Employers may need to revisit how their collective bargaining agreements (CBA) deal with leave requests from their unionized workforce. A recent Department of Labor (DOL) opinion letter makes clear that the Family and Medical Leave Act (FMLA) doesn’t take a back seat to a CBA that requires employees to exhaust paid leave before utilizing FMLA. Many employers in the interest of union peace, have negotiated terms in their collective bargaining contracts that require employees to exhaust all of their paid leave before utilizing FMLA.
In a September 10, 2019, letter, the DOL stated that paid leave for unionized workers under a CBA runs concurrently with the 12-week timeframe for FMLA. In other words, an employer can’t rely on a union contract as a basis for delaying an employee’s FMLA leave until their CBA protected leave is exhausted. In addition, employers must also allow unionized workers to continue accruing seniority when they utilize FMLA if the CBA requires such accrual when they take paid leave.
The DOL has been issuing a flurry of opinion letters and this recent decision is in line with a March 2019 letter holding that employees do not have the option of exhausting vacation time and other types of paid leave for leave reasons that would qualify for coverage under the FMLA.
What Employers Should Do Now
If you have a unionized workforce and you’ve been deferring to your union contract when it comes to administering leaves, you should revisit that practice and determine if those leaves qualify as FMLA leave. If they do, this recent opinion letter makes clear that you should be designating those leaves accordingly regardless of what the language of the contract calls for. In addition, employers may also have to take this new ruling into consideration in any upcoming contract negotiations in order to stay compliant.