By Jim Cline and Erica Shelley Nelson
Representing the Injured or Disabled Member
Part 27: Other Issues under the FMLA
This article is the 27th 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 27th article in these newsletter series provides a discussion pother miscellaneous issues under the FMLA. 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 FMLA benefit does not cover most part-time employees. To be eligible, an employee must have worked at least 1250 hours in the prior 12 month period. [101] FMLA allows exemptions of certain “key employees.” Key employees are those included in the highest “10%” of pay on the employer’s payroll. [102] This requirement could conceivably impact the FMLA coverage of certain mid-level managers in a given public safety department.
A common pitfall for employers relates to the duration of the leave. The law permits the employer to count paid leave used while an individual is medically unable to work toward the 12-week FMLA period. But in order to do so, the employer must give notice to the employee that their 12 weeks have begun to run, although such notice may be retroactive “provided that the employer’s failure to timely designate leave does not cause harm or injury to the employee.” [103]
When an employer, for example, allows an employee to use all their paid sick leave and vacation leave without providing the FMLA notice period, a 12-week period of unpaid leave will then commence following the exhaustion of the paid leave. Understandably, this has caused some headaches for personnel directors who have difficulty determining when an individual has begun a long-term period of absence from the workplace. For this reason, employees are often placed on FMLA leave status even though they did not specifically invoke the FMLA. The employer is simply trying to “start the clock” for their own benefit.
When the need for the leave is “foreseeable,” the statute requires that employees provide advance notice of not less than 30 days. [104] A good example of a “foreseeable” need for leave is in the case of pregnancy-related leave.
Another complication under this statute is addressing medical situations where an employee can work some, but not every day. The FMLA requires the accommodation of these employees, allowing them to take intermittent days off. [105] The statute regulates how employees will get the notice and manage the taking of such intermittent time. These rules grant management a right to transfer such employees into alternative positions with equivalent pay and benefits, if such a transfer would prove less disruptive to the workforce.
The FMLA is essentially an amendment and a separate statute under the Fair Labor Standards Act. As a result, all available FLSA remedies are also generally available under the FMLA.
The FMLA provides an additional protection for employees. It is not designed to remove or limit whatever protections employees otherwise have under the ADA or the CBA.
This issue is likely to arise in the context of a continued request for an accommodation of an individual who has a physical limitation and whose condition continues after the expiration of the FMLA period. Some employers are under the misimpression that once the FMLA period expires, they have automatic grounds to discharge an employee. This may be true under some circumstances, but it is certainly not always true.
The FMLA and disability law requirements are separate and distinct. And under the CBA just cause requirement, employers have an ongoing obligation to retain an individual on the payroll as long as there is a reasonable prospect for the return in a reasonable amount of time. The FMLA does not alter this “just cause” mandate.
As discussed above, state and federal disability laws may require a leave of absence as a medical accommodation in some circumstances and mere expiration of the FMLA 12 week period does not alter that mandate. And most arbitrators would find these disability law mandates also to be an implied requirement of the CBA.
In short, an employee may have exhausted their statutory FMLA period (and the accompanying paid health insurance benefit), but that does not bar them from requesting continued leave (paid or unpaid) as a medical accommodation. Just as with the FLSA wage and overtime requirements, the FMLA establishes a floor, not a ceiling.
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[101] 29 C.F.R. § 825.110 (2014).
[102] 29 U.S.C. § 2614.
[103] 29 C.F.R. § 825.301(d) (2014).
[104] 29 U.S.C. § 2612 (e)(1).
[105] 29 U.S.C. § 2612 (b)(1).
