ARTICLE 35
PARENTAL LEAVE/FAMILY LEAVE
1. POLICY
It is the policy of the State to permit employees reasonable time off to care for dependent children in instances such as illness, birth, or adoption, and in cases of serious illness of a member of an employee’s immediate family or for their own serious illness. Leave for such purposes is provided by both federal and state statutes ("statutory leave"). Vermont’s Parental and Family Leave Act, 21 V.S.A. §470 et.seq., and the Family Medical Leave Act, 29 U.S.C. §2601 et. seq., establish the rights and obligations of employees and employers pertaining to such leaves.
The following provisions integrate the basic requirements of the statutes and this collective bargaining agreement ("Agreement"), but do not create a waiver by the State or by the employees of other rights and/or obligations under this Agreement. In the event of any conflict created by the amendment of statute or otherwise, the rights and responsibilities of the State and employees will be determined by statute, except to the extent that such amendments would diminish the rights to which the employee is entitled under the terms of this Agreement. No provisions of this article, shall be determined to diminish the entitlement of any employee to unpaid leave under either of the above referenced statutes. Leave taken under this Agreement shall be credited against any such statutory entitlement to the full extent permitted by law.
2. DEFINITIONS
For purposes of this Article, the following definitions shall apply. If further definitions and/or clarifications are needed, the Code of Federal Regulations ("CFR") for the Family Medical Leave Act will be the authoritative reference and/or decisions of the Vermont Supreme Court with regard to the state statute.
(a) "Eligible Employee" for the purposes of the statutory leaves, means an employee who has successfully completed original probation or has worked for one year, whichever occurs first, and has worked for at least an average of 20 hours per week. All references to employees in this Article are references to eligible employees.
(b) "Family Leave" means a leave of absence from employment for one of the following reasons: (1) The serious illness of an eligible employee; or (2) the serious illness of a member of an eligible employee’s immediate family. Family Leave, by itself or in combination with statutory Parental Leave (as opposed to contractual parental leave), may not exceed 12 weeks in a 12 month period beginning with the first day either type of leave is used. Leave taken under this Agreement will be credited against any such statutory entitlement to the full extent permitted by law.
(c) "Immediate family" means an eligible employee’s parent, grandparent, spouse, child, brother, sister, parent-in-law, grandchild, foster child, stepchild or ward who lives with the employee, any person residing with the employee, and any family member for whom an employee is primarily responsible either to arrange for health care or to provide care.
(d) Statutory "Parental Leave" means a leave of absence from employment for one of the following reasons: (1) During the employee’s pregnancy; (2) following the birth or delivery of the employee’s child; or (3) within a year following the initial placement of a child 16 years of age or younger with the employee for the purpose of adoption. Statutory Parental Leave, by itself or in combination with Family Leave, may not exceed 12 weeks in a 12 month period beginning with the first day either type of leave is used. Leave taken under this Agreement will be credited against any such statutory entitlement to the full extent permitted by law.
(e) "Serious Illness" means an accident, injury, illness, disease, or physical or mental condition that: poses imminent danger of death; requires inpatient care in a hospital, hospice, or residential medical facility; or requires continuing in-home care under the direction of a physician or health care provider. Related current definitions are summarized in (f) below.
(f) "Continuing Treatment by a Health Care Provider" covers five situations:
(1) incapacity of more than three consecutive calendar days that involves either (a) treatment two or more times by a health care provider (or under the direction or orders of a health care provider), or (b) treatment by a health care provider on at least one occasion resulting in a regimen of continuing treatment under the supervision of the health care provider; (2) any period of incapacity due to pregnancy, or for prenatal care; (3) any period of incapacity or treatment due to a chronic serious health condition requiring periodic visits for treatment, including episodic conditions such as asthma, diabetes, and epilepsy; (4) a period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective, although the individual is under the continuing supervision of a health care provider. (E.g. Alzheimer’s, severe stroke, or the terminal stages of a disease); and (5) any period of absence to receive multiple treatments from a health care provider (or on orders or referral from a health care provider) for restorative surgery or for a condition that would likely result in an absence of more than three consecutive calendar days without treatment (e.g., cancer (chemotherapy, radiation), severe arthritis (physical therapy), kidney disease (dialysis)). (The foregoing is the Federal Equal Employment Opportunity Commission’s summary definition, refer to the Code of Federal Regulations for the full definition).
(g) "In Patient Care" means at least an overnight stay at a medical care facility, and any related period of incapacity or subsequent treatment related to the in-patient care.
(h) "Intermittent Leave" means leave taken in separate blocks of time due to a single qualifying reason.
(i) "Reduced Schedule Leave" means a leave schedule that reduces an employee’s usual number of working hours per work week or hours per work day. Such schedule is a change in the employee’s schedule for a period of time normally from full-time to part-time.
3. RIGHTS AND RESPONSIBILITIES
Under the state and federal leave laws both the State and the employee have certain rights and responsibilities
(a) State’s Responsibilities and Eligible Employee’s Rights:
An eligible employee is entitled to a total of twelve (12) weeks of unpaid statutory Family Leave and/or statutory Parental Leave within a twelve (12) month period beginning the first day either Leave is used. An eligible employee is also entitled to Short-term Leave as further described below.
During any such leave, the State will continue to pay the employee’s benefits at the same level and rate as if the employee were not on leave. After the leave expires, the State will return the employee to the same position at the same level of compensation, benefits, seniority and other terms of employment as they existed on the day the leave began unless:
(1) Prior to an employee requesting leave, the employee had given notice or received notice that employment would terminate; or
(2) If the State can demonstrate by clear and convincing evidence that the employee’s position would have terminated or the employee would have been laid off for reasons unrelated to the leave or the condition for which the leave was granted.
(b) State’s Rights and Eligible Employee Responsibilities:
The employee must provide reasonable notice of intent to take a leave, the date of anticipated commencement and expected duration of the leave, or the State may deny the leave. The employee must provide reasonable advance notice to the State if the employee wishes to request an extension of the leave, to the extent available. It is the State’s option whether to permit an employee to return to work in advance of the expiration of the leave granted. The State may require an employee to continue to make their regular contribution to the cost of benefits during the leave. Unless the employee is on leave due to his/her serious illness, the State has the right to require the refund of any compensation paid during the leave, except sick leave and annual leave, if the employee does not return to work.
The calculation of the amount of Family Leave or Parental Leave time used by eligible employees who are employed less than full time or by eligible employees using intermittent leave or reduced schedule leave will be made on a prorated basis consistent with 29 C.F. R. ¶825.05 as it may be amended from time to time.
4. PARENTAL LEAVE - ADOPTION, PREGNANCY AND CHILDBIRTH
(a) A leave of absence without pay shall be granted upon request for up to four (4) months for employees (male or female) who have requested Parental Leave. Such Leave shall be unpaid, except as provided in section (b) below. Upon request the appointing authority can extend the leave an additional two (2) months. During approved leave extensions beyond four (4) months, this Agreement’s administrative leave provisions shall be applicable, including, but not limited to, the requirement that the employee shall pay one hundred (100) percent of their insurance benefits. Notwithstanding the foregoing, if the approved leave extension results from the employee’s illness, this Agreement’s medical leave provisions shall be applicable, including the State’s commitment to pay a portion of insurance benefits.
(b) During the initial four (4) months of a leave, at the employee’s option, the employee may use up to six (6) weeks of any accrued paid leave, including but not limited to sick leave, annual leave and personal leave. Thereafter, employees can use only the following accrued paid leave in the following order: compensatory time, personal leave and annual leave. Notwithstanding the foregoing, sick leave for up to six (6) weeks following childbirth/delivery will be granted, and may be extended by the appointing authority who may request certification of the continuing disability. No combination of paid and unpaid leaves shall extend the Parental Leave beyond six (6) months.
(c) Notwithstanding the above, an employee may use accrued sick leave for the period of disability resulting from pregnancy, miscarriage, abortion, or illness resulting therefrom.
5. FAMILY LEAVE - LEAVE FOR SERIOUS ILLNESS
(a) In the case of serious illness of an employee or of a member of an employee’s immediate family, Family Leave shall be granted on request and receipt of medical certification of the serious illness and the amount of leave time needed. Such Family Leave shall be unpaid, except as provided in section
(b) below.
(b) During the Family Leave, at the employee’s option the employee may use up to six (6) weeks of any accrued paid leave, including, but not limited to, sick leave, annual leave and personal leave. Thereafter, employees may use only the following accrued paid leaves in the following order: compensatory time, personal time and annual leave. No combination of paid and unpaid leaves shall extend the statutory Family Leave beyond twelve (12) weeks. Notwithstanding the foregoing, even if statutory Family Leave is exhausted, this Agreement’s sick leave, unpaid medical leave and administrative leave provisions are still applicable and may provide for additional leave consistent with these provisions.
(c) Leave under this section is for providing care for serious illness and does not diminish the benefit available under the Sick Leave Article to use up to ten (10) sick days in other instances of family illness.
6. INTERMITTENT LEAVE/REDUCED LEAVE SCHEDULE
An employee who qualifies for Family Leave may take the leave as intermittent leave or on a reduced schedule but only if it is medically necessary. If an employee is taking Family Leave due to the serious illness of a family member, the employee may take intermittent leave or reduced schedule leave to provide care or psychological comfort to the family member. Employees must attempt to schedule the intermittent leave or reduced schedule leave so it does not disrupt the State’s operations. The State may assign the employee to an alternative position within the same agency/department/work location for which the employee is qualified with equivalent pay and benefits to better accommodate the requested leave. If the State assigns the employee to an alternative position, once the need for the intermittent or reduced leave schedule is ended, the State will place the employee in a position which is the same or equivalent to the employee’s position at the time the leave began. If the position is an equivalent position it will be within the same agency/department/work location as the employee’s position at the time the leave began.
When an employee is granted Parental Leave after the birth or placement of a child, the State, in its discretion, may grant the employee’s request for intermittent leave or reduced schedule leave. However, if the mother has a serious illness in relation to the birth of a newborn then the provisions for intermittent leave/reduced schedule leave for Family Leave are applicable. If the newborn has a serious illness, then the provisions for intermittent leave/reduced schedule leave for Family Leave are applicable to either parent. Prior to the birth of a child, a pregnant employee can take intermittent leave for prenatal exams or for her own medical condition, e.g., severe morning sickness.
7. SHORT-TERM FAMILY LEAVE
(a) In addition to the Leaves provided above, an employee shall be entitled to take unpaid leave not to exceed four (4) hours in any 30-day period and not to exceed 24 hours in a 12-month period. This leave may be taken for any of the following purposes:
(1) To participate in preschool or school activities directly related to the academic educational advancement of the employee’s child, stepchild, foster child or ward who lives with the employee, such as a parent-teacher conference.
(2) To attend or to accompany the employee’s child, stepchild, foster child or ward who lives with the employee or the employee’s parent, spouse or parent-in-law to routine medical or dental appointments.
(3) To accompany the employee’s parent, spouse or parent-in-law to other appointments for professional services related to their care and well-being.
(4) To respond to a medical emergency involving the employee’s child, stepchild, foster child or ward who lives with the employee or the employee’s parent, spouse or parent-in-law.
(b) The State may require that the leave be taken in a minimum of two (2) hour segments. An employee shall make a reasonable attempt to schedule appointments for which leave may be taken under this section outside of regular work hours. In order to take leave under this section, an employee shall provide the employer with the earliest possible notice, but in no case later than seven (7) days before leave is to be taken except in the case of an emergency. In this subsection, "emergency" means circumstances where the required seven (7) days notice could have a significant adverse impact on the family member of the employee.