FMLA and Union Contracts May Be More Than We Bargained For

If you’ve been following us at The EmpLAWyerologist these last few weeks, you’ve gotten a taste of just how complicated FMLA issues can get. What happens when an employee needs a leave of absence and s/he is a union member? The possibilities are endless! Let’s look at some of them — after the jump…

Since they’ve been kind enough to let us learn from their experiences, let’s visit again with the folks at Splendiferous Supermarket. It seems Mike the Meat Packer (“Mike”) just had open heart surgery and will need up to six weeks to recover. The H.R. Department checked Mike’s time records and discovered that Mike worked 1200 hours in the preceding 12 months, falling 50 hours short of the FMLA’s 1,250 hour minimum eligibility requirement. Harry the H.R. Manager is ready to send Mike a notice to that effect, because the FMLA and the regulations are pretty clear on that requirement.

There is only one problem: Mike is a union member. The Collective Bargaining Agreement (CBA) provides a) up to 6 months’ leave for serious medical conditions as defined by the FMLA and b) that employees who have worked at least 1050 hours in the preceding 12 months are eligible for this leave. Let’s assume for now that the CBA otherwise mirrors FMLA provisions. Under the FMLA, Mike does not meet the minimum eligibility requirements. Under the CBA he does. Which one trumps?

The US District Court in the Northern District of Ohio answered this question in favor of the CBA in Valentino v Wickliffe City School District Board of Education, et al. In 2010, Ms. Valentino a 16-year  bus driver for the school district, requested FMLA leave to help care for her nine-year-old grandson, who had cancer. The Board while initially determining her eligible, later recalculated Ms. Valentino’s hours and contended that she worked less than the FMLA-required 1250 hours in the previous 12 months. It told her to either return to work or forfeit her job. Ms. Valentino sued, alleging FMLA interference and retaliation. The Board attempted to get the case dismissed. There was only one problem. Ms. Valentino was a union member, and the CBA stipulated that the period for calculating FMLA leave was “the school year”, or “July 1 to June 30″.  While there were no prior cases to rely on, the court had no trouble agreeing with Ms. Valentino, because the FMLA, specifically, 29 USC Sec. 2652, states as follows:

Nothing in this Act or any amendment made by this Act shall be construed to diminish the obligation of an employer to comply with any collective bargaining agreement or any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established under this Act or any amendment made by this Act.

The FMLA sets forth the minimum requirements. State laws, and contracts, including CBA’s can provide more protection and benefits. If they do, they will supersede the FMLA. If a CBA or employee benefit plan provides less substantive protection than the FMLA then the FMLA will prevail– with one exception (there’s always at least one exception, isn’t there?):

A CBA can include more stringent certification and return-to-work requirements than the FMLA. Wait  a minute. Didn’t we just establish that a CBA can provide employees more protection than the FMLA, but not less? Doesn’t this requirement provide an employee less protection? Shouldn’t that mean that an employee who provides a certification or a return to work date in compliance with the FMLA is entitled to job reinstatement? The Seventh Circuit Court of Appeals in Harrell v USPS 445 F.3d 913 (2006) said “No”. In that case, the employee provided a certification from his doctor that he would need four weeks’ leave time, followed by another doctor’s note indicating his return to work date. Harrell argued that these certifications conformed to FMLA requirements and that he should therefore have been allowed to return to work on the specified date. The CBA, however, required documentation of the nature and treatment of his illness, medications he was taking, and dates he would be unable to work. When Harrell refused to adhere to the CBA requirements, he was fired. The court ruled against Harrell, citing 29 USC Section 2614(a)(4), which permits employers to impose a uniformly applied policy requiring employees returning from FMLA leave to conform to more stringent requirements than those imposed by the FMLA itself.  The same section also states that the provision permitting return to work certifications does not supersede a valid state or local law or collective bargaining agreement that governs employees’ return to work. Similarly, Harris v Emergency Providers Inc No. 02-1056 (8th Circuit 2002) held that an employer, pursuant to the applicable CBA, could require a fitness-for-duty medical examination prior to an employee’s return to work after a medical leave.

Bottom Line: When evaluating an FMLA issue, look also to any relevant provisions of any CBA. Generally, a CBA that provides greater substantive protection to an employee will supersede the FMLA — except in cases of return to work provisions. That is the sole exception.

This is not the only instance in which FMLA and collective bargaining issues will present a challenge for employers. We’ll discuss some of those other instances in next week’s post. See you then!

Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent employment counsel on any issues discussed here.

Guess what? My webinar, “What Employers Need to Know About Severance Arrangements” will air live again today, Thursday May 14 at 1pm EST.  Click here to register — and get HRCI credits!

If you missed my live webinar (with HRCI credits) on the Affordable Care Act’s Employer Mandate you can still download it. Click here to register.  

Click here to learn more about Janette Levey Frisch, author of The EmpLAWyerologist,, or view The EmpLAWyerologist Firm’s new video clip.

“Like” The EmpLAWyerologist on Facebook, by clicking here.

Want to really be up to date on hot button topics impacting employers? E-mail theemplawyerologist@gmail.com for a monthly subscription to EmpLAWyerology Alerts!