Deprecated: Assigning the return value of new by reference is deprecated in /nfs/c02/h05/mnt/29876/domains/washlaborwire.com/html/wp-includes/cache.php on line 36

Deprecated: Assigning the return value of new by reference is deprecated in /nfs/c02/h05/mnt/29876/domains/washlaborwire.com/html/wp-includes/query.php on line 21

Deprecated: Assigning the return value of new by reference is deprecated in /nfs/c02/h05/mnt/29876/domains/washlaborwire.com/html/wp-includes/theme.php on line 540
Washington Labor & Employment Wire » FMLA

Family and Medical Leave Enhancement Act of 2009 (H.R. 812)

Core Provisions: This legislation would expand the Family Medical Leave Act (FMLA) in several ways. First, employees would be able to take additional leave to participate in or attend their children’s and grandchildren’s educational and extracurricular activities. Second, an employee could take FMLA leave to attend routine family medical needs and to assist elderly relatives. Third, the bill would narrow an existing exclusion for employers who have less than 50 employees, changing the exclusion to apply only to employers with less than 25 employees. Fourth, the Act would explicitly sanction intermittent leave. Fifth, the legislation would allow for the substitution of accrued vacation, personal, or sick leave for FMLA leave. Finally, the bill would require either seven days’ notice or “as much notice as is practicable” in order to use the FMLA leave. 

Status: Rep Maloney, Carolyn B. (D-NY) introduced the bill on February 3, 2009, and it was referred to the Committees on Education and Labor, Oversight and Government Reform, and House Administration.


Family Fairness Act of 2009 (H.R. 389)

Core Provisions:  This legislation would eliminate the current requirement that an employee has been employed for at least 1,250 hours of service with his or her employer during the previous 12-month period in order to be eligible for leave under the Family and Medical Leave Act (FMLA). An employee would still be required to have worked at least twelve months for his or her employer in order to qualify for FMLA leave.

Status:  Rep. Baldwin (D-WI) introduced H.R. 389 on January 9, 2009, and it was referred to the House Committees on Education and Labor, Oversight and Government Reform, and House Administration.


Legislation Creating Paid Family Leave Insurance Fund Introduced in House of Representatives


Deprecated: Function split() is deprecated in /nfs/c02/h05/mnt/29876/domains/washlaborwire.com/html/wp-content/plugins/google-analytics-for-wordpress/googleanalytics.php on line 481

Deprecated: Function split() is deprecated in /nfs/c02/h05/mnt/29876/domains/washlaborwire.com/html/wp-content/plugins/google-analytics-for-wordpress/googleanalytics.php on line 481

Deprecated: Function split() is deprecated in /nfs/c02/h05/mnt/29876/domains/washlaborwire.com/html/wp-content/plugins/google-analytics-for-wordpress/googleanalytics.php on line 481

Deprecated: Function split() is deprecated in /nfs/c02/h05/mnt/29876/domains/washlaborwire.com/html/wp-content/plugins/google-analytics-for-wordpress/googleanalytics.php on line 481

Deprecated: Function split() is deprecated in /nfs/c02/h05/mnt/29876/domains/washlaborwire.com/html/wp-content/plugins/google-analytics-for-wordpress/googleanalytics.php on line 481

Deprecated: Function split() is deprecated in /nfs/c02/h05/mnt/29876/domains/washlaborwire.com/html/wp-content/plugins/google-analytics-for-wordpress/googleanalytics.php on line 481

Deprecated: Function split() is deprecated in /nfs/c02/h05/mnt/29876/domains/washlaborwire.com/html/wp-content/plugins/google-analytics-for-wordpress/googleanalytics.php on line 481

On April 22, 2008, Rep. Stark (D-CA) introduced legislation that would create a Family and Medical Insurance Program providing twelve weeks of paid family and medical leave. The Family Leave Insurance Act of 2008 (H.R. 5873) would create a federal insurance fund established and administered by the Secretary of Labor. The fund would provide benefits for employees taking leave (1) because of a serious health condition, (2) upon the birth or adoption of a child, (3) in order to care for a family member, (4) due to any qualifying emergency arising from the fact that a spouse, child, or parent of the employee is on active military duty, or (5) in order to care for a family member who is a covered service member. Under the benefits proposal, most employees would contribute 0.2 percent of their annual earnings, and employers would match employee payments. Benefit amounts would be tiered progressively according to income level and indexed for inflation under the Social Security wage index. The bill would allow employers with an equivalent or better paid-leave plan to opt out of participating in the insurance fund.

The legislation also prohibits an employer from interference, discrimination, or retaliation concerning an employee’s exercise of rights under the act, and would give employees a corresponding private right of action. The Secretary of Labor would have investigative authority and would be authorized to bring an administrative or civil action. The bill also provides criminal penalties for knowingly submitting or helping another to submit a false certification in order to fraudulently collect benefits.    

Similar legislation introduced by Sen. Dodd (D-CT) on June 21, 2007 as the Family Leave Insurance Act of 2007 (S. 1681) has been referred to the Senate Finance Committee.  In addition, there are several other pending bills that would expand FMLA coverage, including the Crime Victims Employment Leave Act (H.R. 5845), Healthy Families Act of 2007 (H.R. 1542, S. 910), Family and Medical Leave Expansion Act (H.R. 1369), FMLA Amendment (H.R. 5090), and Military Family Job Protection Act (H.R. 3993, S. 1885).


Family Leave Insurance Act of 2008 (H.R. 5873)

Core Provisions:  This act would create a federal insurance fund similar to the unemployment benefits scheme to provide twelve weeks of pay for employees taking leave (1) because of a serious health condition, (2) upon the birth or adoption of a child, (3) in order to care for a family member, (4) due to any qualifying emergency arising from the fact that a spouse, child, or parent of the employee is on active military duty, or (5) in order to care for a family member who is a covered service member.Employees would contribute 0.2 percent of their annual earnings, and employers would match employee payments. Benefit amounts would be tiered progressively according to income level, and indexed for inflation under the Social Security wage index. The bill would allow employers with an equivalent or better paid-leave plan to opt out of participating in the insurance fund.

The legislation explicitly includes caring for a sick or injured “domestic partner” and, for those states that do not acknowledge same-sex domestic partnerships, defines domestic partner to include “a single, unmarried adult person of the same sex as the employee who is in a committed, intimate relationship with the employee, . . . and who is designated to the employer by such employee as that employee’s domestic partner.” The bill also prohibits an employer from interference, discrimination, or retaliation concerning an employee’s exercise of rights under the benefit scheme, and would give employees a corresponding private right of action. 

The bill grants the Secretary of Labor investigative authority, as well as authority to bring an administrative or civil action. The bill also provides criminal penalties for knowingly submitting or helping another to submit a false certification in order to fraudulently collect benefits. 

Status: H.R. 5873 was introduced by Rep. Stark (D-CA) on April 22, 2008, and referred to the House Committees on Education and Labor, Oversight and Government Reform, and Ways and Means.


House Subcommittee Holds Hearing on Family and Medical Leave Act


Deprecated: Function split() is deprecated in /nfs/c02/h05/mnt/29876/domains/washlaborwire.com/html/wp-content/plugins/google-analytics-for-wordpress/googleanalytics.php on line 481

On April 10, 2008, the House Subcommittee on Workforce Protections held a hearing on the FMLA that focused on proposed changes and potential areas of improvement. Chairwoman Woolsey (D-CA) expressed concerns about the Department of Labor’s proposed FMLA regulations, and endorsed two pending pieces of legislation: The Balancing Act of 2007 (H.R. 2392) and The Healthy Families Act of 2007 (H.R. 1542, S. 910).  The Balancing Act of 2007 would provide paid family medical leave, benefits for part-time workers, and additional leave for parental involvement activities. The Healthy Families Act of 2007 would require employers to provide workers with at least seven days of paid sick leave and pro-rated leave for part-time employees. 

Chante Lasco, a recent new mother, testified about the difficulty employees face when attempting to take advantage of the FMLA’s twelve weeks of guaranteed leave because the leave may be unpaid. Lasoc also shared the difficulties of returning to work only twelve weeks after giving birth, including the difficulty in finding and paying for child care for a twelve-week-old infant.

Victoria Lipnic, Assistant Secretary of the Employment Standards Administration division of the Department of Labor, spoke primarily about the Department’s proposed FMLA regulations.  Lipnic asserted that the Department currently has four main rulemaking goals: (1) to address the recently enacted military family leave provisions; (2) to update the regulations to comport with current case law; (3) to foster smoother communications among employees, employers, and health care professionals; and (4) to update and clarify specific problematic areas of the current FMLA regulations without limiting employee access to FMLA leave.

Among other revisions, the proposed rule:

  • requires employees to give more advance notice of the intention to take FMLA leave;
  • attempts to clarify the medical certification requirements;
  • permits an employer to contact an employee’s health care provider directly for purposes of clarification and authentication of the serious health condition;
  • imposes increased notice requirements on employers;
  • changes the standard for determining the relevant “worksite” for coverage determination purposes in a joint employment situation;
  • changes requirements regulating the interaction between FMLA leave and light duty work;
  • clarifies that an employee cannot waive prospective rights but may settle claims based on past employer conduct; and
  • removes categorical penalty provisions while retaining an employee’s entitlement to remedy for individualized harm.

For more complete coverage of the proposed rulemaking, please see Akin Gump’s recent Employment Alert.

Debra Ness, President of the National Partnership for Women and Families, criticized the proposed regulations. Ness claimed that the proposed changes would make it more difficult for employees to use FMLA leave because of increased notification and certification requirements.  In addition, the new rule would increase direct contact between employers and employees’ health care providers, a matter of concern for employees with serious health conditions that carry social stigma. Ness’s proposals for expanding FMLA included reducing the employer-size threshold, removing job tenure requirements for leave eligibility, extending coverage to include leave to care for all domestic partners and extended family members, and implementing a federal minimum standard of paid sick days for all employees.

Brenda Cossette testified on behalf of the Society for Human Resource Management, a professional association representing more than 225,000 HR professionals who administer FMLA leave on a daily basis. Cosette praised the FMLA generally, but warned that unintended consequences require regulatory clarification in areas not addressed by the proposed rule.  Cossette recounted common challenges HR professionals encounter, including administering unscheduled intermittent leave and interpreting the definition of a “serious health condition.”  Cossette reported that employers are facing habitual employee absenteeism or tardiness with limited tools for determining when the leave is legitimate. Furthermore, the availability of intermittent leave for chronic conditions, which allows leave to be taken in unpredictable, unscheduled, and small increments of time, poses significant challenges in the reallocation of absent employees’ work. Cossette also warned that proposals to expand FMLA without first addressing its flawed framework, including paid leave mandates, would be ill-advised.


Crime Victims Employment Leave Act (H.R. 5845)

Core Provisions: This act would expand the FMLA by permitting employees to use FMLA leave “to attend court proceedings relating to the prosecution of a person for a violent crime (including domestic violence) committed against the employee, a spouse, parent, son, or daughter of the employee, or other next of kin of the employee.” Whenever possible, the employee would be required to give the employer at least two weeks notice of the intention to take the leave. The employer would be able to require the employee to supply certification issued by a court or prosecutor relating to the court proceeding for which leave is taken.

Status: H.R.5845 was introduced by Rep. Emanuel (D-IL) on April 17, 2008, and referred to the House Committees on Education and Labor, Oversight and Government Reform, and House Administration.


Military Family Job Protection Act (H.R.3993, S.1885)

Core Provisions: This act would alter the Family and Medical Leave Act (FMLA) to provide up to a full year of job protection, including protection from denial of any employment benefit or promotion, for any family member caring for a recovering service member at a military medical facility.

Status: H.R.3993 was introduced in the House by Rep. Altmire (D-PA) on October 30, 2007 and was referred to the House HELP Subcommittee on January 15, 2008.  S.1885 was introduced in the Senate by Sen. Obama (D-IL) on July 26, 2007 and was referred to the HELP Committee.


FMLA Expanded to Cover Military Family Leave and DOL Proposed New FMLA Regulations


Deprecated: Function split() is deprecated in /nfs/c02/h05/mnt/29876/domains/washlaborwire.com/html/wp-content/plugins/google-analytics-for-wordpress/googleanalytics.php on line 481

Enacted in 1993, the federal Family and Medical Leave Act (FMLA) provides that covered employers must grant eligible employees up to 12 weeks of unpaid leave within a 12-month period for (1) the birth and care of a newborn child, (2) the adoption of a child, (3) the care of an immediate family member with a serious health condition or (4) medical leave when the employee himself or herself is unable to work due to a serious health condition.

Recently President Bush signed into law the National Defense Authorization Act of 2008 (NDAA), which extends the FMLA to allow leave in certain circumstances to care for a family member who has served in the Armed Forces. Some of the provisions of the NDAA are effective immediately, and employers should amend their policies to reflect these new provisions.

In addition, as the result of complaints from both employers and employees, the Department of Labor (DOL) has recently begun the process of making substantial revisions to the FMLA’s implementing regulations for the first time since the FMLA was enacted. The DOL recently issued a Notice of Proposed Rulemaking proposing numerous changes to the FMLA’s implementing regulations, and calling for public comment before the regulations become final. In addition to certain minor changes and general reorganization of the regulations for ease of reference, the draft regulations propose numerous substantive changes to the current regulations, the most pertinent of which are summarized and contained in the chart, which is available if you follow the link below.

The DOL’s proposed regulations also leave certain major issues unaddressed. Most significantly, with respect to intermittent FMLA leave, numerous comments were generated during the comment period on the issue of whether an entire shift should be chargeable as FMLA leave to an employee who takes intermittent leave and has a job that precludes commencing work midway through a shift (e.g., a flight attendant who takes one hour of leave, causing that employee to miss a 12-hour scheduled flight assignment). While the DOL has proposed no changes to the current regulations at this time, it seeks additional comment from the public on this issue and what language should be included in the final rule, if any. 

Please Click here to read the full text of this Akin Gump Client Alert.


National Defense Authorization Act (H.R.1585 & H.R.4986) Conference Report (H.Rept.110-447)

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.”


FMLA Amendment (H.R.5090)

Core Provisions: H.R.5090 would amend the FMLA to make the eligibility requirements more lenient for the family members of wounded veterans. Currently, an employee must have worked for at least 1,250 hours for their employer during the previous 12-month period in order to be an “eligible employee” for FMLA purposes. H.R.5090 would lessen that requirement to 625 hours for a veteran’s spouse, parent, son or daughter taking leave to care for the covered service member.

Status: H.R.5090 was introduced by Rep. Barrow (D-GA) on January 22, 2008, and referred to the House Committees on Education and Labor, Oversight and Government Reform, and House Administration.