Bargaining for FMLA
The Family and Medical Leave Act is unique in that it creates a floor of family and medical leave benefits for eligible workers, but not a ceiling. Benefits beyond those provided by law can be negotiated in the collective bargaining agreement (CBA). In addition, the FMLA regulations emphasize that employees must receive the benefit of the most favorable provisions of the FMLA or any applicable state law. For example, section 825.701(a)(3) states:
If state law provides six weeks of leave, which may include leave to care for a seriously-ill grandparent or a “spouse equivalent,” and leave was used for that purpose, the employee is still entitled to 12 weeks of FMLA leave, as the leave used was provided for a purpose not covered by FMLA. If FMLA leave is used first for a purpose also provided under state law, and state leave has thereby been exhausted, the employer would not be required to provide additional leave to care for the grandparent or “spouse equivalent.”
Also, if the CBA gives the employee six weeks of paid maternity/paternity leave and the FMLA gives the employee 12 weeks of unpaid leave, the employee would be entitled to six weeks of paid maternity/paternity leave and another six weeks of unpaid family leave. Since the benefits are not cumulative, unless the employer agrees, the employee would not be entitled to a combined total of 18 weeks of leave. However, it could be negotiated to make these benefits cumulative.
When preparing to negotiate FMLA provisions, it would be good to first:
- Determine if the employer is covered by the FMLA.
- Determine if the bargaining unit members are eligible for FMLA leave.
- Compare the benefits available under FMLA with those in your CBA. Identify benefits under the FMLA that are not covered by the CBA and identify provisions under the CBA that exceed those of the FMLA.
- Determine if there are problems with the current application of the FMLA and if there is justification for any proposed changes.
- Go through the same process with any applicable state law and/or employer policy.
There are several areas where affiliates can bargain for improvements in the FMLA or state laws.
1. Enforce the FMLA through the CBA.
If you incorporate the provisions of the FMLA into your CBA, you will be able to enforce those entitlements through the grievance and arbitration process. This will provide your members with a much quicker and more efficient remedy when their FMLA rights have been violated.
Any violation either of the FMLA or of any state laws, or their respective implementing regulations relating to family and medical leave, shall be subject to the grievance and arbitration provisions of this Agreement. Any remedies provided for in federal and state laws as well as remedies provided for under this Agreement shall be applicable for any violations of these laws.
2. Expand FMLA coverage.
If your employer is not covered by the FMLA or might not be covered in the future, you may want to negotiate an agreement wherein the employer will abide by the FMLA regardless of whether they are covered by the terms of that statute. In addition, you may want to negotiate to eliminate or lessen FMLA eligibility requirements.
Notwithstanding the provisions of the FMLA, the employer agrees to apply provisions of that Act to all employees in the bargaining unit regardless of whether they meet the eligibility requirements contained in FMLA.
3. Broaden the definition of “family member.”
The FMLA limits family member to spouse, child and parents. You may want to negotiate a broader definition of family member to include grandparents, grandchildren, siblings, parents-in-law and domestic partners.
In addition to family members as defined by the FMLA, employees shall be permitted up to 12 weeks unpaid leave per year to care for the following relatives suffering from serious health conditions: grandparents, grandchildren, brothers, sisters, parents-in-law or domestic partner.
4. Increase the amount of leave that an employee is permitted to take under the FMLA.
The 12 weeks of unpaid leave under the FMLA often is not enough time for employees to deal with some family or medical situations. The length of FMLA leave can be increased through collective bargaining.
In addition to the 12 weeks of unpaid leave that an employee is entitled to under FMLA, each eligible employee shall receive an additional ___ weeks of unpaid leave, or paid leave if available, in any 12-month period which shall be subject to all of the rights, obligations and conditions contained in FMLA.
5. Choose the most favorable method for defining the FMLA leave year.
The FMLA leave year is the 12-month period during which employees may take their 12 weeks of FMLA leave. DOL regulations allow four possible methods for defining the leave year. They are the calendar year; the anniversary date of hire; 12 months commencing on the date the employee first takes FMLA leave; or 12 months measured backwards from the initial day of each leave period. All except the last method are good choices for the members because they are easy to apply and they allow members to combine leave over two years.
The leave year for FMLA purposes shall be the calendar year beginning January 1 and ending December 31 [or the anniversary date of hire; or the 12 months commencing with the date the employee first takes FMLA leave].
6. Negotiate for leave banks that could be used in conjunction with the FMLA.
Many unions have negotiated leave banks. Eligibility requirements can easily be revised to include a member who takes leave under FMLA and who has exhausted his or her entitlement to paid leave.
Each employee who volunteers to participate in a sick leave bank may do so by donating a minimum of one day and up to a maximum of five days each year into the leave bank. An employee who has exhausted his or her entitlement to paid leave under the Agreement and who is taking leave under FMLA, may apply to the bank to withdraw up to 20 days per year of paid leave. The paid leave will be substituted for any unpaid FMLA leave to which the employee is entitled.
The union shall establish a committee that shall administer the leave bank. The committee shall determine employee eligibility and the amount of leave they will be allowed to withdraw.
7. Make a portion of unpaid FMLA leave paid leave.
The major reason eligible employees do not take family or medical leave is that they cannot afford to do so. A survey commissioned by the U.S. Department of Labor in 2000 found that more than one-third of leave takers received no pay during their longest leave and nearly two out of every five leave takers had to cut their leave short due to lost pay. In fact, 78 percent of employees who have needed but not taken family or medical leave say they could not afford to take the leave.
Following the birth of a child, bargaining unit employees with one or more years of service (or more liberal: who have completed six continuous months of service) will be eligible for four weeks paid maternity leave.
An employee whose wife gives birth shall be granted two weeks paid paternity leave for the care of the employee’s wife and family.
8. If the employer provides Temporary Disability Insurance (TDI), expand the language to include family and medical leave. If the employer does not offer TDI, you may want to negotiate for it.
TDI provides partial wage replacement to employees who are temporarily disabled for non-work related reasons including pregnancy and other serious health conditions. Many workers cannot afford to take unpaid FMLA leave and may not have the accrued paid leave to cover the time off they need. If the employer provides a TDI plan, it can be used to provide pay during FMLA leave. However, under FMLA, disability leave can be charged against the employee’s 12 weeks of FMLA leave if the reason for that leave meets the definition of a serious health condition. Thus, you would want to ensure that you also negotiate to increase the amount of leave an employee is permitted to take (see Bargaining #4).
The temporary disability insurance plan benefits shall extend to employees who take leave for their own illness, the birth or adoption of a child or to care for a seriously ill family member.
If your employer does not offer TDI, you may want to negotiate for such a plan. The employer, employee or both, may pay for a TDI plan; it may be part of a state-run program, self-insurance plan or private insurance plan. Consult your local or council union experts on the best plan to negotiate.
9. Negotiate a sick leave policy that would allow employees to use their sick leave for family members.
Some employers restrict the use of sick leave to the employee’s own illness. Therefore, when an employee has to take FMLA leave for a family member, they are unable to use sick leave under this policy and must exhaust all of their vacation or personal leave time. The contract can allow employees to use accrued sick leave when caring for ill family members.
Employees shall be allowed to use accrued sick leave during any absence in which the employee is caring for a family member who has a serious health condition as defined in the FMLA.
10. Liberalize the rules on substituting accrued paid leave for unpaid FMLA leave.
Employers can require employees to substitute accrued leave for unpaid FMLA leave, even if the employee would prefer to take unpaid leave. You may want to negotiate a policy that would limit the employer’s rights in several ways:
- Restrict the employer’s right to require employees to substitute • accrued paid leave for unpaid FMLA leave.
- Expand the types of accrued paid leave that can be substituted • for certain types of unpaid FMLA leave or permit unrestricted substitution of paid leave for unpaid FMLA leave.
- Permit employees to borrow from their future entitlement to paid • leave and to substitute that paid leave for FMLA leave.
- Notwithstanding the provisions of the FMLA, the employer shall not require an employee to substitute any paid leave earned under this Agreement for unpaid leave taken under FMLA without the consent of the employee.
- Notwithstanding the provisions of the FMLA, an employee taking leave to which he or she is entitled under FMLA may substitute, at the employee’s discretion, any paid leave earned under this Agreement for any unpaid FMLA leave taken by the employee.
- In addition, an employee taking leave to which he/she is entitled under the FMLA may use unearned paid leave up to an amount that the employee would earn in the following 12 months and may substitute that paid leave for any unpaid FMLA taken by the employee.
11. Continue all benefits during the FMLA leave period.
Under FMLA, employers must continue to provide health benefits on the same basis as before the leave, but they are not obligated to provide any other benefits if they do not normally continue these benefits during leaves of absence.
During FMLA leave, the employer shall continue to pay its share of all insurance benefit programs in which the employee participates.
12. Require the employer to assist employees to pay premiums for group health coverage.
Under FMLA, employers are not obligated to help an employee who cannot afford to pay his or her share of health insurance premiums.
The employer shall defer payment of the employee’s share of the cost of his or her health benefits until the employee’s return to pay status. At that time, the employer shall deduct from the employee’s paycheck one-twelfth of the total amount owed in each of the successive 12 pay periods.
13. Require that employees accrue seniority during periods of FMLA leave.
Under FMLA, employers are not required to count unpaid leave time towards seniority. The contract can insist on this benefit.
Notwithstanding the provisions of FMLA, an employee who takes FMLA leave to which he or she is entitled shall accrue seniority for all purposes during the FMLA leave period.
14. Expand the reasons for which FMLA leave may be taken.
The FMLA does not provide job-protected leave for families that need to protect themselves from domestic violence. Victims require time away from work to go to court to obtain protection orders against their batterers, to seek medical treatment and/or seek new living arrangements and child care.
Employees who are suffering from domestic violence may take FMLA leave for legal and other activities related to the violence.
15. Permit intermittent and reduced leave schedule to be taken for FMLA.
Many new parents want to work part time after children are born or adopted. The FMLA permits employers to refuse permission for intermittent or reduced schedule childbirth and newborn care leave. However, this provision is negotiable.
Notwithstanding the provisions of FMLA, an employee taking FMLA leave for childbirth, newborn care, adoption or foster placement leave shall be allowed to voluntarily take FMLA leave on an intermittent or reduced schedule basis.
16. Expand the definition of a serious health condition.
The definition of a serious health condition under the FMLA does not include medical emergencies that do not require in-patient care or require that the employee or family member be away from his or her daily activities for more than three calendar days.
In addition to the reasons set forth in the FMLA, an employee may also take FMLA leave because of the employee’s own medical emergency or that of a family member who has suffered a medical emergency, even though the medical emergency may not require in-patient care or require that the employee or family member be away from his/her daily activities for more than three calendar days.
17. Permit a husband and wife who are employed by the same employer to take their full entitlement of 12 weeks of FMLA leave as long as the reason for the leave is for legitimate FMLA purposes.
If a husband and wife both work for the same employer, your employer may limit your combined leave to 12 weeks during a 12-month period if leave is taken for child birth, the adoption of a child or to care for a sick parent.
Notwithstanding the provisions of the FMLA, employees who are married to each other or are domestic partners will each be entitled to the 12-week maximum amount of leave under the Act as long as the reason for the leave is for legitimate FMLA purposes.
18. Limit the right of the employer to transfer employees on intermittent or reduced leave schedules to other jobs.
Notwithstanding the provisions of the FMLA, the employer shall not transfer an employee taking FMLA leave for planned medical treatment on an intermittent or reduced schedule basis to another position during the period of that FMLA leave without the consent of the union.
19. Reduce the notice period for requesting FMLA leave.
Notwithstanding the provisions of the FMLA, an employee who intends to take unpaid leave should give the employer notice of his or her intention 15 calendar days before the leave is to commence. Where the need for the leave is not foreseeable, the employee should give the employer notice as soon as practicable after the employee learns of the need for leave. Nothing in this provision shall apply to a request for paid leave under this Agreement regardless of whether the paid leave might also qualify as FMLA leave.
20. Limit requirement for fitness-for-duty certifications to extended absences.
Employees returning from FMLA medical leave of four weeks or longer may be required to submit a fitness-for-
duty certification from their health care provider.
21. Limit the effect on other employees of reinstating employees returning from FMLA leave.
Although the FMLA regulations have very favorable language on what is an “equivalent position,” the reinstatement of an employee to an equivalent position, which is different than the employee’s previous position, may impact on the job positions, hours of work, etc., of other bargaining unit members. Therefore, you may want to negotiate over the impact a reinstatement will have on other bargaining unit members.
Notwithstanding the provisions of the FMLA, the reinstatement of an employee returning from FMLA leave shall not displace any other bargaining unit employee or limit another employee’s hours of work, except as agreed to by the union. Nothing in this provision shall diminish in any way the obligation of the employer under the FMLA to reinstate an employee returning from FMLA leave to the same position that the employee held prior to taking FMLA leave or to an equivalent position.