Section R2-5A-D601. Family and Medical Leave Act (FMLA) Leave

A.      General. All state agencies are responsible for complying with the federal Family and Medical Leave Act (FMLA) of 1993 and  all  applicable   revisions.  FMLA  Regulations,  29  CFR

825.100 through 29 CFR 825.800 (July 2012), are incorpo- rated by this reference and on file with the Department and available from the U.S. Government Printing Office, 732 North Capitol Street N.W., Washington, D.C. 20401. This incorporation by reference contains no future editions or amendments. Any interference with, restraint of, or denial of an employee’s rights provided by the FMLA is strictly prohib- ited.

B.       Eligible employee.

1.        An eligible employee for the purposes of the FMLA is an employee who:

a.        Is an employee of the state of Arizona;

b.        Has been employed by the state of Arizona for at least 12 months; and

c.        Worked for at least 1,250 hours of service during the 12 months immediately preceding commencement of the leave.

2.        An agency head shall not extend FMLA benefits to an ineligible employee.

C.      Situations covered by the FMLA. A state agency shall grant an eligible employee FMLA leave when the employee takes leave for one or more of the following reasons:

1.        The birth of a child or placement of a child with the employee for adoption or foster care, provided the leave concludes within 12 months of the birth or placement.

2.        To care for the employee’s spouse, child or parent with a serious health condition.

3.        The employee is unable to work because of the employee’s own serious health condition.

4.        Any qualifying exigency arising out of the fact that the employee’s spouse, child or parent is a covered military

member on active duty or call to active duty status in sup- port of a contingency operation.

5.        To care for a covered service member with a serious injury or illness when the covered service member is the employee’s spouse, child, parent or next of kin.

D.      Amount of FMLA leave.

1.        An employee who takes FMLA leave for any of the situa- tions described in subsections (C)(1), (2), (3) or (4) may take a maximum of 12 workweeks of leave during any rolling 12-month period, measured backward from the first day of each approved period of FMLA leave.

2.        An employee who takes FMLA leave for the situation described in subsection (C)(5) may take up to 26 work- weeks of leave in a single 12-month period.

3.        During a 12-month period, an eligible employee is able to take no more than 12 workweeks of leave for any of the situations described in subsections (C)(1), (2), (3) or (4) and a combined total of 26 workweeks of leave if the leave includes the situation described in subsection (C)(5).

4.        If a husband and wife are both state employees, the hus- band and wife are limited in the amount of FMLA leave taken to a combined total of:

a.        12 workweeks of leave for the birth and care of a newborn child, placement of a child for adoption or foster care, or to care for a parent who has a serious health condition.

b.        26 workweeks of leave to care for a covered service member with a serious injury or illness.

E.       Designation of FMLA leave. An employee need not specifi- cally request FMLA leave to be placed on FMLA leave. If an eligible employee takes leave for any reason covered by the FMLA and has not already exhausted the employee’s available FMLA leave, the agency head shall designate the employee’s leave as FMLA leave.

F.       Use of paid leave. Except for portions of industrial leave, an employee on FMLA leave shall be required to use the employee’s available paid leave while on FMLA leave as fol- lows and in the following order:

1.        Sick leave or, as applicable, family sick leave subject to the provisions of R2-5A-B603.

2.        Compensatory leave subject to the provisions of R2-5A- B607.

3.        Annual leave subject to the provisions of R2-5A-B602.

4.        Leave without pay subject to the provisions of R2-5A- C602.

G.      Insurance benefits continuation. An employee who is using leave with pay remains eligible for continued participation in the employee insurance plans and the employee’s share of pre- miums/contributions is paid through payroll deduction. An employee who is on leave without pay while on FMLA leave may continue to participate in the employee insurance plans as follows:

1.        Health benefit plan participation. An employee is eligible to continue to participate in the health benefit plan for the duration of the FMLA leave by paying the employee pre- mium/contribution. An agency head may recover the state’s portion of premium/contributions paid to maintain health coverage for an employee if the employee fails to return from FMLA leave under certain circumstances, in accordance with FMLA regulations incorporated by ref- erence in subsection (A).

2.        Life insurance plan participation. An employee continues to participate in the Basic Life and Accidental Death and Dismemberment Insurance Plan and may continue to par-

ticipate in the supplemental life and dependent life insur- ance coverage by paying the full premium/contribution.

3.        Termination of insurance. The insurance coverage of an employee on leave without pay who fails to pay insurance premiums/contributions when due shall terminate at 11:59 p.m. on the last day of the period covered by the last premium/contribution paid.

H.      Return from FMLA leave. An agency head shall restore an employee returning from FMLA leave to the employee’s orig- inal job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. The provisions of the FMLA, not the provisions of R2-5A-C602(C), shall govern return to work from leave without pay granted to com- plete an FMLA-qualified leave.

I.        Employee responsibilities. An employee is required to adhere to the employing agency’s call-in procedures, give the agency 30 days’ notice in the event of a foreseeable leave, provide requested documentation, and periodic updates of the employee’s status and intent to return to work as requested by the agency.

J.        Agency rights. Nothing in the FMLA or this rule should be construed as limiting an agency’s right to manage, discipline or terminate an employee, including an employee’s failure to comply with the agency’s request for appropriate documenta- tion to substantiate the employee’s need for the leave. How- ever, an employee’s use of FMLA leave cannot be considered as a negative factor in any employment decision.

K.      Conflict. If there is a conflict between the provisions of these rules and the FMLA, the provisions of the FMLA govern.

Historical Note

Section made by exempt rulemaking at 18 A.A.R. 2782, effective September 29, 2012 (Supp. 12-4).