FAMILY AND MEDICAL LEAVE ACT

The Family and Medical Leave Act of 1993 (FMLA) is a federal law that requires larger employers to provide employees with job-protected unpaid leave due to a serious condition that makes the employee unable to perform his or her job; to take care of a sick family member or a newborn child; for placement with the employee of a son or daughter for adoption or foster care; or to address qualifying exigencies arising out of a family member’s deployment. Prior to the passage of this law, the provision of leave for family or medical reasons was left to the discretion of individual employers, and employees’ requests for leave could be denied. FMLA mandates employers to provide unpaid leave for up to 12 weeks per year. To qualify for FMLA, the employee must have worked for the employer for at least 12 months, not necessarily consecutive, and 1,250 hours within the last 12 months.

The law as written, however, does not address the unique working conditions of railroad operating employees, who, through no fault of their own, oftentimes do not meet the minimum 1,250 hours per year to qualify due to the hours of service laws that limit the number of hours a railroad operating employee may work per day, per week, and per month. Operating employees, who are on call 24/7, spend a considerable amount of compensated and non-compensated time away from their home terminals and deadheading between terminals. Because only the hours they are actually at work, or “on duty,” are recognized for qualification for FMLA, they often fail to meet the minimum requirement of 1,250 hours, and their requests for FMLA are therefore frequently denied by the railroad.

On July 29, 2010, H.R. 5944, the Railroad Hours of Service Employees Technical Corrections Act, was introduced to amend the inequity felt by railroad operating employees. The legislation would provide that a railroad worker who is subject to the hours of service laws qualifies for FMLA leave if: (1) the employee has worked or been paid for not less than 60 percent of the applicable total wage guarantee, or the equivalent, for the previous 12-month period, and (2) the employee has worked or been paid for not less than 504 hours (not counting personal commute time or time spent on vacation leave, or medical or sick leave) during the previous 12-month period. A similar bill was passed in 2009 pertaining to pilots and flight attendants, with the support of the airline industry. Although we do not have the support of the railroads, it is hoped that this bill, which will be of no cost to the railroads or the taxpayers of this country, will be passed in 2011.