Massachusetts Nurse :: May 2006

The family and medical leave act

Your rights under the law, whether you are a unionized or non-unionized employee

By Joe Twarog
Associate Director, Labor Education & Training

“Virtually all our nation’s leaders talk about valuing children and families. America ought to be the place where the birth of a child is a glorious event, rather than the beginning of a family’s economic ruin. Despite the rhetoric, our nation has failed to adopt basic policies that support families when it comes to pregnancy and childbirth.”

—“Expecting Better: A State by State Analysis of Parental Leave Programs”
by the National Partnership for Women & Families, 2005

The Family and Medical Leave Act (FMLA) was signed into law in 1993. It was the first piece of legislation that President Bill Clinton signed and it survived eight years of Congressional debate, 13 votes and two vetoes by President George Herbert W. Bush in earlier years. It is one of the most significant pieces of federal legislation enacted for American workers since OSHA enactment many years earlier.

The FMLA provides for family and medical leave benefits for eligible employees. The MNA and other unions view these leave benefits as minimum benefits—or the floors from which to build upon during the collective bargaining process. This means that, through the collective bargaining process, unions can bargain with employers for more generous and employee-friendly benefits.

FMLA: As good as it gets?
As significant as FMLA is, it still leaves American workers very far behind most other countries for such leave. Because of the FMLA limits on eligibility rules and the employers covered by the law, only 60 percent of U.S. workers are actually covered—and millions of those who are covered cannot afford to use the leave because it is unpaid.

This chart shows a sampling of what other countries provide for their workers:

“The United States and Australia are the only industrialized countries that don’t provide paid leave for new mothers nationally.” (Peter Svensson, Associated Press, July 31, 2005). And according to a recent study conducted by Harvard University, 163 out of 168 nations had some form of paid maternity leave. So, contrary to what the Chamber of Commerce and the Associated Industries of Massachusetts would have the public believe, paid maternity or family leave is the rule and not the exception of so-called “European welfare states.”

The United States is in the company of Lesotho, Papua New Guinea and Swaziland by failing to have any national family paid leave. Therefore, in the richest country in the world—which, ironically, also ranks health care as one of its leading industries—bargaining above the floor of the FMLA should be automatic.

FMLA basics
The following is a primer on some of the key aspects of the FMLA. This will cover only the major features, since the law can be very complicated.

• Eligibility: An employee must have worked 12 months and 1,250 hours in the preceding 12 months for the same employer. The 1,250 hours must be actual hours worked and not include any leave time. Employers covered under the law must employ 50 or more workers within a 75 mile radius of the worksite.
• Benefits: FMLA provides for an unpaid leave of 12 weeks in any 12 month period. The leave includes the maintenance of health benefits for the duration of the leave on the same basis as they were prior to the commencement of the leave. FMLA also grants the right to employees to be reinstated to their same or equivalent position upon returning from such leave. In some cases, the employee may choose to use accrued paid leave to cover the FMLA period, or the employer may even require such usage of accrued paid leave.
• Measuring the 12-month period: The 12-month period is at the option of the employer. Their choices are: 1) a calendar year; 2) any fixed 12-month period beginning at a certain date (such as a fiscal year or the employee’s anniversary date); 3) a 12-month period beginning with an employee’s first use of FMLA leave; and 4) a rolling 12-month period measured backwards from the date an employee uses FMLA leave. The method of measuring the 12-month period that the employer uses must then be consistently applied to all of its employees.
• Types of leave: The employee is allowed to take FMLA leave for one of the following reasons: 1) to care for the employee’s child including birth, adoption or foster care; 2) to care for a seriously ill family member (spouse, child or parent but not a parent in-law); or 3) due to the employee’s own serious illness.
• Coverage: Private-sector employees are covered if the employer has employed at least 50 workers for each working day during each of 20 or more calendar weeks in the preceding year. Public employees are covered without regard to how many employees are employed, but employees must still meet the eligibility criteria to be covered.
• Taking the leave: The 12 weeks of FMLA leave does not have to be taken all at one time. The leave may be broken up and taken as needed for the reasons listed above (see, “Types of Leave) and can be taken in the form of a reduced schedule or as intermittent leave. Examples of intermittent leave would be taking time off for chemotherapy, kidney dialysis or medical appointments over a period of time.
• Notice of need for leave: If the need for the FMLA leave is foreseeable (e.g., an expected birth, placement for adoption or foster care, planned medical treatment) the employee is required to provide the employer with a 30-day notice. If the dates of the scheduled leave change, then the notice must be made “as soon as practicable.” In cases when the need is unforeseen, the employee is expected to give the employer one or two working days notice, or as soon as practicable under the circumstances of the case.
• Leave prior to birth or adoption: A pregnant employee is entitled to take the FMLA leave prior to delivery for prenatal care or if her condition makes it impossible for her to work. Similarly, in the case of the placement of a child for adoption or foster care, an employee may take FMLA in advance for the purposes of making arrangements, legal sessions, counseling and/or court appearances.
• Unpaid leave: The FMLA leave is generally unpaid leave. However, the employee can often opt to substitute paid leave. The law though, allows the employer the discretion to require the employee to use paid leave during the FMLA leave. However, you may not be forced to use accrued vacation time.
• Medical certification and “fitness for duty” report: The employer may require medical certification by a health care provider to verify the health condition of the employee or ill family member. A second opinion could be requested if doubt exists. The employer may also request a “fitness for duty” report for the employee to return to work if the leave was due to illness. But such a requirement would have to be uniformly applied by the employer.
• Intermittent and reduced leave schedule: Leave that is taken in small, separate blocks of time is called “intermittent leave.” It may be taken for such reasons as chemotherapy, physical therapy, dialysis and medical appointments. A “reduced leave schedule” involves a leave schedule that reduces the employee’s usual number of hours worked per week or hours worked per day. The law provides for both such leaves being taken by eligible employees.
• Employee health benefits during FMLA leave: During the term of the leave, employees are entitled to continue their group health care coverage with the same conditions as prior to the leave. This means that if the employer paid 100 percent of the premium the employer must continue to pay 100 percent of the premium during the leave. Similarly, if the employer paid 85 percent and the employee paid 15 percent of the premium, that arrangement also must continue. Employees who opt not to continue health coverage during the leave must have it fully restored upon return to work.

Other benefits will not be lost during the leave, but the law does not mandate that any benefit or seniority accrue during the leave. Leave time would be considered as “time worked” for the purposes of retirement and pension benefits and there would be no break in service recorded.

• Restoration of position upon returning from FMLA leave: An employee returning from a leave is entitled under the law to be restored to their previous position or to an equivalent position, as if they had not taken the leave. The position must have equivalent pay, benefits and other terms and conditions of employment, including the same or substantially the same, duties and responsibilities.
• Violations of FMLA: Violations of FMLA can occur in the following ways:
  1. Not allowing the worker to take time off for FMLA purposes.
  2. Failure to pay for health insurance while on such leave.
  3. The use of threats or coercion to discourage an FMLA leave.
  4. A failure to restore the employee upon return from leave to the former position or an equivalent position.
  5. Negative outcomes because of the use of an FMLA, such as discharge, demotion, discipline, poor evaluation, denial of promotion or transfer.
  6. An order from the employer to do light duty work during the leave.
  7. Denial of any statutory rights.
  8. Punishment for complaints about FMLA violations.
• Enforcement of FMLA: The US Department of Labor’s Wage and Hour Division enforces the law. In addition, union members may also be able to grieve many of the violations depending on contract language.

FMLA under attack
FMLA is currently under attack in the name of “reform.” This “reform” is being led by the usual suspects. They have formed a coalition cynically called the “National Coalition to Protect Family Leave” and it includes the Chamber of Commerce; the National Association of Manufacturers; the Society for Human Resource Management; and the National Restaurant Association. This coalition wants to put limits on the leaves and further tighten the rules. Its Web site states, “The Coalition strongly opposes any expansion legislation. Expanding a law that is not working properly will only exacerbate the problems that employees and employers are having under the law’s misapplication.”

Yet studies consistently show that the impact on business has been negligible. In 1995, two surveys (conducted for the bipartisan Commission on Family and Medical Leave by the University of Michigan’s Institute for Social Research and the research corporation Westat) reported that the overall impact on employees had been positive, while the law had no noticeable impact on business performance for employers covered by FMLA.

Subsequent studies conducted for the Department of Labor in 2000 on the impact of FMLA showed similar results. While more employees were using FMLA, the median length of leave was only ten days. And “… covered establishments generally reported that the FMLA had no noticeable effect on their businesses in regard to productivity, profitability and growth” (Jane Waldfogel, Monthly Labor Review, Sept. 2001). Businesses further indicated that FMLA intermittent leaves, which could be considered to be more disruptive, had no impact either.

Significantly, these same studies have indicated that among the major issues with FMLA were: financial stress for those taking the leave since most leaves are unpaid; and, the employees not eligible for FMLA leave since many businesses are not covered by the law. So, despite the dire warnings and predictions made by the Chamber of Commerce, the law has worked well. If reforms are needed, it’s clear that the law has to be expanded.

But, like, Social Security and immigration rights, FMLA is in the crosshairs of those who think that American workers have it too good, often dismissing positive and objective studies while preferring to focus on emotional anecdotes of FMLA abuse. An article in the Washington Post reported that, “Changing the family leave rules is at the top of industry’s to-do list, now that it got Congress to withdraw the Clinton-era ergonomics rule on repetitive motion injuries and saw the Bush administration tailor the nation’s overtime pay rules more to its liking.”

In that vein, the Bush administration has signaled that the FMLA legislation will be reviewed, and the Supreme Court has begun to strike down parts of the law (Ragsdale v. Wolverine Worldwide, Inc.). Among the proposed changes (or “technical corrections” as their Coalition terms them) are:

1. Redefining “serious illness” to mean a medical condition that requires at least 10 days recovery time thereby disallowing treatments for chronic illnesses, chemotherapy sessions and kidney dialysis for example.
2. Clarifying the definition of “incapacitated.”
3. Modifying “intermittent leave” by imposing a minimum of four-hour increments.
4. Providing employers with the right to contact an employee’s health care provider in order to verify illness.

Other legislation

• The California Family Rights Act: In 2004 California became the first state to enact a law that provides paid family care leave. The California Family Rights Act provides for employees to take a paid leave to care for a child, spouse, parent or domestic partner who has a serious health condition or in order to bond with a new child. Employees who take such leave can receive 55 percent of their pay up to $840 per week for a maximum of six weeks. California is currently the only state that has such a mandated paid leave available to workers.
• Massachusetts Maternity Leave Act (MMLA): Massachusetts currently has a law on the books that requires employers with at least six employees to grant women up to eight weeks of unpaid maternity leave for the birth or adoption of a child.
  

However, a new Massachusetts law on family leave is now being proposed in the Legislature. It would provide for a paid leave of 12 weeks in order to:

1. Care for newborns and adopted children
2. To recover from an illness
3. To care for an ailing relative

The leave would be paid for from a newly established Strong Families Trust Fund. All employees would be required to contribute an estimated $1.50 to $2.50 per week to the fund—whether they might take advantage of the leave or not. Employers would make no contribution to the fund. Workers could receive up to $750 per week on such a leave. The proposed legislation would also make it illegal for an employer to fire someone who opted to take such a paid leave. The bill and specific provisions are currently being debated.

Negotiating more favorable terms

Clauses may be negotiated into a contract that provide benefits and provisions above and beyond those in the FMLA and MMLA. Examples of such negotiable items include:

1. Providing employees with the option to use accrued paid leave (vacation, sick, personal days, etc.) as a way to have the FMLA a paid leave.
2. Making the FMLA leave a paid leave.
3. Broadening the employee eligibility for the leave.
4. Incorporating the provisions of the FMLA into the contract. This will streamline the enforcement of the FMLA entitlements through contract language by making violations grievable and arbitrable. Furthermore, it protects the provisions from court rulings that might chip away at the FMLA provisions.
5. Broadening the term of “family member” to be more inclusive (see box at left for sample contract language from Boston Medical Center).
6. Increasing the amount of family and medical leave available (see box at left for sample contract language from Cambridge Hospital).
7. Redefining “serious health condition” in order to expand its meaning.
8. Allowing for intermittent and reduced schedules for child care and elder care purposes.
9. Relaxing the medical certification for leave and the requirements for fitness for duty.
10. Allowing seniority to continue to accrue while on FMLA leave.
11. Negotiating the most employee-friendly way of defining the 12-month FMLA period.
12. Negotiating a continuation of benefits during the duration of the leave.