To All Delegates and Members

July 7, 2009

Police Officers’ Rights under the
Family and Medical Leave Act

New Amendments Expand Coverage for Reasons
Related to Military Service

 

Overview of the New Amendments

Since 1993, police officers have had rights under the Family and Medical Leave Act (the “FMLA”), a federal law that was created to assist working Americans meet their family needs in the event of the birth, adoption, or placement of a child in foster care, the serious illness of a family member, or the employee’s own serious illness.  In 2008 and 2009, amendments expanded the coverage of the FMLA to individuals providing assistance to members of the military and to wounded veterans.  Under the new coverage, eligible employees are entitled to take leave for “qualifying exigencies” to help manage the affairs of a soldier or the soldier’s family before, during, and after deployment.  In addition, the new amendments entitle eligible employees to leave to care for a family member who was wounded while serving in the military. 

This summary is written to advise our members of their basic rights under the Family and Medical Leave Act, as amended.  As with many of our advisory postings, the foregoing is meant to provide our members with an overview of their basic rights, and is in no way exhaustive.  To supplement this advisory, we suggest that our members consult the United States Department of Labor website. Any questions concerning the Police Department’s procedures for taking leave under the FMLA should be directed to the Military and Extended Leave Desk (“MELD”).  The telephone number is (646) 610-5513.  As of July 8, 2009, MELD does not have updated forms or materials reflecting the new changes in the law.(See Note 1, below)  However, the Department’s Office of Labor Relations has informed us that changes to the forms and pertinent materials are in the process of being revised city-wide and that in the meantime, our members will be able to avail themselves of the new types of leave and other changes in the law.  Please contact us directly in the event that leave is denied or if there is reason to believe the Department is not complying with its obligations under the Act.

The Family and Medical Leave Act

Police officers who have worked for at least 12 months and for at least 1,250 hours during the 12-month period prior to the date requested for leave to begin are entitled to take unpaid leave for the following:

1. the birth, adoption, or placement in foster care of a child; or
2. the care of a spouse(See Note 2, below), child, or parent with a serious health condition; or
3. the police officer’s own serious health condition(See Note 3, below); or
4. because of a qualified exigency(See Note 4, below) arising out of the fact that the spouse, child, or parent of the police officer is on active duty in the Armed Forces or has been notified of an impending call or order to active duty in support of a contingency operation.  Such qualified exigency leave is available only where the active duty or call/order to active duty is made to members of the National Guard or Reserve components or retired members of the Regular Armed Forces or Reserve; or
5. to care for a covered military service member’s serious illness or injury, if the eligible police officer is the child, spouse, parent or next of kin of the service member.

The leaves provided under (d) and (e) above are the new forms of leave provided for under the FMLA as of January 2009.

Duration and Timing of Leave

For leave under (a) through (d) above, police officers are entitled to up to 12 weeks of leave in a 12-month period. 

For leave under (e) above, police officers are entitled to up to 26 weeks of leave per covered illness or injury within a single (one-time) 12-month period.  Spouses who request leave under (e), or because of a combination of (e) and any other reason described above, may only take a combined total among them of up to 26 weeks of leave during the single 12-month period. 

For leaves under (a) above, leave must be taken within 12 months of the birth, adoption, or placement of a child with the police officer for foster care.  If a police officer and his or her spouse are both New York City police officers, even though they may be assigned to different precincts, and if they are taking leave under (a) above, or for the care of a parent under (b) above, they are permitted to take a combined total of 12 weeks’ leave.

When medically necessary, the police officer’s 12-week entitlement may be taken intermittently or on a reduced-schedule basis, however, prior approval may be necessary.  Leave taken under reason (d) may be taken intermittently or on a reduced leave schedule irrespective of medical necessity, and prior approval may be required.  Whenever the police officer requires intermittent or reduced-schedule leave, he or she must attempt to schedule FMLA leave so as not to disrupt the New York Police Department’s business operations.  The NYPD may, for example, assign the police officer temporarily to an alternative position with equivalent pay and benefits which better accommodates the officer’s intended leave schedule and the NYPD’s operations.

Substitution of Paid Leave for Unpaid Leave

Police Officers may choose or the NYPD may require officers to use accrued paid leave while taking FMLA leave.  In order to use paid leave for FMLA leave, officers must comply with the NYPD’s normal paid leave policies.

Continuation of Health Benefits

The NYPD will continue the police officer’s coverage under its health benefits plan(s) at the same level of coverage the officer was receiving prior to taking leave.  However, once an officer unequivocally indicates his or her intent not to return to work, the NYPD’s obligation to maintain the officer’s health coverage will cease.

Notice Requirements – Police Officers

If the police officer’s need for leave is foreseeable, the officer must provide notice to the NYPD at least 30 days in advance of the leave.  When 30 days’ notice is not possible, the police officer must provide notice as soon as reasonable and practicable, and must comply with any of the NYPD’s normal call-in procedures.  If the need for leave is foreseeable and the officer fails to give the requisite notice, the NYPD may delay the commencement of the leave until 30 days after notice is given. 

The Department currently requires police officers to provide medical certification from a health care practitioner or other relevant information to support his or her request for leave.  In addition, re-certification may be required during leave, and the police officer may be required to submit status reports indicating his or her intent to return to work.  Furthermore, if the leave is due to the police officer’s own serious health condition, the officer will be required to submit a “fitness for duty” report before returning to work, certifying that he or she is able to resume work.  Details regarding certification should be provided to you by the Military and Extended Leave Desk.

Notice Requirements – NYPD

The NYPD must inform officers requesting leave whether they are eligible under the FMLA.  If they are, the notice must specify any additional information required as well as the employees’ rights and responsibilities.  If they are not eligible, the NYPD must provide a reason for the ineligibility.

The NYPD must inform the officer requesting leave if the leave will be designated as FMLA-protected and the amount of leave counted against the employee’s leave entitlement.

Reinstatement

The FMLA requires the NYPD to provide its officers returning from leave reinstatement to the same or equivalent position, the same pay, and the same benefits that they had accrued prior to the commencement of their leave, subject to any changes made while he or she was on leave.  Under FMLA regulations, FMLA leave does count as an episode under no-fault leave policies, like the Department’s Chronic Sick program. 

Unlawful Acts

The FMLA prohibits discrimination and retaliation against any officer exercising rights under the Act.  Specifically, the FMLA makes it unlawful for any employer to: (1) interfere with, restrain, or deny the exercise of any right provided under the FMLA; and (2) discharge or discriminate against any person for opposing any practice made unlawful by the FMLA or for involvement in any proceeding under or relating to the FMLA.  For example, the Department cannot deny leave that an officer is entitled to take, refuse to reinstate an officer at the end of leave (unless one of the law’s exceptions apply), or use the taking of FMLA leave as a negative factor in making employment decisions (by, for example, denying a promotion or taking disciplinary action against an officer). 

How to Take FMLA Leave

In order to take advantage of the rights afforded under the FMLA, an officer must first notify the NYPD of his or her intention to take FMLA leave.  As noted above, the relevant leave forms are available through the Military and Extended Leave Desk, but the forms do not yet reflect the new changes in the law.  MELD should, however, verbally provide police officers updated, accurate information so that the officers may avail themselves of the new categories of leave, as now required by federal law.  Should any police officer find that he or she is not being provided with updated and accurate information or if any police officer has reason to believe that the Department is not complying with its obligations under the FMLA, please contact the General Counsel’s office directly.

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Notes