grievance handling handbook

7/29/2019 Grievance Handling Handbook

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Grievanc e Handl ing

Handbook

Prepared by:Erik Peterson

Labor Education Service


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I n t roduc t ion

If mobilized members are the muscle of the labor movement, stewards are its bone.Stewards are educators, organizers, advocates and mediators, agitators andpeacemakers. There are few rules. Being an effective steward mostly requiresknowing a few basic principles, being able to listen well, having a willingness to learncombined with some passion and commonsense. This pamphlet outlines some basics.The rest can generally be improvised.

Index

Duty of Fair Representat ion

Legal Right s of Stew ardsEquality Principle

Equal Standards Principle

Stewards in invest igatory int erviewsWeingarten rightsWhat is an investigatory interview?Steward rights during an investigatory interviewPrivileged versus confidential communicationSteward roles during an investigatory interview

Stewards as grievance advocatesWhat is a grievance?Difference between a grievance and a gripe

Just causePast practice grievancesLoudermill hearingGarrity WarningSample Garrity WarningKey tips when filing a grievance

How to write a grievanceSample grievanceInvestigating grievancesTypes of information a steward can requestMaking requests in writing and costs

Tips for grievance meetings

Labor Law 101Family and Medical LeaveMinnesota School Activities LeaveAmericans with Disabilities Act


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Duty of fair representation

Where does t his duty come from?

Federal law (NLRA) or state law (PELRA in Minnesota) recognizes your union asthe "exclusive representative" of a specific group of employees (check yourrecognition clause in your contract).

This means that employees cannot individually bargain over terms andconditions of employment;

It also puts a responsibility on the union as exclusive representative (and onyou as a steward, as the union's representative) to fairly represent theinterests of all employees.

Why is satisfying t his duty so import ant?

Failure to satisfy the duty of fair representation (DFR) makes the union liable fordamages suffered by the affected bargaining unit employee and may also makethe union liable under the 1964 Civil Rights Act, which also prohibits unions fromdiscriminating.

What does "fair representation" mean?

This means: All employees -- members and non-members, good and bad, nice and hostile

-- have a right to due process and union representation to the best of yourability;

As a steward you need to act fairly, impartially, in good faith, consistently,with reasonable care, and not arbitrarily.

It does not mean: You must file a grievance on every complaint even if there is no contract

violation;

You must take every grievance through every step through arbitration; You do not need to satisfy all members of the bargaining unit.


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Legal rights of stewards

With the duty of fair representation come certain protections for stewards. These arevery important for understanding the protected status one has when working as the

union's official representative.

The Equalit y Principle. Under the NLRB (and PELRA) union stewards have aspecial legal status when they engage in union business or act in their officialcapacities. Chiefly, they are considered equalswith management.

According to the NLRB (and PELRA) this means:

Conduct that might ordinarily result in discipline must be tolerated; A frank, and not always complimentary, exchange of views must be

expected;

The relationship between steward and employer is not a master-servantrelationship but one of equal opposing parties;

Robust debate may occur, but not intemperate, abusive, or insultinglanguage (to qualify as inappropriate the conduct must be outrageous,

indefensible, or of such a serious nature as to render the employee unfit

for further service;

An employer commits an unfair labor practice if the employer disciplines asteward for functioning in an official capacity.

The Equal Standards Princip le. The NLRB and PELRA prohibit employers fromholding stewards to super or higher standards than other employees, except if there isan illegal strike or work stoppage. Then an employer can discipline a steward or unionofficial who takes part in the illegal action. Except for this very rare occurrence,supervisors cannot discipline a steward to set an example for the rest the employees, orbecause the steward should, aboveothers, know better, etc.


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Stewards as advocates

The most traditional view of a steward is as an advocate for co-workers. Stewards canadvocate in a variety of ways. Two of the most important roles are:

n as an advocate in investigatory interviewsn as an advocate during the grievance procedure

Stewards in investigatory interviewsOne of the more common situations stewards become involved with is representing

employees who have been called to answer questions by their employer. When thesequestions are part of an investigation, the affected employee has what are calledWeingarten r ights-- or the right to representation.

Weingar ten r igh t s

Any employee being investigated by her or his employer has the right to representation-- in an organized workplace that means union representation. This principle wasestablished in 1975 by the U.S. Supreme Court in NLRB v. Weingarten, Inc.

n Weingarten rights help protect employees under investigation from over-zealous employers and help ensure that employees have access to a unionsteward to know what their rights and options are.

n Weingarten rights must be requested by the employee -- unless specified bycontract the employer does not have to offer representation to the employee.

n Once requested, the employer is obligated to provide representation beforeproceeding with the questioning. If the employer refuses the employee canrefuse to answer questions (with some accompanying peril) or repeatedly

request representation and answer only under protest. (Unfortunately, underReagan, the NLRB ruled that an employer's refusal to abide by Weingartendoes not necessarily result in overturn of the discipline since such wouldrepresent "an unwarranted 'windfall' for guilty workers." However, andemployers refusal to abide by Weingarten is looked at very poorly by mostarbitrators.)

n Weingarten rights only apply to "investigatory interviews."


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What is an ' inves t igat ory in terv iew '?

Weingarten rights only apply to "investigatory interviews." The key to determiningwhether a meeting is an investigation is whether a "reasonable person" might believethat the questions asked might possibly result in discipline for the employee or someother employee in the future. The language is important: if an employee believes or iseven nervous about questions that might result in potential discipline, s/he shouldrequest union representation.

I nvest igatory int erviews oft en relate to subject s such as:

n absenteeismn damage to company

propertyn drugs and alcohol usen falsification of recordsn tardinessn theftn violation of safety rules

n accidentsn fightingn insubordinationn sabotagen work performance (if it

might result in discipline)n vulnerable adult complaints

I nvestigatory int erview s do not normally include:

n casual conversationsn annual job reviews (unless

they can result in discipline)n handing out of discipline, as

opposed to an investigation

n staff meetingsn briefings on new procedures

or work rules

When in doubt, it never hurts to ask for union representation. My rule of thumb is thatif an employee desires union representation, then it should be accorded by aresponsible employer, whether or not Weingarten technically applies. As a steward,

just know how far the law allows you to ultimately push the issue.

Stew ard r igh ts dur ing an ' invest igat ory in terv iew '?

As an official representation of the union the steward has several rights during aninvestigatory interview. The key thing to remember is that to satisfy your duty ofrepresentation, you also have to have the resources, access, and information tosatisfactorily represent the employee.

Important : An investigatory interview is the employer's meeting (as opposedto a grievance meeting which is the union's meeting). This means that the


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employer has the right to ask any question and the employee has an obligationto answer it or risk insubordination.

Employers sometimes take this to mean that the only role for stewards in aninvestigatory meeting is to observe and take notes -- be the "silent witness." The

Supreme Court, however, clearly acknowledges the steward's right to assist and counselemployees during the interview.

Stewards can:

n insist prior to the questioning that the employer give some indication of whatthe investigation is about (e.g. theft, client complaints, tardiness, etc.);

n take the employee aside and speak with the employee in private prior to thequestioning or at anytime during the meeting;

n speak during the meeting, although the steward has no right to bargain overthe purpose of the meeting. If a steward becomes too disruptive, s/he canbe asked to leave;

n ask the interviewer to clarify a question so the employee understands thequestion;

n consult with the employee after a question has been asked to make sure theemployee understands.

Stewards cannot :

n tell the employee to not answer a question, or lie (employees can bedisciplined for refusing to answer questions);

n continually interrupt, badger, or disrupt the meeting.Pr iv i leged versus c onf ident ia l com m unicat ion

Stewards have the right to "confidential communication" with an employee. This means

that is a supervisor asks a steward what the employee said, the steward has noobligation (in his/her official capacity as a steward) to divulge the information.

However, this is not the same as "privileged communication" (such as that exercised byattorneys or ministers). This means that if a steward is asked under oath (say in acourt proceeding) what the employee said, s/he would have to divulge the informationor risk perjury.


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Caution: It is not a good idea to ask an employee 'Just between you and me --what reallyhappened?" since it may ultimately not be just between you two.Employees should be told not to tell you anything that could not be revealed in acourt of law.

St ew ard ro les dur ing an inves t igat ory in terv iew

The presence of a steward at an investigatory meeting can be helpful in many ways.

A steward can:

n help a fearful or inarticulate employee explain what happened;n help stop an employee from losing his/her temper and making the

situation worse;

n help prevent supervisors from giving a false account or "spinning" theemployee's answers;

n serve as a witness and recorder of the meeting;n help keep the supervisor on track and prevent a 'fishing expedition' in

asking questions;

n raise extenuating circumstances.An investigatory meeting is the employer's meeting, so be respectful, just as you expectthe employer to be respectful at the union's meetings. But remember the "equalityprinciple." Your job is to represent the employee to the best of your ability, as an equalto management.

Stewards as grievance advocatesPerhaps the most traditional role of a steward is as a grievance advocate. Having a

contract does not guarantee that it will be followed by management. Sometimes anemployer purposefully tests the union's resolve to enforce the contract; sometimes asupervisor is simply ignorant; sometimes there are sincere disagreements oninterpretation. In either case, part of a steward's duty of fair representation is toenforce the contract. The most common way this is done is through the grievanceprocedure.


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What is a gr ievance?

Virtually every contract defines what a grievance means. Usually this definition is earlyin the grievance procedure. Become familiar with this language in your own contract.

Not all problems are grievable. Some are gripes which may, or may not, have merit.One of the most important skills of a steward is to begin sorting out what is agrievance, what is a legitimate problem (although not grievable) and what is merewhining.

To determine whether an action is grievable, ask the following questions:

n Did management violate the contract? (Which part and how?)n Did management violate work rules? (Most arbitrators assume that

management should follow its own rules, even if they are not in the contract.Look at the management rights clause for possible contract language.)

n Did management treat a worker unfairly compared to other workers in thesame situation? (This gets at disparate treatment issues and can be linkedwith "just cause" language in most contracts.)

n Did management violate a "past practice"? (These are specifically non-contractual practices that have been going on consistently for a long time.)

n Did management violate a local, state, or federal law, or health and safetyregulation? (Although many arbitrators are reluctant to decide on issuesoutside the contract, many contracts require employers to follow the law.Check your contract for such language -- oftentimes in or near the savingsclause if your contract has one.

If the answer is "yes" to any of the above, it is likely that you have a grievance and youwill need to investigate further.

Di f ference betw een a gr ievance and a gr ipe

Not all gripes are created equal. Some issues that are not grievances still demandattention and may require other creative strategies for resolution. Some complaints aresimply whining. One of the hardest things for a steward to do is tell a member thats/he has no grievance. It may also be one of the most important things to say.Remember that your word is not the final word. If the member disputes yourinterpretation, s/he can always appeal to a higher authority in the union.


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Jus t c ause

Most contracts have some reference similar to "Disciplinary action may be imposedupon an employee only forj ust cause."

Put simply "just cause" means "with good reason," but this does not mean what is justis left up to the employer. Just cause is the heart of most grievance procedures. Thebasic elements of just cause have been reduced to seven tests by Arbitrator CarrollDaughtery. His tests, formed as questions, represent the prevalent understanding of

just among arbitrators.

The seven tests or key questions include:

1. Notice. "Did the Employer give the employee forewarning or foreknowledge ofthe possible or probable consequences of the employee's disciplinary conduct?"

2. Reasonable Rule or Order . "Was the Employer's rules reasonably related to(a) the orderly, efficient and safe operation of the Employer's business, and (b)the performance that the Employer might properly expect of the employee?"

3. I nvestigation. "Did the Employer, before administering discipline to anemployee, make an effort to discover whether the employee did, in fact, violateor disobey the rule or order of management?"

4. Fair I nvest igation. "Was the Employer's investigation conducted fairly andobjectively?"

5. Proof. "At the investigation, did the 'judge' obtain substantial evidence or proofthat the employee was guilty as charged?"

6. Equal Treatment. "Has the Employer applied its rules, orders and penaltiesevenhandedly and without discrimination to all employees?"

7. Penalty. "Was the degree of discipline administered by the Employer in aparticular case reasonably related to (a) the seriousness of the employee'sproven offense, and (b) the record of the employee in his service with the

Employer?"

A "no" answer to any of these tests means that just cause was not satisfied or wasweakened. The degree is often more subjective in front of an arbitrator. The morethese just cause tests were violated the stronger the case.

Violation of just cause is the violation stated for virtually all disciplines -- e.g. "thegrievant w as disciplined wit hout just cause."


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Pas t p rac t i c e g r ievances

One of the most commonly heard (and most misunderstood) phrases is "past practice" -- as in "You can't do that because its a 'past practice'."

A "past practice" is a non-contractual practice that over time becomes the 'way thingsare done' and achieves the same status as contractual language. This means that apast practice can not be changed unilaterally by the employer, but must be negotiated.

Violation of a past practice can be grieved. It is generally difficult to sustain a pastpractice claim, and to be a genuine past practice it must satisfy all of the following fourcriteria:

1. A clear course of conduct . A past practice cannot be based on vague activityor occasional lapses of normal order by either employee or employer;

2. A consistent act ivit y or practi ce over a reasonable durat ion. What isconsidered a "reasonable duration" is indefinite and imprecise and must be leftto an arbitrator to decide. Certainly one or two occurrences over a period of ayear or two will not be considered consistent over a reasonable period of time,yet twice a week for two years might be; over ten years would almost certainlybe.

3. Full k now ledge and agreement concerning t he act ivit ies or pract ice byboth part ies. There are no such things as "secret past practices." Both partiesmust know that the activity exists. This does not have to be in writing (andoften isn't) but it does have to be verifiable that both parties were aware of thepractice and gave it tacit approval.

4. Silence or ambiguit y in t he contr act concerning t he acti vit y or pract ice.Where the contract is silent, past practice may be considered to be an impliedterm of the contract if the first three conditions are satisfied. If the contract isvague or ambiguous, past practice has its strongest impact, since in this instancethere is no doubt that the activity or practice was meant to be a contract item.

Loudermi l l hear ing

Under a 1983 court ruling, every employee has a right to a hearing prior to termination.Named after a case filed by James Loudermill, a Cleveland school district security guardwho was not allowed to respond to or challenge his dismissal for dishonesty filling outhis job application. The court ruled that "An essential principle of due process is that adeprivation of life, liberty, or property [ job] ' be preceded by notice and an opportunityfor hearing appropriate to the nature of the case." Employees now have a guarantee torespond to the employer's charges prior to termination.


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Garr i t y Warning

A Garrity warning is only applicable to public employees and only when potentialcriminal charges are involved. In 1967, the United States Supreme Court ruled thatpublic employees could not be forced to choose between losing their job or giving uptheir 5th Amendment rights -- the "right to remain silent."

Ordinarily, if questioned about committing a crime, a citizen is given a Miranda warning:the person has the right to remain silent, but anything that is said can be used againstthat person in a court of law. The right to remain silent when questioned by agovernment authority and not self-incriminate is guaranteed under the 5 th Amendmentof the U.S. Constitution. For public employees there is a dilemma. On the one handthey have the right to remain silent under the Constitution; on the other hand, theemployer is the government and refusal to answer an employer question isinsubordination and grounds for termination.

The Supreme Court resolved this dilemma by defined what has become known as theGarrity warning. This warning informs the employee s/he will be questioned as part ofan official investigation. It guarantees the employee that anything s/he says cannotbeused later in a court of law to prosecute the employee. Once a Garrity warning isissued, the employee mustanswer the employer questions or face insubordination.

Answers can be used in disciplinary proceedings, but not in criminal proceedings.

Asking the employer to sign a Garrity warning is appropriate if a public employee isbeing asked about potential criminal matters (assault, theft, abuse, etc.). Thesematters are often rather complicated and a new or less experienced steward is wise tostop the investigation and seek assistance from a more experienced steward or unionstaff.


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Sam ple Garr i ty Warning

I wish to advise you that you are being questioned as part of an official

investigation of your employer. You will be asked questions specifically, directly, and

narrowly related to performance of your official duties or fitness for office. You are

entitled to all the rights and privileges guaranteed by the law and the Constitution of

the United States, including your right not to be compelled to incriminate yourself. I

further wish to advise you that if you refuse to testify or to answer questions relating to

your official duties or fitness for duty, you could be subject to discharge. If you do

answer, neither your statement nor any information or evidence which is gained by

reason of such statement can be used against you in any subsequent criminal

proceedings. However, the statements may be used against you in relation to

subsequent discipline.

BY___________________________________FOR EMPLOYER

DATED:___________________ ____________________________________

EMPLOYEE


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Key t i ps to remem ber w hen f il i ng a gr ievance

n Check your grievance procedure in your contract. Learn the timelines for thevarious steps. Learn what constitutes a grievance in your contract.

n Pay attention to timelines. Make sure you understand whether the timeline isin "calendar days" or "working days."

n Find out who the grievance needs to be filed with according to the contract.Some contracts say the direct supervisor, some the Department Head, somea human resource employee.

nWhat does the union require when filing a grievance? Check to see if theyneed to assign an official grievance number or other means for tracking the

grievance.

How t o w r i t e a gr ievance

All unions have slight differences in their grievance procedures and grievance forms,but certain key components remain the same. Grievances should be clear, direct, andshort. They are not the opportunity to go into the blow-by-blow account -- that comesduring the hearings -- but "just the facts please."

Every grievance should include the six W's:

WHO: is involved in the grievance?

WHEN: did the grievance occur (give the date)?

WHERE: did the grievance occur (department, division, etc.)?

WHY: is it a grievance? What has been violated or misinterpreted?

WHAT: occurred (briefly -- e.g. suspended, denied vacation, etc.)?

WHAT: are your demands? What remedy do you seek to resolve thegrievance?


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Sam ple gr ievance

Note: There are two phrases that should be included in every grievance. (1) "and allother relevant art icles"in the violation section. This protects you from accidentally

overlooking a key contract provision. (2) "and in all other ways made whole" in theremedy section. This means: make it like it never happened and avoids having to listevery way this needs to occur.

Save your arguments for the grievance meetings. The grievance form is simply todocument the grievance and start the process.


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Inves t igat ing gr ievances

Stewards often are involved in gathering information related to grievances andinvestigating grievances. Sometimes this is done prior to filing the grievance, at least tothe extent necessary to determine whether the incident is a grievance; the bulk ofinvestigation is usually done after filing a grievance.

Right t o information.As a steward you have a right to get the information necessary to represent thegrievant (or investigate to see if a grievance occurred). This legal right torelevant information is implicit in the obligation to represent all employees in thebargaining unit. How can you fairly represent an employee if you do not havethe information necessary to do so?

Documents and factual information relevant to a legitimate investigation by the

union must be provided, unless it is proprietary or confidential in a narrow senseof confidentiality. Management has an obligation to explain its actions and

justify them, and stewards can legitimately expect and insist on suchexplanations.

Carefully drawn up information requests can be good tactics for a union.Sometimes a well-thought out information request is enough to prompt theemployer to seek a settlement, rather than disclose the requested information.

Yet, unions have an obligation to explain to the employer why information isrelevant -- at least broadly so. The right to information is not a right to go on a

fishing expedition into the employers records.

There are differences between public and private sector unions when it comes tothe right to information.

Public sector: Public sector unions have extraordinary rights to information.Minnesota's data practices law provides that all data is public data unlessspecifically exempted by law. This definition is very, very broad and includesbudget and financial information generally unavailable to the private sector. Thedefined exemptions are quite narrow and include items such as certain personnelrecords, personal contact information, medical records, etc. A public sector

steward confronted with a reluctant employer should ask the employerrepresentative to state specifically which part of the data practices law exemptsthe requested material. If the employer is unable to provide such documentationas required by law, the information should be public.

Private sector: Private sector unions still have a right to information, although itis somewhat more curtailed than public sector unions. For example, private


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sector unions will generally not have access to detailed financial and budgetinformation, or other "proprietary information."

Types of informat ion a stew ard can request .The following list is meant to be illustrative. It is not inclusive, and certain items

may be legitimately withheld by an employer under certain circumstances.

n accident reportsn attendance recordsn bargaining notesn company memosn contractsn correspondencen disciplinary recordsn equipment specificationsn

evaluationsn inspection recordsn insurance policiesn interview notesn job assignment recordsn job descriptions

n material recordsn some "notes to file"n payroll recordsn time sheetsn performance reviewsn personnel filesn photographsn productivity reports or studiesn

salary and bonus recordsn seniority listsn sick leave and vacation usagen time study recordsn training manualsn videotapes

Note: Employers have an obligation to provide information to the union, but notnecessarily in the form requested.

Make all request s in w rit ing.It is important that you think specifically what type of information you request, areasonable amount of time to grant it (usually a week or two depending on thetype and amount of material) and ask for it in writing. If the employer does notrespond, send another letter. Employers will sometimes play the game of givingyou exactly what you request, and if the request is vague or too broad (or toospecific) you may not get what you want.

Written requests are critical for establishing a record. If an employer fails toprovide the information, it is an unfair labor practice, but to sustain this chargeyou will need documentation of the request and the employers' refusal to satisfy

your request.

Costs.Employers may charge a "reasonable cost" associated with providing materials,

but costs cannot be extraordinary or designed to limit legitimate access toinformation. If costs are too high, the union has a right to negotiate alternativemeans for receiving or viewing the information.


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Tips for gr ievance meet ings

1. Remember it is about pow er. Grievance meetings do not have to becontentious or confrontational; they can be (and should be) good faith efforts tofind a resolution to a disagreement. However, they are still power struggles.

2. Remember t he "equalit y principle." In meetings with your employeras a union representative you are an "equal" to your employer.

3. I t is your meet ing -- run it l ike it is your meet ing.Your employeris accustomed to calling meetings and running them. A grievance meeting is theunion's meeting and should be conducted as such.

4. Lim it t he employer's ability t o ask quest ions. Do not let theemployer go on a fishing expedition asking questions. And when the employerasks questions, answer only the question asked.

5. Your employer is an advocate, not an arbit rator. In a grievancemeeting, both the employer and union are advocates. Do not let the employerassume the power of becoming an arbitrator during the meeting.

6. Make your employer make it s case. The employer needs to justify itsactions, especially when discipline is involved. Make sure your employer defendsits actions with specifics. One of your key tasks in a grievance meeting is tosecure information from the employer.

7. Do not deliver your ent ire case immediately. Grievance meetings,like negotiations, are all about timing. You are not obligated to (nor should you)lay all of your arguments on the table at first. Wait until the employer starts tomake a case.

Diplomacy is the art of making someoneconvince you to have it your own way.


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Labor Law 101

Fami ly and Medical Leave (FMLA)

n Purpose: To allow employees to take reasonable leave due to a serioushealth condition, for the birth or adoption of a child, or to care for a spouse,parent, son or daughter with a serious health condition.

n Leave Benefi t : Up to 12 weeks unpaid leave during a 12 month period withthe employer providing health insurance at the same level as when the leave wasinitiated.

n Covered employees:Employer has 50 or more employees who work within 75 miles of therequesting employees worksite for 20 or more weeks during the currentor previous calendar year;

Employee must have been employed for employer at least 12 months(not necessarily consecutive) and 1250 hours of service during the 12months prior to taking the leave (hours of service do not include vacationor paid sick leave)

n Reasons for t aking leave: Unpaid leave must be granted for thefollowing reasons:

to care for the employees child after birth, or placement for adoption orfoster care;

to care for the employees spouse, son, daughter, or parent who has aserious health condition; or

for a serious health condition that makes the employee unable to performthe employees job.

At the employees or the employers option, certain kinds of paid leave may besubstituted for unpaid leave, unless specified by the contract.

n Advance notice and medical cert ification: The employee may berequired to provide advance leave notice and medical certification. Taking ofleave may be denied if requirements are not met.


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The employee ordinarily must provide 30 days advance notice when leaveis foreseeable;

An employer may require medical certification to support a request forleave because of a serious health condition, and may require second orthird opinions (at the employers expense) and a fitness for duty report to

return to work.

n Job benefit s and prot ect ion: The employer must maintain the employees health insurance coverage; Upon return from FMLA leave, an employees must be restored to their

original or equivalent positions with equivalent pay, benefits and otheremployment terms, provided the employee is fit for duty and can performthe jobs essential functions;

The use of FMLA leave cannot result in the loss of any employmentbenefit that secured prior to the start of an employees leave.

n Unlaw ful acts by employers: FMLA makes it unlawful to interfere with,restrain, or deny the exercise of any right provided under FMLA; discharge ordiscriminate against any person for opposing any practice made unlawful byFMLA or for involvement in any proceeding under or relating to FMLA.

n Enforcement: The U.S. Department of Labor is authorized to investigate andresolve complaints of violations and an eligible employee may bring a civil actionagainst an employer for violations.

FMLA - Serious healt h condi t ionFMLA provides for 12 weeks off for a "serious health" condition. This is certified bythe employee's physician. Any of the following should qualify for FMLA:

inpatient care including any period of incapacity or subsequent treatment inconnection with such a stay (e.g. committed to a hospital for observationafter heart attack symptoms or after a serious accident);

i l lness or inj ury r esult ing in incapacity lasting m ore than t hree dayswith two or more treatments with at least one visit to a health care provider,which results in a regimen of supervised treatment (e.g. treatment of severeback troubles, a severe skin condition, pneumonia, etc.);

any incapacity due t o pregnancy or prenatal care even if less than 3consecutive days and even if it does not involve visiting a health care provider(such as severe morning sickness or pre-natal care);


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any period of incapacit y or t reatm ent f or an incapacit y due to achronic serious healt h condit ion even if it is less than 3 consecutive daysand even if it does not involve treatment during the absence(e.g. a chronicasthma sufferer who must stay home when air-quality levels are at a certainlevel);

cont inuing medical supervision of an incapacit ating condition f orw hich t reatm ent may not be effective (e.g. the final stages of a terminaldisease or Alzheimers, etc.);

any period of absence t o receive mul t iple tr eatment s from a healthcare provider for a condition which left untreated would cause absence ofmore than three consecutive days (e.g. kidney dialysis, restorative surgeryafter an accident, chemotherapy, etc.)

FMLA - Examples of serious healt h condit ionsBelow is a list of some of the types of health conditions covered (and not covered)by FMLA. This list is illustrative, not inclusive.

heart attacks, heart by-pass or valve operations most cancers back conditions requiring extensive therapy or surgery spinal injuries strokes severe respiratory conditions; emphysema appendicitis pneumonia severe arthritis severe nervous disorders injuries caused by serious accidents on or off the job need for prenatal care; pregnancy; severe morning sickness childbirth and recovery from childbirth mental illness resulting from stress or allergies (if other conditions are met) treatment of substance abuse (if other conditions are met) migraine headaches restorative dental or plastic surgery after an injury or disease

Some examples of health conditions that may not be covered by FMLA: cosmetic treatments (e.g. orthodontia, or acne, or skin peels, etc.) unless

inpatient hospital care is required

routine physicals, eye or dental exams common cold or flu, ear aches, upset stomachs, minor ulcers, headaches

(except for migraines) -- unless complications arise absence because of substance abuse (e.g. massive hang-over)

(Information taken from Roberta Till-Retz, Your Rights to Family and Medical Leave)


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Minnesota School Act ivi t ies Leave

Minnesota law requires that all employers must provide up to 16 hours unpaid leave inany 12-month period to an employee to attend school conferences or school-relatedactivities related to the employee's child, provided that the conference or activity cannotbe scheduled during non-work time. The employee must provide "reasonable priornotice of the leave" and must make a "reasonable effort to schedule the leave so as notto disrupt unduly the operations of the employer. An employee may substitute accruedpaid leave (e.g. vacation or PTO) for school activities leave.

Americans w it h Disabili t ies Act (ADA)

The federal ADA prohibits discrimination in most areas of employment because of adisability.

n ADA protect ions: Defines a disabled person as a person with a physical or mental handicap that

"substantially limits one or more life activities." Major life activities includecaring for oneself, walking, hearing, seeing, speaking and working (except aslimited by recent Supreme Court decisions).

Requires that an employer not discriminate in hiring, promotion, or otherwork related activities on account of a person's disability.

Requires that an employer make "reasonable accommodations" for a qualifieddisabled worker to be able to perform the "essential functions" of the job. The caveat on all ADA claims is that accommodating the disability cannot

place an "undue hardship" on the employer or threaten health and safety.

Essent ial functions of t he job.To qualify for FMLA a health care provider must find the person unable to performany one of the essential functions of the position which the employee held at the

time the need for the leave arose. The essential functions of a job are definedunder the Americans with Disability Act (ADA):

1. In general. The term essential functions means the fundamental job dutiesof the employment position the individual with the disability holds or desires.The term essential functions does not include the marginal functions of theposition.


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2.A job function may be considered essential for any of several reasons,including but not limited to the following:(i) The function may be essential because the reason the position exists is

to perform that function;

(ii) The function may be essential because of the limited number ofemployees available among whom the performance of that jobfunction can be distributed; and/or

(iii) The function may be highly specialized so that the incumbent in theposition is hired for his or her expertise or ability to perform theparticular function.

3. Evidence of whether a particular function is essential includes, but is notlimited to:(i) The employers judgment as to which functions are essential;(ii) Written job descriptions prepared before advertising or interviewing

applicants for the job;(iii) The amount of time spent on the job performing the function;(iv) The consequences of not requiring the incumbent to perform the

function;(v) The terms of the collective bargaining agreement;(vi) The work experience of past incumbents in the job; and/or(vii) The current work experience of incumbents in similar jobs.

Information taken from the ADA statutes

Reasonable accommodat ion.There are three categories of reasonable accommodation:

1. modifications or adjustments to the job application process;2. modifications or adjustments to the work environment or to the manner

and/or circumstances under which the job is usually performed;

3. modifications or adjustments that enable a qualified employee to enjoy equalbenefits and privileges of employment.

An employer is not required under reasonable accommodation to:

1. eliminate or reassign an essential functions of the job;2. lower production standards -- either qualitative or quantitative;


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3. provide personal use items such as a wheelchair, eyeglasses, hearing aids,and prosthetic limbs if it is required outside the workplace;

4. violate the rights of other employees under a collective bargainingagreement.

An adjustment or modification meets the reasonable accommodation obligation if itis effective -- it does not have to be the best or the preferred accommodation.

Undue hardship.An adjustment or modification meets the reasonable accommodation obligation if itdoes not impose an undue hardship on the employer.

An accommodation presents an undue hardship if:

1.

it imposes an undue financial burden on the employer;

2. it is unduly extensive, substantial and disruptive;3. it poses a direct threat to health and safety;4. it unduly disrupts the nature and operation of the business.

The size and financial capability of the employer is taken into account whendetermining whether an accommodation is reasonable or not.

FMLA and ADA.Many of the same medical conditions are covered under both ADA and FMLA. If thisis the case, the employee can choose which law best serves the employee's needs.For example, under ADA, the employer can require the employee to perform "lightduty" work as long as it is within the employee's restrictions. Under FMLA, theemployer has no right to require light duty.

Caution. Be careful and make sure you explore the consequences of whateveroption you choose. Sometimes choosing one option (e.g. refusing light duty workand claiming FMLA) may foreclose other benefits (e.g. such a choice may jeopardize

a workers compensation claim).


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