Your Rights Under the FMLA

Management often gives workers a hard time when we ask for a leave to take care of our medical needs or our families. One tool we have on our side in these situations is the Family and Medical Leave Act (FMLA).

Below are questions and answers about what rights you have under the FMLA. If you have more questions, call TDU at (313)842-2600.

What is the Family and Medical Leave Act (FMLA)?

The federal law that gives workers at most companies the right to take up to 12 weeks of unpaid family and medical leave within a 12-month period. It can be taken in the case of a serious illness; to care for an incapacitated family member; or for pregnancy, childbirth or adoption.

What employers does the FMLA cover?

  • All private-employers with 50 or more employees.
  • All public agencies (state, local and federal).

What workers does the FMLA cover?

  • Workers who have worked for a covered employer for at least 12 months,
  • And who have worked at least 1,250 hours in the last 12 months,
  • And whose company has at least 50 workers at their worksite or other locations within 75 miles.

What kind of leaves are covered?

  • Medical leave—for a serious health condition that prevents you from performing your job.
  • Family leave—to care for a seriously ill spouse, child or parent.
  • Pregnancy and newborn care leave—for childbirth and care of a child up to one year of age.
  • Adoption and foster parent leave—for placement of a child with you for adoption or foster care.

How much leave can I take?

Up to 12 weeks (or 60 work days) of unpaid leave within a 12-month period. The time doesn’t have to all be taken in one block. For example, you could take off three 20-day blocks of time during the 12-month period.

Even a one-day leave is covered if it is for a long-term condition. Doctor appointments are covered if they are for necessary treatment and can’t be scheduled on non-work time.

What qualifies as a “serious health condition” under the FMLA?

A serious health condition can be an illness, injury, or physical or mental impairment. It must cause “incapacity,” which is defined as an inability to work or perform regular daily activities.

An incapacity is covered if it:

  • Requires more than three consecutive days of treatment,
  • Requires an overnight hospital stay,
  • Is due to a long-term serious health condition, or
  • Is due to pregnancy.

Examples of chronic conditions covered by the FMLA include asthma, diabetes, cancer, stroke, severe arthritis, heart disease, migraine headaches, and clinical depression. Alcoholism and drug addiction can also qualify as serious health conditions.

What is not covered?

Illnesses that wouldn’t normally incapacitate someone for more than three days are usually not covered. Some examples are cold, flu, ear infections, minor ulcers, teeth extractions and bronchitis.

How much notice do I have to give the company before I take a leave?

Thirty days for a foreseeable absence. If your absence was unforeseeable, you must give your employer notice “ASAP,” usually meaning within two days of learning you will have to be absent. You have to tell your employer that the leave is because of a serious condition or some other qualifying reason under the FMLA.

Do I have to show my employer my medical records?

No, but the employer can require that you provide a certification signed by your physician that you have a serious health condition that requires you to take time off or work a reduced schedule.

The employer has to request the certification in writing. Once you have submitted your medical certification, the company cannot request more information or records from your doctor.

You can use the Department of Labor’s WH-380 “Certification of Health Care Provider” form. It’s available online here, or from TDU.

Can the company make me get a second opinion?

Yes, but they have to pay for it, and they cannot send you to a physician that works directly for them or does regular business with the company. If the second opinion conflicts with your doctor’s, they can require a third opinion. The employer has to pay for it, and you and the employer have to agree on the doctor.

Can they make me take light-duty work instead of a leave?

No. But once you have run out of FMLA leave time, you can be ordered on light-duty work.

You can always voluntarily take light-duty work if the employer offers it. Time spent performing light duty work does not count against your FMLA leave time.

Does the company have to pay me while I am on FMLA leave?

No, but you can use vacation, leave or sick pay that you are due.

What happens to my health benefits while I am on leave?

Your employer is obligated to continue contributing to your health coverage.

Do I keep the same job and seniority when I return?

Yes. But if your old job is unavailable for a legitimate reason you can be placed in an equivalent position, as long as the contract is not violated.

Can I work a reduced schedule?

The employer is required to give you part-time work if you can’t work full-time because of a serious health condition or because you have to care for a seriously ill family member. This includes 12 full-time weeks of FMLA leave, equal to 480 work hours.

For example, if you need to work four-hour shifts, you could do so with FMLA protection for 120 days in one 12-month period (120 days x 4 hours leave per day = 480 work hours). A reduced schedule might also be required in some cases under the Americans with Disabilities Act.

What about pregnancy and childbirth?

A mother can take up to 12 weeks of childbirth and newborn care leave. When she asks to return, she must be reinstated within two days to her original job or an equivalent job. The employer is not required to give workers taking childbirth or newborn care leave a part-time work schedule.

Newborn leave can be taken until a child is one year old. A father—married or unmarried—can also take up to 12 weeks off to help care for a newborn child. But if both parents work for the same company, the employer can restrict the total leave for both parents to 12 weeks combined.

Adoptive parents or foster parents can also take up to 12 weeks of FMLA leave during the year following adoption.

When can I take time off to care for family members?

You can take time off to care for a spouse, child or parent who is incapacitated by a serious health condition. This includes adopted children and step-children. It does not include grandparents. The family member is considered incapacitated if they cannot work, attend school or perform regular daily activities for more than three days.

Can I file a grievance over an FMLA violation?

Yes. Most Teamster contracts have a clause in which the employer agrees to abide by state and federal laws, which includes the FMLA. The FMLA is also specifically included in many contracts. Here is where the FMLA is incorporated in master Teamster agreements:

  • UPS - Art. 16, Sec. 6
  • Freight - Art. 38, Sec. 3
  • Carhaul - Art. 10, Sec. 7

NOTE: The UPS contract contains language improving on FMLA rights. Under Art. 16, Sec. 6, employees who have not worked enough hours in a year to qualify for FMLA leave, but who have worked at UPS at least three years and have worked at least 625 hours in the last 12 months, qualify for six weeks leave.

Art. 16, Sec. 4 protects maternity leave for as long as a doctor says you are unable to work. It also allows you to bank paid time off until the next vacation year to cover pregnancy leave not covered by the FMLA.

Can I file a complaint or lawsuit?

You can file a complaint with the Department of Labor Wage and Hour Division or file a lawsuit in federal court. The statute of limitations is two years, or three years if it is a willful violation.

Much of this information was adapted from The FMLA Handbook by attorney Robert M. Schwartz. Copies are available from TDU (info at left).

Where Can I Order a Copy of the FMLA Handbook?

Order the The FMLA Handbook: A Union Guide to the Family and Medical Leave Actby Robert M. Schwartz, online by clicking here. $20 or call (313) 842-2600.


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