Tag Archives: National Defense Authorization Act

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New FMLA Regulations: Effective March 8, 2013 … a repost

09/03/2015 Nativegrl77 2 Comments

Read through the entire article to see how the rules impact your state

The Family and Medical Leave Act (FMLA) turned 20. Many employers have finally come to terms with the major revisions to the FMLA regulations issued on November 17, 2008, which became effective on January 16, 2009. Now employers will also have to adjust their practices, policies and training to reflect additional revisions to the FMLA regulations adopted on February 6, 2013, which become effective on March 8, 2013. The most recent changes primarily address statutory changes signed into law in 2009, and include a number of significant changes, particularly with regard to military caregiver leave, exigency leave, and, although beyond the scope of this Alert, application of the FMLA to airline pilots and flight crews.

Significant changes pursuant to the newly adopted FMLA regulations include:

Expansion of the Availability of Exigency Leave to Support Members of the Regular Armed Forces: The National Defense Authorization Act (NDAA) for Fiscal Year 2008, which first provided for military caregiver and exigency leave, excluded family members of the active duty Regular Armed Forces from eligibility for exigency leave. The NDAA for Fiscal Year 2010 (signed on October 28, 2009) expanded coverage for exigency leave to include family members of the Regular Armed Forces on active duty. The new regulations implement this statutory change by clarifying that covered employees can include specified relatives of:
(1) Members of the Regular Armed Forces on duty while deployed to a foreign country (including international waters); or
(2) Members of the Reserves or National Guard while deployed to a foreign country under a federal call or order to active duty in support of a contingency operation.
This limitation of coverage to family members of reservists deployed to foreign countries in support of a “contingency operation” may be subject to legal challenges, however, since Congress removed similar language from the statute when it passed the NDAA for Fiscal Year 2010.
Expansion of Qualifying Exigencies to Include Parental Care: Under the 2008 regulations, covered employees could take leave for seven specified types of qualifying exigencies and additional unspecified exigencies if agreed to with their employers. The new regulations add a specified qualifying exigency in the form of parental care. Covered employees can take such leave to arrange for or provide care for the parent of a military service member where the parent is incapable of self-care and the covered active duty or call to covered active duty status of the military service member necessitates a change in the existing care arrangement for the parent.
Expansion of Right to Exigency Leave for Rest and Recuperation Leave: The 2008 regulations required employers to provide up to five days of leave to spend time with service members on short-term, temporary, rest and recuperation leave. The new regulations expand this requirement to up to 15 days of leave. Many states, including California, Illinois, Indiana, Maine, Minnesota, Nebraska, New York, Ohio, Oregon, Rhode Island and Washington, also provide some form of state military family leave law, and employers must coordinate this new requirement consistently with any additional obligations under state law. (For example, California’s military spousal leave law requires employers to provide an additional — non-concurrent — 10 days of unpaid leave to employees who work an average of 20 or more hours per week and whose spouse or domestic partner is on leave from active military service.)
Clarification of Right to Exigency Leaves for Childcare and School Activities Based Exigency Leave: The new regulations do not change the fact that a qualifying exigency may include leave taken to provide childcare or arrange for school activities for a child for whom a military service member is a parent or with whom the military service member has an “in loco parentis” relationship. However they do clarify that the coverage of an employee, if any, is based on the employee’s relationship to the service member rather than the child. Accordingly, the fact that the employee stands “in loco” parentis to the military service member’s child does not permit coverage unless the employee is also the spouse, son, daughter or parent of the relevant service member.
Defining Covered Veterans for Purposes of Military Caregiver Leave: The new regulations reflect statutory changes to the NDAA for Fiscal Year 2010, which expanded the scope of military caregiver leave to include care for both covered service members and covered veterans. The new regulations define covered service members to include covered veterans who are undergoing medical treatment, recuperation or therapy for a serious injury or illness. The new regulations also define covered veterans as those released from the armed forces under conditions other than dishonorable any time during the five-year period prior to the first date the employee takes military caregiver leave to care for the veteran. The Department of Labor takes the position that the statutory changes to the NDAA for Fiscal Year 2010 did not require employers to offer leave to care for covered veterans before March 8, 2013, since no implementing regulations were in place. Based on that interpretation, the new regulations exclude the period between October 28, 2009 and March 8, 2013, from counting toward the determination of the five-year period for covered veteran status. Based on the position that employees were not entitled to FMLA leave to care for covered veterans without an implementing regulation, the preamble to the new regulations also sets forth the Department of Labor’s position that employers who provided military caregiver leave to employees to care for veterans prior to the implementation of the new regulations cannot count that leave against the employees’ military caregiver leave entitlement. This interpretation may be subject to legal challenges based on the 2009 statutory changes to the FMLA.
Military Caregiver Leave —Expanded Definition of Serious Injury or Illness: The new regulations expand the definition of a “serious injury or illness” to include preexisting conditions of service members that are aggravated in the line of duty while on active duty in the Armed Forces. They also expressly define the term “serious injury or illness” as applied to covered veterans. For covered veterans, a serious injury or illness includes injuries or illnesses incurred or aggravated in the line of duty on active duty in the Armed Forces, which manifested themselves before or after the affected individuals became a veteran, and which are: (1) a continuation of a serious injury or illness incurred or aggravated when the covered veteran was a member of the Armed Forces and rendered the service member unable to perform the duties of the service member’s office, grade, rank or rating; or (2) a physical or mental condition for which the covered veteran has received a U.S. Department of Veterans Affairs Service-Related Disability Rating (VASRD) of 50 percent or greater based, in whole or in part, on the condition precipitating the need for caregiver leave; or (3) a physical or mental condition that substantially impairs the covered veteran’s ability to secure or follow a substantially gainful occupation by reason of a disability or disabilities related to military service or would do so absent treatment; or (4) an injury, including a psychological injury, on the basis of which the covered veteran has been enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.
Certification Issues: The new regulations allow employers to request copies of a military service members’ Rest and Recuperation leave orders in support of requests for related Rest and Recuperation exigency leave. They also expand the types of healthcare providers who can certify a serious injury or illness, and permit second and third opinions where certifications are provided by health care providers who are not affiliated with the Department of Defense, the Department of Veterans Affairs, or TRICARE.
Employers should be careful to coordinate these new certification rules with any applicable state laws after consultation with competent employment counsel. For example, the California Family Rights Act, although not expressly providing for military caregiver leave, does prohibit employers from obtaining second or third opinions regarding the serious health conditions of family members and California generally has stronger privacy rights than those provided for under the FMLA.
In an effort to facilitate more flexibility, the Department of Labor has removed optional use forms from its appendices so that it can update the forms without going through the formal rulemaking process. Revised and new optional use forms include: (1) WH-381 Notice of Eligibility and Rights & Responsibilities; (2) WH-384 Certification of Qualifying Exigency for Military Family Leave; (3) WH-385 Certification for Serious Injury or Illness of Current Servicemember — for Military Family Leave; and (4) WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave. Employers subject to state family medical leave and/or military leave laws should not adopt the permissive forms without first conducting a legal review to ensure that they are adopted as necessary so as to avoid violating any state laws. (For example, California employers generally may not use FMLA forms requesting a diagnosis.) The forms are available here.
Clarification of Subtracting Time for Intermittent and Reduced Schedule Leave: The new regulations clarify that employers must track FMLA intermittent and reduced schedule leave using the minimum amount of time used to track any form of leave, which may not be more than an hour. They also re-emphasize the basic rule (with very narrow specified exceptions) that employers can only count the amount of leave actually taken against an employee’s leave entitlement. For example, an employer with minimum increments of leave in 15 minutes can charge an employee’s leave bank in 15-minute increments. However, if the employer charges an employee 30 minutes for an intermittent leave because it is closest to the amount of time needed, the employee should not work any of those 30 minutes. Within these parameters, employers can maintain systems in which the minimum increment used varies by time of day or shift, and can also use FMLA increments of leave that are smaller than minimum increments used for other types of leave.
Updated FMLA Poster: The Department of Labor has published an updated FMLA poster, which can be accessed here.
Miscellaneous Other Provisions: The new regulations contain various other provisions. These include, for example, the need to apply confidential recordkeeping requirements to documents covered by the Genetic Information Non-Discrimination Act (GINA), rules expanding the circumstances in which scheduled overtime may be counted against FMLA leave, and the clarification of the interplay between USERRA and FMLA rights.

Employers should prepare for the March 8, 2013, implementation date by updating their practices, forms, policies and training in light of these new regulatory requirements.

They are encouraged to consult with a Sedgwick LLP employment lawyer to help them in this process.

I think they should update FMLA … to paid leave, it helps everyone

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Workplace Policies … need Reforming ~~ a repost

09/03/2015 Nativegrl77

The president called for a new vision for workplace policies related to leave.

Dear Friend,

In his State of the Union address, President Obama touched on a core issue that has affected women for as long as they have been in the workplace. He said a woman “deserves to have a baby without sacrificing her job. A mother deserves a day off to care for a sick child or sick parent without running into hardship. And you know what, a father does too. It is time to do away with workplace policies that belong in a ‘Mad Men’ episode.”

Inadequate support for working American families is nothing new. In 1963, the Kennedy administration produced a report about the status of working women in the United States. The report pointed out that no more than one-third of America’s working women had any sort of help with loss of income due to childbearing. The report also noted that employers often passed over women for employment because of the assumption that they would get pregnant and leave the job.

It’s a shame to think that the twenty-first century’s Joan Holloways still find themselves facing tough decisions about something as fundamental as having a job and a family.

Since the 1960s, much has changed for women in the labor force. The number of women and mothers in the workforce has risen dramatically, as has their share of household income. Unfortunately, no matter what their occupation, little has changed in terms of workplace support for those that have babies or sick relatives to care for. While there are laws in place to help protect against pregnancy discrimination, pregnancy and family responsibilities discrimination persists, and working women risk losing their jobs, not getting hired or missing out on promotions due to pregnancy.

Women covered by the Family and Medical Leave Act are able to take up to 12 weeks of protected leave for childbearing or caretaking purposes. Unfortunately, many mothers cannot afford to take 12 weeks off work without pay. While women in almost every other country in the world can receive some sort of paid family leave, women in the United States only get paid family leave benefits if they are lucky enough to work in a state or for a company that provides these benefits.

Instead of discriminating against women who are or may become pregnant, or who need to care for a sick child or parent, we need to embrace solutions that provide income support for such workers.

Paid family leave programs − which benefit men and women − not only are good for American families, but can also be a smart move for businesses. A few states have already enacted laws to provide for wage replacement for workers taking leave for childbirth, adoption or the serious illness of close family members. Research on existing paid leave programs suggests that paid leave has negligible costs to employers and potential gains in terms of employee morale and productivity.

On Tuesday night, the president called for a new vision for workplace policies related to leave. Recognizing the need to support working families, this spring the president will host a Summit on Working Families to set an agenda for a 21st century workplace to ensure America’s global economic competitiveness in the coming decades. In the months leading up to the summit, the Department of Labor will support the White House in this effort by engaging groups and individuals across the country to identify initiatives that benefit America’s working families, American businesses and the American economy.

Hopefully before too long, the only resemblance that any modern workplace has to “Mad Men” will be the stylish wardrobe.

These words are from my recent post on the Labor Department’s blog. Check out what Patricia Shiu, Director of the Office of Federal Contract Compliance Programs, had to say about the President’s message in her blog post on fair pay.

Sincerely, Latifa Lyles Acting Director, Women’s Bureau U.S. Department of Labor

Black History

the Senate CONGRESS 12/19 the House

12/19/2013 Nativegrl77

The Senate stands adjourned until 10:00am on Thursday, December 19, 2013.

Following any Leader remarks, the Senate will resume consideration of the motion to concur in the House message to accompany H.R.3304, the National Defense Authorization Act, post-cloture.

All time during adjournment will count post-cloture on the motion to concur with respect to NDAA. Roll call votes are possible throughout the day. Senators will be notified when they are scheduled.

Senator Reid asked unanimous consent the Senate take up and pass S.1859, submitted earlier today by Senator Reid. The bill includes the following provisions:

– an extension of a provision to exclude mortgage debt forgiveness from taxable income;

– deductions for state and local sales taxes, qualified tuition expenses for students, and classroom expenses that teachers pay for out of their own pockets;

– a commuter benefit that helps workers who take mass transit to their jobs every day;

– the New Markets Tax Credit and the Low Income Housing Credit;

– tax benefits to encourage investment in our nation’s infrastructure, such as the Short Line Rail Tax Credit; provisions that encourage the development of renewable energy technology, including the production tax credit for wind, as well as credits to promote the development of biofuels, alternative fuel vehicles, and energy-efficient buildings; and

– tax incentives for small and large businesses, including Section 179 expensing, bonus depreciation and the R&D credit;

Senator McConnell asked that the request be modified and that the pending cloture motions on Executive nominations be withdrawn; and that following disposition of the Defense Authorization bill, the Senate proceed to the consideration of H.R.2668, and that the text of S.1859 be the first amendment in order, and that the Majority and Minority sides then be recognized to offer amendments in an alternating fashion.

Senator Reid objected and Senator McConnell objected to the original request.

The Senate has resumed consideration of the House Message on H.R.3304, the National Defense Authorization Act, post-cloture. If all time is used, at approximately 11:14pm tonight the Senate will proceed to a roll call vote on the motion to concur in the Senate amendment to the House amendment to H.R.3304, NDAA (passage).

As a reminder, on Monday Senator Reid filed cloture on several Executive nominations. Upon disposition of the Defense bill, there will be a live quorum prior to a cloture vote on the Mayorkas nominations. If cloture is invoked, there would be up to 8 hours for debate prior to a vote on confirmation of the nomination. Upon disposition of the Mayorkas nomination, there will be a mandatory live quorum prior to a cloture vote on the Koskinen nomination. If cloture is invoked, there would be up to 8 hours for debate prior to a vote on confirmation of the nomination.

We’ll repeat the general sequence of a live quorum (unless we obtain consent to waive the quorum), a cloture vote, some debate time, and then confirmation vote until we’ve worked through the nominations listed below.

Senators will be notified if an agreement can be reached and the schedule changes, but at this time senators should be prepared for 2 votes at approximately 11:14pm. Additional procedural votes are possible today and during the voting sequence. Senators are encouraged to be on the floor for the live quorums so that a quorum can be established quickly.

11:14pm votes:

1) Adoption of the motion to concur in the Senate amendment to the House amendment to H.R.3304, NDAA (passage)

Live quorum

2) Cloture on Executive Calendar #456, Alejandro Mayorkas, of the District of Columbia, to be Deputy Secretary of Homeland Security

(up to 8 hours equally divided)

3) Confirmation of Mayorkas nomination

Live quorum

4) Cloture on Executive Calendar #459, John Andrew Koskinen, of the District of Columbia, to be Commissioner of Internal Revenue Service.

(8 hours equally divided)

5) Confirmation of Koskinen nomination

Live quorum

6) Cloture on Executive Calendar #382, Brian J. Davis, of Florida, to be United States District Judge for the District of Florida

(2 hours equally divided)

7) Confirmation of Davis nomination

Live quorum

8) Cloture on Executive Calendar #452, Janet L. Yellen, of California, to be Chairman of the Board of Governors of the Federal Reserve

(30 hours)

9) Confirmation of Yellen nomination

Live quorum

10) Cloture on Executive Calendar #455, Sloan D. Gibson, of the District of Columbia, to be Deputy Secretary of Veterans Affairs

(8 hours equally divided)

11) Confirmation of Gibson nomination

Live quorum

12) Cloture on Executive Calendar #445, Sarah Sewall, of Massachusetts, to be an Under Secretary of State (Civility Security, Democracy, and Human Rights)

(8 hours equally divided)

13) Confirmation of Sewall nomination

Live quorum

14) Cloture on Executive Calendar #371, Michael L. Connor, of New Mexico, to be Deputy Secretary of the Interior

(8 hours equally divided)

15) Confirmation of Connor nomination

Live quorum

16) Cloture on Executive Calendar #457, Sarah Bloom Raskin, of Maryland, to be Deputy Secretary of the Treasury

(8 hours equally divided)

17) Confirmation of Raskin nomination

Live quorum

18) Cloture on Executive Calendar #356, Jessica Garfola Wright, of Pennsylvania, to be Under Secretary of Defense for Personnel and Readiness

(8 hours equally divided)

19) Confirmation of Wright nomination

Live quorum

20) Cloture on Executive Calendar #189, Richard Engler, of New Jersey, to be a Member of the Chemical Safety and Hazard Investigation Board

(8 hours equally divided)

21) Confirmation of Engler nomination

The Senate will recess from 12:45pm until 2:15pm. The time will count against post-cloture debate on NDAA.

The time from 2:15 until 2:35pm will be controlled by the Majority Leader, or his designee, and the time from 2:35pm until 3:15pm will be controlled by the Republican Leader, or his designee.

At 3:15pm, we expect Senator Cornyn to make a motion to table with respect to the Defense bill in order to offer an amendment.

Expected 3:15pm vote:

– Cornyn motion to table the Reid motion to concur in the House amendment to the Senate amendment to H.R.3304, with Reid amendment #2552.

Senator Reed (RI) asked unanimous consent the Senate take up and pass Calendar #265, S.1845, a bill to extend unemployment insurance benefits for 3 months.

Senator Cornyn asked that the request be modified that that all pending cloture motions on Executive nominations be withdrawn, and that the Senate proceed to the immediate consideration of S.1845, and that the Majority Leader and Minority Leader be recognized to offer amendments in an alternating fashion.

Senator Reed declined to modify his request and Senator Cornyn objected to the original request.

Senator Cornyn asked unanimous consent to set aside the pending motion to concur with Reid #2552 amendment in order to make a motion to concur with Cornyn amendment #2606 (to provide for the award of medals for members of the Armed Forces and civilian employees of the Department of Defense who were killed or wounded in an attack perpetrated by a homegrown violent extremist who was inspired or motivated by a foreign terrorist organization.

Senator Levin objected.

Cornyn parliamentary inquiry #1: is it correct that no senator is permitted to offer an amendment to the House passed Defense bill while the Majority Leader’s motion to concur with a further amendment is pending?

Chair: The senator is correct

Cornyn parliamentary inquiry #2: If a motion to table the Reid motion to concur with a further amendment is successful, would there be an opportunity to offer my amendment #2602?

Chair: The senator is correct.

Senator Cornyn then moved to table the pending Reid motion to concur with a further amendment.

3:29pm The Senate began a 15 minute roll call vote on the Cornyn motion to table the Reid motion to concur in the House amendment to the Senate amendment to H.R.3304, National Defense Authorization Act;

Not Tabled: 45-55

The News

Washington, D.C. – Nevada Senator Harry Reid released the following statement today:

“Republicans owe an apology to the more than one million Americans whose unemployment insurance will expire due to Republican gridlock and obstruction. In the past, Democrats and Republicans have worked together to extend unemployment insurance for those still looking for work. Sadly, Republicans have now decided that they would rather let this program expire than cooperate with Democrats.

“With just a little cooperation, we could complete all of the work before us and vote to extend unemployment benefits before Christmas Eve. Without Republican cooperation, we cannot. I hope my Republican colleagues will change course, and put the millions of Americans who are struggling this holiday season ahead of partisan gridlock. If Republicans choose to continue their obstruction, I will ensure that extending unemployment insurance is the first thing we vote on after the holiday.

“Congress is finishing this year less popular than a cockroach, and this kind of mindless, knee-jerk obstruction from Republicans is exactly why.”

The Senate has reached an agreement with respect to several nominations. Under the unanimous consent agreement, there will be 2 roll call votes at 11:14pm this evening, 6 roll call votes at 10:00am Friday and one roll call vote at a time to be determined on Monday, January 6^th. The details of the agreement are below.

Today, Thursday, December 19^th at 11:15pm, 2 Roll Call Votes:

– Motion to concur in the House message to accompany H.R.3304, the National Defense Authorization Act and

– Motion to invoke cloture on Executive Calendar #456, Alejandro Mayorkas, of the District of Columbia, to be Deputy Secretary of Homeland Security.

Following the cloture vote on the Mayorkas nomination, the Senate will be in period of morning business for debate only with Senators permitted to speak therein for up to 10 minutes each.

When the Senate convenes on Friday, December 20^th, all but one hour of post-cloture debate will be expired with the one remaining hour equally divided and controlled between Senators Carper and Coburn.

Friday at approximately 10:15am, 6 roll call votes:

– Confirmation of the Mayorkas nomination,

– Motion to invoke cloture on Executive Calendar #459, John Koskinen, of the District of Columbia, to be Commissioner of Internal Revenue

– Confirmation of the Koskinen nomination

– Motion to invoke cloture on Executive Calendar #382, Brian Davis, of FL, to be US District Judge for the Middle District of Florida

– Confirmation of the Davis nomination and

– Motion to invoke cloture on Executive Calendar #452, Janet Yellen, of California, to be Chairman of the Board of Governors of the Federal Reserve System.

Monday, January 6^th at a time to be determined by the Majority Leader in consultation with the Republican Leader:

– Confirmation of the Yellen nomination.

The cloture motions on the following nominations were withdrawn:

– Executive Calendar #455, Sloan D. Gibson, of the District of Columbia, to be Deputy Secretary of Veterans Affairs

– Executive Calendar #445, Sarah Sewall, of Massachusetts, to be an Under Secretary of State (Civility Security, Democracy, and Human Rights)

– Executive Calendar #371, Michael L. Connor, of New Mexico, to be Deputy Secretary of the Interior

– Executive Calendar #457, Sarah Bloom Raskin, of Maryland, to be Deputy Secretary of the Treasury

– Executive Calendar #356, Jessica Garfola Wright, of Pennsylvania, to be Under Secretary of Defense for Personnel and Readiness

– Executive Calendar #189, Richard Engler, of New Jersey, to be a Member of the Chemical Safety and Hazard Investigation Board.

11:14pm The Senate began a 15-minute roll call vote on the Motion to concur in the House message to accompany H.R.3304, the National Defense Authorization Act.

Agreed to: 84-15

11:38pm The Senate began a 15-minute roll call vote on the motion to invoke cloture on Executive Calendar #456, Alejandro Mayorkas, of the District of Columbia, to be Deputy Secretary of Homeland Security.

Invoked: 55-45