Family Medical Leave Act - A Brief History

It was in the early 1990's that the U.S. Congress passed, and President Bill Clinton signed into law, the Federal Family Medical Leave Act of 1993 (FMLA). The administration of the "Act" falls to the Dept. of Labor, and specifically to the Wage & Hour Division of the Department of Labor (DOL). To get to the point of passage, there had to be a collaboration and recognition of interests involving both Labor and Business. While it is acknowledged that the protections greatly benefit, and were prompted by, the needs of the Labor Community, the Act (FMLA) is not 'perfect' and has been clarified over the years via DOL FMLA "Opinion Letters"...similar to our Collective Bargaining Agreement "side letters". Sometimes to find answers to the many questions that arise over the administration of FMLA, one must not only read the language of the Act, but also research the intent of the DOL and Congress in constructing the Act, as well as the (more than 100) Opinion Letters written on various FMLA issues from 1993 to the present.

The most significant change to the Family Medical Leave Act occurred in December 2009 when Congress passed, and President Obama signed into law, the 'Airline Flight Crew Technical Corrections Act' which granted FMLA rights to many thousands more flight crewmembers than had been covered during the previous 16 years! While Flight Attendants had been included under the original language of the Act, due to our 'outside the norm' means of calculating compensation (based on flight time hours rather than hours 'on the job'), it had always been argued by Airline Managements that only our FTM could be used to determine an individual Flight Attendant's eligibility for family leave.

It was not until a lawsuit was brought forward by a Delta Flight Attendant against Delta Airlines (Rich v. Delta Airlines) in 1996 that prompted the Dept. of Labor to review how flight crewmembers eligibility should include Duty Time Hours rather than Flight Time Hours to calculate eligibility. From that time, airlines were 'supposed' to calculate our duty time (time 'on the job') for FMLA eligibility...and when done correctly, this did allow many more Flight Attendants to be covered by FMLA protections.

But the battle continued to allow even more Flight Attendants coverage under the Act. Congressional House Representative, Tim Bishop (D-NY), Senators Patty Murray (D-WA) and Chris Dodd (D-CT) worked extensively with AFA-CWA to craft the language of the legislation as it moved through the process on Capitol Hill. Ultimately the bill became law due to the tremendous support and effort shown by the thousands upon thousands of flight crewmembers and their families who called, emailed, and contacted their elected Congressional Representatives urging support for the bill. The Airline Flight Crew Technical Corrections Act of 2009 finally fully recognizes the peculiarities of our work schedules, reserve limitations, and variable work hours and has adjusted the Family Medical Leave Act to acknowledge a more equitable eligibility benchmark which allows greater access to the legal protections afforded under the Act.

Definitions of Commonly Used Terms

"Auto-Designation": What is it and why is it legal?

The Act provides an employer with the ability to automatically designate’ an absence (whether or not it is an occupational absence or sick leave) as Family Leave.

A brief history as to the reason for this allowable practice to be in place is that when laws are passed, there are arguments heard by the Dept. of Labor and Congress not only by employees who benefit from these protections, but also arguments heard from companies who are attempting to limit such protections as much as possible because such protections usually cost them money. This is just one of those issues where an accommodation was granted in order to assuage the business community: allow Family Leave protections which force an employer to grant time off for such incidents that involve a ‘serious health condition’, BUT, allow the company to designate any absence WHICH ALSO MUST MEET THE PARAMETERS OF A ‘SERIOUS HEALTH CONDITION’ as Family Leave and thus work to limit the employees’ ability to use another 12 weeks of FMLA after they return from, for example, an Occupational where they were already off for a period of time.

While the above may not seem ‘fair’ to the employee group, it actually is legal under the Family Medical Leave Act. Any law, FMLA included, is never ‘perfect’ and is usually an attempt to weigh the consequences to all parties involved - employee and employer. In the instances where the employee has other issues which qualify for FMLA (personal medical issues or those of a parent or dependent), then the ‘auto-designation’ will impact the ability to use FMLA for the other qualifying issues.

One of the benefits of the 2009 Airline Crewmember Technical Corrections Act which provided a lower ‘bar’ for airline crewmembers to qualify for FMLA is that it will now take less time to reach the eligibility level (504 hours of credited FTM in a rolling 12 month period, excluding time ONSL, OCSL, or VAC). Since eligibility is based on a rolling 12-month period, it will be 12 months from when you first used FMLA that the hours used will begin to ‘fall off’ and you will then have those hours able to replenish the allowable bank of 230 hours.

The relevant family medical leave application forms are available on the AFA UAL MEC website www.unitedafa.org and follow the link for FMLA under ‘Quick Hits’.

Explanation of what constitutes a "serious health condition"

Explanation of what constitutes a "serious health condition" (per the actual language of the FMLA, Code of Federal Regulations - CFR, Title 29 Part 825.113):

825.113:
(a) For purposes of FMLA, “serious health condition” entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in §825.114 or continuing treatment by a health care provider as defined in §825.115.

(b) The term “incapacity” means inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.

(c) The term “treatment” includes (but is not limited to) examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations. A regimen of continuing treatment includes, for example, a course of prescription medication ( e.g. , an antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition ( e.g. , oxygen). A regimen of continuing treatment that includes the taking of over-the-counter medications such as aspirin, antihistamines, or salves; or bed-rest, drinking fluids, exercise, and other similar activities that can be initiated without a visit to a health care provider, is not, by itself, sufficient to constitute a regimen of continuing treatment for purposes of FMLA leave.

(d) Conditions for which cosmetic treatments are administered (such as most treatments for acne or plastic surgery) are not “serious health conditions” unless inpatient hospital care is required or unless complications develop. Ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc. , are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave. Restorative dental or plastic surgery after an injury or removal of cancerous growths are serious health conditions provided all the other conditions of this regulation are met. Mental illness or allergies may be serious health conditions, but only if all the conditions of this section are met.

Eligibility

Flight Attendants can determine their eligibility for Family Medical Leave, based on company records of flight time hours, by contacting the Flight Attendant Support Team, option 4, then option 5.

Explanation of the eligibility criteria for Flight Attendants (per the actual language of the Airline Flight Crew Technical Corrections Act of 2009)

SEC. 2. LEAVE REQUIREMENT FOR AIRLINE FLIGHT CREWS

(a) Inclusion of Airline Flight Crews- Section 101(2) of the Family and Medical Leave Act of 1993 (29 U.S.C. 2611(2)) is amended by adding at the end the following:

(D) AIRLINE FLIGHT CREWS-

(i) DETERMINATION- For purposes of determining whether an employee who is a flight attendant or flight crewmember (as such terms are defined in regulations of the Federal Aviation Administration) meets the hours of service requirement specified in subparagraph (A)(ii), the employee will be considered to meet the requirement if--

(I) the employee has worked or been paid for not less than 60 percent of the applicable total monthly guarantee, or the equivalent, for the previous 12-month period, for or by the employer with respect to whom leave is requested under section 102; and

(II) the employee has worked or been paid for not less than 504 hours (not counting time spent on vacation leave or medical or sick leave) during the previous 12-month period, for or by that employer.

Application Process

***Important note, PLEASE READ FIRST: When the need for Family Leave is unforeseen, whether it be to care for yourself or to care for a family member, and even if the health condition is chronic in nature, WAIT until there is an actual need to be absent from work to initiate the Family Leave application process!

The reason for this is two-fold (over and above the fact that this is the defined process under the Family Medical Leave Act). The first reason to WAIT until there is an actual absence is that the eligibility period is defined as the 12-month period immediately preceding the absence to determine if you qualify with the requisite 504 credited duty time hours (not to include sick leave and vacation). The second important reason is that once there is an absence, family leave for that same condition is valid for the 12-month period from the absence going forward! Consider that ‘if’ you applied for family leave “just to have it on-hand in case you needed it in the future” and then you went many weeks or several months before you actually had an absence, the time waiting to ‘need it’ would be wasted. (For many years, United has fostered this incorrect way of applying for Family Leave. Doing so may ‘seem’ easier, however, the key to ensuring our Company administrates all aspects of FMLA correctly is to follow the process as it is meant to be administrated per the law.)

Once there is an actual absence, you then have 15 calendar days in order to submit the family leave application to the Employee Service Center/FMLA Administration. The Act does allow for an extension of the 15-day period if the employee has done their due diligence to comply but factors outside the control of the employee delayed the time-limit compliance, for example... if the Health Care Provider delayed the paperwork submittal. Your obligation is to try to comply to the best of your abilities.

[***The ONE exception to the above is if you know in advance of the need for an absence (for example, a scheduled surgery), then the obligation is to give “as much notice as practicable” if less than 30-days prior to the date of absence. Eligibility is still based on the 12-month period immediately preceding the actual absence.]

Applying for FMLA for your own health condition

Applying for FMLA to care for an eligible family member

In either case above, you then have 15 calendar days from the onset of the absence to submit the appropriate Certification form to the United Family Leave Service Center. When submitting, it is highly recommended to transmit the form from a fax machine or service that is able to provide a transmittal receipt. This will benefit the argument should there be a question as to whether the form was sent within the allotted 15-day timeframe. Rather than having the Health Care Provider fax the Certification form, allow doing so yourself will also you to retain the original Certification form, as it may be needed if the Company has any subsequent questions about the application.

Remember, if the Company notifies you that “additional information is needed”, THIS IS NOT A DENIAL of your family leave. The Company is permitted to request clarification of the information provided by the HCP on the Certification form, or additional information with which the application can then be approved. Should additional information be requested, the Company must specify in writing what additional information is needed and then give you sufficient time to provide the information (normally 7 calendar days from when you receive the notification, unless there are circumstances outside your control). Once the additional information is provided, approval should be forthcoming. If there is an actual “denial”, the specific reason for the denial must be provided in writing.

Always make sure to keep a log of your contact(s) with the Family Leave Service Center, who and when you spoke with the Company regarding your application.

Family Medical Leave Forms

(Forms are from the Department of Labor – Wage & Hour Division website)

Completed forms are to be faxed to the United Flight Attendant Support Team (FAST) / Employee Service Center (1-847-700-3084). Contact the Support Desk (FLT-LINE, option 4, 5) to obtain your eligibility hours (accrued credited duty time). You must have 504 credited duty time hours (not to include sick leave or vacation time) prior to the start of the absence prompting the Family Leave application.
We suggest using the federal forms for your family leave application for two reasons:

1. These respective forms are more recognizable to health care providers as they are used by most employers to ensure appropriate compliance with the laws governing family leave administration.
2. These forms are provided by the Department of Labor. Therefore, use of these forms ensures that all necessary information, and only the necessary information, is provided by the employee to the employer.

Choose application form that applies to your particular situation:
[*Note: the Dept. of Labor website and Skynet website can be considered “trusted source” when asked if you want to open the files]

• FMLA Flight Attendant Job Description Helps explain our job to your Health Care Provider and thus better understand the aspects of our job which are affected by the respective health condition/issue being applied for.
• Certification of Health Care Provider for Employee’s Serious Health Condition – Self (Form WH-380-E)
• Certification of Health Care Provider for a Family Member’s Serious Health Condition - Other Than Self (Form WH-380-F)
• Certification of Qualifying Exigency for Military Family Leave (form WH-384)
  What is this form?

• Certification for Serious Injury or Illness of Covered Service member - for Military Caregiver Family Leave (Form WH-385)
  What is this form?
• United Airlines Absence Certificate/Return To Work

Acceptable Notifications from Employer

Once your FMLA application/certification has been submitted to UAL, you should then receive one of 3 possible notifications: acceptance of your request for FMLA, a request for you to “provide additional information”, or a denial of your FMLA request.

• “Accepted”: no further action by you is required. Remember to strictly adhere to the parameters of the Certification (block absence dates, or frequency/duration of approved intermittent use of Family Leave)
• “Request for additional information”: THIS IS NOT A DENIAL OF YOUR APPLICATION! The Company is allowed to request clarification of submitted information or additional information to be provided. You must be allowed a minimum of 7 days to provide the requested information unless there are circumstances outside your control which interfere with the ability to comply (*make specific note of the date you received the request in writing...keep the postmarked envelope as well.)
• “Denied”: the denial of your family leave request must be in writing and must give you the specific reason for the denial (for example, you did not have the qualifying eligibility flight time hours as of the date of the absence, the health condition does not qualify, etc. Should you receive a denial notification, please contact your Local Council office for further assistance.

Return to Work

The Company does have the right to request a RTW release from your Health Care Provider (HCP). The United Airlines Absence Certificate (available in the List of Forms on this website) is an appropriate document that your HCP may fill out at the time you are cleared to return. This should be faxed in to both the Employee Service Center/Flight Attendant Support Team (fax: 1-847-700-3084) as well as faxed to United Medical/OPCMD (fax: 1-847-700-2600).

Should you provide the RTW release from your HCP, United ‘may’ require you to see the ‘Company doctor’ (Concentra) as well. If so, comply. If there becomes a disagreement between your HCP and Concentra as to your ability to return to work, then immediately contact your Local Council for guidance in initiating the Medical Arbitration Process (Collective Bargaining Agreement -Section 20.D.)

Additional Resources

Dept. of Labor government access website for the Family Medical Leave Act of 1993

***Please note whenever reading the actual language of the Family Medical Leave Act regarding eligibility, since December 2009 flight crew no longer need worry about achieving “1250 Duty Time Hours” in order to qualify for FMLA. Our eligibility is based on achieving “504 Credited Flight Time Hours” (exclusive of vacation and sick leave use).

Airline Flight Crew Technical Corrections Act

DOL FMLA Fact Sheet #28

***Please note whenever reading the actual language of the Family Medical Leave Act regarding eligibility, since December 2009 flight crew no longer need worry about achieving “1250 Duty Time Hours” in order to qualify for FMLA. Our eligibility is based on achieving “504 Credited Flight Time Hours” (exclusive of vacation and sick leave use).

DOL FMLA Fact Sheet #28A - Military Family Leave Entitlements

***Please note whenever reading the actual language of the Family Medical Leave Act regarding eligibility, since December 2009 flight crew no longer need worry about achieving “1250 Duty Time Hours” in order to qualify for FMLA. Our eligibility is based on achieving “504 Credited Flight Time Hours” (exclusive of vacation and sick leave use).

Contact Us

Contact your Local Council office for assistance. Alternatively, you many contact the 'Family Leave Working Group', a subcommittee of the United MEC, at: familyleave@unitedafa.org.