Brotherhood of Locomotive Engineers
|Dennis R. Pierce||
GENERAL COMMITTEE OF ADJUSTMENT
M. 0. WILSON
S. J. BRATKA
801 CHERRY ST., SUITE 1010 Unit 8
GALESBURG, IL 61401
|ALL LOCAL CHAIRMAN||August 16, 2002|
|BNSF NORTHLINES AND
|File: FMLA/Personal Leave|
Dear Sirs and Brothers:
This is in reference to the many calls and letters that we have received
requesting information on the Carrier’s current policy regarding the use of
personal leave during FMLA related lay offs. We have enclosed a copy of the
Carrier’s current policy that became effective on January 1, 2002. As you will
note in the policy, the Carrier intends to substitute accrued personal leave day
compensation, as available to each employee, for any portion of unpaid
family/medical leave taken. We were provided an advance copy of this policy last
fall, but were advised that the policy would be made accessible to all
employees. We have since been advised that not all employees are aware of the
policy so we are making it available. We have also included correspondence
between BLE General Chairman Mullen, former ATSF, and International President
Hahs concerning the policy and proper application of FMLA. You will note that
the International Division has advised that the Carrier’s policy is proper under
the conditions of the FMLA.
We recently met with the Carrier to discuss current application of the
policy. The Carrier has advised that when approved intermittent FMLA lay offs
are taken, and the employee is assigned to job that qualifies for personal leave
days, those personal leave days in banked or carry over status will be used
first. If none, then the personal leave days remaining available in the calendar
year will be accessed. If the employee is assigned to a job that does not
qualify for personal leave days, none of the accrued personal leave days will be
utilized. The Carrier has also advised however, that consideration will always
be given to requests by the employee that accrued personal leave days or
vacation time be allowed during an extended FMLA lay off. Please review the
enclosed document, making this information available to your membership. If any
questions arise out of its application, please contact the Office.
Dennis R. Pierce
cc: J. H. Nelson, GST
|BNSF JOHN J.
Vice President Labor Relations
|The Burlington Northern
and Santa Fe Railway Company
|PO Box 961030
Fort Worth TX. 76161-0030
2600 Lou Menk Drive
Garden Level NOC
Fort Worth TX 76161-0030
October 8, 2001
To: All BNSF General Chairmen (See attached distribution)
Re: Family and Medical Leave Act
I am writing to inform you of upcoming changes to the BNSF Family and Medical
leave Act (“FMLA”) policy. As you may recall, when enacted in 1993,
the FMLA created completely new rights and responsibilities for both the company
and employees. Now, in the wake of more experience under this statute, and after
many have given this subject a lot of thought, BNSF has revised its FMLA policy
to better honor the mutual character of the rights and responsibilities
established in the FMLA. The new policy will be effective January 1, 2002; we
have worked hard to ensure that it complies with our labor agreements, along
with the FMLA, and lives up to BNSF’s Vision and Values. A copy is attached.
Basically, the revised policy will:
place greater emphasis on the employee’s
responsibility to provide reasonable notice of FMLA leave,
clarify when paid sick leave and other
types of non-vacation leave must be substituted for unpaid FMLA leave,
explain the circumstances during which an
employee electing intermittent medical leave must substitute paid leave
including, in some cases, vacation leave for unpaid FMLA leave.
Regarding the first item, we hope all would agree that every employee should
give as much notice of each FMLA leave as possible. This expectation is designed
to minimize hardship to other employees and the company.
As for the other items, the substitution of paid leave for unpaid FMLA leave
is expressly provided for in the FMLA for all FMLA leaves. See 29 U.S.C. §
2612(d)(2)(A) and (B). However, for now BNSF has only modified its policy
with respect to the use of paid vacation in cases of intermittent medical leaves
and only for employees who are entitled to paid sick leave. The company is not
now requiring substitution of vacation with other FMLA leaves. Further, BNSF has
structured the new policy so that sick leave and other available paid leave days
would be exhausted before any vacation days. Finally, if a particular employee
elects intermittent FMLA leave so frequently that vacation days are affected,
the policy gives the employee some choice in determining which vacation days to
substitute for the intermittent FMLA leave.
The FMLA is a fairly new statute and all of us have been on a learning curve
with its administration. I hope you will recognize that the upcoming changes to
BNSF’s FMLA policy have been narrowly tailored so as to fairly balance employee
rights and responsibilities with those of the company, in a manner which is
fully consistent with our agreements and the law.
If you have any questions or other comments, please let me know.
Very truly yours,
BNSF FMLA Policy
Family and Medical Leave
Policy No.: 30.10
Effective Date: August 5, 1993
Revised Date: January 1, 2002
Human Resources Department: Employee Benefits and Services
Burlington Northern Santa Fe will grant each eligible salaried or scheduled
employee an unpaid leave of absence for up to 12 workweeks as needed for
family/medical leave. Family/Medical leaves will be limited to 12 weeks in a
calendar year beginning January 1st and ending December 31st.
To be eligible, the employee must be actively at work as a full time
employee, have worked for BNSF for at least twelve (12) months, have worked at
least 1,250 hours during the 12 months immediately preceding the date the leave
begins, and expect to return to the position vacated at the end of the leave.
Where both a husband and wife are employed by BNSF, the couple may take an
aggregate of 12 weeks per year for qualifying family leave. Any family leave
taken by an employee counts toward the 12 weeks annual limit on family/medical
leave for that individual employee.
Family leave is defined as leave taken to care for your newborn child, or to
care for a child placed with you for adoption or foster care. Leave for this
purpose must be completed within 12 months following the birth, adoption or
placement of a foster child. Medical leave is defined as leave taken to care for
yourself, your legal spouse (including common law spouse where recognized by
state law), daughter, son or parent due to a serious health condition. A serious
health condition means any illness, injury, impairment or physical or mental
condition that requires inpatient care or continuing treatment by a health care
The employee is required to apply for leave by completing the Notice of
Intent to Take Unpaid Family/Medical Leave form. When leave is foreseeable, at
least 30 days’ advance notice should be given and the employee must try to
schedule the leave to avoid unduly disrupting BNSF’s operations. In those
situations where the leave is not foreseeable, the employee must provide notice
as soon as practicable. The supervisor of the employee requesting the leave and
the Benefits Department must be given a copy of the notification of the need for
leave. The employer’s response will be prepared by the Benefits Department and
mailed directly to the employee. Approved medical leave for scheduled employees
and short-term disability for salaried employees will automatically count as
FMLA leave, even if the employee does not complete an application. When
employees apply for, request or are otherwise absent from work for more than
three (3) consecutive days under any other policy, program or agreement, the
Company may conditionally designate such absences as FMLA leave, subject to
verification by the medical department.
The employee must provide written medical certification for a serious health
condition within 15 calendar days of the request. ha circumstances where it is
not practical to do so, certification must be provided as soon as possible. The
Certification of Physician form needs to be returned under personal and
confidential cover to the Benefits Department in Fort Worth.
As discussed more fully below, this policy requires the employee to
substitute other types of paid leave for any portion of unpaid family/medical
leave. This includes paid disability leave that may be available to salaried
employees. All paid time off will count toward the 12-workweek limit.
Under the circumstances outlined below, BNSF employees must substitute paid
leave for unpaid family/medical leave. An employee eligible for sick leave
benefits must substitute available paid sick leave for the employee’s own unpaid
medical leaves. If all paid sick leave is exhausted or otherwise unavailable, an
employee must substitute paid personal leave, annual leave, and/or other
non-vacation paid leave for any unduly leave. The foregoing requirement for the
substitution of paid personal leave, annual leave, and/or other non-vacation
paid leave for any unpaid medical leave applies to all employees.
For employees who are eligible for paid sick leave, but who have exhausted
all other available paid leave, including sick leave, paid vacation must be
substituted for intermittent medical leaves. A medical leave is considered
intermittent if (i) the employee’s medical care provider designates the medical
leave as intermittent; or (ii) the employee takes medical leave on multiple
occasions for the same medical condition. So, for example, a one-time medical
leave to recover from surgery will normally not be considered an intermittent
medical leave. But multiple short-term absences for a particular serious health
condition would normally be considered intermittent medical leave. An employee
may take intermittent or reduced schedule leave for medical leaves only.
When substituting vacation for intermittent medical leave, unscheduled
vacation days will be the first ones substituted. After all unscheduled vacation
days are exhausted, previously scheduled vacation leave will be substituted for
intermittent medical leave. The employee electing intermittent medical leave
must promptly notify BNSF which scheduled days he or she wants substituted.
Absent timely notification, BNSF will substitute vacation days scheduled closest
to the end of the year, which will be substituted in reverse order.
At this time, an employee does not have to substitute paid vacation for
family leave or for medical leave that is not intermittent. Also, at this time,
employees who are not eligible for paid sick leave benefits will not be required
to substitute paid vacation for intermittent medical leaves.
BNSF will continue its contribution toward the employee’s health and welfare
benefits during the leave. Employee contributions toward coverage (if any) are
waived during the FMLA period for union-represented employees. Salaried
employees are required to pay their employee contributions directly to Sageo
during any unpaid leave, in order to continue their health and welfare benefits.
Am employee will be entitled to return to the same position if it is available
or an equivalent position to that held prior to the leave. If the employee fails
to return from the leave or the employee returns from the leave but fails to
work for at least 30 calendar days, BNSF may recover its contribution toward the
employee’s health and welfare benefits paid for coverage during the leave. Also,
an employee’s failure to return to work upon expiration of FMLA leave may
subject the employee to discipline under applicable policies or agreements.
To the extent that there are inconsistencies between the terms of this Policy
and those of other BNSF policies, this Policy shall control.
The Family Medical Leave Act does not affect any Federal or State law
prohibiting discrimination, or supersede any State or local law or collective
bargaining agreement that provides greater family or medical leave rights. As a
result, qualified employees are granted the protection of any applicable State
or local law that provides greater leave rights than present in this Policy. To
the extent a dispute arises as to whether a particular collective bargaining
agreement provides greater leave rights than are provided under this policy,
such disputes shall be handled according to the provisions of the particular
collective bargaining agreement.
Any questions regarding this Policy should be referred to Assistant Vice
President Human Resources.
|Brotherhood of Locomotive Engineers|
Vice-Chairman GENERAL COMMITTEE OF ADJUSTMENT
BNSF Ry. Co.
Santa Fe Committee
611 N. Broadway
Joshua, Texas 76058
(817) 426-9003 – Fax (817) 426-9006
October 11, 2001
Mr. Don Hahs, President
Brotherhood of Locomotive Engineers
Mezzanine – Standard Building
Cleveland, Ohio 44113-1701
Dear Brother Hahs:
Attached for your reference is a copy of the BNSF “newly revised”
FMLA policy. This office feels the new policy may be in conflict with FML Act
when they require an individual to use his personal leave days or vacation days
Would you pass this on to our General Counsel for his review and input.
/s/ John Mullen
cc: All Local Chairmen Santa Fe GCA
Mr. Dennis Pierce, General Chairman BLE
Mr. Rick Gibbons, General Chairman BLE
Mr. Austin Morrison, General Chairman BLE
|DON M. HAHS
|1370 ONTARIO STREET
CLEVELAND, OHIO 44113-l 702
TELEPHONE: (216) 241-2630
FAX (216) 241-6516
December 5, 2001
Mr. John D. Mullen, General Chairman
BNSF Ry. Co. – Santa Fe Committee
509 SW Wilshire, Suite D
Burleson, Texas 76028
Dear Brother Mullen:
This refers to your request for a review of the revisions to BNSF’s Family
and Medical Leave Policy. You indicate that the new policy may be in conflict
with the law, because it now requires that employees use personal leave days or
vacation days in connection with leave granted under the policy.
As requested, counsel has reviewed the revised policy scheduled to take
effect on January 1, 2002, and has informed me that the revisions you refer to
are permissible under the Family Medical Leave Act of 1993 (FMLA), 29 U.S.C. §
2601, et seq., and are consistent with the regulations issued by the U.S.
Department of Labor implementing the law. 29 CFR 825.
The FMLA expressly provides for the substitution of paid leave for FMLA
leave. (Please refer to the text of Title 1, Section 102, paragraphs (d)(2)(A)
and (B) of the enclosed copy of the statute).
Under the FMLA, employers may “require” employees to substitute any
period of accrued paid vacation or other leave for leave provided under the Act.
29 U.S.C. § 2612(d)(2). As the word “require” indicates, to designate
employer-provided leave as FMLA leave an employer must “promptly (within
two business days absent extenuating circumstances) notify the employee that the
paid leave is designated and will be counted as FMLA leave.” 29 C.F.R. §
Therefore, although an employer has the option of requiring an employee to
designate vacation or other leave as FMLA leave, that option is waived if the
employer fails to give, proper notice of its intentions. In other words,
“if an employee takes paid or unpaid leave and the employer does not
designate the leave as FMLA leave, the leave taken does not count against an
employee’s FMLA entitlement.” 29 C.F.R. § 825.700(a).
To summarize, subject to certain conditions, employees may elect or employers
may require the employee to substitute certain accrued paid leave to cover some
or all of the FMLA leave. Paid vacation or personal leave may be substituted for
any kind of FMLA leave. The employer is responsible for designating in its
records if an employee’s use of paid leave counts as FMLA leave, based on
information from the employee. In no case may an employer claim after the leave
has ended that use of paid leave counted as FMLA leave.
In view of the above, the new policy provision requiring all employees under
specified circumstances to substitute paid personal leave, annual leave, and/or
other non-vacation paid leave for unpaid FMLA leave fully complies with the
statute and regulations. Similarly, the new policy provision that limits the
substitution of paid vacation leave for unpaid FMLA leave to cases involving
intermittent medical leave granted to employees entitled to paid sick leave also
complies with the statute and regulations. At this time, this particular
provision does not apply to employees not covered under a paid sick leave plan,
however, it is important to understand that the statute permits employers to
enact policies requiring all employees to substitute paid vacation to offset
For your information, I have also enclosed a copy of the FMLA Compliance
Guide prepared by the Employment Standards Administration, Wage and Hour
Division of the U.S. Department of Labor.
I hope you find this information helpful and trust you will keep me apprised
of any subsequent revisions to the policy that may violate the law.
/s/ D.M. Hahs
cc: E. W. Rodzwicz, First VP
W. C. Walpert, GST
A. G. Morrison, GC – BNSF (C&S/CRI&P/FWD) (enc.)
R. C. Gibbons, GC – BNSF (StL-SF) (enc.)
D. R. Pierce, GC – BNSF (CB&Q/GN/NP/SP&S) (enc)
Employment Standards Administration
Wage and Hour
The Family and Medical Leave Act (“FMLA”) provides certain
employees with up to 12 workweeks of unpaid, job-protected leave a year, and
requires group health benefits to be maintained during the leave as if employees
continued to work instead of taking leave. This Compliance Guide summarizes the
FMLA provisions and regulations, and provides answers to the most frequently
asked questions. More detail on the FMLA may be found in the regulations (29 CFR
The FMLA became effective August 5, 1993, for most employers and employees.
(For those covered by a collective bargaining agreement (CBA) in effect on that
date, the FMLA became effective on the expiration of the CBA or February 5,
1994, whichever was earlier.)
This law covers only certain employers; affects only those employees eligible
for the protections of the law; involves entitlement to leave, maintenance of
health benefits during leave, and job restoration after leave; sets requirements
for notice and certification of the need for FMLA leave; and protects employees
who request or take FMLA leave. The law also includes certain employee record
Purposes of the FMLA
The FMLA allows employees to balance their work and family life by taking
reasonable unpaid leave for certain family and medical reasons. The FMLA seeks
to accomplish these purposes in a manner that accommodates the legitimate
interests of employers, and minimizes the potential for employment
discrimination on the basis of gender, while promoting equal employment
opportunity for men and women.
FMLA applies to all:
- public agencies, including State, local and Federal employers, and
local education agencies (schools); and,
private sector employers who employ 50 or more employees for at least
20 workweeks in the current or preceding calendar year 3/4 including joint
employers and successors of covered employers.
For FMLA purposes, most Federal and Congressional employees are under the
jurisdiction of the U.S. Office of Personnel Management (OPM) or the Congress,
To be eligible for FMLA leave, an employee must work for a covered employer
- have worked for that employer for at least 12 months; and
- have worked at least 1,250 hours during the 12 months prior to the start
of the FMLA leave; and,
- work at a location where at least 50 employees are employed at the
location or within 75 miles of the location.
A covered employer must grant an eligible employee up to a total of 12
workweeks of unpaid leave in a 12 month period for one or more of the following
- for the birth of a son or daughter, and to care for the newborn
- for the placement with the employee of a child for adoption or foster
care, and to care for the newly placed child;
- to care for an immediate family member (spouse, child, or parent – but not
a parent “in-law”) with a serious health condition;
- when the employee is unable to work because of a serious health condition.
Leave to care for a newborn child or for a newly placed child must conclude
within 12 months after the birth or placement. (See CFR Section 825.201)
Spouses employed by the same employer may be limited to a combined total of
12 workweeks of family leave for the following reasons:
- birth and care of a child;
- for the placement of a child for adoption or foster care, and to care for
the newly placed child; and,
- to care for an employee’s parent who has a serious health condition.
Intermittent/Reduced Schedule Leave – The FMLA permits employees to
take leave on an intermittent basis or to work a reduced schedule under certain
circumstances. CFR Section 203)
- Intermittent/reduced schedule leave may be taken when medically necessary
to care for a seriously ill family member, or because of the employee’s
serious health condition.
- Intermittent/reduced schedule leave may be taken to care for a newborn or
newly placed adopted or foster care child only with the employer’s approval.
Only the amount of leave actually taken while on intermittent/reduced
schedule leave may be charged as FMLA leave. Employees may not be required to
take more FMLA leave than necessary to address the circumstances that cause the
need for leave. Employers may account for FMLA leave in the shortest period of
time that their payroll systems use, provided it is one hour or less. (See CFR
Employees needing intermittent/reduced schedule leave for foreseeable medical
treatment must work with their employers to schedule the leave so as not to
unduly disrupt the employer’s operations, subject to the approval of the
employee’s health care provider. In such cases, the employer may transfer the
employee temporarily to an-alternative job with equivalent pay and benefits that
accommodates recurring periods of leave better than the employee’s regular job.
Substitution o Paid Leave – Employees may choose to use, or employers
may require the employee to use, accrued paid leave to cover some or
all of the FNMA leave taken. Employees may choose, or employers may require,
the substitution of accrued paid vacation or personal leave for any of the
situations covered by FMLA. The substitution of accrued sick or family leave
is limited by the employees policies governing the use of such leave.
Serious Health Condition – “Serious health condition” means
an illness, injury, impairment, or physical or mental condition that involves:
any period of incapacity or treatment connected with inpatient care (i.e., an
overnight stay) in a
- hospital, hospice, or residential medical care facility; or
- a period of incapacity requiring absence of more than three calendar
days from work, school,
- or other regular daily activities that also involves continuing treatment
by (or under the supervision of) a health care provider; or
- any period of incapacity due to pregnancy, or for prenatal care; or
- any period of incapacity (or treatment therefor) due to a chronic serious
health condition (e.g., asthma, diabetes, epilepsy, etc.); or
- a period of incapacity that is permanent or long-term due to a condition
for which treatment may not be effective (e.g., Alzheimer’s, stroke,
terminal diseases, etc.); or,
- any absences to receive multiple treatments (including any period of
recovery therefrom) by, or on referral by, a health care provider for a
condition that likely would result in incapacity of more than three
consecutive days if left untreated (e.g., chemotherapy, physical therapy,
Medical Certification – An employer may require that the need for
leave for a serious health condition of the employee or the employee’s immediate
family member be supported by a certification issued by a health care provider.
The employer must allow the employee at least 15 calendar days to obtain the
An employer may, at its own expense, require the employee to obtain a second
medical certification from a health care provider. The employer may choose the
health care provider for the second opinion, except that in most cases the
employer may not regularly contract with or otherwise regularly use the services
of the health care provider. If the opinions of the employee’s and the employees
designated health care providers differ, the employer may require the employee
to obtain certification from a third health care provider, again at the
employer’s expense. This third opinion shall be final and binding. The third
health care provider must be approved jointly by the employer and the employee.
The “Certification of Health Care Provider” (optional form WH-380)
may be used to obtain the certifications.
Health Care Provider – Health care providers who may provide
certification of a serious health condition include:
- doctors of medicine or osteopathy authorized to practice medicine or
surgery (as appropriate) by the State in which the doctor practices;
- podiatrists, dentists, clinical psychologists, optometrists, and
chiropractors (limited to treatment consisting of manual manipulation of the
spine to correct a subluxation as demonstrated by X-ray to exist) authorized
to practice in the State and performing within the scope of their practice
under State law,
- nurse-practitioners, nurse-midwives, and clinical social workers
authorized to practice under State law and performing within the scope of
their practice as defined under State law;
- Christian Science practitioners listed with the First Church of Christ,
Scientist in Boston, Massachusetts;
- any health care provider recognized by the employer or the employer’s
group health plan’s benefits manager; and,
- a health care provider listed above who practices in a country other than
the United States and who is authorized to practice under the laws of that
Maintenance of Health Benefits
A covered employer is required to maintain group health insurance coverage,
including family coverage, for an employee on FMLA leave on the same terms as if
the employee continued to work.
Where appropriate, arrangements will need to be made for employees taking
unpaid FMLA leave to pay their share of health insurance premiums. For example,
if the group health plan involves co-payments by the employer and the employee,
an employee on unpaid FMLA leave must make arrangements to pay his or her normal
portion of the insurance premiums to maintain insurance coverage, as must the
employer. Such payments may be made under any arrangement voluntarily agreed to
by the employer and employee.
An employees obligation to maintain health benefits under FMLA stops if and
when an employee informs the employer of an intent not to return to work at the
end of the leave period, or if the employee fails to return to work when the
FMLA leave entitlement is exhausted. The employer’s obligation also stops if the
employee’s premium payment is more than 30 days late and the employer has given
the employee written notice at least 15 days in advance advising that coverage
will cease if payment is not received.
In some circumstances, the employer may recover premiums it paid to maintain
health insurance coverage for an employee who fails to return to work from FMLA
Other Benefits – Other benefits, including cash payments chosen by the
employee instead of group health insurance coverage, need not be maintained
during periods of unpaid FMLA leave.
Certain types of earned benefits, such as seniority or paid leave, need not
continue to accrue during periods of unpaid FMLA leave provided that such
benefits do not accrue for employees on other types of unpaid leave. For other
benefits, such as elected life insurance coverage, the employer and the employee
may make arrangements to continue benefits during periods of unpaid FMLA leave.
An employer may elect to continue such benefits to ensure that the employee will
be eligible to be restored to the same benefits, upon returning to work. At the
conclusion of the leave, the employer may recover only the employee’s share of
premiums it paid to maintain other “non-health” benefits during unpaid
Upon return from FMLA leave, an employee must be restored to his or her
original job, or to an “equivalent” job, which means virtually
identical to the original job in terms of pay, benefits, and other employment
terms and conditions.
In addition, an employee’s use of FMLA leave cannot result in the loss of any
employment benefit that the employee earned or was entitled to before using (but
not necessarily during) FMLA leave.
“Key” Employee Exception – Under limited circumstances where
restoration to employment will cause “substantial and grievous economic
injury” to its operations, an employer may refuse to reinstate certain
highly-paid, salaried “key” employees. In order to do so, the employer
must notify the employee in writing of his/her status as a “key”
employee (as defined by FMLA), the reasons for denying job restoration, and
provide the employee a reasonable opportunity to return to work after so
notifying the employee.
Employee Notice – Eligible employees seeking to use FMLA leave may be
required to provide:
- 30-day advance notice of the need to take FMLA leave when the need is
- notice “as soon as practicable” when the need to take FMLA leave
is not foreseeable (“as soon as practicable” generally means at
least verbal notice to the employer within one or two business days of
learning of the need to take FMLA leave);
- sufficient information for the employer to understand that the employee
needs leave for FMLA-qualifying reasons (the employee need not mention FMLA
when requesting leave to meet this requirement, but may only explain why the
leave is needed); and,
- where the employer was not made aware that an employee was absent for FMLA
reasons and the employee wants the leave counted as FMLA leave, timely
notice (generally within two business days of returning to work) that leave
was taken for an FMLA-qualifying reason.
Employer Notices – Covered employers must take the following steps to
provide information to employees about FMLA:
- post a notice approved by the Secretary of Labor (WH Publication
1420) explaining rights and
- responsibilities under FMLA;
- include information about employee rights and obligations under FMLA in
employee handbooks or other written material, including Collective
Bargaining Agreements (CBAs); or
- if handbooks or other written material do not exist, provide general
written guidance about employee rights and obligations under FMLA whenever
an employee requests leave (a copy of Fact Sheet No. ESA 95-24 will fulfill
this requirement); and
- provide a written notice designating the leave as FMLA leave and detailing
specific expectations and obligations of an employee who is exercising
his/her FMLA entitlements. The employer may use the “Employer Response
to Employee Request for Family or Medical Leave” (optional form WH-381)
to meet this requirement. This employer notice should be provided to the
employee within one or two business days after receiving the employee’s
notice of need for leave and include the following:
- that the leave will be counted against the employee’s annual FN4LA leave
- any requirement for the employee to furnish medical certification and the
consequences of failing to do so;
- the employee’s right to elect to use accrued paid leave for unpaid FMLA
leave and whether the employer will require the use of paid leave, and the
conditions related to using paid leave;
- any requirement for the employee to make co-premium payments for
maintaining group health insurance and the arrangement for making such
- any requirement to present a fitness-for-duty certification before being
restored to his/her job;
- rights to job restoration upon return from leave;
- employee’s potential liability for reimbursement of health insurance
premiums paid by the employer during the leave if the employee fails to
return to work after taking FMLA leave; and
- whether the employee qualifies as a “key’ employee and the
circumstances under which the employee may not be restored to his or her job
FMLA makes it unlawful for any employer to interfere with, restrain, or deny
the exercise of any right provided by this law. It is also unlawful for an
employer to discharge or discriminate against any individual for opposing any
practice, or because of involvement in any proceeding, related to FMLA.
Employers cannot use the taking of FMLA leave as a negative factor in
employment actions, such as hiring, promotions, or disciplinary actions; nor can
FMLA leave be counted under “no fault” attendance policies.
FMLA is enforced by the Wage and Hour Division of the U.S. Department of
Labor’s Employment Standards Administration. This agency investigates complaints
of violations. If violations cannot be satisfactorily resolved, the Department
may bring action in court to compel compliance.
An eligible employee may bring a private civil action against an employer for
violations. An employee is not required to file a complaint with the Wage and
Hour Division prior to bringing such action.
Some special rules apply to employees of local education agencies. Generally,
these rules provide for FMLA leave to be taken in blocks of time when the leave
is needed intermittently or when leave is required near the end of a school term
Several States and other jurisdictions also have family or medical leave
laws, If both the Federal law and a State law apply to an employees operations,
an employee is entitled to the most generous benefit provided under either law.
Employers may also provide family and medical leave that is more generous
than the FMLA leave requirements.
The FMLA does not modify or affect any Federal or State law which prohibits