(a) An employer must observe any employment benefit program or plan
that provides greater family or medical leave rights to employees than
the rights established by the FMLA. Conversely, the rights established
by the Act may not be diminished by any employment benefit program or
plan. For example, a provision of a CBA which provides for reinstatement
to a position that is not equivalent because of seniority (e.g.,
provides lesser pay) is superseded by FMLA. If an employer provides
greater unpaid family leave rights than are afforded by FMLA, the
employer is not required to extend additional rights afforded by FMLA,
such as maintenance of health benefits (other than through COBRA), to
the additional leave period not covered by FMLA. 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.
(b) Nothing in this Act prevents an employer from amending existing
leave and employee benefit programs, provided they comply with FMLA.
However, nothing in the Act is intended to discourage employers from
adopting or retaining more generous leave policies.
(c)(1) The Act does not apply to employees under a collective
bargaining agreement (CBA) in effect on August 5, 1993, until February
5, 1994, or the date the agreement terminates (i.e., its expiration
date), whichever is earlier. Thus, if the CBA contains family or medical
leave benefits, whether greater or less than those under the Act, such
benefits are not disturbed until the Act's provisions begin to apply to
employees under that agreement. A CBA which provides no family or
medical leave rights also continues in effect. For CBAs subject to the
Railway Labor Act and other CBAs which do not have an expiration date
for the general terms, but which may be reopened at specified times,
e.g., to amend wages and benefits, the first time the agreement is
amended after August 5, 1993, shall be considered the termination date
of the CBA, and the effective date for FMLA.
(2) As discussed in Sec. 825.102(b), the period prior to the Act's
delayed effective date must be considered in determining employer
coverage and employee eligibility for FMLA leave.
