Update August 16th: Late yesterday, I received further confirmation that the provisions regarding FMLA were withdrawn entirely from the proposed Democrat-led budget bill. Moreover, the General Assembly early this morning voted on a Republican version of the budget implementer, which now goes on to Governor Malloy (who has indicated he will veto the bill). That version did not contain language on the FMLA changes either. So for now, employers can stand down. However, employers should continue to track the changes both this year and next. FMLA changes may make a return at some point.   

Update at 2:06 p.m.: Since publishing this article, I’ve now heard from three people who work at or with the legislature that while they can’t find fault with my analysis of the proposed legislation as described below, the section on FMLA was intended to address a separate issue.   As a result, it appears that the section on CTFMLA changes discussed below may be withdrawn this afternoon.

What the motives were for this language are far beyond the scope of this blog; this blog has always tried to provide an apolitical analysis of the law and legislation.  For employers, just take note that the budget implementer bill language on FMLA is now likely to be withdrawn when the final bill is considered. 

Late this morning, the proposed bill implementing the state’s budget (a so-called “budget implementer”) was finally released. And like years past, the bill contains some nuggets that are seemingly unrelated to a budget.

As the proposal is a monstrous 925 pages (download here), I’m still reviewing it but employers in Connecticut need to be aware immediately about some proposed changes to the state’s FMLA provisions.  First, a caveat: This is still very much a work in progress so employers should keep a close eye and contact their legislators if interested.

  • First, the bill would expand the scope of relationships covered to include siblings and grandparents/grandkids.  Thus, if you needed to take time off to care for a grandparent, that would now be a covered leave.
  • Second, the bill would revise the definition of employer to now include the state, municipalities, public schools and private schools which means the CTFMLA would now apply to all of them.
  • But then things get even a bit more confusing. The bill changes the definition of “eligible employee” presumably to exclude state workers who are subject to collective bargaining. BUT the bill’s language is far more imprecise and would seemingly exclude ALL workers who are subject to collective bargaining (whether private or public).  Specifically, the definition of “eligible employee” would now mean an employee “who is exempt from collective bargaining…” It does not have the qualifier that perhaps the drafters intended, though, given the speed in which this has been prepared, readers take caution.
  • Next. and quite significantly, the bill would seemingly extend the leave parents get upon the birth of a child or for placement of a child for adoption of foster care.  Specifically, it indicates (line 8472!) that:

Leave under subparagraph (A) or (B) of subdivision (2) of subsection (a) of this section may be extended up to sixteen workweeks beyond the expiration of such leave due under subdivision (1) of subsection (a) of this section.

  • Thus, Connecticut employers would seemingly need to provide up to 32 weeks (16 + 16 more) of unpaid leave for new parents.
  • But the bill goes beyond that too — for leaves for birth, adoption placement, care of a family member or self or to serve as a organ or bone marrow donor, the bill expands the leave too.  Specifically, in line 8529:

An eligible employee may extend his or her personal leave provided under subparagraph (A), (B), (C), (D) or (E) of subdivision (2) of subsection (a) for up to twenty-four workweeks after the expiration of any accrued paid vacation leave, personal leave, or medical or sick leave with proper medical certification.

  • In addition, the bill goes on to add in line 8534, that for leaves for serious health conditions of self or family member, or for donor leaves:

The use of sick leave by an eligible employee for leave provided under subparagraph (C), (D) or (E) of subdivision (2) of subsection (a) of this section shall not be deemed an incident or occurrence under an absence control policy.

The changes are coming fast and furious and it is possible that this proposed bill won’t get passed in its current form.  It’s certainly far beyond the paid FMLA program that was originally under discussion by the legislature.  These changes would be effective in two weeks — October 1, 2017 — which doesn’t given employers almost any time to revise their policies or train their employees.

And I must confess that I’m still a bit surprised by the breadth of this and scratch my head as to whether this language was intended to mean what it appears to say.  I’d like to see a the office of legislative research recap this bill too.

In the meantime, I’m still reviewing the remainder of the bill for other changes relevant to private employers.  (It’s 925 pages and 26452 lines long so bear with me.)  Have you spotted anything else? Add it in the comments below.

For those unfamiliar with the way a lot of Connecticut laws get implemented, October 1st could seem like just another day.  (Though for my kids, they would be impressed that it was a different October 1st in 1982 that EPCOT opened at Disney World.)

But a lot of bills that are passed by the Connecticut General Assembly go into effect on October 1st each year. This year is no exception.

For employers, the biggest of these bills is the new law concerning “Pregnant Women in the Workplace”.  I’ve previously recapped the law for pregnant employees in a prior post way back in May, but because we’re getting close to implementation, it’s time for a little refresher.

Existing law makes it a discriminatory practice to:

  • To terminate a woman’s employment because of her pregnancy;
  • to refuse to grant to that employee a reasonable leave of absence for disability resulting from her pregnancy;
  • to deny to that employee, who is disabled as a result of pregnancy, any compensation to which she is entitled as a result of the accumulation of disability or leave benefits accrued pursuant to plans maintained by the employer;
  • to fail or refuse to reinstate the employee to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits and other service credits upon her signifying her intent to return unless, in the case of a private employer, the employer’s circumstances have so changed as to make it impossible or unreasonable to do so.

Those rules remain unchanged. But the new law revises some other provisions and adds more to the protections. Effective October 1st, it will now also be unlawful to:

  • Limit, segregate or classify the pregnant employee in a way that would deprive her of employment opportunities due to her pregnancy;
  • Discriminate against an employee or job applicant on the basis of her pregnancy in the terms or conditions of her employment;
  • Fail or refuse to make a reasonable accommodation for an employee or job applicant due to her pregnancy, unless the employer can demonstrate that the accommodation would impose an undue hardship;
  • Deny employment opportunities to an employee or job applicant if the denial is due to the request for a reasonable accommodation due to her pregnancy;
  • Force an employee or job applicant affected by pregnancy to accept a reasonable accommodation if she (i) does not have known limitation related to her pregnancy, or (ii) does not require a reasonable accommodation to perform the essential duties related to her employment;
  • Require an employee to take a leave of absence if a reasonable accommodation can be provided in lieu of the leave; and
  • Retaliate against an employee in the terms, conditions or privileges of her employment based upon the employee’s request for a reasonable accommodation.

The changes don’t stop there. The new law also explains that the word “pregnancy” will also include “pregnancy, childbirth or a related condition, including but not limited to, lactation”.  It also expands the definition of “reasonable accommodation ” and “undue hardship”.

  • “Reasonable Accommodation” means, but is not limited to, being permitted to sit while working, more frequent or longer breaks, periodic rest, assistance with manual labor, job restructuring, light duty assignment, modified work schedules, temporary transfers to less strenuous or hazardous work, time off to recover from childbirth or break time and appropriate facilities for expressing breast milk; and
  • “Undue Hardship” means an action requiring significant difficulty or expense when considered in light of factors such as (A) the nature and cost of the accommodation; (B) the overall financial resources of the employer; (C) the overall size of the business of the employer with respect to the number of employees, and the number, type and location of its facilities; and (D) the effect on expenses and resources or the impact otherwise of the accommodation upon the operation of the employer.

Continue Reading Two Weeks Until New Protections for Pregnant Employees Become Effective

The Connecticut Appellate Court today released an important disability discrimination decision that gives employers some support for employees who struggle with employees who ask for “accommodations” for an indefinite leave for a medical condition.

The case ostensibly addresses the request for “indefinite leave” which I’ve previously talked about it in prior posts.

But the case boils down to a familiar set of facts for employers. An employee who one day says, “I need to take 30 days off for a medical condition” and leaves the employer to twist without further response. As explained by the court:

The plaintiff informed the defendant that she would be taking a leave of absence, did not provide the defendant with any time frame for her return, and did not respond to the defendant’s subsequent attempts to contact her regarding her request for leave. The plaintiff effectively asked the defendant ‘‘to hold [her] position open indefinitely while [she] attempt[ed] to recover. . . .’’

Under these circumstances, the court said that the Plaintiff cannot establish even a prima facie case of discrimination because she cannot show that she “requested a reasonable accommodation that enabled her to perform the essential functions of the job”.

In doing so, the state court reviewed federal law and noted that “[R]easonable accommodation does not require [an employer] to wait indefinitely
for [the employee’s] medical conditions to be corrected . . . .’’

In this particular case, the court said, the plaintiff, prior to her departure, informed her supervisor that she would be taking leave for ‘‘over thirty days depending on my lung condition . . . .’’  At a subsequent deposition, the court went on to say, the plaintiff was asked, with respect to her request for leave, that ‘‘you didn’t know how long you were going to be out, correct?’’ The plaintiff responded, ‘‘[c]orrect.’’

The forms submitted by the employee at the time were confusing and the Plaintiff did not respond after requests by certified and regular mail by the employer for more information.  When the employee was told to submit information by a date certain and did not do so, the employer just went ahead and fired her. The court upheld that termination.

For employers, the case offers some helpful reminders:

  • Reasonable accommodation is an interactive process. So long as the employer holds up its end, courts will be more inclined to support the employer in the end.
  • Seeking medical documentation from employees regarding their requested leaves is both necessary and essential to defending a claim where the documentation is vague.  Don’t hesitate to followup and set firm deadlines to the employee to provide the information.
  • As always, seek legal counsel to help navigate through this and work through any issues regarding termination.

Employers may feel like anti-discrimination laws are rigid, but there is built-in flexibility for employers if they know where to look.

The case, Thomson v. Department of Social Services, can be downloaded here. 

GA2Today is the last day of the Connecticut General Assembly regular session.  So it’s a good time to take a look at some of the bills pending or passed.  Strangely, things seem pretty quiet on the employment law front.  But after the dust settles, I’ll have another update. Here is where we stand as of early this morning (Wednesday).

  • Last night, the Senate approved of the measure (House Bill 6668) expanding protections in the workplace for workers who are pregnant.  It was previously passed by the House.   I’ve covered the bill in depth before but it now goes on to the Governor for his signature.  The bill, if signed, would become effective October 1, 2017.
  • The House also passed a measure last night (H.B. 6907) that exempts certain professional drivers from coverage under the state’s unemployment law.. The exemption applies to drivers under a contract with another party if the driver meets certain conditions. The measure moves to the Senate but given the backlog of bills today, final passage is definitely unclear.
  • The Senate last night passed a measure (H.B. 7132) that streamlines procedures for filing workers compensation claims.  Currently, the law generally requires private-sector employees seeking workers’ compensation benefits to submit a written notice of claim for compensation to either a workers’ compensation commissioner or their employer’s last known residence or place of business. This bill requires private-sector employees who mail the notice to their employer to do so by certified mail. It also allows employers, except the state and municipalities, to post a copy of where employees must send the notice (presumably a specific address). The posting must be in a workplace location where other labor law posters required by the labor department are prominently displayed.  Under the bill, employers who opt to post such an address must also forward it to the Workers’ Compensation Commission, which must post the address on its website. Employers are responsible for verifying that the information posted at the workplace location is consistent with the information posted on the commission’s website.By law, within 28 days after receiving an employee’s written notice of claim, an employer must either (1) file a notice contesting liability with the compensation commissioner or (2) begin paying workers’ compensation benefits to the injured employee (and retain the ability to contest the claim for up to a year). Employers who do neither of these within 28 days of receiving the notice are conclusively presumed to have accepted the claim’s compensability. Under the bill, if an employer posts an address where employees must send a notice of claim, the countdown to the 28-day deadline begins on the date that the employer receives the notice at the posted address.The bill now moves to the Governor for his review and approval.
  • The General Assembly is also continuing to review a possible Paid Family and Medical Leave insurance scheme.  This bill (S.B. 1) is definitely one to watch over the next day and over any special session as well.
  • Senate Bill 929 would expand whistleblower protections under 31-51m. It has passed the Senate and is awaiting a vote in the House.  Existing law prohibits employers from discharging, disciplining, or otherwise penalizing an employee for certain whistleblowing activities, including reporting suspected illegal conduct to a public body.  This bill additionally prohibits employers from taking such actions against an employee for objecting or refusing to participate in an activity that the employee reasonably believes is illegal. Specifically, it applies to such beliefs about violations or suspected violations of state or federal laws or regulations, municipal ordinances or regulations, or court orders. The bill also (1) extends the time an employee has to file such a lawsuit and (2) adds to the possible remedies available to employees, including punitive damages in certain circumstances.

That seems to be it so far. A lot can change though today and employers should continue to be mindful of the shifting landscape. Even bills that appear “mostly dead” sometimes come back to life at the end — and particularly in special session as well. So stay tuned.

pregnancy1On Tuesday, May 23rd, the Connecticut House of Representatives overwhelmingly passed a measure that would greatly expand the already broad anti-discrimination provision that exist under Connecticut law.  The bill, House Bill 6668, would make several substantive changes to the protections including defining what is a “reasonable accommodation” instead of leaving that determination open.

I’ve previously written extensively about the state laws covering pregnant employees before (here and here for example) so I encourage you to familiarize yourself with the current law so you can fully understand the contemplated change. But I’ll try to break it down here.

Existing law makes it a discriminatory practice to:

  • To terminate a woman’s employment because of her pregnancy;
  • to refuse to grant to that employee a reasonable leave of absence for disability resulting from her pregnancy;
  • to deny to that employee, who is disabled as a result of pregnancy, any compensation to which she is entitled as a result of the accumulation of disability or leave benefits accrued pursuant to plans maintained by the employer;
  • to fail or refuse to reinstate the employee to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits and other service credits upon her signifying her intent to return unless, in the case of a private employer, the employer’s circumstances have so changed as to make it impossible or unreasonable to do so.

Those provisions would remain unchanged under the bill.

Existing law also makes it a discriminatory practice to:

  • fail or refuse to make a reasonable effort to transfer a pregnant employee to any suitable temporary position which may be available in any case in which an employee gives written notice of her pregnancy to her employer and the employer or pregnant employee reasonably believes that continued employment in the position held by the pregnant employee may cause injury to the employee or fetus;
  • fail or refuse to inform the pregnant employee that a transfer pursuant to subparagraph (E) of this subdivision may be appealed under the provisions of this chapter; or
  • fail or refuse to inform employees of the employer, by any reasonable means, that they must give written notice of their pregnancy in order to be eligible for transfer to a temporary position; 

The bill would delete those three rules and instead expand existing law to make it a discriminatory practice to:

  • limit, segregate or classify the employee in a way that would deprive her of employment opportunities due to her pregnancy;
  • discriminate against an employee or person seeking employment on the basis of her pregnancy in the terms or conditions of her employment;
  • fail or refuse to make a reasonable accommodation for an employee or person seeking employment due to her pregnancy, unless the employer can demonstrate that such accommodation would impose an undue hardship on such employer;
  • deny employment opportunities to an employee or person seeking employment if such denial is due to the employee’s request for a reasonable accommodation due to her pregnancy;
  • force an employee or person seeking employment affected by pregnancy to accept a reasonable accommodation if such employee or person seeking employment (i) does not have a known limitation related to her pregnancy, or (ii) does not require a reasonable accommodation to perform the essential duties related to her employment;
  • require an employee to take a leave of absence if a reasonable accommodation can be provided in lieu of such leave; and
  • retaliate against an employee in the terms, conditions or privileges of her employment based upon such employee’s request for a reasonable accommodation.

The changes don’t end there.  The bill creates definitions now for “reasonable accommodation” and “undue hardship”.

  • Under the bill, “Reasonable accommodation” means, “but shall not be limited to, being permitted to sit while working, more frequent or longer breaks, periodic rest, assistance with manual labor, job restructuring, light duty assignments, modified work schedules, temporary transfers to less strenuous or hazardous work, time off to recover from childbirth or break time and appropriate facilities for expressing breast milk.”
  • And under the bill, “Undue hardship” means an action requiring significant difficulty or expense when considered in light of factors such as (A) the nature and cost of the accommodation; (B) the overall financial resources of the employer; (C) the overall size of the business of the employer with respect to the number of employees, and the number, type and location of its facilities; and (D) the effect on expenses and resources or the impact otherwise of such accommodation upon the operation of the employer.

Contrast that with the ADA’s definition of those terms. If passed, the confusion for employers in interpreting these phrases are going to be plentiful.  The ADA, for example, does not define it so precisely in the law and leaves it to regulations to provide further guidance.  The undue hardship definition tracks closer but still differs:

The term “reasonable accommodation” may include (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-­time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

A) In general. – The term “undue hardship” means an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (B).

(B) Factors to be considered. – In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include – (i) the nature and cost of the accommodation needed under this chapter; (ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; (iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and (iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity

You will now have the same words mean different things.

Two other notes: First, the bill creates a broad definition of “pregnancy” by not just including the pregnancy and childbirth but also any “related condition, including, but not limited to, lactation”.   Contrast this with the federal Pregnancy Discrimination Act which defines pregnancy to just related medical conditions.

And second, the bill would create a new poster regarding pregnancy discrimination that employers would need to add to their facilities.

The CBIA initially expressed concern about this bill increasing the number of lawsuits and suggesting that “we should consider whether adequate enforcement of existing law is better than making businesses risk endlessly litigating what ‘could have been provided’ to employees in the past.”

For employers, this is a bill that warrants close attention; these have the potential to bring the most significant changes to this area of law in well over a decade.

file9281249337561Tomorrow, I’ll be part of a webinar produced by the American Bar Association on reasonable accommodations under the ADA.  You can still sign up here.

The topic page for the webinar gives a fairly concise summary:

A reasonable accommodation under the Americans with Disabilities Act (ADA) is any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. Leave can be a reasonable accommodation if it does not constitute an undue hardship on the employer. Our panel of experts will discuss what obligations employers have to provide leave as a reasonable accommodation under the ADA, in light of recent case law and the Equal Employment Opportunity Commission’s May 2016 guidance.

The other speakers on the panel are terrific. Lori Ecker is a Plaintiff’s attorney from Chicago; we’ve worked together in the past on ABA issues and she’ll bring a valuable perspective.  Shannon Rennert is a senior staff attorney with the EEOC who has been on top of these issues for years, even issuing letters on the subject.    Janine Martin moderates.

Among the particulars that we will discuss are such tricky topics such as “maximum leave” policies, and unpaid leave as a reasonable accommodation.  I hope you’ll join us.

As Connecticut employers of a certain size know, Connecticut implemented Paid Sick Leave recently which affords employees up to five days off a year.   Now, federal contractors (including those in Connecticut) have another layer to deal with. As my colleague Ashley Marshall explains below, paid sick leave will now be a requirement later this year.  Thanks too to my partner Gary Starr who helped pull this together today on short notice.

marshall If we travel back in time to September 2015, President Obama signed Executive Order 13706 (EO) which established a mandate on federal contractors to give their employees up to 56 hours (7 days) of paid sick leave each year.

Today, the Secretary of Labor has issued regulations to implement President Obama’s Executive Order that established a mandate on federal contractors to give their employees up to 56 hours (7 days) of paid sick leave each year.  The regulation goes into effect on November 29, 2016.

Here are some of the highlights:

  1. The Final Rule covers new contracts and replacements for expiring contracts with the fdoctorederal government that result from solicitations on or after January 1, 2017.
  2. Employees will accrue 1 hour of paid sick leave for every 30 hours worked on or in connection with a covered federal contract.
  3. Paid sick leave is capped at 56 hours (7 days) in a year.
  4. Employees may use paid sick leave for their own illnesses or other health care needs, for the care of a loved one who is ill, for preventive health care for themselves or a loved one, for purposes resulting from being the victim of domestic violence, sexual assault, or stalking, or to assist a loved one who is such a victim.
  5. The Final Rule allows for coordination with existing paid time off policies and labor agreements
  6. Employers may require that employees using paid sick leave provide certification from a health care provider of the employee’s need for leave if they use 3 or more days of leave consecutively.

A few other tidbits:

  • Whether an employee has to work a certain number of hours  for coverage depends on whether they work “on” a covered contract or “in connection” with a covered contract.
  • Employees that work “on” a covered contract are those that are performing the specific services called for by the contract. They are covered, regardless of the number of hours worked in a year and regardless of whether they are full or part time.
  • Employees that work “in connection” with a covered contract are  those that perform work activities that are necessary to the performance of the contract, but are not directly engaged in the specific services called for in the contract.  An employee who spends less than 20% of his or her hours working “in connection” with a covered contract in a particular workweek is not covered.

As with many new benefits, employees may try to take advantage of the new regulation, particularly since no medical excuse needs to be provided until the employee is out of work 3 or more days.  Employers are going to need to be vigilant against abuse.

The Final Rule will be published in the Federal Register September 30, 2016, and will go into effect exactly 60 days after its publication. More information can be found on the U.S. Department of Labor’s website in its Fact Sheet and Overview.

nurseSo, back in January, I penned a post titled “Can You Fire an Employee Who Has Exhausted FMLA Leave?”

As if to respond, the EEOC yesterday released guidance that basically answers: Not necessarily, because it might violate the Americans with Disabilities Act. 

And that is the crux of the issue for employers.

Before I go further, let’s remember one thing: The ADA is a statute that demands flexibility.  It requires that employers provide “reasonable accommodations” to employees to enable them to perform the essential functions of their job.

The EEOC’s guidance tries to explain this flexibility in various ways.  Sometimes it clarifies the situation; but in other ways, the guidance only serves to create more questions for employers to ponder.

The guidance is broken down into six key areas.

1. Equal Access to Leave Under an Employer’s Leave Policy. This is fairly straightforward; the same leaves of absence rules applicable to employees without disabilities should be applied to those with disabilities.

2. Granting Leave as a Reasonable Accommodation. The EEOC’s continues to argue that an employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, and so long as it does not create an undue hardship for the employer.

3. Leave and the Interactive Process Generally.  The EEOC reminds employers that when an employee requests an accommodation such as leave (and note: such requests rarely come in a neat fashion like “I hereby invoke my rights under the ADA for a reasonable accommodation”), the employer should promptly engage in an “interactive process” with the employee.  This process should focus on the specific reasons the employee needs leave, whether the leave will be a block of time or intermittent, and when the need for leave will end. Even under this instance, the employer may consider the “undue hardship” the leave may have on the workplace.

4. Maximum Leave Policies. Although employers are allowed to have leave policies that establish the maximum amount of leave an employer will provide or permit, the EEOC argues that employers may have to grant leave beyond this amount as a reasonable accommodation to employees who require it because of a disability, unless the employer can show that doing so will cause an undue hardship.  Thus, policies with hard caps may violate the ADA.

5. Return to Work and Reasonable Accommodation (Including Reassignment).  In this section, the EEOC argues that employers should avoid “100% Healed” policies, which require that an employee be fully recovered before returning to work.  A temporary transfer to a vacant position might allow the employee to return earlier while the employee continues to heal, for example.  Again, the notion of a “reasonable accommodation” and flexibility controls.

6. Undue Hardship. For employers, this may be the last safeguard and one that might need to be used more.  For example, an employer might argue that the duration and frequency of the leave, and the impact on the employer’s business, make such a leave too difficult under the circumstances.  A big plus for employers, however is that an “indefinite leave” — meaning an employee cannot say whether or when she will be able to return to work at all — “will constitute an undue hardship”.  But overall, employers will need to examine such requests on a case-by-case basis.

Jon Hyman of the Ohio Employer Law Blog suggests in his post today that this guidance “goes a long way to answering many of the questions employers will have.”  I respectfully disagree with Jon.  The EEOC’s guidance is an aggressive approach to the law that has yet to be fully tested by the courts.  Rather than create clarity, the guidance pushes the boundaries as to what employers should do. And CT’s anti-discrimination laws have their own requirements which may (or may not) mirror all of the ADA’s requirements.

For example, if an employee cannot do the essential functions of the job he or she was hired for with a reasonable accommodation, why is it reasonable to assign them permanently to another job?

That’s not to say that employers should turn a blind eye to those with disabilities or those in need to some extra time in some circumstances. I’m not advocating that at all; being understanding of your employees is vital being a good employer. And there will be instances where employers will do all that it can to keep a valued employee.

But I worry about the situations in which an employee is abusing leave; there has to be an end point. A point at which the employer can legitimately say “enough is enough.”

And with the EEOC’s guidance, that end point remains as muddy as ever.

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.

USDOL Headquarters in DC
USDOL Headquarters in DC

Over the years in the employment law “blawgosphere” (isn’t there a better term by now?), I’ve had the pleasure of meeting with and conferring with several other attorneys who blog. One of those is Jeff Nowak, whose FMLA Insights blog has become a go-to place on all things FMLA.

So, it was no surprise yesterday that Jeff was one of the first to talk about a new FMLA notice that will be issued by the U.S. Department of Labor that can be used interchangeably with the existing notice. He also added this scoop:

After today’s announcement, I had the opportunity to connect with the DOL’s Branch Chief for FMLA, Helen Applewhaite, about the timing and obligations to post the new General FMLA Notice. She confirmed that employers would be allowed to post either the current poster or the new version. In other words, employers will not be required to change the current poster. For those that want to use the new poster, I will post a link as soon as DOL releases it.

Jeff also linked to a new employer’s guide to the FMLA, a companion of sorts to a 2012 release by the DOL for employees.   This 71-page guide will be a good starting point for employers on the basics of the law but it leaves more complex issues about the law unanswered.  For more on it, see Jeff’s post and a followup post by Jon Hyman, of the Ohio Employer’s Law Blog this morning as well.

Connecticut employers though should exercise extreme caution about using this guide as a bible.  As most employers in Connecticut are aware, there are significant differences between Connecticut’s FMLA law and the federal counterpart.  And because employers with 75 or more employees in Connecticut are covered by both, there is a significant risk that employers using only the federal FMLA guide will get the law wrong.

Connecticut has historically posted a comparison of the two laws that is helpful, again as a starting point.  But that comparison is now 17 years old and doesn’t address many of the current issues or things such as a military exigency leave that have occurred through changes to the FMLA law over the years.

So what’s an employer in Connecticut to do? Ignore it? Read it?

Probably a little of both.

There are certainly items helpful in both guides but, in my view, they aren’t a substitute for talking with counsel about more complicated issues such as intermittent leave and FMLA’s interaction with the ADA and Connecticut’s Paid Sick Leave law.

If nothing else, be aware that when FMLA leaves do occur, there may be more to the solution than what is posted in the USDOL’s employer guide.