Last week on The EmpLAWyerologist, we got a glimpse of when a Collective Bargaining Agreement may “trump” the FMLA’s provisions as to amount of leave time, eligibility, certification and similar issues. Click here if you missed it or would like to review. Those issues primarily centered around the rights of the employee taking leave. But sometimes conflicts between the FMLA and the CBA either impact other employees or other legal obligations an employer may have. What happens then? This week we’ll get a glimpse — after the jump, of course!
When might the FMLA and Collective Bargaining Agreements collide? Here are some examples:
Job Retention: The FMLA is clear that if an employee takes job-protected leave, s/he must be reinstated to the same or an equivalent position upon return. What happens if your workplace is subject to a Collective Bargaining Agreement that permits only “voluntary” transfers, contains “bumping” rights, or has seniority provisions? On the one hand, FMLA regulations state that “the conditions of a temporary transfer may not violate any applicable collective bargaining agreement containing higher standards”. Unfortunately however, the precise meaning of this language is not clear, and there appears to be no case law to provide any guidance. It does seem, however, that if most or some of your workforce is covered under a CBA, an argument can be made that the returning employee may not be entitled to a transfer or reassignment that s/he might otherwise be entitled to under the FMLA. (Note that this scenario would only play out if you are unable to restore an employee to the position s/he held prior to taking FMLA leave. Employers are supposed to hold the job open.)
If that’s not enough, what happens if transfer, reassignment, promotion or rescheduling is a reasonable accommodation mandated by the ADA? At least under the ADA, if there is a bona fide seniority system, an employer may well have an argument that such an accommodation is an undue hardship.
Use of Accrued Time: The FMLA allows employers to implement policies requiring employers to use accrued paid time such as sick, vacation or personal time before taking unpaid FMLA time (the two would then run concurrently). Under federal labor laws, however, a unionized employer cannot unilaterally adopt such a policy unless it obtains a waiver from the union or show special circumstances. A unionized employer that does not already have a leave policy in place would be obligated to bargain with the union and either reach an impasse or an agreement, before it can adopt a policy that is otherwise permissible under the FMLA, or the ADA. Nothing in the FMLA or the ADA in any way lessens an employer’s obligations under a CBA. Similarly, a CBA, with the one exception discussed last week regarding certifications, cannot diminish an employee’s rights under the FMLA or the ADA. In other words both the FMLA and the ADA set the minimum obligations for an employer. A CBA (and, for that matter applicable state laws) can expand an employer’s obligations beyond those minimums.
Direct Dialogue: Under the ADA, the accommodation process mandates the employer and employee “engaging in the interactive process” to ensure reasonable accommodations that enable a disabled employee to perform his or her essential job functions. Similarly, under the FMLA, any issues relating to job reinstatement (or transfer, reassignment, etc.) require the employer and employee to engage in direct dialogue. In a unionized workplace, however, an employer cannot speak directly with the employee without a union representative present, unless such a representative declines the opportunity to participate. An employer who speaks directly with a union-represented employee without a union representative risks an unfair labor practice charge under the National Labor Relations Act. The solution: solicit the union representative’s participation in all discussions regarding reasonable accommodations or job reinstatement.
Benefits: The FMLA requires employers to maintain the same employee health benefits held prior to taking FMLA leave. When a CBA provides lesser benefits than those required by the FMLA, employers must still provide benefits equal to those mandated by the FMLA. How? An employer who makes unilateral changes that conflict with a CBA but that are mandated by the FMLA generally do not violate the NLRA, employers who decide to be even more generous, unilaterally implementing changes to benefits not mandated by the FMLA risk an unfair labor practice charge. (This may lead some of you to say “No good deed goes unpunished”.) Employers have a choice here: a) invite negotiations with the union regarding non-FMLA-mandated benefits, inviting the risk that the union will condition such negotiations on re-opening negotiation of other CBA provisions; or b) only changing health benefits provisions that clash with the FMLA.
Confidential Medical Records: The FMLA and ADA require employers to keep medical records strictly confidential and separate from the employees’ personnel files. On the other hand, there are times when a union might have a legitimate interest in an employee’s medical records, such as when an employee has a contagious disease or a mental health condition that potentially renders him or her dangerous to others. The FMLA and ADA would restrict access to those who “need to know”; The National Labor Relations Board would likely balance the union’s need for medical information against the individual’s need for confidentiality.
As you can see, complying with one law does not automatically mean you’re completely in the clear. That’s the beauty of employment and labor laws! There’s a whole bunch of them out there that to us employment lawyers create a fascinating and intriguing mesh work — and sometimes big headaches for the rest of you. That’s why The EmpLAWyerologist usually ends with advising you to consult your friendly employment counsel — which it looks like I just did again!
See you next week when we move on to a new topic, which shall remain a mystery until then! Bye!
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent employment counsel on any issues discussed here.
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