FMLA Basics
What is the intent of FMLA?
1. To balance work and family life
2. To promote the economic security of families and serve national interest in preserving family integrity
What is the purpose of the Americans with Disabilities Act?
It is a comprehensive civil rights law that prohibits discrimination against people with disabilities in all areas of public life including employment.
It guarantees equal opportunity, promotes independent living, and ensures economic self-sufficiency for individuals with disabilities by requiring reasonable accommodations.
What is the purpose of Workers Compensation Laws?
Workers' compensation laws establish a no-fault system, mandatory in each state, that provides medical, wage loss, and death benefits to employees injured or ill due to their work.
Joe had outpatient surgery on a cataract. His doctor said he should take it easy for a few days. Will he automatically qualify for FMLA leave?
No, the doctor must certify that Joe is incapacitated and cannot work for more than three full, consecutive days.
Joan had used all of her personal and vacation leave time, when her child became seriously ill, hospitalized and under continuous care. She then took 3 weeks of FMLA, and her employer told her they would pay and charge it against next year's leave allotments. Joan does not want to give up next year's allotments.
Does she have to do that?
The employer must follow its own policies when substituting paid leave for unpaid FMLA absences. If they don't permit employees to utilize future allotments, then neither can they.
What are two benefits under FMLA?
1. To provide up to 12 work weeks of unpaid leave in a 12-month period
2. Leave may be taken continuously, intermittently or, as part of a reduced schedule
3. During leave, health benefits must be maintained by the employer
4. The worker has job protections
Which employers and employees are covered under ADA?
1. ADA applies to all employers who employ 15 or more employees
2. All employees are covered under ADA, no minimum time of service required
What is the purpose of the Pregnant Workers Fairness Act?
To protect pregnant employees from discrimination and ensure they receive reasonable accommodations during and after pregnancy
How often will Bill be required to get recertification for his diabetes, which requires intermittent time off?
A person must recertify every 30 days but since Bill has a chronic condition, if he is absent, the employer can request recertification at any time associated with the absence if greater than 30 days since his original certification. In any case of chronic conditions, recertification of a medical condition that lasts longer than thirty days, the employer can ask for recertification every six months in connection with an absence.
Sarah needs to take one day a week for special treatment for lukemia. Her employer has been charging each day to her vacation leave time, even though the contract says that "vacation leaves cannot be shorter than one week and must be taken by the week."
Can her employer do this without violating the CBA?
No, the employer has to follow normal leave policies.
What qualifications are needed to be met in order for an employer to be covered by FMLA?
What is an accommodation request?
When an applicant or employee requests a change at work for a reason related to a medical impairment, that may be a disability
What is the benefit and trade off for employees under Workers Compensation?
If an employee is injured or becomes ill at work, Workers' Compensation generally covers medical expenses and lost wages. If a worker dies on the job, benefits are generally paid to the worker's family.
However, we lose our right to hold the employer liable for those injuries.
Sally asked for FMLA leave to enable her to come to work at 10am because her pregnancy has given her morning sickness. Must her employer comply?
It depends:
Yes, if her doctor certifies that she is unable to work during periods of morning sickness. The mother is entitled to leave for incapacity due to pregnancy even though she does not receive treatment from the HCP and even if it doesn’t last for more than three days. i.e., because of severe morning sickness.
No: Even though she may be pregnant, she still needs to obtain certification from her doctor.
Becky takes intermittent leave under FMLA to deal with cancer. She has scheduled appointments which she worked out with the employer. However, Becky thinks that the employer is trying to fire her. He has added work to her job which piles up when she is absent, and then she has been written up for poor work performance.
Does she have a grievance? Why? Why Not?
An employer cannot interfere with rights under FMLA and Can't use the taking of FMLA leave as a negative factor in any employment; this can be discouraging the employee from taking leave.
What are the 3 requirements for an employee to be eligible for FMLA?
1. Has been employed for at least 12 moths
2. Works for a Covered employer
3. Has actually worked at least 1,250 hours within the previous 12-month period
What is the employer's obligation under ADA?
1. Recognize
2. Gather
3. Exploring
4. Choosing
5. Implementing
6. Monitoring
What is the primary benefit of the Pregnant Workers Fairness Act (PWFA)?
Unlike ADA, the PWFA considers a person with a disability due to pregnancy, childbirth, or related medical conditions to be "qualified" and entitled to reasonable accommodations
Larry is scheduled to work 6 days a week on a regular basis. Does that increase his number of eligible FMLA days?
Yes, Larry is entitled to 12 work weeks and his week is defined by 6 days (or 48 hours). You use a weekly average of weeks to determine what a “workweek” is for Larry.
48x12 equal 576 hours of FMLA leave.
An employees FMLA rights have been violated, what are two options that you as a Union Representative can advise them of?
1. If it is a violation of FMLA rights and a violation of the CBA, the employee/union can file a grievance.
2. Employees can contact the DOL but will likely be referred back to the grievance procedure.
3. The employee can file a suit in federal court.
4. Individuals who violate the FMLA rights can be held liable, including supervisors, and third parties acting on behalf of the employer.
What are the two (2) important roles the Union plays when handling FMLA?
1. The union steward should work to represent and assist the workers when resolving disputes with the employer regarding FMLA
2. The union should work to bargain better benefits/language
What obligations does the Union have when handling ADA?
This duty requires the union to assist an employee in requesting a reasonable accommodation and interacting with the employer to determine the reasonable accommodations available to that employee.
How does the Family Medical Leave Act interact with Workers Compensation?
You are caring for your mother who has terminal cancer. You take 2 days a week but also care for her every evening for 3-4 hours. On one of your FMLA days you are filmed going into a movie theater. What arguments would you respond to an effort to discharge you for abusing FMLA leave?
“Needed to care for” which includes both physical and psychological care, including the need to provide basic hygiene or psychological comfort and reassurance if such would be beneficial to the parent with the SHC. This Maybe a situation where the employee is needed to substitute for another, a person on respite care. This should have been taken care of with the doctor’s original certification to explain the type of care, psychological care, that mother would need in her final days or weeks, including taking her to events or other activities that would allow her to enjoy a “normal” life during this time. Therefore, the absence would be FMLA protected. The question will be whether this activity, taking mom to a movie was within the parameters of his approved certification. While the “caring for” component is broad, it is not without limit. Medical document must establish how any activity out of the ordinary of providing basic medical or nutritional needs provides psychological care to the mother. This of course, assumes that the mother was with the employee at the movie.
Art is working under a Last Chance Agreement that states "more than 5 absences in a three-month period will be cause for discharge." Art just took two weeks of FMLA leave and when he returned, he was suspended pending discharge.
How would you argue his case?
The argument should be based around regulation 220 which is "protection for employees who request leave or otherwise assert FMLA rights."