U.S. DOL Issues Final FMLA Regulations

I suspect that most of you reading this newsletter have already heard that on November 17th the U.S. Department of Labor (DOL) published the new Family and Medical Leave Act (FMLA) regulations. The actual regulations are 41 pages with an additional 138 pages explaining the changes.  This article is intended to provide only a high-level overview of some of the key changes. The new regulations will take effect on January 16, 2009. 

• Employer Coverage - The FMLA will still cover employers with 50 or more employees. Employer coverage, however, is to be determined as of the date of the employee's request for FMLA, not the first day the employee takes leave.  Thus, if a company expects to downsize on January 1st to less than 50 employees and an employee requests FMLA leave today that is scheduled to begin on January 2nd, the employer would be obligated to grant the request for leave assuming it qualifies.
• Reasons for Leave - The FMLA will provide up to 12 work weeks of leave for: (1) an employee's own serious health condition; (2) the care of an immediate family member (parent, spouse or child) with a serious health condition; (3) the birth, adoption or foster care of the employee's child; and (4) for a "qualifying exigency" (QE) that arises while the employee's parent, spouse or child is on active duty or a call to active duty.  There are seven categories of QE's including childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, and more. 
• (More) Reasons for Leave - The FMLA also provides up to 26 weeks of leave (combined with other qualifying FMLA leave) to care for a covered servicemember with a serious injury or illness incurred in the line of duty while on active duty. The covered servicemember provisions went into effect earlier this year (January 28, 2008) and covers care for the employee's child of any age (serious health condition leave is generally only for a child under the age of 18) as well as the employee's "next of kin" defined as the nearest blood relative other than parent, spouse or child.
• Definition of Serious Health Condition - This has been cited by employers as one of the most challenging aspects of administering FMLA leave. The new regulations do not provide a new definition. They do, however, attempt to clarify what constitutes "continuing" and "periodic" treatment by a health care provider (HCP).  The former requires at least two visits to an HCP within 30 days from the first day of incapacity; the first visit must occur within seven days of the first day of incapacity.  The latter requires at least two visits to an HCP within one year.
• Employee Eligibility - Under the new regulations, an employee will be eligible for FMLA leave if s/he has worked for your company for a total of at least 12 months in the last seven years, exclusive of any breaks in service for fulfillment of obligations in the National Guard or Reserve military. The employee must also work at a site or location that employs at least 50 employees at or within 75 miles of that site or location.
• Employer Notice Requirements - There is one new and several modified forms for employers to use: (1) General Notice; (2) Eligibility Notice; (3) Rights & Responsibilities Notice; (4) Designation Notice; and (5) new Certification notices. Samples of each of these notices are included in the Appendices of the regulations.  See link at the top of this article.
• General Notice - a new poster has been published and should replace your current poster by January 16, 2009. Even if an employer is covered but has not eligible employees, you must still post the notice. Electronic posting is, however, now expressly permitted so long as all employees would have access to the E-posting.
• Eligibility Notice - The period of time by which the employer must give the employee eligibility notice has been extended from two to five days from the day the employer knows the need for leave may be FMLA qualifying.  This new notice includes a Notice of Rights and Responsibilities.
• Designation Notice - Within five days of the date the employer determines that the leave will/not be counted as FMLA leave the employer must give written notice to the employee.
• Medical or Other Certification - There are also now four certification forms available to certify: (1) The employee's own serious health condition; (2) the serious health condition of an immediate family member; (3) the need for qualifying exigency leave; and (4) the serious health condition of a covered servicemember. 
• "Authentication" and "Clarification" - The new regulations provide a process for "authentication" and "clarification" of any certification forms that are provided to the employer by an employee.  Authentication permits the employer to verify that the physician or other individual completing the certification form did, in fact, complete the form.  This might arise should a certification form appear to be altered. An employer may seek "clarification," such as if a portion of the handwriting is unclear or to clarify the meaning of a response such as, "must rest periodically throughout the day" -- the employer might seek to clarify the frequency of "periodic" rests.  In either process, no additional information may be sought and the employee's immediate supervisor may not be the individual seeking the information. 
• State Regulations! - Currently, at least 11 states have their own FMLA-like regulations: California, Connecticut, Hawaii, Maine, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, Washington, and Wisconsin plus the District of Columbia. If you have business operations in any of these states contact FiveL Company today for more information.

Did you miss FiveL Company's webcast, "The Latest News in Managing Disability and Leave Issues" on Wednesday, November 26th? That webcast covered the FMLA regulations as well as the new Americans with Disabilities Act Amendments Act of 2008 (ADAAA) which takes effect January 1st. You can register to view and listen to the archived recording anytime and at your convenience for just $25. 

     Hot Hits!! Education Corner

Public Seminars & Presentations

Tuesday, December 2nd, "Leaves of Absence and FMLA," presented during the Pennsylvania Chamber of Commerce's 2008 Annual Human Resources Conference, Hershey, PA. 

Thursday, December 4th, "When Worlds Collide: Religion in the Workplace"  presented during the Maryland SHRM State Council's 5th Annual Conference, Adelphi, MD.

NEXT WEBCAST!

Wednesday, January 28th, -- the topic is t.b.a. If the U.S. EEOC publishes new ADA regulations as directed by the new ADAAA law (see below) by December 15th then that will be the topic of the webcast. Otherwise, the topic will be the "The Latest News in Wage and Hour Regulation." 

Discounted annual webcast subscriptions for 2009 are now available. Discounts are also available for individual webcasts for groups of 5 or more. Register today!

"Live" webcasts may be approved for continuing education credits. Archived webcasts are not eligible for continuing education credits through HRCI. Visit the website for more detailed information. 

 ADA Amendments Act of 2008    

On September 25th President Bush signed into law the ADAAA. The new law, which will take effect January 1, 2009, is anticipated to provide legal protection to nearly four times as many Americans as are covered today under the ADA. The ADAAA will continue to cover employers with 15 or more employees; prohibit discrimination against qualified individuals with a disability; and require covered employers to provide a reasonable accommodation to a qualified individual with a disability. Some key provisions of the new law include:

• Broader coverage and interpretation of terms like being "substantially limited" in a "major life activity;"
• rejection of U.S. Supreme Court decisions that permitted consideration of the ameliorative effects of mitigating measures e.g., if an individual can overcome his or her disability with the use of medication or some remedial device, that individual may still be covered under the ADAAA;
• individuals with conditions that are episodic or in remission may still qualify for coverage under the ADAAA if the condition would substantially limit a major life activity if/when the condition were to become active; and
• direction for the U.S. EEOC to publish new regulations that redefine "substantially limited" to not include being "significantly restricted" in a major life activity. 

 2009 Training Programs: Book Early and Save $!  

FiveL Company has been pleased to offer a wide variety of management and staff training programs on a flat fee-for-service basis that includes all time and costs for program development, local travel and printing of participant training booklets.  That fee scheduled has remained the same for the last four years.

Effective January 1, 2009 the fee schedule for training programs will increase.  But if you book your 2009 training program(s) by December 31, 2008 you will receive the 2008 rate!  So book early and save money!  And ...does your current training service provider give you a satisfaction guarantee?  FiveL Company does!  If the average, overall satisfaction rating for any training program is not at least 4.0 on a 5.0 scale, FiveL will give you a 10% discount!  (And, "No," FiveL Company has never had to issue that discount! :-) )

Visit FiveL Company's Training webpage for a general listing of training programs. For specific program outlines, descriptions and pricing contact FiveL Company today.

Spotlight! 

Is the cost of using outside trainers limiting training opportunities for your staff and management team members?  FiveL Company offers Train-the-Trainer services including:

• On-site delivery of one or more "pilot" programs
• Development of tailored training materials
• PDF file of participant booklets
• PDF file of corresponding Powerpoint(TM) presentation 
• Limited copyright enabling you to reproduce the materials for in-house training materials.

Andrea Griesmar, HR Director for the Shelter Group recently rated these overall services as "Excellent" and said, "Thanks, Christine, for being so open to our input and willing to customize the content to fit our needs." Thank YOU Andrea! Contact FiveL Company for more information and a quote for services.