What Are Employees' Rights Under FMLA in USPS?
Whether rain, sleet, snow or ice, United States Postal Service workers are on the job, delivering and collecting mail across the nation. When a USPS employee has a personal or family health crisis, or welcomes a new child to the family, that worker has the right to take time off without fear of termination.
Established in 1993, the Family Medical Leave Act (FMLA) guarantees this right to be absent for an extended period for qualifying reasons, as explained by the U.S. Department of Labor. The USPS has leave guidelines in place for employees to exercise FMLA USPA rights.
Type of Leave Permitted
Eligible U.S. Postal Service employees are entitled to a maximum 12 workweeks of family medical leave, but they are not paid, per the USPS leave of absence policy. According to the USPS, employees earn varying amounts of annual and sick leave based on years of employment. The USPS worker can elect to use this earned leave for time off under FMLA and still be paid. A 12-week absence under FMLA is only permitted once each year.
Intermittent absences throughout the year are allowed as long as the total number of days requested does not exceed 12 weeks. In the event that a spouse, child or parent is serving active military duty and becomes injured, the leave time allowed is increased to 26 weeks.
Eligibility for FMLA
Eligibility rights of U.S. Postal Service employees seeking family medical leave are determined by three factors. First, USPS workers must have served at least one year on the job. Second, the postal employee must have worked a minimum of 1,250 hours at the U.S. Postal Service during the past year. Lastly, the USPS facility must have a base of a minimum 50 postal workers within a 75-mile radius from the facility where the employee requesting leave under the FMLA currently serves, notes the American Postal Workers Union.
Qualifying reasons for USPS employees to take family medical leave include caring for a newborn baby, a child placed with the employee through the foster care system, or an adopted child. Other postal employee rights to take leave under the FMLA include the need to care for a close family member that is suffering from a serious medical problem.
This can be a USPS worker's spouse, parent or child, whether a minor or adult. Another right available to postal employees under the FMLA is to take leave when personal sickness or injury renders the worker unable to perform at the USPS.
Requesting FMLA Leave
U.S. Postal Service employees wishing to exercise rights under the FMLA may do so by submitting online form PS 3971, Request for or Notification of Absence. This form is prepared the same as any other annual or sick leave request. Advance notification is preferred by the USPS, with 30 days advance notice ideal. Medical providers submit documentation on National Association of Letter Carriers (NALC) FMLA forms.
Prior notice is not always an option, such as when a medical crisis unexpectedly occurs. In an emergency, a phone call to a supervisor will suffice, and necessary documentation to qualify the family medical leave request can be provided as soon as possible. The leave request should detail the specific reason for the absence so the supervisor can verify it falls under the employee's FMLA rights.
515 Absence for Family Care or Illness of Employee
Section 515 provides policies to comply with the Family and Medical Leave Act of 1993 (FMLA), as amended. Nothing in this section is intended to limit employees’ rights or benefits available under other current policies (see 511, 512, 513, 514) or collective bargaining agreements. Likewise, nothing increases the amount of paid leave beyond what is provided for under current leave policies or in any collective bargaining agreement.
The following definitions apply for the purposes of Absence for Family Care or Illness of Employee:
Subparts (a) through (c) apply to leave for one’s own or a family member’s serious health condition.
- Son or daughter — biological, adopted, or foster child, stepchild, legal ward, or child who stands in the position of a son or daughter to the employee, who is under 18 years of age or who is 18 or older and incapable of self-care because of mental or physical disability.
- Parent — biological, adoptive, step or foster parent or any other individual who stood in that position to the employee when the employee was a child.
- Spouse — husband or wife.
Subparts (d) through (h) apply to leave to care for a covered service member or for qualifying exigency leave related to a covered military member’s call to duty.
- Son or daughter of a covered service member — the employee is the service member’s biological, adopted, foster child, stepchild, legal ward or child for whom the service member stood in the position of a parent and who is of any age.
- Parent of a covered service member — the employee is the service member’s biological, adoptive, step or foster parent or any other individual who stood in the position of a parent to the service member.
- Covered service member — a current member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness. This definition also includes a veteran undergoing medical treatment, recuperation, or therapy for a serious injury or illness who served in the Armed Forces and was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the veteran.
- Military member — in the case of a member of the Regular Armed Forces, duty during the deployment of the member to a foreign country under a call or order to active duty. In the case of a member of the Reserve components of the Armed Forces (which includes the National Guard), duty during the deployment of the member to a foreign country under a Federal call or order to active duty in support of a contingency operation.
- Next of kin of a covered service member (applies only to leave to care for a covered service member) — the nearest blood relative other than the covered service member’s spouse, parent, son or daughter in the following order of priority: blood relatives who have been granted legal custody of the covered service member; siblings; grandparents, aunts and uncles and first cousins, unless the covered service member has specifically designated in writing another blood relative as his or her next of kin for purposes of FMLA military caregiver leave.
- Serious health condition — illness, injury, impairment, or physical or mental condition that involves any of the following:
- Hospital care — inpatient care (i.e., an overnight stay) in a hospital or residential medical care facility, including any period of incapacity or subsequent treatment in connection with or subsequent to such inpatient care.
- Absence plus treatment — a period of incapacity of more than 3 consecutive full calendar days (including any subsequent treatment or period of incapacity relating to the same condition) that also involves either one of the following:
- Treatment two or more times by a health care provider within 30 days of the first day of incapacity.
- Treatment by a health care provider on at least one occasion within 7 days of the first day of incapacity that results in a regimen of continuing treatment under the supervision of the health care provider.
- Pregnancy — any period of incapacity due to pregnancy or for prenatal care.
- Chronic condition requiring treatments — a chronic condition that meets all of the three following conditions:
- Requires periodic visits (i.e., at least twice a year) for treatment by a health care provider or by a nurse or physician‘s assistant under direct supervision of a health care provider.
- Continues over an extended period of time (including recurring episodes of a single underlying condition).
- May cause episodic, rather than a continuing period of, incapacity. Examples of such conditions include diabetes, asthma, and epilepsy.
- Permanent or long-term condition requiring supervision — a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective. The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider. Examples of such conditions include Alzheimer’s, a severe stroke, and the terminal stages of a disease.
- Condition requiring multiple treatments (nonchronic condition) — any period of absence to receive multiple treatments (including any period of recovery there from) by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity of more than 3 consecutive full calendar days in the absence of medical intervention or treatment. Examples of such conditions include cancer (which may require chemotherapy, radiation, etc.), severe arthritis (which may require physical therapy), and kidney disease (which may require dialysis).
- Serious injury or illness — In the case of a member of the Armed Forces, including a member of the National Guard or Reserves, means an injury or illness incurred by the member in the line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in the line of duty on active duty) and that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating. In the case of a veteran (as defined in subpart f), an injury or illness incurred in the line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in the line of duty on active duty) and that manifested itself before or after the member became a veteran, and is (1) a continuation of a serious injury or illness that was incurred or aggravated when the veteran was a member of the Armed Forces and rendered the servicemember unable to perform the duties of the servicemember’s office, grade, rank or rating; or (2) a physical or mental condition for which the veteran has received a VA Service Related Disability Rating (VASRD) of 50% or greater and such VASRD rating is based in whole or in part, on the condition precipitating the need for caregiver leave; or (3) a physical or mental condition that substantially impairs the veteran’s ability to secure or follow a substantially gainful occupation by reason of a disability or disabilities related to military service or would do so absent treatment; or (4) an injury, including a psychological injury, on the basis of which the veteran has been enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.
- Health care provider — A doctor of medicine or osteopathy; Christian Science practitioner listed with the First Church of Christ, Scientist, in Boston, MA; Physician’s Assistant or other attending practitioners as defined by Department of Labor FMLA regulations who are performing within the scope of their practice.
Note: Cosmetic treatments (such as most treatments for orthodontia or acne) are not “serious health conditions” unless complications occur. Restorative dental surgery after an accident or removal of cancerous growths is a serious health condition provided all other conditions are met. Allergies, substance abuse, and mental illness may be protected if all conditions are met. Routine preventative physical examinations are excluded. Also excluded, as a regimen of continuing treatments, are treatments that involve only over-the-counter medicine or activities such as bed rest that can be initiated without a visit to a health care provider. For example, treatment for substance abuse may be protected if provided by a health care provider or by a provider of health care services on referral by a health care provider.
For an absence to be covered by the FMLA, the employee must have been employed by the Postal Service for an accumulated total of 12 months and must have worked a minimum of 1,250 hours during the 12–month period before the date leave begins.
515.4 Leave Requirements
Eligible employees must be allowed a total of up to 12 workweeks of leave within a Postal Service leave year for one or more of the following:
- For incapacity due to pregnancy, prenatal medical care or child birth.
- To care for the employee’s child after birth, or placement for adoption or foster care.
- To care for the employee’s spouse, son or daughter, or parent who has a serious health condition.
- For a serious health condition that makes the employee unable to perform the employee’s job.
- Because of a qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces.
Eligible employees who are the spouse, son, daughter, parent, or next of kin of a covered service member must be allowed up to 26 workweeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness (as defined in 515.2(j)). The single 12-month period begins the first day the employee takes FMLA leave for this purpose and ends 12 months after that date. During this single 12-month period, the employee’s entitlement is limited to a combined total of 26 workweeks of FMLA leave for any qualifying reason.
515.42 Leave Type
Absences that qualify as FMLA leave may be charged as annual leave, sick leave, continuation of pay, or leave without pay, or a combination of these. Leave is charged consistent with current leave policies and applicable collective bargaining agreements.
515.43 Authorized Hours
Eligible employees, including eligible non-career employees, are entitled to 12 workweeks of FMLA-protected absences per leave year for conditions in 515.41(a) through 515.41(e). Eligible employees who take FMLA-protected leave to care for a covered service member who has incurred a serious injury or illness as defined in 515.2 are entitled to a total of 26 workweeks during a single 12-month period.
This amount is 12 (or 26) times the hours normally, or regularly, scheduled in the employee’s workweek. Thus:
- Regular full-time employees who normally work 40 hours per week are entitled to up to 480 hours of FMLA-covered absences within a leave year for all qualifying reasons except for covered service member care. For such service member care, full-time employees who normally work 40 hours per week are entitled to up to 1046 hours in a single 12-month period that begins when the first leave is taken.
- Part-time and Non-Traditional Full-Time (NTFT) employees who have regular weekly schedules that may be greater or less than 40 hours per week are entitled to 12 (or 26) times the number of hours normally scheduled in their workweek. For example, an employee with a regular schedule of 30 hours a week is entitled to 360 hours (12 weeks times 30 hours), or 780 hours, for service member care (26 weeks times 30 hours). A NTFT employee with a regular schedule of 44 hours a week is entitled to 528 hours (12 weeks times 44 hours), or 1144 hours, for service member care (26 weeks times 44 hours). If an employee is reassigned to a position with more or less workhours, the entitlement may change, but will be calculated so that the employee receives, but does not exceed 12 or 26 workweeks of FMLA protection.
515.5 Notice and Documentation
An employee must provide a supervisor a PS Form 3971 at least 30 days before the absence if the need for the FMLA leave is foreseeable. If 30 days notice is not practicable, the employee must give notice as soon as practicable.
When the leave is for planned medical treatment, the employee should first consult with the supervisor about the timing of the leave and must make a reasonable effort to schedule the treatment so as not to unduly disrupt the employer’s operations.
Where the need for leave is not foreseeable, notice should also be given as soon as practicable, i.e., the same day, at least, before the start of one’s tour.
Where Integrated Voice Response System (IVR) is operational, employees are required to call in their unscheduled absences through that system and to use their FMLA case numbers. Where IVR is not operational, employees should report absences to their supervisor. If an employee fails to provide timely notice of the need for FMLA protected leave, and no unusual circumstances justify the delay, the FMLA protection may be delayed or denied.
During an absence, the employee must keep his or her supervisor informed of intentions to return to work and of status changes that could affect his or her ability to return to work.
In all cases, it is the employee’s responsibility to provide complete and sufficient medical certification to establish a serious health condition as defined under the FMLA. For their own serious health conditions, employees may submit Department of Labor Form WH-380-E, FMLA Certification of Health Care Provider for Employee’s Serious Health Condition, which is provided in the FMLA packet mailed to employees’ homes. These forms are provided for the employee’s convenience, as they solicit all required information; however, employees may use another format as long as it provides complete and sufficient information as required by the FMLA. The information provided should relate only to the specific reason associated with the request for leave protection.
Employees must provide documentation directly to the FMLA Office at the Human Resources Shared Services Center (HRSSC) within 15 days of receipt of the request. Additional documentation may be requested of the employee if the information received is incomplete or insufficient for an FMLA determination, and this must be provided within 7 days unless it is not practicable under the particular facts and circumstances despite the employee’s diligent good-faith efforts. When the need for leave is due to a serious health condition that lasts beyond a single leave year, the employee may be required to provide a new medical certification in each subsequent leave year.
Failure to provide complete and sufficient documentation may result in the denial of FMLA protection.
515.53 Particular Circumstances
515.531 New Son or Daughter
An employee requesting FMLA-covered time off because of the birth of the employee‘s son or daughter and to care for the son or daughter, or because of the placement of a son or daughter with the employee for adoption or foster care, may be required to substantiate the relationship and provide the birth or placement date.
515.532 Care of Others for Medical Reasons
An employee requesting FMLA-covered time off because the employee is needed to care for a spouse, parent, son, or daughter with a serious health condition or a covered service member with a serious injury or illness may be required to:
- Substantiate the relationship.
- Describe the care to be provided and an estimate of the leave needed.
- Provide information regarding the military status of the covered service member (for military caregiver leave).
- Provide documentation of a serious health condition or serious injury or illness from an appropriate health care provider. Employees may use WH-380-F, FMLA Certification of Health Care Provider for Family Member’s Serious Health Condition or WH-385, FMLA Certification for Serious Injury or Illness of a Current Servicemember — for Military Family Leave, or WH-385-V, Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave, to support such requests for leave.
These forms are provided for the employee’s convenience, as they solicit all required information; however, employees may use another format as long as it provides complete and sufficient information as required by the FMLA. The information provided should relate to only the specific reason associated with the request for leave protection.
Note: The medical certification provision that an employee is “needed to care for” a family member encompasses both physical and psychological care. It includes situations where, for example, because of a serious health condition, the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport him- or herself to the doctor. The term also includes providing psychological comfort and reassurance that would be beneficial to a child, spouse, or parent with a serious health condition who is receiving inpatient or home care.
515.533 Employee Incapacitation
An employee requesting FMLA-covered time off because of his or her own incapacitation must satisfy the documentation requirements for sick leave in 513.31 through 513.38 in order to receive paid leave during the absence. If medical opinions are required in addition to initial documentation, they are administered as described in 515.54.
515.534 Return to Work After Employee Incapacitation
To return to work from an FMLA-covered absence because of his or her own incapacitation, an employee must provide certification from his or her health care provider that the employee is able to perform the essential functions of his or her positions with or without limitations. Limitations described are accommodated when practical. In addition, a bargaining unit employee must comply with collective bargaining agreements, which include Postal Service policies in 513.37 and 865 and in other handbooks and manuals.
515.535 Qualifying Exigency
An employee requesting FMLA-covered time off because of a qualifying exigency arising out of a covered family member’s call to covered active duty in the Armed Forces (see 515.2(g)) must provide complete and sufficient certification. The employee may use WH-384, FMLA Certification for Qualifying Exigency for Military Family Leave, to support such request for leave. This form will be provided for the employee’s convenience, as it solicits all required information; however, employees may use another format as long as it provides complete and sufficient information as required by the FMLA.
515.54 Additional Medical Opinions
A second medical opinion by a health care provider who is designated and paid for by the Postal Service may be required. A health care provider selected for the second opinion may not be employed by the Postal Service on a regular basis. In case of a difference between the original and second opinion, a third opinion by a health care provider is required. The third health care provider is jointly designated or approved by management and the employee, and the third opinion is final. The Postal Service pays the health care provider for the third opinion.
The recertification of a medical condition, for which the employee bears the cost, may be required during a leave year pursuant to the terms of the FMLA. A new certification of the employee’s serious health condition may be requested for that condition in each subsequent leave year. Such medical opinions are obtained off the clock.
515.6 Intermittent Leave or Reduced Schedule
515.61 New Son or Daughter
Absences requested because of the birth and subsequent care of the employee’s newborn son or daughter or because of the placement of a son or daughter with the employee for adoption or foster care may be taken on an intermittent basis or reduced work schedule only if the request for such intermittent leave or schedule modification is approved by the supervisor. Eligibility for this leave expires 1 year after the birth or placement. Approval is based on employee need, Postal Service need, and costs to the Postal Service.
515.62 Care of Others for Medical Reasons or Employee Incapacitation
Absences due to an employee’s own serious health condition, absences to care for a covered family member with a serious health condition or absences to care for a covered service member with a serious injury or illness may be taken on an intermittent basis or by establishing a reduced work schedule when medically necessary.
515.63 Exigency Leave
Absences requested due to a qualifying exigency arising out of a covered family member’s federal call to covered active duty in the Armed Forces (see 515.2(g)) may be taken intermittently or on a reduced leave schedule.
515.64 Temporary Change in Duty Assignment
If an employee requests intermittent leave or a reduced work schedule that is foreseeable based on planned medical treatment, the Postal Service may assign the employee, with equivalent pay and benefits, temporarily to the duties of another position consistent with applicable collective bargaining agreements and regulations if such an assignment better accommodates the recurring periods of absence.
515.65 Fair Labor Standards Act Status
An employee exempt from the Fair Labor Standards Act (FLSA) normally may not take leave in less than 1–day increments. However, leave taken for an FMLA–covered reason on an intermittent basis or by temporarily establishing a reduced work schedule can be taken in less than 1–day increments without affecting the employee’s FLSA–exempt status.
515.7 Return to Position
Employees whose absence is covered by the FMLA are normally entitled to return to the positions they held when the absence began, or to equivalent positions with equivalent pay, benefits, working conditions, and other terms of employment if they are able to perform the essential functions of the positions. Returning employees are not entitled to any right, benefit, or position to which they would not have been entitled had they not been absent, or to intangible, unmeasurable aspects of the job such as the perceived loss of potential for future promotional opportunities. If an employee was hired for a specific term or only to perform work on a discrete project, then there is no further reinstatement obligation under this section if the employment term or project is over and the employment would not have otherwise continued.
All benefits accrue to employees during an FMLA absence pursuant to the applicable provision of the ELM.
515.9 Family Leave Poster
All postal facilities, including stations and branches, are required to conspicuously display WHD Publication 1420, Employee Rights and Responsibilities Under the Family and Medical Leave Act. It must be posted, and remain posted, on bulletin boards where it can be seen readily by employees and applicants for employment.
The Department has developed optional-use forms which can be used by employers to provide required notices to employees, and by employees to provide certification of their need for leave for an FMLA qualifying reason. These forms are electronically fillable PDFs and can be saved electronically. Alternatively, Employers may use their own forms, if they provide the same basic notice information and require only the same basic certification information.
Employers covered by the FMLA are obligated to provide their employees with certain critical notices about the FMLA so that both the employees and the employer have a shared understanding of the terms of the FMLA leave. For more information on satisfying the FMLA’s employer notification requirements, see WHD Fact Sheet # 28D: Employer Notification Requirements under the Family and Medical Leave Act.
Employers can use the following forms to provide the notices required under the FMLA.
- General Notice, the FMLA poster – satisfies the requirement that every covered employer display or post an informative general notice about the FMLA. This notice can also be used by employers with eligible employees to satisfy their obligation also to provide FMLA general notice to employees in written leave guidance (e.g., handbook) or individually upon hire.
- Eligibility Notice, form WH-381 – informs the employee of his or her eligibility for FMLA leave or at least one reason why the employee is not eligible.
- Rights and Responsibilities Notice, form WH-381 (combined with the Eligibility Notice) – informs the employee of the specific expectations and obligations associated with the FMLA leave request and the consequences of failure to meet those obligations.
- Designation Notice, form WH-382 – informs the employee whether the FMLA leave request is approved; also informs the employee of the amount of leave that is designated and counted against the employee’s FMLA entitlement. An employer may also use this form to inform the employee that the certification is incomplete or insufficient and additional information is needed.
Certification is an optional tool provided by the FMLA for employers to use to request information to support certain FMLA-qualifying reasons for leave. An employee can provide the required information contained on a certification form in any format, such as on the letterhead of the healthcare provider, or official documentation issued by the military.
Please do not send any completed certification forms to the U.S. Department of Labor, Wage and Hour Division. Return completed certifications to the employee to provide to his or her employer.
There are five DOL optional-use FMLA certification forms.
Certification of Healthcare Provider for a Serious Health Condition
Certification of Military Family Leave
Questions and Answers About FMLA Forms
- The Department revised the optional-use FMLA forms in June 2020. Can I still use the old DOL forms?
Yes. The FMLA does not require the use of any specific form or format. Although the Department revised the FMLA forms in June 2020 to make them easier to understand for employers, leave administrators, healthcare providers, and employees seeking leave, the revised forms convey and collect the same information, which can be provided in any format.
- Can my employer require me to provide a new certification, using the revised form, when I have already provided the required FMLA information using the old certification form?
No. You can provide the required information contained on a certification form in any format. If you used the old certification forms to provide your employer with the required FMLA information, you do not have to provide your employer with the same FMLA information using the revised certification forms.
- Can my employer make changes to the FMLA forms?
Your employer may use the WHD prototype forms or create their own version of the forms containing the same basic information. However, an employer that requests a medical certification may request only information that relates to the serious health condition for which the current need for leave exists, and no information may be required beyond that specified in the FMLA regulations. See 29 CFR 825.306, 29 CFR 825.307, and 29 CFR 825.308.
- Do I have to use my employer’s certification forms?
Employers must accept a complete and sufficient certification, regardless of the format. The employer cannot reject a certification that contains all the information needed to determine if the leave is FMLA-qualifying. The employer cannot refuse:
- A fax or copy of the certification;
- A certification that is not completed on the employer’s standard company form; or
- Any other record of the medical documentation, such as a communication on the letterhead of the healthcare provider.
- The expiration date of the DOL forms has passed, are they still effective?
Yes. The content of the information contained within the optional-use DOL form is still applicable, regardless of the expiration date. The expiration date on the DOL forms is related to the collection of information as required by the Office of Management and Budget (OMB), and not relevant to the content of the required information.
- Where do I send the completed certifications or notices?
Do not send any completed certifications or forms to the U.S. Department of Labor, Wage and Hour Division. The employer should provide the required notices to the employee seeking leave. Completed certification forms should be given to the employee to provide to the employer, as it is the employee’s responsibility to provide the employer with the completed certification.
- Do these forms have any applicability to the Families First Coronavirus Response Act (FFCRA)?
No. The FFCRA has different documentation requirements which can be found at 29 CFR 826.100 or www.dol.gov/agencies/whd/pandemic/ffcra-questions. Please see question & answer items #15 and #16 for more information.
Frequently Asked Questions and Answers About the Revisions to the Family and Medical Leave Act
The following are answers to commonly asked questions about the new Family and Medical Leave Act (FMLA) regulations. The effective date of the revised FMLA regulations is January 16, 2009.
A separate FAQ relating to the FMLA military family leave entitlements can be found at www.dol.gov/agencies/whd/fmla/index.
Qualifying Reasons for FMLA Leave
Q. Can I still use FMLA leave during pregnancy or after the birth of a child?
A. Yes. An employee’s ability to use FMLA leave during pregnancy or after the birth of a child has not changed. Under the regulations, a mother can use 12 weeks of FMLA leave for the birth of a child, for prenatal care and incapacity related to pregnancy, and for her own serious health condition following the birth of a child. A father can use FMLA leave for the birth of a child and to care for his spouse who is incapacitated (due to pregnancy or child birth).
Q. Can I continue to use FMLA for leave due to my chronic serious health condition?
A. Under the regulations, employees continue to be able to use FMLA leave for any period of incapacity or treatment due to a chronic serious health condition. The regulations continue to define a chronic serious health condition as one that (1) requires “periodic visits” for treatment by a health care provider or nurse under the supervision of the health care provider, (2) continues over an extended period of time, and (3) may cause episodic rather than continuing periods of incapacity. The regulations clarify this definition by defining “periodic visits” as at least twice a year.
Q. Are there any changes to the definition of a serious health condition under the regulations?
A. A “serious health condition” is defined as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. The “continuing treatment” test for a serious health condition under the regulations may be met through (1) a period of incapacity of more than three consecutive, full calendar days plus treatment by a health care provider twice, or once with a continuing regimen of treatment, (2) any period of incapacity related to pregnancy or for prenatal care, (3) any period of incapacity or treatment for a chronic serious health condition, (4) a period of incapacity for permanent or long-term conditions for which treatment may not be effective, or (5) any period of incapacity to receive multiple treatments (including recovery from those treatments) for restorative surgery, or for a condition which would likely result in an incapacity of more than three consecutive, full calendar days absent medical treatment.
The regulations specify that if an employee asserts a serious health condition under the requirement of a “period of incapacity of more than three consecutive, full calendar days and any subsequent treatment or period of incapacity relating to the same condition,” the employee’s first treatment visit (or only visit, if coupled with a regimen of continuing treatment) must take place within seven days of the first day of incapacity. Additionally, if an employee asserts that the condition involves “treatment two or more times,” the two visits to a health care provider must occur within 30 days of the first day of incapacity. Finally, the regulations define “periodic visits” for treatment of a chronic serious health condition as at least twice a year.
Eligibility for FMLA Leave
Q. I have 12 months of service with my employer, but they are not consecutive. Do I still qualify for FMLA?
A. You may. In order to be eligible to take leave under the FMLA, an employee must (1) work for a covered employer, (2) work 1,250 hours during the 12 months prior to the start of leave, (3) work at a location where 50 or more employees work at that location or within 75 miles of it, and (4) have worked for the employer for 12 months. The 12 months of employment are not required to be consecutive in order for the employee to qualify for FMLA leave. The regulations clarify, however, that employment prior to a continuous break in service of seven years or more need not be counted unless the break in service is (1) due to an employee’s fulfillment of military obligations, or (2) governed by a collective bargaining agreement or other written agreement.
Q. If I have to miss work due to National Guard or Reserve duty, will this affect my eligibility for FMLA leave?
A. No. The regulations make clear the protections for our men and women serving in the military by stating that a break in service due to an employee’s fulfillment of military obligations must be taken into consideration when determining whether an employee has been employed for 12 months or has the required 1,250 hours of service.
Under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), hours that an employee would have worked but for his or her military service are credited toward the employee’s required 1,250 hours worked for FMLA eligibility. Similarly, the time in military service also must be counted in determining whether the employee has been employed at least 12 months by the employer.
Dean worked for his employer for six months in 2008, then was called to active duty status with the Reserves and deployed to Iraq. In 2009, Dean returned to his employer, requesting to be reinstated under the USERRA. Both the hours and the months that Dean would have worked but for his military status must be counted in determining his FMLA eligibility.
Employer Notice Requirements
Q. What are an employer’s posting and general notice requirements?
A. Employers must post a general notice explaining the FMLA's provisions and providing information regarding procedures for filing a claim under the Act in a conspicuous place where it can be seen by employees and applicants. Under the regulations, this posted notice includes additional information regarding the definition of a serious health condition, the new military family leave entitlements, and employer and employee responsibilities. Employers must also include the information in this general notice in any employee handbook or other written policies or manuals describing employee benefits and leave provisions. Additionally, under the regulations, an employer without a handbook or written guidance is required to provide this general notice to new employees upon hiring.
Q. Is there a penalty if an employer fails to post the required FMLA notice?
A. An employer that willfully fails to post the required FMLA notice may be assessed a civil monetary penalty. Under the regulations, the penalty is increased to $110.
Q. How soon after an employee provides notice of the need for leave must an employer determine whether someone is eligible for FMLA leave?
A. Absent extenuating circumstances, the regulations require an employer to notify an employee of whether the employee is eligible to take FMLA leave (and, if not, at least one reason why the employee is ineligible) within five business days of the employee requesting leave or the employer learning that an employee’s leave may be for a FMLA- qualifying reason.
Q. Does an employer have to provide employees with information regarding their specific rights and responsibilities under the FMLA?
A. At the same time an employer provides an employee notice of the employee’s eligibility to take FMLA leave, the employer must also notify the employee of the specific expectations and obligations associated with the leave. Among other information included in this notice, the employer must inform the employee whether the employee will be required to provide certification of the FMLA-qualifying reason for leave and the employee’s right to substitute paid leave (including any conditions related to such substitution, and the employee’s entitlement to unpaid FMLA leave if those conditions are not met). If the information included in the notice of rights and responsibilities changes, the employer must inform the employee of such changes within five business days of receipt of the employee’s first notice of the need for FMLA leave subsequent to any change. Employers are expected to responsively answer questions from employees concerning their rights and responsibilities.
Q. How soon after an employee provides notice of the need for leave must an employer notify an employee that the leave will be designated and counted as FMLA leave?
A. Under the regulations, an employer must notify an employee whether leave will be designated as FMLA leave within five business days of learning that the leave is being taken for a FMLA-qualifying reason, absent extenuating circumstances. The designation notice must also state whether paid leave will be substituted for unpaid FMLA leave and whether the employer will require the employee to provide a fitness-for-duty certification to return to work (unless a handbook or other written document clearly provides that such certification will be required in specific circumstances, in which case the employer may provide oral notice of this requirement). Additionally, if the amount of leave needed is known, an employer must inform an employee of the number of hours, days or weeks that will be counted against the employee’s FMLA leave entitlement in the designation notice. Where it is not possible to provide the number of hours, days, or weeks that will be counted as FMLA leave in the designation notice (e.g., where the leave will be unscheduled), an employer must provide this information upon request by the employee, but no more often than every 30 days and only if leave was taken during that period.
Q. If an employer fails to tell an employee that leave has been designated as FMLA leave, can the employer count the leave against the employee's FMLA leave entitlement?
A. The regulations revise the designation provisions to comply with the U.S. Supreme Court’s decision in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002). Ragsdale ruled that a "categorical" penalty for failure to appropriately designate FMLA leave was inconsistent with the statutory entitlement to only 12 weeks of FMLA leave and contrary to the statute's remedial requirement to demonstrate individual harm. Under the regulations, retroactive designation is permitted if an employer fails to timely designate leave as FMLA leave (and notify the employee of the designation). The employer may be liable, however, if the employee can show that he or she has suffered harm or injury as a result of the failure to timely designate the leave as FMLA. Additionally, an employee and employer may agree to retroactively designate an absence as FMLA-protected.
Henry plans to take 12 weeks of FMLA leave beginning in August for the birth of his second child. Earlier in the leave year, however, Henry took two weeks of annual leave to care for his mother following her hospitalization for a serious health condition. Henry’s employer failed to notify him at the time of his mother’s hospitalization that the time he spent caring for his mother would be counted as FMLA leave. If Henry can establish that he would have made other arrangements for the care of his mother if he had known that the time would be counted against his FMLA entitlement, the two weeks his employer failed to appropriately designate may not count against his FMLA entitlement.
Employee Notice Requirements
Q. How much notice must an employee give before taking FMLA leave?
A. When the need for leave is foreseeable based on an expected birth, placement for adoption or foster care, or planned medical treatment, an employee must give at least 30 days notice. If 30 days notice is not possible, an employee is required to provide notice “as soon as practicable.” Employees must also provide notice as soon as practicable for foreseeable leave due to a qualifying exigency, regardless of how far in advance such leave is foreseeable (see FAQ for military family leave for additional information). The regulations clarify that it should be practicable for an employee to provide notice of the need for leave that is foreseeable either the same day or the next business day. In all cases, however, the determination of when an employee could practicably provide notice must account for the individual facts and circumstances.
When the need for leave is unforeseeable, employees are required to provide notice as soon as practicable under the facts and circumstances of the particular case, which the regulations clarify will generally be within the time prescribed by the employer’s usual and customary notice requirements applicable to the leave.
When Mandy goes to her Monday physical therapy appointment for her serious health condition, she finds out that the appointment she had previously scheduled for Thursday has been changed to Friday. Upon her return to work after the Monday appointment, Mandy informs her employer that she will no longer need leave on Thursday for physical therapy, but will need leave on Friday instead. Mandy has provided notice of her need for foreseeable leave as soon as practicable.
Q. What information must an employee give when providing notice of the need for FMLA leave?
A. When an employee seeks leave for the first time for a FMLA-qualifying reason, the employee does not need to specifically assert his or her rights under FMLA, or even mention FMLA. The employee must, however, provide “sufficient information” to make the employer aware of the need for FMLA leave and the anticipated timing and duration of the leave.
The regulations provide additional guidance for employees regarding what is “sufficient information.” Depending on the situation, such information may include that a condition renders the employee unable to perform the functions of the job; that the employee is pregnant or has been hospitalized overnight; whether the employee or the employee’s family member is under the continuing care of a health care provider; if the leave is due to a qualifying exigency, that a covered military member is on active duty and that the requested leave is for a qualifying exigency; if the leave is to care for a family member, that the condition renders the family member unable to perform daily activities, or that the family member is a covered servicemember with a serious injury or illness; and the anticipated duration of the absence if known.
Additionally, the regulations require an employee seeking leave due to a FMLA- qualifying reason for which the employer has previously provided FMLA-protected leave either to reference specifically the qualifying reason for leave or the need for FMLA leave. In all cases, an employer should inquire further if it is necessary to have more information about whether FMLA leave is being sought by an employee.
Q. Is an employee required to follow an employer’s normal call-in procedures when taking FMLA leave?
A. Yes. Under the regulations, an employee must comply with an employer’s call-in procedures unless unusual circumstances prevent the employee from doing so (in which case the employee must provide notice as soon as he or she can practicably do so). The regulations make clear that, if the employee fails to provide timely notice, he or she may have the FMLA leave request delayed or denied and may be subject to whatever discipline the employer’s rules provide.
Sam has a medical certification on file with his employer for his chronic serious health condition, migraine headaches. He is unable to report to work at the start of his shift due to a migraine and needs to take unforeseeable FMLA leave. He follows his employer’s absence call-in procedure to timely notify his employer about his need for leave. Sam has provided his employer with appropriate notice.
Certification of Need for FMLA Leave
Q. Do I have to give my employer my medical records for leave due to a serious health condition?
A. No. An employee is not required to give the employer his or her medical records. The employer, however, does have a statutory right to request that an employee provide medical certification containing sufficient medical facts to establish that a serious health condition exists.
Q. What if I do not want my employer to know about my medical condition?
A. If an employer requests it, an employee is required to provide a complete and sufficient medical certification in order to take FMLA-protected leave due to a serious health condition.
Q. How soon after I request leave does my employer have to request a medical certification of a serious health condition?
A. Under the regulations, an employer should request medical certification, in most cases, at the time an employee gives notice of the need for leave or within five business days. If the leave is unforeseen, the employer should request medical certification within five days after the leave begins.
A. An employer may request certification at a later date if it has reason to question the appropriateness or duration of the leave.
Q. What happens if my employer says my medical certification is incomplete?
A. An employer must advise the employee if it finds the certification is incomplete and allow the employee a reasonable opportunity to cure the deficiency. The regulations require that the employer state in writing what additional information is necessary to make the certification complete and sufficient. The regulations also require that the employer allow the employee at least seven calendar days to cure the deficiency, unless seven days is not practicable under the particular circumstances despite the employee’s diligent good faith efforts.
Q. May my employer contact my health care provider about my serious health condition?
A. The regulations clarify that contact between an employer and an employee’s health care provider must comply with the Health Insurance Portability and Accountability Act (HIPAA) privacy regulations. Under the regulations, employers may contact an employee’s health care provider for authentication or clarification of the medical certification by using a health care provider, a human resource professional, a leave administrator, or a management official. In order to address employee privacy concerns, the rule makes clear that in no case may the employee’s direct supervisor contact the employee’s health care provider. In order for an employee’s HIPAA-covered health care provider to provide an employer with individually-identifiable health information, the employee will need to provide the health care provider with a written authorization allowing the health care provider to disclose such information to the employer. Employers may not ask the health care provider for additional information beyond that contained on the medical certification form.
Q. Must I sign a medical release as part of a medical certification?
A. No. An employer may not require an employee to sign a release or waiver as part of the medical certification process. The regulations specifically state that completing any such authorization is at the employee’s discretion. Whenever an employer requests a medical certification, however, it is the employee’s responsibility to provide the employer with a complete and sufficient certification. If an employee does not provide either a complete and sufficient certification or an authorization allowing the health care provider to provide a complete and sufficient certification to the employer, the employee's request for FMLA leave may be denied.
Q. How often may my employer ask for medical certifications for an on-going serious health condition?
A. The regulations allow recertification no more often than every 30 days in connection with an absence by the employee unless the condition will last for more than 30 days. For conditions that are certified as having a minimum duration of more than 30 days, the employer must wait to request a recertification until the specified period has passed, except that in all cases the employer may request recertification every six months in connection with an absence by the employee. The regulations also allow an employer to request recertification in less than 30 days if the employee requests an extension of leave, the circumstances described in the previous certification have changed significantly, or if the employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification.
Additionally, the regulations codify a 2005 Wage and Hour opinion letter that stated that employers may request a new medical certification each leave year for medical conditions that last longer than one year. Such new medical certifications are subject to second and third opinions.
Janie takes six weeks of FMLA leave for a cancer operation and treatment and gives her employer a medical certification that states that she will be absent for six weeks. Because her certification covers a six-week absence, her employer cannot ask for a recertification during that time. At the end of the six-week period, Janie asks to take two more weeks of FMLA leave; her employer may properly ask Janie for a recertification for the additional two weeks.
Joe takes eight weeks of FMLA leave for a back operation and intensive therapy, and gives his employer a medical certification that states that he will be absent for eight weeks. At the end of the eight-week period, Joe tells his employer that he will need to take three days of FMLA leave per month for an indefinite period for additional therapy; his employer may properly request a recertification at that time. Six months later, and in connection with an absence for therapy, the employer may properly ask Joe for another recertification for his need for FMLA leave.
Q. Can employers require employees to submit a fitness-for-duty certification before returning to work after being absent due to a serious health condition?
A. Yes. As a condition of restoring an employee who was absent on FMLA leave due to the employee’s own serious health condition, an employer may have a uniformly applied policy or practice that requires all similarly situated employees who take leave for such conditions to submit a certification from the employee’s own health care provider that the employee is able to resume work. Under the regulations, an employer may require that the fitness-for-duty certification address the employee's ability to perform the essential functions of the position if the employer has appropriately notified the employee that this information will be required and has provided a list of essential functions. Additionally, an employer may require a fitness-for-duty certification up to once every 30 days for an employee taking intermittent or reduced schedule FMLA leave if reasonable safety concerns exist regarding the employee's ability to perform his or her duties based on the condition for which leave was taken.
Q. What happens if I do not submit a requested medical or fitness-for-duty certification?
A. If an employee fails to timely submit a properly requested medical certification (absent sufficient explanation of the delay), FMLA protection for the leave may be delayed or denied. If the employee never provides a medical certification, then the leave is not FMLA leave.
If an employee fails to submit a properly requested fitness-for-duty certification, the employer may delay job restoration until the employee provides the certification. If the employee never provides the certification, he or she may be denied reinstatement.
Q. Can my FMLA leave be counted against me for my bonus?
A. Under the regulations, an employer may deny a bonus that is based upon achieving a goal, such as hours worked, products sold or perfect attendance, to an employee who takes FMLA leave (and thus does not achieve the goal) as long as it treats employees taking FMLA leave the same as employees taking non-FMLA leave. For example, if an employer does not deny a perfect attendance bonus to employees using vacation leave, the employer may not deny the bonus to an employee who used vacation leave for a FMLA-qualifying reason.
Sasha uses ten days of FMLA leave during the quarter for surgery. Sasha substitutes paid vacation leave for her entire FMLA absence. Under Sasha’s employer’s quarterly attendance bonus policy, employees who use vacation leave are not disqualified from the bonus but employees who take unpaid leave are disqualified. Sasha’s employer must treat her the same way it would treat an employee using vacation leave for a non-FMLA reason and give Sasha the attendance bonus.
Q. My medical condition limits me to a 40 hour workweek but my employer has assigned me to work eight hours of overtime in a week. Can I take FMLA leave for the overtime?
A. Yes. Employees with proper medical certifications may use FMLA leave in lieu of working required overtime hours. The regulations clarify that the hours that an employee would have been required to work but for the taking of FMLA leave can be counted against the employee’s FMLA entitlement. Employers must select employees for required overtime in a manner that does not discriminate against workers who need to use FMLA leave.
Q. Can I use my paid leave as FMLA leave?
A. Under the regulations, an employee may choose to substitute accrued paid leave for unpaid FMLA leave if the employee complies with the terms and conditions of the employer’s applicable paid leave policy. The regulations also clarify that substituting paid leave for unpaid FMLA leave means that the two types of leave run concurrently, with the employee receiving pay pursuant to the paid leave policy and receiving protection for the leave under the FMLA. If the employee does not choose to substitute applicable accrued paid leave, the employer may require the employee to do so.
Neila needs to take two hours of FMLA leave for a treatment appointment for her serious health condition. Neila would like to substitute paid sick leave for her absence, but her employer’s sick policy only permits employees to take sick leave in full days. Neila may either choose to comply with her employer’s sick leave policy by taking a full day of sick leave for her doctor’s appointment (in which case she will use a full day of FMLA leave), or she may ask her employer to waive the requirement that sick leave be used in full day increments and permit her to use two hours of sick leave for her FMLA absence. Neila can also take unpaid FMLA leave for the two hours.
Q. Can I take FMLA leave for reasons related to domestic violence issues?
A. FMLA leave may be available to address certain health-related issues resulting from domestic violence. An eligible employee may take FMLA leave because of his or her own serious health condition or to care for a qualifying family member with a serious health condition that resulted from domestic violence. For example, an eligible employee may be able to take FMLA leave if he or she is hospitalized overnight or is receiving certain treatment for post-traumatic stress disorder that resulted from domestic violence.
Family and Medical Leave Information
Under the family and medical leave act of 1993 (FMLA), eligible employees of the U.S. Postal Service are entitled to receive unpaid leave for qualified medical and family reasons. Qualified medical and family reasons include: personal or family illness, pregnancy, adoption, or the foster-care placement of a child.
The FMLA is intended “to balance the demands of the workplace with the needs of families.” It allows eligible employees to take up to 12 work weeks of unpaid leave during any 12-month period to attend to the serious health condition of the employee, his or her parent, spouse or child, or for pregnancy or care of a newborn child, or for adoption or foster care of a child.
To be eligible for FMLA leave, an employee must have been employed by the employer at least 12 months, and worked at least 1,250 hours over the past 12 months, and work at a location where the employer employs 50 or more employees within 75 miles.
The National Defense Authorization Act for FY 2008 amended the FMLA to provide two types of military family leave for FMLA-eligible employees: “qualifying exigency leave” and “military caregiver leave.”
Read more here: A GUIDE TO THE FAMILY & MEDICAL LEAVE ACT [PDF]
SAN JOSE, CA – The U.S. Postal Service (USPS) in San Jose, California, will pay $3,680 to one employee after the U.S. Department of Labor’s Wage and Hour Division found the employer repeatedly failed to provide paid sick leave benefits for time the employee spent home caring for her child whose school closed due to coronavirus.
WHD investigators found USPS violated the Emergency Paid Sick Leave Act (EPSLA) provisions of the Families First Coronavirus Response Act (FFCRA), which require covered employers to provide paid leave under those circumstances.
“The U.S. Department of Labor is working to protect employees and educate employers during the coronavirus pandemic,” said Wage and Hour District Director Susana Blanco in San Jose, California. “We encourage employers and employees to call us for assistance to improve their understanding of the new labor standards under the Families First Coronavirus Response Act and use our educational online tools to avoid violations like those found in this case. WHD continues to provide updated information on our website and through extensive outreach efforts to ensure that workers and employers have the information they need about the benefits and protections of this new law.”
The FFCRA helps the U.S. combat and defeat the workplace effects of the coronavirus by giving tax credits to American businesses with fewer than 500 employees either to provide employees with paid leave for the employee’s own health needs or to care for family members. Please visit WHD’s “Quick Benefits Tips” for information about how much leave workers may qualify to use, and the wages employers must pay. The law enables employers to keep their workers on their payrolls, while at the same time ensuring that workers are not forced to choose between their paychecks and the public health measures needed to combat the virus.
WHD provides additional information on common issues employers and employees face when responding to the coronavirus and its effects on wages and hours worked under the Fair Labor Standards Act and on job-protected leave under the Family and Medical Leave Act at https://www.dol.gov/agencies/whd/pandemic
For more information about the laws enforced by WHD, call 866-4US-WAGE, or visit www.dol.gov/agencies/whd
For further information about the coronavirus, please visit the Centers for Disease Control and Prevention.
The mission of the Department of Labor is to foster, promote and develop the welfare of the wage earners, job seekers and retirees of the United States; improve working conditions; advance opportunities for profitable employment; and assure work-related benefits and rights.
Wage and Hour Division
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Family and Medical Leave Act (FMLA)
The Family and Medical Leave Act (FMLA) guarantees eligible letter carriers up to 12 weeks of leave each postal leave year, for:
- A new child in the family—by birth, by adoption or by placement in foster care;
- Caring for a family member with a serious health condition;
- The employee's own serious health condition that prevents him or her from performing the job, or
- Qualifying exigencies arising out of the fact that employee’s family member is on or has been notified of “covered active duty” in the Armed Forces.
The FMLA also guarantees eligible letter carriers up to 26 weeks of leave in a single 12-month period to care for a “covered servicemember” with a “serious injury or illness” if that servicemember is their spouse, son, daughter, parent, or next of kin.
The FMLA guarantees time off, whether paid or unpaid. The type of leave taken depends on the reasons for the leave, an employee's earnings and the usual postal leave regulations. There are eligibility criteria, medical certification guidelines and other detailed rules governing letter carrier rights to FMLA leave.
This page links to useful NALC materials, federal regulations and information on the Web about the FMLA.
Update: Parties release joint summary overview of FMLA
November 24, 2015 – The national parties have reached agreement on a jointly-developed summary overview of the Family and Medical Leave Act of 1993 (FMLA). This document (M-01866) provides the mutual understanding of the national parties on issues related to leave covered by the FMLA. It fully replaces and updates the FMLA language agreed upon and contained in previous editions of the NALC-USPS Joint Contract Administration Manual (JCAM).
Two national-level disputes involving FMLA settled
In 2008, the Postal Service proposed changes to the Employee and Labor Relations Manual which required employees to only use Department of Labor forms to certify FMLA protection.
The NALC took the position that there was no requirement under the FMLA to use Department of Labor forms and initiated two disputes. The first dispute was over the proposed ELM changes and the second was the over the Postal Service’s refusal to allow employees to use NALC FMLA forms.
In our first dispute over the proposed changes of the ELM, the Postal Service agreed to change the language in section 515 of the ELM (M-01812) to allow employees to use another format other than Department of Labor forms to certify FMLA protection.
The change in section 515 of the ELM resolves NALC's second issue and employees may now use the NALC FMLA forms for FMLA protection. (M-01817)
Click here for the NALC FMLA forms.
In the past, employees submitted FMLA forms to their supervisors. The new forms must be submitted to the FMLA Administration Human Resources Share Service Center (HRSSC). The address for the HRSSC to which the employee must submit the FMLA form(s) can be found on the area maps included in the NALC FMLA forms PDF.
Changes to FMLA Regulations: DOL Expands Military FMLA Leave
On February 6, 2013, the U.S. Department of Labor marked the 20th anniversary of the signing of the Family and Medical Leave Act by issuing a new Final Rule that implements important expansions of FMLA military family leave protections mandated by the National Defense Authorization Act (NDAA) of 2010. These expansions provide families of eligible veterans with the same job-protected FMLA leave currently available to families of military service members and also enable more military families to take leave for activities that arise when a service member is deployed.
The major provisions of the Final Rule include:
- Defining a covered veteran, consistent with statutory limitations, as limited to veterans discharged or released under conditions other than dishonorable five years prior to the date the employee’s military caregiver leave begins.
- Creating a flexible definition for serious injury or illness of a covered veteran, that includes four alternatives only one of which must be met.
- Permitting eligible employees to obtain certification of a servicemember’s serious injury or illness (both current servicemembers and veterans) from any health care provider as defined in the FMLA regulations, not only those affiliated with the DOD, VA, or TRICARE networks (as was permitted under the 2009 regulations).
- Extending qualifying exigency leave to eligible employees who are family members of members of the Regular Armed Forces and adding the requirement for all military members to be deployed to a foreign country in order to be on “covered active duty” under the FMLA.
- Increasing the amount of time an employee may take for qualifying exigency leave related to the military member’s Rest and Recuperation (R&R) leave from five days to up to 15 days.
- Creating an additional qualifying exigency leave category for parental care leave to provide care necessitated by the covered active duty of the military member for the military member’s parent who is incapable of self-care (this exigency came as the result of a suggestion from the NALC, see "The 'NALC Exigency'" below).
The "NALC Exigency"
When the Department of Labor (DOL) published the new Final Rule for the FMLA on February 6, 2013, it acknowledged and incorporated changes suggested by the NALC.
The DOL announced its proposed rulemaking for the new Final Rule in February of 2012. It specifically sought input from FMLA stakeholders regarding the two categories of military family leave (qualifying exigency leave and military caregiver leave). The NALC at the national level sent out queries to each region seeking suggestions on how the two categories of military family leave could be improved.
President Rolando incorporated suggestions from around the country in a letter he wrote to the DOL in response to the proposed rulemaking (M-01780). Excerpts from that letter appear many times in the section-by-section analysis in the preamble that precedes the actual regulations. And in one instance, the DOL actually created new regulations in response to President Rolando’s letter.
In the proposed rulemaking, the DOL invited comments on whether new qualifying exigencies should be added to the current 8. In the preamble to the new Final Rule, the DOL states that it received only one suggestion: from the NALC.
Based on that suggestion, the DOL created a 9th exigency for parental care leave to provide care necessitated by the covered active duty of a military member for the military member’s parent who is incapable of self-care. It is codified at 29 CFR 825.126.b(8).
The suggestion for the new exigency for eldercare came from a discussion at a branch meeting of Branch 183 in Santa Rosa, California. Branch President Jerry Anderson forwarded the suggestion to the National Union via Region 1 RAA Brian Voigt and NBA Christopher Jackson. President Rolando added the suggestion from Branch 183 to his letter to the DOL.
The creation of a qualifying exigency leave for eldercare not only benefits letter carriers who serve or who have family members who serve in the military, it also protects the family needs of every military service member in the country.
It’s also a good example of how the NALC works at both the local and national level to protect its members and influence legislation.
Update: DOL clarifies the definition of “son and daughter”
On June 22, 2010, the DOL in an Administrator’s Interpretation clarified the definition of "son and daughter" under the Family and Medical Leave Act to ensure that an employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship:
“It is the Administrator’s interpretation that the regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis to a child. For example, where an employee provides day-to-day care for his or her unmarried partner’s child (with whom there is no legal or biological relationship) but does not financially support the child, the employee could be considered to stand in loco parentis to the child and therefore be entitled to FMLA leave to care for the child if the child had a serious health condition… Similarly, an employee who will share equally in the raising of an adopted child with a same sex partner, but who does not have a legal relationship with the child, would be entitled to leave to bond with the child following placement, or to care for the child if the child had a serious health condition, because the employee stands in loco parentis to the child.”
According to Secretary of Labor Hilda L. Solis, "No one who loves and nurtures a child day-in and day-out should be unable to care for that child when he or she falls ill. No one who steps in to parent a child when that child's biological parents are absent or incapacitated should be denied leave by an employer because he or she is not the legal guardian. No one who intends to raise a child should be denied the opportunity to be present when that child is born simply because the state or an employer fails to recognize his or her relationship with the biological parent.” Click here to read the Administrator’s Interpretation from the DOL website.
The USPS has centralized its FMLA Coordinator position at Shared Services. Attached is a list of addresses and fax numbers by USPS Area where letter carriers should send their certification forms.
If you have issues or questions regarding the FMLA please contact your National Business Agent for assistance.
Description of FMLA Material
- FMLA at U.S. Department of Labor - The Department of Labor's FMLA website has a wealth of useful information and links to advice, forms, the latest regulations and more.
- ELM Section 515 - Section 515 of the USPS Employee and Labor Relations Manual contains the USPS regulations covering FMLA rights (ELM Chapter 510). The ELM can be found here.
- FMLA Regulations - Current FMLA Regulations from the Federal Register (Vol. 78, No. 25, 8834 et seq., February 6, 2013); also published as 29 Code of Federal Regulations Part 825.
- Cautionary Note on FMLA Regulations: Please note that laws and regulations change. For the latest information about FMLA and changes to the FMLA regulations, see the U.S. Department of Labor's FMLA website.