Background

The Merit Systems Protection Board has produced its first decision examining the conditions of coverage under the Family and Medical Leave Act of 1993.[1] This decision, Ramey v. US. Postal Service, 70 M.S.P.R. 463 (1996), has important and positive implications for federal and postal workers receiving attendance-related discipline. The case was remanded for proper development of the FMLA issues raised by the defense. This decision held that:

The Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. § 2601, 5 U.S.C. § 6381, gives "eligible" employees of a covered employer the right to take unpaid leave, or paid leave if it has been earned, for a period of up to 12 workweeks in any 12-month period because of the birth of a child or the placement of a child for adoption or foster care, because the employee is needed to care for a family member with a serious health condition, or because the employee's own serious health condition makes the employee unable to do his or her job. Under certain circumstances, this leave may be taken on an intermittent basis rather than all at once. 29 C.F.R. § 825.100. Employees of the Postal Service are covered by the FMLA and its implementing regulations found at 29 C.F.R. Part 825. 29 C.F.R. § 825.109. The FMLA was enacted on February 5, 1993, and the Postal Service became subject to its provisions, with respect to its employees covered by a collective bargaining agreement, effective February 5, 1994. 29 C.F.R. § 825.102(a). The FMLA requires that the Postal Service post, and keep posted on its premises, a notice explaining the FMLA's provisions, and that the Postal Service include information regarding FMLA entitlements and employee obligations in written guidance concerning employee benefits or leave rights. (29 C.F.R. §§ 825.300, 825.301)

Findings

This significant decision speaks directly to a frequently-raised management objection to FMLA coverage: that the employee must ask for FMLA leave in order to have the absence tracked in a protected status. The two arguments against this management practice are: (A) that the employee need not expressly assert rights under FMLA or even mention FMLA when notifying management of a qualifying absence,[2] and (B) management must inform employees in this situation of their rights through both a posting and through written guidance.[3] The Postal Service has prepared PS Publication 71,[4] a two-page booklet that lists the FMLA program highlights.

Advocates should verify that the FMLA poster (WH 1420 or facsimile) is visible and conspicuous, and that management is furnishing some sort of written notice on the FMLA to employees absent with potentially serious health issues. Management fails almost universally to furnish the requisite written instructions.

The Ramey decision affirms the legal requirement that the requesting employee be given some sort of written instruction. In the absence of written instruction to the employee, discipline issued to an employee involving a serious health condition is usually open to challenge. Exceptions will occur, such as the employee who fails to give reasonable notice (thirty days notice when practicable), for a situation the requesting employee had an obvious advance awareness of. Examples would be elective or previously-scheduled surgery.

Employees usually are much more likely to remember the FMLA when seeking to be absent for a relative, while simply calling in sick for their own health situations. Also an employee who calls in an absence is not physically present to receive written instructions. The absence of the employee is not an insurmountable burden to management in supplying information to the employee, but meeting this requirement would necessitate actual concern by management about the absence. Employee absences usually generate resentment, not concern, especially on the part of the type of supervisor who is highly intent on issuing discipline. Until this state of affairs changes, substantial violations under the FMLA will continue.

Compliance Assistance

The Family and Medical Leave Act was published as a Final Rule on January 6, 1995 in the Federal Register. This document is available free from any office of the Department of Labor Wage and Hour Division. The document is also easily attained in PDF form from the GPO Gateway, a special Internet site from the U.S. Government Printing Office that enables one to search the Federal Register by subject and year, an invaluable research tool for federal personnel law topics. A very clear copy of Poster WH 1420 can be downloaded in PDF format from a special Department of Labor Family Medical Leave Act Poster Site, an Internet site dedicated to furnishing compliance posters for each major law subject enforced by the Department of Labor. Substantial compliance material on the FMLA is available by searching the Department of Labor home page, under Employment Standards Division.

Conclusion

The Family and Medical Leave Act is an example of beneficent social legislation. This means, simply, that the Act was passed into law to work a public benefit. The stated intent of the Family and Medical Leave Act was to establish the lawful right for workers to balance the demands of the workplace with the needs of their families. The Ramey decision indicates that the Merit Systems Protection Board is willing to enforce the law as written and construe its passages in a manner reasonably liberal to the claimant. Given that the intended benefit of the law would not survive in the absence of positive interpretation and enforcement, the Ramey decision is clearly the right decision in the opinion of this writer. Even though it will not establish direct precedent for arbitration, the logic presented in Ramey belongs in any discipline case involving neglect by the employer of basic FMLA rights.

In closing, the day-to-day enforcement of the Family and Medical Act in our postal workplace is the task of the stewards and officers in our labor organizations. I know we can do it!

[1] MSPB Yearbook/Fiscal Year 1996, Merit Systems Protection Board, 1120 Vermont Avenue, NW,
Washington, DC, 20419, 1997

[2] 29 C.F.R. § 825.302

[3] 29 C.F.R. § 825.301

[4] Publication 71, United States Postal Service, 475 L'Enfant Plaza SW, Washington, DC 20260, 1995