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20 KiB
Plaintext
431 lines
20 KiB
Plaintext
THE FAMILY AND MEDICAL LEAVE ACT OF 1993
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By
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Jeffrey Higginbotham, J.D.
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Special Agent
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Legal Instructor
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FBI Academy
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Recently, Congress enacted and the President signed a new
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Federal statute--the Family and Medical Leave Act of 1993 (FMLA).
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The act may require law enforcement administrators to modify
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certain departmental leave practices.
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This article provides an overview of the FMLA, followed by a
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more thorough analysis of its requirements and the potential
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impact on law enforcement agencies. It also sets forth a sample
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policy to guide agencies in light of the FMLA. (1)
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OVERVIEW
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The FMLA became effective on August 5, 1993, (2) and applies
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to all public employers, regardless of the size of the agency.
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(3) Under the FMLA, persons who have worked for their employer a
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total of 12 months and at least 1,250 hours during the year
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preceding the start of any qualifying leave are entitled to take
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up to 12 weeks' leave in a 12-month period (4) for:
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1) Care of a newborn child
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2) Adoption of a child or placement of a child in the
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employee's foster care
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3) Care of a son, daughter, spouse, or parent who has a
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serious health condition, or
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4) A serious health condition that makes the employee unable
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to perform the functions of the job. (5)
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While the employee is on leave, the employer is obligated to
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"maintain coverage under any `group health plan'...for the
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duration of such leave at the level and under the conditions
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coverage would have been provided..." if the employee had not
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gone on leave. (6) On return to work from FMLA leave, the
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employee is to be restored to the position held when the leave
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began or to an "equivalent position with equivalent employment
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benefits, pay, and other terms and conditions of employment." (7)
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Employers who violate the FMLA are liable in damages for any
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wages, salary, employment benefits, or other compensation denied
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or lost, or for any actual monetary loss sustained by the
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employee where leave was denied, up to an amount equal to 12
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weeks of the employee's salary or wages. (8)
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IMPACT ON LAW ENFORCEMENT AGENCIES
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Childbirth, Adoption, Foster-Care Issues
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Eligible employees are entitled to take leave upon the birth
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of a child, the adoption of a child, or the placement of a child
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with the employee for foster care. Any such leave must be taken
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within the first 12 months (9) and can be taken intermittently
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only if the employer permits. (10) If both husband and wife work
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for the same employer, they are entitled to take a combined 12
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weeks of leave for the birth, adoption, or foster-care placement
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of a child. (11)
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Care for Family Members
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Under the FMLA, an employee is entitled to take up to 12
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weeks of leave to provide care for a spouse, son, daughter, or
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parent (12) who has a serious health condition. Child care leave
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is available to care for a child with a serious health condition
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who is under the age of 18 or, if older, is "incapable of self
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care because of physical or mental disability." (13)
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The law does not require leave be made available to care for
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family members with routine illnesses or short-term ailments that
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would normally be covered by the employer's sick leave or
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personal leave policies. Family care leave under the FMLA is
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available only for serious health conditions involving (a)
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"inpatient care in a hospital, hospice or residential medical
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care facility," (14) or (b) continuing treatment by a health care
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provider. (15)
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Where inpatient treatment is not required, the family member
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must have been absent from work, school, or normal activities for
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more than 3 days and have received treatment from or under the
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direction or supervision of a health care provider or
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practitioner on two or more occasions. (16) Medical treatment
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received on a voluntary basis or for cosmetic purposes that are
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not medically necessary is excluded from the coverage, unless
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inpatient care is required. (17) Thus, orthodontic care,
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treatment for acne, outpatient cosmetic surgery, or minor illness
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not involving medical treatment are not covered. Examples of
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conditions for which family leave would be available include
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heart attacks, strokes, pneumonia, severe arthritis, prenatal
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care, stress, and substance abuse treatment. (18)
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An employer who receives an employee's request for leave to
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care for a family member may require the employee to provide
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certification from a health care provider that the employee is
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needed to provide care, physical assistance, or psychological
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support. To be eligible for family care leave, the assistance to
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the family member must be provided by the employee, not by a
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nurse, nursing home, or personal aide. (19)
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An employee who is needed to care for a family member with a
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serious health condition and who provides the requested medical
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certification may take the leave on an intermittent or reduced
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work schedule basis when medically necessary. (20) That is, the
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employee may need FMLA leave for only a few days or hours in a
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given workweek or can work part-time.
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Where intermittent leave for planned medical treatment is
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needed, the employee must attempt to schedule it so as not to
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disrupt the employer's operations. (21) Where the employee holds
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a position that does not accommodate a reduced work schedule or
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irregular attendance, the employer may require the employee to
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transfer to an alternative position, with equal pay and benefits,
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that better accommodates the recurring leave. (22)
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Leave for Self-Care
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The FMLA also permits a covered employee to take leave to
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provide self-care, when the employee is unable to perform the
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functions of the job. Like the rules regarding family care
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leave, the employee must suffer a serious health condition that
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requires inpatient treatment or absence of work for more than 3
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days and treatment by or under the supervision or direction of a
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health care provider or practitioner on two or more occasions.
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An employee taking leave for self-care, who has a medical
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need for intermittent leave, must also try to schedule it to
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reduce disruption to the employer's operations and may be
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reassigned to an equivalently paid position that better
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accommodates the need for recurring leave. The employee may also
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be required to provide a health care provider's certification of
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the need for the self-care leave, including a statement that
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based on a review of the employee's essential functions, the
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employee is unable to perform the job. (23) An employee who has
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taken leave for a serious health condition may also be required,
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as a condition of returning to work, to provide a medical
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fitness-for-duty report. (24)
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Paid or Unpaid Leave Issues
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The 12 weeks of leave provided under the FMLA need not be
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paid leave. Where an employer provides less than 12 weeks of
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paid leave per year, the leave beyond the period of paid leave
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may be required to be taken without pay. (25) However, absent an
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employer's policy concerning use of paid leave, an employee may
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take unpaid leave or use available paid leave, or any combination
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of paid and unpaid leave. On the other hand, an employer may
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require the employee to exhaust available paid leave before
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resorting to unpaid FMLA leave.
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If the leave is necessary to care for a newborn, adopted, or
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foster-care child, or because of the serious health condition of
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a family member, an employee may elect, or an employer may
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require the employee, to substitute any accrued paid vacation,
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personal, or family leave before unpaid leave is taken under the
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FMLA. (26) If the leave is occasioned by the serious health
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condition of a family member or the employee's own illness or
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condition, the employee may elect, or the employer may require,
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substitution of accrued paid vacation, personal, family, or sick
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leave before unpaid leave is taken. (27)
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Law enforcement administrators should carefully consider
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their prerogatives under this section of the FMLA. Unless the
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employer decides as a matter of policy that accrued paid leave
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must be used before unpaid FMLA leave, an employee would be
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entitled to take available accrued paid leave, in addition to the
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12 weeks' leave available under the FMLA. (28)
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If an agency decides that it is the better practice to
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substitute accrued paid leave for unpaid FMLA leave, it must
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determine that the reason leave is requested qualifies under the
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FMLA and notify the employee of the substitution requirement at
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the time the employee requests leave. (29) To ensure this
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practice functions smoothly, departments could require employees
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to indicate the general reason for leave whenever it is
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requested. (30)
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Job and Benefit Protections
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The FMLA provides two major job and benefit protections.
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First, an employee who returns from FMLA leave is entitled to be
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restored to the position held at the time of the leave or to an
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equivalent position with equivalent employment benefits, pay, and
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other terms and conditions of employment. (31)
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Job restoration rights do not guarantee that the employee
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will return to the old position, although normally that should
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occur if the position remains available and the employee
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continues to meet the job qualifications. (32) If the position is
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no longer available, the employee is to be placed in a position
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with the same pay, benefits, and working conditions. If the
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employee held a position for which pay premiums were earned
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(e.g., shift differential pay) or that regularly entailed
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overtime work and pay, the employee is entitled to a like
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position upon return to work. (33)
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The position must also "involve the same or substantially
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similar duties and responsibilities, which must entail
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substantially equivalent skill, effort, responsibility, and
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authority." (34) In addition, the employee is entitled to receive
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any unconditional pay raises, such as cost of living adjustments,
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that occurred during the period of leave.
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Second, unless waived by the employee, the employer is
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obligated to maintain the employee's insurance coverage under any
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"group health plan" during the period of leave at the same level
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of coverage and under the same conditions that existed prior to
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the leave. (35) An employee on unpaid FMLA leave may be required
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to pay the employee's share of the health insurance premiums,
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including any increase or decrease in the premiums that occurs
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during the period of leave. (36)
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Agencies that require employee contributions for health
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insurance coverage must devise a system for ensuring the
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employee's share of the premium is paid and must provide the
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employee with advance written notice of the terms and conditions
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under which the payments must be made. Only health coverage is
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required to be maintained; life insurance and other benefits need
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not be continued, although upon return to duty, the employee is
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entitled to resume receipt of those additional benefits without
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having to wait for "open season" enrollment periods. (37)
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An employee who was on unpaid FMLA leave and who does not
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return to work for at least 30 days at the expiration of that
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leave is liable for the employer's share of health insurance
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premiums and any part of the employee's share that was paid by
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the employer. (38) However, an employee who does not return to
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work because of the "continuation, recurrence, or onset of a
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serious health condition which would entitle the employee to
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leave under FMLA" or for circumstances beyond the employee's
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control, cannot be held liable for the insurance premiums. (39)
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Where recovery of premiums is permitted, the employer is entitled
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to set off the amount against any final pay or monetary benefit
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to which the employee would otherwise be entitled.
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CONCLUSION
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Law enforcement administrators must remain alert to changes
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in the law that affect the personnel practices of their agencies.
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Police administrators with responsibility for personnel
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management should carefully review departmental leave policies to
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ensure they comply with the four primary requirements of the
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FMLA.
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First, leave policies must permit leave to care for a child
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upon birth, adoption, or placement in foster care; to care for a
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son, daughter, spouse, or parent with a serious health condition;
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and to provide self-care when the employee is not able to perform
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the essential functions of the job. Second, leave policies
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should specify whether the employee will be permitted or required
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to substitute accrued paid leave available under existing leave
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policies for unpaid leave under the FMLA. Third, policies must
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be implemented to ensure that employees returning to duty are
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restored to their old or an equivalent position. Fourth, health
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insurance coverage should be examined to ensure mechanisms exist
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to continue coverage at the same levels and under the same
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conditions as if the employee were not on leave. Administrators
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should conduct this review of their leave practices now so as to
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be prepared when employees request the leave to which they are
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entitled under the FMLA.
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ENDNOTES
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(1) Similar legislation already exists in several States
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and is not preempted unless the State law conflicts with the
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Federal law. State laws that grant employees greater rights or
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protections must be followed.
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(2) P.L. 103-3, Section 405. For agencies operating under
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a collective bargaining agreement on that date, the effective
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date is delayed until expiration of the agreement or February 5,
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1994, whichever is earlier.
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(3) P.L. 103-3(4)(A)(iii); 29 C.F.R. 815.108. There
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must, however, be at least 50 employees of the employing
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municipality working within a 75-mile radius before an employee
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is eligible for FMLA leave. Id. Title I of the FMLA applies to
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State and local governments. Title II contains similar
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provisions, which apply to the Federal Government.
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(4) P.L. 103-3, Section 101(2). An employer is permitted
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to designate the 12-month period in which the leave may be taken.
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An employer may elect the regular calendar year, a fiscal year, a
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leave year, any fixed 12-month period, a rolling 12-month period
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forward from the date leave is first used, or a rolling 12-month
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period measured backward from the date leave was last used. 29
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C.F.R. 825.200. Choosing one of the first four options permits
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the employee to "stack" leave by taking 12 weeks at the end of
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the year and an additional 12 weeks at the beginning of the next
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12-month period.
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(5) P.L. 103-3, Section 102(a).
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(6) P.L. 103-3, Section 104(c).
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(7) P.L. 103-3, Section 104(a).
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(8) P.L. 103-3, Section 107(1)(A). In addition, if the
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employer acted in bad faith and caused the loss of wages or
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salary, the FMLA contains a liquidated damages provision that
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doubles the amount otherwise payable. P.L. 103-3, Section
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107(a)(1)(A)(iii).
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(9) 29 C.F.R. 825.201. Leave related to pregnancy or
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prenatal care is included but is generally taken under the
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self-care provisions of the FMLA. See, 29 C.F.R. 825.114.
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(10) 29 C.F.R. 825.203.
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(11) P.L. 103-3, Section 102(f); 29 C.F.R. 825.202. Where
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combined leave is taken, the employee is entitled to take the
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remainder of the 12 weeks for other FMLA purposes. For example,
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if a husband and wife working for the same employer both took 6
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weeks of leave to care for a newborn child, each would be
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eligible to take 6 weeks' additional leave to care for other
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family members or for self-care. Id.
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(12) The parent-child relationship may be biological, by
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reason of adoption or foster care, guardianship, or because of
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"day-to-day responsibilities to care for and financially support
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a child." 29 C.F.R. 825.113. More distantly related persons and
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parents-in-law are not covered. Id. Common-law marriages, if
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recognized under State law, are sufficient to establish a spousal
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relationship; however, unmarried domestic partners do not qualify
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for leave to care for their partner. Id.
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(13) P.L. 103-3, Section 101(12).
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(14) P.L. 103-3, Section 101(11)(A); 29 C.F.R. 825.114.
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(15) P.L. 103-3, Section 101(11)(B).
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(16) 29 C.F.R. 815.114. The regulations also include
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conditions that, if left untreated, would result in the absence
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from normal activities for more than 3 days.
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(17) Id.
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(18) 29 C.F.R. 825.114.
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(19) 29 C.F.R. 825.116.
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(20) P.L. 103-3, Section 102(b).
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(21) 29 C.F.R. 825.118. The FMLA also imposes a duty on
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employees intending to use FMLA leave to provide the employer
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with at least 30 days' notice, or such notice as practicable,
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when the use of the leave is foreseeable. P.L. 103-3, Section
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102(e).
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(22) P.L. 103-3, Section 102(b)(2).
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(23) 29 C.F.R. 825.306. Where the employer questions the
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adequacy of the medical certification, it may require the
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employee to be examined by an independent health care provider,
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at the employer's expense. If the two medical opinions conflict,
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an examination by a third health care provider, mutually agreed
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upon by the employer and employee, may be required. The expense
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of the third examination is to be borne by the employer and the
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opinion shall be binding. 29 C.F.R. 825.307.
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(24) P.L. 103-3, Section 104(a)(4); 29 C.F.R. 825.310.
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Such a requirement must be pursuant to a uniform policy, and the
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employee must have been put on notice that the employer would
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require the fitness-for-duty certification. The act imposes
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other notification requirements on the employer, including a
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requirement that a description of rights and obligations under
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the FMLA be included in any written leave and benefit materials
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normally provided employees or provided in writing at the time
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the employee requests or gives notice of the need for FMLA leave.
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(25) P.L. 103-3, Section 102(c).
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(26) P.L. 103-3, Section 101(d)(2)(A).
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(27) P.L. 103-3, Section 101(d)(2)(B). However, the FMLA
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does not require an employer to provide paid sick leave when it
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would not otherwise be available. If paid sick leave cannot be
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used to care for other persons'illnesses under existing
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employment practices, the FMLA does not require a change to that
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practice. 29 C.F.R. 825.207.
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(28) The accrued paid leave must be used in accordance with
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the employer's policy governing its use. See, note 27, supra.
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If the accrued paid leave is taken for purposes other than child,
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family, or self-care, the employee is entitled to up to 12 weeks'
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additional leave for those purposes under the FMLA. 29 C.F.R.
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825.207.
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(29) 29 C.F.R. 825.208.
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(30) 29 C.F.R. 825.208 provides that "...[a]n employee
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requesting unpaid FMLA leave must explain the reasons for the
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needed leave so as to allow the employer to determine that the
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leave qualifies under the Act...In any circumstance where the
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employer does not have sufficient information about the reason
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for an employee's use of paid leave, the employer should inquire
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further to ascertain whether the paid leave is potentially
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FMLA-qualifying."
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(31) P.L. 103-3, Section 104(a).
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(32) 29 C.F.R. 825.214. If the employee's job
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qualifications, e.g., a licensing requirement, lapse during the
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period of leave, the employee must be "given a reasonable
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opportunity to fulfill those conditions upon return to work." 29
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C.F.R. 825.215.
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(33) 29 C.F.R. 825.215.
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(34) 29 C.F.R. 825.215(a).
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(35) P.L. 103-3, Section 104(c).
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(36) 29 C.F.R. 825.209.
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(37) Id.
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(38) 29 C.F.R. 825.213 and 825.212(b).
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(39) P.L. 103-3, Section 104(c)(2); 29 C.F.R. 825.213.
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