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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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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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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On this designated Veteran's Day, it seems an appropriate time to highlight some common issues that pop up frequently on USERRA issues, particularly as they may affect returning veterans.   Veterans, and interested employers, should also seek out the Department of Labor's website designed specifically to address these issues.   

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.

What Employees Are Covered?

Any person employed by an employer.  This includes any person who is a citizen, national or permanent resident alien of the United States employed in a workplace in a foreign country by an employer that is an entity incorporated or otherwise organized in the United States or that is controlled by an entity organized in the United States.  It also applies to temporary, part-time, probationary, and seasonal employees. 

Are There Any Exceptions?

Yes. Those employees who were employed for a “brief, nonrecurrent period” with no reasonable expectation of continued employment for an indefinite or significant period may not be covered by the reemployment provisions. 

Is Just Service in the Army, Navy, Air Force and Marines Covered?

No.  Service in the Coast Guard, and Public Health Service Commissioned Corp. is also covered as are individuals who partake in federal training in the Air National Guard. In addition, service in the Reserve Corps of each unit is also covered. 

What are Some of the Benefits Rights?

• Non-seniority benefits rights include benefits awarded for work performed or subject to a significant contingency.  Covered employees are entitled to such non-seniority rights and benefits as they are available to “similarly situated” employees on furlough or leave of absence.
• Seniority based benefits include those rights and benefits determined by the seniority that the person had before military leave.  Covered Employee is entitled to the additional seniority, rights and benefits he/she would have attained if he or she had remained continuously employed.  If the service member misses opportunity or eligibility for promotion based on skill test or examination, employee is entitled to take test upon return, after a reasonable amount of time to adjust.

Is the Employee In Service Entitled to Health Care Continuation?

Yes. It's similar to (but not the same as) dealing with COBRA.  It applies to all employers (not just those with 20 employees or more).  The Employer cannot charge more than regular employee contribution during first 30 days of coverage.  After that, the employer may charge up to 102% of total premiums for coverage when employee serves 31 days or more (starting from first day of continuation coverage).  It's available only to employees covered by the health plan at the time service began.  The maximum mandated period of coverage (including dependents) ends on the earlier of 24 months after service begins; or The date on which the person fails to apply for or return to employment following the end of service

What About USERRA's Broad Reemployment Provisions?

In order to qualify, the employee must be absent from a position of civil employment to report for military service, and must have provided the employer with advance notice of the absence.  Moreover, the cumulative length of his or her absence must not exceed five years with a particular employer.  In addition, the individual must timely return to work or apply for reemployment.  Lastly, the employee must not have been separated from service with a disqualifying discharge.   

When Can An Employer Avoid Reemployment?

Under limited circumstances:

• Changed circumstances such as an intervening reduction in force that would have included the absent employee;
• The individual is no longer qualified, despite the employer's reasonable efforts to qualify the employee); or  
• The employee was employed for a brief, non-recurrent period

Obviously, there is much more to this statute.  Employers in Connecticut who have employees entering or returning from service should make sure their policies and procedures incorporate the requirements of USERRA into them. Additional state laws may apply.

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