State Department of Labor Issues Notice of Intent to Adopt New Paraprofessional FMLA Regulations

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It may seem like a distant memory at this point, but as you may recall, in May of 2012, the General Assembly passed, and Governor Malloy signed, a new law (Public Act 12-43, now codified at Conn. Gen. Stat. § 31-51rr  that extends the work-place leave entitlements offered to eligible employees under the federal Family Medical Leave Act (“FMLA”) to Connecticut paraprofessionals employed in educational settings who work at least 950 hours in the twelve month period preceding leave.  Passage of the Act was a significant win for paraprofessionals across the state because the federal FMLA has a 1250-hours-worked eligibility requirement that is often out of reach for paraprofessionals who typically only work the 10-month school year.  While the Act technically went into effect upon its passage, the law specifies that the 950-hours worked eligibility threshold 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 finally starting to gear-up on the new regulations.  Last month the State Department of Labor – the state agency charged with promulgating the regulations – issued a notice of intent to adopt regulations along with a 70-page draft of the proposed regs.

For the most part, the draft regs are more or less a verbatim reflection of the federal FMLA regs.  This of course makes sense because the text of Public Act 12-43 states that paras will be entitled to the “same family and medical benefits under the federal [FMLA]” (as opposed to the state FMLA, which does not apply to local and regional boards of education).  However, there are a few interesting little deviations.  For example, while the federal FMLA only extends leave benefits to covered employees working for employers who employ 50 or more employees within a 75-mile radius, the proposed State DOL regs do not include any minimum employee requirement.  This would seem to allow for the bizarre result that in the few very small Connecticut school districts that employ fewer than 50 employees, paraprofessionals who work 950 hours in the twelve month period preceding leave would be eligible for FMLA leave, while all other district employees, even those working more than the federal FMLA 1,250 hours worked requirement, would remain ineligible for FMLA because the federal FMLA only grants leave rights to employers with 50 or more employees. 

Another interesting facet of the proposed regs is the omission of any proscribed enforcement mechanism.  The federal FMLA allows employees to bring either a private cause of action or 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 para FMLA proposed regulations are silent on enforcement, even though the text of the statute provides that the state DOL “shall enforce compliance with the provisions” of the law.  Would paraprofessionals have the right to initiate a complaint with the State DOL?  This is the proscribed enforcement mechanism under the state FMLA, but Conn. Gen. Stat. § 31-51pp, the statute authorizing state FMLA complaints, seems to exclude the new paraprofessional FMLA law from its scope.  Does the new paraprofessional law somehow create an implied private cause of action?  Is there an argument that the new law creates a right without a remedy?

While these and other questions will certainly be resolved in due course, at this point the most important thing for Connecticut districts to be aware of is simply that the para FMLA regulations are finally starting to move along.  Connecticut’s regulatory process can be long and very complex, but it seems like a safe bet that final regulations will be approved at some point before the start of the 2014-15 school year.  Remember – once the regulations become final the 950-hour clock will start ticking, and paras will eligible for FMLA leave once they hit 950 hours worked.  In the coming months we will have much more on the law and the proposed regulations and how they can and will impact your district.  Stay tuned…