FMLA Leave Expanded to More Parents And Children
The Department of Labor issued the following clarification on the expanded FMLA regulations:
Neither the statute nor the regulations restrict the number of parents a child may have under the FMLA. For example, where a child’s biological parents divorce, and each parent remarries, the child will be the “son or daughter” of both the biological parents and the stepparents and all four adults would have equal rights to take FMLA leave to care for the child. An employee who will share equally in the raising of an adopted child with a same sex partner, but who does not have a legal relationship with the child, would be entitled to leave to bond with the child following placement, or to care for the child if the child had a serious health condition, because the employee stands “in loco parentis” to the child.
Wage and Hour Division Administrator’s Interpretation No. 2010-3
June 22, 2010
Issued by Deputy Administrator Nancy J. Leppink
SUBJECT: Clarification of the definition of “son or daughter” under Section 101(12) of the Family and Medical Leave Act (FMLA) as it applies to an employee standing “in loco parentis” to a child.
The Administrator has determined that additional clarification is needed on the definition of “son or daughter” as it applies to an employee taking FMLA-protected leave for the birth or placement of a child, to care for a newborn or newly placed child, or to care for a child with a serious health condition. Based on the Wage and Hour Division’s experience in administering the FMLA, it is evident that many employees and employers are unsure of how the FMLA applies when there is no legal or biological parent-child relationship. The Administrator is issuing this interpretation to provide needed guidance on this important area of law. Read more
ADA Considerations Following Exhaustion of FMLA Protected Leave
Exhaustion of FMLA protected leave is a common problem in the Postal Service. This legal article makes several good points about ADA considerations:
The broadened scope of the ADA increases the likelihood that anyone taking FMLA leave for their own serious health condition may also have an ADA protected disability. As a result, it is important for employers to consider whether the employee is covered by the ADA (or state disability law) before separating an employee who has provided notice of his or her inability to return to work following exhaustion of the employee’s maximum FMLA leave entitlement. Oftentimes, such employee notice includes a request for additional leave and/or a doctor’s note with a return-to-work date beyond the FMLA leave expiration date. While there is no duty under the FMLA to grant additional leave, if the employee’s medical condition meets the definition of an ADA disability, there may be a duty under the ADA to consider granting additional unpaid time off from work, as some courts have held that leave is a form of reasonable accommodation.
New FMLA Rules Increase Time Off To Help Care For Veteran, Active-Duty Relatives
Postal employees will have more opportunities to take time off work to help family members who are military service members or veterans under new rules mandated by the 2010 National Defense Authorization Act.
The law, signed late last year by President Obama, allows employees to take up to 12 weeks of paid or unpaid leave per year under the Family and Medical Leave Act (FMLA) to help a family member who is on active duty or is being called up for active duty to a foreign country.
The new rules also enable employees to take up to 26 weeks of paid or unpaid leave per year under FMLA to care for family members who are veterans and need medical treatment, recuperation, or therapy for a serious injury or illness incurred in or aggravated by service in the line of duty on active duty.
Previously, employees could only take time off to help injured or ill family members who were active-duty military. To qualify, the veteran must have been a member of the military, National Guard, or Reserves during the five years preceding the treatment, recuperation or therapy.
Click here for further information about the Family and Medical Leave Act. (internal USPS link)
also see New Law Expands FMLA for Military Families
DOL to Reconsider Bush’s Last-Minute FMLA Changes
APWU News
Secretary of Labor Hilda Solis announced [PDF] Dec. 7 that she is reviewing changes made early this year to regulations governing the Family and Medical Leave Act. The announcement has set off speculation that the Department of Labor will overturn revisions implemented at the very end of the Bush administration.
APWU members may recall that just four days before President Bush left the White House, he implemented several regulatory changes to the FMLA, some of which have caused problems for workers, including postal employees. The APWU was among several workers’ advocacy organizations that fought the imposition of the new rules.
Included among the changes were a narrowing of the definition of a “serious health condition,” requirements for additional medical documentation, requirements that medical evidence be provided more frequently, and permission for employers to contact an employee’s healthcare provider directly, without the employees’ knowledge or permission.
“We hope the Department of Labor will reverse policies that were pushed through just before President Obama took office,” said APWU Legislative & Political Department Director Myke Reid.
APWU President William Burrus wrote to Solis in June, saying that the Bush FMLA rules “weakened the law and made it more difficult for workers to exercise the right the legislation was designed to protect.”
The expected “new” regulations will be developed and published by November, Reid said, and the APWU’s concerns again will be shared with the Department of Labor. “Eleven months may seem like a long time, but notice must be given and a 60-day ‘comment period’ is required. We are optimistic that the subsequent review will work in our favor.”
Clarification On Use of APWU FMLA Forms
From APWU:
In response to a letter from the Postal Service stating that the APWU’s FMLA forms are not equivalent to the Department of Labor’s FMLA forms, the union has written the Postal Service clarifying our position on the use of the forms. Some managers have interpreted the USPS’s comments to mean that the APWU’s FMLA forms are unacceptable. This is not true. FMLA regulations do not require that certification be provided on any particular form, or in any particular format, as long as the information is complete and sufficient. Management must make a case-by-case determination if the documentation provided is complete and sufficient. If it’s not, they are required to explain to the employee, in writing, what they must do to make the form complete and sufficient. They cannot require the use of the optional DOL forms. In addition, the optional DOL forms contain space for doctors to provide information that is not required by the regulations. The APWU continues to encourage our members to use the APWU forms. Click here for exchange of correspondence on FMLA forms
APWU President Burrus Calls on Labor Department to Reverse Bush FMLA Rules
APWU News
APWU President William Burrus has called on U.S. Department of Labor Secretary Hilda Solis to rescind the new regulations [PDF] governing the Family and Medical Leave Act (FMLA) that were imposed by the Bush Administration just days before the former president left office.
The Bush FMLA rules “weakened the law and made it more difficult for workers to exercise the rights the legislation was designed to protect,” Burrus said in his June 3 letter [PDF] to Solis.
The new regulations, he noted, define “serious health condition” more narrowly; require employees to provide more medical documentation about their conditions, and provide it more often; allow employers to contact an employee’s healthcare providers without the employees’ knowledge or permission, and permit employers to request FMLA recertification every six months in conjunction with an absence, at the employee’s expense.
In calling for the reversal of the President Bush’s parting shot to American working families, however, Burrus requested that Labor Department “retain the one positive change” in the new rules: the expansion of FMLA rights for members of the military and their families.
Burrus praised the FMLA Restoration Act (H.R. 2161), introduced in the House of Representatives on April 29 by Rep. Carol Shea-Porter (D-NH), but asked the labor secretary to reverse the new rules without waiting for the legislation to pass.
Bill To Reverse Changes To FMLA Implemented In Bush Adminstration Introduced
APWU News
FMLA Restoration Act Introduced
A bill intended to reverse changes to the Family and Medical Leave Act regulations that were implemented just before President Obama took office has been introduced in the U.S. House.
The FMLA Restoration Act, introduced on April 29 by Rep. Carol Shea-Porter (D-NH), would “nullify certain regulations promulgated under the Family and Medical Leave Act of 1993, and restore prior regulations.”
The purpose of the bill (H.R. 2161) is to roll back the harmful changes made by President Bush four days before he left the White House: FMLA regulations that went into effect on Jan. 16 have created problems in the field, such as employer representatives contacting workers’ doctors without the workers’ consent, and rejecting previously accepted FMLA certifications. Workers with long-accepted “conditions” have been challenged and have been forced to visit their doctors repeatedly.
“The original intent of this important law has been compromised,” said Myke Reid, APWU Legislative & Political Department director. “The Bush Administration regulations make attempts to use leave under the provisions of the law a constant battle.
“The bill offered by Rep. Shea-Porter is intended to reverse the most restrictive and burdensome of the changes imposed by the Bush administration. We urge APWU members to contact their representatives to ensure its swift passage.”
Updated: DOL Policy on FMLA Notice and Call-In Procedures
From PostalReporter reader
The Dept of Labor has issued a new FMLA Opinion Letter titled, “Employee Notice and Call-In Procedures,” that rescinds previous policy. Basically, it says that the employer’s usual and customary notice requirements for leave can be enforced in most cases of FMLA absences. The burden of proof that it wasn’t “practicable” to give sufficient advance notice will be borne by the employee. The former “two-day rule” has been rescinded. I predict many employers will seize on this technicality to deny their workers FMLA leave.
Don Cheney
Auburn, WA
FMLA2009-1-A Employee Notice and Call-In Procedures
http://www.dol.gov/esa/WHD/opinion/FMLA/2009/2009_01_06_1A_FMLA.htm
January 6, 2009
This is in response to your request for clarification of employee notification procedures under the Family and Medical Leave Act (FMLA) as discussed in Wage and Hour Opinion Letter FMLA-101 (January 15, 1999). You state that employers believe that opinion letter FMLA-101 prevents them from applying internal call-in policies, disciplining employees under no call/no show policies, or disciplining employees who call in late, as long as the employees provide notice within two business days that the leave was FMLA-qualifying, regardless of whether they could have practicably provided notice sooner. You believe that this interpretation of the FMLA employee notification requirements “places an untenable burden on employers who are attempting to reasonably schedule their workforce based on foreseeable availabilities of employees and to apply uniform rules on call in to all employees.”
***
Accordingly, as stated in the final rule, where an employer’s usual and customary notice and procedural requirements for requesting leave are consistent with what is practicable given the particular circumstances of the employee’s need for leave, the employer’s notice requirements can be enforced. To the degree that Wage and Hour Opinion Letter FMLA-101 has been interpreted to create a flat “two-day rule,” the Department is hereby rescinding it. Thus, in the example you cite in your letter of an employer policy requiring employees to call in one hour prior to their shift to report absences and an employee who is absent on Tuesday and Wednesday, but does not call in on either day and instead provides notice of his need for FMLA leave when he returns to work on Thursday, it is our opinion that unless unusual circumstances prevented the employee from providing notice consistent with the employer’s policy, the employer may deny FMLA leave for the absence.
Sincerely,
Alexander Passantino
Acting Administrator
Postal FMLA Coordinators Requiring Employees To Release Medical Info to USPS Law Department
From Michael J Hora, President, National Postal Mail Handlers Union (NPMHU) Local #321
FMLA Coordinators Soliciting Release of Medical Information to USPS Law Dept.
The Postal Service is soliciting medical releases for those employees that are required to partake in the 2nd and 3rd opinion process. In doing so, the FMLA Coordinators are requiring employees to release the “specified information” to the USPS Law Department. Specifically, the USPS is requesting access to:
Any and all records regarding treatment, including but not limited to, all current and past medical treatment, aliments and/or conditions (sic);
Other: Stress, Psychological and/or Medical Disorders, Aliments, Conditions (sic) to include a copy of complete chart, progress notes & interview notes, discharge summaries, operative reports, x-ray & all imagery, laboratory tests, pathology tissue, and all diagnostic studies whether in electronic data or other format.
The Local Union has filed a complaint with the Department of Labor, and we have asked Senator Udall to intervene. We are also addressing the issue at the National level.
The request seems highly improper. What legal purpose does the Law Department have with sensitive, private and personal medical information? Is the Law Department going to review x-rays and pathology tissue?
The USPS letter goes on to assert that the information sought is the “minimum necessary” to accomplish the intended purpose of the request. There is nothing minimal about the information being sought. It is the Postal Service’s customary and routine practice to request everything.
Hopefully we will have this resolved quickly. Until then, we need to have every mail handler that is pushed to a 2nd and/or 3rd opinion (and required to sign the referenced medical release) to file a complaint with the DOL. The Union can assist you with this. It is nothing more then a simple letter written to:
Denver Colorado District Office Martin Barrow, District Director
US Department of Labor ESA Wage & Hour Division 1999 Broadway, Suite 2445 Denver, CO 80202-5712
Those that are affected and do file complaints should remind the DOL that the USPS will likely terminate their FMLA (for refusing to sign and return the medical release) asserting non-cooperative with the 2nd/3rd opinion process. They should ask for appropriate extensions until their complaint is addressed. Additional information will be posted as this situation develops.
See documents accompanying FMLA request (PDF)
New Family and Medical Leave Act Poster
From PostalReporter.com reader
A revised Family and Medical Leave Act (FMLA) poster, reflecting the recently published final rule, is now available for viewing and downloading. Every employer covered by the FMLA is required to post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the Act’s provisions. Employee’s Serious Health Condition (WH-380E) and a Family Member’s Serious Health Condition (WH-380F).
The Department has also revised its Notice of Eligibility and Rights and Responsibilities form (WH-381). In addition, the Department has added new forms for Designation Notice to Employee of FMLA Leave (WH-382), Certification of Qualifying Exigency for Military Family Leave (WH-384), and Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave (WH-385)
The poster and forms become effective on January 16, 2009. Additional compliance assistance materials are also available on FMLA Final Rule Web site at http://www.dol.gov/esa/whd/fmla/finalrule.htm.