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HomeMy WebLinkAboutCC RES 97-089if It RESOLUTION NO. 97-89 A RESOLUTION OF 7'HE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA ESTABLISHING POLICIES REGARDING EMPLOYEE HARASSMENT, DRUG AND ALCOHOL, AND FAMILY LEAVE. WHEREAS, the City of Palm Desert has met and conferred in good faith with the Palm Desert Employees' Organization (PDEO) in accordance with the Meyers-Milias Brown Act and the City employer - employee relations Resolution No. 81-89; and WHEREAS, the Palm Desert Employees' Organization has voted on and passed the adoption of the Policy Against Employee Harassment, Drug and Alcohol, and Family Leave Policies, with established guidelines for administering these policies; and NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Palm Desert, Palm Desert, California, Policies on Employee Harassment, Drug and Alcohol, and Family Leave are hereby established, and copies of said policies being attached hereto, marked as follows: 1) Policy Against Employee Harassment, Exhibit "A" 2) Drug and Alcohol Policy, Exhibit "B" 3) Family Leave Policy, Exhibit "C" PASSED, APPROVED, AND ADOPTED by the City Council of the City of Palm Desert, California, on this 9th day of October , 1997 by the following vote: AYES: NOES: None ABSENT: .None ABSTAIN: None ATTEST: SHEILA R. GILLIGAN, CITY/CLERK CITY OF PALM DESERT;-CALIFORNIA ICHARD S. KELLY, MAYOR , RESOLUTION NO. 97-89 EXHIBIT "A" POLICY AGAINST EMPLOYEE HARASSMENT 1. Policy Statement - The City strictly prohibits unlawful harassment. This includes harassment based on sex, sexual orientation, race, color, ancestry, religious creed, handicap or disability, age, or any other protected class under applicable law. This policy prohibits harassment by all employees and its intent is to protect all classes. II. Application A. This policy applies to all phases of the employment relationship, including recruitment, testing, hiring, upgrading, promotion/demotion, transfer, layoff, termination, rates of pay, benefits and selection for training B. This policy applies to all employees of the City, including, but not limited to, full - and part-time employees, per diem employees and temporary employees. III. Harassment Defined A. Harassment may consist of offensive verbal, physical or visual conduct when such conduct is based on or related to an.individual's sex and/or membership in one of the above -described protected classifications. Harassment, sexual or otherwise, is defined and prohibited as follows: 1. Making unwelcome sexual advances or requests for sexual favors or other verbal or physical conduct of a sexual nature a condition of an employee's employment, or 2. Making submission to or rejection of such conduct the basis for employment decisions affecting the employee, or 3. Creating an intimidating, hostile or offensive working environment by such conduct or unreasonably interfering with an individual's work performance by such conduct. Sexual harassment does not refer to behavior or occasional compliments of a socially acceptable nature. It refers to behavior that is not welcome. B. Examples of what may constitute prohibited harassment include, but are not limited to, the following: RM\BRB\90339 RESOLUTION NO. 97-89. , EXHIBIT "A" 1. Kidding or joking about sex or membership in one of the protected classifications; 2. Hugs, pats and similar physical contact; 3. Assault, impeding or blocking movement, or any physical interference with normal work or movement; 4. Cartoons, posters and other materials referring to sex; or membership in one of the protected classifications; 5. Threats intended to induce sexual favors; 6. Continued suggestions or invitations to social events outside the workplace after being told such suggestions are unwelcome; 7. Degrading words or offensive terms of a sexual nature or based on the individual's membership in one of the protected classifications; 8. Prolonged staring or leering at a person; 9. Similar conduct directed at an individual on the basis of race, color, ancestry, religious creed handicap or disability, medical condition, age (over 40), marital status, sexual orientation, or any other protected classification under applicable law. Iv. hassilium A. Internal Reporting Procedure 1. Any employee who believes that he or she has been the victim of s exual or other prohibited harassment by coworkers, supervisors, clients or customers, visitors, vendors or others should immediately notify his or her supervisor, or in the alternative, the Human Resources Manager, depending on which individual the employee feels most comfortable in contacting. 2. Additionally, supervisors who observe or otherwise become aware of harassment that violates this policy have a duty to take steps to investigate and remedy such harassment and prevent its recurrence. RM\BRB\90339 -2- RESOLUTION NO. 97-89 EXHIBIT "A" B. External Reporting Procedure 1. Any employee who believes that he or she has been the victim of s exual or other prohibited harassment by coworkers, supervisors, clients or customers, visitors, vendors or otherwise may file a complaint with the California Department of Fair Employment and Housing (DFEH). Employees may contact DFEH at 1845 South Business Center Drive, Room 127, San Bernardino, California. The phone number for DFEH is (909) 383-4711. V. Investigation A. Upon the filing of a complaint, the City will provide the complainant with a copy of this policy. The Human Resources Manager is the person designated by the City to investigate complaints of harassment. The Human Resources Manager may, however, delegate the investigation at his or her discretion. In the event the harassment complaint is against the Human Resources Manager, the City Manager will appoint an investigator. B. The DFEH investigates charges filed with the DFEH. VI. Internal Documentation Procedure A. When an allegation of harassment is made by an employee, the person to whom the complaint is made will immediately prepare a report of the complaint and submit it to the Human Resources Manager. B. The investigator will make and keep a written record of the investigation, including notes of verbal responses made to the investigator by the person complaining of harassment, witnesses interviewed during the investigation, the person against whom the complaint of harassment was made, and any other person contacted by the investigator in connection with the investigation. The investigator's notes will be made at the time the verbal interview is in progress. Any other documentary evidence will be retained as part of the record of the investigation. Upon completion of the investigation, the results will be given to the complainant, the alleged harasser and the Human Resources Manager. C. Based on the report and any other relevant information, the Human Resources Manager will, within a reasonable period of time, determine whether the conduct of the person against whom a complaint has been made constitutes harassment. RM\BRB190339 -3- • •RESOLUTION NO. 97-89• EXHIBIT "A" In making that determination, the Human Resources Manager will look at the record as a whole and at the totality of circumstances, including the nature of the conduct in question, the content in which the conduct, if any occurred, and the conduct of the person complaining of harassment. The determination of whether harassment occurred will be made on a case -by -case basis by the Human Resources Manager. VII. Confidentiality- All records and information relating to the investigation of any alleged harassment and resulting disciplinary action will be confidential, except to the extent disclosure is required by law, as part of the investigatory or disciplinary process, or as otherwise reasonably necessary. VIII. Remedies A. Disciplinary Action 1. If the Human Resources Manager determines that the complaint of harassment is founded, the Human Resources Manager will take immediate and appropriate disciplinary action consistent with the requirements of law and any personnel rules or regulations pertaining to employee discipline. Other steps may be taken to the extent reasonably necessary to prevent recurrence of the harassment and to remedy the complainant's loss, if any. 2. Disciplinary action will be consistent with the nature and severity of the offense, the rank of the harasser, and any other factors relating to the fair and efficient administration of the City's operations. B. In the event a complaint is filed with the DFEH, and the DFEH finds that the complaint has merit, the DFEH will attempt to negotiate a settlement between the parties. If not settled, DFEH may issue a determination on the merits of the case. 1. Where a case is not settled and the DFEH finds a violation to exist, it can prosecute the charging parry's case before the Fair Employment and Housing Commission ("FEHC"). Legal remedies available through DFEH and FEHC for a successful claim by an applicant, employee or former employee include possible reinstatement to a former job, the award of a job applied for, back pay, front pay, attorneys' fees, and, under appropriate circumstances, actual damages and/or administrative fines. 2. In the alternative, DFEH may grant the employee permission to withdraw the case and pursue a private lawsuit seeking similar remedies. RM\BRB\90339 -4- RESOLUTION NO. 97-89 EXHIBIT "A" IX. Retaliation- Retaliation against anyone for opposing conduct prohibited by this policy or for filing a complaint with, or otherwise participating in an investigation, proceeding, or hearing conducted by the City, DFEH or FEHC, is strictly prohibited and may subject th e offending person to, among other things, disciplinary action, up to and including, termination of employment. X. Employee Obligation A. Employees are not only encouraged to report instances of harassment, they are obligated to report instances of harassment. B. Employees are obligated to cooperate in every investigation of harassment, including, but not necessarily limited to: 1. Coming forward with evidence, both favorable and unfavorable, to a person accused of harassment; and 2. Fully and truthfully making a written report or verbally answering questions when required to do so during the course of a City investigation of alleged harassment. C. Knowingly falsely accusing someone of harassment or otherwise knowingly giving false and misleading information in an investigation of harassment will be grounds for disciplinary action, up to and including, termination of employment. XI. Training A. The City will conduct annual training workshops for employees on the topic of harassment. The emphasis of each workshop may change to educate employees and supervisors regarding the different aspects and variety of harassment issues. The training may range from one hour to four hours annually. RM\BRB\90339 -5- 2ESOLUTION NO. 97-89 EXHIBIT "B" DRUG AND ALCOHOL USE POLICY I. POLICY STATEMENT It is the policy of the City of Palm Desert (hereinafter "the City") to prohibit its employee s from using alcohol or drugs in connection with their employment, as it constitutes a threat to the safe and efficient performance of our services to the public. With this in mind, the City has established the following policy with regard to use, being under the influence, possession, distribution or manufacture of alcohol or drugs. II. PRE -EMPLOYMENT SCREENING The City will maintain pre -employment screening practices designed to prevent hiring individuals who use illegal drugs or individuals whose use of legal drugs or alcohol indicates a potential for impaired or unsafe job performance. If the applicant is under age 18, a consent form must be signed by the parent or guardian. All offers of employment extended by the City shall be contingent upon the applicant submitting to and passing a fitness for duty. examination which shall include testing for the use of drugs and alcohol. Applicants who refuse to sign a consent form permitting testing or the release of test results to the City will not be hired/rehired. Samples of the applicant's urine shall be collected in a medical environment, during the pre -employment physical, by persons unrelated to the City. Any medical history and other information provided by the applicant, as well as the results of the urinalysis, shall not be revealed to the City. Rather, the City shall be notified as to how the individual rated on a scale of from one to five. A five rating shall mean that the applicant is not recommended for employment, but does not necessarily mean that the employee has tested positive for drug use. An applicant who received an unsatisfactory rating is entitled to know what portion of the test he or she failed, and to question and challenge test results he or she believes to be erroneous. Any positive test result shall be retested independently using a more sensitive test. Applicants who receives an unsatisfactory rating for use of unprescribed controlled substances or alcohol intoxication or abuse will be deemed to have failed the pre- employment physical examination and will not be hired/rehired. RKBRB\88131 RESOLUTION NO. 97-89 EXHIBIT "B" Applicants who receive an unsatisfactory rating that indicates abuse of prescribed drugs, likewise, will be deemed to have failed the pre -employment physical examination and will not be hired/rehired. However, an applicant who receives a rating of five can reapply for employment after six months. III. REASONABLE SUSPICION DRUG AND ALCOHOL SCREENING The City may require a blood test, urinalysis, or other drug and/or alcohol screening of those persons reasonably suspected of using or being under the influence of a drug or alcohol at work or when on standby duty. Reasonable suspicion is defined as behavior, speech, body odor, appearance, or other objective evidence (for example, an open container in a vehicle) of recent drug or alcohol use, which would lead a reasonable perso n to believe that the employee is under the influence of drugs and/or alcohol. The supervisor shall document those factors which created the reasonable suspicion. An employee's consent to submit to such a test is required as a condition of employment and the employee's refusal to consent may result in disciplinary action, up to and including termination for even a first refusal or any subsequent refusal. Supervisors will be required to attend two hours of training regarding detection of drug and alcohol use. IV. USE, BEING UNDER THE INFLUENCE, POSSESSION, DISTRIBUTION OR MANUFACTURE OF DRUGS OR ALCOHOL A. Alcohol Use or being under the influence of alcohol by any employee while performing City business, while on the City's property or while on standby is prohibited to the extent that it may affect the safety of the employee, co- workers or members of the public, the employee's job performance, or the safe or efficient operation of the City's business. B. Legal Drugs Use of or being under the influence of any legally obtained drug by any employee while performing City business, while on the City's property, or while on standby is prohibited to the extent such use or influence may affect the safety of the employee, coworkers, members of the public, the employee's job performance, or the safe or efficient operation of the City' s business. An employee may continue to work, even though under the influence of a legal drug, if management has determined, after consulting with competent medical authority, that the employee does not pose a threat to his or her own safety or the safety of co-workers and that the employee' s job performance is not significantly affected by the legal drug. RMIBRB\88131 -2- RESOLUTION NO. 97-89 EXHIBIT "B" Otherwise, the employee may be required to take a leave of absence or comply with other appropriate action as determined by the City. 1. Illegal Drugs The use, being under the influence of, manufacture, distribution, purchase, transfer or possession of an illegal drug by any employee while on the City's property, while performing City business or while on standby is prohibited. V. DEFINITIONS Under the influence means, for the purposes of this Policy, that the employee is affected by a drug or alcohol or the combination of a drug and alcohol in any detectable manner. The symptoms of influence are not confined to those consistent with misbehavior, nor to obvious impairment of physical or mental ability, such as slurred speech or difficulty in maintaining balance. A determination of influence can be established by a professional opinion, a scientifically valid test, and, in some cases, by a layperson's opinion. Legal Drug includes prescribed drugs and over-the-counter drugs which have been legally obtained and are being used for the purpose for which they were prescribed or manufactured. Illegal Drug means any drug which is not legally obtainable, or which is legally obtainable but has not been legally obtained. The term further includes prescribed drugs not being used for prescribed purposes. It also includes marijuana. VI. EMPLOYEE REPORTING REQUIREMENTS 1. LEGAL DRUGS (a) An employee's use of a legal drug can pose a significant risk to the safety of the employee or others. Employees who feel or have been informed that the use of a legal drug may present a safety risk are to report their use of such drug to their immediate supervisor. Employees using any legally prescribed drug that states it may impair their ability to safely perform their assigned duties must submit documentation from the employee's personal physician certifying that the drug involved has been legally prescribed and stating a medical opinion as to whether or not the employee is capable of safely performing his/her assigned duties. RM\BRB\88131 -3- (ESOLUTION NO. 97-89 EXHIBIT "B" Failure to submit the above described documentation may result in the employee being placed on leave without pay until such time as the employee provides such documentation. (b) Employees who observe behavior or see other evidence that a fellow employee poses a risk to the health and safety of the employee or others have an obligation to report these facts or reasonable suspicions to the immediate supervisor for further investigation and appropriate action. 2. ILLEGAL DRUGS Employee use of an illegal drug poses a risk to the safety of the employee and others. Employees who have been informed or suspect that a fellow employee has used, is in possession of or is under the influence of an illegal drug have an obligation to report such suspicion or facts to his/her immediate supervisor for further investigation and appropriate action. VII. SEARCHES The City reserves the right to search lockers, storage areas, furniture, City vehicles and other places under the common control of the City and employees, and to enlist the assistance of law enforcement personnel in connection with the enforcement of this Policy. VIII. DISCIPLINARY ACTION Violation of this Policy can result in disciplinary action, up to and including termination, even for a first offense. Any disciplinary action shall be consistent with the Personnel Ordinance. Further, the City reserves the right to discipl ine or terminate employees convicted of an offense which involves the use, distribution, or possession of illegal drugs. IX. DRUG AND ALCOHOL USE POLICY/EMPLOYEE ASSISTANCE PROGRAM The City recognizes that employees may need assistance with drug and alcohol problems. The City offers an Employee Assistance Program (EAP), described in detail in the City of Palm Desert Employee Handbook, to help its employees with these problems in an effort to eliminate them and to improve job performance. Any employee who wishes to avail him/herself of such assistance is welcome. Information on the program and all the procedures is available in the Employee Handbook, as noted above. If an employee has any questions about the program, contact Human Resources Manager. RM\BRB\88131 -4- ESOLUTION NO. 97-89 EXHIBIT "B" While employee use of the EAP program is encouraged by the City, employees must know and understand that use of such program does not absolve employees of their responsibility to perform well in their jobs. It is the goal of the City to help its employees who may have drug and/or alcohol problems so that they may be productive employees who perform their jobs and represent the City well. If, however, an employee is not performing satisfactorily in his/her job, the fact that the employee is in the City's EAP will not shield such employee from discipline or termination. It is the City's hope that the establishment of the Early Assistance Program and use of it by City employees will help employees get back on track so that termination of employment will not be necessary. Employees should understand however that the City has the right to terminate an employee for unsatisfactory work performance, whether due to a drug or alcohol problem or other reason. X. DRUG FREE AWARENESS PROGRAM The City shall establish a drug free awareness program. The City will utilize professionals and/or prepare materials to educate the employees as to: A. The dangers of drug abuse in the work place; B. The City's policy of maintaining a drug free work place; C. Available drug counseling, rehabilitation, employee assistance programs; and other employee health benefits; and D. Disciplinary actions that may be imposed upon employees for violations to the drug and alcohol use policy. RM\BRB\88131 -5- RESOLUTION NO. 97-89 Name of Employee: EXHIBIT "B" ACKNOWLEDGMENT OF RECEIPT OF POLICY ON DRUG AND ALCOHOL USE I hereby acknowledge receipt of The City of Palm Desert's Policy on Drug and Alcohol Use, and I fully understand and agree to comply with its provisions. I further understand that my refusal to sign this statement and/or agree to comply with said Policy may subject me to disciplinary action, up to and including termination. Employee's Signature Date (To be placed in employee's personnel file.) RM\BR13188131 -6- .ESOLUTION NO. 97-89 EXHIBIT "C" FAMILY LEAVE POLICY Scope. In accordance with the Federal Family and Medical Leave Act (hereinafter "FMLA"), and the California Family Rights Act (hereinafter "CFRA"), the CITY OF PALM DESERT (hereinafter "City") has adopted the following policy regarding the rights and responsibilities of employees absent for a family leave purpose. This policy shall supersede the provisions of any City policy, practice, rule or procedure to the extent that such policy, practice, rule or procedure is in conflict or inconsistent with this policy. II. Purpose of Leave. In accordance with the CFRA, FMLA and this policy, the City shall provide up to 12 workweeks of CFRA and/or FMLA leave in a 12-month period to any "eligible employee" who requests leave for any of the following purposes: A. The birth or adoption of a child by the employee or placement of a child in foster care with the employee (all family leave taken for one of these purposes must be concluded within one year of the event); B. To care for a child, parent or spouse of the employee who has a serious health condition; or C. For an employee's own serious health condition which makes the employee unable to perform the essential functions of the employee's position. III. Eligibility Employees are eligible for family leave if, at the time leave commences, all of the following apply: A. The employee must have at least 12 months (not necessarily consecutive months) of service with the City; B. The employee must have worked at least 1,250 hours during the 12 months immediately prior to the period of FMLA and/or CFRA leave; and C. As of the date of the employee's leave request, the City employs at least 50 full - and/or part-time employees at the employee's worksite or within 75 road miles of the employee's worksite. IV. Special Rules for Pregnancy Disability Leave. A. The right to take CFRA leave is separate and distinct from the right to take a pregnancy disability leave. In other words, leave taken by an employee disabled by pregnancy, childbirth or a related medical condition is not family leave under the CFRA, even though it may be FMLA leave. RM\BRB\90597 .ESOLUTION NO. 97-89 EXHIBIT "C" B. In light of the above, the City may require that pregnancy disability and FMLA leave run concurrently (hereinafter "pregnancy disability/FMLA leave "), although CFRA leave does not run concurrently with a pregnancy disability leave. This means that, at the end of the employee's period(s) of pregnancy disability and/or pregnancy disability/FMLA leave, whichever occurs first, a CFRA-eligible employee may take up to 12 workweeks of CFRA leave due to the birth of her child or for other family leave purposes. 1. Where an employee has exhausted her entitlement to pregnancy disability/FMLA leave prior to the birth of her child, and her health care provider certifies that continued leave is medically necessary, the City may, but is not required to, allow the employee to utilize CFRA leave prior to the birth of her child. 2. The maximum combined leave entitlement for pregnancy disability, FMLA and CFRA leave for the birth of a child is four months and 12 workweeks. This assumes that the employee has exhausted all four months of pregnancy disability leave; she exhausted her entitlement to up to 12 weeks of FMLA leave during the period of pregnancy disability leave; and the employee requested and was eligible for a 12-week CFRA leave following the birth of her child. C. For more information regarding your rights to pregnancy disability leave, contact the Human Resources Department. V. Special Rules Regarding the Employment of Spouses/Parents. A. Where CFRA and FMLA leave are running concurrently, and both the "husband and wife" are employed by the City, their combined entitlement to CFRA/FMLA leave for the birth or adoption of a child by the employees or placement of a child in foster care with the employees shall be limited to 12 workweeks in a 12-month period between the husband and wife. B. Where CFRA leave is running separate and apart from FMLA leave (such as following a pregnancy disability/FMLA leave), and both "parents" are employed by the City, their combined entitlement to CFRA leave for the birth, adoption or foster care placement of their child shall be limited to 12 workweeks in a 12-mont h period between the two parents. This provision applies to the parents of the child , regardless of their marital status. C. The provisions above do not affect the employees' right to use any remaining CFRA and/or FMLA leave for any other qualifying purpose(s). RM\BRB\90597 -2- :SOLUTION NO. 97-89 EXHIBIT "C" D. Calculating the 12-Month Period. For the purpose of this policy, "12-month period" shall mean the calendar year. "There shall be no carry over of unused family leave from one 12-month period to another." VI. Employee Notice Requirements. A. The employee, or a spokesperson for the employee (e.g., spouse, adult family member, or other responsible party), must notify the Human Resources Manager preferably in writing, as soon as it becomes apparent that the employee will be needing leave for a family leave purpose. B. Employees must provide at least 30 calendar days advance notice before leave is to begin if the need for leave is foreseeable, or notice as soon as possible for unforeseeable events. C. The employee must consult with his/her supervisor regarding and must make a reasonable effort to schedule any planned medical treatment or supervision so as to minimize disruption of City operations. Actual scheduling is, however, subject to the approval of the patient's health care provider. D. Failure to comply with these notice requirements is grounds for, and may result in, deferral of the requested leave until the employee complies with these provisions. However, the City shall not deny a leave, the need for which is an emergency or is otherwise unforeseeable, on the basis that the employee did not provide advance notice of the need for the leave. E. Where leave is requested on the basis of a serious health condition affecting an employee's family member, the City may require evidence of the family relationship: VII. city Determination and Notification to Employee A. It is up to the City to designate leave, paid or unpaid, as CFRA or CFRA/FMLA leave is based on information provided by the employee or the employee's representative. B. In the event that the City determines that a leave of absence is for an FMLA famil y leave purpose, the City shall, within two business days, notify the employee of its determination that the leave constitutes FMLA and/or CFRA leave. Such notice may be oral or in writing. However, any oral notice shall be confirmed in writing by no later than the employee's next payday (the subsequent payday where the next payday is less than a week away). RM\BRB\90597 -3- RESOLUTION NO. 97-89 EXHIBIT "C" C. Where CFRA leave is running separate and apart from FMLA leave (such as following a pregnancy disability/FMLA leave), the City shall respond to the leave request as soon as possible and, in any event, no later than 10 calendar days after receiving the request. Once given, approval of CFRA leave shall be deemed retroactive to the first day of the leave. D. The City's written notice to the employee shall, among other things: 1. Specify the obligations of the employee while on family leave and explain the consequences of a failure to meet these obligations; 2. Provide notice to the employee in the event that a period of paid leave is t o be counted as family leave; 3. Provide notice to the employee in the event that the City requires paid leave to be substituted for unpaid leave. E. Where the employee fails to provide sufficient information until after the leave commenced, the City may make a preliminary determination that the employee's absence is for a family leave purpose, subject to later confirmation by medical certification. F. If either the City or the employee designate an absence as family leave after the leave of absence has begun, such as when an employee advises the City during the leave of absence or after his/her return to work that the entire leave of absence or any part of it was for a family leave purpose, that portion of the leave period which was for a family leave purpose may be retroactively counted as family leave. G. If the employee fails to advise the City that a leave of absence was for a family leave purpose either before, during or within two days after he/she returns to work, the employee will not be able to assert the protections of the family leave laws for the leave of absence. H. Except as provided above, neither the City nor the employee may retroactively designate a period of leave as family leave after the employee has returned to work. I. Any dispute between the City and an employee as to whether paid leave qualifies as family leave should be resolved through discussions between the employee and the City. RM\BRB\90597 -4- ESOLUTION NO. 97-89 EXHIBIT "C" VIII. Medical Certification. A. An employee's request for leave due to a serious health condition affecting the employee or the employee's child, parent or spouse must be supported by a medical certification issued by the health care provider of the individual requiring care. 1. For leave to care for the employee's child, parent, or spouse, this certification need not identify the serious health condition involved, but shall contain: (a) The date, if known, on which the serious health condition commenced; (b) The probable duration of the condition; (c) An estimate of the amount of time which the health care provider believes the employee needs to care for the child, parent or spouse; and (d) A statement that the serious health condition warrants the participation of the employee to provide care during a period of treatment or supervision of the child, parent or spouse. 2. For leave to care for the employee's own serious health condition, this certification need not, but may, at the employee's option, identify the serious health condition involved. It shall contain: (a) The date, if known, on which the serious health condition commenced; (b) The probable duration of the condition; and (c) A statement that, due to the serious health condition, the employee is unable to work at all or is unable to perform any one or more of the essential functions of his or her position. B. Medical certification is not required where leave is requested for the birth, adoption or placement of a child in foster care with the employee. C. Medical certification must be provided within 15 calendar days of the City's request and generally prior to the commencement of a foreseeable leave of absence, RM\BRB\90597 -5- RESOLUTION NO. 97-89 EXHIBIT "C" unless it is not practicable to do so despite the employee's diligent, good faith efforts to do so. D. With regard to leave due to the employee's own serious health condition: 1. Where the City has reason to doubt the validity of the employee's medical certification, the City may require, at the City's expense, that the employee obtain a second medical opinion from a health care provider designated by the City and who is not regularly used by the City for this purpose; and 2. Where the second opinion differs from the first, the City may require that the employee obtain a third and binding medical opinion, again at the City' s expense, from a health care provider designated or approved jointly by the City and the employee. E. The City may require recertification only where additional leave is requested. F. The City may also require certification at the time the employee seeks reinstatement from family leave due to the employee's own serious health condition that the employee is fit for duty and able to return to work. IX. Minimum Period of Leave. A. Leave may be taken in one or more periods and does not have to cover a continuous period of time. B. Where leave is taken due to the serious health condition of the employee or his/her parent, child or spouse, the minimum leave increment shall be the shortest period of time the City's payroll system uses to account for absences or use of leave. C. Where CFRA leave is running separate and apart from FMLA leave (such as CFRA leave following pregnancy disability/FMLA leave), the minimum duration for leave taken in connection with the birth, adoption or foster care placement of a child is two weeks, except that the City shall grant a request for CFRA leave of less than two weeks on any two occasions during the one year period following the birth or placement of the child with the employee. X. Temporary Transfers. A. Employees may take intermittent leave or leave on a reduced schedule due to a serious health condition of the employee, or the employee's child, parent or spouse, whenever medically necessary. RM\BRB\90597 -6- ESOLUTION NO. 97-89 EXHIBIT "C" B. If an employee requests intermittent leave, the City may require a temporary transfer to an "alternative position" for which the employee is qualified, and which: 1. Provides equivalent pay and benefits; and 2 Better accommodates recurring periods of leave. C. Transfer to an alternative position may include altering an existing job to better accommodate the employee's need for intermittent leave or a reduced work schedule. XI. Continuation of Health and Other Benefits. A. The City will continue group health care benefits during the period of leave, up to a maximum of 12 workweeks in any 12-month period, on the same terms and conditions as applied prior to the commencement of family leave. For the purposes of continued group health coverage, the 12 weeks commences on the first day of pregnancy disability, CFRA or FMLA, whichever occurs first. B. During any period of leave which is unpaid, the City may discontinue payments made on behalf of the employee to a non -group health plan, employee retirement plan or other benefit plan, and the leave period shall not be counted for purposes of time accrued under a retirement plan. C. In the event that the employee is responsible for any portion of the group health insurance premium or for any other premium payment(s), the employee should, prior to the commencement of leave, make arrangements with the Finance Department for the submission of such payments. D. If the employee fails to return after the period of leave has expired, the City may be entitled to reimbursement for any benefit premiums paid by the City during a period of unpaid family leave, unless: 1. The reason for the employee's failure to return is due to the continuation, recurrence or onset of a serious health condition of the employee or the employee's child, spouse or parent; 2. Other circumstances beyond the control of the employee as set forth in applicable law and regulations. RM\BRB\90597 -7- RESOLUTION NO. 97-89 EXHIBIT "C" E. Employees who are not eligible for continued paid coverage or whose entitlement to continued paid coverage has expired may continue their group health insurance coverage through the City pursuant to federal COBRA guidelines. XII. Coordination of CFRA and FMLA Leave. Each day of leave for a family leave purpose, other than disability due to pregnancy, childbirth or related medical conditions, counts as a day of FMLA and CFRA leave. XIII. Substitution of Leave. A. The City requires that sick leave be used to provide pay during any period of otherwise unpaid family leave due to the employee's own serious health condition . Sick leave may also be used in connection with family leave taken for other purposes in accordance with applicable City policy(ies) and upon the mutual agreement of the City and the employee. B. The City requires that vacation and other accrued time off (other than sick leave and compensatory time off) be used for any family leave qualifying event other than pregnancy disability leave. Where pregnancy disability leave and FMLA leave are running concurrently, accrued vacation may be used at the employee's option. C. CFRA and FMLA leave may also run concurrently with a leave of absence covered by workers' compensation or temporary disability. XIV. Reinstatement. A. Where a definite date of reinstatement has been agreed upon at the beginning of the leave, the employee will be reinstated to the same or a comparable position by the date agreed upon. B. If the reinstatement date differs fioin the City's and employee's original agreement, the employee will be reinstated to the same or a comparable position within two business days, where feasible, after the employee notifies the City of his or her readiness to return. C. The employee's use of family leave will not result in the loss of any benefit that the employee earned or was entitled to before going on family Ieave. Upon reinstatement, all benefits will be resumed without any new qualification period, physical examination or exclusion of preexisting conditions. RM\BRB\90597 -8- £SOLUTION NO. 97-89 NA EXHIBIT "C" XV. Denial of Reinstatement. A. An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during family leave. Thus, for example, if an employee is laid off while on famil y leave, the City's responsibility to maintain group health plan benefits and reinstate the employee ceases at the time the employee is laid off. B. The City may also deny reinstatement to: 1. An employee who gives notice that he or she no longer desires to return to employment with the City; 2. An employee who fails to provide certification that he or she is fit for duty and able to return to work after taking family leave based on the employee's own serious health condition; or 3. A salaried "key employee" who is among the highest -paid 10% of employees employed within 75 road miles of the employee's worksite, if: (a) It is necessary to prevent substantial grievous economic injury to the operations of the City, (b) Notice is given to the employee at the time of the leave request that the City cannot deny the leave request, but that the City intends to deny reinstatement, and (c) The employee is given a reasonable opportunity to return to employment after receiving such notice, but elects not to return, or (d) After the leave expires, the employee requests reinstatement, and the City makes a determination at the time of the reinstatement request and notifies the employee of its determination that reinstatement would cause substantial grievous economic injury to the operations of the City. XVI. Benefits Accrual. Employees on approved family leave continue to accrue vacation and sick leave and maintain medical coverage benefits. XVII. Additional Information. Should you have any questions about your rights and responsibilities in connection with family leave, contact the Human Resources Department. RM\BRE\90597 -9- RESOLUTION NO. 97-89 EXHIBIT "C" ACKNOWLEDGEMENT I hereby acknowledge that I have received a copy of the City's Family Leave Policy. I understand that if I have any questions about the policy, 1 may discuss them with the Human Resources Department. I recognize that this policy supersedes and replaces any previous City policy, practice, rule or procedure affecting my rights to CFRA and/or FMLA leave, and, to the extent that the provisions of this policy conflict with any previously issued City policy, practice, rule or procedure, whether or not such policy, practice, rule or procedure was reduced to writing, the provisions of this policy shall prevail. Employee's Name (print or type) Date: Employee Signature: Date: Witness: RM\BRB\90597 -10-