Employment And Immigration Law: School Paraprofessionals May Soon Qualify For FMLA
Connecticut Law Tribune
January 23, 2014
The federal Family and Medical Leave Act has seen its fair share of changes in recent years. In early 2009 major changes were made to the FMLA’s implementing regulations, and in both 2008 and 2009, new military family leave entitlements were added to the text of the FMLA, the latter of which were codified in a new set of implementing regulations which became effective in March of 2013. These changes – especially adoption of the 2009 regulations which were the first substantive changes to the FMLA regulations in thirteen years – were well publicized.
However, another “federal” FMLA development has more or less snuck in under the radar recently. In May 2012, the General Assembly passed, and Governor Malloy signed, Public Act 12-43 -- legislation that lowers the hours-worked eligibility requirement for Connecticut school paraprofessionals for benefits under the federal FMLA. Public Act 12-43 amended and is now codified in Conn. Gen. Stat. § 31-51rr. The state FMLA does not apply to public school employees and boards of education, but the federal FMLA applies to any "public agency" as defined in section 3(x) of the Fair Labor Standards Act of 1938 (29 U.S.C. § 203(x)).
When it was first passed in 2007, Section 31-51rr acted to extend federal FMLA benefits to employees of political subdivisions of the state who were parties to a civil union. Such employees were not otherwise eligible for either state or federal FMLA family leave benefits, because the federal FMLA excludes from its coverage same-sex couples who are either married or in a civil union, and because the state FMLA does not apply to political subdivisions of the state. In addition, to providing a lower federal FMLA eligibility threshold for school paraprofessionals, Public Act 12-43 also made conforming changes to the text of Section 31-51rr in light of Connecticut’s recognition of same-sex marriage. This new definition serves as an end-run around the federal FMLA’s lack of coverage of same-sex married couples – at least as the federal law applies to Connecticut public agencies, including school districts. Thus, public agencies must comply with the federal FMLA and grant same sex married couples the same rights as heterosexual married couples.
Pursuant to Section 31-51rr, as amended by Public Act 12-43, school paraprofessionals will no longer be ineligible for leave benefits pursuant to the federal FMLA’s 1250-hours worked eligibility requirement – an obligation that was difficult for most paraprofessionals, who are typically on a ten-month school-year schedule, to satisfy. Instead, the amended Section 31-51rr lowers the eligibility threshold by requiring only that paraprofessionals be employed by their employer for at least twelve months and work at least 950 hours in the twelve month period preceding the requested leave. While Public Act 12-43 technically went into effect upon its passage, the law specifies that the 950-hours worked eligibility requirement will only go into effect after the State adopts implementing regulations.
Now, after more than a year-long wait, it looks like the State is poised to adopt Public Act 12-43’s implementing regulations. In early-November the State Department of Labor issued a notice of intent to adopt regulations along with a 70-page draft of the proposed regulations. The comment period on the proposed regulations expired on December 6th. Based on the regulatory approval deadlines set forth under the Uniform Administrative Procedure Act the proposed regulations will, in all likelihood, be adopted as final regulations at some point prior to the start of 2014-15 school year.
For the most part, the draft regulations are a verbatim reflection of the federal FMLA regulations. This of course makes sense because the text of the amended Section 31-51rr states that school paraprofessionals will be entitled to the “same family and medical benefits under the federal [FMLA].” There are, however, some interesting deviations from the federal FMLA. For example, the proposed regulations entitle paraprofessionals who work 950 hours in the preceding twelve-month period to FMLA leave, while all other school employees who do not work the federal FMLA mandate of 1,250 hours, would remain ineligible for FMLA leave. This will undoubtedly not sit well with teachers and other district staff who work between 950 and 1250 hours per year (let alone the headache this creates for those persons who must keep track of the employees’ leave time).
Another interesting facet of the proposed regulations is the apparent omission of any prescribed enforcement mechanism. The FMLA allows employees to bring either a private cause of action or file an administrative complaint with the federal Department of Labor for interference with FMLA rights or retaliation for the exercise or attempted exercise of FMLA rights. The proposed regulations under Section 31-51rr are silent on enforcement, even though the text of the statute provides that the Department of Labor “shall enforce compliance with the provisions” of the law. Would paraprofessionals have the right to initiate a complaint with the State Department of Labor? This is the proscribed enforcement mechanism under Connecticut’s FMLA, yet Conn. Gen. Stat. § 31-51pp, the statute authorizing state FMLA complaints, seems to exclude the paraprofessional provisions of Section 31-51rr from its coverage. Does the new paraprofessional law create an implied private cause of action? That would be difficult for a paraprofessional to assert, given the absence of any such authorization and the fact that Section 31-51rr appears to place any complaints – albeit without further direction – in the hands of the State Department of Labor. The likely conclusion is that the state DOL will be required to enforce this unique twist on the FMLA laws.
The State’s passage of Public Act 12-43 and the Department of Labor’s issuance of implementing regulations may seem like a minor development, but it is worth noting that according to State Department of Labor estimates there are over 20,000 teaching assistants employed within the State of Connecticut. For these paraprofessionals, and the school districts that employ them, the new availability of FMLA leave benefits is obviously a big deal. As for Public Act 12-43 and the proposed implementing regulations, time will tell whether FMLA benefits made available under federal law, can be successfully extended through state statute and regulations.
Zachary D. Schurin is an associate at Pullman & Comley in Hartford, where he represents school boards, municipalities and other public sector clients across Connecticut in labor, employment and education law issues. Reprinted with permission from the January 23rd issue of Connecticut Law Tribune. ©2014 ALM Properties, Inc. Further duplication without permission is prohibited. All rights reserved