New Jersey Nurses Union, CWA Local 1091
58 East Mount Pleasant. Livingston NJ 07039
p: 973-992-NJNU (6568) f: 973-992-8410
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FMLA

FAMILY MEDICAL LEAVE ACT OF 1993

"It is the purpose of the Act to balance the demands of the workplace with the needs of families... to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition."

- FMLA LAW MANDATES-

  • Substantial time off rights for workers suffering from serious health conditions
  • Leaves to care for children, spouses, & parents<
  • Reduced schedules when medically necessary

In a Unionized setting members can enforce the FMLA by filing grievances, Department of Labor (DOL) charges, or lawsuits.

-BASIC RIGHTS-

FMLA allows you leave for up to 12 weeks per 12 month period if you are unable to work because of a serious health condition. Leave may be taken on a continuous, intermittent, or reduced schedule basis. Time off does not have to be planned.

  • You may not be disciplined, suspended, fired, or denied advancement because of FMLA absences!

  • FMLA days off may not be counted under attendance control policies or otherwise used against you!!

-FMLA DOES NOT APPLY TO-

Colds, Flus, Bronchitis, Ear Aches/Infections, Headaches (Other Than Migraines), Food Poisoning, Upset Stomachs, Poison Ivy, Minor Ulcers, Gum Diseases, Hay Fever, Tooth Extractions

-SERIOUS CHRONIC CONDITION-

To qualify for FMLA, you must be incapacitated due to a "serious health condition." A serious health condition is an illness, injury, or condition that involves one or more of the following:

  • A hospital stay of at least one night
  • Incapacity for more than three consecutive calendar days and continuing treatment by a health care provider
  • Incapacity due to a serious chronic disorder
  • Incapacity due to pregnancy
  • Long-term or permanent disability
  • An absence to receive multiple treatments either for restorative surgery after an injury or to prevent a period of incapacity of more than 3 consecutive days.

Nurses with serious chronic disorders (e.g., diabetes, asthma, orthopedic conditions) have strong protection under the FMLA. Absences due to incapacity or medically necessary treatment are protected even if they are as short as a day or part of a day. You do not have to visit a health care provider during each absence.

A serious chronic health condition is defined as a condition which:

  1. Continues over an extended period of time
  2. Requires periodic visits for treatment by a health care provider, and
  3. Causes or may cause episodic periods of incapacity

The following disorders usually meet the chronic condition test:

  • Arthritis (severe)
  • Asthma
  • Back Injuries (requiring long-term therapy)
  • Cancer
  • Colitis
  • Depressive or Stress-related disorders
  • Diabetes
  • Epilepsy
  • Heart Disease
  • Lupus
  • Migraine Headaches
  • Multiple Sclerosis
  • Pregnancy*

*Continuous, reduced schedule, or intermittent time off must be allowed for any periods of incapacity caused by pregnancy, including miscarriage, appointments for pre-natal care, childbirth, and recovery from childbirth. A pregnant nurse is covered by the FMLA if she is late to work because of severe morning sickness or has to leave work due to nausea or dizziness.

-ILLNESS OR INJURY LASTING MORE THAN 3 DAYS-

An illness or injury is serious if it both:

  • Incapacitates you for more than 3 consecutive days, and
  • Involves continuing treatment by or under the supervision of a health care provider

You are incapacitated if you are unable to perform an essential job function. The ability to perform light-duty work is not relevant.

Consecutive days = calendar days, not work days.

-CONTINUING TREATMENT-

Treatment on two or more occasions by a health care provider, or treatment on a single occasion which results in a regimen of supervised treatment. Treatment includes exams to determine if a serious health condition exists, and treatment to resolve or alleviate the condition. Talking with your MD does not count!

Over-the-counter meds, exercise, or rest don't count, either!

A course of antibiotic or prescription medications does count.

-REDUCED WORK SCHEDULE-

A request for a reduced schedule, certified as necessary by a health care provider, cannot be refused even if part-time work is inefficient.

-HEALTH CARE PROVIDERS-

  • Physicians
  • Optometrists
  • Osteopaths
  • Chiropractors (to correct subluxation)
  • Podiatrists
  • Dentists
  • Clinical psychologists
  • Christian Science practitioners
  • Nurse practioners, Midwives, Clinical Social workers (if authorized in N.J. to diagnose & treat serious health conditions without supervision)

-TIME OFF-

The FMLA insists that you make reasonable efforts to schedule medical treatments so as to not "disrupt unduly" he operations of the employer. A DOL regulation amplifies this obligation by requiring you to consult with management, prior to making appointments, which meet the needs of both parties.

    • Absences for FMLA purposes are protected by law!!
    • Time off for FMLA cannot be counted against you under SBMC's attendance control policy
    • If a nurse stays home under an FMLA qualifying absence and gave sufficient notice, the absence is protected even if the nurse never mentions the FMLA!

    Example: A nurse, absent on nine occasions over a six-month period, was suspended for absenteeism. During the grievance process, the union established that five absences were needed to take care of an asthmatic child and three resulted from a chronic back condition. In each case the nurse called in promptly. Since eight absences qualify under the FMLA, the employer can only rely legally on one absence. This is not enough to justify a suspension.

    -EMPLOYER NOTICE REQUIREMENTS-

    Employers must inform employees about the FMLA by:

    • Displaying FMLA posters

    • Describing the FMLA in employee handbooks & benefit documents

    • Notifying employees who are ineligible for FMLA leave

    • Notifying eligible employees in writing of FMLA status, rights, and responsibilities [Sect. 301]

    • Notifying employees in writing when a paid leave is designated as FMLA leave.

    -DESIGNATION, RIGHTS, AND RESPONSIBILITY NOTICE-

    If you qualify for FMLA coverage, SBMC must give or mail you a notice designating your leave as FMLA-qualifying and listing your specific rights and responsibilities. With reference to the application regulation, this is called "Section 301 notice". This notice must inform you:

    • Whether your absence will be applied to your FMLA entitlement
    • Whether you must submit a medical certification, as well as the consequences of failing to do so
    • Whether you can substitute paid leave or SBMC requires paid leave
    • Any requirement that mandates you make payments to maintain your health benefits, payment arrangements, & consequences if payments aren't made
    • Any return to work fitness report requirement & consequences of failing to do so
    • Your right to reinstatement to the same or equivalent job
    • Whether you're considered a "key employee" & the consequences that job restoration may be denied
    • Your potential liability for health insurance premiums if you fail to return to work

    Section 301 notice must be provided to you within 2 business days of when you inform SBMC of your need for FMLA leave. If your leave has begun, the notice may be mailed to your home.

    An employer that fails to provide a required Section 301 notice cannot punish an employee, disallow leave, or deny reinstatement due to an employee's failure to comply with the obligations required to be described in the notice. Nor may the absence be applied to the employee's 12 week FMLA entitlement.

    -PROVISIONAL DESIGNATION-

    An employer who cannot determine whether an absence qualifies under the FMLA can, within two days, issue a notice "provisionally" designating the absence as FMLA pending receipt of medical certification or other reasonable documentation.

    If you've been disciplined or did not receive a copy of 301 regulations from SBMC within 2 days from your absence for an FMLA-qualifying condition, you have the right to file a lawsuit or file a charge with the Department Of Labor Wage and Hour Division. Always call NJNU.

    Department of Labor
    200 Sheffield St.
    Mountainside, NJ 07092
    (973) 645-2279

    NJNU
    P.O. Box 2008
    Livingston, NJ 07039
    (973) 992-6568

    You have 2 years to file a lawsuit or charge with the Department of Labor.

    More FMLA info will be coming soon!

    An educated membership is a strong membership!!!