Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

The FY 2010 NDAA also extended the military caregiver leave to include care for certain veterans as well as active members of the armed forces. Military caregivers may take up to six months (26 workweeks) of leave in a 12-month period to care for a covered service member or veteran with a serious service-related injury or illness. This leave may be taken up to five years after the service member leaves the military, and for serious injuries or illnesses that result from a condition that predates the service member’s active duty, but was exacerbated by the military service. Before the FY 2010 NDAA was enacted, FMLA leave for military caregiving was available only to employees caring for family members who were current service members.

This leave is not calculated using the calendar-year method. Rather, the caregiver may take this leave in a single 12-month period, which begins on the first day the employee takes leave and ends 12 months later. The Department is proposing to permit second and third opinions on military caregiver leave certifications that are completed by health care practitioners who are not affiliated with the military or Veterans Administration.

As discussed in a fact sheet on the proposal, key elements of the proposed rule include the following:

• Caregiver leave under the FMLA is extended to eligible family members of recent veterans with a serious injury or illness incurred in the line of duty.
• The rule creates a three-part definition for serious injury or illness of a veteran in order to qualify caregivers for the expanded FMLA coverage.
• Military caregiver leave is extended to cover serious injuries or illnesses for both current service members and veterans that result from the aggravation during military service of a preexisting condition.
• The use of qualifying exigency leave is extended to eligible employees with covered family members serving in the regular Armed Forces, not just for the National Guard.
• The proposal includes a foreign deployment requirement for qualifying exigency leave for the deployment of all service members (National Guard, Reserves, Regular Armed Forces).

Airline Flight Crew FMLA Entitlement

The Airline Flight Crew Technical Corrections Act (AFCTCA) allows more airline employees to avail themselves of leave under the FMLA as well. The Act’s intent was to close a perceived loophole in the FMLA’s hours of service requirements for pilots and flight attendants whose unconventional work schedules often failed to qualify them for FMLA leave. In order to be entitled to FMLA leave, employees must have worked for their employer for at least 12 months and for at least 1,250 hours during the previous 12-month period, which equates to at least 60 percent of a standard 40-hour work week. Under the Fair Labor Standards Act (FLSA), which is used to determine the number of hours worked for FMLA purposes, some courts concluded that the time pilots and flight attendants spent on the job between flights and on mandatory standby do not count as “hours worked.” The AFCTCA provided that that the hours pilots or flight attendants work or for which they are paid – not just those spent in actual flight – count toward the minimum hours calculation. Under the revised eligibility rules, flight crew employees will meet the hours of service requirement if they have worked or been paid for not less than 60 percent of the applicable total monthly guarantee and have worked or been paid for not less than 504 hours during the 12 months prior to their leave.

The proposed rule implementing these changes details the special hours of service eligibility requirement for airline flight crew employees, and includes specific provisions for calculating the amount of FMLA leave used by airline flight crew employees.

In addition, according to a set of frequently asked questions (FAQs) on the changes made by the new proposal, the proposed rule also seeks to

delete a provision that was added to the regulations in 2009 which allows employers to utilize different increments of FMLA leave at different times of day under certain circumstances. The Department’s enforcement experience indicates some confusion over the application of this provision. In response to the apparent confusion, the Department proposes to delete this provision of the regulations in favor of the more general principle of calculating FMLA leave usage using the employer’s shortest increment of leave at any time.

The proposed rule also seeks to clarify the employer’s responsibility to reinstate an employee after FMLA leave. The 2009 regulations added a new provision that permits an employer to delay reinstatement where it is physically impossible for the employee to return to his or her job in mid-shift (for example, if the employee works in a locked clean room). According to the FAQs, the Department “is concerned that some employers may have misinterpreted the concept of physical impossibility to apply to circumstances where it is merely inconvenient to reinstate the employee mid-shift, ” and the proposed rule would “clarify the narrow scope of this regulatory provision.” The Department also proposes to remove the optional-use forms and notices from the regulations’ Appendices. The forms will continue to be available on the Wage and Hour Division Web site.

More information on the proposal can be found on the Wage and Hour Division’s rulemaking page. In addition, see Littler's ASAP: DOL Releases Proposed Rule Expanding Leave Entitlement for Military Caregivers and Flight Crew Members.

Comments to the proposed rule are due 60 days after it is published in the Federal Register, and must include the Regulatory Information Number (RIN) 1235-AA03. Input may be submitted electronically through the federal eRulemaking Portal or sent by mail to Mary Ziegler, Director of the Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3510, 200 Constitution Avenue, N.W., Washington, D.C. 20210.

Photo credit:  Kirby Hamilton

EFCA

Democratic senators may be dropping the “card check” provision in EFCA in order to gain support for its passage.

Health Care

House Democrats formally unveiled their 1,018-page healthcare overhaul bill, which the House Committees on Ways and Means and Education and Labor passed on July 17.  Meanwhile, the Senate Committee on Health, Education, Labor and Pensions voted to approve the Senate healthcare package.

In other health care news, Rep. Paul Hodes (D-NH) introduced the Small Business Health Care Affordability Act of 2009, a bill that would provide small businesses and their employees with tax credits for health insurance coverage.

Immigration

The Senate voted to accept amendments to the Department of Homeland Security’s (DHS) appropriations bill that would prevent the DHS from revoking its “No-Match” rule, and make E-Verify and the EB-5 visa programs permanent.

Labor-Management Relations

Proposed regulations implementing Obama’s Executive Order promoting the use of Project Labor Agreements (PLAs) were published in the Federal Register. Meanwhile, the Office of Management and Budget (OMB) issued a memo to government agencies encouraging the use of PLAs until a final rule is implemented.

Work/Family Balance

Rep. Lynn Woolsey (D-CA) introduced the Balancing Act of 2009, a comprehensive working family bill that incorporates a number of previously-introduced family and medical leave legislation.

Rep. Ron Wyden (D-OR) introduced the Military Family Leave Act of 2009, a bill that would grant family members of uniformed service members temporary annual leave for the member’s deployment.

Sen. Patty Murray (D-WA) introduced the Airline Flight Crew Technical Corrections Act, a bill that would change FMLA hours of service requirements for airline employees.
 

Specifically, the bill incorporates provisions of the Family Leave Insurance Act (H.R. 1723), Family and Medical Leave Enhancement Act (H.R. 824), Domestic Violence Leave Act (H.R. 2515), and the Healthy Families Act (H.R. 2460), all introduced within the past six months.

Borrowing from the Family Leave Insurance Act, this bill would provide eligible employees with 12 weeks of paid leave for their own illness, to care for a sick family member (including domestic partner) or new child, place a child up for adoption or foster care, address a qualifying exigency arising from a family member’s call to active duty, or care for a relative who is a wounded veteran. The bill would create an employee- and employer-financed insurance fund to pay for this leave. This program would be administered through the Department of Labor, which would contract with states to administer the program.

The next section of the Balancing Act would entitle employees to take time off from work to participate in their children’s or grandchildren’s school or community organization activities, attend regular medical/dental appointments, or attend to the needs of an elderly relative, among other types of “family wellness” leave described in the previously-introduced the Family and Medical Leave Enhancement Act. Eligible employees would be entitled to take up to 4 hours of leave during any 30-day period, not to exceed 24 hours in any 12-month period. An employee may chose, or an employer may require, that the employee use any accrued paid leave first. 

Of perhaps greater significance, this portion of the bill would expand the FMLA’s coverage by applying its terms to employers with 25 or more employees within the prescribed radius, not 50 as is the current law.

Rep. Woolsey’s Domestic Violence Leave Act is also included in the current legislation. This portion of the bill would amend the FMLA by permitting leave to be taken to address acts of domestic violence, sexual assault and stalking. Leave could be taken on behalf of oneself or a family member (including domestic partner) to seek medical attention, legal assistance, and psychological counseling for, or recovery from, injuries related to domestic violence, sexual assault or stalking. The bill also authorizes leave to be taken to participate in safety planning or other related activities that occur during work hours. This section of the bill also amends the FMLA by extending coverage to same-sex spouses and domestic partners, including the children of domestic partners.

The next section incorporates provisions of the Healthy Families Act, a bill that requires employers with 15 or more employees to provide paid sick leave. Under the terms of this bill, an eligible employee would be able to earn one hour of paid sick time for every 30 hours worked up to a maximum of 56 hours (seven days) annually. This leave could be taken for one’s own or a family member’s illness, be used for preventative care or address acts of domestic violence, stalking or sexual assault. An employee would start accruing sick leave from day one of employment, and would be able to take leave after 60 days. Sick leave would carry over from year to year, but could not exceed 56 hours unless otherwise sanctioned by the employer.

The Balancing Act contains a number of child care expansion and improvement provisions, including one that orders the Secretary of Health and Human Services to establish a program to award grants to states to encourage the establishment and operation of employer operated child care programs. In addition, the bill would amend the Employee Retirement Income Security Act (ERISA) to allow certain part-time and temporary workers to qualify for some pension and health benefits. Also, the bill would create a pilot program to raise awareness about telework among employers and to encourage such employers to offer telework options.

This bill has been referred to the House Committees on Education and Labor, Oversight and Government Reform, Armed Services, Ways and Means, and House Administration.

Health Care/Employee Benefits

A number of federal agencies are requesting information on the mental health parity provisions made by the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) in advance of a future rulemaking on group health plans.  Meanwhile, legislation providing employers with various incentives for promoting employee health may receive serious consideration now that Congress is contemplating major healthcare reform.

Immigration

The Department of Homeland Security has issued a fact sheet discussing its revised Worksite Enforcement Strategy, which will increase efforts to target employers in violation of immigration law.

Work/Family Balance

The Wage and Hour Division of the Department of Labor has issued an opinion letter clarifying that an employer’s internal notification policy regarding employee attendance can be enforced against an employee attempting to take leave under the Family and Medical Leave Act (FMLA) so long as compliance with the notice policy is practicable given the employee’s particular circumstances.

Arbitration

Senator Russ Feingold (D-WI) has reintroduced the Arbitration Fairness Act (S. 931), a bill that would render unenforceable predispute agreements mandating arbitration of employment, consumer, franchise or civil rights claims.

Business Restructuring

The recently-introduced Alert Laid off Employees in Reasonable Time (ALERT) Act (H.R. 2077) would require employers to provide Worker Adjustment Retraining Notification (WARN) Act notices to employees in the event of mass layoffs that occur at more than one worksite, and would double the penalties for violations.

Congressional Leadership

Senator Arlen Specter (R-Pa) recently announced his intent to run for reelection as a Democratic in the 2010 primary, bringing Democrats closer to a filibuster-proof majority.

Discrimination in the Workplace

The Fair Pay Act (S. 904, H.R. 2151) was reintroduced in both the House and Senate. This bill would amend the Fair Labor Standards Act (FLSA) by introducing the concept of equal pay for comparable – not equal – work.

Immigration

Assistant Senate Majority Leader Richard Durbin (D-Ill.) and Sen. Charles Grassley (R-Iowa) introduced the H-1B and L-1 Visa Reform Act (S. 887), legislation that would completely reform the H-1B and L-1 visa guest worker programs.

Labor-Management Relations

The Department of Labor’s (DOL) Office of Labor-Management Standards (OLMS) has announced that it plans to issue a notice of proposed rulemaking regarding revisions to the Labor Organization Officer and Employee Report (LM-30) financial disclosure form.

Meanwhile, the U.S. Court of Appeals for the District of Columbia Circuit has held that the National Labor Relations Board acted without authority in entering an order against a company for alleged unfair labor practices, as the two-member panel did not constitute a quorum as required by the National Labor Relations Act.

Work/Family Balance

Two bills were introduced this week that seek to amend the Family and Medical Leave Act (FMLA) and its regulations. The Family and Medical Leave Restoration Act (H.R. 2161) would essentially nullify the new DOL regulations, restore prior ones, and direct the Secretary of Labor to revise additional regulations under this Act. The Family and Medical Leave Inclusion Act (H.R. 2132) would amend the FMLA to permit eligible employees to take up to twelve weeks of unpaid leave to care for a same-sex spouse, domestic partner, parent-in-law, adult child, sibling or grandparent who has a serious health condition.

Workplace Safety

Employers are advised to establish a workplace safety plan to specifically address the public health emergency surrounding the swine flu outbreak.  On April 29, 2009 the World Health Organization (WHO) raised the pandemic alert level to Phase 5, with Phase 6 indicating that a global pandemic is under way.

In legislative news, the Protecting America’s Workers Act (PAWA) (H.R. 2067), a bill that would amend the Occupational Safety and Health (OSH) Act by expanding its coverage, increasing whistleblower protections, and enhancing employer penalties for violations, was reintroduced.  Additionally, on April 28, both the House and Senate conducted hearings to address the adequacy of employer incentives for maintaining safe workplaces and penalties for violating OSH laws. Lawmakers in both chambers stressed the need for OSH reform.

According to a summary of the bill provided by Rep. Stark, this bill would do the following:

• Provide all workers with 12 weeks of paid leave over a 12-month period to care for a new child, provide for an ill family member, treat their own illness, care for a wounded veteran, or deal with the deployment of a family member;
• Provide these benefits through a new trust fund that is financed equally by employers and employees, who will each contribute 0.2% of the employee’s pay;
• Progressively tier the benefits so that a low wage worker (earning less than $30,000) will receive full or near full salary replacement, middle income workers ($30,000- $60,000) receive 55% wage replacement, and higher earners (over $60,000) receive 40-45%, with the benefit capped at approximately $800 per week;
• Administer the program through the Department of Labor which will contract with states to administer the program (similar to how the Unemployment Insurance program is run);
• Allow states and businesses with materially equivalent or better benefits to opt out of the program.

This bill would not replace the Family and Medical Leave Act, which provides unpaid leave to employees who work for businesses with 50 or more employees. Under the new bill, all employees who have contributed to the fund for at least six months and have worked at least part-time for their current employer during that time would be eligible to take paid leave under the new program.

If enacted, the provisions of this bill would take effect on January 1, 2011, and apply to periods of leave that commence on or after January 1, 2012.

This bill has been referred to the House Committees on Education and Labor, Oversight and Government Reform, and Ways and Means.
 

An employee eligible to take parental involvement or family wellness leave under this bill would be permitted to take up to 4 hours of leave in any 30-day period, not to exceed 24 hours during any 12-month period. This leave is in addition to other types of permissible leave. An employee may elect – or an employer may require – the substitution of any accrued paid vacation leave, personal leave, or family leave for parental involvement and family wellness leave. In order to take this leave, an employee must provide the employer with at least 7 days’ notice or as much as is practicable. An employer may require certification related to such leave.

This bill also contains a section granting the same leave benefits for federal employees.

Similar bills have been introduced in recent years, to no avail. The Time for Schools Act, Family and Medical Leave Expansion Act, and the Federal Employees Paid Parental Leave Act – all of which contain provisions similar to the act at issue – have been introduced in some shape or form since 2005. The Family and Medical Leave Enhancement Act of 2009 may gain greater headway, however, given the new composition of Congress and as President Obama has expressed his commitment to push for more workplace flexibility.

Discrimination in the Workplace/Employee Wage and Hour Law

The Senate voted to invoke cloture on the Lilly Ledbetter Fair Pay Act (S. 181), limiting debate on this wage discrimination bill and paving the way for its almost certain passage and presidential signature.

Immigration

A new bill introduced in the House, the Illegal Immigration Enforcement and Social Security Act of 2009 (H.R. 98) would significantly increase fines and jail time for employers who knowingly hire illegal aliens or fail to verify their employment eligibility using a new procedure outlined in the bill.

Workplace Flexibility

The new regulations governing the Family and Medical Leave Act (FMLA) went into effect Friday, January 16.