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

CalChamber-Sponsored Leave Clarification Bill Signed by Governor

​Gov. Jerry Brown recently signed a California Chamber of Commerce-sponsored bill that clarifies the requirements of paid bone marrow and/or organ donation leave.

SB 272 (DeSaulnier; D-Concord) provides employers with the needed clarity and certainty as to how this leave should be implemented, so that employers can comply with this leave requirement and minimize any risk of litigation.

SB 1304 (DeSaulnier; D-Concord), enacted in 2010, requires employers to provide employees with paid leave of either five days for bone marrow donation or 30 days for organ donation, within a one-year period. Given the ambiguity with some of the terms utilized in SB 1304, California employers were uncertain how this paid leave should be implemented.

Specifically, SB 272 clarifies that the one-year period referenced in the statute is 12 consecutive months from the date the employee’s leave begins, not one calendar year.

SB 272 also confirms that the days of leave are business days, as opposed to calendar days. Additionally, SB 272 provides certainty that the benefits of an employee must be maintained at the same level during the paid leave, as if he/she had continued to work during that period.

Finally, SB 272 specifies that employers that have a paid time off (PTO) program, rather than sick leave and vacation leave, can require that an employee take up to five days of PTO as a part of the employee’s leave.

The clarification and certainty provided by SB 272 will help employers properly implement this leave when an employee requests it, which ultimately will benefit both the employer and employee.

Jennifer Barrera:CalChamber Policy Advocate, Labor and Employment, Taxation 

EEOC Asks For Employer Input on Leave as a Reasonable Accommodation

The federal Equal Employment Opportunity Commission (EEOC) has invited public input concerning the use of leave as a form of reasonable accommodation for disabled employees.* 

At an EEOC meeting on June 8, the commission heard a wide range of views on employer and employee obligations regarding the use of leave. All witnesses testifying before the commission agreed on the need for clear and uniform guidance from the EEOC.

Under the Americans With Disabilities Act (ADA), a leave of absence can serve as a form of reasonable accommodation for a disabled employee. In some situations, a leave of absence beyond an employer’s permitted number of days off may be required.

Christopher Kuczynski, EEOC assistant legal counsel for ADA issues, told the commission that though many requests for leave can be handled under an employer's regular leave policies, reasonable accommodation issues arise when an employer would not ordinarily allow the leave — for example, by having "no fault" leave policies that result in automatic termination of employees after they have been on leave for a certain time. 

"These must be modified as a reasonable accommodation, absent undue hardship, if an employee with a disability needs additional leave," Kuczynski said.

The employer may have to modify existing workplace policies to reasonably accommodate the employee. According to EEOC Commissioner Victoria Lipnic, the question of how much leave and how to coordinate leave with an employer’s existing policies is “one of the most vexing issues for employers and employees.”  

Witnesses called for more detailed examples of situations when additional leave beyond an employer’s existing policies will be necessary, and also urged the EEOC to consider the view of smaller employers, many of which do not have spare staff.

The EEOC is holding open the comment period until June 23, 2011. Written comments may be mailed to:

Commission Meeting, EEOC Executive Officer

131 M Street, N.E.

Washington, D.C. 20507

Comments can be emailed to Commissionmeetingcomments@eec.gov.

All comments received will be made available to commission members and to commission staff working on the matters discussed at the meeting. Comments will also be placed in the EEOC library for public review.

Gail Cecchettini Whaley: Employment Law Editor/Staff Counsel, CalChamber

*CalChamber members can turn to HRCalifornia.com for a complete explanation of employer obgiations concerning reasonable accommodations for employees. 

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

Sick Leave Mandate Bill Working its Way Through Legislature

CalChamber’s Labor Law Helpline is starting to get calls from concerned members about the proposed sick leave mandate bill, AB 400 (Ma; D-San Francisco), that's before the Legislature. 

The bill passed the Assembly Judiciary Committee earlier this week. The bill will next be heard in the Assembly Appropriations Committee. Several more votes will occur prior to the bill reaching the governor’s desk.

If signed into law, the bill would mandate that all employers, except those with collective bargaining agreements, provide any employee who worked in California for at least seven days in a calendar year with paid sick leave, at the accrual rate at one hour for every 30 hours worked.  

CalChamber is actively opposing the bill, and working to stop it before it gets to the governor. We will keep you updated through this blog about developments related to this proposed costly new mandate.*

Erika Frank, Vice President and General Counsel

*CalChamber members receive regular updates on legislative and policy matters that affect California employers. Not a CalChamber member? Test-drive HRCalifornia with a 15-day Free Trial.

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.