Police Officers' Rights under the Family and Medical Leave Act
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. 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:
- the birth, adoption, or placement in foster care of a child; or
- the care of a spouse, child (See Note 1, below), or parent with a serious health condition; or
- the police officer’s own serious health condition (See Note 2, below); or
- because of a qualified exigency (See Note 3, below) arising out of the fact that the spouse, child, or parent of the police officer is deployed to a foreign country on active duty in the Armed Forces, National Guard, or Reserves or has been notified of an impending call or order to active duty in support of a contingency operation; or
- to care for a covered military service member’s (See Note 4, below) serious illness or injury (See Note 5, below), if the eligible police officer is the child, spouse, parent or next of kin of the service member.
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 of 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.
Vacation Time and Other Accrued Leave
All accrued vacation time and other accrued leave must be exhausted prior to the start of FMLA leave. Police officers do not accrue vacation time while on unpaid leave, and vacation may not be taken before a leave which includes time that would have accrued during the leave of absence. If such vacation time was already taken, it will be deducted from the officer’s vacation allowance for the following year.
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.
If a police officer is requesting leave because of the officer’s own or a covered relative’s serious health condition, or to care for a covered service member, 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. If FMLA leave is requested for a qualifying exigency, the officer will be required to provide certification explaining the reasons for the leave and a copy of the covered military member’s covered active duty orders or other documentation issued by the military which indicates that the covered military member is on covered active duty or called to covered active duty status, and the dates of the covered military member’s covered active duty service.
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 within 5 business days of the leave request. If they are eligible, 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.
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. The relevant leave forms are available through MELD. 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.
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Note 1: For purposes of FMLA leave taken for birth or adoption, or to care for a family member with a serious health condition, “child” means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under age 18, or age 18 or older and "incapable of self-care because of a mental or physical disability" at the time that FMLA leave is to commence. Persons who are "in loco parentis" include those with day-to-day responsibilities to care for and financially support a child. A biological or legal relationship is not necessary. (Back to text.)
Note 2: A “serious health condition” is an illness, injury, impairment, or physical or mental condition that involves either an overnight stay in a medical care facility, or continuing treatment by a health care provider for a condition that either prevents the officer from performing the functions of the job, or prevents the qualified family member from participating in school or other daily activities. (Back to text.)
Note 3: Examples of “qualified exigencies” include attending certain military events, arranging for alternative childcare, addressing certain financial and legal arrangements, attending certain counseling sessions, and attending post-deployment reintegration briefings. (Back to text.)
Note 4: A covered service member is (a) a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation or therapy for a serious injury or illness incurred during active duty and who was a member of the Armed Forces at any time during the five years preceding the date of treatment, recuperation or therapy; or who is otherwise on the temporary disability retired list; or (b) a veteran (as defined under the FMLA) who is undergoing medical treatment, recuperation, or therapy, for a serious injury or illness and who was a member of the Armed Forces, including a member of the National Guard or Reserves, at any time during the period of five years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy. (Back to text.)
Note 5: A serious injury or illness is one that was incurred by a service member in the line of duty on active duty that may render the service member medically unfit to perform the duties of his or her office, grade, rank or rating, and includes injuries or illnesses that are aggravated by service in line of duty. (Back to text.)