Changing FMLA and LOA Policies

LindaS

We are looking into changing our FMLA policies to require employees to use any vacation time before using unpaid leave when gone on FMLA absences and I am wondering if there are any notice requirements that need to be met. I realize that we will need to provide the employees with notices regarding this but am wondering whether there is a certain amount of time that we need to adhere to before implementing this.

Second issue, our short-term disability plan allows for an EE to receive up to 26 weeks of payment and the union has argued that we are required to maintain a position for the EE for that entire time. I would like to change the current policy to allow an EE to retain their seniority for that 26 weeks but after 12 the employee's job will be posted and if it is filled before they are able to return to work the EE will be placed in whatever position is available in the plant, as long as they are qualified. Again my question is whether there is a timeframe between when we notify the EEs of this change and when we can implement it. Also, would we be able to "grandfather" EEs currently on Medical leave?

Are either of these issues something that needs to be negotiated with the union prior to implementing? I have spoken with a former union BA and informed that this is NOT negotiable but wanted other opinions.

Thanks.

Michael Modl WI

>We are looking into changing our FMLA policies
>to require employees to use any vacation time
>before using unpaid leave when gone on FMLA
>absences and I am wondering if there are any
>notice requirements that need to be met. I
>realize that we will need to provide the
>employees with notices regarding this but am
>wondering whether there is a certain amount of
>time that we need to adhere to before
>implementing this.
>
>Second issue, our short-term disability plan
>allows for an EE to receive up to 26 weeks of
>payment and the union has argued that we are
>required to maintain a position for the EE for
>that entire time. I would like to change the
>current policy to allow an EE to retain their
>seniority for that 26 weeks but after 12 the
>employee's job will be posted and if it is
>filled before they are able to return to work
>the EE will be placed in whatever position is
>available in the plant, as long as they are
>qualified. Again my question is whether there
>is a timeframe between when we notify the EEs of
>this change and when we can implement it. Also,
>would we be able to "grandfather" EEs currently
>on Medical leave?
>
>Are either of these issues something that needs
>to be negotiated with the union prior to
>implementing? I have spoken with a former union
>BA and informed that this is NOT negotiable but
>wanted other opinions.
>
>Thanks.

Under Wisconsin's FMLA, you cannot compel an ee to use paid leave prior to taking unpaid leave, unlike the federal FMLA. I will get back to you on your second question about whether the proposed change to your LOA policy is a mandatory subject of bargaining.

Mike Modl

Michael Modl
Editor, Wisconsin Employment Law Letter
Axley Brynelson, LLP

LindaS

Thank you for your quick response and I probably should have stated in the initial post that the issue of requiring an EE to use vacation would be once the WIFMLA expires, as we require them to run concurrently.

Don D

Based on your clarification I believe you can then require that leave time be charged against the absences. I'm not clear on whether your contract requires that you hold open a position for the ee out on STD or return him to his former job or if this is simply what you're being told is the opinion of someone in the union.

If it is in the contract and you're changing it, certainly you would have to bargain. If it's an internal policy, referred to but not detailed in the contract, I would hope your management rights clause is strong enough to allow you to change the policy at will, with sufficient notice.

Regarding how much notice, if any, you should give on the FMLA change, you are required to post your policy in a conspicuous place for employees to see it and would have to revise it and post that as well. And you would have to revise whatever form you have for notification of approval, etc. There is no magic time frame, but I think it is reasonable to go with the beginning of a fiscal or calendar year, or at minimum mid year. Certainly not, 'effective next week'. The union may insist you have to bargain that issue as well.

This is just one ole Mississippi boy's opinion though.

Michael Modl WI

>Thank you for your quick response and I probably
>should have stated in the initial post that the
>issue of requiring an EE to use vacation would
>be once the WIFMLA expires, as we require them
>to run concurrently.

Linda:

In response to the second part of your question, insurance programs, as a general rule, are mandatory subjects of bargaining and you cannot unilaterally change the program absent clear waiver language in the CBA giving the ER the authority to do so.

Returning to the first question, you should provide written notice of your intent to change the policy. This may be in the form of the revised policy, a posting, a memo to your EEs or preferably, all of the above. Do not apply the policy to those currently on leave and advise as to when the policy will become effective, leaving a reasonable time for employees to receive and review the policy (e.g. 30 days.)

Mike

Michael Modl
Editor, Wisconsin Employment Law Letter
Axley Brynelson, LLP

LindaS

Michael - Thank you again for your response but I think I used the wrong terminolog in using "policy". I am not looking at changing the insurance policy but rather address the problem of having to keep a job open for 6+ months for an EE. The insurance policy does not address what happens after the initial 12 weeks regarding the employee's job, just addresses the fact that they continue to receive payment.

What I am talking about is implementing a company policy that states that if an employee out on medical is unable to return to work following the 12 weeks of FMLA protection, their job would be posted. If the person is able to return to work before the job is filled they would go back to their position. If it has been filled they would go into whatever position is available that they are qualified for.