On June 25, 2009, Representative Lynn Woolsey (CA-6), along with 34 co-sponsors introduced the Balancing Act of 2009 (H.R. 3047). As proposed, the legislation incorporates the various separate pending legislative proposals to alter the FMLA into one bill.
Family Leave Medical Insurance Program
The legislation would create a federal program to provide up to 12 weeks of paid leave each 12-month FMLA leave year for the birth, adoption, foster care placement of a child, in order for the employee to care for a child, parent, spouse domestic partner grandchild, grandparent, or sibling, for qualifying exigency leave, and for military caregiver leave. The benefit is based on a percentage of the employee's annual income. Those making $20K a year or less would receive 100% of their pay during the 12-week period. From $20K to 30K the employee would receive% of their regular pay; from $30K to $ 60K the employee would receive the greater of 55% of their pay, or 75% of the daily earnings of an employee with annual income of $30K. The top bracket requires individuals making in excess of $ 97K a year to 40% of their income.
Note the addition of coverage for domestic partners, grandchildren, grandparents, and siblings. Curiously, in-laws continue to be left out of the expansion. It allows for the administrating agency to require the employee to provide certification in support of the request for benefits (pay) from the program. There is an appellate process for employee's who are denied payment from the insurance fund. Employers are prohibited from interfering with or discriminating against employees for exercising or attempting to exercise rights under this provision. Employees may sue an covered employer for violations. It also provides the authority to seek injunctive relief in the event of an employer violation. This suggests, at least to me, that employers will be paying the employee. Employees who make false statements to secure pay from the program may be required to forfeit 100% of the money received, fined, and are guilty of a felony and may face up to 5 years in jail.
Civil Service Family and Medical Leave Insurance Program
The legislation directs the Director of OPM to establish a Civil Service Family and Medical Leave Insurance Program for federal civil service employees. Congress also creates a trust fund in the Treasury and appropriates sufficient money to cover 100% of the necessary funds to cover family and medical leave premium the legislation imposes.
Who pays
Both Insurance funds are financed by the imposition of premium payments on employees and employers. That is, your taxes your going up and your paycheck is going down.
Family and Medical Leave Enhancement Act of 2009
Expands the FMLA to allow eligible employees to take up to 4 hours a month and up to 24 hours of leave during a 12-month leave year in two additional circumstances. First, an employee may take leave to participate or attend school (elementary or secondary) or community organization sponsored activities where the employee's son, daughter, or grandchild attends. Second, an employee may take up leave to meet routine family medical care needs, including for medical and dental appointments of the employee, son, daughter, spouse or grandchild, or to attend to the care needs of elderly individuals who are related to the eligible employee. The legislation amends Title II of the FMLA to allow federal civil service employees to take leave for these purposes.
Note the addition of new covered family member: elderly relatives of the employee, grandchild.
Employers may require certification in support of a request for leave. The legislation also amends the FMLA to require not less than 7 days notice of the need for such leave. Employees must make a reasonable effort to schedule such leave to as not to disrupt unduly employers of the employer subject othe approval of a health care provider, if any. Paid leave substitution is also available.
Domestic Violence Act
Amends Titles I and II of the FMLA to allow eligible employees to take upt 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. Those key terms are defined by cross-reference to the Violence Against Women Act of 1994, 42 USC 13925. 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, particpare in safety planning or other actions to increase safety, including temporary or permanent relocation.
The legislation expands the definition of a covered "family member." A "family member" is defined as spouse, domestic partner, parent, and son or daughter (including adult children). Leave may be taken intermittently. Paid leave substitution is permitted. The employee is required to provide such notice as is reasonable nd practicable under the circumstances. Certification may be required to support a request for such leave. Certification may come from a shelter worker, attorney, clergy, police or court records, medical or other professionals who have provided assistance to the victim, "other corroborating evidence," such as statem,ents from individuals with knowledge of the circumstances, physical evidence, or a statement of the employee describing the incident. Such documentation must be kept confidential by the employer.
Inclusion of Same-Sex Spouses and Domestic Partners
Modifies Titles I and II of the FMLA to cover same-sex spouses, domestic partners, and children of domestic partners. If enacted, the legislation would effectively nullify the Defense of Marriage Act.
Healthy Family's Act
Mandates covered employers to permit employees to earn up to 56 hours of paid sick leave including paid time for family care. Applies to employers with 15 or more employees. Employers are required to permit employees to earn not less than 1 hour of paid sick time for every 30 hours worked, up to the maxi-um of 56 hours a year. Employees may begin to use paid sick time 60 days after their employment. Employers, at their discretion, may advance paid sick leave to the employee. Unused paid sick time carries over from one year to the next. An employee who is separated from employment and is rehired within 12 months from separation is entitled to have his or her previously earned paid sick time reinstated.
Paid sick time may be used for:
- absences relating to physical or mental illness, injury, or medical condition of the employee;
- an absence resulting from obtaining professional medical diagnosis or care, preventive care, for the employee;
- absences to care for a child, parent, spouse, or other individual related by blood or affinity whose cloase association with the employee is equivalent to a family relationship for the medical issues above, and "n the case of someone who is not a child, is otherwise in need of care"; and
- absences resulting from domestic violence, sexual assault, or stalking.
The legislation imposes notice requirements on the employee (e.g., 7 days for foreseeable leave, otherwise as soon as practicable). An employer may require a certification of the employee's request for leave. The certification must state the date on which the period of time is needed, the probable duration, the appropriate medical facts wihtin the knowledge of the health care provider, a statement that an absence from work is necessary, dates of medical care is expected to be given. The legislation specifically provides that health care providers must make reasonable efforts to limit the medical facts that are disclosed to the minimum necessary to establish a need for the employee to utilize paid sick time. This last provision will undoubtedly be the subject of extensive litigation. Certification in th case of domestic violence, sexual assault, or staking is also permitted. Employees have the right to file civil actions for violations of their paid sick time rights.
Comment: In terms of the FMLA, the legislation packages the amendments of the FMLA that Candidate Obama indicated he wanted changed. I have no idea whether that makes passage of the proposed changes more or less likely. If passed, the legislation would substantially alter the FMLA landscape.
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