Employment Law E-Newsletter—Volume 4
AND YOU THOUGHT YOU KNEW ALL ABOUT THE FMLA!
Current Law – New Regulations
The U.S. Department of Labor has finally issued its long-awaited revised regulations for the Family Medical Leave Act, although solving fewer problems than employers had hoped.
Of most interest to employers are the changes to the medical certification process, providing employers with direct access to health care providers, clarifying the information and amount of on-going care that is required if someone claims a “serious health condition” and offering more specifics on requiring an employee to recertify the need for FMLA. The regulations also make clear (as the Third Circuit had held) that persons on FMLA leave are not entitled to perfect attendance or similar bonuses which are tied to achievement of a specific goal. While they do little to cure the vexatious issues surrounding intermittent leave, the proposed regulations do adopt more specific time requirements and settle some issues, such as persons on “light duty” are not on FMLA. (It is a sad commentary that the biggest improvement may well be the fact that the regs are now better organized by topic.)
New Law – No Regulations
Congress has enacted amendments to the Family and Medical Leave Act (FMLA), which grant additional leave to employees who have family members in the military. Since the new law contains no effective date, it became effective with President Bush’s signature on January 28, despite the absence of any implementing regulations. The legislation creates two new categories of FMLA leave:
1. Leave during family member's active duty -- Employees who have a spouse, parent, or child who is on or has been called to active duty in the Armed Forces may take up to 12 weeks of FMLA leave yearly when they experience a "qualifying exigency."
2. Injured service member family leave -- Employees who are the spouse, parent, child, or next of kin of a service member who incurred a serious injury or illness on active duty in the Armed Forces may take up to 26 weeks of leave to care for the injured service member in one 12-month period (in combination with regular FMLA leave). This may be taken intermittently, but must be used within 12 months.
The Department of Labor (DOL) is expected to issue proposed regulations providing substance for such terms as "qualifying exigency" and “next of kin,” as well as interpreting other aspects of the new requirements. It would appear that a “qualifying exigency” is something other than a “serious medical condition” which would have created eligibility for regular FMLA leave. Suggestions as to qualifiers run the gamut including such things as:
• make arrangements for childcare;
• make financial and legal arrangements to address the service member’s absence;
• attend counseling related to the active duty of the service member;
• attend official ceremonies or programs where the military requests participation of the family member;
• attend to farewell or arrival arrangements for a service member; or
• attend to affairs caused by the missing status or death of a service member
The statute is not even clear as to whether the need to engage in the activity must result from the service member’s military status.
“Next of kin” is defined by the statute as “nearest blood relative.” The choice is lengthy. What controls and what type of proof of that status may the employer require? Can more than one person be entitled to the leave?
Does “son or daughter” take on the meaning it has elsewhere in the statute – “under 18” or “unable to care for self”? Since virtually all service members are 18 or over, this new leave would appear to require a different definition.
“Serious injury or illness” is something different, and probably broader, than the “serious health condition” presently in the statute. But what?
Nevertheless, even without regulations, employers that are covered by the FMLA should make good-faith efforts to comply immediately. Your first step should be to inform employees of the new leave entitlements and, until the new regulations are issued, take a broad view of the new eligibility requirements.
Same Law – Premium Issues
Your obligation to maintain the employee’s health insurance in effect during an FMLA leave on the same basis as when they were actively at work raises the issue as to how to assure that the employee continues to make his or her contribution to the coverage. If you use the “pay-as-you-go” method, you must first notify the employee in writing of the premium requirement and the due date. If a payment is missed, you can terminate the coverage after thirty (30) days if the payment is not made during that period; but only if you have given the employee fifteen (15) days notice that the coverage will be cut off. The best way off this merry-go-round would be to give the notice during the first fifteen (15) days after the missed due date that the coverage will be terminated, if the premium is not received within fifteen (15) days. Then terminate the coverage retroactively to the date covered by the last premium received.
Don’t forget that the system you adopt for FMLA users must be the same as that adopted for any other form of unpaid leave during which you continue health coverage.
Want assistance sorting through it all? Call Kathy Mills – (610) 797-9000 x 308.
THE SUPREME COURT HAS SIGNIFICANTLY EXPANDED AN EMPLOYEE’S RIGHT TO BRING AN ERISA SUIT IN REGARD TO A 401(K PLAN)
A unanimous U.S. Supreme Court has issued a decision which many fear will lead to an explosion of lawsuits against employers by employees whose 401(k) does less well than the employee hoped or expected. In an example of “bad facts make bad law,” an employee had requested his employer on two separate occasions (10 months apart) to change the allocation of his 401(k) contribution. The change was never made and he sued to recover his losses. Prior to this decision, it was generally held that an Employee Retirement Income Security Act (ERISA) breach of fiduciary duty case was limited to attempts to recover losses to the entire plan, not simply to individual accounts. This ruling reverses that belief and makes clear that an individual may sue to recover losses incurred by a single participant.
WHAT IS A “CHARGE”?
Prior to instituting a lawsuit, a civil rights plaintiff must file a charge with the appropriate state or federal agency within a specific time period. What action constitutes “filing a charge” has varied from court to court. The U.S. Supreme Court has now resolved that issue. The plaintiff had filed an EEOC in-take questionnaire and an affidavit stating that his employers discriminated against older workers. The EEOC did not commence an investigation, because it did not consider that a “charge” had yet been filed. The Court held that, taken together, the affidavit and the intake questionnaire constituted a sworn “request for remedial aid” and that, therefore, a charge had been filed. While this was an age discrimination case, the Supreme Court’s broad definition of “charge” is likely to be adopted in other areas as well.
IS YOUR WELLNESS PROGRAM AN “ERISA PLAN”? IS IT SUBJECT TO THE HIPAA REGULATIONS?
The Health Insurance Portability and Accountability Act (HIPAA) non-discrimination and certain other regulations began applying to some wellness programs as of January 1, 2008. In an effort to assist employers in determining whether or not their wellness efforts are now covered, the Department of Labor’s Employee Benefit Security Administration has issued a checklist. The checklist can be accessed at http://www.dol.gov/ebsa/pdf/fab2008-2.pdf
HAVE YOU GOT THE NEW I-9 PROCEDURES UNDER CONTROL?
In another example of positive government activity, the Citizenship and Immigration Service has put out a new 48-page Handbook for Employers: Instructions for Completing the Form I-9. It is available at www.uscis.gov/files/nativedocuments/m-274.pdf. The handbook was revised November 1, 2007, and contains color pictures of sample documents from the I-9 form's three lists of permissible documents. It also includes questions and answers on a host of topics. For more details, go to www.uscis.gov.
With all these changes, it may be time to review and revise your employee handbook. For assistance call Kathy Mills, 610-797-9000, x. 308
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