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 The former “two-day rule” has been rescinded.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.
USPS FMLA Recertification Requirements Appealed to Arbitration
“The APWU has appealed to arbitration a dispute over the Postal Service’s policy of requiring employees to automatically submit new medical certification for an FMLA-covered condition simply because the leave year has ended and a new leave year has begun. It is the APWU’s position that this policy violates the Collective Bargaining Agreement, FMLA regulations and the mutually accepted past practice.”
Proposed FMLA Rule Changes Would Be Major Defeat For Workers
Editorial By Postal Worker Dan Sullivan
The U.S. Department of Labor (DOL) is proposing revised regulations governing the Family and Medical Leave Act which would give employers formidable new weapons to use against the very workers the law was designed to protect.
The new rules, if adopted, will require employees and doctors to provide more information to obtain FMLA leave and increase costs for employees while broadening the rights of employers to gather personal medical information and deny employees coverage under the law.
The Department of Labor conservatively estimates the proposed changes will save employers at least $45 million a year and cost employees and health insurers $11.3 million yearly, mainly in costs to obtain medical information from health care providers.
One of numerous proposed changes harmful to workers involves substitution of paid leave for unpaid FMLA leave. Read more
APWU: Proposed FMLA Regulations Threaten Medical Privacy, Other Protections
Shortly after agreeing to expand leave for military families, the Bush administration proposed new regulations that would weaken employees’ medical privacy protections and make it more difficult for workers to use leave under the Family and Medical Leave Act (FMLA). Regulations proposed by the Department of Labor on Feb. 11, 2008, have caused concern among unions.
- Current regulations prohibit employers from making direct contact with an employee’s physician. The proposed rules would create exceptions to this prohibition.
- Eligible employees would be required to re-certify lifelong or chronic conditions at least twice a year, regardless of the length of the certification issued by a healthcare provider. (Employees would have to bear the costs of the additional trips to the doctor.) Under current regulations, such certifications last up to a year.
- Current regulation prohibit the disclosure of a “diagnosis or prognosis” on any form. The proposed rule would allow employers to request but not require disclosure.
- While the proposed regulations would allow eligible employees to seek damages against employers who fail to provide them proper notice of their rights under the FMLA, the burden of proof in such cases would be quite high and employees would have to show actual damages suffered.
- Current regulations stipulate that a health problem can qualify as a serious condition when an absence is followed by two visits with a healthcare provider. The proposed regulations would restrict FMLA eligibility by requiring that follow-up treatment take place within 30 days of the start of a medical absence.
- Current law requires employers to provide notice to employees within two business days. The proposed rule expands the period to five business days.
The APWU and other unions are currently reviewing the proposed regulations and plan to file objections within the 60-day public comment period before the new regulations can take effect. The Labor Department has until the end of 2008 to publish its final regulations.
Postal Employees Entitlement to Servicemember FMLA
From USPS:
There have been changes to the Family and Medical Leave Act (FMLA) that every employee should know about. An update now entitles eligible employees to take leave for a covered family member’s service in the armed forces. This policy supplements current FMLA policy and provides notice of employee rights to such leave.
Servicemember FMLA provides eligible employees leave to care for a covered family member — spouse, parent, son, daughter or next of kin — who has incurred an injury or illness in the line of duty while on active duty in the armed forces. That’s provided that the injury or illness render the family member medically unfit to perform the duties of the member’s office, grade, rank or rating.
Eligible employees also are entitled to leave because of a qualifying situation caused by a family member’s active duty or call to active duty in the armed forces in support of a contingency operation plan.
Bush Administration Seeking Changes To FMLA Regulations
According to the Associated Press:
The Bush administration is proposing the first changes to regulations in the Family Medical Leave Act in more than a decade.
The act allows eligible workers to have up to 12 weeks of unpaid leave in a year for such things as caring for a newborn or a sick family member, or to address a serious health condition.
The Labor Department says it has sent the proposed changes to the White House, but won’t say what the changes are.
Advocates for the act say they’re worried that the administration will try to cut back or weaken protections of the law. They say the government should be working to expand it.
But the Labor Department says people already eligible under the act will remain eligible, and that changes will be aimed at stopping people from abusing the system.
The changes will be made public once the White House signs off on them. The Labor Department hopes the final regulations will come by the end of the year.
The New York Times reported:
Labor Department officials said on Thursday that they had proposed new regulations that address some corporate complaints that workers are abusing the Family and Medical Leave Act. Under the proposals, workers would generally have to call in to request a leave before taking it; currently, employees can take off for two days before requesting a leave.She said the proposed regulations would allow companies to require doctors to recertify annually that a worker has a serious health condition. Under current rules, doctors can provide a multiyear certification that a worker has a serious condition.
Although a Labor Department official announced the move through interviews with the Associated Press and The New York Times, the department has not provided any details about its recommendations.
Workforce Management reports:
The White House budget office has up to 90 days to review the proposal, but observers estimate that it likely will be published by mid-February in the Federal Register. The public would then have 60 days to comment. Then the Labor Department would issue a final regulation.
Unions Beat Back Effort to Weaken FMLA Law
Labor Department Study Affirms That FMLA ‘Is Working as Intended’
A Department of Labor study released June 27 confirms what most Americans already know, that “family and medical leave is good for workers and their families, is in the public interest, and is good workplace policy.”
This conclusion is a victory for the labor movement,” said Legislative Director Myke Reid. “The DOL’s request for information caused concern among unions because the agency, which implements workplace rules for the FMLA, has used its regulatory authority in the past to weaken workers’ rights.”
Employers had seized on the Department of Labor request in an attempt to undermine the FLMA, Reid noted, asserting that the agency should limit the definition of a serious health condition; demand more frequent reviews of FMLA conditions; restrict the definition of eligible employees; eliminate intermittent leave, and rescind a provision of the act that requires supervisors to get an employee’s permission before contacting his or her doctor.
But unions, workers, and advocates for family-friendly policies carried the day. Summarizing the 15,000 comments that the department received from workers, employers, and other interested parties, Lipnic said, “ The Department is pleased to observe that, in the vast majority of cases, the FMLA is working as intended.”
“Normally, the organization of comments received in response to a Departmental Request for Information would first be seen accompanying proposed changes to the rules,” Lipnic wrote, but “There are no proposals for regulatory changes being put forward by the Department with this Report.”
“Employers used the request for information in an effort to impose more restrictions on a worker’s right to use leave under the FMLA,” said APWU President William Burrus. “But unions and other parties submitted thousands of statements in support of this law, which we fought so hard to pass. We are pleased that the report recognizes that the FMLA is accomplishing its goal — giving workers the ability to fulfill family responsibilities without jeopardizing their jobs.”