What small law firms should know about the Family and Medical Leave Act

There are five new employment
law bills expected in 2010 that could significantly expand The Family and
Medical Leave Act (“FMLA”) and change how employers manage your paid and unpaid leave procedures.

All of these bills have a good
chance of becoming law under comprehensive family and medical leave legislation
known as The Balancing Act of 2009.  These changes may also significantly
expand the number of employers covered under the Act.

Even though these new regulations may not directly affect most of my Members (who by definition usually have fewer than 15 employees) I STILL want you to invest a few minutes to become at least conversational about these important topics as they may affect some or all of your clients and/or referral sources.

In the interest of full disclosure much of the following summary is taken from the great work of Ellen Freedman of Freedman Consulting:

  • The Healthy Families Act could dramatically change paid sick leave policies, and could also give employees paid time off for a doctor’s appointment
  • The Family Leave Insurance Act of 2009
    could end up requiring employers to provide eight weeks of paid leave
    to employees who need to care for a sick family member or new child
  • The Family and Medical Leave Enhancement Act of 2009 could expand the current FMLA to include employee leave for attending a child’s extracurricular activities
  • The Family and Medical Leave Act (FMLA) could be amended through The Domestic Violence Act and The Balancing Act of 2009 to give victims of domestic violence FMLA-protected leave
  • The Military Family Leave Act might amend the USERRA by granting temporary annual leave to the military families of service members

Healthy Families Act —originally introduced on  4/27/2005—
would require certain employers, who employ 15 or more employees for
each working day during 20 or more workweeks a year, to provide a
minimum paid sick leave of: (1) seven days annually for those who work
at least 30 hours per week; and (2) a prorated annual amount for those
who work less than 30 but at least 20 hours a week, or less than 1,500
but at least 1,000 hours per year. The purpose of the act is to allow
employees to use such leave to meet their own medical needs or to care
for the medical needs of certain family members.

This Act was introduced to the House on 5/18/2009 as H.R.2460, and on  6/11/2009 was referred to the Subcommittee on Workforce Protections.  It was introduced to Congress on 3/15/07 as S.910.  You can read more about it here and in a May, 2009 NY Times article

Family Leave Insurance Act of 2009
the Family and Medical Leave Act of 1993 (known to most of us simply as
“FMLA”) was created to assist employees in balancing the demands of
their jobs with their family responsibilities. However, many eligible
employees are not able to utilize the benefits of the FMLA because FMLA
leave is unpaid.  According to a 2000 survey on the FMLA by the Department of Labor
, among those employees who need FMLA leave and don’t take it, 78 percent don’t take it because they can’t afford it.

This legislation would create a federal insurance fund to provide employees with twelve weeks of paid
family and medical leave. The fund, which is designed to be established
and administered by the Secretary of Labor, would provide benefits for
employees taking leave under the same conditions of FMLA, plus some
additional conditions, such as a qualifying emergency arising from the
fact that a spouse, child, or parent of the employee is on active
military duty, or to care for a family member who is a covered service

the benefits proposal, as it stands now, pay for each day of an
eligible employee’s FMLA leave will be based on the employee’s annual
income and calculated as a percentage of his or her daily earnings.  Most
employees would contribute 0.2 percent of their annual earnings, and
employers would match employee payments. The Insurance Program will
reimburse employers for paying employees while they are on leave.
Employees may use other employer-provided paid sick leave benefits to
supplement those provided under the Insurance Program.

Act is being hailed by gay rights groups because H.R. 1723 would also
grant FMLA leave to employees who need to care for an ill domestic
partner or the child of a domestic partner –thereby affording the
protections of the FMLA to lesbian, gay, bisexual and transgender
(LGBT) employees.

This legislation was introduced to the House on 3/25/2009 as H.R.1723, and was  referred to the Subcommittee on Workforce Protections on 5/14/2009. 

Family and Medical Leave Enhancement Act of 2009 — this legislation was introduced into Congress on  9/29/2008 as H.R. 824 by Rep. Carolyn Maloney.  On May 4, 2009 it was referred to the Subcommittee on Federal Workforce, Post Office, and the District of Columbia.

purpose is to amend the Family and Medical Leave Act of 1993 and Title
5, United States Code, to allow employees to take, as additional leave,
parental involvement leave to participate in or attend their children’s
and grandchildren’s educational and extracurricular activities, and to
clarify that leave may be taken for routine family medical needs and to
assist elderly relatives, and for other purposes.

employee eligible to take parental involvement or family wellness leave
under this Act would be permitted to take up to 4 hours of leave in any
30-day period, not to exceed 24 hours during any 12-month period. This
leave is in addition to other types of permissible leave.

the most significant impact of this Act would be the expansion of who
would be considered an employee “eligible” to take FMLA leave. Under
this legislation, the FMLA would apply to employers with 25 or more
employees within the prescribed radius, not 50 as is the current law.
This expanded definition would greatly increase the number of employers
that would be impacted by this law. 

The Domestic Violence Act — Also known as The Violence Against Women Act, this legislation  was introduced in Congress in January 1991 by Senator Joseph Biden of Delaware.  The bill was made part of the Violent Crime Control and Law Enforcement Act and was signed into law on September 13, 1994, by President Bill Clinton.  In
1996 and 2000 additions to the Act were passed, to further recognize
domestic violence as a national problem and provide federal assistance
to help overburdened state and local criminal justice systems.

gets a little confusing here, because there is an attempt to bring
together disparate pieces of legislation which are or might
individually impact the FMLA.  Currently, for
example, victims of domestic violence do not qualify for coverage under
FMLA, although they do have rights and protections established under
The Domestic Violence Act. 

The Balancing Act of 2009 (H.R. 3047) was introduced to Congress on June 25, 2009, by Representative Lynn Woolsey.  It is designed to  incorporate the various separate pending legislative proposals to alter the FMLA,  many described above, into one bill. 

example, it amends Titles I and II of the FMLA to allow eligible
employees to take up to 12 weeks of FMLA leave during a 12-month leave
year in order to care for the family member of the employee, if such
family member is addressing domestic violence, sexual assault, or
stalking or their effects.  It covers time for a victim to seek medical
attention, recover from injuries, seek legal assistance or remedies,
communicate with the police or an attorney, attend support groups,
obtain psychological counseling, participate in safety planning or
other actions to increase safety, including arranging for temporary or
permanent relocation. 

Military Family Leave Act of 2009 — This Act was introduced into Congress as H.R. 3257 on Jul 17, 2009.  It was immediately referred to the House Committee on Veterans’ Affairs. 

Military Family Leave Act of 2009 allows those whose family members
have received notification of impending active military duty to spend
time with and support their family members by giving them two weeks
un-paid leave prior to and after deployment.   The
FMLA excludes many people from taking leave under these circumstances,
such as those who work part time or are employed by a company with
fewer than 50 employees. The Military Family Leave Act of 2009 would
make sure that everyone is given this right, regardless of the hours
they work or the size of the company that employs them.

FMLA leave of 12 weeks, this legislation only extends two workweeks of
unpaid leave. This lower benefit level is designed to achieve a
delicate balance between the needs of small businesses with the needs
of American families.