The U.S. Department of Labor`s (WHD) Department of Wages and Hours has just issued an opinion letter on the designation of FMLA leave in relation to workers covered by collective agreements (“CBA”) with a union. This notice letter provides useful clarification on a subject that is often confusing for employers (and also for unions). The employee who requested the expertise stated that the employer had recently updated its vacation policy to align with a March notice letter on the subject. While some employers have guidelines that require or allow workers to use paid leave to replace wages while taking unpaid FMLA leave, DOL stated in the March letter that paid leave must take place at the same time as FMLA leave. It is significant that, according to the March instructions, employees cannot save their holidays in FMLA if they now have to take time off for a reason called FMLA, said Michele Haydel Gehrke, a lawyer at Reed Smith in San Francisco. In its latest letter, DOL confirmed that FMLA qualifying leave must continue to be designated as such when a collective agreement provides for paid family and medical leave. Employer representation in the defence of alleged class actions under the Fair Labor Standards Act and class actions under the New York State Wage and Hour Law A CBA may include stricter certification and return requirements than the FMLA. Have we not only found that a CBA can offer more protection than the FMLA, but not less? Doesn`t this requirement provide less protection for an employee? Doesn`t that mean that a staff member who proposes certification or a return date under the FMLA is entitled to reinstatement? The Seventh Circuit Court of Appeals in Harrell v USPS 445 F.3d 913 (2006) said no. In this case, the worker gave his doctor the certificate that he would need four weeks of leave, followed by another medical mention indicating his return on the work date. Harrell submitted that these certifications complied with FMLA requirements and that he should therefore have returned to work on the specified date. However, the CBA required documentation on the nature and treatment of his illness, the medications he was taking and data he could not work with. When Harrell refused to meet the CBA`s requirements, he was fired.
The court ruled against Harrell by referring to 29 USC Section 2614 (a) (a), which allows employers to impose a uniform enforcement policy requiring workers returning from fmla leave to comply with stricter requirements than those imposed by the FMLA itself. In the same section, it is also stated that the provision authorizing the return to work is not a substitute for a current government or local collective or collective agreement governing the return of workers to the workplace. Similarly, Harris v Emergency Providers Inc. 02-1056 (8th Circuit 2002) found that, under the current CBA, an employer could request a medical fitness examination before a worker returns to work after medical leave. In a letter of opinion of September 10, 2019, DOL appears to have clarified this issue. Based on its previous notice letter, DOL stated that an employer should not delay the designation of paid leave as FMLA leave, even if the delay is otherwise in accordance with a collective agreement. Employers may be required to re-examine how their collective agreements (ABCs) handle leave claims from their unionized employees. A recent notice letter from the Ministry of the Laboratory (DOL) makes it clear that the Family and Medical Leave Act (FMLA) does not take a back seat from a CBA that requires employees to exhaust paid leave before using the FMLA. In the interest of union peace, many employers have negotiated in their collective agreements conditions that require workers to exhaust all paid leave before using the FMLA.