Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

New week; new job. 

But that hasn't stopped news from happening. So we'll be using this week to catch back up.

First up: The Department of Labor has published its proposed new regulations for military leave FMLA.  But these regulations (topping 500 pages) also contain updates to earlier discussed revisions to the FMLA as well.

The blogging community has been busy trying to sort and report on the release.  Here's the wrap-up as of early Monday morning. I may update this post later today as additional blogs post their summaries:

• Michael Fox, at Jottings, has the most detailed summary thus far of the major provisions here. According to Michael: "These proposed rules are not nearly as dramatic as the ones that were originally proposed to the white collar regulations which set off a legislative and political uproar. It will be interesting to see what happens to these. Although there will no doubt be comments from both sides, my initial thoughts are that if anyone should be howling for more, it should be employers."
• Workplace Prof links to the regulations and has provided ample coverage of the underlying statute before.
• Ross' Employment Law Blog hits the highlights as well and notes that "there are substantive changes dealing with the definition of "serious health condition," required notices, joint employers, light duty, overtime, bonuses, substituting paid leave for FMLA leave, voluntary settlement of claims, employer's failure to designate absences as being FMLA leave, and other matters."
• The Word reports that you have until April 11, 2008 to provide comments to the new proposed regulations.
• What's New reports what's new with the new regulations as well.

For employers in Connecticut, the challenge will remain trying to incorporate these national regulations into the state statute and deciphering when or if those provisions will even apply to Connecticut leave. Employers should continue to tread cautiously in FMLA issues until the dust settles from the new FMLA provisions and proposed regulations.

UPDATE: The always reliable Jon Hyman at Ohio Employer's Law Blog also has his first take on the regulations here. 

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The New York Times reported late last week that the Department of Labor is considering new regulations to the Family and Medical Leave Act that would address concerns that employers have had about some employees are abusing the leave.  (H/T The Word on Employment Law)

Under the new rules being discussed, employees would have to call in to request FMLA leave before taking it, as opposed to the present situation where employees can take off two days before requesting leave.  The regulations will also address the new military leave provisions that I've mentioned previously.

As these regulations are likely to undergo some further discussion and revisions, I'll await serious analysis until we see what is actually being proposed -- rather than just discussed at this stage.  FMLA Blog has some thoughts worth reviewing.

Senator Chris Dodd (D-Conn.), who authored the original FMLA bill, is already concerned about the path being carved out and issued a statement today expressing those concerns.

“I am concerned by the reports that the Department of Labor may impose new regulations that will make it more difficult for workers to take advantage of the leave FMLA provides. Over the past 15 years, FMLA has helped more than 50 million families during critical moments in their lives, and any effort to scale back these protections is simply unacceptable.

“As I have said time and time again, if there is any problem with FMLA, it is that it doesn’t go far enough. That is why I support new ways to expand this legislation so more Americans can benefit from its provisions. Most recently, I authored a provision to expand FMLA benefits for up to six months for family members of wounded military personnel. As this disastrous war drags on with no end in sight, it is critically important that we ensure that the brave men and women of our armed forces receive the care and support they need when they return home. Allowing their family to be there during the often lengthy rehabilitation process without the constant fear of losing their job is one of the best things we can do for our troops. I hope the Department of Labor keeps these concerns at the forefront as they draft their new regulations.”

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The Connecticut Department of Labor has just posted a form for employers to fill out online regarding their experiences with the use of FMLA for the 2007 calendar year.  Filling out this form is required by state regulation for employers who are subject to the Act.

The Department's website has the details:

If your company employed 75 or more employees in Connecticut as of October 1, 2006 you are subject to the Connecticut Family and Medical Leave Act and as such your response is needed for the Labor Commissioner's report. Kindly take a moment to complete this form ant transmit it back to us before April 1, 2008. Your cooperation is greatly appreciated.

What the website does not specify is that the use of this form is actually mandated by state regulations. Specifically, Conn. Reg. Sec. 31-51qq-48 states that

(b) Employers shall report the following data for each calendar year for which they are subject to the Act: 

(1) Employer’s name;
(2) Number of employees;
(3) Number of family leaves approved for birth or adoption, and duration;
(4) Number of family leaves approved for family illness, and duration;
(5) Number of medical leaves approved, and duration;
(6) Any other information the Commissioner determines necessary to assess the current experience of employers with medical and family leaves of absence. Any family or medical leave approved under the Act which includes less than five days unpaid leave need not be reported to the Labor Department.

Although the language of the regulation suggests that compliance is mandatory, there is no indication in the regulation for the "punishment" for failure to comply.   Nevertheless, there also appears to be no "harm" in filling out the form either.  The goal of this form and report appears to be simply to track the progress and use of the state FMLA laws. 

Employers may receive notice of this form via the mail later this winter, but it is an easy item to get a head start on.  Once the numbers are compiled, the form can likely be filled out in just a few minutes.

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Suppose an employee takes maternity leave from a position. Due to health complications, that leave is extended multiple times (past the 12 or 16 weeks required under FMLA or CT FMLA).  The employee remains an employee pursuant to a short-term disability plan. When the employee is ultimately medically cleared to work, does the employer need to reinstate the employee?

An summary order (i.e. an opinion that is NOT binding in future cases) from the Second Circuit this morning suggests that the employer does not need to reinstate the employee and that the employer's actions do not violate Title VII. 

The Second Circuit in Infante v. Ambac Financial Group, suggests that this is a fairly easy call:

[The employer] avers that it could not rely on the possibility of [the employee]’s return from her leave because she had repeatedly extended her anticipated dates of return-- sometimes on one or two business days’ notice. [The employer] thus faced uncertainty about when, if ever, [the employee] would return, as well as the increasing work demands of [employee]’s former accounting unit. After [the employee] had extended her return date by more than six weeks, [the employer] decided to interview replacements. As of that time, [the employee]’s leave of absence was outside the scope of the twelve-week job protection provided by the Family and Medical Leave Act, 29 U.S.C. § 27 2612 (“FMLA”). [The employer]’s short-term disability leave policy contains no similar job protection provision.

So [the employer] was under no legal or contractual obligation to hold [the employee]’s job open for her, and was entitled to interview (and hire) replacement candidates whom it deemed more qualified for the role.

The opinion suggests that courts will not be afraid to read the statutory limits on protected leave strictly; 12 weeks under FMLA is 12 weeks -- not 20.  And for employers, the case is a good reminder that upon expiration of FMLA leave, the employer can and should explore filling open positions as business needs dictate.

That said, there are -- of course -- cautionary notes. For example, this case does not address the trickier issue of whether a disabled worker out on leave is allowed to have extended leave as a "reasonable accommodation" under the ADA.  Thus, whenever employees are out on extended leave, an employer should review all the laws that may apply (not simply FMLA) to ensure their compliance with various legal obligations.  Also, employers should also review their internal policies to ensure that they are following what their policies say about leaves of absences.

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