Hot Tips for Stewards: FMLA Info, Goodbye to Obama "blacklisting" rule, NLRB Changes Strike Rule

The March 2017 update from Work Rights Press covers three timely topics.

(Reprinted from Work Rights Press)

Hot tip #1. Can an employer demand a medical release for an FMLA leave? 
 
Several unions report that their employer, or a third-party attendance administrator such as CIGNA, is insisting that employees sign releases allowing the employer to mail FMLA medical certifications directly to doctors or other health care providers.

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This practice violates FMLA regulation 825.306(e). Under the FMLA certification scheme adopted by the U.S. Department of Labor, employers must notify employees in writing if a medical certification is required, supply the certification, and allow at least 15 calendar days for its return. If a provider’s answers are incomplete or insufficient, the employer must inform the employee in writing and allow 7 days to submit additional information.
 
An employer may not insist that the employee sign a release or HIPAA authorization allowing it to send a certification directly to a provider. While an employee may voluntarily agree to this procedure, it is almost always best to personally deliver the certificate to the provider and bring it back to the employer. This enables the employee to explain what is needed and to review the certification before it goes to the employer. In some cases, the employee will want to ask the provider to revise an answer.
 
An employer that coerces an employee into signing a release and then denies FMLA leave due to a deficient certification is subject to legal action.

For more on this topic, read The FMLA Handbook: A Union Guide to the Family and Medical Leave Act by labor lawyer Robert M. Schwartz. Available for $20 here.


Hot tip #2. Goodbye to Obama “blacklisting” order

On March 6, 2017, the U.S. Senate, in a party-line vote, gutted Executive Order 13673, issued by President Obama in 2014. As explained in the August 2016 Hot Tips, the order, and its implementing regulations, required federal contractors to disclose labor law violations and complaints prior to and in the course of federal contracts. President Trump is certain to sign his approval.

Hot tip #3. NLRB changes strike rules
 
On February 23, 2017, the Obama-appointed NLRB, hurrying to act before Trump board members take over the agency, issued a landmark decision making it illegal, in many cases, for employers to cancel medical benefits during strikes. Under the surprising ruling (Hawaiian Telecom, 365 NLRB No. 36), benefits must generally be continued unless the current or expired contract, consistent past practice, or language in a benefit policy clearly provides that they may be ended during a strike.

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Unions should file ULP charges in almost all cases. In addition to blocking one of the most vicious anti-strike tactics, the charge may lead to a ULP strike classification, creating protection against strike replacements.

For more on this topic, read No Contract, No Peace: A Legal Guide to Contract Campaigns, Strikes, and Lockouts by Robert M. Schwartz. Available for $20 here.


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