On Friday, Congress passed the first significant amendments to the Family and Medical Leave Act (FMLA) in over a decade.  Morguefile - militaryThe 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)

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.

A few weeks ago, I pointed out an old employment law prohibiting minors from operating elevators was still on the books.  The Connecticut Law Tribune picked up on the story with a reference to the blog (though its hidden behind a paid registration page so you’ll have to take my word on it).  So are there other employment laws out there that may have seen better days?

Of course. 

Let me pose a scenario first.  Suppose you work for a mid-size employer in the state and decide to run for a local or state office.  Perhaps against the public’s better judgment, you even win a full-time elected position — for two terms.  But then – after eight years in office — you decide to leave office. 

Can you get your job back with your prior employer? Well, under state law, the answer is likely yes.

And you can get credit for your time in office.

Sounds a little absurd right?  After all, new parents who leave the workforce for years to raise their kids don’t get this protection, nor do people who suffer from long-term illnesses who have to leave their jobs for some years. 

But, it’s all there in black and white. Indeed, in Conn. Gen. Stat. 31-51l, any person employed by a private employer of 25 or more people who leaves such employment to accept a full-time elective municipal or state office must be granted a personal leave of absence for two consecutive terms.

Upon reapplication to the employer, the employer must then reinstate that employee to his or her original position or a similar position with equivalent pay and accumulated seniority, retirement, fringe benefits and other service credits. 

There is one exception to the general rule. If the employer’s circumstances have changed as to make it impossible or unreasonable to do so, the employer is not required to do so. But how often is it "impossible" for an employer to rehire an employee to at least a similar position?

I’ll leave it to others to debate the legislative history behind this, but I think most of the workforce would love to have this deal. However, the only group that benefits from this are elected officials, and it’s not like they need a lot of protection.  (Before you start berating our current legislators for preserving their own interests, remember that they are part-time legislators so this statute does not apply to most of them.) 

Certainly, we want to encourage public service, but it’s not like we have a shortage of people running for full-time elected office.  In other words, is there really a problem that needs a fix like this statute?  Moreover, why should employers bear the burden when a person seeks elected office for their own personal growth?  And why should an employer have to rehire someone who may no longer have the skills necessary for the position or whose actions while in office lead the company to believe that it does not want to be associated with that person?

Ultimately, this statute is a trap and bad deal for the unwary private employer and boon to elected officials.  The solution: Eliminate the law and let elected officials seek jobs like the rest of the workforce. 

Is this likely to happen? Probably not.  The law has been on the books for nearly 35 years.  I can’t imagine a lobbyist who is going to advocate eliminating this law.  But this is another law that has had its time and if someone wanted to clean up employment laws on the books, this is another one to add to the list.