Hurry Up and Wait...It'll Change

Just when you thought you had it all down - how to manage employees' disability and FMLA needs - there it goes changin' again! As you know, the Americans with Disabilities Act (ADA):

• covers employers with 15 or more employees;
• prohibits discrimination against qualified individuals with disabilities; and
• requires covered employers to provide a reasonable accommodation to a qualified individual with a disability to enable him or her to perform the essential functions of the job.

On September 25th President Bush signed the Americans with Disabilities Amendment Act of 2008 (ADAA), which will go into effect on January 1, 2009.  The Act broadens the definition of disability under the ADA. It is estimated that nearly four times as many Americans will be provided with employment protection under the new law than as are protected under the ADA today.

What else? The final, revised Family and Medical Leave Act (FMLA) regulations are expected to be published any day, possibly before the election and/or before the next President takes office.  The FMLA covers employers with 50 or more employees and provides an eligible employee with up to 12 work weeks of job-protected leave for certain family and medical reasons. One of several key provisions anticipated in the final regulations is the addition of another required form (Yes, more paperwork!).  Today, if an employees needs family or medical leave that may qualify under the FMLA then a covered employer must provide the employee with an FMLA "Employer Response" form, which notifies the employee whether or not s/he is eligible for FMLA leave.  But how is the employee supposed to know if the leave is ever approved as FMLA leave or not?  The new regulations will likely provide that employers must provide the employee with a subsequent written notice indicating whether or not the leave was approved.

Had enough yet?  Don't forget the federal courts as they continue to interpret Congressional intent under existing laws.  In just the last quarter, at least five different federal circuit courts (2nd, 6th, 7th, 10th and 11th) covering 19 states have addressed various issues under the ADA and FMLA.

Consider these:

• If an employer incorrectly perceives an employee to have a disability, does the ADA require the employer to provide a reasonable accommodation to that employee?
• An employee is eligible for federal FMLA leave, in part, if s/he has worked at least 1,250 hours in the immediately preceding 12 months. Let's say you have an employee that as of the close of business yesterday had worked 1,248.8 hours.  Is the employee eligible for FMLA leave at the start of his or her shift today or must the employee work an additional 1.2 hours before becoming eligible?
• The ADA currently defines a disability as a physical or mental impairment that substantially limits a major life activity.  Assume an employee tells you s/he can no longer drive a car and the employee's job requires driving to and from various work sites.  Is this employee disabled under the ADA e.g., is driving a car a major life activity?  Does the answer depend upon whether the employee has access to public transportation?
• How about the case in which you place an employee on a performance improvement plan or PIP?  You give the employee 90 days to improve his or her performance or be subject to termination.  At the end of the 90 days the employee has not met the goals you established in the PIP.  But in that 90 day period the employee was also out on an FMLA covered leave of absence.  Can you terminate the employee or must you extend the PIP by a period of time equal to the employee's leave?

Join FiveL Company's next webcast, "The Latest News in Managing Disability and Leave Issues" on Wednesday, November 26th from 10:00 - 11:00 a.m. EST as we review highlights of the ADAA, FMLA regulations, answers to the above cases, plus proactive tips for developing and enhancing related HR policies, procedures and practices!

     Hot Hits!! Education Corner

Public Seminars & Presentations

Wednesday, November 5th, "Employment Law Issues for Private Practice Employers," presented during the Annual Conference of the American Physical Therapy Association's Private Practice Section, Orlando, FL.

Thursday, November 6th, "The Three P's: Workplace Policies, Procedures & Practices," (same location as above).

Thursday, November 13th, "Employment Law," presented for the members and guests of the Maryland & DC Credit Union Association, 9:00-4:00 Columbia, MD

NEXT WEBCAST!

Wednesday, November 26th, "The Latest News in Managing Disability & Leave Issues" 10:00-11:00 a.m. EST. Did you miss last month's webcast or any in the 2007-08 series? Each webcast is archived and you can access any one or all of them from the website for a reduced fee!

"Live" webcasts may be approved for continuing education credits.  Visit the website for more detailed information. 

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November's Client Training Programs

"Maintaining an Inclusive Workplace"  (4)

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Get Out the Vote! --With Pay?

You don't have to read this newsletter to know that Tuesday, November 4th is Election Day. What you may wonder, however, is whether an employer must provide time off from work for employees to vote and, if so, is that paid or unpaid time.  Election laws relating to time off from work vary from state to state.  Some states have no law regarding time off; thus it is up to the employer's discretion. Other state laws provide for a maximum period of time off that must be granted and some do require that the time off be paid.

At least 33 of our 50 states have laws that currently provide for some type of time off from work, paid or unpaid, for employees to vote.

Maryland, for example, requires that any employee who does not have at least two consecutive hours of scheduled time off from work while the polls are open must be granted up to two hours of paid time off to vote.  Thus, if the polls are open from 7:00 a.m. to 8:00 p.m. and your employee is scheduled to work from 7:00 a.m. to 7:30 p.m. you would be required to give that employee up to 1.5 hours off, with pay, at the end of his or her shift if the employee needed that time to get to the polls to vote.     

    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.