In Am. Federation of Government Employees Local 1612, Council of Prison Locals and United States Dept. of Justice, Federal Bureau of Prisons, United States Medical Center for Federal Prisoners, 61 FLRA No. 93 (Feb. 9, 2006) the Union filed exceptions to the adverse decision of an arbitrator denying a grievance contesting a 7-day suspension for being AWOL for approximately two weeks. The Union argued that the decision of the arbitrator was contrary to law because the agency failed to inform the grievant of his rights under the FMLA, as required by the OPM implementing regulations. The Union argued that this duty required the Agency to provide FMLA training to employees. Had the grievant been so informed, the Union argued that the employee would have perfected his right to FMLA leave for the absence at issue. The FLRA disagreed. The FLRA found that the arbitrator’s award was not contrary to law. The FLRA agreed that the OPM regulations require agencies to inform employees of their FMLA entitlements and obligations. The FLRA further found, however, that the OPM regulations provide that, to meet this requirement, “agencies may wish to provide employee’s access to the FMLA and OPM’s implementing regulations or agency policies or guidance on implementing the FMLA.” The FLRA found that information on the types of leave available to employees, including FMLA leave, was available to employees. Information on FMLA leave was included on the leave form “which provides information concerning the type of leave used and a listing of reasons for invoking the FMLA.”
Comment: Note that the agency apparently did not provide employee’s with access to the FMLA or OPM implementing regulations as required by Title II. Presumably, the FLRA’s decision rests on the second permissible means of notice, “agency policies or guidance on implementing the FMLA.” If that is the case, it would appear that the FLRA has set the bar very low on what FMLA information an agency needs to provide to meet that standard. While the decision is less than clear on the amount of FMLA information it provided on the leave request form, it would seem a safe bet that such information was significantly less than giving an employee access to the OPM FMLA regulations.