The following article is a reproduction from the FMLA handbook, a practical guide for union members and stewards, by Robert M. Schwartz. It is my intention to give you, the members of local #1015 as much information as possible about Family Medical Leave as the Officers of this union have.

Dennis Antonellis
 

All private employers, including non-profit organizations, with 50 or more employees.

All public employers, including federal, state, city, and local agencies and schools.
 

You work for a covered employer

You have worked for this employer for at least 12 months or 52 weeks ( the period does not need to be consecutive)

You work at a location where 50 or more workers are employed, or where the number of workers within 75 miles is 50 or more

You may take up to 12 workweeks of unpaid FMLA leave in each 12-month period for the following reasons:

For a serious health condition that makes you unable to perform your job
(medical leave)

To care for a seriously ill child, spouse, or parent ( family leave )

For childbirth or to care for a newborn child up to age one
(childbirth leave and newborn care leave )

For the placement of a child with you for adoption or foster care
(adoption leave and foster placement leave )

Your 12 weeks of leave may be taken all at once for one of the above reasons or at different times for different reasons. Your leave may not be denied because of production needs, a busy operating schedule, or because your employer considers your job too important to take time off. Nor may your employer order you to perform light-duty work in lieu of medical leave.

FMLA leave does not have to be paid. However, if you have accrued vacation, personal, or sick leave, you may be able to use it during your FMLA absence.

Serious health conditions on-and off-the-job injuries and illnesses which incapacitate you or a family member for more than three consecutive calendar days, chronic health conditions, and pregnancy. Absences due to serious health conditions are protected even if they are as short as a day or a part of a day. For instance, if you have a chronic back condition, you might have to use one FMLA day in January, six days in March, Three days in April, two weeks in July, a half day in August, and three days in December.

You must be granted a part-time work schedule if necessary because of your own health condition or that of a family member. For example, if your doctor instructs you to work half-time following surgery, your employer is to follow this schedule for up to 24 weeks (equivalent to 12 full weeks).

FMLA leave cannot be used against you. Your employer may not use FMLA absences as a basis for imposing discipline, giving you a poor evaluation, or denying you advancement. FMLA absences cannot be counted under "no fault" attendance policies.

You must provide at least 30 days' advance notice if your need for FMLA leave is foreseeable. If your leave or absence cannot be anticipated 30 days in advance, you must give notice as soon as practicable. You are obligated to inform your employer about the reason for your leave but you do not have to mention the FMLA. Your employer can request certification from your health care provider to verify that your requested leave or unexpected absence is due to a serious health condition.

Your employer must display posters about the FMLA, include information in employee handbooks and, when you take FMLA leave, give you a notice about your specific rights and obligations. In addition, you must be notified within two days if a paid leave is to be designated as an FMLA leave.

During your FMLA leave, group health plan benefits must be maintained as if you had continued to work. If your employer has been paying 100% of your insurance premium, it must continue to pay this amount. If you pay a portion of the premium, this obligation remains.

When you return from FMLA leave, you must be restored to your former position or to an equivalent one with no loss to your seniority of benefits. A position is not equivalent unless it has virtually identical pay, benefits, and working conditions; requires substantially equivalent skills, efforts, and responsibilities; and consists of the same or substantially similar duties. Your right to reinstatement may not apply if a layoff during your leave eliminates your position or if a project you were hired for has been completed.

The FMLA is enforced by the Wage and Hour Division of the U.S. Department of Labor (DOL). You or your union can file a complaint at the DOL in person, by letter, or by telephone. Complaints must be filed within two years of the violation; three years are allowed if the violation is willful.

FMLA lawsuits- including collective actions- may be filed in federal or state court. Double damages can be awarded if you have suffered monetary losses.

You may have additional rights under your union contract, state leave law, or workers' compensation statue. If your collective bargaining agreement or state law provides greater benefits than the FMLA, the collective bargaining agreement or the state law applies.
 

Most union employees are eligible to take FMLA leave. The major exceptions are certain short term and part-time employees and employees who work at small, isolated work sites. This chapter explains FMLA eligibility standards.

You are eligible to use the FMLA if you satisfy four tests:

1. You work for a covered employer (see previous chapter).

2. You have worked for at least 12 months on the date your FMLA leave commences.

3. You have worked for this employer for at least 1,250 hours during the 12 months prior to the date your leave commences.

4. When you request leave, you are employed at a work site where 50 or more workers are employed, or where the number of workers within 75 miles is 50 or more.
 

You must work for your employer for at least 12 months or 52 weeks to take FMLA leave. The months or weeks do not have to be consecutive and all periods of employment are included. For example, if you worked 2 months in 1986, 2 months in 1994, and 8 months in 1996, you satisfy the 12 month requirement.
 

You must have at least 1,250 hours during the 12 months prior to FMLA leave. Employees who regularly work 25 or more hours per week usually satisfy this requirement -- unless layoffs or illnesses reduce their hours.

Work hours do not include vacation days or periods of workers compensation, disability, or FMLA leave. Union-business time is counted if paid by the employer but not if paid by the union.

NOTE: The 1,250 hour test must be satisfied prior to each FMLA leave. It is possible to meet the test at one point but not at another.
 

At the time you request FMLA leave, or incur an FMLA absence, the total number of workers employed at your work site must be 50 or more, or the number of workers employed by your employer within 75 miles of your work site must be 50 or more. THIS RULE APPLIES TO ALL WORKERS, INCLUDING EMPLOYEES OF PUBLIC AGENCIES. It protects employers at locations where it is difficult to cover for absent workers.

The 50 employees/75 mile test can disqualify all the workers of a covered employer. For instance, if a company employs 40 workers at each of five restaurants but each restaurant is more than 75 miles from another, none of the employees can qualify for FMLA leave.
 

    All employees on the payroll count towards the 50 employee/75 mile test. There is no minimum period of service. Employees hired through leasing companies are included in the count.

When the 50 employee/75 mile test is applied to public employers, the entire governmental body is counted. For example, a state toll-taker is eligible for FMLA leave if 49 other state employees work within 75 miles.

TIP: If your work site has slow periods, try to time your request for FMLA leave ( including a request for future intermittent leave ) for a week when 50 employees are working.
 

 
    If you work at more than one location, your FMLA work site is your base, the location from which your work is assigned, or the location to which you report.
 

When you give notice of a need for future leave or an unexpected absence for FMLA purposes, your employer must notify you if you are ineligible for FMLA leave because you lack 12 months of employment or 1,250 hours of recent service. This little known rule, Section 110(d) of the DOL regulations, alerts employees who may be under the mistaken impression that they have FMLA protection. Under the rule, if your employer fails to give you such notice, you are "deemed to be eligible" for FMLA lrave.

EXAMPLE: Horace Jones worked for a hospital for eleven months. On May 10, 1996, he notified his employer that he injured his leg in a car accident and would have to stay out of work for six weeks. His employer said nothing. When Jones returned to work, he was told that his job was gone. Jones can contest his discharge under the FMLA because the hospital failed to notify him within two days that he had insufficient months of employment to qualify for FMLA leave.
 

A small number of highly compensated employees fall into an FMLA category called "key employees." Key employees have less protection than other employees. In particulat, they can be denied reinstatement at the end of FMLA leave.

To be classified as a key employee, you must be salaried and your salary must be among the highest 10 percent paid by your employer within 75 miles of your work site. Futhermore, your employer must establish that restoring you to your employment after an FMLA leave would cause "substantial and grievous economic injury." Note that the test is not from your absence but from your reinstatement.

The key employee exception is very rare. With the possible exception of a top-echelon athlete or creative professional, it is highly unlikely that a union member will fall into this category.
 

The twelve-month period during which FMLA leave can be taken is called the leave year. The method your employer uses to define the year can affect your available leave. This chapter explains methods of determining the leave year and how to compute periods of leave.
 

DOL regulations allow employers to select one of four methods to determine the FMLA leave year. In unionized facilities, this decision is a mandatory subject of bargaining. This means your employer cannot adopt a leave year without giving the union prior notice and an opportunity to bargain.

NOTE: The same leave year must be used for an employer's entire workforce, even if the employer operates in several states and has more than one union. Coordinated bargaining may be necessary when dealing with such employers.
 

    The methods that can be used to define the leave year are:

1. The calendar year.

2. Another fixed year.

3. The twelve-month period during which FMLA leave can be t 4. THE LEAVE YEAR aken is called the leave year. The method your employer uses to define the year can affect your available leave. This chapter explains methods of determining the leave year and how to compute periods of leave.
 

    DOL regulations allow employers to select one of four methods to determine the FMLA leave year. In unionized facilities, this decision is a mandatory subject of bargaining. This means your employer cannot adopt a leave year without the union prior notice and an opportunity to bargain.

NOTE: The same leave year must be used for the employers entire workforce, even if the employer operates in several states and has more than one union. Coordinated bargaining may be necessary when dealing 12 month period measured backward from each date of first FMLA leave.

4. The 12 month period measured backward from each date an employee uses FMLA leave.

NOTE: In all cases, unused FMLA leave may not be carried over to the following leave year.
 

    The calendar year method is the easiest to use. It allows 12 weeks of FMLA leave during each calendar year. For example, in 1996, you could take four weeks of leave in January, three in March, Four in June, and one in December. On January 1, 1997, 12 more weeks will become available.

The calendar year method allows you to combine leaves over two calendar years. You could, for example, take 12-week FMLA leave at the end of one calendar year and another 12-week leave at the beginning of the next calendar year.
 

    Under fixed year methods, your leave year is designated as a particular 12-month period, such as you employer's fiscal year or the twelve month period following your anniversary date.

EXAMPLE: Nancy Lessin's employer uses a leave year based on anniversary dates. Lessin's anniversary date is June 1. Her leave year is June 1 through May 31.

Fixed year methods allow employees to combine leaves over two leave years and are relatively easy to administer.
 

    Under the measured forward method, your leave year begins on the date you take your first FMLA leave. Your next leave year begins when you take FMLA leave following completion of the current leave year.

EXAMPLE: Frank Morton has worked for Acme Tools since 1992. On September 15, 1996 he took his first FMLA leave. His FMLA leave year has now started. It will run from September 15, 1996, until September 14, 1997. His next leave year will begin the first day after September 14, 1997, that he uses FMLA leave.

The measured forward method allows employees to combine leaves over two years but to a more limited extent than fixed year methods. This is a more difficult method to administer.
 

    Under the rolling backward method, each time you need FMLA leave, your employer reviews your leave history. You will be allowed to take the balance of your remaining leave entitlement if your total time off in the previous 12 months is less than 12 weeks.

The rolling backward method prevents employees from ever taking more than 12 consecutive weeks of leave. This is the most difficult method to administer and the most confusing to employees.
 

    If your employer has not chosen a leave year method, it must apply the method that provides you with the most beneficial outcome.

EXAMPLE: Don Tang was out of work for 20 weeks because of his wife's illness. His employer had taken no steps to implement the FMLA and had not chosen a leave year. If Tang is not reinstated, he can take legal action based on his selection of a fixed year leave ending 12 weeks after his absence began. This gives him FMLA protection for his entire absence.
 
 

    The FMLA provides substantial protection if you are unable to work as a result of a serious health condition.  This chapter describes the conditions that qualify for medical leave, the right to take leave on a part-time ir intermittent basis, and the rules which apply to medical certifications.
 

    You are allowed up to 12 workweeks of consecutive or intermittent leave in a one year period as a result of a serious health condition which makes you unable to do your job.
    During your absence, your employer is required to maintain your health benefits.  When you return to work, you must be restored to your original position or to an equivalent one.
    You cannot be warned, suspended, fired, or denied overtime or advancement because of FMLA absences.  FMLA absences cannot be used as a basis for points or other penalties under the attendance policy.
 

    To qualify for FMLA medical leave, your absence must be due to a "serious health condition."  Under the DOL regulations, a serious health condition is an illness, injury, impairment, or physical or mental condition that involves one or more of the following:
    1. Inpatient hospital care (i.e., an overnight stay at a hospital or similar facility).
    2. An injury, illness, or other condition lasting more than three consecutive calendar days that involves continuing treatment by a health care provider.
    3. Pregnancy.
    4. A chronic serious health condition.
    5. A long term or permanently disabling health condition.
    6. A condition requiring multiple treatments to prevent a period of incapacity of more than three consecutive calendar days.
 

  A condition which requires an overnight stay in a hospital, hospice, or residential medical care facility is a serious health condition.  FMLA protection applies to the day or days you spend in the hospital and any subsequent absences caused by the condition including time off for medical appointments.
 

  An illness, injury, or other medical condition meets the FMLA test if it both:
    Makes you incapacitated for more than three consecutive calendar days
    Involves continuing medical treatment
    You are considered incapacitated if you are unable to perform one or more of the essential (i.e., fundamental) functions of your position.  For instance, a truck driver who cannot change tires because of a back injury is incapacitated even if he or she can drive or perform other work.
    The more than three day requirement refers to calendar days not work days.  The fourth day or part of a day does not have to be consecutive.  If you are incapacitated Friday, Saturday, Sunday, and Monday, you meet the test.  If you are out Monday, Tuesday, Wednesday, and Friday, you also meet the test.  An absence to receive medical treatment is considered a period of incapacity.      Continuing medical treatment means two or more treatments by a health care provider or treatment by a health care provider on one occasion which results in a regimen of continuing supervised treatment.
    A regimen of continuing supervised treatment includes therapy involving special equipment or a course of prescription medication.  A regimen of supervised treatment does not include instructions to take over the counter medications, drink fluids, exercise, or rest.

    EXAMPLE: Richard Monks developed a severe skin infection and could not work for one week.  He saw a dermatologist and was given a prescription for an antibiotic with instructions to call the doctor after three days.  His medical care qualifies as continuing treatment and his absence is protected by FMLA.

    NOTE: Minor illnesses do not qualify for FMLA protection– even if you are incapacitated for more than three days.  But if complications occur which necessitate hospitalization or other continuing medical treatment, a minor illness may change into a serious health condition.  Minor illnesses include: colds, routine dental or orthodontic problems, earaches, flu, headaches (other than migraine), periodontal disease, minor ulcers, upset stomachs.
 

  Pregnancy is a serious health condition.  Medical leave may be taken for any period of incapacity, including appointments for pre-natal care.  If you are late for work because of severe morning sickness or must leave early because of nausea or dizziness, you are protected against discipline.  You do not have to see a doctor or other health care provider during absences.
 

     A chronic serious health condition is one which:  continues over an extended period of time, requires periodic visits for treatment, generally causes episodic periods of incapacity.
    Any period of incapacity due to a chronic serious health condition is protected by FMLA whether you miss work for an hour, a day, a week, or longer.  You do not have to see a health care provider during each absence.  Chronic serious health conditions include: severs arthritis, asthma, back injuries requiring surgery or extensive therapy, cancer, colitis, serious depressive or stress-related disorders, diabetes, epilepsy, severe heart conditions migraine headaches, recurrent kidney stones.

    NOTE: FMLA protection applies to medical appointments which must be scheduled during the work day.  An employee with diabetes, for example, may have to leave work periodically to obtain necessary treatments.  You must attempt to schedule appointments for times which will not disrupt work unduly.
 

      Conditions causing long-term or permanent disability, including terminal illnesses, are a serious health condition even if they do not require active medical care.  There must, however, be continuing supervision by a health care provider.  (This category is primarily relevant to employees taking family leave.  See next chapter.)
 

    Some conditions, although not chronic, require multiple medical treatments to prevent a period of incapacity that would be greater than three days.  Examples include physical therapy for carpal tunnel syndrome, chemotherapy for cancer, or dialysis for kidney disease.  Time lost for these treatments comes under FMLA.  Also included in this category are multiple treatments in connection with restorative surgery after an accident or other injury.
 

    Alcoholism and drug addiction often satisfy the requirements of a chronic serious health condition.  A DOL exception, however, removes protection from employees who are absent from work as a direct result of the use of a substance, e.g. overdose, hangover, intoxication, etc.  On the other hand, treatment of a chronic substance abuse condition qualifies for FMLA protection.

    EXAMPLE: Ben Bottoms suffers from long term alcoholism.  If his doctor recommends a two- week inpatient stay at an alcohol treatment facility, his employer would have to allow his absence.  But if Bottoms misses work because of drinking, his absence would not come under the FMLA and could subject him to discipline.
 
 

    If a serious health condition incapacitates you on an occasional or sporadic basis, you may take FMLA leave intermittently, i.e., in separate blocks of time.  To cite an extreme case, an employee afflicted with chronic colitis who normally works five days a week could be absent for as many as 60 days a year for the disorder.  The employee could not be discharged, laid off or penalized in any way, even if the absences are disruptive.
    If your need for intermittent leave is foreseeable because of planned medical treatment, your employer can temporarily alter your existing position or transfer you to another position for which you are qualified that will more easily accommodate your absences.  The alternative job cannot violate your collective bargaining agreement, impose a hardship, reduce your pay, or be instituted in order to discourage you from taking leave.
 
    EXAMPLE: Josh Papir, a teacher, was scheduled for chemotherapy for six months.  His school can transfer him to a job in the office, at his regular salary, for the period of his treatments.
 
    NOTE: When your need for intermittent leave ends, you must be allowed to return to you regular job.
 

    You may take leave by means of a reduced schedule if necessitated by a serious health condition.  For instance, if you undergo a back operation, you may need a part time schedule for several weeks.  If you have a heart condition, you may have to avoid overtime.  If you are pregnant, you may need time off during the work day.
    A request for a reduced schedule, certified by a health care provider, cannot be refused even if your employer has a strict policy against part time work.  During the period of your reduced schedule, however, you can be temporarily transferred to an alternative position for which you are qualified (with the same pay rate and benefits) that better accommodates your schedule.  This transfer may not violate the union contract or impose a hardship.
    A half-time schedule can be taken up to 24 weeks (equal to 12 full weeks).  A three-quarter- time schedule can be taken up to 48 weeks.
 
 

    To qualify for FMLA leave, your condition must involve treatment or supervision by a "health care provider."  Health care providers include: Physicians, Optometrists, Osteopaths, Chiropractors (when treating the spine to correct a subluxation), Podiatrists, Dentists, Clinical psychologists, Nurse practitioners, Nurse-midwives, Christian Science practitioners, Clinical social workers, Other providers recognized by your health care plan.

    NOTE: Treatment by a nurse or physician's assistance under the direct supervision of a health care provider or a physical therapist on referral by a provider qualifies as treatment by a health care provider.
 

    Your employer can require you to submit a medical certification, signed by your health care provider, verifying that you suffer from a serious health condition and are unable to work.  The following rules apply:
    A direct request must be made to you for the certification.  A posted rule or policy is not sufficient.  The request must inform you of any penalties if you fail to obtain the certification.  In most cases, it must be made within two business days after you ask for FMLA leave or give notice of an unexpected FMLA absence.  A later request can be made if the employer has reason to question your leave or its duration.
    The certification can be in the form of a questionnaire or you may be allowed to submit a report.  The certification should give the date your condition began and its expected duration.  You are responsible if there is an expense to obtain the report.
    You must be allowed a minimum of 15 calendar days to submit the certification.  You can submit the certification beyond 15 days if your doctor fails to fill out the form despite your diligent efforts.  If the certification is incomplete, your employer must inform you and allow a reasonable amount of time for you to correct the deficiency.
    With your permission, your employer can assign a physician or other health care provider to contact your provider to clarify information in the certification.  A supervisor, company nurse, or labor relations official may not contact your provider.
    Records relating to FMLA medical certifications, recertification, or medical histories must be maintained as confidential medical records in files separate from the usual personnel files.
TIP: Do not ask your health care provider to mail the certification.  The provider may not answer all of the questions or may fail to submit it in time.  Obtain the completed report from your  provider and make a copy for your file.  Review it to make sure it certifies your disability.  If the form is incomplete, ask your provider to correct it.  Bring it to your employer or send it by certified mail.
 

    If your employer has reason to doubt your medical certification, it can require you to be examined by a second health care provider at its expense.  You must be reimbursed for any reasonable out-of-pocket costs.  The second provider may not be employed by or do regular business with your employer unless you are located in an area where access to health care is severely limited.
    If the second opinion differs from your provider's certification, your employer can require you to be examined by a third health care provider, again at the employers expense.  The third provider must be chosen jointly by you and the employer.  You must be given copies of the second and third medical opinions within two business days of your request.
    If the third provider says that you are able to do your job, or denies that you are suffering from a serious health condition, your employer can refuse your request for FMLA leave or cancel your existing leave.
 
 

Employers can ask employees to decertify medical leaves.  Recertifications are not subject to second and third opinion procedures discussed above.  If you do not provide a requested recertification, your FMLA leave can be canceled.
    Ordinarily, a recertification cannot be demanded more often than once in every 30 days.  A recertifcation can be requested earlier, however, if either of the following occur:
    Your employer receives information that casts doubt on your absence.
    There is sufficient change in your condition such as surgery, the development of complications, or a greater number of absences than predicted in the original certification.
 
    NOTE: If you have submitted a certification supporting a need for intermittent leave or a reduced schedule, and if the certification says that such leave will be needed for a particular time period, such as three months, your employer may not require a decertification within this period.  This rule does not apply if your employer receives information that casts doubt on the original certification, or if the circumstances or your medical condition change significantly.
 

    You must be allowed at least 15 calendar days to obtain a decertification, and a further period of time if your provider fails to respond to your request or is unavailable.
 

FMLA leave can be taken to care for family members with serious health conditions.  Family leave can be taken consecutively or intermittently for up to 12 weeks per year.  When you return to work, you must be restored to your original position or to an equivalent one.  This chapter discusses the definition of family members, the conditions that qualify for leave, and the type of care you must provide.
 

    The FMLA defines family members as sons, daughters, spouses, and parents.  Family members do not include in-laws, grandparents, siblings, aunts, uncles, or grandchildren unless in loco parentis relationship exists or existed (see below).  Family members do not have to live in your home.
 

 
    Sons and daughters include biological, adopted, or foster children, stepchildren, and legal wards under age 18.  Also included are children for whom you stand in loco parentis (the Latin term for "in place of a parent").  You stand in loco parentis if you provide day to day care and financial support for a child.  A biological or legal relationship is not necessary.
 
    EXAMPLE: When Nancy Bond's daughter was sent to jail, Bond assumed full care of her daughter's ten year old child, Pamela.  If Pamela becomes ill, Bond will be allowed time to stay home with her grandchild.
 
    Children 18 years or older are considered family members if they are unable to care for themselves because of a physical or mental disability.  For instance, a mother can use FMLA leave to care for an adult child who is hospitalized with AIDA.
 

    To be considered a spouse, your partner must satisfy the statuary or common-law marriage rules in the state where you live.
 

 Biological, adoptive, and foster mothers and fathers qualify as parents.  Also qualifying are individuals who stood in loco parentis to you when you where a child.
 
    EXAMPLE: Jim O'Brien's grandfather is extremely ill.  Since the age of five, O'Brien was raise by his grandparents.  O'Brien can use FMLA family leave to care for his grandfather.
 

    To qualify you for family leave, your family member must have a serious health condition.  Serious health conditions of family members are the same as serious health conditions of employees as described in chapter 5.  There are six categories.  Except for the sixth category, your family member must be incapacitated from working, attending school, or performing other regular daily activities.  The categories are the following: conditions requiring overnight hospitalization, conditions which cause more than three consecutive calendar days of incapacity and require continuing treatment by a health care provider, pregnancy, chronic serious health conditions, long-term or permanently incapacitating conditions, conditions which require multiple medical treatments to prevent incapacities that would last more than three consecutive calendar days, or in connection with restorative surgery.
    Here are some examples of circumstances which qualify you for FMLA family leave: to care for a child with pneumonia, to care for a child with chronic asthma who suffers a flare-up and must stay home from school, to take a child with a hearing impairment to therapy appointments., to care for a spouse who is unable to work because of severe depression, to care for a parent with Alzheimer's disease, to take a parent to a nursing home.
 

 
    The FMLA does not allow leave to care for children or other family members suffering from minor illnesses unless such illnesses require hospitalization or involve serious complications.  Minor illnesses include: colds, earaches, flu, headaches (other than migraines), minor ulcers, periodontal disease, routine dental or orthodontic problems, upset stomach.
 

A family member needs care if he or she is unable to provide for his or her basic medical, hygienic, nutritional, safety, or transportation needs.  Cooking meals, driving to appointments, and changing dressings qualifies as care.  Care also includes psychological comfort and reassurance that is beneficial to a family member who is receiving inpatient care or care from others at home.  Leave must be allowed even if another family member is available.
    You can be required to submit a medical certification from your family member's health care provider.  The provider must certify that your family member has a serious health condition and needs care from a third party or that your presence would be beneficial.
    After receipt of the medical certification, your employer can schedule your family member for an examination by a health care provider selected and paid for by the employer.  If this provider fails to certify either a serious health condition or a need for care, your employer can insist that a third provider be selected to "break the tie."  See chapter 5 for more discussion of medical certification procedures.
 
 

When medically necessary, family leave may be taken on an intermittent basis or by means of a reduced schedule.  For example, if to care for a family member, you need to be at home for part of every shift, you must be given a part-time work schedule.
 
    NOTE: If your need for intermittent leave or leave on a reduced schedule is foreseeable based on a family member's planned medical treatment, your employer can require you to temporarily transfer to another position that is better suited to your schedule.  The position must provide your regular pay and benefits and you must be allowed to return to your regular position when your need for leave is over.  The transfer may not violate the union contract.
 

   The FMLA guarantees time off for childbirth and to care for newborn children.  Although most union contracts and state leave laws provide maternity leave, the FMLA goes further by (1) extending rights to both parents, (2) establishing the leave period as 12 weeks, and (3) in some cases allowing additional leave in the following year.  Leave is also available to employees who adopt a child or accept placement of a foster child.
 

    Birth mothers may take FMLA childbirth leave for up to 12 consecutive workweeks after the birth of a child.  When you return from your leave, you must be reinstated to your original job or to an equivalent position.  You must take FMLA medical leave prior to giving birth if you are unable to work because of pregnancy.  The total leave allowed in one leave year is 12 weeks.
    EXAMPLE: Because of a risk of miscarriage, Sarah Deutch's physician instructed her to stop work four weeks before her due date.  Deutch may begin her FMLA leave at this time.  The weeks before the baby is born is counted as FMLA medical leave.  The weeks after birth are counted as FMLA childbirth leave.
    You are not bound to the number of weeks you initially select for childbirth leave.  For example, if you request 12 weeks but decide to return early, you must be reinstated upon two days advance notice.
 
    NOTE: Unlike medical and family leave, the FMLA does not compel an employer to allow intermittent or part-time leave for childbirth or newborn care purposes.  Consequently, if you take childbirth leave of less than 12 weeks, you cannot take a second childbirth leave or a newborn care leave during the same leave year unless your employer agrees to your request, or your union contract permits intermittent childbirth leave.  Your employer's agreement would not be required, however, if your child has a serious health condition.
 

 
    Newborn care leave is leave to care for a child under one year of age.  Under the calendar, foxed and measured forward leave year methods (see chapter 4), a birth mother can take up to 12 weeks of newborn care leave in the leave year following the one in which she took her childbirth leave.
 
    EXAMPLE: Suzanne Guertin works for an employer which bases FMLA leave on a calendar year.  Guertin gave birth on June 15, 1996, and took 10-week childbirth leave.  She returned to work on September 1, 1996.  On January 1, 1997, she will begin a new leave year.  During the next five months, she can take a newborn care leave– up to 12 weeks in duration– until June 15, 1997, when her child will be one year of age (assuming she has enough hours to satisfy the 1,250- hour test when she takes her newborn care leave).
    In some instances, newborn care leave can be taken immediately after childbirth leave.  For example, if Guertin's baby is born on October 8, 1996, she can take 12-week leave until December 31,1996.  On January 1, 1997, her next leave year starts and she can take a newborn care leave.
 

    A father may take up to 12 consecutive weeks of newborn care leave.  Newborn care leave can be taken at birth or anytime until the child is one year old.  The child does not have to be ill or in need of special care.  The mother can be home at the same time.  A father may take an additional 12 weeks of newborn care leave in the following leave year unless the employer uses the "rolling backward" leave year method.
 

 
    A limitation on childbirth, newborn care, adoption, and foster placement leave applies if a husband and wife work for the same employer.  In such cases, the employer can(but does not have to) limit the total leave for both parents to 12 weeks per year.
 

    Adoptive parents may take FMLA leave for up to 12 consecutive workweeks.  Adoption leave must be completed during the first year of placement.
    FMLA adoption leave can begin before the child is placed if you are required to attend counseling sessions, appear in court, consult with physicians or attorneys, submit to physical examinations, or take part in other activities necessary for the adoption.
 

    If a foster child is placed in your home, you may take up to 12 weeks of consecutive FMLA leave to welcome and bond with the child.  The leave must be completed during the first year of placement.
 
    NOTE: In order for you to be eligible for FMLA leave, your foster child must be place in you home by a public agency.  Accepting a child into your household without governmental involvement does not qualify you for FMLA leave.
 

    You must give your employer timely notice when you need FMLA leave.  Otherwise, a request for future leave can be delayed or an unexpected absence may be counted against you.  This chapter explains when to give notice and what to tell your employer.
 

    A foreseeable leave is one which you know you will need in the future.  Childbirth leave and newborn care leave are generally foreseeable as is time off for a planned medical procedure.
    When FMLA leave is foreseeable 30 days or more into the future, you must give at least 30 days' advance notice of the date you expect to begin your leave and its anticipated duration.
 
    EXAMPLE: Jennifer Miller's due date is October 31, 1996.  She must give her employer notice by October 1, 1996, that she plans to take childbirth leave.
 

 
    When FMLA leave is foreseeable less than 30 days ahead, you must give advance notice "as soon as practicable."  Ordinarily, this means one or two working days from the day you learn of your need for leave.  For example, if on March 15, your doctor schedules you for surgery on March 30, you must notify your employer by March 17 that you will need time off.
 

 
    Once you provide advance notice, you are protected if you have to move up or delay your leave because of unexpected circumstances.  Notice of the new date should be provided as soon as possible: generally within two days.
 

 
    If you do not give adequate notice of a foreseeable leave, your leave may be delayed for up to 30 days.
 
    NOTE: Leave cannot be delayed for lack of advance notice unless your need for leave and its approximate date was clearly foreseeable.  For example, if you are planning on a adoption but do not know when the child will be available, you cannot be held responsible for lack of 30 days' notice.  An employer is also barred from enforcing the 30-day requirement if it has failed to post an FMLA notice describing the rule.
 

 
    There are no specific words that must be used when requesting FMLA leave.  You do not have to mention the FMLA.  You must, however, explain the reasons for the needed leave so that your employer is aware that a serious health condition is involved or that your leave falls within another FMLA category.  It is sufficient, for example, to state you will need leave for cancer treatment.  But saying that you need time off for "personal reasons" is not.  If your employer asks questions, you must provide further details about your or your family member's health condition.
 
    NOTE: You are not required to tell your employer the precise diagnosis of your medical condition or that of your family member.  If you want to keep this information private, you may offer a general description.  For example, instead of telling your employer that you have cancer, you might state: "I have a serious health problem which makes me very ill and prevents me from working.  I wish to keep my diagnosis private."  FMLA certification forms cannot ask for diagnostic information.
 

 
    When FMLA leave is needed for planned medical treatment, you must try to schedule your leave so that it does not "unduly disrupt" your employer's operations.  For instance, a radio engineer who request Wednesday, Thursday and Friday off for a series of medical treatments must change the treatment schedule if the station says the dates will interfere with radio services.  If you are unable to reschedule, your leave must be allowed.
 

    When FMLA leave is unforeseeable, such as an absence due to an illness or injury, there is, of course, no obligation to provide advance notice.  Instead, you must give notice "as soon as practicable" (generally, within one or two working days) after you become aware of the serious nature of your condition or the condition of your family member.  FMLA notice can be given in person, by telephone, by telegraph, or by fax machine.  If you give notice verbally, you may want to follow up with a letter, keeping a copy in case a dispute arises.
 
    NOTE: An exception to the prompt notice rule applies if, under your employer's policies, you are entitled to paid leave benefits without a need to report the nature of your illness.  In this situation, you can gain FMLA protection if you provide notice within two business days of your return to work.
 
    EXAMPLE: Charles Howard, suffering from asthma, called in sick four days in a row.  Under his company's sick plan (six paid days per year), he did not have to describe the nature of his illness or submit a doctor's report.  When Howard returned to work, his steward advised him that his absences could be used against him under the company attendance policy unless Howard immediately informed the company that the absences were due to his serious health condition.
 

 
    When giving notice of an unexpected medical or family absence, you do not have to mention the FMLA or say you want FMLA leave.  But you must give enough information so that your employer is aware that the condition in question is a serious one.
 

 
    The following notices trigger FMLA protections:
    "My daughter has pneumonia and I must stay home to take care of her."
    "I broke my arm in a car accident and will not be able to work for a week."
    "My back condition has kicked up again and I can't get out of bed."
 
    NOTE: When an employee gives notice that he or she needs medical or family care leave, the employer has a duty to investigate to determine if the leave qualifies for FMLA protection.  An employer that does not ask about the seriousness of a reported health condition is in a weak position to argue that the employee's notice is inadequate.
 

 
    The following notices do not trigger FMLA protections because they do not suggest that a serious health condition is involved:
    "I cannot come to work today because of personal problems."
    "I am to upset to work."
    "I have to stay home because of my daughter."
                                               9. HEALTH BENEFITS
Employers must maintain group health plan benefits during FMLA leaves.  This chapter explains the scope of this obligation as well as the consequences if an employee fails to return to work.
 

    All group health benefits must be continued during your FMLA leave.  This includes existing coverage for dependants, surgical care, dental care, eye care, mental health counseling, and substance abuse treatment.
    Your employer must pay for health benefits at the same rate as if you were working.  If your employer was paying 100% of the health insurance premium, it must continue paying at this level.  If it was covering 75% of the cost, it must continue at this rate with you being responsible for 25%.
 

    Consider this example: The premium for Jim Gold's family health insurance is $400 per month.  Under his union contract, Gold's employer pays 80% ($320) and Gold pays 20% ($80).  If Gold takes a two month FMLA leave, how will his premium share be paid?
    The answer to this is simple if Gold is receiving vacation or other accrued pay.  His employer will continue to deduct health insurance from his pay check.  But if Gold's leave is unpaid, or under workers compensation, a new arrangement must be made.  This could be one of the following:
    1. Gold could mail his employer or the health insurer a premium check each week or month.
    2. Gold could pre-pay the full amount needed for his leave ($160).  This method cannot be imposed without Gold's agreement.
    3. Gold's employer could pay the full premium and Gold could pay his employer back, via payroll deductions, when the leave is over.
    4. Gold's employer could pay the full premium without requiring reimbursement.
    5. Gold and his employer could agree to another payment method.
 

 
    If you are responsible for a premium check, you must be allowed at least a 30-day grace period to submit you payment.  You employer must mail you a written notice at least 15 days before your coverage is to cease.  If you fail to pay, your health insurance can be canceled.
 
    NOTE: You can allow your health insurance to be canceled during an FMLA leave without causing a permeant loss of coverage.  When you return to work, your health benefits, including family or dependant coverages, must be fully restored, with no waiting period, examination, or exclusions.
 

    If you fail to return to work after an unpaid FMLA leave, or return and resign within 30 days, you can be held responsible for the health plan premiums your employer paid during the leave.  Repayment obligations do not apply if your failure to return is because of:
    The continuation, recurrence, or onset of a serious health condition.
    Other circumstances beyond your control.
    Retirement.
 

    Unless required by a union contract or past practice, an employer does not have to pay for life insurance and disability insurance during an FMLA leave.  When an employee returns from leave, however, all benefits must be restored.  Considering the cost of reinstating lapsed insurance, employers usually save money by maintaining insurance during FMLA leaves.
 

    The FMLA guarantees time off when a serious health condition disables an employee from performing the essential duties of his or her job.  How does this protection apply if an employer orders an employee to work in a modified or light duty position?
 

    Despite pleas from employer lobbyists, the Department of Labor has concluded that employees eligible for FMLA leave cannot be required to accept modified or light duty assignments.
According to the DOL:
    If an employee qualifies under the FMLA for job protected leave, the employee may not be forced, before the FMLA job-protected leave entitlement has expired, to return to work in a "light work" (i.e., an unequal, modified, or restructured) position, instead of continuing FMLA leave until the entitlement has been exhausted.
Accordingly, your employer violates the FMLA if it either:
    Denies you an FMLA leave on the grounds that, instead, it will modify your position or provide you with light duty work.
    Orders you to return early from FMLA leave to perform modified or light duty work.
    Employees who are eligible for FMLA leave can decline light duty offers or assignments.  You may not be disciplined for such a decision.
   
    NOTE: The right to refuse light duty ends when you use up all your FMLA leave.  At that point, unless protected by your union contract, you must accept light duty work.
 

    Employees's on workers compensation usually qualify for FMLA protection because their absences are caused by a serious health conditions.  Employees on workers' compensation can therefore refuse light duty work offers without being subject to discipline or discharge as long as they are within their 12-week FMLA entitlement.
 

 
    In some states, insurance companies are allowed to discontinue or suspend workers' compensation benefits to employees who refuse medically approved light duty job offers.  The FMLA does not prohibit this practice.  Consequently, employees in these states risk losing workers' compensation benefits if they refuse light duty work.
 

    Nothing in the FMLA prohibits an employer from offering light duty or modified work on a voluntary basis, i.e., without pressure or coercion.  If you accept a light duty job offer, you have a right to return to your original position or an equivalent position if you recover from your injury within the time span of your remaining FMLA entitlement.

    EXAMPLE: Morgan Miller injured his back and could not work as a truck driver.  After six weeks on FMLA leave, he came back on light duty as a custodian.  If Miller recovers from his injuries within the next six weeks, he must be restored to his former position or to an equivalent position.

    The biggest weakness of the FMLA is its failure to insist that medical and family leave be paid.  This contrasts with many industrialized countries, five states, and Puerto Rico where paid leave has long been the norm.  Without pay, employees are often unable to exercise their FMLA rights.
    Congress made a small move towards paid leave by including a provision making it easier for employees to use accrued vacation or personal leave during FMLA absences.  As a counterpoint, however, Congress gave employers the right to impose paid leave, even when an employee would rather take unpaid leave.  These issues are discussed in this chapter.
 

    Most workers accrue vacation leave.  Some workers earn vacation leave on a monthly basis, such as one day for each month worked.  Others earn vacation leave by working to a particular  date.
    You must be allowed to use ("substitute") accrued vacation leave during any FMLA absence without restrictions due to seniority or other factors.  An employer that normally limits vacation leave to a minimum number of days or requires advance notification cannot enforce these rules during FMLA absences.
 
    EXAMPLE: Subrata Ghoshroy missed four days of work because of his child's serious illness.  Goshroy asked to use four of his accrued vacation days.  Company rules restrict vacation to a minimum of one week at a time and require employees to submit requests six weeks in advance.  Nevertheless, Goshroy must be paid during his FMLA absence.
 
    NOTE: Vacation leave is accrued when it is both earned and available to be used.  If your employer has an enforced vacation policy that limits vacations to particular months of the year, it can refuse vacation leave for FMLA absences that do not fall within these months.
 

    Accrued personal or annual leave is treated in the same manner as vacation leave.  You may use it during any FMLA absence.
 

    Sick leave is treated differently than vacation and personal leave.  You may only use it for an absence that qualifies under your employer's sick or disability leave plan.  Usually, this means that sick leave cannot be claimed when you are caring for a family member.
 

    You may use accrued family leave during any FMLA leave which qualifies under your employer's family leave plan.
 

    When an employee goes on paid leave for a reason which qualifies as FMLA leave, an employer can designate the absence under the FMLA.  This rule applies to absences taken under workers' compensation, disability, sick, or other paid leave plans.  If the designation is provided in a timely manner, the employer can deduct the leave from the employees's 12-week FMLA entitlement.
 

    Responding to industry demands, Congress gave employers the right, unless barred by a union contract, to substitute paid leave– whether or not requested– for otherwise unpaid leave.  The following rules apply:
    Employees must be informed within two days of giving FMLA notice that paid leave will be imposed.
    Accrued vacation and personal leave may be substituted for any unpaid FMLA leave.  For example, an employee taking two weeks' leave to take care of a family member can be required to use up to two weeks of his or her accrued vacation leave.
    Sick or family leave may only be imposed on FMLA leaves which meet the requirements of the employer's sick or family leave plan.
    Vacation, personal, family, or sick leave cannot be impose on employees receiving workers' compensation.
    If an employer has an established period outside of which vacations are not permitted, vacation leave cannot be imposed on an FMLA absence that falls outside the period.
 

    When you return from FMLA leave, you must be restored to your original position or to an equivalent one.  This chapter discusses equivalent work, fitness for duty reports, and the effect of layoff on FMLA rights.
 

    Restoration to your original position is the first option under the FMLA.  Your employer can accomplish this by holding your position open or by filling it on a temporary basis during your leave.  When you return to work, your wages, benefits, and seniority must be fully restored.  In addition, you must receive any unconditional pay increases awarded during your absence.
 
 

    The FMLA allows a limited right to assign employees to new positions on return from FMLA leave.  The new position must be equivalent to your original position and must not conflict with your contract rights.  Equivalence is a very stringent standard.  The must fully satisfy each of the following tests.
    1. Pay, benefits, working conditions, privileges, and status must be virtually identical to your original position.
    2. Skills, efforts, responsibility, and authority must be substantially equivalent.
    3. Duties and responsibilities must be the same or substantially similar.
    These tests make it very difficult to assign an employee returning from FMLA leave to a new position.  For example, an employer cannot:
    Assign a city truck driver to a rural route (different working conditions)
    Assign an employee to a position that has less overtime opportunities (different pay)
    Assign an employee to a different work location or shift (different working conditions)
    Assign a drill press operator to work in the shipping department (different duties)
    Assign a secretary working for one attorney to a position working for two attorneys (different efforts)
    Assign a union employee to a non-union position (different benefits and privileges)
 
 

    If you take FMLA leave because of a serious medical condition, you can be directed to obtain a fitness for duty report before returning to work.  The following rules apply:
    Your employer cannot be selective in making the request.  There must be a uniformly applied policy or practice that requires all similarly situated employees (e.g. all factory employees, all truck drivers, all employees absent for more than five days, etc.) To obtain fitness reports prior to returning from medical leave.
    You must be notified that you will need a fitness report at the time your request for leave is submitted or immediately after your notice of a medical absence.  If your employer fails to give you proper notice, it cannot refuse to reinstate you because you lack a fitness report.
    You must be allowed to obtain your report from your own health care provider.  The report need only be a simple statement that you are able to return to work.
    If your fitness report certifies that you can perform your duties, it must be accepted by your employer.  Reinstatement cannot be conditioned on examination by a second or third provider.
    Your employer can assign a health care provider (not a supervisor or manager) to contact your provider, with your permission, to obtain clarification of your fitness report.  Clarification may only be requested for the health condition that you took FMLA leave for.  Your return cannot be delayed while contact with your health care provider is being made.
    If you return to work without a requested fitness report, your return can be delayed until you submit the report.

    NOTE: Employees returning from childbirth, newborn care, adoption, foster placement, or family care cannot be required to submit a fitness for duty report.  Nor can fitness reports be required of employees absent for medical reasons on an intermittent basis.
 

    Do you have an FMLA right to return to work if, during your leave, a layoff or closing is instituted that eliminates your position?  The answer is no.  The FMLA does not put you in a better position than had you not taken the leave.  If your position is eliminated for reasons that are unrelated to your leave, your FMLA rights are extinguished.  Your employer, however, must be able to establish that you would have lost your position during the period of leave, even if you had remained at work.
 
 

    An employee returning from FMLA leave may not be deprived of any benefits, privileges, or conditions of employment enjoyed prior to the leave.  Nor may an employee be discriminated against for taking FMLA leave.  For example, your employer may not:
    Reduce your overtime opportunities because you have taken FMLA leave.
    Deny you a non-FMLA leave, for example, a union or educational leave, because you have taken FMLA leave.
    Change or delay your vacation schedule because you have taken FMLA leave (unless you have used up your vacation allowance)
    Order you to work extra hours to make up for FMLA leave
 

    Employees who take FMLA leave do not lose their eligibility for bonuses they had previously qualified for, including attendance and safety bonuses.
    EXAMPLE: Louise Sardillo was absent for three days in 1995 to care for her ailing mother.  Her company pays a $200 bonus for employees who achieve perfect attendance.  Sardillo is entitled to the bonus because all of her absences come under FMLA.

    NOTE: Bonuses based on performance, such as sales bonuses, do not have to be paid if output is diminished because of FMLA absences.
 

    The FMLA imposes a series of notification duties on employers.  Few employers follow all the rules.  In some cases, an employer's failure to provide notice can extend an employee's leave rights.
 
 

    Employers covered by FMLA have five major notification duties. They must:
    1. Display FMLA posters.
    2. Describe the FMLA in employee handbooks or benefit documents.
    3. Notify employees who are ineligible for FMLA leave.
    4. Notify eligible employees, in writing, of specific FMLA rights and responsibilities.
    5. Notify employees, in writing, whenever paid leave is designated as FMLA leave.
    NOTE: These rules apply even if different or lesser requirements are set out in the collective bargaining agreement.
 

    All covered employers must post a notice advising employees of their right to job-protected FMLA leave and the procedures for filing charges at the U.S. Department of Labor (DOL).  The wage and Hour Division has prepared a model poster for this purpose.  The poster must be displayed in conspicuous places at each work site.
 

 
    If a significant portion of the workforce cannot read English, an employer must translate its FMLA poster into the appropriate language or languages.  For instance, if 15% of the employees only read Spanish and 10% read only Chinese, notices must be posted in these languages.  A Spanish-language poster is available from the DOL.
 
    NOTE: An employee cannot be denied FMLA leave for failing to provide advance notice if an employer has not posted an FMLA notice.
 

    Employers which have FMLA-eligible employees must describe the FMLA in handbooks or other benefit documents.  DO< materials are available as guides for this purpose.
    If your employer does not have a handbook or other benefit document, it must describe the FMLA when it gives Section 301 notice to employees taking FMLA leave.
 

    As discussed in Chapter 3, you are not eligible for FMLA leave if you have been employed for less than 12 months or have worked less than 1,250 hours within the previous 12 months.  Section 110(d) of the DOL regulations requires employers to notify employees when they are ineligible for FMLA leave.
 

 
    If you are ineligible at the time you request future FMLA leave, your employer must either:
    1. Approve your leave based on an estimation that you will be eligible on the day your leave will start.
    2. Notify you that you need additional months, weeks, or hours of employment in order to be eligible for FMLA leave.
    If you employer fails to advise you in either manner before the date your requested leave is to begin, you are "deemed eligible" to take protected FMLA leave, even though you may still lack 12 months employment or 1,250 hours of service.
 

 
    If you lack 12 months of employment or 1,250 hours of service when you inform your employer of an unexpected absence for FMLA reasons, your employer must advise you within two business days that you are ineligible for FMLA leave.  Without such notice, your absence is protected by FMLA.

    EXAMPLE: Maria Diaz worked for a hotel for 10 months.  On June 12, 1996, she was in a motor vehicle accident and broke her leg.  She notified the hotel the same day.  The hotel must inform Diaz by June 14 that she lacks eligibility for FMLA leave.  If the hotel fails to advise her, Diaz's absence will be protected by the FMLA and cannot be used for discipline or a refusal to reinstate her.
 

    If you are FMLA-eligible when you request FMLA leave or provide notice of an unexpected FMLA absence, your employer must give or mail you a written notice designating or provisionally designating your leave under the FMLA and detailing your specific rights and obligations.  As this notice is required by Section 301 of the DOL regulations, it is referred to as "Section 301 notice."  The Section 301 notice must be in a language in which you are literate.  It must include information about the following matters, as appropriate.
    1. Whether your absence will be applied to your annual FMLA leave entitlement (i.e., whether your absence is designated as FMLA leave).
    2. Whether you must submit a medical certification, as well as the consequences of failing to do so.
    3. Your right to substitute paid leave, whether your employer will require substitution of paid leave, and any conditions related to substitution (see Chapter 11).
    4. Any requirement that you make payments to maintain your health benefits, the arrangements for making such payments, and the possible consequences if you do not make such payments in a timely manner (see Chapter 9).
    5. Any requirement that you present a fitness report before you can return to your job and the consequences of failing to do so.
    6. Whether you are considered to be a "key employee" and, if so, the consequences that job restoration may be denied to you following your FMLA leave, as well as the conditions required for such a denial.
    7. Your right to reinstatement to the same or equivalent job upon return from leave.
    8. Your potential liability for health insurance premiums paid by your employer during your FMLA leave if you fail to return to work (see Chapter 9).
 

 
    Section 301 notice must be provided within 2 business days (unless there are extenuating circumstances) of your request for future FMLA leave or your notice if an unexpected FMLA absence.  A Section 301 notice does not have to be supplied again for six months, if the specific information in the original notice applies to a subsequent leave.  After six months, your employer must issue a Section 301 notice when you next take FMLA leave.
 
    EXAMPLE: James Daly was in a car accident on June 14, 1996.  He notified his employer on June 15 that he would be out of work for one week.  This is the first time that Daly has needed FMLA leave.
       His employer must mail Daly a Section 301 notice by June 17, 1996. If Daly has any other FMLA absences over the next six months, his employer need only give him a written paid-leave notice, if applicable, and a written or verbal reminder if a medical certification or fitness for duty is required.
       After December 14, 1996, a new sis month period begins and a Section 301 notice must be provided the next time Daly takes FMLA leave.
 

 
    If your employer does not provide a Section 301 notice, it cannot penalize you, disallow your leave, or deny you reinstatement for any failure on your part to comply with the obligations that the employer was required to describe in the notice, such as a submission of a medical certification or a fitness for duty report.
 
    EXAMPLE: Lee Smith works for Crown Floor Company.  Crown's FMLA policy requires employees to submit a medical certification within 15 days of any FMLA absence.  Smith had to stay out of work because of his wife's serious illness.  Crown did not send Smith a Section 301 notice. Smith cannot be penalized for failing to submit a medical certification because his employer violated the notice rule.
    Moreover, an employer which fails to properly designate a paid or unpaid leave as an FMLA leave cannot count the leave period against an employee's 12-week FMLA entitlement.
 

 
    If your employer is not sure that your absence qualifies under the FMLA, it can issue a Section 301 notice with a provisional designation of FMLA leave and request further information or a medical certification.  If this information confirms that the leave is for an FMLA reason, the provisional designation becomes final.
 

 
    After a Section 301 notice is issued, if a further FMLA absence occurs in the next six months, your employer is required to notify you, verbally or in writing, of any medical certification or fitness report requirements.  Verbal notification is allowed if the initial Section 301 notice and an employee handbook or other benefits document clearly state that a medical certification or a fitness report will be required under the circumstances of your leave.

    EXAMPLE : Apex Company publishes its FMLA policy in an employee handbook.  The policy says that medical certifications are required in all cases of employee medical or family care leaves.  This rule is also included in the Section 301 notice given employees on their initial FMLA absence in each six month period.  Nevertheless, each time an employee gives notice of further FMLA leave, the company must provide at least a verbal reminder of the necessity to submit a medical certification.
    An employer which fails to properly remind employees of the need to submit a medical certification or fitness report cannot deny a leave or delay reinstatement if an employee does not submit such documents.
 

    Section 208 of the DOL regulations allows employers to designate a paid leave as an FMLA leave if the leave qualifies under the FMLA.  In other words, if you take sick leave, vacation leave, or workers' compensation leave because of a serious health condition, your employer can count your absence as FMLA leave and deduct the days from your 12-week FMLA entitlement.
    Paid leave designations must be provided within 2 business days, unless there are extenuating circumstances, of the day you give FMLA notice.  If this is your first FMLA absence in six months, the paid leave designation must be included in the Section 301 notice discussed above.
    If this is your second or further FMLA absence within six months, the Section 208 notice may initially be given verbally.  In that case, however, the notice must be confirmed in writing no later than your next payday.  This is not the case if the payday is less than one week after the verbal notice, in which case the written notice can be provided by the subsequent payday.  The confirmation can be in any form including a notation on your pay stub that your absence has been designated FMLA leave.
 

 
    If your employer knows you are taking paid leave for an FMLA reason, but fails to designate it within two business days, any future designation is effective only as of the date you are notified.  In such circumstances, the absences preceding the designation are protected by the FMLA but may not be deducted from your 12-week FMLA entitlement.  If none of your paid leave is designated, the entire leave is protected by the FMLA even if it extends beyond 12 weeks.
 

 
    If your employer knows that you are taking paid leave for an FMLA reason, but fails to designate it within two days, any future designation is effective only as of the date you are notified.  In such circumstances, the absences preceding the designation are protected by the FMLA but may not be deducted from your 12-week FMLA entitlement.  If none of your paid leave is designated, the entire leave is protected by the FMLA even if it extends beyond the 12 weeks.
 
    EXAMPLE: Alda Melo was injured on the job and collected workers' compensation for five months.  Because her employer did not send her an FMLA designation notice, her entire absence is protected by the FMLA.  If Melo returns to work, she must be given her original position or an equivalent position.  She will still have 12 weeks of FMLA leave in her account.
 

 
    If you take paid leave without informing your employer of the FMLA reason and your employer discovers the reason when you return to work, your employer can retroactively designate the entire absence as FMLA leave if it notifies you of this decision within two business days of your return.
 

    If you are disciplined because of FMLA absences, denied leave or reinstatement, refuse benefits, or harmed by any other FMLA violation, you can take legal action against your employer.
    This chapter explains how to file complaints at the U.S. Department of Labor (DOL) as well as how to file lawsuits in court.  Chapter 15 discusses using the union grievance system.
 

    You (or your union) may file a FMLA complaint with the DOL Wage and Hour Division.  FMLA complaints can be filed in person, by mail, or by telephone.  There is no official complaint form.  Complaints must be filed within two years of the violation; three years are allowed if the violation is willful.
 

 
    A group complaint can be filed when many employees are affected.  The DOL will want to interview employees who have been harmed.
 

 
    After taking down your complaint, a DOL investigator will call your employer to get its side of the story.  If the investigator concludes that your rights have been violated, he or she will try to persuade the employer to restore your position, allow your leave, etc.  The DOL cannot order an employer to comply with the FMLA but it can threaten to sue in court.  This, plus the moral authority of the Federal Government, often gets results.
    If your employer refuses to comply, the DOL can bring suit.  But because it has a severe shortage of legal resources, the DOL is more likely to suggest that you retain private counsel and file your own lawsuit.
 

 
    An employer may not penalize an employee who files a DOL complaint, sues in court, provides information, or testifies in FMLA legal proceedings.  Employees who are retaliated against have strong grounds for double damages.
 

    An FMLA lawsuit can be filed by an employee or group of employees.  Unlike some labor laws, you do not have to file an agency complaint before going to court.  The lawsuit must be filed within two years of the violation; three years are allowed if the violation is willful.
 
    NOTE: Filing a complaint with the DOL does not "toll" (delay) the period to file an FMLA lawsuit.  If a violation is close to two years old, you should sue in court to avoid statue of limitation difficulties.
 

 
    Try to locate an attorney who is familiar with the FMLA.  In some areas of the country this may prove difficult.  Most attorneys ask for a retainer or payment by the hour.  You may be able to find an attorney who will take the case on contingent  fee basis or in the hope of a court-awarded attorney's fee.  A list of employee-side attorneys in each state can be obtained from the National Employment Lawyers Association (NELA).