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JOINT APWU & USPS
FAMILY & MEDICAL LEAVE
ACT
QUESTIONS & ANSWERS
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The American Postal Workers Union
(APWU) and the United States Postal Service (USPS) have worked jointly to
produce answers to the most frequently asked Family and Medical Leave Act
(FMLA) questions. The parties agree that referral to these questions
and answers should eliminate disputes concerning basic FMLA issues.
Our expectation is that proper interpretation of the FMLA will improve communication
and increase the understanding between labor and management so that employees
can fulfill the Postal Service's mission in a workplace climate that promotes
fairness and concern for workers entitled to FMLA job-protected absences.
John E. Potter, VP, Labor Relations
Williams Burrus, Executive VP, APWU, AFL-CIO
FMLA QUESTIONS & ANSWERS
SECTION 1- WHO IS COVERED
1. Q. What is the Family and Medical Leave
Act of 1993?
A. In general, the Act entitles eligible employees
to be absent for up to 12 workweeks per year for the birth or adoption of
a child; to care for a spouse, son, daughter, or parent with a serious health
condition; or when unable to work because of a serious health condition without
loss of their job or health benefits. The FMLA does not provide more annual
or sick leave than that which is already provided to Postal Service employees.
Source: 825.100
2. Q. Which employees are eligible?
A. Employees who have been employed by the Postal
Service for at least one year and who have worked at least 1250 hours during
the previous 12 months are eligible.
Source: 825.110, ELM 444.22
3. Q. I have been a transitional employee
for nine months. Am I an eligible employee under the FMLA?
A. No, because you have not worked for the Postal
Service for one year. Any employee, including a TE, who has worked for the
Postal Service for an accumulated total of one year and has worked a total
of 1250 workhours during the previous 12 months is an eligible employee under
the FMLA.
Source: 825.110 (b)
4. Q. I am absent on protected leave under
the Family and Medical Leave Act, and my transitional employee appointment
term expires next week. How will that affect me?
A. The Family and Medical Leave Act does not affect
the terms of your appointment.
Source: 825.216 (b)
5. Q. Do COP, OWCP, military leave and court
leave count toward eligibility requirements under the FMLA?
A. COP, OWCP, court leave, and short periods of military
leave count toward the 12-month eligibility requirement. However, none of
the times mentioned count toward the 1250 hours worked eligibility requirement.
Source: 825.110, ELM 444.22
6. Q. If both spouses work for the Postal
Service, does the USPS let both take up to 12 workweeks each of protected
absences under FMLA each leave year?
A. Yes.
Source: ELM 515.43
7. Q. Can an employee who is separated or
divorced take a protected absence under the FMLA to care for a spouse or ex-spouse
with a serious health condition?
A. For an employee to take such leave, the couple
must be legally married.
Source: 825.113
SECTION 2 - WHAT IS COVERED
8. Q. My mother-in-law who lives with me is
ill and requires my care. Does management have to approve my leave as a covered
condition?
A. No, the FMLA only provides protected absences for
covered conditions of a spouse, parent, son or daughter. Leave taken to care
for anyone else would require approval under normal leave policies.
Source: 825.112
9. Q. My knee problem was diagnosed during
an appointment with a health care provider. He ordered three months of physical
therapy treatments. Are the visits and the treatments protected by the FMLA?
A. Yes, where properly documented as a serious health
condition, the absence would qualify for FMLA protection since it involves
a continuing treatment under the supervision of a health care provider. The
health care provider is stating that lack of treatment would likely result
in a period of incapacity of more than three days. Employees needing intermittent
FMLA leave or leave on a reduced leave schedule must attempt to schedule
their leave so as not to disrupt the employer's operations.
Source: 825.114 (a)(2)(v), 825.117
10. Q. My wife's doctor said she needs almost
total bed rest for the last two months of her pregnancy, and I need to stay
home to care for our other children. Is this condition covered under the FMLA?
A. FMLA does not cover babysitting for the other children.
However, where properly documented that the husband is needed to care for
her, the wife's serious health condition would entitle the husband to a FMLA
protected absence.
Source: 825.116
11. Q. If I use a midwife for both my prenatal
care and the delivery of my child, would my pregnancy still be a condition
covered under the FMLA?
A. Yes, pregnancy is a covered condition under the
FMLA. Midwives are considered health care providers if they are authorized
to practice under State law and are performing within the scope of their practice
as defined under State law.
Source: 825.118 (b)(2), 825.118 (c)
12. Q. An employee had a baby and took 6 weeks
of leave during a period when she was not eligible under the FMLA. Now she
is eligible, and the baby is still less than a year old. Can she now take
the 12 workweeks of protected absences under the FMLA?
A. Yes, only the time taken when eligible under the
FMLA counts toward the 12 workweeks.
Source: 825.112
13. Q. Is an employee entitled to 12 workweeks
of protected absences under the FMLA for placement or care of an adopted or
foster child?
A. Yes.
Source: 825.112, 825.200, 825.201
14. Q. I took a week of protected leave under
the FMLA to care for my baby who was born 2 months ago. Now I want to take
the week of July 4th off to be with my baby. Since caring for my newborn is
a condition covered under the FMLA, does my supervisor have to let me off
for the week of July 4th?
A. Not necessarily. You are requesting time off for
the birth and care of a child on an intermittent basis. Therefore, your request
for the week of July 4th is subject to your supervisor's approval in accordance
with current leave polices.
Source: 825.203
15. Q. Can an employee take protected leave
under the FMLA to look for child care?
A. No. Of course, a supervisor can approve regular
annual leave for such a purpose.
Source: 825.112
16. Q. An employee has a recurrent degenerative
knee condition that qualifies as a serious health condition. The certification
indicates his condition may "flare" up 1 to 2 days per month and render him
incapacitated for duty. Consequently, the employee requests covered absences
under the FMLA with little or no advance notice. Does this meet the criteria
or intent of the intermittent leave entitlement under the FMLA?
A. Intermittent absences due to a chronic condition
which incapacitates an employee are covered by the FMLA. See attached Documentation
Example #4.
Source: 825.114, 825.117, 825.203, 825.204
17. Q. Is treatment for substance abuse covered
under the FMLA?
A. Yes, if certified by the health care provider as
a serious health condition. Absence because of the employee's use of the substance,
rather than for treatment, does not qualify as a covered condition under
the FMLA.
Source: 825.114 (d), 825.112 (g)
18. Q. Can the flu be considered a serious
health condition under the FMLA?
A. Yes, if it complies with the definition of a serious
health condition under the FMLA.
Source: 825.114 (c)
19. Q. If my child is sick, can I now take
sick leave to care for him?
A. Yes, under the National Agreement-Memorandum of
Understanding on Sick Leave for Dependent Care, employees may use up to 80
hours of their earned sick leave to care for a spouse, parent, son or daughter.
Sick leave for Dependent Care is only protected under the FMLA when the illness
qualifies as a serious health condition under the FMLA.
Source: National Agreement-Memorandum of Understanding,
ELM 515.2
SECTION 3 - HOW AN ABSENCE IS COVERED
20. Q. How do I apply for leave under the
FMLA?
A. Submit a form PS 3971, Request for or Notification
of Absence, with the supporting documentation. Leave under the FMLA is
not a separate category or type of leave. You may request annual leave, sick
leave or LWOP for your absence under the FMLA. Just as in the past, in an
emergency situation a phone call, telegram, etc. will suffice until it is
possible for you to submit the necessary paperwork.
Source: 825.302, 825.303, ELM 510
21. Q. Do I have to mention the Family Medical
Leave Act when I request time off for a covered condition?
A. No. However, an employee must explain the reasons
for the absence and give enough information to allow the employer to determine
that the leave qualifies for FMLA protection. If the employee fails to explain
the reasons, the leave may not be protected under the FMLA.
Source: 825.208, 825.302, 825.303
22. Q. Do I have to use all of my annual leave
balance before I can take LWOP for a condition covered under the FMLA?
A. No, you need not exhaust annual leave and/or sick
leave before requesting leave without pay. The use of leave, paid or unpaid,
is subject to management's approval consistent with the handbooks, manuals,
the National Agreement and the FMLA.
Source: 825.207, ELM, NATIONAL AGREEMENT
Q. Can I take more than 12 workweeks of leave
during a Postal leave year?
A. Twelve workweeks is the maximum amount of protected
leave which must be granted for the covered conditions under the FMLA. After
being off for 12 workweeks, you may request leave under current leave policies,
but that time would not be protected under the FMLA. Approval will be subject
to the terms and conditions of current policies.
Source: 825.200, ELM 510
24. Q. Do the 12 workweeks of FMLA protected
leave have to be continuous?
A. No, the leave may be taken intermittently or on
a reduced schedule basis as long as taking it in that manner is medically
necessary. When leave is taken because of the birth or placement of a child
for adoption or foster care, an employee may take leave intermittently or
on a reduced leave schedule only if the supervisor agrees.
Source: 825.203, 825.204
25. Q. How will I know if the requested leave
counts as part of the 12 workweek entitlement under the Family and Medical
Leave Act?
A. The supervisor should provide you a copy of the
Form 3971.
If the leave is approved as one of the covered conditions,
the approving official will check the "Approved, FMLA" block on the Form 3971.
Source: 825.301, ELM 515
26. Q. If the employee does not request FMLA
protection for an absence that meets the definition of a covered condition
under the FMLA, must the supervisor designate the absence as FMLA protected
leave?
A. Yes, if the employee provides sufficient information
for the supervisor to be able to designate it as FMLA protected leave.
Source: 825.208
27. Q. If an employee is absent on sick leave
and, while absent is diagnosed as having a serious health condition, will
his entire absence be protected under the FMLA?
A. Yes, if the employee provides the supervisor with
the necessary information about the serious health condition within two days
of returning to work.
Source: 825.208 (d) & (e)
28. Q. Is the employer's approval required
for an employee to use intermittent leave or work a reduced schedule if the
employee, spouse, child or parent has a serious health condition?
A. The absence must be allowed provided proper medical
certification and notice is provided. However, in foreseeable cases, the employee
must attempt to schedule the absences so as not to disrupt the employer's
operation. The employee may be assigned to an alternative position with equivalent
pay and benefits that better accommodates the intermittent or reduced leave
schedule, in accordance with National Agreement.
Source: 825.203, 825.204
29. Q. If an employee requests leave for a
condition covered under the FMLA, what information should the supervisor provide
to the employee?
A. A supervisor should provide the following information:
- Whether the employee is eligible or when he will be
eligible.
- Whether the leave will designated as FMLA protected.
- A copy of PS Form 3971 stating the type of leave and whether
the approval is pending documentation.
- Publication 71 where applicable. Publication 71 includes the
consequences for not providing the requested documentation and what information
must be provided for return to duty, if any.
Source: 825.301
30. Q. What certification is required for
employees requesting leave protected under the FMLA because of the birth or
placement of a son or daughter, and in order to care for such son or daughter
after birth or placement?
A. That the employee is the parent and the date of
birth or placement of this son or daughter. No medical certification is required.
Source: 825.113 (d)
31. Q. Is recertification required for each
absence when a health care provider has certified that the employee is receiving
continuing treatment?
A. Excluding pregnancy, chronic conditions, and permanent/long-term
conditions, recertification is not required for the duration of treatment
or period of incapacity specified by the health care provider, unless:
a) the employee requests an extension of leave
b) circumstances have changed significantly from the
original request
c) the employer receives information that casts doubt
upon the continuing validity of the certification
d) the absence is for a different condition or reason.
Source: 825.308
32. Q. What can an employer do if he or she
questions the adequacy of medical certification that includes all the required
information?
A. With the employee's permission, a health care provider
representing the Postal Service may contact the employee's health care provider
to clarify the medical certification. Also, the Postal Service may require
the employee to obtain a second opinion at the employer's expense.
Source: 826.307
33. Q. Is advance notice required for employees'
use of protected leave under FMLA?
A. An employee must provide the Postal Service at
least 30 days advance notice if the need for the leave is foreseeable. When
the need for leave is not foreseeable, an employee should give notice to the
Postal Service as soon as practicable by telephone, fax or other electronic
means.
Source: 825.302, 825.303
34. Q. Can a supervisor have a blanket policy
that requires recertification every 30 days for all employees requesting FMLA
protection for absences related to pregnancy, chronic conditions, and permanent/long-term
conditions?
A. No. On a case by case basis, the supervisor may
require recertification of such conditions on a reasonable basis, but not
more often than every 30 days and only in connection with an absence related
to the condition. The supervisor may require recertification in less than
30 days when:
- circumstances in the previous certification have
changed.
- the supervisor receives information that casts doubt
upon the employee's stated reason for the absence.
Source: 825.308 (a)
SECTION 4 - WORK RULES
35. Q. May an employee be removed, disciplined,
or placed on restricted sick leave as a result of protected absences under
the FMLA?
A. No.
Source: 825.220
36. Q. Some Local Memorandums of Understanding
(LMOU's) allow for daily percentages off on leave, will that affect those
who need protected leave under the FMLA?
A. No, leave percentages do not affect the rights
of employees to be absent under the FMLA. LMOU language will determine whether
FMLA absences count towards the percentages.
Source: AGREEMENT BETWEEN THE LOCAL PARTIES
37. Q. Can an employee file an EEO complaint
related to FMLA?
A. Yes, but only on the grounds that the FMLA was
applied in a discriminatory manner.
Source: 825.702
38. Q. Can a step increase be deferred as
a result of LWOP used under the FMLA?
A. Yes, if an employee has used 13 weeks of LWOP during
a step increase waiting period, then the step increase can be deferred. The
Family and Medical Leave Act does not require accrual of any rights or benefits
during the period of leave taken under the FMLA.
Source: 825.209 (h)
39. Q. My last chance agreement states that
if I have more than 4 unscheduled absences within the next six months, I can
be removed from the Postal Service. Will an absence protected under the FMLA
count as an absence for the purposes of my last chance agreement?
A. No.
Source: 825.220
40. Q. While absences for conditions covered
by the FMLA cannot be cited as a basis for discipline, can they be discussed
in periodic absence reviews concerning the importance of regular attendance?
A. Yes.
41. Q. Can the employee be separated after
he or she has exhausted leave protected under the FMLA but is still unable
to return to work?
A. Once leave protected under the FMLA has been exhausted,
the employee's failure to return to work should be treated as any other failure
to return to work.
Source: 825.309, 825.312
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