GE CF34-3B1
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FMLA - Family Medical Leave Act (some questions?)
- Thread starter GE CF34-3B1
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BluDevAv8r
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BluDevAv8r
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If your friend is a pilot, have her check her contract and work with the union as well as her company's HR department.English said:
Also check http://www.opm.gov/oca/fmla/.
-Neal
BluDevAv8r
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flx757
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FMLA IS guaranteed under federal law. But there are certain circumstances under which it applies. Such as, you can take the leave to care for your mother, but not your mother-in-law, etc. And I noticed you used the word "continual" in your original question. The law only requires the company to offer this leave for a specified length of time. It is not indefinite.
lostplnetairman
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I logged in under DH's account because it takes days for this web to allow me to answer a question!
My DH is a pilot for a national airline and I monitor these boards for him. But I am also a HR director for a major national company.
I can answer any HR related questions you have. What do you need to know?
HRDiva
My DH is a pilot for a national airline and I monitor these boards for him. But I am also a HR director for a major national company.
I can answer any HR related questions you have. What do you need to know?
HRDiva
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A couple of things to keep in mind about FMLA:
First, when you take FMLA, you are NOT guaranteed to be put back into the same position you left - just a position within the company. Most airline union contracts cover this though.
Second, I believe if you are out more than the 12 weeks, you are NOT guaranteed a position with the company.
Third, as the person was asking about consecutive FMLA, you have to work a minimum of 1250 hours between every 12 week leave. So, you cannot just take 12 weeks, come back for a week and then try to take another 12 weeks. Now, if you take 2 weeks and then come back and take another 2 weeks, that should be covered because you are allocated 12 weeks. For the 1250 hour rule, you would have to work 31 weeks at 40 hours a week to be eligible.
Fourth, you have to work for an employer for 12 months before you are eligible (more info below).
Here are the official definitions for FMLA:
Covered employers must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons:
1) for the birth and care of the newborn child of the employee;
for placement with the employee of a son or daughter for adoption or foster care;
2) to care for an immediate family member (spouse, child, or parent) with a serious health condition; or
3to take medical leave when the employee is unable to work because of a serious health condition.
There are some definitions that need to be explained (in simple terms; there are exceptions):
First, An employer covered by FMLA is any person engaged in commerce or in any industry or activity affecting commerce, who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. Second, an eligible employee is an employee:
(a) An ``eligible employee'' is an employee of a covered employer who:
(1) Has been employed by the employer for at least 12 months, and
(2) Has been employed for at least 1,250 hours of service during the 12-month period immediately preceding the commencement of the leave, and
(3) Is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite.
(b) The 12 months an employee must have been employed by the employer need not be consecutive months. If an employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid leave (sick, vacation) during which other benefits or compensation are provided by the employer (e.g., workers' compensation, group health plan benefits, etc.), the week counts as a week of employment. For purposes of determining whether intermittent/occasional/casual employment qualifies as ``at least 12 months,'' 52 weeks is deemed to be equal to 12 months.
(c) Whether an employee has worked the minimum 1,250 hours of service is determined according to the principles established under the Fair Labor Standards Act (FLSA) for determining compensable hours of work (see 29 CFR Part 785). The determining factor is the number of hours an employee has worked for the employer within the meaning of the FLSA. The determination is not limited by methods of recordkeeping, or by compensation agreements that do not accurately reflect all of the hours an employee has worked for or been in service to the employer. Any accurate accounting of actual hours worked under FLSA's principles may be used.
(d) The determinations of whether an employee has worked for the employer for at least 1,250 hours in the past 12 months and has been employed by the employer for a total of at least 12 months must be made as of the date leave commences. If an employee notifies the employer of need for FMLA leave before the employee meets these eligibility criteria, the employer must either confirm the employee's eligibility based upon a projection that the employee will be eligible on the date leave would commence or must advise the employee when the eligibility requirement is met.
(e) The period prior to the FMLA's effective date must be considered in determining employee's eligibility.
The next definition addressed is the term “serious 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 disease, etc.); or
Any absences to receive multiple treatments (including any period of recovery that follows) 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, dialysis, etc.).
First, when you take FMLA, you are NOT guaranteed to be put back into the same position you left - just a position within the company. Most airline union contracts cover this though.
Second, I believe if you are out more than the 12 weeks, you are NOT guaranteed a position with the company.
Third, as the person was asking about consecutive FMLA, you have to work a minimum of 1250 hours between every 12 week leave. So, you cannot just take 12 weeks, come back for a week and then try to take another 12 weeks. Now, if you take 2 weeks and then come back and take another 2 weeks, that should be covered because you are allocated 12 weeks. For the 1250 hour rule, you would have to work 31 weeks at 40 hours a week to be eligible.
Fourth, you have to work for an employer for 12 months before you are eligible (more info below).
Here are the official definitions for FMLA:
Covered employers must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons:
1) for the birth and care of the newborn child of the employee;
for placement with the employee of a son or daughter for adoption or foster care;
2) to care for an immediate family member (spouse, child, or parent) with a serious health condition; or
3to take medical leave when the employee is unable to work because of a serious health condition.
There are some definitions that need to be explained (in simple terms; there are exceptions):
First, An employer covered by FMLA is any person engaged in commerce or in any industry or activity affecting commerce, who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. Second, an eligible employee is an employee:
(a) An ``eligible employee'' is an employee of a covered employer who:
(1) Has been employed by the employer for at least 12 months, and
(2) Has been employed for at least 1,250 hours of service during the 12-month period immediately preceding the commencement of the leave, and
(3) Is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite.
(b) The 12 months an employee must have been employed by the employer need not be consecutive months. If an employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid leave (sick, vacation) during which other benefits or compensation are provided by the employer (e.g., workers' compensation, group health plan benefits, etc.), the week counts as a week of employment. For purposes of determining whether intermittent/occasional/casual employment qualifies as ``at least 12 months,'' 52 weeks is deemed to be equal to 12 months.
(c) Whether an employee has worked the minimum 1,250 hours of service is determined according to the principles established under the Fair Labor Standards Act (FLSA) for determining compensable hours of work (see 29 CFR Part 785). The determining factor is the number of hours an employee has worked for the employer within the meaning of the FLSA. The determination is not limited by methods of recordkeeping, or by compensation agreements that do not accurately reflect all of the hours an employee has worked for or been in service to the employer. Any accurate accounting of actual hours worked under FLSA's principles may be used.
(d) The determinations of whether an employee has worked for the employer for at least 1,250 hours in the past 12 months and has been employed by the employer for a total of at least 12 months must be made as of the date leave commences. If an employee notifies the employer of need for FMLA leave before the employee meets these eligibility criteria, the employer must either confirm the employee's eligibility based upon a projection that the employee will be eligible on the date leave would commence or must advise the employee when the eligibility requirement is met.
(e) The period prior to the FMLA's effective date must be considered in determining employee's eligibility.
The next definition addressed is the term “serious 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 disease, etc.); or
Any absences to receive multiple treatments (including any period of recovery that follows) 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, dialysis, etc.).
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Resume Writer
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Neal,BluDevAv8r said:
The assumption that the company is just going to "comply" with the law is not always true. I can speak first hand about this.
My former airline, with a union contract in place, came up with some "interesting" facts about FMLA. Understand that not every Manager knows all the rules that are under FMLA and sometimes are not bright enough to ask.
I have a chronic condition that requires medical treatment on a continual basis, which is the very definition of a "serious condition" under FMLA. I suffer from kidney stones, which can never be predicted and have to be under treatment for them when they occur.
The company decided that they were going to "bring me in" for a discussion about my sick days, which were covered by FMLA. When I told them that I had asked for FMLA to be covered, it blew the wind out of their sails and they did not know how to respond. The conversation took place between myself with a first line supervisor.
When I got to the meeting, I was armed with the FMLA laws, which I had received from my best friend who was HR Director for the YMCA. The information I brought to the meeting was directly from a service for HR Managers called "HR Update" which has the latest HR laws and rulings.
When I quoted the FMLA laws to the supervisor, he asked where I got that information. I told him that my best friend, who was the HR Director for the YMCA, gave them to me.
His response?
"Well, maybe that is YMCA's policy, but it is not OUR policy."
I very frankly told him that is was FEDERAL law and it superceded "company" policy!
Needless to say, I was granted the FMLA leave.
All I can tell employees is do your homework and know all aspects of the law for the workplace. Many employers will bank on the fact that you do not understand how the law works and will try to run you over.
Kathy
lostplnetairman
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The original poster has not come back to ask the specific questions which is why I didn't bother to go into a lengthly explanation of FMLA (which is so grey that it is the source of much of the employment litigation that exists today). But English also has some questions.
Protection under FMLA is not guaranteed. An employee must qualify to receive the protections. An employer can deny coverage if the employee fails to meet the qualifications. And an employer can request recertification after 30 days. An employee does not have to provide the specific medical information. The doctor only needs to certify that there is a serious health condition and indicate the length of time needed.
FMLA absolutely guarantees that you must be returned to the same or equivalent position. They cannot even change your shift, because that is not the same.
FMLA is purely job protection. It brings no salary replacement benefits. The maximum time is 12 weeks which can be taken all at once or intermittently.
It's not that you have to work 1250 hours between leaves. You are only entitled to 12 weeks in a 12 month period. An employer can choose to determine the 12 month period in several ways. How they do it is important. If they fail to do it, then the law specifies that the way that is most advantagous to the employees rules. To qualify for FMLA, an employee must be employed with the company for 12 months (they do not have to be consecutive months) and have worked 1250 hours. So a person can work for a company for six months, quit, come back in two years and work 9 months and still be eligible. Then, if they take their full 12 weeks, they would have to wait another 12 months and work 1250 hours to qualify. But, again, it depends on how the employer defines the 12 month period.
It should be noted, that caring for a spouse, parent or dependent child with a serious health condition also includes the psychological care.
That being said, there are often state leave laws which also apply. For example, in the original question, the poster said the individual needed to care for a spouse that had a serious health condition. That would also be covered by several states. Some states, such as New Jersey, have provisions that are more generous in terms of eligibility. For example, an employee only needs to work 1000 hours to qualify. But they are only eligible for 12 weeks every 24 months.
So, rather than post links to the verbiage in the law,it would be necessary to have more information in order to properly answer any questions.
HRDiva
Protection under FMLA is not guaranteed. An employee must qualify to receive the protections. An employer can deny coverage if the employee fails to meet the qualifications. And an employer can request recertification after 30 days. An employee does not have to provide the specific medical information. The doctor only needs to certify that there is a serious health condition and indicate the length of time needed.
FMLA absolutely guarantees that you must be returned to the same or equivalent position. They cannot even change your shift, because that is not the same.
FMLA is purely job protection. It brings no salary replacement benefits. The maximum time is 12 weeks which can be taken all at once or intermittently.
It's not that you have to work 1250 hours between leaves. You are only entitled to 12 weeks in a 12 month period. An employer can choose to determine the 12 month period in several ways. How they do it is important. If they fail to do it, then the law specifies that the way that is most advantagous to the employees rules. To qualify for FMLA, an employee must be employed with the company for 12 months (they do not have to be consecutive months) and have worked 1250 hours. So a person can work for a company for six months, quit, come back in two years and work 9 months and still be eligible. Then, if they take their full 12 weeks, they would have to wait another 12 months and work 1250 hours to qualify. But, again, it depends on how the employer defines the 12 month period.
It should be noted, that caring for a spouse, parent or dependent child with a serious health condition also includes the psychological care.
That being said, there are often state leave laws which also apply. For example, in the original question, the poster said the individual needed to care for a spouse that had a serious health condition. That would also be covered by several states. Some states, such as New Jersey, have provisions that are more generous in terms of eligibility. For example, an employee only needs to work 1000 hours to qualify. But they are only eligible for 12 weeks every 24 months.
So, rather than post links to the verbiage in the law,it would be necessary to have more information in order to properly answer any questions.
HRDiva
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WhiteCloud
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In case you haven't already......why not try to work out some leave without trotting out the FMLA law. Voluntary furlough, leave of absence or simply taking your name off the schedule and bidding open time are all possibilities that might help. Perhaps a simple conversation with your CP could solve the problem. Companies can do this if they want to. They are not limited by some federal law in caring for the needs of their employees. It also may be that a pilot job simply does not suit the needs of your family at this time. Perhaps a ground job with a regular schedule within the company would help. At all costs avoid the perception that you are holding a gun to the companies head with the FMLA law. It's a nice idea that probably got Bill Clinton a few more votes but, in practice, it's difficult to comply with. You'll probably lose. I wish you and your family well.
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Diva,lostplnetairman said:
I was talking about the phrasing of same or "equivalent" position. If they have to replace your position because you are not there, i.e., "critical position within the company," can they bump out the person that took your place when you return? Or do they just have to provide you with an equal position? I have found that most airlines do not mess with this phrase, unless they have a reduction in force that does not allow them to put you back in your original position. Can you clarify this for me and everyone?
Also, if someone has to have more leave than the 12 weeks, are they guaranteed a position with the company at all?
Thanks!
Kathy
lostplnetairman
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Kathy,
An employer can choose to hire a temporary replacement for a critical person out on FMLA and then return the employee to their orginal job. Or they can choose to keep the replacement and provide an equivalent job for the employee returning from leave. Most just hire people on a temporary basis.
If someone needs more than 12 weeks, their job is not protected by FMLA. State law and company policy may provide additional leave.
I totally disagree with WhiteCloud. First of all, the 12 week maximum protects the employer from having an employee take a year off while they hold their job. Most employers will look for a way to designate the leave as FMLA for that reason. Well, if they are smart they will! Second, FMLA, like most employment laws was passed because employers were not taking care of their employees. An employee returning from major breast cancer surgery in 1989 was forced to lift heavy objects one week after surgery (having exhausted the five days sick time allowed by the employer). The employee was threatened with termination when she requested permission to come to work one hour late on the mornings after receiving chemotherapy since it made her so ill. In 1994, when this employee had a second round of cancer, she had the ability to care for herself without the fear of losing her job. If there wasn't really a need for the law, Congress would have done something about it since 1993! Instead, they keep introducing bills to expand the protections.
HRDiva
An employer can choose to hire a temporary replacement for a critical person out on FMLA and then return the employee to their orginal job. Or they can choose to keep the replacement and provide an equivalent job for the employee returning from leave. Most just hire people on a temporary basis.
If someone needs more than 12 weeks, their job is not protected by FMLA. State law and company policy may provide additional leave.
I totally disagree with WhiteCloud. First of all, the 12 week maximum protects the employer from having an employee take a year off while they hold their job. Most employers will look for a way to designate the leave as FMLA for that reason. Well, if they are smart they will! Second, FMLA, like most employment laws was passed because employers were not taking care of their employees. An employee returning from major breast cancer surgery in 1989 was forced to lift heavy objects one week after surgery (having exhausted the five days sick time allowed by the employer). The employee was threatened with termination when she requested permission to come to work one hour late on the mornings after receiving chemotherapy since it made her so ill. In 1994, when this employee had a second round of cancer, she had the ability to care for herself without the fear of losing her job. If there wasn't really a need for the law, Congress would have done something about it since 1993! Instead, they keep introducing bills to expand the protections.
HRDiva
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WhiteCloud
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Fair enough......but, if you work for a good company and they consider you valuable you can usually work out what you need to regardless of what the federal government says. I think that's a far better route to pursue first rather than waving some law in their face. Laws like FMLA are too complex for an individual to use to dictate something to a company. A good (or mediocre) company lawyer that has been instructed to shoot down a claim regarding the FMLA will stand a much better chance of winning against an un-represented individual. The FMLA does provide some guideliness and protection for indiviuals who are easily replaced though. My caution is that, if you are easily replaced, you will be for some other reason down the road if you get dictatorial with your employer. FYI-This is coming from someone who has benefitted from the FMLA and, in the past, has also voluntarily left aviation for a period of 8 years for reasons that the FMLA covers.lostplnetairman said:
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