Employment and Labor Relations Lawyer & Attorney : Porter Wright's Employer Law Report : Employment Litigation, Non-Compete, Trade Secrets

Many employers may feel they are currently in a state of limbo with respect to their FMLA policies and obligations. As we reported on our Blog in January, the FMLA was amended on January 28, 2008 to include “any qualifying exigency” arising out of the fact that the spouse, son, daughter or parent of the employee is on active duty in the military or has been notified of an impending call to active duty status as an additionally qualifying reason for up to 12 weeks of leave. The amendment also created a new leave entitlement of up to 26 weeks of leave for an employee who is the spouse, son, daughter, parent or next of kin of a servicemember who is recovering from a serious illness or injury sustained in the line of duty on active duty. 

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Washington, D.C. City Council recently passed the Accrued Sick and Safe Leave Act, which requires all city businesses to provide paid sick leave for their employees. The Act does not become effective until the Mayor approves it and until a 30-day Congressional review period passes without Congress acting on the bill. If the Act becomes law, D.C. will become the second city in the United States to require employers to provide paid sick leave. San Francisco became the first in 2006. D.C. would become, however, the first jurisdiction to provide paid leave related to incidents of domestic or sexual violence. 

Under the Act, all business within the District must provide their qualifying employees with paid leave time that can be used in cases of physical or mental illness or injury, to care for a sick family member, for preventative medical care, or to cover certain absences associated with domestic or sexual violence. The number of paid leave days depends on company size, and certain employees are not covered by the Act. The Act also imposes obligations on employees who seek leave, including notification requirements for both foreseeable and unforeseeable leave and medical certifications in some instances. Finally, the Act makes it unlawful for employers to discriminate or retaliate against employees who use paid leave and requires employers to post in the workplace a notice outlining the provisions of the Act.

The D.C. Act is part of a growing movement – including the proposed Ohio Healthy Families Act (OHFA) – to push for paid sick leave laws. OHFA and the D.C. Act, which are similar in many respects, both would impose significant burdens on employers. Companies following this trend should continue to watch closely as D.C. and other jurisdictions, including Ohio, take action on paid sick leave legislation.

As for Ohio’s efforts to pass a paid sick leave law, progress on the proposed law seems to be at a standstill. After being sent to the General Assembly in early January, Ohio’s Healthy Families Act has received no formal attention by the legislature. Neither the House or Senate has taken any action on the proposal. It has not been given a number and has not been assigned to a committee. Ohio legislators have until early May to act. If they don’t, backers of the OHFA will have 90 days to collect a second set of different signatures to place the Act on the November 2008 general election ballot. 

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As we reported yesterday, the Department of Labor (DOL) issued new proposed regulations governing enforcement of the Family and Medical Leave Act (FMLA). Although there are some useful new provisions, the changes are largely disappointing for employers who were hoping that the new regulations would offer much-needed clarification and relief from administrative burdens. Despite the disappointment, employers must still take the time to understand the differences between the “old” 1995 regulations and these “new” 2008 proposed regulations. To that end, the most significant changes affecting employers are listed below.

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Just today, the Department of Labor published long-awaited proposed amendments to its Family and Medical Leave Act regulations, which will be open for public comment until April 11, 2008. The proposed amendments contain a number of changes to many of the provisions that have plagued employers since the FMLA was enacted. An initial read suggests that many of the changes are organizational in nature and are designed to make the regulations easier to understand. The amendments also clean up some of the issues relating to attendance bonuses, mandatory overtime, and medical certification as well as other issues. That said, only minimal help appears to be on the way with respect to the serious health condition definition and the intermittent leave provisions. There is also at least one setback for employers: the proposed regulations would no longer permit employers to count time spent on light duty work toward exhaustion of FMLA leave. Once we’ve digested the entire submission from the Department of Labor, we will report back with more detailed analysis of the most significant changes.

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On January 28, 2008, President Bush signed into law the National Defense Authorization Act, which amends and expands the Family Medical Leave Act (FMLA) to provide leave rights to family members of those in the Armed Forces. The new amendment entitles employees to 12 weeks of leave due to any “qualifying exigency” arising out of the fact that an employee’s family member is on active duty or has been notified of an impending call to active duty in the Armed Forces. What constitutes a “qualifying exigency” will be determined when the Department of Labor (DOL) issues its implementing regulations.

The Act also entitles immediate family members and next of kin to 26 weeks of leave during a 12 month period to care for covered servicemembers. The term “covered servicemember” means a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.

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Secretary of State Jennifer Brunner announced that the Ohio Healthy Families Act (see previous post), which mandates seven paid sick days for employees at Ohio companies with 25 or more workers, easily had enough signatures to pass petition requirements. The petition had 154,693 valid signatures of Ohio registered voters and only 120,683 were required. The Act will now be passed on to the General Assembly for action.

Secretary Brunner's office also said the petition contains signatures equaling 1.5 percent of the ballots cast in the last gubernatorial election from 65 counties, exceeding the necessary 44 county threshold.

The General Assembly has 120 days to enact the requested legislation. If they don’t, the coalition can gather another 120,683 valid signatures to put the measure on the November 2008 ballot in the general election.

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Last month, the Ohio Civil Rights Commission (OCRC) approved new maternity leave regulations requiring all Ohio employers having 4 or more employees to give each pregnant employee up to 12 weeks paid or unpaid maternity leave, regardless of whether the employee is in her first year of employment and regardless of whether she has previously exhausted any other leave that might have been available to her for non-maternity purposes. On Monday, December 3, 2007, the Joint Committee on Agency Rule Review (JCARR) voted 9-1 to reject the Commission’s proposal.

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Employers take notice: the group “Ohioans for Healthy Families,” a union-led coalition, has been collecting signatures for a proposal that would mandate at least seven paid sick days annually for all full-time Ohio workers. They appear to have more signatures than they need to push the initiative forward. Tuesday the group submitted a petition with 250,000 voter signatures to the Secretary of State Jennifer Brunner. If the Secretary certifies that there are at least 120,683 valid signatures of registered voters, the proposed statute will be introduced in the General Assembly early next year. The General Assembly will then have 120 days to enact the requested legislation. If they don’t, the coalition can gather another 120,683 valid signatures to put the measure on the November 2008 ballot in the general election.

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