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

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EXECUTIVE COMPENSATION GROUPADVISORY — DISCLOSURE DEVELOPMENTS: EXECUTIVECOMPENSATION

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

The Family and Medical Leave Act: N R l ti d R i i YNew Regulations and Revisions You Need to Know Nowd

Thursday, January 15, 2009y, y ,

R b t Whit ERobert Whitman, Esq. David Jimenez, Esq.

O POur Presenters

Robert S. WhitmanPartnerSeyfarth Shaw LLP(212) 218-5629rwhitman@seyfarth comrwhitman@seyfarth.com

David R JimenezDavid R. JimenezPartnerJackson Lewis LLP(860) 522-0404JimenezD@jacksonlewis.com

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N iNotice

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

d i ill lik l d h diffand requirements will likely 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 requirementsparticulars of their organization and their state requirements, in order to ascertain all of the applicable FMLA procedures.

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O iOverview

• Revised regulations effective January 16, 2009• Statute unchanged• Provide employers new tools to administer FMLA more

efficientlyy• Many technical and organizational changes• Overarching theme is “shared responsibility”

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Wh W Will CWhat We Will Cover

• Coverage Issues• Notice Obligations – Employer and Employee• “Serious Health Condition”• Serious Health Condition• Medical Certifications• Intermittent Leave

Li h D• Light Duty

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Wh W Will C ( )What We Will Cover (cont.)

• Clarification of Other Employee Leave Entitlements• Waivers• Substitution of Paid Leave• Bonuses• Bonuses• Military Family Leave• Steps Employers Should Take Now

P ibl E i f FMLA• Possible Expansion of FMLA

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C ICoverage Issues

• To be eligible for FMLA leave, employee must have 12 months of service with employer

• 12 months now measured over 7 yearsy

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N i Obli i E lNotice Obligations – Employer

• Employer must post general FMLA notice even when they have no FMLA-eligible employees

• Each employee entitled to general FMLA notice unlessEach employee entitled to general FMLA notice unless employer publishes handbook or other summaries of leave rights

• Posting requirements may now be satisfied through electronicPosting requirements may now be satisfied through electronic posting

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N i Obli i E l ( )Notice Obligations – Employer (cont.)

Two new forms:

1) DOL WH-381 – Eligibility/Rights and Responsibilities FormSend within 5 business days, absent extenuating circumstancesSend within 5 business days, absent extenuating circumstancesDetails specific expectations and obligations of employees, explaining consequences of failing to meet the obligationsEliminates need to provide a “preliminary” designation of FMLA p p y gleavePossible ambiguity in instances where “eligible employees” have previously exhausted all FMLA leave

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N i Obli i E l ( )Notice Obligations – Employer (cont.)

2) DOL WH-382 -- Designation FormConfirms employer’s leave determinations and designated leave amountDue 5 business days after employer receives satisfactory medical certification of need for leaveRetroactive notice is permissible if it does not cause employee h i jharm or injury

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N i Obli i E lNotice Obligations – Employee

• Employee must explain reasons for leave to allow employer to determine whether leave qualifies under the Act

• “Calling in sick” – insufficientg• 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 leavereference 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 circumstancesunusual circumstances

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“S i H l h C di i ”“Serious Health Condition”

• 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

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M di l C ifi iMedical Certifications

• Employer “shall state in writing what additional information is necessary to make the certification complete and sufficient”

• “Incomplete” and “insufficient” certifications definedp• Employee has 7 calendar days to cure deficiencies• Clarification:

Employer need not retain health care provider to obtainEmployer 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 leaveWill demand greater effort in administering FMLA leave

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M di l C ifi i ( )Medical Certifications (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 y ycan 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 g y , yrequired until initial period of leave has expired

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M di l C ifi i ( )Medical Certifications (cont.)

• Changes: Fitness-for-Duty Certifications Employers may demand more than “simple statement” of ability to return to workFitness-for-duty certifications for intermittent leave may be

h f bl fsought if reasonable safety concerns existNo 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 FormN tifi ti f h lth id f f il b ’New certification of health care provider for family member’s serious health condition -- WH-380F FormState law may restrict access to medical information

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M di l C ifi i ( )Medical Certifications (cont.)

• Considering Information from Other SourcesPrior regulations severely limited medical inquiriesNew regulations recognize inter-relationship between FMLA, ADA, disability insurance and workers’ compensationEmployers may now utilize information provided under such benefit programsEmployer and employee can agree to supplement disabilit / orkers’ compensation benefits ith paid lea edisability/workers’ compensation benefits with paid leave

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I i LIntermittent 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• 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 availableemployees of amount of leave availableBut not more than once every 30 days

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Li h DLight Duty

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

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O h E l L E i lOther Employee Leave Entitlements

• Required overtime counts against FMLA leave entitlement• Light duty does not count toward FMLA entitlement• Disqualification for bonuses permitted so long as employer• 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”other relief tailored to the harm suffered

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W iWaivers

• Courts have split over employee ability to waive FMLA claims• Settlement of past FMLA claims now permitted without DOL or

court approvalpp• Employers should modify general releases to include FMLA

claims, recognizing still some risk of litigation

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S b i i f P id LSubstitution 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

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BBonuses

• Regulation on “perfect attendance award” eliminated• Non-discrimination rule adopted

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Mili F il L Q lif i E iMilitary Family Leave – Qualifying Exigency

• For exigencies arising from active duty status• New optional DOL Form WH384 for leave certification

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Mili S i b L D fi i iMilitary Servicemember Leave Definitions

Qualifying Exigency Defined (exclusive list)

1) Short-notice deployment2) Military events and related activities) y3) Childcare and school activities4) Financial and legal arrangements5) Counseling) g6) Rest and recuperation7) Post-deployment activities8) Additional activities related to active duty or call to active duty8) Additional activities related to active duty or call to active duty

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Q lif i E i L N iQualifying 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. 825.302(a))

• “[A]s soon as practicable” normally means same day or next business day but is circumstantial test (29 C.F.R. 825.302(b))

• If not foreseeable? Comments indicate when employee first p yseeks to take leave

• Notice not required upon notice of active duty or call to active dutyy

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Military Caregiver Leave –“Si l 12 M h P i d”“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)( , , g y)

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Military Caregiver Leave –“Si l 12 M h P i d” ( )“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 periody p

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Military Caregiver Leave –S D h d N f KiSon, Daughter and Next of Kin

• 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 writingy g g• In absence of designation, multiple family members at same

level of relationship all are next of kin and may take leave consecutively or simultaneouslyy y

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Military Caregiver Leave –D l P LDual Purpose 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 p y y y g

leave

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Military Caregiver Leave –M di l C ifi iMedical Certification

• 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. 825.310)

• 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

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S E l Sh ld T k NSteps Employers Should Take Now

• Update FMLA policies• Update FMLA posters and notices• Develop FMLA Guidelines and Procedures

May need three different guidelines for HR, supervisors andMay need three different guidelines for HR, supervisors and employees

• Update/develop certification forms and template letter• Training (HR Supervisors and potentially employees)• Training (HR, Supervisors, and potentially employees)

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P ibl E i f FMLAPossible Expansion of FMLA

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• Care for individuals who reside in an employee s home for 6 months

or more

Expand FMLA to cover businesses with > 25 employeesEncourage states to adopt paid-leave systems

Source: www.barackobama.com

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P ibl E i f FMLA ( )Possible Expansion of FMLA (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

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