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Worker-Friendly Laws
Family Friendly:
Using the FMLA

Update: FMLA Too Family-Friendly, Supreme Court Decides (UE News, 6/02)

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. Passed by Congress in 1993, the 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.

FMLA received a lot of attention during the 1996 Presidential election campaign. With few accomplishments to show on behalf of working people during his administration, Bill Clinton touted the FMLA as evidence of his "family friendly" policies.

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 predictably fierce opposition of employers to its passage, 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.

Widespread employee ignorance about FMLA is also a problem. Many workers covered by the law have never heard of it ... many can't afford to take unpaid time off, others simply don't know that they can.

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

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 you may have coming and apply it to your leave. That 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!

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

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 union members for example receive weekly Sickness and Accident benefits for absences due to medical reasons under negotiated insurance plans. Many contracts also have good leave of absence provisions.

GRIEVABLE ISSUES

When a contract incorporates the FMLA, grievances may be filed. For example:

  • To restore an employee to an original or equivalent position upon returning from FMLA leave;

  • To obtain approval for an employee who has requested time off to care for an ill family member;

  • To obtain a reduced schedule for an employee who can only work part-time;

  • To obtain health benefits for an employee on FMLA leave;

  • To remove "attendance points" from personnel records of an employee absent for FMLA reasons.

IMPROVE THE FMLA
IN YOUR CONTRACT

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 "Negotiable Items" box, at right). That's a "family value" worth fighting for!

FMLA at a Glance

The Family and Medical Leave Act (FMLA) was passed by Congress in 1993 after eight years of strong Republican opposition. It's enforced by the Department of Labor's Wage and Hour Division.

FMLA requires public and private employers with 50 or more workers in a 75 mile radius to offer up to 12 weeks of unpaid leave per year (meaning the law applies to only about 5% of all employers and 40% of all employees).

Leave can be taken for birth or adoption, to care for a seriously ill parent, spouse or child, or to undergo medical treatment for a serious illness.

To be eligible, a worker must have been employed for at least 12 months and worked a minimum of 1,250 hours (about 25 hours per week).

If your UE or union contract provides better leave policies than provided by the FMLA, then they apply. If not, use FMLA as a floor from which to negotiate better and additional benefits.

More info: Dept. of  Labor's
Family and Medical Leave Web Page

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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, parent 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 (you are still responsible for maintaining any employee-contribution, however).

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What's a "Serious Health Condition"?

Under the Family and Medical Leave Act, a "serious health condition" is an illness, injury, impairment, or physical or mental condition that involves any of the following:

1. Incapacity connected with inpatient care at a hospital or other medical facility or;

2. Incapacity causing absence of at least three calendar days of work or school, or other daily activities and involving continuing treatment by (or under supervision of) a health care provider or;

3. Continuing treatment by (or under supervision of) a health care provider for chronic or long-term conditions which likely would cause absences of three or more days if untreated, and for prenatal care.

4. Pregnancy. In addition to pre-natal care, the right is extended to both parents for up to 12 consecutive weeks after the birth of a child, and the following year, up to 12 weeks for "newborn child leave" until the child is one year old.

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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. Some of the 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 apply automatically 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.

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We would like to acknowledge the contribution of and thank Bob Schwartz for his useful book, The FMLA Handbook. It can be ordered for $9.95 plus $2 shipping and handling from Work Rights Press, 678 Massachusetts Ave., Cambridge, MA 02139.


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