FMLA
The Family and Medical Leave Act
The Family and Medical Leave Act (FMLA) guarantees eligible letter carriers up to 12 weeks of leave each postal leave year, for:
- A new child in the family—by birth, by adoption or by placement in foster care;
- Caring for a family member with a serious health condition;
- The employee's own serious health condition that prevents him or her from performing the job, or
- Qualifying exigencies arising out of the fact that employee’s family member is on or has been notified of “covered active duty” in the Armed Forces.
The FMLA also guarantees eligible letter carriers up to 26 weeks of leave in a single 12-month period to care for a “covered servicemember” with a “serious injury or illness” if that servicemember is their spouse, son, daughter, parent, or next of kin.
The FMLA guarantees time off, whether paid or unpaid. The type of leave taken depends on the reasons for the leave, an employee's earnings and the usual postal leave regulations. There are eligibility criteria, medical certification guidelines and other detailed rules governing letter carrier rights to FMLA leave.
This page links to useful NALC materials, federal regulations and information on the Web about the FMLA.
Changes to FMLA regulations
In November 2008 the Department of Labor (DOL) published its Final Rule to implement the first-ever amendments to the Family Medical Leave Act (FMLA). The amendments come from the National Defense Authorization Act (NDAA) of 2008 and provide new military family leave entitlements. The Final Rule also substantially revised many other parts of the implementing regulations of the FMLA for the first time since 1995. The Final Rule became effective on January 16, 2009 just four days before President Bush left office.
While the new regulations provide important new entitlements to protected leave for letter carriers who have family members who serve in the Armed Forces, they also impose new burdens on employees who need leave for serious health conditions that make it harder for them to use the leave. For example, the Final Rule has clarified the definition of “serious health condition” in cases involving continuing treatment. Prior to the change, a serious health condition could involve incapacity of more than three consecutive calendar days plus “two visits to a health care provider” or one visit which resulted in a regime of continuing treatment under the health care provider’s supervision. The new rule changes that requirement to more than three full consecutive calendar days. Partial days no longer count. Also under the new rules, the two visits must now occur within 30 days of the beginning of the incapacity and the first visit must take place within seven days of the first day of incapacity. Notably, the health care provider – not the employee – must determine if the second visit within the 30 days is required. Under the previous rules there was neither a 30 day nor a 7 day requirement. Finally, the Final Rule has defined “periodic visits” for chronic serious health conditions as at least two visits to a health care provider per year. There was no two visit requirement prior to the change.
In addition to the above, under the previous regulations an employee did not have to assert his or her rights under the FMLA or even mention it by name when seeking leave for a FMLA-qualifying reason. Under the Final Rule, this applies only to when an employee seeks leave for the first time for the FMLA qualifying reason. Once FMLA leave has been granted for an employee’s health condition, the employee, in making future requests for leave, must specifically reference either the qualifying reason or the need for FMLA leave.
Update:
Congress expands military family leave
Congress has amended the FMLA again in the National Defense Authorization Act (NDAA) of 2010 to expand the coverage of both military caregiver leave and qualifying exigency leave. On February 15, 2012, the DOL published a Notice of Proposed Rulemaking in the Federal Register to incorporate the changes mandated by the amendment.
DOL clarifies the definition of “son and daughter”
On June 22, 2010, the DOL in an Administrator’s Interpretation clarified the definition of "son and daughter" under the Family and Medical Leave Act to ensure that an employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship:
“It is the Administrator’s interpretation that the regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis to a child. For example, where an employee provides day-to-day care for his or her unmarried partner’s child (with whom there is no legal or biological relationship) but does not financially support the child, the employee could be considered to stand in loco parentis to the child and therefore be entitled to FMLA leave to care for the child if the child had a serious health condition… Similarly, an employee who will share equally in the raising of an adopted child with a same sex partner, but who does not have a legal relationship with the child, would be entitled to leave to bond with the child following placement, or to care for the child if the child had a serious health condition, because the employee stands in loco parentis to the child.”
According to Secretary of Labor Hilda L. Solis, "No one who loves and nurtures a child day-in and day-out should be unable to care for that child when he or she falls ill. No one who steps in to parent a child when that child's biological parents are absent or incapacitated should be denied leave by an employer because he or she is not the legal guardian. No one who intends to raise a child should be denied the opportunity to be present when that child is born simply because the state or an employer fails to recognize his or her relationship with the biological parent.” Click here to read the Administrator’s Interpretation from the DOL website.
For further information on the changes to FMLA see the Contract Talk article in the April 2009 Postal Record.
The USPS has revised the ELM to require employees to exclusively use the FMLA forms developed by the Department of Labor (DOL). The NALC has challenged this determination. Until the dispute is resolved, letter carriers should use the DOL forms provided by the USPS. Below are links to the forms at the DOL FMLA homepage:
The USPS has centralized its FMLA Coordinator position at Shared Services. Attached is a list of addresses and fax numbers by USPS Area where letter carriers should send their certification forms.
If you have issues or questions regarding the FMLA please contact your National Business Agent for assistance.
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