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FMLA Protections Threatened

(This article first appeared in the May/June 2008 issue of The American Postal Worker magazine.)

When the Department of Labor made proposals early this year that would change the rules governing the Family and Medical Leave Act of 1993, concerned advocates for workers’ rights swung into action.

By the April 11 deadline for submission of remarks on the proposed rules, more than 1,600 comments had been posted on the Labor Department Web site; among those, approximately 900 were from postal workers.

“The FMLA is the one of the most important pro-worker, pro-family laws in recent memory,” APWU President William Burrus said. “Since it was signed into law by President Clinton, it has worked well for both employers and employees.”

The FMLA requires employers to grant eligible employees up to 12 work-weeks of unpaid leave during any 12-month period due to a serious health condition, to care for an immediate family member with a serious health condition, to care for a newborn child, or for adopting a child or caring for a foster child.

The changes being promoted by the Bush Administration could have far-reaching effects on postal workers and their families, and could make it far more difficult for workers to use FMLA leave.

Union activists submitted remarks to the Federal Register, where comments were accepted for 60 days (a Department of Labor spokesperson said that an additional 3,000 submissions received before the deadline were still to be posted). The APWU also filed formal objections. Our primary concerns are in the areas of medical privacy, documentation, and the certification process for establishing qualifying conditions.

Privacy, Documentation, Certification

Under current law, employers are prohibited from making direct contact with an employee’s healthcare provider. Under a proposed rule, employers would be able to make contact with an employee’s doctor if they suspect fraud or if they think they need clarification of a document. The proposed change would waive the requirement that employers must rely on a healthcare professional to make the inquiry.

Under current regulations, there is no place on FMLA forms for healthcare providers to report their diagnosis or prognosis when certifying employees for Family Medical Leave; they must supply only the “medical facts” that justify the absence. New regulations would permit (but not require) healthcare providers to offer a diagnosis and/or prognosis. Experts suggest this change may violate medical privacy laws. As a practical matter, it may give line supervisors a “hammer” to force employees to divulge more than the law requires with respect to medical information about themselves and their family members.

The proposals would also require more frequent “recertifications.” Under current rules, a person with a lifelong chronic condition who is periodically absent as a result must have the condition medically certified at least once a year. Under a proposed rule change, such re-certifications could be required every six months. The cost for the additional certifications would be borne by the employee, which could place an unreasonable financial burden on affected employees as well. These are just some of our concerns.

For more information about the pending FMLA regulations and the union's efforts to stop them, visit the FMLA issues pages on www.apwu.org.

FMLA Leave for Military Families

It hasn’t been all “bad news” on the Family and Medical Leave Act. A change that went into effect early this year allows postal workers and others covered by the law to take up to 26 weeks of leave to help an eligible family member recover from a military service-related injury or illness. Another amendment to the FMLA permits workers to take up to 12 weeks to fulfill obligations if a spouse, child, or parent is on active duty, or is being called to active duty.

The FMLA now permits a “spouse, son, daughter, parent, or next of kin” to take up to 26 work-weeks of leave during a 12-month period to care for a member of the armed forces who is undergoing medical treatment, recuperation, or therapy.

The active-duty provision permits workers to take up to 12 weeks of FMLA leave for “any qualifying exigency arising out of the fact” that a close relative is on active duty.

FERS Unused Sick-Leave Bill

On March 10, Rep. Jim Moran (D-VA) introduced H.R. 5573, a bill that if it became law would allow Federal Employees Retirement System employees to receive compensation for unused sick leave at the conclusion of their postal careers.

To be eligible for such compensation, a worker would have to have more than 500 hours of accumulated sick leave. Under a formula found in this bill, such employees would be paid for sick-leave hours in excess of 500 at a rate equal to 15 percent of their base pay at the time of separation from the Postal Service.

For example, an employee with 1,200 hours of unused sick leave would receive a lump-sum payment equal to 700 hours multiplied by 15 percent of his or her base pay. If the base pay is $24, the employee would receive 15 percent of that amount ($3.60) multiplied by 700, for a lump-sum payment of $2,520.

While the level of compensation does not approach what we believe would be adequate, we do see it as a step in the right direction — FERS employees currently receive nothing for their unused sick leave.

In contrast, Civil Service Retirement System employees benefit from a sick-leave balance at the end of the employment period: In the calculation of their retirement benefit, CSRS employees receive unused sick leave as additional time towards the benefits pegged to their years of employment.

GPO and WEP

The APWU attended House and Senate hearings earlier this year on pending legislation intended to eliminate Social Security penalties imposed on Civil Service Retirement System retirees.

The Government Pension Offset (GPO) is a provision that penalizes surviving CSRS retirees if the deceased spouse was receiving a social security pension. In most instances under current law, the deceased spouse’s Social Security death benefit is wiped out after the offset is applied. The offset is an amount equal to two-thirds of the CSRS pension amount.

In other words, if the surviving spouse is covered by CSRS, and he or she receives an annuity of $1200 a month, the offset to be applied to the Social Security Death benefit is $800.When that amount is deducted from the death benefit, it typically wipes it out.

The other pension-related legislation we are following is the H.R. 82, which would repeal the Windfall Elimination Provisions. In order for CSRS retirees to avoid penalties under the WEP of current law, they must have at least 30 years of “substantial earnings” employment during which they paid into Social Security. Such retirees see a reduction in the Social Security retirement benefit if they fail to meet this earnings test in any of those 30 years. In other words, a worker with 25 years of “substantial earnings” could nonetheless suffer a reduction in benefits, unless the WEP is repealed.

H.R. 82, introduced by Rep. Howard Berman (D-CA), had 339 co-sponsors as of mid-March, and a related Senate bill (S. 206), introduced by Dianne Feinstein (D-CA) had 35 co-sponsors. Each of these bills would eliminate the penalties of the GPO and WEP.

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