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Pending Legislation Would Create New Leave Mandates for Employers

The Supporting Military Families Act of 2009 was introduced in both houses of Congress in late July 2009.  A mere three months later — on October 28 — it was signed into law as part of the defense funding bill for 2010.  The legislation expands the circumstances in which employees may take both qualifying exigency and military caregiver leave under the Family and Medical Leave Act (FMLA).

Congress' fast action in passing the legislation may be a sign of things to come in 2010.  Additional legislation is currently pending in both houses of Congress that would expand the reach of the FMLA in far more dramatic ways than the Supporting Military Families Act.

New Bills of Note

Family and Medical Leave Inclusion Act (H.R. 2132).  This legislation would amend the FMLA to allow employees to take leave to care for a same-sex spouse, a domestic partner, a parent-in-law, an adult child, a sibling or a grandparent who suffers from a serious health condition.

Family and Medical Leave Enhancement Act (H.R. 824).  This legislation would add "parental involvement leave" to the types of leave allowed under the FMLA.  This type of leave is intended to allow, among other things, employees to attend their children's and grandchildren's educational and extracurricular activities, take care of routine family medical needs and assist elderly relatives.

Military Family Leave Act of 2009 (S. 1441, H.R. 3257).  This legislation would amend the FMLA to give two weeks of unpaid leave to employees whose family members have received notification of impending active military duty.  Employees would be entitled to take the leave before and after deployment without regard to whether they have experienced a qualifying exigency.  The leave entitlement would also apply to all employees regardless of the number of hours they work or the size of the employer.

Domestic Violence Leave Act (H.R. 2515).  This legislation would amend the FMLA to allow employees to take leave to address issues arising out of domestic violence and sexual assault.  Employees would also be entitled to paid leave for these types of situations under the Healthy Families Act, discussed below.

Family and Medical Leave Restoration Act (H.R. 2161).  This legislation aims to undo many of the changes made to the FMLA regulations in 2008.  The legislation primarily takes issue with:

  • the U.S. Department of Labor's changes to the definition of a serious health condition;
  • new provisions that allow employers to contact health care providers directly to address problems with a medical certification;
  • new provisions that allow employers to disqualify employees from perfect attendance bonuses because of FMLA leave; and
  • the ability of employers to require periodic fitness-for-duty certifications for employees who take ongoing intermittent leave.

Family Leave Insurance Act (H.R. 1723).  This legislation would establish a family and medical leave insurance program at the federal and state levels.  It would provide 12 weeks of paid benefits to employees who need time off to care for a new child, an ill family member, a service member returning from combat or their own illness.

  • The program would cover all employees who have paid into the fund and worked for their current employer for at least six months.
  • Employers and employees would share the cost of funding the program by paying taxes and premiums based on employee earnings.
  • Participation would be mandatory for all employers that are covered by the FMLA unless they already offer a comparable plan.
  • The program would reimburse employers for paying employees while they are on leave.

Pandemic Protection for Workers, Families, and Businesses Act (S. 2790, H.R. 4092) and Emergency Influenza Containment Act (H.R. 3991).  Both of these bills would temporarily require employers to give employees a certain number of paid sick days for the H1N1 virus or another similar flu virus under the following circumstances:

  • Under the House bill, employees would be entitled to up to five days of paid leave when their employer sends them home or directs them to stay home because of the H1N1 or another similar flu virus.  The leave entitlement wouldn't be triggered by an employee calling in sick on her own.
  • The Senate version would allow employees to take up to seven days of paid sick leave when they or their children are infected by the H1N1 or another similar flu virus.  Leave would also be available in the event a child's school closes because of the flu, even if both the employee and his children are healthy at the time.

The Healthy Families Act (S. 1152, H.R. 2460).  This legislation would require most employers to provide all employees with seven days of paid sick leave per year.  Unlike the flu legislation, this would be a permanent Employment Law Letter measure.  The leave provided under this legislation would also be available for employees who are dealing with such issues as domestic abuse, stalking, or rape.

Bottom Line

Some of these bills are considered to have a high probability of passing in one form or another, while others are more doubtful.  You should be aware of the changes these bills could make to the FMLA as well as the possible new paid leave requirements.  We will continue to keep you updated on these bills as they proceed through the legislative process.

This article is reprinted with permission from
Kentucky Employment Law Letter, which is
published by M. Lee Smith Publishers LLC.
For more information, please go to www.hrhero.com.


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Greenebaum Doll & McDonald PLLC is a widely-respected business law firm with approximately 180 professionals in six offices, serving local, national and international clients in virtually every industry. A forward-thinking business law firm, Greenebaum is committed to the practice of Breakthrough Law®.

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