From PLI s Online Program The Family and Medical Leave Act: New Regulations and Revisions You Need to Know Now #20729

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1 From PLI s Online Program The Family and Medical Leave Act: New Regulations and Revisions You Need to Know Now # EXECUTIVE COMPENSATION GROUP ADVISORY DISCLOSURE DEVELOPMENTS: EXECUTIVE COMPENSATION Ernest W. Torain, Jr. Vedder Price P.C. Disclaimers and Suggested References: The outline that follows provides a general overview of retiree medical benefit VEBAs, with specific focus on the VEBAs recently proposed by the Big Three U.S. automakers. The author is by no means an expert on medical benefit plans or VEBAs. Nor can the author claim special insight into any aspect of the Big Three VEBAs. The information in this outline is gleaned entirely from public sources. For two very practical references on retiree medical and VEBAs see: (1) the ABA-JCEB teleconference Shifting Retiree Health Benefits from Employers to VEBAs (December 6, 2007 available in archived teleconf format or CD), in which Nell Hennessey, Douglas Greenfield, Karen Handorf and Vicki Hood do a terrific job describing the background on union retiree medical and the Big Three VEBAs and (2) Jones Day Commentary Who Killed Yard-Man (Apr. 2007), a Jones Day client newsletter

2 The Family and Medical Leave Act: New Regulations and drevisions i You Need to Know Now Thursday, January 15, 2009 Robert Whitman, Esq. David Jimenez, Esq.

3 Our Presenters Robert S. Whitman Partner Seyfarth Shaw LLP (212) David R. Jimenez Partner Jackson Lewis LLP (860)

4 Notice The following program is intended to provide general information only on recently issued regulations under the Family Medical Leave Act. This program is not intended, and should not be construed, as legal advice. Moreover, state laws and requirements will likely l vary and have different requirements. For that reason, attendees of this program should seek appropriate legal advice, specific to the particulars of their organization and their state requirements, in order to ascertain all of the applicable FMLA procedures. 3

5 Overview Revised regulations effective January 16, 2009 Statute unchanged Provide employers new tools to administer FMLA more efficiently Many technical and organizational changes Overarching theme is shared responsibility 4

6 What We Will Cover Coverage Issues Notice Obligations Employer and Employee Serious Health Condition Medical Certifications Intermittent Leave Light Duty 5

7 What We Will Cover (cont.) Clarification of Other Employee Leave Entitlements Waivers Substitution of Paid Leave Bonuses Military Family Leave Steps Employers Should Take Now Possible Expansion of FMLA 6

8 Coverage Issues To be eligible for FMLA leave, employee must have 12 months of service with employer 12 months now measured over 7 years 7

9 Notice Obligations i Employer Employer must post general FMLA notice even when they have no FMLA-eligible employees Each employee entitled to general FMLA notice unless employer publishes handbook or other summaries of leave rights Posting requirements may now be satisfied through electronic posting 8

10 Notice Obligations i Employer (cont.) Two new forms: 1) DOL WH-381 Eligibility/Rights and Responsibilities Form Send within 5 business days, absent extenuating circumstances Details specific expectations and obligations of employees, explaining consequences of failing to meet the obligations Eliminates need to provide a preliminary designation of FMLA leave Possible ambiguity in instances where eligible employees have previously exhausted all FMLA leave 9

11 Notice Obligations i Employer (cont.) 2) DOL WH Designation Form Confirms employer s leave determinations and designated leave amount Due 5 business days after employer receives satisfactory medical certification of need for leave Retroactive notice is permissible if it does not cause employee harm or injury 10

12 Notice Obligations i Employee Employee must explain reasons for leave to allow employer to determine whether leave qualifies under the Act Calling in sick insufficient Leave may be denied if employee fails to adequately explain For additional FMLA leave, employees must specifically reference the qualifying reason or need for FMLA leave Employees can be required to comply with customary notice and procedural requirements for requesting leave, absent unusual circumstances 11

13 Serious Health Condition i For incapacity plus treatment must visit HCP two times within 30 days of first day of incapacity (absent extenuating circumstances) Must see HCP within seven days of first day of incapacity Employee with chronic SHC must see HCP at least twice/year 12

14 Mdi Medical lcertifications i Employer shall state in writing what additional information is necessary to make the certification complete and sufficient Incomplete and insufficient certifications defined Employee has 7 calendar days to cure deficiencies Clarification: Employer need not retain health care provider to obtain clarification but employee s supervisor may not contact health care provider Will demand greater effort in administering FMLA leave 13

15 Mdi Medical lcertifications i (cont.) Time to request medical certifications increased from 2 to 5 business days Certifications may be required for paid leave If condition extends beyond a leave year, certifications can be requested annually In all instances, certifications can be requested once every six months Even for ongoing or lifetime serious health conditions Absent showing of changed circumstances or reason to doubt continuing validity of leave, recertification may not be required until initial period of leave has expired 14

16 Mdi Medical lcertifications i (cont.) Changes: Fitness-for-Duty Certifications Employers may demand more than simple statement of ability to return to work Fitness-for-duty certifications for intermittent leave may be sought if reasonable safety concerns exist No second or third opinions permitted New and Improved Forms (Excluding Military Servicemember Leave) New certification of health care provider for employee s serious health condition -- WH-380E Form New certification of health care provider for family member s serious health condition -- WH-380F Form State law may restrict access to medical information 15

17 Mdi Medical lcertifications i (cont.) Considering Information from Other Sources Prior regulations severely limited medical inquiries New regulations recognize inter-relationship between FMLA, ADA, disability insurance and workers compensation Employers may now utilize information provided under such benefit programs Employer and employee can agree to supplement disability/workers compensation benefits with paid leavee 16

18 Intermittent Leave Not Required to Utilize Payroll System Accounting Minimum Duration Must Be Consistent With Other Leaves Minimum Duration Cannot Exceed One Hour Clarification of Calculation Where Starting Work is Physically Impossible During Middle of Shift Employer s Obligation to Track Intermittent Leave and inform employees of amount of leave available But not more than once every 30 days 17

19 Light Duty Employee cannot be forced to take light duty if FMLA eligible New regulation: time spent in light duty is not FMLA leave 18

20 Oh Other Employee Leave Entitlements il Required overtime counts against FMLA leave entitlement Light duty does not count toward FMLA entitlement Disqualification for bonuses permitted so long as employer does so consistently Increased damages for interfering with FMLA leave rights: any other relief tailored to the harm suffered 19

21 Wi Waivers Courts have split over employee ability to waive FMLA claims Settlement of past FMLA claims now permitted without DOL or court approval Employers should modify general releases to include FMLA claims, recognizing still some risk of litigation 20

22 Substitution i of Paid Leave Prior regulation: employee may substitute without regard to employer s policy requirements (e.g., advance notice, full- or half-day increments) New regulation: employee must follow employer s paid leave policies, but employer has obligation to give notice 21

23 Bonuses Regulation on perfect attendance award eliminated Non-discrimination rule adopted 22

24 Military Family Leave Qualifying i Exigency For exigencies arising from active duty status New optional DOL Form WH384 for leave certification 23

25 Military Servicemember Leave Definitions i i Qualifying Exigency Defined (exclusive list) 1) Short-notice deployment 2) Military events and related activities 3) Childcare and school activities 4) Financial and legal arrangements 5) Counseling 6) Rest and recuperation 7) Post-deployment activities 8) Additional activities related to active duty or call to active duty 24

26 Qualifying i Exigency Leave - Notice If foreseeable, notice must be reasonable and practicable (29 U.S.C. 2612(e)(3)) DOL interprets as as soon as practicable (29 C.F.R (a)) [A]s soon as practicable normally means same day or next business day but is circumstantial test (29 C.F.R (b)) If not foreseeable? Comments indicate when employee first seeks to take leave Notice not required upon notice of active duty or call to active duty 25

27 Military Caregiver Leave Single 12 Month Period 26 weeks of leave in a single 12 month period 12 month period begins on first date of leave Operates independent of method for calculating 12 weeks of other FMLA leave (BAF, SHC, exigency) 26

28 Military Caregiver Leave Single 12 Month Period (cont.) Congress specified a single 12 month period (29 U.S.C. 2612(a)) (emphasis added) DOL says applies per servicemember, per injury No more than 26 weeks of leave in any 12-month period 27

29 Military Caregiver Leave Son, Daughter and dnext of fkin Son and daughter can be any age Next of Kin does not include spouse, parent, son, or daughter (they already have a right to this leave) Servicemember may designate blood relative in writing In absence of designation, multiple family members at same level of relationship all are next of kin and may take leave consecutively or simultaneously 28

30 Military Caregiver Leave Dual lpurpose Leave If military caregiver leave would also qualify as SHC, no dual designation allowed Leave must be designated as servicemember leave first Employer may retroactively designate leave as servicemember leave 29

31 Military Caregiver Leave Mdi Medical lcertification i New Optional DOL Form WH385 (serious illness or injury serious health condition) Some unique certification requirements (e.g., incurred in line of active duty, medically unfit to perform duties of SM office, grade, rank, or rating, etc.) (29 C.F.R ) Specified health care providers may complete (DOD, VA, DOD Tricare, DOD non-network Tricare, DOD authorized representative) Similar to SHC medical certification as to probable duration of the injury/illness and the frequency and duration of the leave 30

32 Steps Employers Should ldtake Now Update FMLA policies Update FMLA posters and notices Develop FMLA Guidelines and Procedures May need three different guidelines for HR, supervisors and employees Update/develop certification forms and template letter Training (HR, Supervisors, and potentially employees) 31

33 Possible Expansion of ffmla President-Elect Obama would like to: Expand the reasons for FMLA leave to include: Elder care 24 hours of leave each year for parents to participate in their children s academic activities Domestic violence and sexual assault Care for individuals who reside in an employee s home for 6 months or more Expand FMLA to cover businesses with > 25 employees Encourage states to adopt paid-leave systems Source: 32

34 Possible Expansion of ffmla( (cont.) Healthy Families Act would require employers with 15+ employees to provide 7 days of paid sick leave Family Leave Insurance Act would amend FMLA to provide 8 weeks of paid leave for companies with 50+ employees Survivor s Empowerment and Economic Security Act would require companies with 15+ employees to provide up to 30 days of unpaid leave for domestic-violence victims Family and Medical Leave Enhancement Act would extend coverage to employers of 25+ would allow 24 hours of unpaid leave for school conferences and medical and dental checkups 33