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  • FMLA
    Updated On: May 16, 2011

    FMLA Problems in Iowa - call the Department of Labor, Wage and Hour Division - 866-487-9243

     

    New 2009 APWU FMLA Forms

     

    Family and Medical Leave Information


    PEN HOME
     
    About FMLA
    In general, the Act entitles eligible employees to be absent for up to 12 workweeks per year for the birth or adoption of a child; to care for a spouse, son, daughter, or parent with a serious health condition; or when unable to work because of a serious health condition without loss of their job or health benefits. The FMLA does not provide more annual or sick leave than that which is already provided to Postal Service employees.

    Remember, always consult with your union steward, supervisor, and/or postmaster for information and help concerning the use of Family Medical Leave.

    To read information from the USPS ELM regarding FMLA leave follow the link below.

    USPS ELM Regarding FMLA Leave
     

    Information, materials, forms etc. regarding FMLA from: NALC and APWU
     
    EMPLOYEE ELIGIBILITY from Department of Labor
    Covered employers must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons: (1) for the birth and care of the newborn child of the employee (2) for placement with the employee of a son or daughter for adoption or foster care (3) to care for an immediate family member (spouse, child, or parent) with a serious health condition (4) or to take medical leave when the employee is unable to work because of a serious health condition.

    To be eligible for FMLA benefits, an employee must: (1) work for a covered employer; (2) have worked for the employer for a total of 12 months; (3) have worked at least 1,250 hours over the previous 12 months; and (4) work at a location in the United States or in any territory or possession of the United States where at least 50 employees are employed by the employer within 75 miles.

     
    JOB RESTORATION
    Upon return from FMLA leave, an employee must be restored to the employee's original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.

    In addition, an employee's use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave, nor be counted against the employee under a "no fault" attendance policy.

    Under specified and limited circumstances where restoration to employment will cause substantial and grievous economic injury to its operations, an employer may refuse to reinstate certain highly-paid "key" employees after using FMLA leave during which health coverage was maintained. In order to do so, the employer must:

    • notify the employee of his/her status as a "key" employee in response to the employee's notice of intent to take FMLA leave
    • notify the employee as soon as the employer decides it will deny job restoration, and explain the reasons for this decision
    • offer the employee a reasonable opportunity to return to work from FMLA leave after giving this notice
    • and make a final determination as to whether reinstatement will be denied at the end of the leave period if the employee then requests restoration.

    A "key" employee is a salaried "eligible" employee who is among the highest paid ten percent of employees within 75 miles of the work site.

     
    For more information regarding FMLA visit these links: Department of Labor and USPS ELM Regarding FMLA Leave
     

     

    INFO

    Code 29 FMLA Leave Act 2003

    Department of Labor FMLA Section 825 Revised 2009

    Department of Labor Final Rule 2009

    DOL Page on FMLA

    Donated Leave

    Exhausting Leave -LWOP

     Final Rule 2008 changes

    FMLA 1994

    FMLA Employee Service Talk 2009

    FMLA 2009 University of Iowa Labor Center

    FMLA FAQs

    FMLA Human Resources Letter 2009

    FMLA Training for Supervisors

    Forms - Dockins on APWU Forms 2009

    How to Apply you FMLA Rights (APWU Book)

    Leave and Documentation (RMD)

    MSPB ruling on use of Scheduled Leave

    Second Opinion

    WH 1420 FMLA Poster

    FMLA Forms, samples and more!

    FMLA 1993 Synopsis

    515 Absence for Family Care or Illness of Employee

    515.1 Purpose

    Section 515 provides policies to comply with the Family and Medical Leave Act of 1993 (FMLA). Nothing in this section is intended to limit employees' rights or benefits available under other current policies (see 511, 512, 513, 514) or collective bargaining agreements. Likewise, nothing increases the amount of paid leave beyond what is provided for under current leave policies or in any collective bargaining agreement. The conditions for authorizing the use of annual leave, sick leave, or LWOP are modified only to the extent described in this section.

    515.2 Definitions

    The following definitions apply for the purposes of 515:

    a. Son or daughter - biological, adopted, or foster child, stepchild, legal ward, or child who stands in the position of a son or daughter to the employee, who is under 18 years of age or who is 18 or older and incapable of self-care because of mental or physical disability.

    b. Parent - biological parent or individual who stood in that position to the employee when the employee was a child.

    c. Spouse - husband or wife.

    d. Serious health condition - illness, injury, impairment, or physical or mental condition that involves any of the following:

    (1) Hospital care - inpatient care (i.e., an overnight stay) in a hospital or residential medical care facility, including any period of incapacity or subsequent treatment in connection with or subsequent to such inpatient care.

    (2) Absence plus treatment - a period of incapacity of more than 3 consecutive calendar days (including any subsequent treatment or period of incapacity relating to the same condition) that also involves either one of the following:

    (a) Treatment two or more times by a health care provider.

    (b) Treatment by a health care provider on at least one occasion that results in a regimen of continuing treatment under the supervision of the health care provider.

    (3) Pregnancy - any period of incapacity due to pregnancy or for prenatal care.

    (4) Chronic condition requiring treatments - a chronic condition that meets all of the three following conditions:

    (a) Requires periodic visits for treatment by a health care provider or by a nurse or physician's assistant under direct supervision of a health care provider.

    (b) Continues over an extended period of time (including recurring episodes of a single underlying condition).

    (c) May cause episodic, rather than a continuing period of, incapacity. Examples of such conditions include diabetes, asthma, and epilepsy.

    (5) Permanent or long-term condition requiring supervision - a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective. The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider. Examples of such conditions include Alzheimer's, a severe stroke, and the terminal stages of a disease.

    (6) Condition requiring multiple treatments (nonchronic condition) - any period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity of more than 3 consecutive calendar days in the absence of medical intervention or treatment. Examples of such conditions include cancer (which may require chemotherapy, radiation, etc.), severe arthritis (which may require physical therapy), and kidney disease (which may require dialysis).

    Note: Cosmetic treatments (such as most treatments for orthodontia or acne) are not "serious health conditions" unless complications occur. Restorative dental surgery after an accident or removal of cancerous growths is a serious health condition provided all the other conditions are met. Allergies, mental illness resulting from stress, and treatments for substance abuse are protected only if all the conditions are met. Routine preventative physical examinations are excluded. Also excluded as a regimen of continuing treatments are treatments that involve only over-the-counter medicine or activities such as bed rest that can be initiated without a visit to a health care provider.

    e. Health care provider - doctor of medicine or osteopathy; Christian Science practitioner listed with the First Church of Christ, Scientist, in Boston, MA; physician; or other attending practitioner who is performing within the scope of his or her practice.

    Return to top of page

    515.3 Eligibility

    For an absence to be covered by the FMLA, the employee must have been employed by the Postal Service for an accumulated total of 12 months and must have worked a minimum of 1,250 hours during the 12-month period before the date leave begins.

    515.4 Leave Requirements

    515.41 Conditions

    Eligible employees must be allowed an total of up to 12 workweeks of leave within a Postal Service leave year for one or more of the following:

    a. Because of the birth of a son or daughter of the employee and in order to care for such son or daughter. Entitlement to be absent for this condition expires 1 year after the birth.

    b. Because of the placement of a son or daughter with the employee for adoption or foster care. Entitlement to be absent for this condition expires 1 year after the placement.

    c. In order to care for the spouse, son, daughter, or parent of the employee if the spouse, son, daughter, or parent has a serious health condition.

    d. Because of a serious health condition that makes the employee unable to perform the functions of the employee's position.

    515.42 Leave Type

    Absences that qualify as FMLA leave may be charged as annual leave, sick leave, continuation of pay, or leave without pay, or a combination of these. Leave is charged consistent with current leave policies and applicable collective bargaining agreements.

    515.43 Authorized Hours

    Eligible employees are entitled to 12 workweeks per leave year of FMLA-protected absences. This amount is twelve times the hours normally, or regularly, scheduled in the employee's workweek. Occasional or sporadic overtime hours are excluded. Thus:

    a. Full-time employees who normally work 40 hours per week are entitled to up to 480 hours of FMLA-covered absences within a leave year.

    b. Part-time employees who have regular weekly schedules are entitled to 12 times the number of hours normally scheduled in their workweek. For example, a part-time employee with a normal schedule of 30 hours a week is entitled to 360 hours (12 weeks times 30 hours).

    c. Part-time employees who do not have normal weekly schedules are entitled to the total number of hours worked in the previous 12 weeks, not including occasional or sporadic overtime hours.

    Absences in addition to the 12 workweeks of FMLA leave may be granted in accordance with other leave policies or collective bargaining agreements (see 511, 512, 513, 514).

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    515.5 Documentation

    515.51 General

    An employee must provide a supervisor a PS Form 3971 together with documentation supporting the request, at least 30 days before the absence if the need for the leave is foreseeable. If 30 days notice is not practicable, the employee must give notice as soon as practicable. Ordinarily the employee should give at least verbal notification within 1 or 2 business days of the time the need for leave becomes known. A copy of the completed PS Form 3971 is returned to the employee along with a copy of Publication 71, which details the specific expectations and obligations and the consequences of a failure to meet these obligations.

    Additional documentation may be requested of the employee, and this must be provided within 15 days or as soon as practicable considering the particular facts and circumstances.

    During an absence, the employee must keep his or her supervisor informed of intentions to return to work and of status changes that could affect his or her ability to return to work. Failure to provide documentation can result in the denial of FMLA protection.

    515.52 Particular Circumstances
    515.521 New Son or Daughter

    An employee requesting FMLA-covered time off because of the birth of the employee's son or daughter and to care for the son or daughter, or because of the placement of a son or daughter with the employee for adoption or foster care, may be required to substantiate the relationship and provide the birth or placement date.

    515.522 Care of Others for Medical Reasons

    An employee requesting FMLA-covered time off because the employee is needed to care for a spouse, parent, son, or daughter who has a serious health condition may be required to:

    a. Substantiate the relationship.

    b. Provide documentation from the health care provider - using either Form WH-380, Certification of Health Care Provider, or equivalent documentation - stating the date the serious health condition began, probable duration of the illness, appropriate medical facts, nature of the need to care for, and when the employee will be needed to provide such care or psychological support.

    Note: The medical certification provision that an employee is "needed to care for" a family member encompasses both physical and psychological care. It includes situations where, for example, because of a serious health condition, the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport him- or herself to the doctor, etc. The term also includes providing psychological comfort and reassurance that would be beneficial to a child, spouse, or parent with a serious health condition who is receiving inpatient or home care.

    Return to top of page

    515.523 Employee Incapacitation

    An employee requesting FMLA-covered time off because of his or her own incapacitation must satisfy the documentation requirements for sick leave in 513.31 through 513.38 in order to receive paid leave during the absence. If medical opinions are required in addition to initial documentation, they are administered as described in 515.53.

    515.524 Return to Work After Employee Incapacitation

    To return to work from an FMLA-covered absence because of his or her own incapacitation, an employee must provide certification from his or her health care provider that the employee is able to perform the essential functions of his or her positions with or without limitations. Limitations described are accommodated when practical. In addition, a bargaining unit employee must comply with collective bargaining agreements, which include Postal Service policies in 865 (summarized in section VI of Publication 71), 513.37, and other handbooks and manuals.

    515.53 Additional Medical Opinions

    A second medical opinion by a health care provider who is designated and paid for by the Postal Service may be required. A health care provider selected for the second opinion may not be employed by the Postal Service on a regular basis. In case of a difference between the original and second opinion, a third opinion by a health care provider may be required. The third health care provider is jointly designated or approved by management and the employee, and the third opinion is final. The Postal Service pays the health care provider for the third opinion. Recertifications of a medical condition, for which the employee bears the cost, may also be required. Such medical opinions are obtained off the clock.

    Return to top of page

    515.6 Intermittent Leave or Reduced Schedule

    515.61 New Son or Daughter

    Absences requested because of the birth and subsequent care of the employee's newborn son or daughter or because of the placement of a son or daughter with the employee for adoption or foster care may be taken on an intermittent basis or reduced work schedule only if the request for such intermittent leave or schedule modification is approved by the supervisor. Eligibility for this leave expires 1 year after the birth or placement. Approval is based on employee need, Postal Service need, and costs to the Postal Service.

    515.62 Care of Others for Medical Reasons or Employee Incapacitation

    Absences requested to care for a spouse, son, daughter, or parent with a serious health condition or due to the employee's own health condition may be taken on an intermittent basis or by establishing a reduced work schedule when medically necessary.

    515.63 Temporary Change in Duty Assignment

    If an employee requests intermittent leave or a reduced work schedule, the Postal Service may assign the employee, with equivalent pay and benefits, temporarily to the duties of another position consistent with applicable collective bargaining agreements and regulations if such an assignment better accommodates the recurring periods of absence.

    515.64 Fair Labor Standards Act Status

    An employee exempt from the Fair Labor Standards Act (FLSA) normally may not take leave in less than 1-day increments. However, leave taken for an FMLA-covered reason on an intermittent basis or by temporarily establishing a reduced work schedule can be taken in less than 1-day increments without affecting the employee's FLSA-exempt status.

    Return to top of page

    515.7 Return to Position

    Employees whose absence is covered by the FMLA are normally entitled to return to the positions they held when the absence began, or to equivalent positions with equivalent pay, benefits, working conditions, and other terms of employment if they are able to perform the essential functions of the positions. Returning employees are not entitled to any right, benefit, or position to which they would not have been entitled had they not been absent, or to intangible, unmeasurable aspects of the job such as the perceived loss of potential for future promotional opportunities. If an employee was hired for a specific term or only to perform work on a discrete project, then there is no further reinstatement obligation under this section if the employment term or project is over and the employment would not have otherwise continued.

    515.8 Benefits

    All benefits accrue to employees during an FMLA absence pursuant to the applicable provision of the ELM.

    515.9 Family Leave Poster

    All postal facilities, including stations and branches, are required to conspicuously display WH Publication 1420, Your Rights Under the Family and Medical Leave Act of 1993. It must be posted, and remain posted, on bulletin boards where it can be seen readily by employees and applicants for employment.

     

     

     

    The Pregnancy Discrimination Act is an amendment to Title VII of the Civil Rights Act of 1964. Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII, which covers employers with 15 or more employees, including state and local governments. Title VII also applies to employment agencies and to labor organizations, as well as to the federal government. Women who are pregnant or affected by related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations.

    Title VII's pregnancy-related protections include:

    • Hiring

      An employer cannot refuse to hire a pregnant woman because of her pregnancy, because of a pregnancy-related condition or because of the prejudices of co-workers, clients, or customers.

       

    • Pregnancy and Maternity Leave

      An employer may not single out pregnancy-related conditions for special procedures to determine an employee's ability to work. However, if an employer requires its employees to submit a doctor's statement concerning their inability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements.

      If an employee is temporarily unable to perform her job due to pregnancy, the employer must treat her the same as any other temporarily disabled employee. For example, if the employer allows temporarily disabled employees to modify tasks, perform alternative assignments or take disability leave or leave without pay, the employer also must allow an employee who is temporarily disabled due to pregnancy to do the same.

      Pregnant employees must be permitted to work as long as they are able to perform their jobs. If an employee has been absent from work as a result of a pregnancy-related condition and recovers, her employer may not require her to remain on leave until the baby's birth. An employer also may not have a rule that prohibits an employee from returning to work for a predetermined length of time after childbirth.

      Employers must hold open a job for a pregnancy-related absence the same length of time jobs are held open for employees on sick or disability leave.
      Bailey appealed the final agency decision, alleging that the postmaster told her when he sent her home it was because she was pregnant. She also contended that another coworker was sent certified and express mail asking her to return to work, but that the Postal Service failed to use those measures to contact her.
       
      Date Issued:  16 Jan 02

       

       


      posted 5/05/02

       

      EEOC -Pregnancy Discrimination

       

      Summary: Bailey was a mail carrier in Melrose Park, Ill., when her supervisor ordered her to take leave without pay in January 1997. A month earlier, when she was five months pregnant, Bailey had asked to have her responsibilities cut back. She was assigned to light duty for a month before her supervisor told her to go home until she was called back to work. According to the supervisor, only one light duty position was available, the positions were “first come, first served,” and Bailey was the fourth person to request light duty.

      Bailey sought counseling from her Equal Employment Opportunity office and filed a formal discrimination complaint in August 1997. Bailey contended that her supervisor had discriminated against her because she was pregnant. An EEOC administrative judge found that she had not been discriminated against because employees on light duty were called back to work, but neither postal nor union officials were able to locate her, they said. The agency adopted the EEOC decision.

      The commission decided that while Bailey did not have a disability as described under the 1973 Rehabilitation Act, she was discriminated against because of her pregnancy. The case was sent back to the agency for a new hearing.

       

      Source:  Equal Employment Opportunity Commission Federal Sector Case Decisions

      Document #:  01994321

      Title:  Bailey VS USPS


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