Inside This Issue
-President's Letter -Training Opportunities -FMLA/CRFA Explained -October Anniversaries
Join us for our monthly snack talk to participate in the discussion. Upcoming Snack Talks: Thursday October 18th 12:00pm – 1:00pm Dove – Room 144
By: Tye Gillespe
Annual Member Meeting
It was good to see all of you who could make it to the annual member meeting. We realized after we scheduled it that there was a conflict for the Library and Cultural Arts folks. Sorry for the mix-up. The agenda consisted of:
- Introducing the board,
- Discussing the January 1, 2018 pay increases,
- Treasurers Report, and
- Receiving a legal briefing from CCEA counsel, Jim Cunningham
If you would like information about any of those topics, please contact your representative our meet us for our next Snack Talk.
More Board Openings
In the September newsletter I relayed that after a great response from the membership we had only one vacancy on the board. Shortly after the September newsletter was released, Daisy Hernandez agreed to fill the Public Works position left vacant by Hallie Thompson when she moved to vice president. Last week, however, we lost 3 more board members.
Aeryn Donnelly, Annie Flager and Lindsay Leahy have left the city. Lindsay, who has been the secretary for the last year, took minutes for the last time at our October 9 meeting. We wish them all the best as they move on.
Tracy Ritzer has agreed to take over the secretary duties. Her experience will be an asset in this role. These transitions have resulted in creating openings for the following representatives:
- Housing and Neighborhood Services, Policy and Leadership and Safety
- IT, HR, and Finance
Please contact Tracy Ritzer if you are interested in joining the board. See the August newsletter for more information on the responsibilities.
By James J. Cunningham Esq. CCEA General Counsel
The CCEA often receives questions from their members about their rights to take time off for a variety of reasons. This article deals with the some of the common reasons and your ability to take time off for family leave.
The Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) provides for unpaid leaves of absence for family reasons or for the employee’s own illness. Where there is a conflict between the two the most generous leave allowance will apply.
Pregnancy / Bonding Time Leave: A mother can use 12 weeks of FMLA leave for the birth of a child, for prenatal care and incapacity related to pregnancy, and for her own serious health condition (A “serious health condition” is defined as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider) following the birth of a child. A father can use FMLA leave for the birth of a child and to care for his spouse who is incapacitated (due to pregnancy or child birth). Under CFRA the employee, father or mother, is entitled to Pregnancy Disability Leave (PDL) and an eligible employee can take 12 weeks of CFRA for bonding. The first 12 weeks of PDL can run concurrently with FMLA.
Eligibility Requirements: In order to be eligible to take leave under the FMLA CCEA members must work 1,250 hours during the 12 months prior to the start of leave, and have worked for the employer for 12 months. The 12 months of employment are not required to be consecutive in order for the employee to qualify for FMLA leave. If you are on National Guard or Reserve Military duty a break in service due to an employee’s fulfillment of military obligations must be counted when determining whether an employee has been employed for 12 months or has the required 1,250 hours of service.
Time Limit for City to Respond: Absent extenuating circumstances, the regulations require the City to notify an employee of whether the employee is eligible to take FMLA leave (and, if not, at least one reason why the employee is ineligible) within five business days of the employee requesting
leave or the employer learning that an employee’s leave may be for a FMLA-qualifying reason, or within five days after the employee is on leave. Among other information included in this notice, the employer must inform the employee whether the employee will be required to provide certification of the FMLA- qualifying reason for leave and the employee’s right to substitute paid leave (including any conditions related to such substitution, and the employee’s entitlement to unpaid FMLA leave if those conditions are not met). The City is expected to responsively answer questions from employees concerning their rights and responsibilities. The designation notice must also state whether the employer will require the employee to provide a return-to-work release to return to work. Additionally, if the amount of leave needed is known, an employer must inform an employee of the number of hours, days, or weeks that will be counted against the employee’s FMLA leave entitlement in the designation notice. Where it is not possible to provide the number of hours, days or weeks
that will be counted as FMLA leave in the designation notice (i.e. where the leave will be unscheduled), an employer must provide this information upon request by the employee, but no more often than every 30 days and only if leave was taken during that period.
Employee Notice Requirements: When the need for leave is foreseeable based on an expected birth, placement for adoption or foster care, or planned medical treatment, an employee must give at least 30 days’ notice. If 30 days notice is not possible, an employee is required to provide notice “as soon as practicable.” Employees must also provide notice as soon as practicable for foreseeable leave due to a qualifying exigency; regardless of how far in advance such leave is foreseeable. When an employee seeks leave for the first time for a FMLA-qualifying reason, the employee does not need to specifically assert his or her rights under FMLA, or even mention FMLA. The employee must, however, provide “sufficient information” to make the employer aware of the need for FMLA leave and the anticipated timing and duration of the leave. Sufficient information include that a condition renders the employee unable to perform the functions of the job; that the employee has been hospitalized overnight; whether the employee or the employee’s family member is under the continuing care of a health care provider.
Medical Records: An employee is not required to give the City his or her medical records. The City, however, does have a statutory right to request an employee provide medical certification containing sufficient medical facts to establish that a serious health condition exists.Under CFRA the employer cannot ask for a diagnosis but it may be provided at the employee’s option. An employee does not need to meet the eligibility tests again to re-qualify for extra leave within the 12-month period if the additional leave is requested for the same qualifying reason.
Fitness for Duty: As a condition of restoring an employee who was absent on FMLA leave due to the employee’s own serious health condition, the City may have a uniformly applied policy or practice that requires all similarly situated employees who take leave for such conditions to submit a certification from the employee’s own health care provider that the employee is able to resume work.
What leave is applied to FMLA: Under the regulations, an employee may choose to substitute accrued paid leave for unpaid FMLA leave if the employee complies with the terms and conditions of the City’s applicable paid leave policy. The regulations also clarify that substituting paid leave for unpaid FMLA leave means that the two types of leave run concurrently, with the employee receiving pay pursuant to the paid leave policy and receiving protection for the leave under the FMLA. An employee is not required to exhaust all paid leave, before choosing unpaid leave.
As you can imagine, there are many possible scenarios that FMLA may apply to your request for leave under the FMLA. It all starts with your request for leave time and then the City’s response. If you are denied FMLA time, contact CCEA to determine any and all possible remedies and solutions.
CCEA Board Members
Tye Gillespie President
Hallie Thompson Vice President
Marie Ashe-Nutter Treasurer
Allison Dietrich CED
Tracy Ritzer Housing & Neighborhood Services,
Policy & Leadership, and Safety
Terry Ennis Public Works: Transportation
Daisy Hernandez Public Works: GFE
Tom Vega Public Works: Utilities
Allen Edwards Library & Recreation
Tammy McMinn At-Large
Marco Castillo 10/06/1997 21
Pedro Preciado 10/06/1997 21
Mike Bailey 10/01/2001 17
Allison Greene 10/14/2002 16
Missy Shaw 10/15/2002 16
Devin Castel 10/18/2004 14
Brian Alcala 10/15/2010 8
Albert Moreno 10/28/2008 10
Sherri Ferguson 10/27/2008 10
Tye Gillespie 10/18/2010 8
Kim Tubbs-Nelson 10/27/2014 4
AndreaHines 10/05/2015 3
Jorge Orduna 10/13/2015 3
Sean Lyon 10/11/2016 2
Jacquelyn Lankhorst 10/17/2016 2
Ryan Baldwin 10/17/2016 2
Cathy Nhothsavath 10/02/2017 1
Hector Salgado 10/23/2017 1
Tim Frazee 10/23/2017 1