Comment Period Extended on Proposed Changes to Family and Medical Leave Act

The U.S. Department of Labor (DOL) said it is extending the comment period for its proposed rule to implement new statutory amendments to the Family and Medical Leave Act (FMLA).

The deadline for comments to be submitted has been extended to April 30, 2012.

HRWatchdog covered the proposed rule here. The proposed amendments would expand military family leave provisions and incorporate a special eligibility provision for airline flight crew employees.

The DOL said that it’s extending the comment period because of the interest expressed in the proposed changes and to obtain as much information as possible about the proposed changes. To view the proposed rule and submit comments, visit the federal e-rulemaking portal. Search by regulation identification number 1235-AA03.

The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons.

The proposed language would extend the entitlement of military caregiver leave to family members of veterans for up to five years after leaving the military, as opposed to family members of “currently serving” service members. The proposal would also extend qualifying exigency leave to employees whose family members serve in the regular armed forces. At this time, the law covers only families of National Guard members and reservists.

For airline flight crew employees, the proposed revision would add a special hours of service eligibility requirement and specific provisions for calculating the amount of FMLA leave used. The DOL said the changes would better take into account the often difficult to track hours worked by crew members.

Visit the DOL's FMLA page for additional information on the FMLA, including information and fact sheets on the proposed revisions.

California Bill Would Create New Leave Mandate

​A bill that creates a California-mandated leave benefit that differs from federal law will be considered by the Assembly Labor and Employment Committee on March 28, 2012.

AB 2039 would significantly expands the type of individuals or circumstances under which employees can take a 12-week, protected leave of absence under California’s Family Rights Act (CFRA) and creates an even further disconnect with the federal Family and Medical Leave Act (FMLA).

Expands California Law
Currently, CFRA requires an employer with 50 or more employees to allow an employee who worked at least 1,250 hours to take up to 12 weeks of leave in a 12-month period for:

• His/her own serious medical condition;
• The birth or placement of a child; or
• To care for the serious medical condition of a child, (under 18 years of age or adult dependent), spouse, or parent (the current definition of “parent” includes step-parents as well as individuals who stand in place of a parent, “in loco parentis,” to the child).  

AB 2039 seeks to expand CFRA by allowing an employee a protected leave to care for adult children, parents-in-law, grandparents and siblings. 

Burden on Employers
Expanding the types of individuals or circumstances under which an employee can take a leave of absence under CFRA would only further increase the cost of doing business for employers in California.

Given that the individuals proposed by AB 2039 are not covered by the FMLA, an employee could use his/her 12 weeks of CFRA to care for the serious medical condition of a parent-in-law; then take another 12-week leave under FMLA to care for the medical condition for his/her spouse, child or parent. 

Interested parties should visit CalChamber.com to learn more about AB 2039, and how to oppose it.

CalChamber Staff Contact: Jennifer Barrera 

Proposed Rule Would Affect Family and Medical Leave Act

The Department of Labor (DOL) recently announced a proposed rule that would implement amendments to the Family and Medical Leave Act (FMLA). The rule would affect the FMLA in two ways: expanding the leave entitlement for military caregivers and creating special eligibility provisions for airline flight crew employees. 

In 2008, two special military family leave entitlements were added to the FMLA:

• Military caregiver leave: Eligible employees who are the spouse, son, daughter, parent or next of kin of a service member (National Guard, Reserves or Regular Armed Forces) with a serious injury or illness incurred in the line of duty may take up to 26 workweeks of FMLA leave during a single 12-month period to care for their family member
• Qualifying exigency leave: Eligible employees whose spouse, child or parent is called up for active duty in the National Guard or Reserves may take up to 12 workweeks of FMLA leave for “qualifying exigencies” related to the call-up of their family member.

In 2009, President Obama signed the National Defense Authorization Act for FY 2010 and the Airline Flight Crew Technical Corrections Act into law. Both laws provide expanded leave entitlements.

The DOL’s proposed revisions are intended to implement and interpret these amendments, as well as make additional regulatory changes. The proposed language would make several significant changes to existing law: 

• Expanding military caregiver leave to family members of veterans for up to five years after leaving the military. At this time, the leave only covers family members of those service members who are “currently serving” and not veterans.
•  Expanding the definition of “serious injury or illness” for military caregiver leave to include pre-existing conditions that are aggravated in the line of duty.
• Expanding qualifying exigency leave to employees whose family members serve in the Regular Armed Forces. Currently, the law only covers family members of National Guard members and reservists.
• Adding a new statutory requirement that the military member must be deployed to a foreign country in order for eligible family members to take qualifying exigency leave.

The DOL’s proposed rule also seeks to implement earlier FMLA amendments relating to airline flight crews. The proposed revisions make the benefits of the FMLA more accessible to airline flight crew employees by adding special hours of service eligibility requirements and specific direction for calculating the amount of FMLA leave used. The revisions are intended to take into account the uniqueness of the hours worked by airline crews and the difficulty in tracking these hours.

For more information about the proposed revisions, the DOL created a website, which includes a Fact Sheet and a set of Frequently Asked Questions.

DOL is encouraging public comments. Once the rule is published in the federal register, interested parties may submit comments, identified by Regulatory Information Number (RIN) 1235-AA03, by electronic submission through the Federal eRulemaking Portal http://www.regulations.gov. Follow instructions for submitting comments.

Interested parties may also submit comments by mail. Address written submissions 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.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

Get Answers To Tough HR Questions

Do you know the answers to these two HR questions?

• Can my employee, who is a new dad, take family leave to care for his newborn child?
• How can I determine whether an individual is an independent contractor under California law?

During a free live webinar, Finding Answers to Tough HR Questions, we showed attendees how to get answers to these questions.

If you missed the webinar, you can now register to access a recorded version. CalChamber members can access the webinar directly in HRCalifornia's Tools & Training section.

Not a CalChamber member? Test-drive HRCalifornia with a 15-day Free Trial.

CFRA-Expansion and Minimum Wage Increase Bills Advance

Two bills that could impact California employers were heard in the Assembly Labor and Employment Committee this afternoon. 

AB 59 (Swanson): This bill would expand the type of individuals or circumstances under which an employee can take a leave of absence under the California Family Rights Act (CFRA). CalChamber policy advocate Jennifer Barrera today provided critical testimony underscoring the fact that overburdened California employers simply can't afford more leave programs on top of the myriad of protected leaves that already exist. 

During her testimony, Barrera explained that more leave programs will drive up costs for employers and disincenticize them from hiring and expanding in California. This bill would also put up yet another barrier for companies thinking about locating their companies in California. Even with these facts before them, the committee voted to move the bill on for further consideration.  CalChamber will continue to vigorously oppose this costly piece of legislation. 

AB 10 (Alejo): CalChamber is part of an active coalition opposing this bill. This bill proposes to raise the minimum wage to $8.50 per hour effective January 2012. Additionally, the bill would provide for further automatic increases by indexing the wage rate upwards every year after 2012 according to the annual percentage of inflation. 

During today’s hearing, coalition members, including CalChamber, pointed out that California employers are already under tremendous financial strain in our state and they cannot take the hit of this increase to the minimum wage. Arguments raised in opposition to the bill also pointed out the fact that California is already lagging the rest of the nation in recovering from the recession and this would set us back even further. 

Unfortunately, AB 10 (Alejo) passed out of the Assembly Labor and Employment committee and will receive further consideration by the Legislature. 

We will keep you posted as CalChamber’s advocacy team continues to fight this proposed change. — Denise Davis, CalChamber's Vice President of Media Relations and External Affairs