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1. FEATURE STORY:
CHANGES TO FMLA REGULATIONS PROPOSED

On February 11, the Department of Labor (DOL) published proposed revisions to the Family and Medical Leave Act (FMLA) regulations. The DOL took into account its nearly 15 years of experience administering the law, its two previous studies of the law in 1996 and 2001, several U.S. Supreme Court and lower court rulings, and public comments received in response to a December 2006 Request for Information. The DOL is also seeking comments on the new provisions providing military family leave. (See Employment Law Today, January 29, 2008.)

The comment period is open until April 11. Click here for instructions on submitting comments and to view the proposed regs in their entirety.

Here is a summary of the most significant proposed changes.

Employee Eligibility

Proposal: Employment prior to a continuous break in service of five years or more need not be counted to satisfy the 12-month service requirement. Exceptions: 1) a break in service resulting from an employee's military obligations; and 2) where a written agreement or collective bargaining agreement exists concerning the employer's intent to rehire the employee.

Proposal: After an employee who is jointly employed is stationed at a fixed worksite for at least one year, the employee's worksite for the purposes of satisfying the "50 employees employed within 75 miles" requirement is the actual physical place where the employee works.

Serious Health Condition

Proposal: Stipulating that the "two visits to a health care provider" requirement of one of the definitions of a serious health condition means that the two visits occur within 30 days of the beginning of the period of the incapacity, unless extenuating circumstances exist (e.g., employee has difficulty scheduling the second appointment in time).

Proposal: Defining "periodic" visits for treatment of chronic conditions as twice a year or more.

Employer Notice Requirements

Proposal: To streamline the notice-distribution requirement with the posting requirement, one notice containing identical information can be used to satisfy both the posting and distribution requirements. If the notice is not contained in an employee handbook, it must be distributed annually, regardless of specific requests for leave.

Proposal: Increasing from two days to five business days the time in which an employer must inform an employee of his/her FMLA eligibility after the employee requests leave or the employer becomes aware of the need for leave.

Employee Notice Requirements — Foreseeable Leave

Proposal: Absent emergency situations, employees need to provide notice either the same day (if the employee becomes aware of the need for leave during work hours) or the next business day (if the employee becomes aware of the need for leave after work hours). This replaces the current definition of "as soon as practicable," which is one to two business days.

Proposal: Clarifying that providing an employer with sufficient information to make it aware that FMLA rights may be an issue means indicating that the employee is unable to perform the functions of the job (or that a covered family member is unable to participate in regular daily activities), the anticipated duration of the absence, and whether the employee (or family member) intends to visit a health care provider or is receiving continuing treatment.

Proposal: Absent unusual circumstances, employees may be required to follow established call-in procedures (except those that impose a more stringent timing requirement than the regulations provide). Failure to properly notify employers may cause a delay or denial of FMLA protections.

Employee Notice Requirements — Unforeseeable Leave

Proposal: In all but the most extraordinary circumstances, employees need to provide notice at least prior to the start of their shift and comply with the employer's usual procedures for calling in and requesting leave.

Medical Certification

Proposal: Remove the requirement that employers receive employee consent to authenticate the certification, and allow the employer (rather than the employer's health care provider) to contact the employee's health care provider for authentication and clarification purposes.

2. CATHIE'S CORNER:
MULTI-STATE EMPLOYERS HAVE POLICY HEADACHES

The other day my husband and I were watching CNN, and a story came on about a U.S. Supreme Court ruling concerning the use of medical marijuana and drug testing in California. My husband looked at me and said, "There's your next article."

Well, I'm not about to get into the pros and cons of the medical use of marijuana or whether or not employers should be allowed to terminate on that basis. But I think it's a good idea to discuss how state laws can complicate the policy-writing process when you have employees in multiple states. You don't want to have different policies for every state where you have a presence. And since state law can vary wildly, where does this leave you? I'm going to use a couple of commonly asked questions as possible examples.

Breaks. Federal law does not require breaks; however, if breaks are offered, breaks of under 20 minutes must be paid. But some states do require breaks, either rest breaks, meal breaks, or both. Suppose for the sake of argument that you have employees in Florida (no breaks required); Connecticut (meal breaks required); and Kentucky (rest and meal breaks required). You could set a policy that grants employees in all three states rest and meal breaks. Or you can offer meal breaks to employees in all states, but rest breaks only in Kentucky. Or you could give no breaks to employees in Florida, meal breaks to employees in Connecticut, and both meal and rest breaks to employees in Kentucky. Any of these options would be legal.

Payout of unused vacation at termination. It's not required by federal law. As far as state law goes, there are four different categories: unused vacation must be paid out at termination regardless (e.g., Massachusetts); unused vacation must be paid out at termination only if company policy says it will be (e.g., Texas); unused vacation must be paid out at termination unless company policy says it will not be (e.g., New York); or unused vacation need not be paid out at termination (e.g., Georgia). For the sake of argument, let's assume you have employees in all four of these states. You can have an across-the-board policy that unused vacation will be paid out at termination, which would be legal in all four states. You can say that vacation will only be paid out under certain circumstances (such as giving two weeks' notice) or when required by state law, and then only pay it out to employees who give two weeks' notice in all states except Massachusetts, where it is paid out in all cases. Or you can say it will only be paid out where required by law, and pay it only to employees in Massachusetts.

It's up to you to determine what is easiest to administrate and causes a minimum of employee-relations issues.

I'll close by suggesting that the simpler you can keep your policies the better. Just think how easy it is for HR professionals to confuse state law, federal law, and company policy — your employees are most likely even more confused.

Catherine Bannon is an HR consultant in Marshfield, MA (catherine.bannon@gmail.com). Bannon worked for 10 years in HR management before starting her consulting practice.

SUPERVISOR TO MANAGER: "HE GOES, OR I GO"

A supervisor and an employee clash. The supervisor demands that you fire the employee, and threatens to quit if you don't. You don't, so he makes good on his threat...until the next day, when he asks for his job back...View the full story on our website.

FREE REPORT

Check out the Free Report, "When Romance Rocks The Workplace," which provides you with practical advice for managing unrequited love, off-hour rendezvous, and superior/subordinate relationships to help ensure that your organization's heart isn't broken in court, along with its piggybank.