Important resources and PELRA
Employee rights and responsibilities under the Family and Medical Leave Act (FMLA)
Basic leave entitlement
FMLA requires covered employers to provide up to 12 weeks of unpaid job-protected leave to eligible employees for the following reasons:
• For incapacity due to pregnancy, prenatal medical care or child birth;
• To care for the employee’s child after birth, or placement for adoption or foster care;
• To care for the employee’s spouse, son or daughter, or parent, who has a serious health condition;
• For a serious health condition that makes the employee unable to perform the employee’s job.
Military family leave entitlements
Eligible employees with a spouse, son, daughter, or parent on covered active duty or call to covered active duty status may use their 12-week leave entitlement to address certain qualifying exigencies. Qualifying exigencies may 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.
FMLA also includes a special leave entitlement that permits eligible employees to take up 26 weeks of leave to care for a covered service member during a single 12-month period. A covered service member is a current member of the Armed Forces, including a member of the National Guard or Reserves, who has a serious injury or illness incurred in the line of duty on active duty that may render the service member medically unfit to perform his or her duties for which the service member is undergoing medical treatment, recuperation, or therapy; or is in outpatient status; or is on the temporary disability retired list. A covered service member also includes a veteran 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 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy.
Benefits and protections
During FMLA leave, the employer must maintain the employee’s health coverage under any “group health plan” on the same terms as if the employee had continued to work. Upon return from FMLA leave, most employees must be restored to their original or equivalent positions with equivalent pay, benefits, and other employment terms. Use of FMLA leave cannot result in the loss of any employment benefit that accrued prior to the start of an employee’s leave.
Employees are eligible if they have worked for a covered employer for at least one year, for 1,250 hours over the previous 12 months, and if at least 50 employees are employed by the employer within 75 miles. Statewide policy on sick leave http://www.mmb.state.mn.us/doc/persl/1337.pdf.
To provide guidelines to agencies on managing sick leave use by employees.
- To improve productivity through better attendance.
- To minimize costs associated with employee absences due to sick leave.
- To maintain overall agency morale by ensuring each employee meets his/her own work requirements.
- To ensure that sick leave use is consistent with the provisions of the collective bargaining agreements or plans.
- To standardize sick leave procedures.
- To communicate to supervisors expectations regarding sick leave.
- Analyze Attendance Records: Supervisors should regularly review employee attendance records for evidence of abuse or excessive use.
- Ensure Appropriate Use: Supervisors should ensure that the reason for the use of sick leave is allowable under the terms of the collective bargaining agreement or plan.
- Ensure Confidentiality: Supervisors should maintain the confidentiality of the reasons for employees’ use of sick leave.
- Recognize Good Attendance: Supervisors should recognize good attendance through appropriate methods.
- Manage Sick Leave: Supervisors should regularly monitor and manage all of the sick leave used by employees in accordance with the following guidelines.
Monitoring Use of Sick Leave
Supervisors should monitor the amount of sick leave used by employees and should review sick leave usage for individual employees when use exceeds six (6) separate instances in a fixed twelve (12) month period.
Instances shall include:
All actual sick leave used as well as other types of leave used in lieu of sick leave (e.g. same-day vacation leave requested in lieu of sick leave, leave without pay taken for sick leave reasons).
Instances shall not include:
Any FMLA qualifying time or time taken for prescheduled doctor’s appointments, bereavement leave, workers compensation, or sick leave used in conjunction with the birth or adoption of a child or for the period of time that a doctor certifies a female employee unable to work because of pregnancy.
Recognizing sick leave use problems
If an employee exceeds the standard set out above, the supervisor needs to consider the following to factors identify sick leave use problems:
- The frequency of and the reasons for sick leave use. (Absences necessitated by chronic long-term illnesses/disabilities may require different considerations than casual, intermittent absences.)
- The employee’s unused sick leave balance.
- The impact of the employee’s absences on the workplace (e.g., disruptions in work schedules, overtime costs, incomplete projects).
Responding to sick leave problems
If the supervisor determines a problem exists then the supervisor shall:
- Counsel the employee on his/her use of sick leave.
- Refer the employee to the Employee Assistance Program, if appropriate.
- Check with the Personnel Office about possible alternative arrangements for the employee (e.g., part-time work schedules, disability leaves of absence), if appropriate.
Document all of these actions.
If the above methods are unsuccessful, a supervisor should consider the effect that the sick leave use has on the employee’s performance and the operations of the employer. Discipline may be taken on the basis of the absences affecting the employee’s performance, or the operations of the employer, and may be taken even when the reasons for sick leave use have been legitimate. If the employer is in the course of progressive discipline with an employee, the six instance standard in a twelve month period is not renewed.
Performance reviews - sick leave
Supervisors should also reflect how the employee’s attendance has affected his/her ability to complete the tasks on the employee’s performance review.
Sick leave abuse
Abuse of sick leave is defined as the use of sick leave for purposes other than those in the collective bargaining agreements or plans.
Supervisors should periodically analyze attendance records for evidence of possible abuse (e.g., patterns of absences on Fridays/Mondays, seasonal absences, absences when a vacation request has been denied).
Sick leave should be denied when there is evidence or reason to believe abuse has occurred until or unless the employee provides satisfactory evidence of legitimate use of sick leave. Where a supervisor has reason to suspect that an employee is abusing sick leave, the supervisor may require the employee to provide doctor’s statements for a fixed duration to verify legitimate use of sick leave. Discipline employees for the abuse of sick leave.
Use of vacation leave in lieu of sick leave
Employees must use their sick leave accruals for absence requests allowing for use of sick leave accruals pursuant to labor contract provisions. Vacation leave will not be granted in lieu of sick leave except in the following instances (Please note, employees are NOT required to use vacation leave if they do not want to):
- Employees who have exhausted their sick leave accruals may request to use vacation leave in lieu of sick leave in accordance with labor contract provisions. Such vacation requests shall be for the total hours of the employee’s work schedule and for consecutive scheduled days of work for the total hours of vacation requested by the employee up to the extent of the employee’s vacation accruals. Vacation leave will not be granted on a stop and start basis with leave without pay time in between vacation time.
- Employees may be allowed to substitute vacation leave for sick leave when they are subject to losing vacation accruals while absent due to vacation cap restrictions. Such use shall be only to the extent necessary to prevent loss of the employee’s vacation benefits.
All labor contract provisions, policies, and work rules governing sick leave requests will continue to apply to requests for vacation in lieu of sick leave.
Definition of serious health condition
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 employee from performing the functions of the employee’s job, or prevents the qualified family member from participating in school or other daily activities. Subject to certain conditions, the continuing treatment requirement may be met by a period of incapacity of more than three consecutive calendar days combined with at least two visits to a health care provider or one visit and a regimen of continuing treatment, or incapacity due to pregnancy, or incapacity due to a chronic condition. Other conditions may meet the definition of continuing treatment.
Use of leave
An employee does not need to use this leave entitlement in one block. Leave can be taken intermittently or on a reduced leave schedule when medically necessary. Employees must make reasonable efforts to schedule leave for planned medical treatment so as not to unduly disrupt the employer’s operations. Leave due to qualifying exigencies may also be taken on an intermittent basis.
Substitution of paid leave for unpaid leave
Employees may choose or employers may require use of accrued paid leave while taking FMLA leave. In order to use paid leave for FMLA leave, employees must comply with the employer’s normal paid leave policies.
Employees must provide 30 days advance notice of the need to take FMLA leave when the need is foreseeable. When 30 days’ notice is not possible, the employee must provide notice as soon as practicable and generally must comply with an employer’s normal call- in procedures.
Employees must provide sufficient information for the employer to determine if the leave may qualify for FMLA protection and the anticipated timing and duration of the leave. Sufficient information may include that the employee is unable to perform job functions, the family member is unable to perform daily activities, the need for hospitalization or continuing treatment by a health care provider, or circumstances supporting the need for military family leave. Employees also must inform the employer if the requested leave is for a reason for which FMLA leave was previously taken or certified. Employees also may be required to provide a certification and periodic recertification supporting the need for leave.
Covered employers must inform employees requesting leave whether they are eligible under FMLA. If they are, the notice must specify any additional information required as well as the employees’ rights and responsibilities. If they are not eligible, the employer must provide a reason for the ineligibility. Covered employers must inform employees if leave will be designated as FMLA-protected and the amount of leave counted against the employee’s leave entitlement. If the employer determines that the leave is not FMLA- protected, the employer must notify the employee.
Unlawful acts by employers
FMLA makes it unlawful for any employer to: 1) Interfere with, restrain, or deny the exercise of any right provided under FMLA;
2) Discharge or discriminate against any person for opposing any practice made unlawful by FMLA or for involvement in any proceeding under or relating to FMLA.
An employee may file a complaint with the U.S. Department of Labor or may bring a private lawsuit against an employer. FMLA does not affect any Federal or State law prohibiting discrimination, or supersede any State or local law or collective bargaining agreement which provides greater family or medical leave rights.
For additional information: 1-866-4US-WAGE (1-866-487-9243) TTY: 1-877-889-5627 www.wagehour.dol.gov.
For the State of Minnesota FMLA Policy and FAQ, refer to the MMB website www.mmb.state.mn.us/doc/persl/1409.pdf.
Coordination with collective bargaining agreements/plans
A. FMLA qualifying leaves of absence will be identified as those authorized under collective bargaining agreements or plans, i.e., medical leave or personal leave, dependent on which leave is appropriate.
B. The FMLA provides for an unpaid leave under certain circumstances. The employer shall require an employee to use sick leave for situations required by the collective bargaining agreements (e.g., for the employee’s own serious health condition). The employer shall only require an employee to use vacation in specific instances allowed by the collective bargaining agreements. However, the employee may request and the employer shall grant vacation or compensatory time. All paid time counts toward the twelve (12) weeks of FMLA qualifying leave.
C. Complying with notice/call-in policies of the Appointing Authority. An Appointing Authority may require an employee to comply with its usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. Failure to comply may result in the delay or the denial of the leave.
Job benefits and protection
A. During an FMLA qualifying leave, the employee and dependent health and dental insurance is maintained on the same basis as coverage would have been provided if the employee had been continuously employed during the entire leave period.
B. An eligible employee returning from a FMLA qualifying leave is entitled to be returned to the same position and shift that the employee held when the FMLA qualifying leave began, or to an equivalent position and shift with equivalent benefits, pay, and other terms and conditions of employment.
C. Provided the employee returns to work immediately following his/her FMLA qualifying leave (i.e., does not follow the FMLA qualifying leave with additional unpaid leave), benefits must be resumed upon the employee's return to work at the same level as were provided when leave began. Any new or additional coverage or changes in health benefits must be made available to an employee while on FMLA qualifying leave.
Public Employment Labor Relations Act (PELRA)
Minnesota Statutes 179A.01 – 1709A.25
179A.01 PUBLIC POLICY - It is the public policy of this state and the purpose of sections 179A.01 to 179A.25 to promote orderly and constructive relationships between all public employers and their employees.
179A.04 COMMISSIONER'S POWER, AUTHORITY, AND DUTIES
179A.06 RIGHTS AND OBLIGATIONS OF EMPLOYEES
179A.07 RIGHTS AND OBLIGATIONS OF EMPLOYERS
179A.08 POLICY CONSULTANTS
179A.09 UNIT DETERMINATION
179A.10 STATE UNITS
179A.11 UNIVERSITY OF MINNESOTA
179A.12 EXCLUSIVE REPRESENTATION; ELECTIONS; DECERTIFICATION
179A.13 UNFAIR LABOR PRACTICES
179A.14 NEGOTIATION PROCEDURES
179A.16 INTEREST ARBITRATION
179A.17 NEW EXCLUSIVE REPRESENTATIVES
179A.18 STRIKES AUTHORIZED
179A.19 ILLEGAL STRIKES
179A.21 GRIEVANCE ARBITRATION
179A.22 STATE AND ITS EMPLOYEES; NEGOTIATIONS
179A.23 LIMITATION ON CONTRACTING-OUT OF SERVICES PROVIDED BY MEMBERS OF A STATE OF MINNESOTA OR UNIVERSITY OF MINNESOTA BARGAINING UNIT
179A.24 APPLICATION OF SECTIONS 185.07 TO 185.19
179A.25 INDEPENDENT REVIEW