A CBA may contain stricter certification and return requirements than 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. 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. This is not the only case where the FMLA and collective bargaining will pose a challenge to employers. We will discuss some of these other cases in the next week. We see each other! 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). Although a worker is entitled to paid family and health leave under a collective agreement, the employer must still take unpaid family and medical leave (FMLA) as such, even if the worker prefers to take paid leave first. The worker who sought WHD`s advice stated that his employer had recently introduced a policy change that required its employees to replace FMLA leave for accrued paid leave. However, the terms of a collective agreement allowed workers to delay FMLA leave until available paid leave was exhausted.
The change in the employer`s FMLA policy meant that collectively negotiated paid leave would be done at the same time as the FMLA leave, contrary to what the employer and the union had negotiated.