Core Provisions: This legislation includes provisions that extend the FMLA provision of 12 weeks of unpaid leave up to 26 weeks of leave for an employee who is the spouse, child, parent or next of kin of a service member. Extending FMLA leave to military families was one of the recommendations of the President’s Commission on Care for America’s Returning Wounded Warriors. The National Defense Authorization Act also increases whistleblower protections for employees of defense contractors. Disclosures by contractor employees are currently protected if such disclosures are (1) made to a member of Congress and (2) reveal information “relating to a substantial violation of law related to a contract.” The new provision protects disclosures to more government actors, including an inspector general and the GAO, and protects disclosures of information that employees reasonably believe indicate gross mismanagement or waste of defense contract funds, or unlawful activity related to a Department of Defense contract “including the competition for or negotiation of a contract.”

Status: On December 12, 2007, the House adopted the National Defense Authorization Act conference report by a vote of 370 to 49. On December 14, 2007, the Senate passed the conference report by a vote of 90 to three and sent it to the President for his signature. President Bush unexpectedly vetoed the legislation on December 28, 2007. On January 16, 2008, a modified version of the National Defense Authorization Act (H.R. 4986) was introduced that addresses the President’s stated concerns with the original legislation. On January 16, 2008, the House passed H.R. 4986 by a vote of 369 to 46. The Senate passed the bill without amendment on January 22, 2008 by a vote of 91 to 3. The president signed the bill on January 28, 2008. In his signing statement, President Bush asserted that certain provisions of the bill - including the whistleblower protections for contractor employees - “purport to impose requirements that could inhibit the President’s ability to carry out his constitutional obligations to take care that the laws be faithfully executed, to protect national security, to supervise the executive branch, and to execute his authority as Commander in Chief. The executive branch shall construe such provisions in a manner consistent with the constitutional authority of the President.”

On February 1, 2008, the Employee Benefits Security Administration (EBSA) released a Field Assistance Bulletin to guide field investigators on the responsibilities of plan fiduciaries and trustees to monitor and collect delinquent employer and employee contributions owed to employee benefit plans governed by ERISA. The bulletin was written after several EBSA investigations revealed arrangements purported to relieve the financial institutions serving as plan trustees of any responsibility to monitor and collect delinquent contributions.

The complete text of the Field Assistance Bulletin 2008-01 is available at: http://www.dol.gov/ebsa/regs/fab2008-1.html.

On January 25, 2008, President Bush submitted three nominations for open seats on the National Labor Relations Board, including Republicans Robert J. Battista and Gerard Morales, and Democrat Dennis P. Walsh.

Battista, a former NLRB chairman, completed his five-year term on December 16, 2007. Prior to being appointed to the Board, Battista was a labor and employment management-side lawyer at a law firm in Detroit. If confirmed, Battista will serve for the remainder of a five-year term expiring on December 16, 2009. The president has also designated Battista to serve as chairman upon confirmation.

Morales is currently a management-side lawyer at the law firm of Snell & Wilmer L.L.P. in Arizona. Morales previously served as a field attorney with the Board and has written several articles concerning labor law in the United States and Mexico. The president has nominated Morales to serve a five-year term expiring on December 16, 2012.

Walsh is a former Board member who served as a recess appointee under President Bush from January 17, 2006 through December 31, 2007. Prior to being temporarily appointed by President Bush, Walsh served as a recess appointee from December 30, 2000 to December 20, 2001 under former President Clinton. Walsh has an extensive history of government service. Prior to being a Board Member, Walsh served as special assistant to Board Member Wilma Liebman, and chief counsel to Board Member Margaret Browning. If confirmed, Walsh will serve for the remainder of a five-year term expiring on August 27, 2008, and an additional five-year term expiring on August 27, 2013.

Bush’s recent appointments have already garnered some negative criticism. Senator Edward M. Kennedy posted the following statement on his Web site: “It’s unbelievable that President Bush would renominate Mr. Battista to the Board, after he led the most anti-worker, anti-labor, anti-union Board in its history.” Kennedy also stated that the President’s nominations demonstrate the Administration’s “hostility to fairness and justice in the workplace.”

AFL-CIO President John Sweeney stated that President Bush’s nominations to the Board were a “blatant attempt to keep a labor board with unbalanced, anti-worker bias, and they would be poisonous to America’s working families.”

The three nominations have been sent to the Senate for confirmation. It is unclear at this point how quickly the Senate will act, especially considering that President Bush’s previous nominees, Dennis P. Walsh and Peter J. Kirsanow, were awaiting confirmation for over two years. In the same announcement, President Bush also withdrew his prior nomination of Kirsanow to the Board.

On January 23, 2008, OSHA announced that it has extended the public comment period for the proposed rulemaking for Confined Spaces in Construction by 30 days to February 28, 2008. The proposed rule was published on November 28, 2007 to increase the protection provided to construction employees working in confined spaces. For details regarding the proposed rulemaking and specific requests for comment, please consult a prior Washington Labor & Employment Wire article at the following link http://akingumpinfo.com/ve/ZZ5800R91W92KV87Nj86/VT=0/page=2#osha2.

Comments may be submitted by either: (1) posting the comments electronically through the Federal eRulemaking Portal at http://akingumpinfo.com/ve/d907781WWHW90n59q3/stype=click/OID=407122715214658/VT=0, (2) sending three copies to the OSHA Docket Office, Docket No. 2007-0026, Room N-2625, U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, D.C. 20210 or (3) faxing the comments to 202-693-1648.

On January 25, 2008, OSHA issued an interpretation letter regarding its “Control of Hazardous Energy (Lockout/Tagout)” standard, § 1910.147. This standard “covers the servicing and maintenance of machines and equipment in which the unexpected energization or start up of the machines or equipment, or release of stored energy could cause injury to employees.” The standard, however, contains the following exception:

Minor tool changes and adjustments, and other minor servicing activities, which take place during normal production operations, are not covered by this standard if they are routine, repetitive, and integral to the use of the equipment for production, provided that the work is performed using alternative measures which provide effective protection.

The question posed to OSHA was as follows:

“With regard to the minor servicing exception [contained in §1910.147(a)(2)(ii) note], would the described PLC system meet the definition of an alternative measure which provides effective protection?”

The programmable logic controller (PLC) mentioned in the question above was designed to open all ungrounded supply conductors by two contractors wired in series and to isolate power to all points of operation that the operators may come in contact with during the service work. OSHA concluded that the PLC was not an energy isolating device under § 1910.147(b), which is defined as “a mechanical device that physically prevents the transmission or release or energy.” Therefore, the PLC was presumed to be an ineffective employee protection from injuries resulting from hazards such as component failure, program errors, magnetic field interference, electrical surges and improper use or maintenance.

However, OSHA also stated a PLC could be an alternative measure if the employer can demonstrate that the PLC provides effective employee protection with a system hazard analysis. To meet this requirement, the PLC must be individually designed, installed, used and maintained in accordance with the generally recognized good engineering practices to protect employees from hazardous energy sources during the minor servicing activities. If OSHA approves the PLC, the employer can only use it to protect employees who are performing routine, repetitive and integral minor tools and adjustments or other minor servicing activities that occur during normal production operations.

On January 30, 2008, OSHA requested nominations for five individuals to serve on the National Advisory Committee on Occupational Safety and Health. The committee advises the secretaries of Labor and Health and Human Services on occupational safety and health programs.

OSHA will accept nominations for a two-year term in the following positions: two public representatives, one management representative, one safety representative and one health representative. To nominate an individual for any of these positions, OSHA requires the individual’s name, occupation, address, telephone number, nominated position and a resume describing the individual’s background, experience, and qualifications.

Nominations must be submitted by February 29, 2008. Nominations may be submitted by: (1) posting the comments electronically through the Federal eRulemaking Portal at http://www.regulations.gov/, (2) sending three copies to the OSHA Docket Office, Room N-2625, U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, D.C., 20210 or (3) faxing the comments to 202-693-1648.

On February 1, 2008, OSHA announced a new National Emphasis Program that targets worksites where employees are at risk for developing silicosis, a disabling, nonreversible, and sometimes fatal lung disease caused by breathing in a large amount of crystalline silica.

This program builds upon the 1996 Special Emphasis Program, which included the following—

• a list of industries commonly known to have overexposure to silica
• detailed information on potential hazards linked to silica and about current research regarding silica exposure hazards
• guidance on calculating silica in the construction and maritime industries
• guidance on conducting silica-related inspections.

This National Emphasis Program also adds two components to the 1996 program: (1) an evaluation procedure for recording reductions of employee exposures to silica, and (2) information on outreach programs, partnerships and alliances with employers to share resources and training to reduce employee exposures.

After vetoing the National Defense Authorization Act for FY 2008 (NDAA) earlier this month because of concerns over an unrelated provision dealing with Iraqi liability, President George W. Bush signed a revised NDAA into law on January 28, 2008. Section 585 of the NDAA amends the FMLA to permit a “spouse, son, daughter, parent, or next of kin” to take up to 26 work weeks 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.”

Employers should immediately advise their human resources department about this expanded scope in coverage. The FMLA amendment in the NDAA providing this leave is effective immediately. While the Department of Labor is currently in the process of preparing better guidance regarding rights and responsibilities under the new legislation, employers will still be liable for any violations of the new laws in the absence of comprehensive guidance.

The new amendment allows an employee to take FMLA leave for “any qualifying exigency (as the Secretary [of Labor] shall, by regulation, determine) arising out of the fact that 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.” By its express terms, this provision of the NDAA is not effective until the secretary of Labor issues final regulations defining “any qualifying exigency.”

On February 11, 2008, the Department of Labor (DOL) issued a Notice of Proposed Rulemaking, proposing numerous changes to the Family and Medical Leave Act (FMLA) regulations, and calling for public comment before the regulations become final. The draft regulations would change employers’ and employees’ responsibilities under the FMLA and would also change the procedure for taking FMLA leave. While there are numerous changes to the current regulations, employers should take special note of several new issues discussed below. For a more in-depth discussion of the proposed changes, please watch for a comprehensive analysis we will be distributing in the coming days.

Intermittent leave. Despite the fact that most employers consistently identified intermittent leave as the most troublesome part of the FMLA, the DOL has proposed no change to the current regulation allowing workers to take leave in the smallest increment of time permitted under the employer’s timekeeping system for intermittent leave. Instead, the DOL has tried to assuage employers’ concerns over intermittent leave by requiring employees to follow the workplace call-in procedures if they want to take unscheduled, intermittent leave. Currently, employees can take leave and then designate it as FMLA-qualifying leave within two days of the absence. The proposal only allows such an approach in the case of emergencies.

Employee notice requirement. The proposed regulations clarify past ambiguities and impose two notice timeframes: (1) for non-emergency situations, the new regulations would retain the old regulations’ 30-days notice, and (2) for emergency situations, the new regulations would require employees to inform the employer the same day they learn of the need for FMLA leave (if the employee learns of the infirmity during work hours) or the next day (if the employee learns after work hours).

Employer notification process. Proposed § 825.300(b) would give employers five days to inform employees that they are eligible for FMLA leave after an employee has informed the employer of circumstances suggesting that the employee would need FMLA leave. This extends the previous two-day requirement.

Medical certification process. Under the proposed regulations, employers would be able to contact medical providers directly to obtain clarification or authentication of documentation. Under the current rule, that communication may take place only between a health care provider who works for the employer and the employee’s health care provider. This proposal complies with the Health Insurance Portability and Accountability Act’s (HIPAA) privacy rule because a health care provider would still need permission from the patient in order to talk to the employer. If the patient does not give permission, the draft regulations would view that failure to give permission as a failure to provide proper certification if concerns arise about the certification.

“Light-duty.” The proposed regulations clarify that workers on “light-duty” after returning from FMLA-qualifying leave should not have the time count against the employee’s 12 weeks of FMLA leave.

On January 29, 2008, the House Education and Labor Committee held a hearing to evaluate the proposed ADA Restoration Act of 2007 (H.R.3195, S.1881), which purports to “restore” Americans with Disabilities Act (ADA) protections to those originally intended by Congress in 1990. The bill, introduced in August 2007 with bipartisan support, would remove the requirement that a claimant’s disability must “substantially limit” his or her ability to perform “major life activities” in order to be protected by the ADA and, in most circumstances, would no longer permit courts to consider “mitigating measures” in determining whether an individual is “disabled” under the statute.

House Majority Leader Steny Hoyer (D-MD), a leading figure in the ADA’s 1990 passage and co-sponsor of H.R. 3195, testified that the bill was a response to a series of Supreme Court decisions that had narrowed the ADA’s scope and undermined its intent.

Although Congress took the definition of “disability” directly from the Rehabilitation Act of 1973, which had given broad meaning to the term, Rep. Hoyer explained that courts had narrowed the term in recent years to exclude diabetes, epilepsy, heart conditions, cancer and mental illness. Professor Robert Burgdorf, a leading disability law scholar who helped craft the original ADA, contended that the courts have “basically rewritten” the definition of the term. Hearing chairman Rep. Robert Andrews (D-NJ) decried such rulings as constituting an “imbalance in the scales of justice.” Rep. Hoyer explained that the new legislation would not expand any rights, but simply restore the scope of the ADA’s protections.

The Committee heard from Carey L. McClure, an electrician and unsuccessful 5th Circuit ADA plaintiff suffering from muscular dystrophy. McClure, who was unable to raise his arms above shoulder-level, was denied an electricians’ job with General Motors after failing a physical due to his condition, even though he was otherwise qualified for the position if provided minor accommodation. McClure explained to the Committee that courts found him not to be “disabled” under the ADA, even though he suffered from a significant disease that led to the revocation of his job offer.

Andrew J. Imparato, president and CEO of the American Association of People with Disabilities, contended that courts analyzing ADA claims have unduly focused on irrelevant intimate details of the personal lives of employees, rather than examining whether disability discrimination occurred and whether the employee or applicant was qualified for the position. In support of his contention that courts have strayed from the ADA’s original intent to provide broad protections to disabled individuals, Imparato cited one case in which a court stated that it was uncertain whether thinking, communication and social interaction would be covered “major life activities” under the ADA. There, the court concluded that an adult plaintiff with the mental age of an eight-year-old was not “disabled” under the ADA.

The panel also discussed the “Catch-22″ that currently exists under the ADA, where employees are required to show disability and qualification. With the demanding standard of proof required to show disability of applicants and employees, plaintiffs are forced to present evidence that undercuts their requirement of demonstrating that they are qualified for the position.

Although he joined his colleagues in expressing alarm at McClure’s plight, Committee Ranking Member Howard “Buck” McKeon (R-CA) expressed concern that H.R.3195 might have unintended consequences, and could impose significant costs and litigation on employers by covering employees with insignificant and temporary injuries and afflictions, potentially distracting from the goal of protecting those with the significant disabilities and “diluting” their protections under the ADA. Rep. McKeon urged that the bill face amendments, rather than being fast-tracked to the floor in its current state.

In support of this view, David Fram of the National Employment Law Institute testified that the bill as currently written - removing the requirement of a substantial limitation of a major life activity - could be logically read to cover all impairments, including sprained ankles, the flu and even baldness. Fram explained that the “restored” ADA would force employers to provide reasonable accommodations for these minor afflictions, potentially undercutting their ability to accommodate those with legitimate disabilities. He further described how the expanded definition of “disability” under H.R.3195 would interact with the current ban against pre-offer questions relating to the disability. Because applicants with broken legs or head colds could be considered disabled, employers would be in violation of the law if they asked, “How did you break your leg?” or “Do you have a cold?” Fram further expressed concerns that the bill could potentially lead to a flood of litigation.

In response to these concerns, Rep. Andrews pointed to various state ADA-analogs with broader definitions of “disability” - none of which covered the baldness, chipped teeth and the other extreme examples cited by Fram. Burgdorf and Imparato further explained that, under H.R.3195, employees are not entitled to time off for any claimed affliction. Rather, they would be entitled only to accommodation “that enables them to do the essential functions of the job.” To be protected under the “restored” ADA, those with minor afflictions would have to demonstrate that the affliction hinders an essential job function. Rep. Hoyer disputed the assertion that ADA plaintiffs no longer would have to prove they were “qualified” for the job in question.

Fram agreed that the Supreme Court had overlooked clear legislative history that forbade the consideration of mitigating measures, and Congress could address its concerns merely by preventing courts from looking into mitigating measures, rather than altering the substantial limitation inquiry.

As indicated in a letter to the Committee, the Justice Department’s Office of Legislative Affairs opposes the legislation as currently drafted, citing the prospect of increased “unnecessary” litigation and explaining that H.R.3195 would “upset the balance” struck in the original ADA. Similar to Fram, the Justice Department recommends that the ADA only be amended to evaluate disabilities in the absence of mitigating measures, except for individuals using eyeglasses or contact lenses to correct sight impairments.