By Jim Cline and Erica Shelley Nelson
Representing the Injured or Disabled Member
Part 25: Rights under the FMLA
This article is the 25th in a multiple part series covering the rights your injured and disabled members have and how you, as a union or guild representative, can best assist them. Over the several weeks and continuing for the next several weeks, we’ll be publishing, in various segments, information on how state and federal laws protect your members who are hurt or otherwise unable to work. We’ll cover topics including disability discrimination law, the FMLA, job protection rights under the CBA, workers compensation, disability benefits, and the right to bring a civil lawsuit.
The topics we are covering are addressed in detail in our newest book: HELPING THE INJURED OR DISABLED MEMBER: A GUIDEBOOK FOR THE WASHINGTON LAW ENFORCEMENT AND FIRE UNION REPRESENTATIVE. It is also our intention over the course of the next year to travel through the state and provide training to public safety union and guild representatives on how best to enforce these rights. Expect to hear more on that in the months ahead.
The 25th article in these newsletter series provides a discussion concerning arbitrations related to medical discharges under the CBA. For more information, visit our Premium Website . On the website you’ll find an on line version of the Injured or Disabled Member’s Guidebook and other information on the laws covering your members.
The Family Medical Leave Act (FMLA) [91] offers additional protection to pregnant employees, and to other individuals who are injured or disabled. In fact, it protects nearly all individuals who may, at some point during their careers, have some family crisis requiring their absence from the workplace.
The FMLA does not mandate that the leave be paid. But where the employee has paid leave available, the employer must allow the employee to draw on those leave banks.
The Federal Family Medical Leave Act is designed to balance the interests of employees and their families alongside the interests of the employer to maintain a productive work force. The FMLA essentially supersedes the earlier enacted state family leave law, in that its terms are more generous than had existed in the state law. The state law, though, remains on the books in the event the federal law is ever repealed or modified.
Under the FMLA, an employee is entitled to up to 12 work weeks of family leave in any 12-month period for family leave purposes. Family leave purposes include care of a newborn child, a newly adopted child, or care of a family member — child, spouse or parent — with a “serious health condition.” The FMLA also permits leave for the employee’s own “serious health condition.” [92]
The FMLA does not mandate that the leave be paid. But where the employee has paid leave available, the employer must allow the employee to draw on those leave banks. [93] And once those leave banks are exhausted, the FMLA requires employers to allow employees to go out on unpaid leave status for the balance of the permitted time.
At the end of the FMLA leave, employees have the right to return to the same position or “an equivalent position with equivalent pay, benefits and working conditions.”
Although, as indicated, the FMLA does not require that employees (apart from their access to existing leave banks) be paid their wages, it does mandate the continuation of one important form of compensation. It requires that the employer continue existing health benefits and maintain its payment of its designated share of the premium for those benefits.[94]
At the end of the FMLA leave, employees have the right to return to the same position or “an equivalent position with equivalent pay, benefits and working conditions.”[95] An employee’s leave may not involve a forfeiture of accrued benefits or seniority that an employee has had prior to taking a leave, but it does not require employers to continue accrual of such seniority-based privileges while out on leave (unless the employer allows such privileges for other forms of leave).[96] In other words, the employee’s seniority time will be “tolled” during the leave of absence, but seniority may not be forfeited.
To establish that the leave is bona fide, the employer has the right to obtain and seek a “certification” from a health care provider to substantiate the need for the leave. This requirement applies whether the requested leave is for the employee or the employee’s family member.[97]
In the next article in this series, we’ll discussed the rights of employees and employers in the return to duty process under the FMLA.
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[91] 29 U.S.C. § 2601.
[92] 29 U.S.C. § 2612(a)(1).
[93] 29 C.F.R. § 825.207(a) (2014).
[94] 29 U.S.C. § 2614(c).
[95] 29 U.S.C. § 2614(a).
[96] 29 C.F.R. § 825.215(c) (2014).
[97] 29 U.S.C. § 2613.
