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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With the signing of the National Defense Authorization Act for FY 2008 (NDAA) earlier this week, the new amendments to the FMLA for care of military members are now effective immediately.  For a full text of the FMLA, with the new amendments, the Department of Labor has posted it here.

For a refresher to my prior posts, the Act now permits a "spouse, son, daughter, parent, or next of kin" to take up to 26 workweeks of leave to care for a "member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness."

Its important to note that the caregiver protection provides more than double what is provided when an employee takes "traditional" FMLA leave.  Employees are entitled to only one 26-week leave period to care for a wounded servicemember during the employee’s employment. The leave may be taken on an intermittent or reduced-schedule basis, but all 26 weeks must be used during a single 12-month period. 

The Act also provides up to 12 weeks of leave for employees who have a family member called up to or engaged in active military duty.  In detail, the Act provides up to 12 weeks of FMLA leave for an employee with a spouse, son, daughter or parent who: (1) is on active duty in the Armed Forces in support of a contingency operation; or (2) has been notified of an impending call or order to active duty in the Armed Forces in support of a contingency operation. A "contingency operation" is an action or operation against an opposing military force.

An employee may take active duty leave for "any qualifying exigency" related to the family member’s call-up, and the leave may commence as soon as an individual receives notification of being called to active duty. The term "any qualifying exigency" was not defined, and will likely be clarified in future regulations published by the Department of Labor ("DOL").

Recall too that the normal definitions of the FMLA still apply. Thus, the employer must employ at least 50 part-time or full-time employees for each working day during 20 or more workweeks of the current or previous calendar year to be subject to the statute. In order to be eligible for FMLA leave for example, employees must still have at least 12 months of service with the employer  and must have worked at least 1,250 hours during the 12 months preceding the start date of the leave

Because these changes expand the ways that an employee may be entitled to protected leave, employers should familiarize themselves with the law and also review their obligations under USERRA as well.  Employers can consider updating their policies and procedures and also ensuring that their postings (such as a USERRA DOL poster) are current as well. Notifying human resources of this new law will also be critical to ensuring proper compliance with this law. 

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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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A couple of weeks after President Bush's pocket veto of a defense bill that included expansion of FMLA for military leave, Congress has again passed a defense bill with the same FMLA provision.  President Bush is now expected to sign the measure because it does not contain certain language that he found objectionable (unrelated to FMLA) in the bill.

For a recap of the provisions, see my prior posts on the subject here, here and here. 

(H/T Alaska Employment Law)

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As I predicted last month, Congress will quickly take up the bill regarding defense spending (which also includes a provision for protected leave for military families) this week, when it opens its 2008 session. 

The New York Times is reporting this morning that a resolution of the issues which resulted in the President's pocket veto of the bill are being resolved, and passage is expected shortly.

Officials said the most likely approach would be to vote to send the Pentagon measure back to the Armed Services Committee, where the disputed provision could be quickly corrected, allowing the bill to be brought back for a final vote by the end of the week.

“We hope to fix it,” an aide said.

For background on the expanded FMLA leave for military families portion of the bill, see my earlier post on the subject. 

(Hat Tip: Ohio Employer's Law Blog)

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Since I'm only by a computer for a few minutes this morning -- still vacationing -- I wanted to just highlight a few points from my brief post yesterday afternoon on the expected veto of the bill that contained the expanded leave for military families. 

First, if you haven't done so, you should check out two blogs that commented on this blog and my post:  Michael Fox's Jottings by an Employer's Lawyer (long my go-to-resource before I got into blogging myself) and Workplace Horizons (which is a critical resource on all the legislative bills addressing labor & employment laws).  I'm grateful for their kind words this morning.   Both have had detailed summaries of the Military Leave FMLA provisions and other significant bills and I urge you to check them out.

Second, in my haste, I failed to highlight that, with Congress out of session, President Bush is exercising his pocket veto -- meaning Congress will have to take this issue up anew when they restart in January.

As the Washington Post reports:

Because Congress is not in session, Bush is barred by the Constitution from issuing a traditional veto and returning it to lawmakers, according to White House officials. Instead, according to a senior official, Bush plans to execute a "pocket veto," meaning he will not sign the measure -- requiring lawmakers to write and pass an entirely new version of the bill when they return.

To block efforts by Congress to challenge the pocket veto, however, Bush is also going the traditional route, sending over to Congress his veto message and the unsigned bill.

Third, the White House's statements and reasoning for the pocket veto -- which has nothing to do with the FMLA provision itself -- can be found at the website here.  The veto took place this morning

(And for those who are interested, the photo is of a replica of Congress made out of natural materials now on display at the U.S. Botanic Gardens in Washington, DC where I've been visiting on vacation.)

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On Friday, Congress passed the first significant amendments to the Family and Medical Leave Act (FMLA) in over a decade.  The Bill still needs to be signed by President Bush in order for it to become effective. 

The new bill, which has yet to be signed by President Bush, creates an additional category for the traditional 12 week leave. Specifically, an employee may take 12 weeks leave, where the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation and there is a "qualifying exigency" which is to be defined by the Secretary of Labor by regulation.

In addition, and in an unique approach to leave issues, Congress has also created a "Servicemember Family Leave" where an eligible employee who is the spouse, son, daughter, parent, or next of kin of an injured servicemember needs to take care of them. The employee in this situation is entitled to 26 weeks leave.  This appears to be a one-time only leave. 

For Connecticut employers, this new bill will only add to the confusion over which leave (state or federal) applies. For the time being (and when signed by President Bush), this new leave will only apply to those employers covered under the Federal FMLA laws, not the state. 

Note that this expanded leave section is part of an overall military spending package.  There remains the possibility of a veto on it so employers should keep checking back for final approval and an effective date.

The legislation had been introduced by Senator Chris Dodd (D-Conn.) and he expressed his pleasure with its passage in a statement on Friday. 

"By passing this important legislation we will protect family members' rights to keep their jobs when they are providing important care and we will ensure that our injured troops receive the comfort and attention that they need," he said. 

According to the roll call, Dodd was absent from the final vote on the conference report on Friday. 

(Hat Tip: Jottings by an Employer's Lawyer)

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