fmla and employee termination

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					                                   MEMORANDUM

July 08, 2008

TO:             Honorable Mayor & City Commissioners

VIA:            Anthony G. Otte, City Manager AGO

FROM:           Sandra D. Davis, Human Resources Director

RE:             Ordinance 2008-22, Amending Ordinance 2001-08                  Personnel
                Administration Policies – Second Reading and Public Hearing

RECOMMENDATION

It is recommended that the City Commission approve Ordinance 2008-22 upon Second
Reading and Public Hearing.

BACKGROUND

FMLA LEAVE

The Family and Medical Leave Act (FMLA), is an act that states covered employers must
grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-
month period for one or more of the following reasons:

   •   For the birth and care of a newborn child of the employee;
   •   For placement with the employee of a son or daughter for adoption or foster care;
   •   To care for an immediate family member (spouse, child, or parent) with a serious
       health condition; or
   •   To take medical leave when the employee is unable to work because of a serious
       health condition.

In July 2007 the FMLA was amended and required all Florida employers with more than
fifty (50) employees to grant eligible employees up to three (3) days of unpaid leave to
deal with issues of domestic violence.

Recent amendments to the FMLA (Family Medical Leave Act) were enacted that provide
eligible employees working for covered employers two new leave entitlements related to
military service:

        (1)    New Qualifying Reason for Leave. Up to 12 weeks of leave for
qualifying exigencies arising out of a covered family member’s active military duty, i.e.
spouse, son, daughter, or parent, and
        (2)    New Leave Entitlement. An eligible employee who is the spouse, son,
daughter, parent, or next of kin of a covered servicemember who is recovering from a
serious illness or injury sustained in the line of duty on active duty is entitled to up to 26
weeks of leave in a single 12-month period to care for the servicemember. This provision
became effective immediately upon enactment. This military caregiver leave is available
during” a single 12-month period” during which an eligible employee is entitled to a
combined total of 26 weeks of all types of FMLA leave.

NEW GUN LAW
Governor Charlie Crist has signed a new bill that takes effective July 1, 2008, which
makes it, illegal for public and private employers to have policies prohibiting firearms on
their private property. Specifically, the law permits employees who have concealed
weapon permits to keep firearms locked in their vehicles on company property.
Additionally, the law permits customers or other “invitees” of a business to have firearms
locked in their vehicles in the business’ parking lot, regardless of whether they have a
concealed weapons permit.
Under the law, employers may not:

   •   Prohibit employees, customer, or invitees from keeping a firearm locked in their
       vehicle on company property;

   •   Ask an employee, customer, or invitee about the presence of a firearm in the
       person’s vehicle on company property;

   •   Search a vehicle on company property to ascertain the presence of a firearm in the
       vehicle (the law provides that a search of a vehicle to ascertain the presence of a
       firearm may only be conducted by on-duty law enforcement personnel; based upon
       due process and must comply with constitutional protections);

   •   Take any action against an employee, customer or invitee based on statements
       concerning the presence of a firearm in a vehicle on company property;

   •   Condition employment on an agreement that prohibits the employee from keeping
       a firearm locked in a vehicle on company property;
This law makes it necessary that any language in the Personnel Administration Policies
prohibiting employees from engaging in any of the activities listed above is now illegal.
FISCAL IMPACT

There is no cost to make the proposed changes.

OTHER OPTIONS

None.

ATTACHMENT:
Ordinance 2008-22
                                  ORDINANCE 2008-22

AN ORDINANCE AMENDING CHAPTER 2, ADMINISTRATION, LAKE
WALES CODE OF ORDINANCES; PROVIDING FOR MILITARY RELATED
LEAVE; PROVIDING FOR NEW QUALIFYING REASON FOR LEAVE;
PROVIDING FOR NEW LEAVE ENTITLEMENT; PROVIDING FOR
EXHAUSTION OF PAID LEAVE; PROVIDING FOR CERTIFICATION FOR
ACTIVE DUTY; PROVIDING FOR DISCIPLINARY TYPES OF OFFENSES;
PROVIDING FOR SEVERALBILITY; PROVIDING FOR AN EFFECTIVE
DATE.

BE IT ENACTED by the City Commission of the City of Lake Wales, Polk County,
Florida.

SECTION 1. Chapter 2, Administration, Lake Wales Code of Ordinances is hereby
amended to read as follows:

                   ARTICLE III PERSONNEL ADMINISTRATION.

                           DIVISION 1. GENERAL POLICIES.
Secs. 2-219.18          Military Related Leave
The City will provide eligible employees with the following leave for military related
leave:

        (a)     New Qualifying Reason for Leave. Up to 12 weeks of leave for qualifying
exigencies arising out of a covered family member’s active military duty, i.e. spouse, son,
daughter, or parent, and
        (b)     New Leave Entitlement. An eligible employee who is the spouse, son,
daughter, parent, or next of kin of a covered servicemember who is recovering from a
serious illness or injury sustained in the line of duty on active duty is entitled to up to 26
weeks of leave in a single 12-month period to care for the servicemember. This provision
became effective immediately upon enactment. This military caregiver leave is available
during” a single 12-month period” during which an eligible employee is entitled to a
combined total of 26 weeks of all types of FMLA leave.

       (c)       Exhaustion of Paid Leave Required

Prior to receiving leave under this policy, the employee must exhaust any available paid
leave.

       (d)       Certification for Active Duty Because of Any Qualifying Exigency
In addition to an application for leave, employees will be required to furnish in a timely
manner any certification that a family member is issued regarding their active duty or call
to active duty in the Armed Forces.

Secs. 2-211.07         Types of Offenses
        (a)     There are two (2) groups of sample offenses for which employees may be
disciplined up to and including termination, and the guidelines for recommended penalties
for those examples of unacceptable conduct are set forth below; however, the principles
concerning application of discipline to these sample offenses as set forth in Sections 2-
211.01 and 22-211.04 above shall apply. Nothing herein shall be construed to require the
City to have just cause for any form of disciplinary action, including termination, or to
limit disciplinary action to the sample offenses enumerated below.
        (b)     This paragraph provides recommended but not mandatory penalties to
apply to the specific example offenses listed here; however, the penalty utilized shall be
discretionary with management in all matters of discipline and nothing herein shall require
that a particular form of discipline be utilized in any case prior to the utilization of another
form of discipline, provided, however, in the event a Department Head wishes to deviate
from the recommended penalty, he shall first obtain approval from the Human Resources
Director and the City Manager, or his designee.
       GROUP II OFFENSES
       First Offense - Up to termination
           1. Conviction of a felony.
           2. Abuse of leave privileges.
           3. Use of official position for personal advantage.
           4. Deliberately or negligently misusing, destroying, losing or
              damaging any City property or property of an employee.
           5. Falsification of personnel, City, or Departmental records, including
              employment applications, accident records, work records, purchase
              orders, time sheets, or any other report, record, or document.
           6. Making false claims or intentional misrepresentation in an attempt
              to obtain sickness or accident benefits, workers' compensation, or
              any other benefit.
           7. Insubordination or the refusal to perform work assigned, or to
              comply with written or verbal instructions of a supervisor.
          8. Use, possession, or display of firearms, explosives, or weapons on
             or in City property, unless specifically permitted by law or by the
             City.

       (not the entire list of offenses)

SECTION 2. All ordinances and parts of ordinances in conflict herewith are hereby
           repealed.

SECTION 3. If any clause, section or provision of this ordinance shall be declared
           unconstitutional or invalid for any reason or cause, the remaining portion
           of said ordinance shall be in full force and effect and be valid as if such
           invalid portion thereof had not been incorporated herein.

SECTION 4. This ordinance shall become effective immediately upon its passage by the
           City Commission.

CERTIFIED AS TO PASSAGE, this ____________ day of ___________, 2008.


                                           CITY OF LAKE WALES, FLORIDA

                                           _____________________________
                                           Mayor/Commissioner

ATTEST:



_________________________________
City Clerk

				
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