For lawyers, anytime there’s a change, it seems to be a big deal. But for employers, change is inevitable and part of business.  Indeed, if a new poster is required by employers, most employers simply shrug and order a new poster on the internet through a site like Gneil.com.

My colleague, Jon Orleans (fresh off his Title IX victory on behalf of a group of volleyball players — congrats Jon!), and I remind you of this fact in a quick update regarding FMLA and I-9 forms. So if you haven’t ordered some new posters yet, now’s a good time to do so.

Clean Up Your Posters

The Family and Medical Leave Act turned 20 last month.  For any Rip Van Winkles among our readers, the statute, enacted during the Clinton Administration, requires employers of at least 50 employees to provide up to 12 weeks of unpaid leave per year for a variety of health- and family-related conditions.

For employees, it has been an enormous benefit.  For employers, it can be an administrative nightmare

The U.S. Department of Labor marked the birthday by, among other things, issuing a new final rule implementing two expansions of FMLA protections enacted by Congress.  This blog previously covered the proposed changes a while back.

The FMLA now provides families of eligible veterans with the same FMLA leave currently available to families of military service members, and also enables more military families to take leave for activities that arise when a service member is deployed. The second expansion provides additional protections to airline personnel and flight crews.

Information concerning the new rule is available here.

In conjunction with the new rule, the DOL revised the mandatory FMLA poster that must be displayed by all employers subject to the Act.  The new poster is available here and should be posted now.

For additional blog posts about this subject, check out some background articles here, here and here.

One important item to note for Connecticut employers: Connecticut has not yet updated its regulations for the CTFMLA so be sure to consult with your lawyer before taking action just on the federal FMLA rule changes.  The new posters will still need to be put up, but you will need an individualized assessment of how the rule changes will impact your business directly. (Note too that the comparison posted on the CTDOL website of FMLA and CTFMLA regulations will now be slightly out of date.)

And while we’re pointing out new forms, be aware that the U.S. Citizenship and Immigration Service has issued a new version of the I-9, the form that must be used by employers to verify that any person hired is authorized to work in the United States.  The new form is available here.

Older versions of the form will not be accepted after May 7, 2013.  Note that it is not necessary to complete the new form for existing employees unless reverification is otherwise required; but the new form should be used for new hires going forward.

Finally, today is Election Day.  

And while the pundits tonight will all look forward to what the next four years might bring, it’s worth taking a quick peek back at Obama’s (first?) four years with a review of some of the posts from 2008-9.

Before his term, there were predictions that he would be good for employers, or bad for employers.   But I think that its fair to say that, with the notable exception of the NLRB, there really haven’t been a lot of changes to employment laws for the last four years.

You can chalk it up to a variety of reasons — bad economy, Washington gridlock, to name a few — but compared with the prior four years, in my view, employers haven’t had to worry about a lot of federal legislative developments.  (The rise in social media’s impact on employment, I would argue, has been much more significant.)

In 2008 alone, you had the Americans with Disabilities Amendment Act and the expansion of FMLA for military leave.  You also had new regulations for the Family Medical Leave Act.   

Remember what Obama pledged to get done?  A look at what happened showed a stalling out on a variety of issues.  Here are a few examples:

•Obama and Biden will strengthen the ability of workers to organize unions. He will fight for passage of the Employee Free Choice Act. (NLRB strengthened though impact lessoned as various proposals have been tied up in courts; EFCA never passed and has no reasonable likelihood of doing so)

•Obama and Biden will raise the minimum wage and index it to inflation. (While the minimum wage did increase in July 2009 to $7.25, that was as a result of a 2007 compromise bill. No further changes to minimum wage have been made since.)

•Obama and Biden will expand FMLA to cover businesses with 25 or more employees. They will expand the FMLA to cover more purposes as well, including allowing workers to take leave for elder care needs; allowing parents up to 24 hours of leave each year to participate in their children’s academic activities; and expanding FMLA to cover leave for employees to address domestic violence. (No substantive changes to FMLA have been made.)

• As president, Obama will initiate a strategy to encourage all 50 states to adopt paid-leave systems. (Connecticut did pass paid sick leave, but no strong federal support was seen.)

Other bills that have not yet passed include the Employment Non-Discrimination Act, which would prohibit employers from discriminating against employees because of their sexual orientation. 

So what did occur? Among other things: Passage of The Lilly Ledbetter Fair Pay Act (though query whether this has had much impact in the workplace).  And nursing mothers received additional federal protections under “Obamacare”.  The EEOC also released new guidance on the use of criminal records and credit reports.   But overall, the impacts on employers have probably been far less than forecasted.

What do the next four years hold? For that, we’ll just have to wait until tonight.

The Department of Labor today proposed new regulations of the FMLA that would explain further the military family leave provisions and incorporate some special provisions for airline flight crews. 

The new proposed regulations are in response to the National Defense Authorization Act for Fiscal Year 2012 which amended the FMLA to extend the military caregiver leave entitlement to eligible family members of certain veterans and to extend the qualifying exigency leave entitlement to eligible family members of the Regular Armed Forces. 

You can find the DOL’s Notice of Proposed Rulemaking here.   You can download the actual proposal (213 pages) here.   The DOL’s Frequenly Asked Questions (FAQ) are available here.   

What’s changed? According to the DOL, the major provisions include:

  • the extension of military caregiver leave to eligible family members of covered veterans with a serious injury or illness;
  • a flexible, three part definition for serious injury or illness of a veteran;
  • the extension of military caregiver leave to cover serious injuries or illnesses that result from the aggravation during military service of a preexisting condition for both current servicemembers and veterans;
  • the extension of qualifying exigency leave to eligible family members of members of the Regular Armed Forces;
  • inclusion of a foreign deployment requirement for qualifying exigency leave for the deployment of all servicemembers (National Guard, Reserves, Regular Armed Forces);
  • the addition of a special hours of service eligibility requirement for airline flight crew employees; and
  • the addition of specific provisions for calculating the amount of FMLA leave used by airline flight crew employees.

Before employers get too wrapped up in this, understand that these are just proposed regulations.  The DOL is soliciting comments and may make further changes before final release.  Employers who have an interest in the subject can submit their comments to the government’s website here.

Earlier this afternoon, President Obama signed the National Defense Authorization Act of 2010.  By doing so, he approved of several changes to the FMLA .  But before you rip up your existing FMLA policies, the provisions relate to the military-related leaves under the Act.  (H/T Ohio Employer’s Law Blog)  The changes as a whole expand the coverage and the availability of military family leave. 

Carl Bosland at the FMLA Blog summarizes the details:

  • Eligible employees will be able to take military caregiver leave for veterans who served in the regular Armed Forces, the Reserves within 5 years of the date the veterans undergoes medical treatment, recuperation, or therapy.  Currently, military caregiver leave is only available to care for current members of the Armed Forces, Guard, or Reserves.
  • Military caregiver leave is expanded to cover aggravation of existing or preexisting injuries incurred in the line of duty while on active duty. 
  • Qualifying exigency leave is expanded to cover members of the regular Armed Forces who are deployed to a foreign country.  Currently, qualifying exigency leave is only available for covered military members in the Reserves or Guard.

But of course, in Connecticut, this will only create another set of headaches. Connecticut just amended the state FMLA rules to be more consistent with the federal rules as they relate to military caregiver leave.  These new rules now create a significant difference between the state and federal rules.

Nevertheless, where the FMLA and the state FMLA conflict, employers in Connecticut must implement the more favorable of rules. Therefore, employers subject to FMLA in Connecticut

This past week, I received a DVD in the mail from an organization called Employer Support of the Guard and Reserve (ESGR).

While I have several friends and relatives serving in the military, I must confess that I hadn’t heard much about them before.

So what is ESGR?? Well, its a Department of Defense agency that seeks to promote a culture in which all American employers support and value the military service of their employees by recognizing outstanding support, increasing awareness of the law and resolving conflict through mediation. 

The website is chock full of information relevant to employers, including detailed sample policies and procedures to comply with USERRA (Uniformed Services Employment Reemployment Rights Act). 

The DVD, which is available from the website, is actually a 20 minute training video featuring short vignettes and easy-to-understand guides on the relevant law.  It highlights tricky issues such as how to deal with employees who may be out for short periods of time for reserve duty and how to deal with employees who have been deployed for months at a time. 

For a shorter video, I’ve embedded this clip from ESGR.  As we approach Veterans Day, the ESGR video and website are great ways for employers to stay on top of the law and support the military. 

Late last week, the Connecticut Senate approved a measure that would permit an employee to take up to 26 weeks of unpaid leave from work to care for family members who may have been injured in the line of military duty.  The bill (Senate Bill 710) is now on the House’s calendar for a vote within the next few weeks; it is likely to be approved.

The bill mirrors many of the provisions that were implemented last year in revisions to the federal FMLA

The Office of Legislative Research has done a good job summarizing the measure’s main provisions here

Notably, the measure has different provisions for private sector workers and state employees, so as the bill progresses, this distinction ought to be reviewed. 

The core provision of the bill, however, is the same for each — a one-time leave for each armed forces member per serious injury or illness incurred in the line of duty.  Employees who are immediate family members of those servicemembers or next of kin will be entitled to this leave.  If there are any nuances between federal and state law, the more generous of the two benefits will apply.

In the meantime, employers should make sure their FMLA policies reflect the current state of the law and, if they do have any requests for leaves to care for injured servicemembers, employers should check back on the status of this bill — if they are not already covered under federal law.

Continuing my series of posts on the new FMLA regulations (parts one and two can be found here), today I’ll address a big chunk courtesy morgue file "files"of what the new regulations cover – Military Family Leave.   

You may recall from a post earlier this year that Congress passed a new law that extended FMLA leave to military families in certain situations.  The new regulations (effective January 16, 2009) essentially implement the law in this area and give employers (and employees) some greater clarity about what is and is not allowed.

The Ohio Employer’s Blog has done a good job already of summarizing the provisions here. Many of the provisions just expand upon the law in some more detail, but a few areas are worth noting:

  • One provision of the new rule expands the normal 12 weeks of FMLA leave to eligible employees with a covered military member serving in the National Guard or Reserves to use for “any qualifying exigency” that arises because the military member is on active duty or is called to active duty to support an military operation. 

So what is a "Qualifying Exigency"? The DOL defined this term to include the following 8 situations: (1) short-notice deployment, (2) military events and related activities, (3) childcare and school activities, (4) financial and legal arrangements, (5) counseling, (6) rest and recuperation, (7) post-deployment activities, and (8) additional activities to address other events which arise out of the covered military member’s active duty or call to active duty status, provided the employer and employee agree that such leave shall qualify as an exigency, and agree to both the timing and duration of such leave.

  • Another provision of the statue allows for a Military Caregiver Leave where eligible employees who are family members of certain servicemembers will be able to take 26 weeks of protected leave in a "single 12-month period" to care for a servicemember with a serious illness or injury.

So what is a "single 12-month period"?  The new regulations state that a "single 12-month period" is a period that commences on the date an employee first takes leave to care for a covered servicemember with a serious injury or illness.

  • Additionally, the scope of individuals who are eligible for this caregiver leave is expanded beyond the traditional FMLA leave rules.  The new regulations use a "next of kin" definition to permit covered servicemembers specifically to designate in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave under the FMLA. If there isn’t any designation made, a class of individuals may qualify for such leave. Employers and employees should read the regulations carefully on this issue to address a particular situation. 
     
  • The new regulations follow a philosophy that the medical certifications necessary for this type of leave are different than those who are caring for family member with serious health conditions.  Thus, the new rule sets forth separate certification requirements for military caregiver leave. The DOL also created a new optional WH385 Form for use in obtaining medical certifications of Military Caregiver Leave.

Employers with employees who have family members serving in active duty should pay particular attention to these rules because they set up a different structure than is typically found with traditional FMLA leave.

Lastly, for employers in Connecticut, you should be aware that Connecticut’s FMLA rules have not yet changed.  Thus, each rule acts as a "floor" to provide employees with the maximum leave available under either law.  Hopefully, the Connecticut DOL will come out with some guidance soon to help clarify the continuing differences between state and federal law.  (A prior analysis by the CT DOL comparing and contrasting the FMLA with CTFMLA is available here.)

courtesy morgue file "paperwork" - As I reported on Friday, the U.S. Department of Labor has released final regulations implementing the Family and Medical Leave Act (FMLA).  The regulations (which you can dowload here) become effective on January 16, 2009.  At 750 pages, you need a book just to summarize the changes (and I’m sure one of the legal book publishers out there is already fast at work.)

60 days may seem like a long time away, but with the holidays coming up, these new regulations leave employers will little time to make the changes. Add to the fact that the ADA Amendments go into effect on January 1, 2009 and this represents a huge potential minefield.

 

For the remainder of the week, I’ll be summarizing what employers need to know now about the FMLA:

 

The Rules on What Employers are Covered by FMLA Are the Same, But Connecticut’s Rules Still Apply

Employers may first ask if they are covered by the FMLA.  The rules on who is a covered employer (as determined by the number of employees) haven’t changed.  Importantly, Connecticut’s FMLA rules (which differ in some important ways from the federal FMLA) haven’t yet been affected by this change. I’ll try to note, in an upcoming post, some of the differences between the two, but for now, employers in Connecticut should tread carefully when adopting any blanket changes as a result of the federal FMLA, without reviewing state law (and consulting an attorney where needed.)

 

The Important Takeaway From the New Regulations is Improved Communications and Collaboration

Overall, the new regulations require employees and employers to communicate better.  Whether its requiring more notices from the employer, or more information from employees, the regulations suggest that "hiding information" is frowned upon.  As a result, employers will need to update their policies and forms regarding FMLA.  Employees will also need to provide more updates about their leave, including providing sufficient notice where possible. 

 

Lots More Notice Requirements and New Forms to Use for Designating Leave

  • For employees, they must now follow their employer’s call-in policies regarding absences. Thus, if the employer has a policy of requiring employees who are going to be absent to call-in before work, FMLA-eligible employees must do at least the same. 
  • For employers, there are two new notice requirements. Employers will now need to use two forms (instead of the prior one): the first will tell employees of their FMLA eligibility and rights; the second will formally designate the leave as FMLA leave. Employers will now be required to use a new form (which had been optional) that tells employees of their eligibility to take leave within 5 business days. 
  • If employees are eligible for FMLA leave, then they must be given a notice of “Rights and Responsibilities” which tells employees of several obligations, including that they must provide medical certifications. 
  • Clarifying a prior issue, employers can now provide retroactive notice so long as the delay doesn’t cause any harm to the employee. In addition, employees and employers can agree that leave be retroactively designated as FMLA leave. 
  • Overall, if employers have been using any of the optional forms, there are several new forms available for use as well including new certifications and designation of leave forms. 

In upcoming posts, we’ll cover some of the other changes. Here are some previews:

  • New regulations defining what is a “chronic condition” and other parameters for chronic conditions and intermittent leave;
  • New rules that prohibit direct supervisors from getting employee’s medical information;
  • New guidance on how to substitute paid leave for FMLA leave;
  • New medical certifications that distinguish between employee and family member “serious health conditions”
  • Information on the “Bermuda Triangle” – the interplay between the ADA, FMLA and workers’ compensation. 
  • More guidance on when employers can request medical certifications and recertifications as well as fitness for duty certifications. 

Lastly, there are new rules that will govern military leave as well. The new regulations clarify how to implement the expanded 26 weeks of unpaid FMLA caregiver leave for relatives of seriously injured or ill service members.

Following up on my earlier post about Monday’s official release of the new FMLA regulations, the regulations are now available electronically a few days before.

You can download a copy here (though you are forewarned that it is over 700 pages long — about 2 MB). 

A cursory review of the document shows that the first 550 pages or so contain extensive discussion of the changes in the new rules with the specific feedback received from employer and employee groups.  (My prior post in February summarized the draft regulations.) The actual regulations start on page 556.

For employers, the regulations will provide some helpful guidance in the area of military leaves.  Since the new military FMLA went into effect early in 2008, employers have been left to struggle with how to reconcile the new law with the differences that exist in the military law. The new regulations attempt to resolve those issues.

I’ll be posting updates on further specifics as we digest this massive document but as I said before, the new regulations will not take effect until January 16, 2009.

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