IN THIS ISSUE:

1. Feature Story: FMLA Final Regulations Effective Next Month

2. Cathie's Corner: Isn't It Obvious?

3. Taking Remedial Action Is Not a Foolproof Defense Against Retaliation Claims

4. Free Reports: Get Ready For The New FMLA Rules

5. HR Soapbox: 'Tis The Season To Be Busy! 

AHI's We Couldn't Make This Up

A customer returned a pair of shoes to a Kansas City, MO, store. The retail clerk processed the return, gave the customer his money back, and issued him a return receipt. All well and good. That is, until the customer noticed that in the customer field of the receipt, the employee keyed in "dumb n*****." Not surprising: The employee was terminated. What was surprising: When the customer pressed to learn how the words got on the receipt, the store told him that the employee entered a generic code, which begs the question, Was the racial slur pre-programmed in the system?!?

1. FEATURE STORY:
FMLA FINAL REGULATIONS EFFECTIVE NEXT MONTH

On November 17, the Department of Labor (DOL) published final regulations governing the Family and Medical Leave Act (FMLA). They are effective January 16, 2009. That doesn't give you much time to read through the hundreds of pages of regulations! So we've done it for you.

Here are some of the highlights of what's new, what's changed, and what's been clarified. Find a more detailed report at http://www.legalworkplace.com/new-fmla-rules-free-report.aspx.

Eligible employees: The FMLA requires that employees must work for an employer for at least 12 months, and these 12 months need not be consecutive. The final regulations allow for a break in service of up to seven years. The proposed rule only allowed a five-year gap.

Serious health condition: The definition "continuing treatment by a health care provider" involving two visits to the health care provider has been clarified to require that the two visits must occur within 30 days, and the first visit must occur within seven days of the first day of incapacity, absent extenuating circumstances.

The definition of "continuing treatment by a health care provider" involving one visit to a health care provider plus continuing treatment has been clarified to require that the visit must occur within seven days of the first day of incapacity.

"Periodic treatment" of a chronic serious health condition is defined as at least twice a year.

Qualifying exigency: The final rule defines "qualifying exigencies" as: short-notice deployment; military events and related activities; childcare and school activities; financial and legal arrangements; counseling; rest and recuperation; post-deployment activities; and additional activities.

Intermittent or reduced schedule leave: The final regulations make clear that employers must account for intermittent or reduced schedule leave using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave, provided it is not greater than one hour. Employers are not required to account for FMLA leave in increments of six minutes or 15 minutes, for example, simply because their payroll system is capable of doing so.

Substitution of paid leave: Employers may apply their normal leave policies to the substitution of all types of paid leave for unpaid FMLA leave.

Bonuses: Employees may be disqualified from receiving a perfect attendance award due to FMLA leave.

Light duty: The time an employee voluntarily works in a light-duty assignment does not count as FMLA leave. At the end of the assignment, the employee has the right to be reinstated to the same or an equivalent position, provided that he/she can perform essential job functions.

Employer notice requirements: The final rule allows employers that do not have employee handbooks or other written materials concerning benefits and leave that are distributed to all employees to provide the general notice to each new employee upon hire, rather than requiring that it be distributed to all employees annually.

Employers now have to notify employees of their eligibility to take FMLA leave within five business days (was two), absent extenuating circumstances.

Employers now also have five business days in which to notify employees of whether or not leave is designated as FMLA leave, absent extenuating circumstances.

Consistent with the U.S. Supreme Court's 2002 decision in Ragsdale v. Wolverine World Wide, Inc., the final rule removes the "categorical" penalty requiring an employer to provide more than 12 weeks of FMLA leave, and clarifies that an employee who suffers individual harm may be entitled to lost compensation and benefits; other actual monetary losses; and appropriate equitable relief.

Employee notice requirements: Employers may require employees to follow their usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances, so long as the employer's usual reporting procedure is not more stringent than the FMLA allows.

Medical certification: Employers (e.g., HR professionals, leave administrators, management officials) may now contact the employee's health care provider directly and without the employee's consent; however, the employee's direct supervisor is prohibited from making contact.

2. CATHIE'S CORNER:
ISN'T IT OBVIOUS?

I overheard one of my co-workers on the phone with an employee, and it occurred to me that there are often things that we as HR professionals take for granted, which are not as obvious to those who do not work in the HR and Benefits areas. The topic in question had to do with the vision plan and whether or not the employee could get both a pair of glasses and a pair of contact lenses in the same year. While certainly a vision plan could be written in such a way that you could get both, I've never managed a plan that allowed for that and I'm betting that not many of you have either. But for someone that doesn't work in the field, it is a perfectly reasonable question....Continue the story.

3. TAKING REMEDIAL ACTION IS NOT A FOOLPROOF DEFENSE AGAINST RETALIATION CLAIMS

A retaliation claim involves a protected activity, an adverse employment action, and a causal connection between the two. Without one of these elements, the retaliation claim fails. You might assume that remedying an adverse action would preclude a successful claim, but that's not always the case....Continue the story.

4. FREE REPORTS: GET READY FOR THE NEW FMLA RULES  
 

Check out the Free Report, Get Ready For The New FMLA Rules, which gives you a detailed breakdown of the new Family and Medical Leave Act (FMLA) rules finalized by the Department of Labor (DOL), and even points out where these final rules differ from the proposed rules. Learn about the new procedures used for taking military family leave, the new definitions of "continuing treatment," "periodic treatment," and "qualifying exigency," and much more.

5. HR SOAPBOX: ‘TIS THE SEASON TO BE BUSY!

Between tending to personal responsibilities, decorating for the holidays, shopping for holiday gifts, wrapping those gifts, sending holiday cards, attending parties, baking sweet treats, and, oh yeah, working, the temptation to do anything but work while at work is high...Continue the story.