Air Force Memorial in Arlington, VA
Air Force Memorial in Arlington, VA

UPDATED

Continuing to recap various employment law bills out of the Connecticut General Assembly, the legislature passed a measure Wednesday night that brings Connecticut’s FMLA law more in line with the federal counterpart.

The federal FMLA was amended back in 2008 (prior post on the subject here) to provide coverage for any “qualifying exigency” arising out of the fact that the spouse, son or daughter, or parent of the employee is on active duty or has been notified of an impending call to order in the armed forces.  Regulations were put in place as well.

The new Connecticut rule — which will go into effect immediately upon the Governor’s signature — covers that same type of qualifying exigency. Indeed, it defines such an exigency by reference to the U.S. Department of Labor’s regulations on that very subject.

What this means is that employees in Connecticut will now have 16 weeks over a 24 month period for such a leave.  You can review Senate Bill 262 here.

The new rule, however, is not a mirror image of the federal counterpart but brings its nearly up to date with it. And as readers will recall, there is a 26 week period for caregiver leave also in place in Connecticut as a result of P.A. 09-70 back in 2009.

Ultimately, employers in Connecticut will have to update their FMLA policies and procedures to account for this leave, if you haven’t been allowing military leaves under CTFMLA.

And while it’s obviously important to support the military and those that serve — the confusing and overlapping laws on the subject don’t make it easy for employers who want to do right by their employees.

The Department of Labor today proposed new regulations of the FMLA that would explain further the military family leave provisions and incorporate some special provisions for airline flight crews. 

The new proposed regulations are in response to the National Defense Authorization Act for Fiscal Year 2012 which amended the FMLA to extend the military caregiver leave entitlement to eligible family members of certain veterans and to extend the qualifying exigency leave entitlement to eligible family members of the Regular Armed Forces. 

You can find the DOL’s Notice of Proposed Rulemaking here.   You can download the actual proposal (213 pages) here.   The DOL’s Frequenly Asked Questions (FAQ) are available here.   

What’s changed? According to the DOL, the major provisions include:

  • the extension of military caregiver leave to eligible family members of covered veterans with a serious injury or illness;
  • a flexible, three part definition for serious injury or illness of a veteran;
  • the extension of military caregiver leave to cover serious injuries or illnesses that result from the aggravation during military service of a preexisting condition for both current servicemembers and veterans;
  • the extension of qualifying exigency leave to eligible family members of members of the Regular Armed Forces;
  • inclusion of a foreign deployment requirement for qualifying exigency leave for the deployment of all servicemembers (National Guard, Reserves, Regular Armed Forces);
  • the addition of a special hours of service eligibility requirement for airline flight crew employees; and
  • the addition of specific provisions for calculating the amount of FMLA leave used by airline flight crew employees.

Before employers get too wrapped up in this, understand that these are just proposed regulations.  The DOL is soliciting comments and may make further changes before final release.  Employers who have an interest in the subject can submit their comments to the government’s website here.

Air Force Memorial in Arlington, VA

Today is Veterans Day (with no apostrophe for those spelling at home).  So besides saying a big “thank you” to all those who have served, it seems appropriate to revisit the laws applicable to veterans in the workplace in a post today.  (The U.S. Department of Labor has their own set of posts here.)

There are obviously many excellent resources for employers to turn to when dealing with or seeking out veterans in the workplace.  The DOL has created a “toolkit” for employers on the major issues that are implicated.  At a local level, the Connecticut Department of Labor also has a website to making sure that employers consider veterans in their hiring practices.

The key law for employers to understand is the Uniformed Services Employment and Reemployment Rights Act (USERRA). The DOL has a separate interactive website devoted to the intricacies of the law.   But in case you only have a few minutes, here are the highlights:

What Employers Are Covered by USERRA?

Any person, institution, organization, or other entity that pays salary or wages for work performed or that has control over employment opportunities. There are no exceptions to coverage for the type of organization (i.e. charitable or government) or for small employers.

Continue Reading Honoring Veterans Day: USERRA and Employment Law Resources

Earlier this afternoon, President Obama signed the National Defense Authorization Act of 2010.  By doing so, he approved of several changes to the FMLA .  But before you rip up your existing FMLA policies, the provisions relate to the military-related leaves under the Act.  (H/T Ohio Employer’s Law Blog)  The changes as a whole expand the coverage and the availability of military family leave. 

Carl Bosland at the FMLA Blog summarizes the details:

  • Eligible employees will be able to take military caregiver leave for veterans who served in the regular Armed Forces, the Reserves within 5 years of the date the veterans undergoes medical treatment, recuperation, or therapy.  Currently, military caregiver leave is only available to care for current members of the Armed Forces, Guard, or Reserves.
  • Military caregiver leave is expanded to cover aggravation of existing or preexisting injuries incurred in the line of duty while on active duty. 
  • Qualifying exigency leave is expanded to cover members of the regular Armed Forces who are deployed to a foreign country.  Currently, qualifying exigency leave is only available for covered military members in the Reserves or Guard.

But of course, in Connecticut, this will only create another set of headaches. Connecticut just amended the state FMLA rules to be more consistent with the federal rules as they relate to military caregiver leave.  These new rules now create a significant difference between the state and federal rules.

Nevertheless, where the FMLA and the state FMLA conflict, employers in Connecticut must implement the more favorable of rules. Therefore, employers subject to FMLA in Connecticut

With the legislative session ending on Wednesday at midnight, there’s a lot for employers to keep an eye out. Here’s a quick summary of what’s still alive and what’s not, at the Connecticut General Assembly.

  • Senate Bill 365 (S.B. 365) – A bill that would prohibit so-called captive audience meetings by employers (typically regarding a union campaign) passed the Senate on May 20th but is still awaiting a House vote. 
  • Senate Bill 710 (S.B. 710) – A bill that instituted changes to the state FMLA laws was signed by the Governor on May 27th. It is effective immediately. 
  • House Bill 5521 (H.B. 5521) – A bill that would prohibit employers from using credit reports as a basis for employment decisions is awaiting a possible senate vote after passage in the House on May 1th. 
  • House Bill 6187 (H.B. 6187) – The so-called Paid Sick Leave bill passed on the House on May 28th and is still awaiting a vote in the Senate.  Time is running out for this bill.  There are 18 amendments that have been proposed for the Senate version of the bill and the CBIA released a statement this morning that said a vote could come at any time
  • House Bill 6545 (H.B. 6545) – This bill is a late entry into the bills I’ve been watching regarding labor & employment law and just passed the House last night.  This bill provides collective bargaining rights to two groups of state employees who cannot collectively bargain under current law: (1) managers and (2) Legislative Branch employees of the State Capitol Police.

In addition to the above bills, I’ve previously covered House Bill 6185, which made changes to the state’s personnel files laws and also changes to the gender discrimination law as well. 

Stay tuned….

Late last week, the Connecticut Senate approved a measure that would permit an employee to take up to 26 weeks of unpaid leave from work to care for family members who may have been injured in the line of military duty.  The bill (Senate Bill 710) is now on the House’s calendar for a vote within the next few weeks; it is likely to be approved.

The bill mirrors many of the provisions that were implemented last year in revisions to the federal FMLA

The Office of Legislative Research has done a good job summarizing the measure’s main provisions here

Notably, the measure has different provisions for private sector workers and state employees, so as the bill progresses, this distinction ought to be reviewed. 

The core provision of the bill, however, is the same for each — a one-time leave for each armed forces member per serious injury or illness incurred in the line of duty.  Employees who are immediate family members of those servicemembers or next of kin will be entitled to this leave.  If there are any nuances between federal and state law, the more generous of the two benefits will apply.

In the meantime, employers should make sure their FMLA policies reflect the current state of the law and, if they do have any requests for leaves to care for injured servicemembers, employers should check back on the status of this bill — if they are not already covered under federal law.

UPDATED 1/16/09

We had a great turnout today for our breakfast roundtable on the new FMLA regulations. I want to particularly thank several blog readers for coming. 

But in case you missed it, you’re not out of luck.  Here’s some of Copyright 2009, Daniel A. Schwartz - All Rights Reservedwhat we discussed and what you need to know for Friday – the date the new FMLA regulations become effective. 

  • Start using the new forms, certifications and postings on Friday – To simplify (and perhaps oversimplify so look at the new regulations for more details), there are new rules on when notices should be given and what they should contain. Here are some highlights:
    • Form WH-381 must be given to employees within 5 business days of the leave request.
    • If the employer will require the employee to certify the leave, the appropriate certification form (either WH-380-E, 380-F, 384, 385), should be given to the employee (along with the notice form) also within 5 business days of the leave request.
    • Once a designation has been made, there is a new designation notice (WH-382) that also must be provided; this must be done within 5 days of the designation determination. A new form should be provided if the designation changes over time. 
    • Lastly, to the extent that you are not providing each employee with a copy of their rights individually, the employer should also use the new FMLA poster available here. 
  • Update your FMLA policies – To the extent that you have a policy on FMLA, the policy should be revised to at least include the information in the notice above. 
     
  • Don’t overlook the new military leave regulations – Although the statute regarding new military leave has been in place for a while, the regulations implementing and interpreting the statute are new.  If you have employees who have family members who are injured servicemembers, or if you have employees who have been called to active duty, you need to familiarize yourself with these rules.  The rules allow for broader leave that employers may be accustomed to.

Finally, if you need more information about the FMLA, you can check out my previous posts on the subject here.