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This is to advise you of some of your basic rights under the Family and Medical Leave Act ("FMLA"), a federal law passed in 1993 that is little utilized by our members but that is designed to assist working Americans meet their family needs in the event of a birth or adoption of a child, the serious illness of an employee or the serious illness of a family member.

KEY FMLA PROVISIONS

In order to ensure that our members are aware of their rights under this complicated piece of legislation, we have prepared the following summary of some of FMLA's key components:

WHAT IS THE FMLA?

The FMLA was signed into law on February 6, 1993, eight years after being first introduced in 1985. The purpose of the FMLA is to provide employees with certain protections against job and benefit loss when family needs specified under the Act, including the birth of a child and the serious illness of an employee or the serious illness of a specified class of relatives, necessitate that the employee take leave from work.

DOES THE FMLA ONLY APPLY TO WOMEN?

No, FMLA rights are available to both female and male police officers.

WHAT RIGHTS DO EMPLOYEES HAVE UNDER THE FMLA?

Under the FMLA, "eligible employees" are entitled to up to 12 workweeks of unpaid leave from their employers during any 12-month period for one or more of the following reasons:

• the birth of a son or daughter of the employee and in order to care for such son or daughter - this right expires at the end of the 12-month period beginning on the date of such birth

• the placement of a son or daughter with the employee for adoption or foster care - this right expires at the end of the 12-month period beginning on the date of such placement

• in order to care for the spouse, or son, daughter, or parent, of the employee if such spouse, son, daughter or parent has a "serious health condition" (a "serious health condition" is defined under the FMLA as an illness, injury, impairment, or physical or medical condition that involves inpatient care in a hospital, hospice, or residential medical care facility, or continuing treatment by a health care provider)

• a serious health condition that makes the employee unable to perform the functions of the position of such employee.

During the employee's first 12 workweeks of absence from work for one of the above-covered reasons, the employer is required to continue health insurance at the same level and under the same conditions as would have been provided if the employee remained continuously employed during the leave of absence¹.


CAN THE DEPARTMENT PUNISH ME FOR TAKING FMLA LEAVE?

The FMLA also requires employers to provide employees returning from FMLA leave with the same employee benefits that they had accrued prior to the commencement of their leave. In addition, the employer must generally offer the employee his or her previous job or equivalent job when the employee returns. The FMLA prohibits retaliation or discrimination against any employee exercising rights under the act. Under FMLA regulations, FMLA leave does not count as an episode under no-fault leave policies like the Department's Chronic Sick program.

WHO IS ELIGIBLE TO RECEIVE FMLA BENEFITS?

To be an "eligible employee" under the FMLA, an employee must be employed for at least 12 months by the employer with whom leave is requested and must have performed at least 1,250 hours of service with such employer during the previous 12-month period.

EMPLOYER'S NOTICE OBLIGATIONS UNDER THE FMLA

At its most basic level, the FMLA requires the employer to provide employees with three forms of notice of their rights under the FMLA:

• a job-site posting containing general information about the basic requirements of the FMLA

• an inclusion of some document outlining employee rights and obligations under the Act, to the extent that an employer has an employee handbook or other written policies describing leave benefits

• a customized notice of FMLA rights, obligations, and procedures to an employee who asks to take leave for a FMLA-qualifying purpose (the customized notice must be given to an employee within one to two business days after the employee has requested FMLA leave)

EMPLOYEE NOTICE OBLIGATIONS UNDER THE FMLA

An employee seeking leave must provide the employer with notice of the intention to use FMLA leave. If the leave is in connection with the expected birth or placement of a child with the employee for adoption or foster care, the employee must provide 30 days' notice if possible. If the date of birth or placement of a child requires leave to begin in less than 30 days, then the employee is required to provide notice of the intention to use FMLA leave "as is practicable." Similarly, if the leave is to care for a qualifying family member with a serious health condition or because of the employee's own serious health condition and the need for leave is "foreseeable based on planned medical treatment," the employee must provide 30 days' notice of the intent to use FMLA leave. However, if the need is unforeseeable, for example where there is the sudden onset of a medical condition or medical emergency, then the employee must notify the employer "as soon as practicable." According to the Department of Labor's ("DOL") regulations interpreting the FMLA, as soon as practicable means: "as soon as both possible and practical, taking into account all of the facts and circumstances in the individual case." The DOL regulations also state that "it is expected that an employee will give notice to the employer within no more than one or two working days of learning of the need for leave, except in extraordinary circumstances where such notice is not feasible."

HOW TO TAKE ADVANTAGE OF FMLA RIGHTS AT THE NYPD

As mentioned above, in order to take advantage of the rights afforded under the FMLA, you must first notify the Department of your intention to take FMLA leave. We are informed by the Military and Extended Leave Desk, the unit responsible for processing FMLA leave requests, that members requesting FMLA leave must submit a U.F. 49 detailing the reason for such leave to the Commanding Officer of the Military and Extended Leave Desk. For your convenience, we have attached a form U.F. 49 that you can utilize for this purpose. In the event that you are denied FMLA leave or believe that the Department is not complying with its obligations under the Act, please contact us immediately.

PBA'S SUCCESSFUL CHALLENGES OF DENIAL OF FMLA BENEFITS

The PBA has successfully challenged denials of health benefits for officers on approved leave of absences, under the FMLA. For example, the PBA challenged the City's/Department's denial of a police officer's medical claims during a period of absence that should have been covered as a child care leave of absence under the FMLA. The Officer had requested and was approved for a leave of absence without pay to care for her newborn child. The leave of absence, which should have been classified as a Child Care Leave of Absence under the FMLA, was misclassified as a regular leave of absence without pay. Under ordinary leave policies, employees who take a leave of absence without pay may lose health care coverage for the period of their absence. Consequently, her medical insurance carrier rejected certain medical claims for services rendered during her absence because "coverage was terminated."

However, under the FMLA, health coverage under any group health plan must be maintained by the employer for up to twelve weeks during a covered leave of absence. Accordingly, the PBA demanded that the Officer's time and leave records be adjusted to reflect a Child Care Leave of Absence and that all necessary adjustments be made retroactively to reinstate the Officer's health care coverage. Subsequently, the Department approved the grievance and informed the PBA that the Officer's benefits were retroactively reinstated and that all of the Officer's medical claims were approved for payment.

SUMMARY

The foregoing is meant to provide you with an overview of some of your basic rights under the FMLA that is in no way exhaustive. To supplement the foregoing, we suggest that you read the frequently asked questions and answers prepared by the U.S. Department of Labor, which are viewable at http://www.dol.gov/elaws/esa/fmla/faq.asp. Any questions that you may have concerning the Police Department's procedures for taking leave under the FMLA should be directed to the Military and Extended Leave Desk. The telephone number is (646) 610-5513. Again, in the event that you are denied FMLA leave or believe that the Department is not complying with its obligations under the Act, please contact us immediately.

¹After 12 weeks, the employee has the option to be covered under COBRA.