FMLA Application Forms- Print and Fill out
Brotherhood of Locomotive Engineers
|Dennis R. Pierce||
GENERAL COMMITTEE OF ADJUSTMENT
801 CHERRY ST., SUITE 1010 Unit 8
GALESBURG, IL 61401
|ALL LOCAL CHAIRMAN||August 16, 2002|
|BNSF NORTHLINES AND MRL||File: FMLA/Personal Leave|
Dear Sirs and Brothers:
This is in reference to the many calls and letters that we have received requesting information on the Carrier's current policy regarding the use of personal leave during FMLA related lay offs. We have enclosed a copy of the Carrier's current policy that became effective on January 1, 2002. As you will note in the policy, the Carrier intends to substitute accrued personal leave day compensation, as available to each employee, for any portion of unpaid family/medical leave taken. We were provided an advance copy of this policy last fall, but were advised that the policy would be made accessible to all employees. We have since been advised that not all employees are aware of the policy so we are making it available. We have also included correspondence between BLE General Chairman Mullen, former ATSF, and International President Hahs concerning the policy and proper application of FMLA. You will note that the International Division has advised that the Carrier's policy is proper under the conditions of the FMLA.
We recently met with the Carrier to discuss current application of the policy. The Carrier has advised that when approved intermittent FMLA lay offs are taken, and the employee is assigned to job that qualifies for personal leave days, those personal leave days in banked or carry over status will be used first. If none, then the personal leave days remaining available in the calendar year will be accessed. If the employee is assigned to a job that does not qualify for personal leave days, none of the accrued personal leave days will be utilized. The Carrier has also advised however, that consideration will always be given to requests by the employee that accrued personal leave days or vacation time be allowed during an extended FMLA lay off. Please review the enclosed document, making this information available to your membership. If any questions arise out of its application, please contact the Office.
Dennis R. Pierce
cc: J. H. Nelson, GST
|BNSF JOHN J.
Vice President Labor Relations
|The Burlington Northern
and Santa Fe Railway Company
|PO Box 961030
Fort Worth TX. 76161-0030
2600 Lou Menk Drive
Garden Level NOC
Fort Worth TX 76161-0030
October 8, 2001
To: All BNSF General Chairmen (See attached distribution)
Re: Family and Medical Leave Act
I am writing to inform you of upcoming changes to the BNSF Family and Medical leave Act ("FMLA") policy. As you may recall, when enacted in 1993, the FMLA created completely new rights and responsibilities for both the company and employees. Now, in the wake of more experience under this statute, and after many have given this subject a lot of thought, BNSF has revised its FMLA policy to better honor the mutual character of the rights and responsibilities established in the FMLA. The new policy will be effective January 1, 2002; we have worked hard to ensure that it complies with our labor agreements, along with the FMLA, and lives up to BNSF's Vision and Values. A copy is attached.
Basically, the revised policy will:
place greater emphasis on the employee's responsibility to provide reasonable notice of FMLA leave,
clarify when paid sick leave and other types of non-vacation leave must be substituted for unpaid FMLA leave, and
explain the circumstances during which an employee electing intermittent medical leave must substitute paid leave including, in some cases, vacation leave for unpaid FMLA leave.
Regarding the first item, we hope all would agree that every employee should give as much notice of each FMLA leave as possible. This expectation is designed to minimize hardship to other employees and the company.
As for the other items, the substitution of paid leave for unpaid FMLA leave is expressly provided for in the FMLA for all FMLA leaves. See 29 U.S.C. § 2612(d)(2)(A) and (B). However, for now BNSF has only modified its policy with respect to the use of paid vacation in cases of intermittent medical leaves and only for employees who are entitled to paid sick leave. The company is not now requiring substitution of vacation with other FMLA leaves. Further, BNSF has structured the new policy so that sick leave and other available paid leave days would be exhausted before any vacation days. Finally, if a particular employee elects intermittent FMLA leave so frequently that vacation days are affected, the policy gives the employee some choice in determining which vacation days to substitute for the intermittent FMLA leave.
The FMLA is a fairly new statute and all of us have been on a learning curve with its administration. I hope you will recognize that the upcoming changes to BNSF's FMLA policy have been narrowly tailored so as to fairly balance employee rights and responsibilities with those of the company, in a manner which is fully consistent with our agreements and the law.
If you have any questions or other comments, please let me know.
Very truly yours,
BNSF FMLA Policy
Family and Medical Leave
Policy No.: 30.10
Effective Date: August 5, 1993
Revised Date: January 1, 2002
Human Resources Department: Employee Benefits and Services
Burlington Northern Santa Fe will grant each eligible salaried or scheduled employee an unpaid leave of absence for up to 12 workweeks as needed for family/medical leave. Family/Medical leaves will be limited to 12 weeks in a calendar year beginning January 1st and ending December 31st.
To be eligible, the employee must be actively at work as a full time employee, have worked for BNSF for at least twelve (12) months, have worked at least 1,250 hours during the 12 months immediately preceding the date the leave begins, and expect to return to the position vacated at the end of the leave. Where both a husband and wife are employed by BNSF, the couple may take an aggregate of 12 weeks per year for qualifying family leave. Any family leave taken by an employee counts toward the 12 weeks annual limit on family/medical leave for that individual employee.
Family leave is defined as leave taken to care for your newborn child, or to care for a child placed with you for adoption or foster care. Leave for this purpose must be completed within 12 months following the birth, adoption or placement of a foster child. Medical leave is defined as leave taken to care for yourself, your legal spouse (including common law spouse where recognized by state law), daughter, son or parent due to a serious health condition. A serious health condition means any illness, injury, impairment or physical or mental condition that requires inpatient care or continuing treatment by a health care provider.
The employee is required to apply for leave by completing the Notice of Intent to Take Unpaid Family/Medical Leave form. When leave is foreseeable, at least 30 days' advance notice should be given and the employee must try to schedule the leave to avoid unduly disrupting BNSF's operations. In those situations where the leave is not foreseeable, the employee must provide notice as soon as practicable. The supervisor of the employee requesting the leave and the Benefits Department must be given a copy of the notification of the need for leave. The employer's response will be prepared by the Benefits Department and mailed directly to the employee. Approved medical leave for scheduled employees and short-term disability for salaried employees will automatically count as FMLA leave, even if the employee does not complete an application. When employees apply for, request or are otherwise absent from work for more than three (3) consecutive days under any other policy, program or agreement, the Company may conditionally designate such absences as FMLA leave, subject to verification by the medical department.
The employee must provide written medical certification for a serious health condition within 15 calendar days of the request. ha circumstances where it is not practical to do so, certification must be provided as soon as possible. The Certification of Physician form needs to be returned under personal and confidential cover to the Benefits Department in Fort Worth.
As discussed more fully below, this policy requires the employee to substitute other types of paid leave for any portion of unpaid family/medical leave. This includes paid disability leave that may be available to salaried employees. All paid time off will count toward the 12-workweek limit.
Under the circumstances outlined below, BNSF employees must substitute paid leave for unpaid family/medical leave. An employee eligible for sick leave benefits must substitute available paid sick leave for the employee's own unpaid medical leaves. If all paid sick leave is exhausted or otherwise unavailable, an employee must substitute paid personal leave, annual leave, and/or other non-vacation paid leave for any unduly leave. The foregoing requirement for the substitution of paid personal leave, annual leave, and/or other non-vacation paid leave for any unpaid medical leave applies to all employees.
For employees who are eligible for paid sick leave, but who have exhausted all other available paid leave, including sick leave, paid vacation must be substituted for intermittent medical leaves. A medical leave is considered intermittent if (i) the employee's medical care provider designates the medical leave as intermittent; or (ii) the employee takes medical leave on multiple occasions for the same medical condition. So, for example, a one-time medical leave to recover from surgery will normally not be considered an intermittent medical leave. But multiple short-term absences for a particular serious health condition would normally be considered intermittent medical leave. An employee may take intermittent or reduced schedule leave for medical leaves only.
When substituting vacation for intermittent medical leave, unscheduled vacation days will be the first ones substituted. After all unscheduled vacation days are exhausted, previously scheduled vacation leave will be substituted for intermittent medical leave. The employee electing intermittent medical leave must promptly notify BNSF which scheduled days he or she wants substituted. Absent timely notification, BNSF will substitute vacation days scheduled closest to the end of the year, which will be substituted in reverse order.
At this time, an employee does not have to substitute paid vacation for family leave or for medical leave that is not intermittent. Also, at this time, employees who are not eligible for paid sick leave benefits will not be required to substitute paid vacation for intermittent medical leaves.
BNSF will continue its contribution toward the employee's health and welfare benefits during the leave. Employee contributions toward coverage (if any) are waived during the FMLA period for union-represented employees. Salaried employees are required to pay their employee contributions directly to Sageo during any unpaid leave, in order to continue their health and welfare benefits. Am employee will be entitled to return to the same position if it is available or an equivalent position to that held prior to the leave. If the employee fails to return from the leave or the employee returns from the leave but fails to work for at least 30 calendar days, BNSF may recover its contribution toward the employee's health and welfare benefits paid for coverage during the leave. Also, an employee's failure to return to work upon expiration of FMLA leave may subject the employee to discipline under applicable policies or agreements.
To the extent that there are inconsistencies between the terms of this Policy and those of other BNSF policies, this Policy shall control.
The Family Medical Leave Act does not affect any Federal or State law prohibiting discrimination, or supersede any State or local law or collective bargaining agreement that provides greater family or medical leave rights. As a result, qualified employees are granted the protection of any applicable State or local law that provides greater leave rights than present in this Policy. To the extent a dispute arises as to whether a particular collective bargaining agreement provides greater leave rights than are provided under this policy, such disputes shall be handled according to the provisions of the particular collective bargaining agreement.
Any questions regarding this Policy should be referred to Assistant Vice President Human Resources.
|Brotherhood of Locomotive Engineers|
|GENERAL COMMITTEE OF ADJUSTMENT
BNSF Ry. Co.
Santa Fe Committee
611 N. Broadway
Joshua, Texas 76058
(817) 426-9003 - Fax (817) 426-9006
October 11, 2001
Mr. Don Hahs, President
Brotherhood of Locomotive Engineers
Mezzanine - Standard Building
Cleveland, Ohio 44113-1701
Dear Brother Hahs:
Attached for your reference is a copy of the BNSF "newly revised" FMLA policy. This office feels the new policy may be in conflict with FML Act when they require an individual to use his personal leave days or vacation days first.
Would you pass this on to our General Counsel for his review and input.
/s/ John Mullen
cc: All Local Chairmen Santa Fe GCA
Mr. Dennis Pierce, General Chairman BLE
Mr. Rick Gibbons, General Chairman BLE
Mr. Austin Morrison, General Chairman BLE
|DON M. HAHS
|1370 ONTARIO STREET
CLEVELAND, OHIO 44113-l 702
TELEPHONE: (216) 241-2630
FAX (216) 241-6516
December 5, 2001
Mr. John D. Mullen, General Chairman
BNSF Ry. Co. - Santa Fe Committee
509 SW Wilshire, Suite D
Burleson, Texas 76028
Dear Brother Mullen:
This refers to your request for a review of the revisions to BNSF's Family and Medical Leave Policy. You indicate that the new policy may be in conflict with the law, because it now requires that employees use personal leave days or vacation days in connection with leave granted under the policy.
As requested, counsel has reviewed the revised policy scheduled to take effect on January 1, 2002, and has informed me that the revisions you refer to are permissible under the Family Medical Leave Act of 1993 (FMLA), 29 U.S.C. § 2601, et seq., and are consistent with the regulations issued by the U.S. Department of Labor implementing the law. 29 CFR 825.
The FMLA expressly provides for the substitution of paid leave for FMLA leave. (Please refer to the text of Title 1, Section 102, paragraphs (d)(2)(A) and (B) of the enclosed copy of the statute).
Under the FMLA, employers may "require" employees to substitute any period of accrued paid vacation or other leave for leave provided under the Act. 29 U.S.C. § 2612(d)(2). As the word "require" indicates, to designate employer-provided leave as FMLA leave an employer must "promptly (within two business days absent extenuating circumstances) notify the employee that the paid leave is designated and will be counted as FMLA leave." 29 C.F.R. § 825.208(b).
Therefore, although an employer has the option of requiring an employee to designate vacation or other leave as FMLA leave, that option is waived if the employer fails to give, proper notice of its intentions. In other words, "if an employee takes paid or unpaid leave and the employer does not designate the leave as FMLA leave, the leave taken does not count against an employee's FMLA entitlement." 29 C.F.R. § 825.700(a).
To summarize, subject to certain conditions, employees may elect or employers may require the employee to substitute certain accrued paid leave to cover some or all of the FMLA leave. Paid vacation or personal leave may be substituted for any kind of FMLA leave. The employer is responsible for designating in its records if an employee's use of paid leave counts as FMLA leave, based on information from the employee. In no case may an employer claim after the leave has ended that use of paid leave counted as FMLA leave.
In view of the above, the new policy provision requiring all employees under specified circumstances to substitute paid personal leave, annual leave, and/or other non-vacation paid leave for unpaid FMLA leave fully complies with the statute and regulations. Similarly, the new policy provision that limits the substitution of paid vacation leave for unpaid FMLA leave to cases involving intermittent medical leave granted to employees entitled to paid sick leave also complies with the statute and regulations. At this time, this particular provision does not apply to employees not covered under a paid sick leave plan, however, it is important to understand that the statute permits employers to enact policies requiring all employees to substitute paid vacation to offset FMLA leave.
For your information, I have also enclosed a copy of the FMLA Compliance Guide prepared by the Employment Standards Administration, Wage and Hour Division of the U.S. Department of Labor.
I hope you find this information helpful and trust you will keep me apprised of any subsequent revisions to the policy that may violate the law.
/s/ D.M. Hahs
cc: E. W. Rodzwicz, First VP
W. C. Walpert, GST
A. G. Morrison, GC - BNSF (C&S/CRI&P/FWD) (enc.)
R. C. Gibbons, GC - BNSF (StL-SF) (enc.)
D. R. Pierce, GC - BNSF (CB&Q/GN/NP/SP&S) (enc)
Employment Standards Administration
Wage and Hour Division
FMLA Compliance Guide
The Family and Medical Leave Act ("FMLA") provides certain employees with up to 12 workweeks of unpaid, job-protected leave a year, and requires group health benefits to be maintained during the leave as if employees continued to work instead of taking leave. This Compliance Guide summarizes the FMLA provisions and regulations, and provides answers to the most frequently asked questions. More detail on the FMLA may be found in the regulations (29 CFR Part 825).
The FMLA became effective August 5, 1993, for most employers and employees. (For those covered by a collective bargaining agreement (CBA) in effect on that date, the FMLA became effective on the expiration of the CBA or February 5, 1994, whichever was earlier.)
This law covers only certain employers; affects only those employees eligible for the protections of the law; involves entitlement to leave, maintenance of health benefits during leave, and job restoration after leave; sets requirements for notice and certification of the need for FMLA leave; and protects employees who request or take FMLA leave. The law also includes certain employee record keeping requirements.
Purposes of the FMLA
The FMLA allows employees to balance their work and family life by taking reasonable unpaid leave for certain family and medical reasons. The FMLA seeks to accomplish these purposes in a manner that accommodates the legitimate interests of employers, and minimizes the potential for employment discrimination on the basis of gender, while promoting equal employment opportunity for men and women.
FMLA applies to all:
For FMLA purposes, most Federal and Congressional employees are under the jurisdiction of the U.S. Office of Personnel Management (OPM) or the Congress,
To be eligible for FMLA leave, an employee must work for a covered employer and:
A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave in a 12 month period for one or more of the following reasons:
Leave to care for a newborn child or for a newly placed child must conclude within 12 months after the birth or placement. (See CFR Section 825.201)
Spouses employed by the same employer may be limited to a combined total of 12 workweeks of family leave for the following reasons:
Intermittent/Reduced Schedule Leave - The FMLA permits employees to take leave on an intermittent basis or to work a reduced schedule under certain circumstances. CFR Section 203)
Only the amount of leave actually taken while on intermittent/reduced schedule leave may be charged as FMLA leave. Employees may not be required to take more FMLA leave than necessary to address the circumstances that cause the need for leave. Employers may account for FMLA leave in the shortest period of time that their payroll systems use, provided it is one hour or less. (See CFR Section 825-205)
Employees needing intermittent/reduced schedule leave for foreseeable medical treatment must work with their employers to schedule the leave so as not to unduly disrupt the employer's operations, subject to the approval of the employee's health care provider. In such cases, the employer may transfer the employee temporarily to an-alternative job with equivalent pay and benefits that accommodates recurring periods of leave better than the employee's regular job.
Substitution o Paid Leave - Employees may choose to use, or employers may require the employee to use, accrued paid leave to cover some or all of the FNMA leave taken. Employees may choose, or employers may require, the substitution of accrued paid vacation or personal leave for any of the situations covered by FMLA. The substitution of accrued sick or family leave is limited by the employees policies governing the use of such leave.
Serious Health Condition - "Serious health condition" means an illness, injury, impairment, or physical or mental condition that involves:
any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a
Medical Certification - An employer may require that the need for leave for a serious health condition of the employee or the employee's immediate family member be supported by a certification issued by a health care provider. The employer must allow the employee at least 15 calendar days to obtain the medical certification.
An employer may, at its own expense, require the employee to obtain a second medical certification from a health care provider. The employer may choose the health care provider for the second opinion, except that in most cases the employer may not regularly contract with or otherwise regularly use the services of the health care provider. If the opinions of the employee's and the employees designated health care providers differ, the employer may require the employee to obtain certification from a third health care provider, again at the employer's expense. This third opinion shall be final and binding. The third health care provider must be approved jointly by the employer and the employee. The "Certification of Health Care Provider" (optional form WH-380) may be used to obtain the certifications.
Health Care Provider - Health care providers who may provide certification of a serious health condition include:
Maintenance of Health Benefits
A covered employer is required to maintain group health insurance coverage, including family coverage, for an employee on FMLA leave on the same terms as if the employee continued to work.
Where appropriate, arrangements will need to be made for employees taking unpaid FMLA leave to pay their share of health insurance premiums. For example, if the group health plan involves co-payments by the employer and the employee, an employee on unpaid FMLA leave must make arrangements to pay his or her normal portion of the insurance premiums to maintain insurance coverage, as must the employer. Such payments may be made under any arrangement voluntarily agreed to by the employer and employee.
An employees obligation to maintain health benefits under FMLA stops if and when an employee informs the employer of an intent not to return to work at the end of the leave period, or if the employee fails to return to work when the FMLA leave entitlement is exhausted. The employer's obligation also stops if the employee's premium payment is more than 30 days late and the employer has given the employee written notice at least 15 days in advance advising that coverage will cease if payment is not received.
In some circumstances, the employer may recover premiums it paid to maintain health insurance coverage for an employee who fails to return to work from FMLA leave.
Other Benefits - Other benefits, including cash payments chosen by the employee instead of group health insurance coverage, need not be maintained during periods of unpaid FMLA leave.
Certain types of earned benefits, such as seniority or paid leave, need not continue to accrue during periods of unpaid FMLA leave provided that such benefits do not accrue for employees on other types of unpaid leave. For other benefits, such as elected life insurance coverage, the employer and the employee may make arrangements to continue benefits during periods of unpaid FMLA leave. An employer may elect to continue such benefits to ensure that the employee will be eligible to be restored to the same benefits, upon returning to work. At the conclusion of the leave, the employer may recover only the employee's share of premiums it paid to maintain other "non-health" benefits during unpaid FMLA leave.
Upon return from FMLA leave, an employee must be restored to his or her original job, or to an "equivalent" job, which means virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions.
In addition, an employee's use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using (but not necessarily during) FMLA leave.
"Key" Employee Exception - Under limited circumstances where restoration to employment will cause "substantial and grievous economic injury" to its operations, an employer may refuse to reinstate certain highly-paid, salaried "key" employees. In order to do so, the employer must notify the employee in writing of his/her status as a "key" employee (as defined by FMLA), the reasons for denying job restoration, and provide the employee a reasonable opportunity to return to work after so notifying the employee.
Employee Notice - Eligible employees seeking to use FMLA leave may be required to provide:
Employer Notices - Covered employers must take the following steps to provide information to employees about FMLA:
FMLA makes it unlawful for any employer to interfere with, restrain, or deny the exercise of any right provided by this law. It is also unlawful for an employer to discharge or discriminate against any individual for opposing any practice, or because of involvement in any proceeding, related to FMLA.
Employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions; nor can FMLA leave be counted under "no fault" attendance policies.
FMLA is enforced by the Wage and Hour Division of the U.S. Department of Labor's Employment Standards Administration. This agency investigates complaints of violations. If violations cannot be satisfactorily resolved, the Department may bring action in court to compel compliance.
An eligible employee may bring a private civil action against an employer for violations. An employee is not required to file a complaint with the Wage and Hour Division prior to bringing such action.
Some special rules apply to employees of local education agencies. Generally, these rules provide for FMLA leave to be taken in blocks of time when the leave is needed intermittently or when leave is required near the end of a school term (semester).
Several States and other jurisdictions also have family or medical leave laws, If both the Federal law and a State law apply to an employees operations, an employee is entitled to the most generous benefit provided under either law.
Employers may also provide family and medical leave that is more generous than the FMLA leave requirements.
The FMLA does not modify or affect any Federal or State law which prohibits discrimination.