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Using the FMLA

Using the FMLA

Issues

The Family and Medical Leave Act (FMLA) allows workers to take unpaid time off for serious health conditions or urgent family matters - and it cannot be counted against them.

MORE INFORMATION

Department of Labor Regulations on FMLA are on the Web at: www.dol.gov

It's the kind of problem most of us will face sooner or later. How do we get time off from work for urgent family matters? Perhaps you and your spouse have just had a new baby, or maybe one of your parents is seriously ill with no one to give needed care and attention.

The Family and Medical Leave Act (FMLA) may provide the answer. FMLA covers public employees as well as private sector workers who have at least one year of service, have worked at least 1,250 hours in the past 12 months, and whose employer has at least 50 employees at worksites within a 75 mile radius. The law is enforced by the Department of Labor's Wage and Hour Division.

Twelve Weeks of Leave

FMLA provides for unpaid medical leave of up to 12 weeks a year for employees themselves or to care for immediate family members (spouse, child or parent) who have a "serious health condition." In addition an FMLA leave may be taken to care for a newborn child or a child newly adopted or placed in foster care.

Despite the continued opposition of employers to it, FMLA is in fact a modest piece of legislation. European countries, for example, provide far more liberal amounts of time off, usually fully paid, for family and medical leaves. In addition, because private employers with fewer than 50 employees are exempt, only about two thirds of the workforce are covered by FMLA.

Whatever its inadequacies, FMLA does represent a step forward for workers. If you qualify for an FMLA leave, the boss cannot deny it based on inconvenience or other grounds. Additionally, an employee's medical benefits must be continued during the leave, and he or she is guaranteed their old job or an equivalent position upon returning to work without loss of seniority.

Scheduling

Family and Medical Leave Act Provisions
FMLA Rights at a Glance

  • The right to take up to 12 weeks of medical leave each year on a consecutive or intermittent basis.
  • The right to take up to 12 weeks of family leave each year to care for a seriously ill child, partent or spouse.
  • The right to a part-time work schedule when necessitated by medical problems or to care for an ill family member.
  • The right to decline a light duty job for the first 12 weeks of an injury or illness.
  • FMLA absences cannot be used as points under a "no fault" attendance policy.
  • The employer must continue to provide insurance coverage for the duration of the leave.


What is Covered?

  • Medical Leave – Up to 12 workweeks of consecutive or intermittent leave in a one-year period as a result of a serious health condition (see box) which makes you unable to do your job.
  • Family Leave – Consecutive or intermittent leave up to 12 weeks per year to care for a family member with a serious health condition (see box).
  • Childbirth Leave – Up to 12 consecutive weeks off, at childbirth or prior if unable to work because of pregnancy.
  • Newborn Child Leave: Birth Mothers – Up to 12 weeks off to care for a child under one year of age. A birth mother can take up to 12 weeks of newborn care leave in the leave year following the one in which she took her childbirth leave. Fathers – Up to 12 consecutive weeks of newborn care leave at any time until the child is one year old.*
  • Adoptive Care Leave – Up to 12 consecutive weeks for adoption or if a foster child is placed in the home for the first year of placement.
    * If spouses work for the same employer, total leave for both can be limited to 12 weeks/year


What’s a “Serious Health Condition”?

  • A condition which requires inpatient hospital care (i.e. an overnight stay);
  • An injury, illness or other condition lasting more than three consecutive calendar days that involves continuing treatment by a health care provider; Examples:
    • pneumonia
    • tonsillitis
    • broken bones
  • Pregnancy or prenatal care
  • A chronic serious health condition; Examples:
    • arthritis (severe)
    • asthma
    • back injuries
    • cancer
    • colitis
    • diabetes
    • epilepsy
    • lupus
    • migraine headaches
  • A long-term or permanently disabling health condition for which treatment may not be effective; Examples: 
    • severe stroke
    • Alzheimer's
  • A condition requiring multiple treatments to prevent a period of incapacity of more than three consecutive days; Examples: 
    • chemotherapy
    • radiation


Examples of FMLA Grievances

Make sure your contract incorporates the FMLA. Here are a few examples of grievances filed to protect an employee's FMLA rights:

  • To restore an employee to an original or equivalent position when returning from FMLA leave;
  • To obtain approval for an employee who requests time off to care for an ill family member;
  • To obtain a reduced schedule for an employee who can only work on a part-time basis;
  • To obtain health benefits for an employee on FMLA leave;
  • To remove attendance points from personnel records of an employee absent for FMLA reasons.

An FMLA leave need not be taken in one continuous block of time. Say an employee periodically goes for chemotherapy or kidney dialysis. Leave can be scheduled on an intermittent (blocks of hours or days separated by work time) or reduced schedule (fewer hours than a regular shift) basis depending on medical necessity as a matter of right until the 12 weeks is exhausted.

The same holds true in caring for qualifying relatives. An example would be dividing the care of an ill parent with your brothers and sisters. If you are responsible only for certain days or hours, a reduced schedule or intermittent leave is the answer. To care for newborns however, leave must be taken all at once unless the employer gives permission otherwise.

Some Pitfalls

The FMLA has some serious shortcomings and pitfalls that workers and local unions should avoid if possible. One of the worst is that the boss can plug in accumulated paid leave days or unused vacation time that you may have coming and apply it to your leave. This can mean, for example, that if you take a leave to care for an ill child that you have no paid time off coming for the rest of the year. Some vacation!

However, employers may not force workers to take vacation time if the collective bargaining agreement provides otherwise. If the contract allows workers the right to choose their vacation days via language such as, "Vacations will be scheduled according to individual choice," then the boss cannot apply your vacation time against FMLA leave unless you agree. The union can also grieve vacation substitution if the contract provides that leaves-of-absence are unpaid.

Additionally, the employer must also comply with the following rules before it can force a worker into using paid vacation during an FMLA leave:

  • An employer may not force a worker to use paid leave that is not yet available to the employer, such as next year’s vacation leave;
  • An employer may not substitute vacation or personal leave during absences covered by workers’ compensation, disability insurance, or sick pay; and
  • An employer must notify the employee that it will impose paid leave by the second day after the employee gives notice that s/he needs FMLA leave. If the employer does not have sufficient information to make an FMLA determination until later, it must notify the employee within two days of gaining knowledge that the FMLA applies.

If your leave was foreseeable, you must give the employer at least 30 days notice or the leave can be denied until 30 days has elapsed. The boss can also require a second (and, in the case of a dispute, a third) medical opinion at company expense over whether a serious medical condition exists. And though insurance is continued during the leave, it is the employee's responsibility to make any required contributions at the risk of having coverage canceled.

Negotiating Family Leave

MORE INFORMATION

The UE Steward wishes to acknowledge the contribution of and thank Bob Schwartz for his useful book The FMLA Handbook.

It can be ordered for $9.95 plus $3.00 shipping and handling from Work Rights Press, Box 391887, Cambridge, MA 02139 (or 1-800-576-4552).

FMLA provides minimum standards and levels of benefits for family and medical leaves. If your contract or state law has provisions superior to FMLA, then they apply. Nearly all UE members for example receive weekly Sickness and Accident benefits for absences due to medical reasons under negotiated insurance plans. Many UE contracts also have good leave of absence provisions.

UE Locals and members then should not only be familiar with and make use of FMLA, but should use the law as a floor from which to negotiate better and additional benefits, and to nail down by contract those areas left to the boss's discretion under the law (see box below). That's a family value worth fighting for!

Family and Medical Leave: Negotiable Items

FMLA provides minimum standards and levels of benefits for some workers. Use FMLA as a floor from which to negotiate better and additional benefits. Here are some areas to consider:

  • Coverage for part-timers; or workers with less than one year of service; or for your workplace if under 50 employees.
  • Extended leaves beyond 12 weeks for legitimate family or medical reasons including those not covered under FMLA; or right to borrow against future leave entitlement.
  • Paid leave and continuing accrual of seniority and all benefits for the length of the leave.
  • Elimination of boss's right under FMLA to automatically apply vacation or sick days to leave. Option should rest with employee.
  • Payment of all insurance contributions by employer during leave to avoid any cutoff of benefits.
  • Eliminate second or third medical opinions.
  • Use of intermittent or reduced schedule leaves as a matter of right for all types of family and medical leave.
  • Guarantee of old job (not just equivalent position) upon return to work.