FMLA Rights

By Allen Mohl, President

In 1994, congress passed the "Family and Medical leave Act." Because of the Family and Medical leave Act postal workers have the right to take up to 12 weeks of leave each leave year if they need to be absent to deal with their own serious illness or a family member’s medical problems. These FMLA rights, which provide for paid or unpaid leave, have sparked a growing number of disputes between postal employees and their supervisors or mangers. Typically, FMLA controversies involve a chronic condition or management’s right to question the documentation. The Chronic condition disagreement entails the USPS refusal to consider the employee eligible on subsequent absences for the same chronic condition because the employee has failed to maintained 1250 work hours. Documentation problems involve the USPS failing to grant an employee FMLA leave to cover an unexcused absence because management questions the completeness of documentation.

Basic FMLA Rights

Under FMLA, employees are entitled to take up to 12 weeks of leave per leave year if they have a "serious health condition" that requires inpatient care in a hospital or health care facility or "continuing treatment by a health care provider." Employees also have similar Family Medical Leave rights if they need time off to care for an ill family member or if they give birth to or adopt a child. The FMLA time off may consist of unpaid leave or a combination of paid (i.e., annual and sick) leave.

If the need for FMLA leave is "foreseeable," employees are obliged to provide USPS with a 30 day advanced notice of their expected absence. In the event of an unforeseeable absence, employees (or their representatives) are expected to give notice of their need for FMLA LEAVE "as soon as possible" based on the circumstances. In notifying the agency or requesting leave that would qualify as FMLA time off, employees are not required to specifically invoke the Act but must provide the USPS with enough information to ascertain that the absence is a serious health condition. The Postal Service, in turn, can request that an absent employee provide medical certification of the need for FMLA leave and require the employee to provide such medical documentation "in a timely manner."

Chronic Conditions

Although the union and management agree on most of issues involving FMLA one area of dispute involved the 1250 work hours for a chronic condition. Employees are generally eligible for FMLA leave once they have worked at least 12 months for the employer and if the worked at least 1,250 hours during the previous 12-month period. It was the USPS's position that with each subsequent absence involving the same chronic condition the employee had to have 1250 work hours immediately preceding the request for Family Medical Leave. The APWU took the position that once an employee with a chronic condition met the 1250 work hour eligibility criteria that subsequent absences within the leave year involving the same chronic condition would be protected. The employee would be protected even if the employee fell below 1250 hours. As an example, if an employee with a chronic condition does not meet the 1250 work hour criteria for a February absence but does so for a May absence the employee would be considered eligible. Furthermore if the same chronic condition flares up within the leave year the employee would be protected by the FMLA even if he or she did not meet the 1250-hour criteria for the subsequent absence(s). Once the new leave year began the employee would again have to meet the 1250-hour criteria.

Certification

When certification is required, the employee then has a minimum of 15 days, but no more time than is reasonable under the circumstances, to provide certification of his/her FMLA absence. The certification is to establish that leave taken is for a serious health condition and is protected by FMLA. The certification must include:

the date the condition commenced;

the probable duration of the condition;

the probable duration of the patient’s present capacity;

medical facts within the health care provider’s knowledge to support application

of a particular definition of a serious health condition to the patient’s condition;

where applicable, a statement that the employee is needed to care for a family

member and an estimate of the amount of time needed;

where applicable, a statement that the employee is unable to perform an essential function and an estimate of the amount of time needed to recuperate.

Furthermore, for certification of an over-three-day absence/incapacity plus treatment type of serious health condition, dates of treatment are required and whether a regimen of continuing treatment is prescribed. For a chronic serious health condition, the specific frequency and duration of the expected absences must be indicated.

Although any form is acceptable, it is highly recommended that our members utilize the applicable APWU form to certify their request for FMLA protection. The APWU forms encompass all the aforementioned information on a single sheet of paper.

Once the certification is submitted, it may not be rejected simply because the supervisor does not like or agree with the information provided.

[ Home ] [ Up ]

Send mail to apwu1201@bellsouth.net with questions or comments about this web site.
Last modified: July 26, 2010