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To arrange for this or any other Training for Supervisors course, or to ask about legal issues raised by the coursematerials, contact the Law Department Field Office that serves your office or facility. See the Law DepartmentField Office listings on our Web site at blue/uspslaw.

This publication is intended only for internal training purposes and as a general reference to be used in conjunction withtraining sessions conducted by the Law Department. It is not equivalent to an official handbook, manual, or policy statement,and may contain representations that are subject to interpretation and potential change in the law. All examples areintended as teaching exercises and not as representations of actual Postal Service events or practices.

L A W D E P A R T M E N Tuspslaw

Training forSupervisors

Family andMedical LeaveAct

February 2003 Prepared by the Law DepartmentUnited States Postal Service

Visit the Law Department Web site at blue/uspslawfor course and reference materials, directory listings,publications, and more.

Training for SupervisorsFamily and Medical Leave Act

2/2003

CONTENTS

A. What does the FMLA provide? . . . . . . . . . . . . . . . . A - 1

• Protected absence from workplace . . . . . . . . . . . . . . . . . . . . . . . . . . . A - 1

• No interference with employee's rights . . . . . . . . . . . . . . . . . . . . . . . . . A - 2

B. Who is eligible for FMLA-protected leave? . . . . . . . . B - 1

• â 12 months of Postal Service employment . . . . . . . . . . . . . . . . . . . B - 1

• ã 1,250 work hours in year preceding beginning of leave . . . . . . . . B - 1

C. How much FMLA-protected leave do they get? . . . . C - 1

• Full-time employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C - 1

• Part-time and flexible schedule employees . . . . . . . . . . . . . . . . . . . . . . C - 1

• Stacking FMLA leave between postal leave years . . . . . . . . . . . . . . . . . C - 2

D. How may the employee take the leave? . . . . . . . . . D - 1

• â Intermittent leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D - 1

• ã Reduced leave schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D - 1

• ä Block leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D - 1

• Foreseeable leave schedules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D - 2


CONTENTS – continued

ii2/2003

E. For whose care may the employee take FMLA-protectedleave? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E - 1

• Spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E - 1

• Parent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E - 1

• Son or daughter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E - 2

F. When is an employee “needed to care for” the familymember? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F - 1

• Physical needs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F - 1

• Psychological needs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F - 1

G. For what health conditions? . . . . . . . . . . . . . . . . . G - 1

• 6 types of serious health conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . G - 1

• Serious health conditions defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . G - 3

â Overnight hospital stay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . G - 3

ã Over three-day incapacity plus treatment . . . . . . . . . . . . . . . . . . . G - 3

ä Pregnancy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . G - 3

å Chronic condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . G - 4

æ Permanent or long term condition . . . . . . . . . . . . . . . . . . . . . . . . G - 4

ç Multiple treatments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . G - 4

H. Who is a health care provider? . . . . . . . . . . . . . . H - 1



iii2/2003

I. May the employer require a certification of the healthcondition? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I - 1

• Procedure for requesting certification of a serious health condition . . . . . I - 2

• Cure procedures for incomplete certifications . . . . . . . . . . . . . . . . . . . . . I - 4

• Options when certification is complete . . . . . . . . . . . . . . . . . . . . . . . . . . I - 5

J. May the employer request an update of the certification?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J - 1

K. When may an employee take FMLA-protected leave tobond with a child? . . . . . . . . . . . . . . . . . . . . . . . . . K - 1

L. When and how must the employee notify the employerabout the need for the leave? . . . . . . . . . . . . . . . . . L - 1

M. What must the employer do when it receives thenotification? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . M - 1

• Individual notice requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . M - 1

• General notice requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . M - 3

N. What may the employer require when an employeereturns from FMLA-protected leave? . . . . . . . . . . . . N - 1

O. Where should FMLA-related records be maintained?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . O - 1



iv2/2003

P. What about fraud? . . . . . . . . . . . . . . . . . . . . . . . . . P - 1

Q. Where will FMLA disputes be processed? . . . . . . . Q - 1

R. How do other laws, postal policies and NationalAgreements relate to FMLA? . . . . . . . . . . . . . . . . . . R - 1

• Privacy Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R - 1

• Federal Employees Compensation Act . . . . . . . . . . . . . . . . . . . . . . . . . R - 2

• Rehabilitation Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R - 3

• Fair Labor Standards Act (FLSA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R - 4

• Title VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R - 4

• Merit Systems Protection Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R - 5

• ELM requirements for paid leave and call-in procedures . . . . . . . . . . . . R - 6

• National Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R - 7


A - 12/2003

A. What doesthe FMLAprovide?

Protected absence from workplace

# Right to be absent from workplace for upto 12 workweeks of unpaid leave for thefollowing events:

C birth of son or daughter

C placement of son or daughter foradoption or foster care

C to care for certain family members withserious health conditions

C because of employee's own serioushealth condition

# No loss of benefits accrued prior to takingFMLA-protected leave

# Continuation of health care benefits

# Right to return to same or equivalentposition after FMLA-protected leave

# Right to use accrued paid leave duringFMLA-protected leave, if taken in accor-dance with postal policies on paid leave


A - 22/2003

A. What doesthe FMLA

provide? (cont’d)

No interference with employee's rights

# No discipline for FMLA-protected absences

# No retaliation for exercising FMLA rights

# No consideration of the use of FMLA leavein making employment decisions

# No discrimination against prospectiveemployees for FMLA use

# No attempts to discourage FMLA use oravoid FMLA responsibilities


B - 12/2003

B. Who iseligible for

FMLA-protected

leave?

Eligible employees must meet tworequirements:

â 12 months of Postal Service employment

# Includes any postal employment duringlifetime

# Does not have to be consecutive

# Leave time counts

# Round up for part week employment (if anyday, get whole week)

# Rarely does other federal employmentcount

# Military leave taken while a postalemployee counts

ã 1,250 work hours in year precedingbeginning of leave

# Work hours includes straight time andovertime actually worked

# Includes Union steward time when on theclock.

# Does not include leave time (exception:military leave)

# Does include time that would have beenworked as part of make whole backpayrelief ordered by an appropriate judicialauthority (MSPB award, arbitration award,etc.).


B - 22/2003

B. Who iseligible for

FMLA-protected

leave? (cont’d)

T Once an employee is eligible for acondition, he or she remains eligible forabsences related to that condition for therest of the postal leave year.

T Once eligible, eligibility will not bereassessed for this condition until the firstabsence for this condition in the newleave year.


C - 12/2003

C. How muchFMLA-

protectedleave do they

get?

Total of 12 workweeks for all FMLA-protectedabsences, combined, during postal leave year.

Full-time employees# 12 workweeks amounts to 480 hours# Overtime not considered in workweek

determination; therefore, FMLA-protectedabsence during overtime is not countedagainst the 480-hour entitlement.

Part-time and flexible schedule employees# 12 workweeks based on the employee's

normal workweek (e.g. 12x30 hours perweek = 360 a year)

# Calculated by averaging number of hoursworked for 12 weeks prior to beginning ofthe leave


C - 22/2003

C. How muchFMLA-

protectedleave do they

get? (cont’d)

Stacking FMLA leave between postal leaveyears

# If an employee's absence continues withouta break from one postal leave year to thenext, and the employee's FMLA protectiondoes not end before the beginning of thenew leave year, the employee's FMLAprotection also continues unbroken; andthe employee may use his or her new FMLAleave 12 workweek entitlement at thebeginning of the new leave year.

# If employee is eligible at the beginning ofthe FMLA-protected absence that carriesover between leave years, he or sheremains eligible for the duration of thatcontinuous unbroken absence.


D - 12/2003

D. How maythe employee

take theleave?

Three common types of leave schedules:

â Intermittent leave# Includes multiple, episodic absences for

the same qualifying event (e.g., episodicflare-ups of a condition).

# An employee is entitled to intermittentleave for a serious health condition onlywhen it is medically necessary to takeleave in this way.

ã Reduced leave schedule# A reduction in the regularly scheduled

number of hours per day or per week dueto a single qualifying event (e.g.,increasing number of work hours a dayover a period of weeks after returning froma serious injury).

# An employee is entitled to a reduced leaveschedule for a serious health conditiononly when it is medically necessary to takeleave in this way.

ä Block leave# Covers one continuous absence made up

of consecutive days.


D - 22/2003

D. How maythe employee

take theleave? (cont’d)

Foreseeable leave schedules

# Employees must attempt to schedule suchleave so as not to disrupt postaloperations, subject to approval by healthcare provider.

# During leave schedule, employees can betemporarily reassigned to an alternativeposition that better accommodates theleave schedule. This alternative positionmay not be one with different work hours.


E - 12/2003

E. For whosecare may the

employeetake FMLA-

protectedleave?

Eligible employees may use FMLA-protectedleave to care for certain family members withserious health conditions:# Spouse# Parent# Son or daughter

Spouse# Legally married pursuant to state law# Includes common law marriages pursuant

to state law# Same sex unions are not recognized under

the FMLA

Parent# Biological parents# Individuals deemed to have acted "in loco

parentis" (had primary responsibility for theday to day care and financial support ofthe employee prior to the employee's 18thbirthday)

# Even if the employee had an "in locoparentis" parent, the employee always hasrights to care for biological parents.


E - 22/2003

E. For whosecare may the

employeetake FMLA-

protectedleave? (cont’d)

Son or daughter

# Biological, adopted, foster child# Legal ward# Stepchild

# Child of a person acting "in loco parentis"# If the son or daughter is 18 or over, he or

she must have a mental or physicalimpairment, of a long term or permanentnature, that substantially limits one ormore major life activities and suchimpairment must make the son or daughterincapable of self care.


F - 12/2003

F. When is anemployee

“needed tocare for” the

familymember?

Employee must be "needed to care for" thefamily member with the serious healthcondition.

Physical needs# Medical needs# Hygiene# Nutrition# Safety# Cannot drive themselves to doctor

Psychological needs# Leave allowed for psychological comfort

and reassurance# Limited to family members receiving

inpatient or home care

Leave allowed for making arrangements forchanges in care, such as nursing home, andwhere employee is filling in for other caregivers.


G - 12/2003

G. For whathealth

conditions?

If leave is for a health condition, the employeeor family member must have a "serious healthcondition" as defined by the FMLA.

6 types of serious health conditions1. Overnight hospital stay

2. Over three-day incapacity plus treatment

3. Pregnancy

4. Chronic condition

5. Permanent or long term incapacity

6. Multiple treatments

All serious health conditions require"incapacity." When applying the definitionslisted below, "incapacity" means:

# Inability to work at all

# Inability to perform any one essentialfunction of position because of thecondition or because of absence fortreatment

# Inability to attend school for children


G - 22/2003

G. For whathealth

conditions?(cont’d)

All serious health conditions except pregnancyand permanent/long term incapacity requireactive "treatment." When applying thedefinitions listed below, "treatment" includes:

# Examination to determine if a serioushealth condition exists

# Evaluations of a serious health condition

# Does not include routine physical, eye, ordental examinations


G - 32/2003

G. For whathealth


Serious health conditions defined

â Overnight hospital stay

Incapacity related to condition for which anovernight stay in a hospital, hospice orresidential medical care facility occurred

ã Over three-day incapacity plustreatment

Period of incapacity of more than threeconsecutive calendar days and . . .

# treatment by health care provider two ormore times

# or one treatment by health care providerresulting in a "regimen of continuingtreatment" (generally, course of prescriptionmedication or therapy requiring specialequipment, not activities that may beself-initiated such as over-the-countermedications, bed rest, increased fluids,etc.)

ä Pregnancy

# Any period of incapacity due to pregnancyor for prenatal care

# Includes morning sickness, doctor-orderedbed rest, medical appointments, recovery


G - 42/2003

G. For whathealth


å Chronic condition

# Health condition requires periodic visits fortreatment

# Continues over an extended time period

# Causes incapacities on an episodic basis

æ Permanent or long term condition

# A period of incapacity which is permanentor long term due to a condition for whichtreatment may not be effective (e.g.,Alzheimer's)

# Must be under the care of health careprovider, but does not need to be receivingactive treatment

# Mostly used in needed to care for familymember situations

ç Multiple treatments

Any period of incapacity to receive multipletreatments by a health care provider or underthe supervision of a health care provider for . . .

# restorative surgery after an accident

# or a condition which, if untreated, wouldlikely cause more than 3 days of incapacity


H - 12/2003

H. Who is ahealth care

provider?

Types of acceptable "health care providers"(HCPs) are listed in the DOL regulations at 29C.F.R. 825.118. They include:

# medical doctors and doctors of osteopathy

# chiropractors (only for treatment ofmanipulation of spine to correct asubluxation verified by x-rays)

# nurse practitioners and clinical socialworkers who can diagnose and treatwithout supervision

# Christian Science practitioners

# health care providers that insurance covers

# health care providers who practice in aforeign country

All must be authorized to practice underapplicable state or foreign country law andperforming within the scope of their practice asdefined by such laws.

Absence for substance abuse treatment islimited to treatment by a health care provider ora provider of health care services on referral ofa health care provider.


I - 12/2003

I. May theemployerrequire a

certification ofthe healthcondition?

An employer may require a "certification" of theserious health condition of the employee or thefamily member.

Once fully certified for a condition, theemployee remains certified for the condition forthe life of the condition or until recertification.

To be complete, a certification should include:

# medical facts that support that a serioushealth condition is causing a currentincapacity

# date which the condition began andprobable duration of condition

# whether the individual is currentlyincapacitated and for how long

# specific guidance about expected futureincapacities related to this condition (i.e.,expected frequency and duration of futureflare ups and treatment schedule)

# if requested leave schedule is intermittentor reduced leave, whether the schedule ismedically necessary

# if family member has the condition, factssupporting the "needed to care for" analysis

# be signed by a "health care provider"


I - 22/2003



(cont’d)

Procedure for requesting certification of aserious health condition

# Request certification in writing within 2business days of learning of the need forthe potentially FMLA-protected leave(sending the Publication 71 with the 3971serves this purpose)

# Inform the employee that he or she has aminimum of 15 days to return a completecertification, with extensions for goodcause (the Publication 71 serves thispurpose)

# Inform the employee that failure to providethe certification in a timely manner willresult in the denial of FMLA protection (thePublication 71 serves this purpose)

# Provide the employee a 4-page DOL FormWH-380

# Provisionally protect the absence asFMLA-protected, pending documentation

# If the employee returns a completecertification in a timely manner, consideroptions for complete certifications (seebelow)

# If the employee returns no medicaldocumentation, provide the employeenotice of the denial of FMLA-protection


I - 32/2003



(cont’d)

Procedure for requesting certification of aserious health condition (cont’d)

# If the employee returns untimely medicaldocumentation, provide the employeenotice that the absence prior to the datethat the documentation was provided is notFMLA-protected; determine whether thedocumentation is being submitted inconnection with a current absence; and ifso, determine whether the certification iscomplete or incomplete

# If the employee returns incomplete medicaldocumentation in a timely manner, providethe employee an opportunity to curedeficiencies (see below)

Certifications may be returned in any form aslong as they contain the required informationand are signed by a health care provider.Returning the DOL Form WH-380 is not arequirement. Regardless of the form, thecertification must be complete.

Do not accept unsolicited certifications forunforeseeable leave (i.e., migraines, asthma)offered by employee not in connection with anabsence. Accept unsolicited certifications forforeseeable leave (i.e., scheduled operation,scheduled treatment) offered in connection withan upcoming absence.


I - 42/2003



(cont’d)

Cure procedures for incomplete certifications

# If the certification is returned and it isincomplete, the employer must provide theemployee an opportunity to cure thedeficiencies

# Send the employee a letter which describesthe deficiencies

# Inform the employee that he or she hasanother reasonable time period to return acomplete certification, generally 15 days(extensions may be granted)

# Inform the employee that failure to providethe certification in a timely manner willresult in the denial of FMLA protection

# Maintain the provisional protection duringthe cure procedures

# Provide the employee a copy of theincomplete certification submitted and the3971 showing you have provisionallyprotected the leave.

# If the employee does not cure thedeficiencies in a timely manner, providethe employee written notice that theabsence is not FMLA-protected bycompleting the 3971 and giving a copy tothe employee.


I - 52/2003



(cont’d)



(cont’d)

Cure procedures for incomplete certifications(cont’d)

# If the employee returns an untimely cure,provide the employee written notice thatthe absence prior to the date that theadditional documentation was provided isnot FMLA-protected; determine whether thedocumentation is being submitted inconnection with a current absence; and ifso, consider options for completecertification with regard to the currentabsence forward (see below)

Options when certification is complete# Complete, and you do not intend to

request "clarification" (see below) or secondopinion, notify employee of FMLA approvalor disapproval within 2 business days(change the provisional protection to afinal designation of FMLA-protected or not)

# Complete, but you reasonably suspectalteration or other fraud on certification –seek "clarification" (see below) or send theoriginal certification to the HCP forconfirmation of provided medicalinformation only (no request for additionalmedical information) and copy theemployee


I - 62/2003



(cont’d)

Options when certification is complete (cont’d)

# Complete, but unclear or you questionvalidity of medical opinion

T Seek "clarification"

C Get employee's permission.

C Then ask medical unit to contactemployee's HCP for medicalinformation necessary to clarify thecertification

T Consider second medical opinion

C Second opinions must take placebefore a recertification of the conditionis requested or accepted

C Should be within a reasonable timeafter the initial certification is offeredor accepted (generally within first 3-6months after original certification)

C Employee permission is not required(second opinion is just an examinationand evaluation, not treatment)

C Employer chooses HCP, must not beone regularly used by USPS

C HCP should be a board certifiedspecialist in the medical area inquestion


I - 72/2003



(cont’d)


# Complete, but unclear or you questionvalidity of medical opinion (cont'd)

T Consider second medical opinion(cont'd)

C HCP should be within employee'snormal commuting distance withlimited exception.

C USPS pays exam and travelexpenses

C Employee is not on work time orpaid administrative leave for timeattending exam. Bargaining Unitemployees may use appropriate paidleave. Exempt employees can bescheduled on off days unpaid orscheduled on a workday and paid ornot according to existing office policyregarding leaves for medicalappointments.

C Can request a second opinion for afamily member's serious healthcondition

C Employer should inform secondopinion HCP that the inquiry shouldbe limited to the condition in theoriginal FMLA certification.


I - 82/2003



(cont’d)




C A medical exam providinginformation relevant to FMLAcertification requirements will beconsidered a second opinion exam,with applicable limitations; you cannotcall it a "Fitness For Duty" exam anddodge the second opinion rules.

C If the second opinion results differfrom the initial certification, providethe employee with the option of a thirdopinion.

# Third opinions are at theemployee's discretion

# If employee refuses third opinion,second opinion stands

# If employee attends third opinion,third opinion stands

# Employer and employee jointlydesignate HCP

# Employer pays exam and travelexpenses


I - 92/2003



(cont’d)




C If employee requests results ofsecond or third opinion, employermust provide results within 2 businessdays

C Refusal to attend a second opinionor to cooperate in the process resultsin a denial of FMLA protection forabsences related to the condition atissue

C Continue provisional protectionduring second and third opinionprocess

C Notify employee of final designationof FMLA-protection or not within twobusiness days of attaining allresults/information


J - 12/2003

J. May theemployer

request anupdate of thecertification?

An employer may request a recertification of acondition (i.e., updated medical informationprovided by employee's health care provider).

Recertifications

# Recertifications should be requested due tochanges in the condition (e.g., absencesexceeding expected frequency andduration) or due to the staleness of theprior certification

# Deciding whether to request or accept arecertification should be made on acase-by-case basis

# Once a condition is recertified, employercannot request or require a second/thirdopinion

# Recertifications must be requested inconnection with an absence caused by theserious health condition being recertified

# Recertifications should provide "complete"medical information (same informationrequired in a complete certification, andsame requirement to provide anopportunity to cure; see Section I)


J - 22/2003

J. May theemployer


(cont’d)

Recertifications (cont’d)

# If recertification is incomplete andemployee fails to cure deficiencies,employee's protection is delayed untilcomplete information is provided (delayedprotection means a denial of protectionbetween date of request for recertificationand return of complete medicalinformation)

# Employee pays for recertification

# Can request recertifications of familymember's serious health condition


J - 32/2003

J. May theemployer


(cont’d)

Recertifications (cont’d)

# Minimum times periods must pass:T Chronic conditions, permanent/long

term incapacities, pregnancy – nosooner than every 30 days (exceptions:manifest change in condition or doubtreason for absence)

T Incapacity lasts more than 30 days –no sooner than length of incapacitycertified (exceptions: manifest changein condition, doubt reason forabsence, or employee requestsextension of leave)

T Intermittent or reduced leaveschedule: no sooner than duration ofschedule certified (exceptions: manifest change in condition, doubtreason for absence, or employeerequests extension of leave schedule)

T For all other conditions: no soonerthan every 30 days (exceptions =manifest change in condition, doubtreason for absence, or employeerequests extension of leave)

# If offered an unsolicited recertification,decide whether to accept it or notconsidering preservation of second opinionrights, etc. If would be requesting onesoon, accept.


K - 12/2003

K. When mayan employee

take FMLA-protected

leave to bondwith a child?

FMLA-protected absences may be taken forpurposes of bonding with a child, after birth orplacement for adoption or foster care.

# Applies to fathers and mothers

# FMLA-protected leave for bondingpurposes must be taken within 1 year ofthe birth or placement

# Employees are only entitled to bondingtime if taken as block absence

# Bonding time may be taken intermittently atthe employer's discretion (first absence isentitlement, subsequent absences are atemployer's discretion)

# Bonding time does not have to begin onthe date of birth or placement

# Bonding time may take place with childrenplaced for adoption or foster care but onlyif there is a state action, (i.e. court order ororder of a child welfare agency),confirming the placement

# Each birth or each placement is a newqualifying event


K - 22/2003

K. When mayan employee

take FMLA-protected

leave to bondwith a child?

(cont’d)

# FMLA-protection must be granted forabsences before the actual placement foradoption or foster care, if necessary for theplacement (e.g., court appearances,lawyer consultation, counseling sessions)

# May require reasonable documentation forconfirmation of family relationship (returnofficial documents, keep copies)

# If still available for the leave year, eachparent may use his/her entire availableFMLA leave bank (up to 12 weeks) forbonding, even if both parents work for theUSPS


L - 12/2003

L. When andhow must the

employeenotify theemployerabout the

need for theleave?

# Employee need not mention FMLA in orderto be entitled to its protection

# Employee must present facts that indicatepotential FMLA protection

# Verbal notification is sufficient

# Employee may use spokesperson, ifemployee is unable to provide notice

# Employer is required to make follow upinquiries to determine if FMLA protection isrequired

# Employee may not choose to forego FMLAprotection; if it applies and otherrequirements are met, employer mustdesignate absence as FMLA-protected.


L - 22/2003

L. When andhow must the

employeenotify theemployerabout the

need for theleave? (cont’d)

# Employee must provide FMLA notice in atimely manner:

T If the need for leave is foreseeable, morethan 30 days in advance, employee mustnotify at least 30 days in advance.

T If the need for leave is unforeseeable, orforeseeable but not 30 days in advance,employee must provide notice as soon aspracticable under the circumstances(generally, within two business days oflearning of the need for leave)

T This does not alter or affect Postal Servicesick leave policy, which requiresemployees to call in as soon as possiblein order to receive paid leave.

# Employee must provide FMLA notice onceper condition, except that unforeseenabsences and changes in leave schedulerequire notice as soon as practicableunder the circumstances (generally, withintwo business days of learning of the needfor the absence or the change in schedule)

# Lack of timely notice may result in delay ofFMLA protection

# Failure to provide any notice that the leavemay be FMLA-protected results in denial ofFMLA protection


M - 12/2003

M. What mustthe employer

do when itreceives thenotification?

Individual notice requirement

# Employer must provide individual notice ofrights and responsibilities to employeewhen the employee either seeks theprotection of FMLA or the employee'sabsence might be protected by FMLAbased on information provided by theemployee

# Publication 71 and PS Form 3971 withFMLA information completed meets thePostal Service's individual noticerequirements

# Provide employee with Publication 71 andPS Form 3971 with FMLA informationcompleted within 2 business days ofreceiving employee notice (if serious healthcondition is involved, also provide DOLWH-380)

# PS Form 3971 should be used to notify theemployee about FMLA eligibility:

T Upon receiving employee notice,make eligibility determination.

T If employee does not meet FMLAeligibility requirements, notify theemployee by using the PS Form 3971.

T Notify the employee of estimated datethat the employee will meet theeligibility requirements by using the PSForm 3971


M - 22/2003



(cont’d)

Individual notice requirement (cont’d)

# PS Form 3971 should be used to notify theemployee about FMLA designations:

T Upon receiving employee notice,designate the absence as provisionallyFMLA protected, pendingdocumentation (if additionaldocumentation is required)

T Provide employee notice of theprovisional designation by using thePS Form 3971

T After all documentation is received, ortime to submit has expired, provideemployee notice of the finaldesignation of FMLA-protection or notby using an edited version of the PSForm 3971 already created for thisabsence

# Note on PS Form 3971 if employee isprovided Publication 71 and ifdocumentation is required.

# For chronic conditions, pregnancy,permanent/long term conditions, orconditions requiring multiple treatments,individual notice must be provided at leastonce every six months.


M - 32/2003



(cont’d)

General notice requirement

# DOL Poster WH-1420 must be posted inevery facility in a conspicuous place whereemployees are likely to read it

# Penalties for failing to post include a fineand losing the employer's right to enforceemployee notice requirements


N - 12/2003

N. What maythe employerrequire whenan employeereturns from

FMLA-protected

leave?

Employees have a right under the FMLA toreturn to same or equivalent job after aFMLA-protected absence if the employee canperform the essential functions of his or her job.

# Other laws may provide a greater return towork right than the FMLA, such asRehabilitation Act.

# FMLA does not provide a right to amodified position or to another position.

# If other actions (such as a RIF or removalfor reasons unrelated to the FMLA absence)would cause a person's employment toend, FMLA does not provide a right toreturn.


N - 22/2003

N. What maythe employerrequire whenan employeereturns from

FMLA-protected

leave? (cont’d)

FMLA allows employer to require a return towork statement when returning from an FMLA-protected absence in certain circumstances.# Under FMLA, a simple statement by a

health care provider of the ability toperform the essential function of theposition is sufficient for non-bargainingunit employees. In addition, employerscannot require a return to work statementfor each return from intermittent absences.

# Employee pays for return to work statement# Cannot attain a second or third opinion on

a return to work statement# Under FMLA, employers may enforce

collective bargaining agreements;therefore, bargaining unit employees aresubject to different requirements in certaincircumstances:T If the return is from an FMLA-protected

absence, and the condition causingthe absence is listed in ELM Part 865,USPS can require a return to workclearance through the medical unit.

T If the return is from an FMLA-protected"intermittent" absence, and thecondition causing the absence is listedin ELM Part 865, the medical unit willmake a determination at the returnfrom the first absence whether return towork clearances will be required forreturn from all intermittent absences.


O - 12/2003

O. Whereshould

FMLA-relatedrecords be

maintained?

Where IRM/RMD is operational

# All FMLA information, medical andnon-medical, is kept in the FMLACoordinator's Office.

# Restricted medical information, such ascertifications, must be kept in a locked filecabinet.

# This filing system is a Privacy Act System ofRecords defined in the Appendix to theASM.

# Documentation must be maintained forthree years.

Where IRM/RMD is not operational

# All non-medical FMLA information is keptby the employee's supervisor.

# Employee's supervisor also keeps redactedmedical documentation, redactingrestricted medical information (such asdiagnoses, but not absence schedules)

# Medical unit maintains complete,unredacted medical documentation

# Documentation must be maintained forthree years.


P - 12/2003

P. What aboutfraud?

FMLA does not protect employees who engagein fraud.# An employee who fraudulently seeks leave

under the FMLA is not entitled to FMLAprotection and the leave may be denied ordesignated as AWOL.

# Postal Service may take corrective actionregarding fraudulent FMLA claims.


Q - 12/2003

Q. Where willFMLA disputesbe processed?

Available forums for FMLA dispute resolution# APWU-USPS pairs at Area level resolve

disputes not taken to the grievance process# Grievance process# Department of Labor# Federal district court# Arbitrators, MSPB administrative judges,

and 650 Hearing Officers decide if actionwas appropriate, but not whether FMLAwas violated

# Two-year statute of limitations oncomplaints to DOL or district court

# Three-year statute of limitations if willfulviolation is found


R - 12/2003

R. How doother laws,

postal policiesand National

Agreementsrelate toFMLA?

Privacy Act

# Agency official making the FMLA decisionhas a need to know all the informationnecessary to make an FMLA determination.

# Agency official making the FMLA decisionmay review certification that providesrestricted medical information.

# Agency official making FMLA decision mayshare information on a need-to-know basiswith a more knowledgeable person withinthe USPS for advice if necessary.

# See Section O for FMLA documentationmaintenance requirements.

# Willful violations of the Privacy Act canlead to individual liability.


R - 22/2003


postalpolicies, and

NationalAgreements

relate toFMLA? (cont’d)

Federal Employees Compensation Act

# FECA provides compensation to theemployee if the injury/illness is job-related.

# FMLA provides the right to be absent dueto a "serious health condition," regardlessof the cause of the condition.

# Many absences caused by job-relatedinjury or illness are also absencesprotected by the FMLA.

# Employees do not choose between the twolaws, each provides distinct entitlementsand may relate to the same condition.

# Employee may be absence due to ajob-related injury, being paid bycontinuation of pay (COP), and theabsence may be FMLA-protected andcount against the 12 workweekentitlement.

# An employee who refuses a limited dutyjob offer will not generally continue toreceive compensation benefits under theFECA.

# An employee who refuses a limited dutyjob offer can remain away from work underFMLA if he is unable to perform oneessential function of his position, but onlyas long as his 12 workweek bank ofFMLA-protected leave will allow.

# Employer must meet FMLA noticerequirements, even for job-related injuries,which includes eligibility determinationsand provisional/final designations.


R - 32/2003


postalpolicies, and

NationalAgreements


Rehabilitation Act

# Qualified individual with a disability maybe entitled to a reasonable accommo-dation to enable him or her to be able toperform the essential functions of his or herposition under the Rehabilitation Act.

# Reasonable accommodation under theRehabilitation Act is an obligation separatefrom those required by the FMLA, but eachlaw may relate to same condition.

# Requests for intermittent leave or reducedschedule because of the employee's ownserious health condition under the FMLAmay also be requests for reasonableaccommodation under the RehabilitationAct.

# Light duty requests may be requests forreasonable accommodation under theRehabilitation Act, but light duty is not anentitlement under the FMLA.

# FMLA does not provide a right to amodified job or another job; it protectsabsences and provides the right to returnfrom a protected absence to the position ifthe employee can perform all of theessential functions of the position.


R - 42/2003


postalpolicies, and

NationalAgreements


Fair Labor Standards Act (FLSA)

# Only "actual work hours," as defined by theFLSA, are used to compute the 1250 workhours eligibility requirement, with theexception of military leave, which is alsocounted, and the time the employee wouldhave worked as part of a make wholebackpay relief ordered by an appropriatejudicial authority (MSPB award, arbitrationaward, etc.).

# An exempt employee's pay can be "docked"for absences of less than one day due toan FMLA-covered condition.

# The Postal Service is an "employer" forFMLA purposes because of its inclusionunder the FLSA.

Title VII# Avoid complaints of Title VII discrimination

by treating employees similarly undersimilar circumstances when making FMLAdeterminations.

# Avoid sex discrimination complaints byremembering that husbands are entitled toleave if needed to care for their wives whentheir wives are incapacitated due topregnancy.

# Avoid sex discrimination complaints byremembering that both fathers and mothersare entitled to leave for bonding purposes.


R - 52/2003


postalpolicies, and

NationalAgreements


Merit Systems Protection Board

# Enforced leave is the involuntary placementof an employee on any type of leave, otherthan administrative leave.

# Claims of enforced leave for a period ofmore than 14 calendar days may beappealed to the Merit Systems ProtectionBoard (MSPB), provided that the employeeis in a group with rights to appeal certainactions to the MSPB.

# An employee may be considered onenforced leave when the Postal Servicebars the employee from returning to workwhen he or she is ready, willing, and ableto work, either with or without medicallimitations.

# This situation often occurs when anemployee requests light duty work, and thePostal Service bars the employee fromworking because it determines that it doesnot have any work available within theemployee's restrictions.

# Under these circumstances, the USPS mustprovide the employee with procedural dueprocess and notice of his or her MSPBappeal rights, even if the employee'sabsence is being protected by the FMLA.


R - 62/2003


postalpolicies, and

NationalAgreements


ELM requirements for paid leave and call-inprocedures

# FMLA does not alter ELM requirements thatmust be met to obtain paid leave (sickleave and annual leave), including noticerequirements and documentationrequirements.

# USPS cannot require sick leavedocumentation if employee electsFMLA/LWOP as opposed to FMLA/SL,FMLA/SLDC or FMLA/Al in lieu of SL.

# If employee fails to comply with call inprocedures, but meets the FMLAcertification requirements, and the absenceis otherwise FMLA-protected, the employeeshould be charged LWOP -- never AWOL.However, corrective action may be takenwith regard to the failure to follow call inprocedures.


R - 72/2003


postalpolicies, and

NationalAgreements


National Agreements

# FMLA is not intended to changebargained-for agreements betweenemployer and employees.

# Sick leave for dependent care is a paidleave category separate from FMLA.

# USPS limitation of sick leave for dependentcare to 80 hours a leave year to care for illfamily members should be enforced; oncethe 80 hours are exhausted, the employeemust use annual leave or LWOP.

# Light duty is separate from FMLA, whichdoes not provide a right to a modifiedposition or another position.

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