The Family and Medical Leave Act
Revisited

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Introduction

The Family and Medical Leave Act is a labor law of tremendous significance to working men and women. Countless thousands of persons have used the terms and conditions of the FMLA to balance the health needs of themselves and their families and the work expectations of their employers. The Department of Labor has reported that the costs to employers are very minor. ¹

In the nearly five years since the 1995 publication of the FMLA Final Rule, ² this Act has also created confusion and disappointment to employees and employers alike, due to uncertainty over the meaning of its forty pages of regulations. The Postal Service is committed to adherence to the Act, but many supervisors and employees are largely unaware of its provisions.

Eligibility

USPS employees are fully covered under the FMLA if they have worked more than one year in total and have more than 1,250 hours of actual (FLSA) work in the preceding calendar year.³ By convenient coincidence, this is 5/8ths of a postal work year minus our ten paid holidays. Work hour histories can be calculated from pay stubs or pay period summary printouts. In a controversial provision, the employer must normally challenge within two business days if uncertain of the eligibility of an employee.⁴

Serious Health Condition

A serious health condition is defined as hospitalization; incapacity of more than three calendar days, involving two or more physician visits or a regimen of treatment such as a prescription or therapy; any incapacity due to pregnancy; or a serious chronic condition requiring long term care.⁵ The FMLA does not cover absences such as routine dental care, cosmetic or acne treatments, or conditions such as the common cold or flu in the absence of complications.⁶

Paid or Unpaid Leave?

The language of the FMLA permitted employers to exhaust paid or unpaid leave at their discretion for FMLA absences. This employer right is mentioned in Poster 1420.⁷ Other federal workers enjoy more favorable rules under the Federal Family Friendly Act of 1994. The NALC and USPS appear to have recently agreed that employees cannot be required to exhaust annual leave prior to use of LWOP due to conflict with the ELM Section 513.61 which permits substitution of LWOP or annual leave for a work absence if sick leave is approved but the sick leave balance is insufficient.⁸

Definition of Family

Some of the confusion over the FMLA involves its complex definition of what is a covered family member. It is noteworthy that siblings, parents-in-law, non-disabled adult children, and “significant "others” are not covered. The legal definition is presented:

§ 825.113 What do ‘‘spouse,’’ ‘‘parent,’’ and ‘‘son or daughter’’ mean for purposes of an employee qualifying to take FMLA leave?
(a) Spouse means a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.
(b) Parent means a biological parent or an individual who stands or stood in loco parentis to an employee when the employee was a son or daughter as defined in (c) below. This term does not include parents ‘‘in law’’.
(c) Son or daughter means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under age 18, or age 18 or older and ‘‘incapable of self-care because of a mental or physical disability.’’

Notice and Medical Certification

Some of the most contradictory elements of the FMLA involve medical certification and giving notice to the employer. Notice should be given as much as 30 days in advance when possible. If the employee gives no reasonable excuse the leave can be deferred 30 days.⁹ In giving notice to the employer, it is not necessary to assert FMLA rights or even mention the FMLA.¹⁰

The Postal Service can require employees to submit additional evidence that the leave is for a serious health condition within fifteen days or as soon as practicable,¹¹ citing the ELM Section 515.51. In a change favorable to the employee, USPS management can now require medical updates once every thirty days,¹² a change from fourteen days which complies with the FMLA. The Department of Labor has created Form WH 380,¹³ an optional form, which facilitates documenting any qualifying condition for the employee or family member.

The employer is supposed to provide two types of notice to employees regarding their fights under the FMLA: The FMLA Poster, WH 1420, which must be prominently posted.¹⁴ The employer is further required to furnish written notice of an employee’s rights when a serious health condition arises.¹⁵ The USPS has created Publication 71¹⁶ for this purpose, but failure to furnish the form is almost universal. Failure to furnish Publication 71 can be an affirmative defense for the union in FMLA discipline cases.

Unlawful Acts

The FMLA makes it unlawful for the employer to oppose, deny, or interfere with any rights provided by the Act.¹⁷ The contractual grievance process can address violations of the Act through citation of Article 11 (leave) and Article 19 (ELM Chapter 515). Employees may also file a complaint with the U.S. Department of Labor, Wage and Hour Division.

Conclusion

Without question, the Family and Medical Leave Act is one of the most beneficial Federal Government labor laws to be passed in our lifetime. This precious Act is our to cherish and ours to defend.

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¹ “A Workable Balance / Report to Congress on Family and Medical Leave Policies,” Women’s Bureau, United States Department of Labor, April 30, 1996
² “The Family and Medical Leave Act of 1993; Final Rule,” United States Department of Labor, Federal Register,
January 6, 1995
³ ELM § 515.3 & 29 CFR 825.110
⁴ 29 CFR 825.110(d)
⁵ 29 CFR 825.114(a)
⁶ 29 CFR 825.114(b)(c)
⁷ “Your Rights Under The Family and Medical Leave Act,” WH Publication 1420, United States Dept. of Labor
⁸ “M-1371,” NALC/USPS Step 4 Decision, January 13, 1999
⁹ 29 CFR 825.304(b)
¹⁰ 29 CFR 302(c)
¹¹ ELM § 515.51 & 29 CFR 825.305(b)
¹² ELM § 513.363 & 29 CFR 825.308(a)
¹³ “Form WH 380, Certification of Health Care Provider,” United States Department of Labor, March 1995
¹⁴ 29 CFR 825.300(a)
¹⁵ 29 CFR 825.301(a)(1) ¹⁶ “Notice for Employees Requesting Leave for Conditions Covered by the Family and Medical Leave Act,” Publication 71, United States Postal Service, June 1997
¹⁷ 29 CFR 825.220

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Disclaimer: The material in this article is not presumed or intended to reflect an official position of the
National Association of Letter Carriers or the Michigan State Association of Letter Carriers. This article contains opinion statements of the writer offered for basic informational purposes only. There is no substitute for consultation with or representation by a trained advocate. The writer cannot assume responsibility of any type for the use of this material by others.

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