HR 5136 proposed to provide “annual leave for family members” in the event a defined relative is called to active duty with the armed forces

HR 5136 proposed to provide “annual leave for family members” in the event a defined relative is called to active duty with the armed forces
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

Chapter 44 of House Bill (H.R. 5136) of the National Defense Authorization Act of 2011modifies the Uniformed Services Employment and Reemployment Rights Act, 38 USC 4303, et. seq., to require all employers (of any size, including local, state, and the federal government) to permit a spouse, son or daughter, or parent of a member of a uniformed service to take up to two workweeks of leave during any 12-month period where a family member has received notification of an impending call or order to active duty in support of a contingency operation.

The leave may be taken intermittent or a reduced leave schedule at the discretion of the employee. Paid leave is available at the discretion of the employer. Otherwise, the leave is unpaid. The employee must provide notice of the need for such leave "as is reasonable and practicable." An employer may require that leave be supported by a certification of entitlement to such leave. A copy of the notice, call, or order is considered sufficient certification. An employee has the right to be restored to the position the employee held prior to taking the leave, or to an equivalent position with equivalent rights and benefits.

It is unlawful for an employer to interfere with, restrain, or deny the exercise or attempt to exercise rights under the law. It is also illegal to discriminate against someone for opposing unlawful practices. The law would be enforced consistent with USERRA's current structure.

Mr. Bosland Comments: The Senate version of the 2011 National Defense Authorization Act (S. 3454) does not contain a similar provision. As such, whether the provision survives the House and Senate Conference Committee is anyone's guess. Stay tuned!
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Michigan teachers may sue if school board fails to comply with statutory duty to expel students guilty of assault

Michigan teachers may sue if school board fails to comply with statutory duty to expel students guilty of assault
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Teachers have standing under Michigan Constitution to sue school board for failure to comply with statutory duty to expel students who have assaulted a teacher

Lansing Sch. Educ. Ass’n v. Lansing Bd. of Educ., No. 138401 (Mich. Jul. 31, 2010), is an interesting case. The Michigan Supreme Court ruled 4-3 that teachers who were allegedly physically assaulted by students have standing to bring suit against the school board for failure to comply with its statutory duty to expel those students. The court overruled its previous precedent in Lee v Macomb Co Bd of Comm’rs , 464 Mich 726; 629 NW2d 900 (2001).
The court determined that the plaintiff teachers in this case had standing to sue the school board because they have a significant interest distinct from that of the general public in the enforcement of the statute, as the statute’s purpose is to protect their safety and their ability to effectively teach.

Mitchell H. Rubinstein

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Filing an employer application for disability retirement pursuant GML 207-c

Filing an employer application for disability retirement pursuant GML 207-c
City of Schenectady v McCall, AD 3rd Dept., 245 A.D.2d 708

The City of Schenectady filed an application for accidental disability benefits for one of its police officers, Kevin J. Coker, with the New York State and Local Policemens' and Firemens' Retirement System [PFRS]. It claimed that Coker had sustained at least four neck and back injuries while on duty. Although Coker had returned to duty after each episode, in 1992 he ceased working claiming that the back pain resulting from these accidents permanently incapacitated him.

Section 207-c.2 of the General Municipal Law authorizes the filing of an application for accidental disability retirement on behalf of a disabled police officer if the officer does not elect to do so.
PFRS' medical expert, Neurologist Neil Lava, testified that Coker was not "permanently incapacitated" and that there was no medical explanation for Coker's complaints of pain and a limited range of motion. The City's medical expert, Police Surgeon Dominic Belmonte, an occupational physician, testified that Coker was disabled from an orthopedic point of view and permanently disabled from resuming employment as a police officer. The application was rejected by PFRS and the City appealed.

The Appellate Division, with Judge Mikoll dissenting, sustained the System's disapproval of the City's application to have Coker retired for work-related disability. The Court said that the System's determination "is supported by substantial evidence, even though there is other evidence that would support a contrary result."

However, the PFRS' determination may have triggered another provision of the General Municipal Law, Section 207-c.3. Section 207-c.3 provides that if a police officer is not eligible for or not granted an accidental disability retirement allowance, he or she may be required to perform "light duty ... consistent with his [or her] status as a policeman" if found medically qualified to perform such duties. If the police officer refuses to perform such light or modified duty, Section 207-c payments "shall be discontinued." As PFRS has found Coker is not "permanently disabled," the City could have Coker evaluated by its medical experts to determine whether he is able to perform "light police duties."

Another alternative: the City could, if Coker agrees, transfer him to a position with another City agency or department [see Section 207-c.4, General Municipal Law] if he meets the civil service qualifications for the position to which the transfer is to be made.

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If you are interested in learning more about General Municipal Law §207-a or §207-c disability benefits and procedures please click here:http://section207.blogspot.com/2010/03/v-behaviorurldefaultvml-o.html
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