employee, if the spouse, child, or parent has a serious health
condition; or
Ord. 1948 Page 3
(4) Because of a serious health condition that makes the
employee unable to perform the functions of the employee's
position.
(c) Expiration of entitlement to leave. Entitlement to FMLA
leave under Subsection (b) (1) or (b) (2) for the birth or placement
of a child expires at the end of the 12-month period beginning on
the date of the birth or placement.
(d) Leave taken intermittently or on a reduced leave
schedule. (1) Leave taken under Subsection (b) (1) or (b) (2) may
not be taken intermittently or on a reduced leave schedule. Leave
under Subsection (b) (3) and (b) (4) may be taken intermittently or
on a reduced leave schedule when medically necessary. The taking
of leave intermittently or on a reduced leave schedule pursuant to
this paragraph shall not result in a reduction in the total amount
of leave to which the employee is entitled under Subsection (b).
(2) If an employee requests intermittent leave or leave
on a reduced leave schedule, the city may require the employee to
transfer temporarily to an available alternative position for which
the employee is qualified and that:
(A) has equivalent pay and benefits; and
(B) better accommodates recurring periods of leave
than the regular employment position of the employee.
(e) Exhaustion paid leave. An employee who takes FMLA leave
must exhaust accrued vacation leave for leave provided under
Subsection (b) (1), (b) (2), or (b) (3), as part of the 12-week
entitlement period, before beginning leave without pay status. An
employee who takes FMLA leave must substitute and exhaust accrued
sick leave provided under Subsection (b) (4), as part of the 12-week
entitlement period, before beginning leave without pay status.
(f) obliqations of employees. (1) When the necessity for
FMLA leave under Subsection (b) (1) or (b) (2) is foreseeable because
of an expected birth or placement, the employee shall provide the
employee's supervisor with not less than 30 days' notice, before
the date the leave is to begin, of the employee's intention to take
FMLA leave. If the date of the birth or placement requires leave
to being in less than 30 days, the employee shall provide notice as
soon as practicable.
(2) When the necessity for FMLA leave under Subsection
(b) (3) or (b) (4) is foreseeable because of planned medical
treatment, the employee:
(A) shall make a reasonable effort to schedule the
treatment so as not to disrupt unduly the operation of the city,
subject to the approval of the health care provider; and
Ord. 1948 Page 4
(B) shall provide the employee's supervisor with
not less than 30 days' notice, before the date the leave is to
begin; except, that if the date of the treatment requires leave to
begin in less than 30 days, the employee shall provide the notice
as soon as practicable.
(g) Spouses employed by the city. If a husband and wife are
both employed by the city, the aggregate number of work weeks of
FMLA leave to which both are entitled is limited to 12 work weeks
during any 12-month period, if the leave is taken:
( 1)
( b) (2); or
to care for a child under Subsection (b) (1) or
(2) to care for a sick parent under Subsection (b) (3).
(h) certification. (1) The City Manager may require FMLA
leave under Subsection (b) (3) or (b) (4) to be supported by a
certification issued by the health care provider of the employee or
the child, spouse, or parent of the employee. A certification must
be furnished in a timely manner when requested. A certification is
sufficient if it states:
(A) the date on which the serious health condition
commenced;
(B) the probable duration of the condition;
(C) the appropriate medical facts within the knowledge
of the health care provider regarding the condition;
(D) (i) for purposes of leave under Subsection (b) (3),
a statement that the eligible employee is needed to care for the
child, spouse, or parent and an estimate of the amount of time that
the employee is needed to care for the child, spouse, or parenti
and
(ii) for the purposes of leave under Subsection
(b) (4), a statement that the employee is unable to perform the
functions of the position of the employee;
(E) in the case of certification for intermittent leave,
or leave on a reduced leave schedule, for planned medical
treatment, the dates on which the treatment is expected to be given
and the duration of the treatment;
(F) in the case of certification for intermittent leave,
or leave on a reduced leave schedule, under Subsection (b) (4), a
statement of the medical necessity for the intermittent leave or
leave on a reduced leave schedule, and the expected duration of the
intermittent leave or reduced leave schedule; and
Ord. 1948 Page 5
(G) in the case of certification for intermittent leave,
or leave on a reduced leave schedule, under Subsection (b) (3), a
statement that the employee's intermittent leave or leave on a
reduced leave schedule is necessary for the care of the child,
spouse, or parent who has a serious health condition, or will
assist in their recovery, and the expected duration and schedule of
the intermittent leave or reduced leave schedule.
(2) If the city has reason to doubt the validity of the
certification provided under Subsection (h) (1), for leave under
Subsection (b) (3) or (b) (4), the city may require, at the expense
of the city, that the employee obtain the opinion of a second
health care provider designated or approved by the city concerning
any information certified under Subsection (h) (1). A health care
provider designated or approved under this paragraph may not be
employed on a regular basis by the city.
(3) If the second opinion described in paragraph (2)
differs from the opinion in the original certification provided
under Subsection (h) (1), the city may require, at the expense of
the city, that the employee obtain the opinion of a third health
care provider designated or approved jointly by the city and the
employee concerning the information certified under Subsection
(h) (2). The opinion of the third health care provider concerning
the information certified under Subsection (h)(2) is final and
binding on the city and the employee.
(i) Health benefits. The city will provide health benefits
to an employee while on FMLA leave at the level and under the
conditions benefits would have been provided if the employee had
continued in employment for the duration of the leave. The
employee may retain his life insurance benefit by paying his
premium during the period of his leave. The city may recover the
cost that the city paid for the health benefits during the period
of unpaid leave if:
(1) the employee fails to return to work after the
period of leave to which the employee is entitled has expired; and
(2) the employee fails to return to work for a reason
other than:
(A) the continuation, recurrence, or onset of a
serious health condition that entitles the employee to leave under
Subsection (b) (3) or (b) (4); or
(B) other circumstances beyond the control of the
employee.
section 3. "KEY EMPLOYEE" PROVISIONS
Ord. 1948 Page 6
(a) Definitions.
KEY EMPLOYEE means an employee who is among the highest paid
10 percent of all the employees employed by the city.
SUBSTANTIAL AND GRIEVOUS ECONOMIC INJURY means a threat to the
economic viability of the city or a substantial, long-term economic
injury.
(b) Key employee reinstatement. If a key employee requests
FMLA leave, the city may not deny the leave, but may notify the
employee that the employee will be denied reinstatement at the
conclusion of the leave period, if the city determines and can
demonstrate that reinstatement of the key employee would cause
substantial and grievous economic injury to the city. If the city
denies reinstatement to a key employee, it shall comply with the
following procedure:
(1) The city will give the employee written notice at
the time the leave is requested or when the leave commences,
whichever occurs first, that the employee qualifies as a key
employee and inform the employee of the potential consequences with
respect to reinstatement if the city should determine that
substantial and grievous economic injury to the city's operations
will result if the employee is reinstated after FMLA leave. If the
notice cannot be given immediately because of the need to determine
whether the employee is a key employee, it will be given as soon as
practicable after receipt of a request for leave or the
commencement of leave, if earlier.
(2) As soon as the city makes a determination that
reinstatement of the key employee will result in grievous economic
injury to its operations, the city shall notify the employee in
writing of its determination and that it intends to deny
reinstatement to employment on completion of FMLA leave. The city
must serve this notice in person or by certified mail. The notice
must explain the basis for the city's finding that substantial and
grievous economic injury will result, and must provide the employee
a reasonable time in which to return to work, taking into account
the circumstances, such as the length of the leave and the urgency
of the need for the employee to return.
(3) If an employee does not return to work in response
to the city's notification of intent to deny reinstatement, the
employee continues to be entitled to maintenance of health benefits
and the city may not recover its cost of health benefit payments.
The key employee's rights under FMLA leave continue until the
employee either gives notice that the employee no longer wishes to
return to work, or the city actually denies reinstatement at the
conclusion of the leave period upon request for reinstatement by
the employee.
Ord. 1948 Page 7
(4) If a key employee requests reinstatement at the end
of the leave period after having received earlier notice that
reinstatement would be denied, the city must make a new
determination based upon circumstances at that time. If it is
again determined that substantial and grievous economic injury will
result from reinstatement of the key employee, the city shall
notify the employee in writing of the denial of reinstatement of
the key employee, the city shall notify the employee in writing of
the denial of reinstatement. The city must serve the notice in
person or by certified mail.
PASSED AND APPROVED this 22nd day of November, 1993.
APPROVED:
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ATTEST:
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CjÆi Secretary
APPROVED AS TO FORM AND LEGALITY:
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Attorney for the City
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