Mika discusses union contracts and how employers must be aware of family and medical leave rights when applying contract provisions

Mika, Karin

English

EngagedScholarship @ Cleveland State University

Pitfalls of FMLA and Collective Bargaining Agreements

Cleveland-Marshall College of Law

Cleveland State University EngagedScholarship@CSU Law Faculty Articles and Essays Faculty Scholarship Spring 2010 Pitfalls of FMLA and Collective Bargaining Agreements Karin Mika Cleveland-Marshall College of Law, Cleveland State University, k.mika@csuohio.edu Follow this and additional works at: https://engagedscholarship.csuohio.edu/fac_articles  Part of the Labor and Employment Law Commons How does access to this work benefit you? Let us know! Repository Citation Mika, Karin, "Pitfalls of FMLA and Collective Bargaining Agreements" (2010). Law Faculty Articles and Essays. 1075. https://engagedscholarship.csuohio.edu/fac_articles/1075 This Article is brought to you for free and open access by the Faculty Scholarship at EngagedScholarship@CSU. It has been accepted for inclusion in Law Faculty Articles and Essays by an authorized administrator of EngagedScholarship@CSU. For more information, please contact research.services@law.csuohio.edu. Pitfalls of FMLA and Collective Bargaining Attendance Policies By Karin Mika ost all collective bargaining ements include a progressive "plinary process. The impo-siti of discipline may involve "points" being assessed for violat-ing a company's rules, including its attendance policy. In some situations, employees may accu-mulate attendance points based on missed days, tardiness, or fail-ures to call in timely. Attendance infractions may lead to progres-sive discipline, ultimately leading to discharge. In a unionized workplace, the collective bargaining agreement has historically governed the day-to-day relationship between a union member and an employer. Despite the fact that such agree-ments are negotiated contracts that, in some respects, memorial-ize trade-offs of some legal rights for other rights, this process is no longer as insular as it once was. Collective bargaining agree-ments must incorporate many statutory rights now enjoyed by most employees in the workforce. These include the right to be free from discrimination, the right to be free from sexual harassment, the right to take advantage of the provisions of the Americans with Disabilities Act, and the right to take advantage of the Family and Medical Leave Act (FMLA). Under the federal FMLA, eli-gible employees may take up to 12 workweeks of unpaid leave to www.abanet.org/labor deal with a serious health condi-tion or to care for an immediate relative who has a serious health condition. (Where state or local laws provide greater benefits, they supersede federal law.) Em-ployees may request long-term leave in advance or may take "intermittent" leave when, for ex-ample, a chronic illness requires a day or hour here or there, or the employee faces unforeseeable situations. When an employer has certi-fied an employee for intermittent leave, the employee is obligated to provide notice of the need for time off as soon as practicable and must also provide medical certification verifying the need for the leave. If the certification requirement is met, and as long as the employee is eligible, em-ployers are obligated to assess an absence (or similar attendance infraction, such as tardiness) as FMLA time and may not discipline the employee for invoking the right to the leave. Failure to prop-erly allow an attendance infrac-tion to be characterized as FMLA time may result in liability for the employer. The attendance policy in a collective bargaining agreement must be squared with the provi-sions of the FMLA. The act spe-cifically provides that it shall not "be construed to diminish the obligation of an employer to com-ply with any collective bargaining agreement or any employment benefit program or plan that pro-vides greater family or medical leave rights to employees than the rights established under this Act." 29 U.S.C. § 2652(a). It also provides that the rights it estab-lishes "shall not be diminished by any collective bargaining agree-ment or any employment benefit program or plan." § 2652(b ). Consequently, while the FMLA permits employers to negotiate collective bargaining agreements that provide greater rights than those the statute requires, em-ployers may not enforce an agree-ment or policy that restricts the Employers must be aware of family and medical leave rights when applying contract . . prov1s1ons. rights guaranteed by federal law. If not carefully drafted with the FMLA in mind, collective bargain-ing agreement attendance poli-cies may run the risk of causing FMLA violations. Consider an example of a typi-cal attendance policy that may run afoul of the FMLA: An employ-er assesses a disciplinary "point" against an employee who fails to call off for a shift within 60 min-utes prior to the shift's start. Now add the elements that the employ-ee is caring for a seriously ill child who has unpredictable seizures and that the child has a seizure near the time the employee is to begin the shift. According to the FMLA, if the employee has appropriately cer-tified to the employer that he is caring for a seriously ill child, that employer may not be entitled to assess the employee a disciplin-ary "point" for failing to call in 60 minutes before the shift. Rather, the employer may be required to excuse the employee if he lets the employer know about the situa-tion "as soon as practicable." This is not to say that the em-ployee is exempt from providing medical certification verifying that the event occurred, or that the employer may not reassess what it considers "as soon as practicable" if an employee seems to be abus-ing the leave policy. However, under the FMLA, the employer may not always have the oppor-tunity to enforce the attendance policy in a collective bargaining agreement as written without po-tentially violating the FMLA and subjecting itself to lawsuit. Arbitrators must particularly be aware of the potential conflict between a negotiated attendance policy and the FMLA. Arbitrators are not necessarily bound by precedent when interpreting a collective bargaining agreement nor are they necessarily bound by statute. However, the FMLA sets out clear language providing that it is applicable to collective bar-gaining agreements. Thus, in assessing discipline based on attendance infractions when FMLA-protected absences are alleged, the arbitrator must use caution to ensure that the attendance policy itself does not restrict the rights of an employee under the FMLA. Moreover, when drafting collective bargaining agreements containing atten-dance policies, drafters must be aware of the FMLA's restrictions to avoid future liability for disci-pline violating the statute. • Karin Mika [karin.mika@/aw.csuohio. edu) is a professor of legal writing at Cleveland-Marshall College of Law in Cleveland, Ohio. Spring 201 a Labor and Employment Law II 

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Pitfalls of FMLA and Collective Bargaining Agreements

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