Congress and various federal agencies are enacting a dozen new rules and procedures that will affect how you do business in 2010.

1. Extension of the COBRA subsidy. Employees who are involuntarily separated will continue to have rights to a COBRA subsidy — and you’ll continue to have to do the paperwork and notifications. Expect it: now.
2. New regs requiring your company disclose all retirement plan fees and and expenses to participants. These regs are in the “final rule” stage, meaning it’s almost a done deal. Expect it: September 2010.
3. More Family Medical Leave Act (FMLA) changes. Yes, your firm just had to account for new changes to the FMLA when it comes to military personnel. But the Feds aren’t done yet – they’ve vowed to review both those changes and the FMLA overhaul from Jan. ’09. No timetable yet.
4. Changes to the Health Insurance Portability and Accountability Act (HIPAA). This major (and costly-to-comply-with) rule isn’t immune from new scrutiny, either. Expect to make changes in HIPAA provisions covering: access, portability and renewability. Expect it: September 2010.
5. Updated recordkeeping regs for the Fair Labor Standards Act (FLSA). Plan on having to keep more thorough records on how you pay your people – you guessed it – in the name of “greater transparency.” No timetable yet.
6. An increase in wage-hour audits. Be sure your entire payroll papertrail is in order. DOL just hired 250 new investigators to enforce wage-hour laws. Expect it: Early 2010.
7. A spotlight on foreign workers. Firms that use workers with H-2B visas can expect more scrutiny – the Employment and Training Administration is proposing rules regarding labor certification for these folks. Expect it: after a February rule on agricultural workers.
8. A new definition of “temporary” workers. Along the same lines, the DOL wants to ensure people who are hired as temporary actually are. No timetable yet.
9. Greater accountability on affirmative action. Current regs will be revised to ensure your company complies with affirmative action reqs, particularly as it concerns veterans. Expect it: November 2010.
10. New rules for union info disclosure. Companies with unionized employees will soon have to go to greater lengths to report on the arrangements they make to persuade folks to join or not join a union. Expect it: November 2010.
11. A new standard on slip, trip and fall hazards. Beware: The Occupational Safety and Health Administration promises the rule will cover “every nonconstruction worker in the U.S.” Expect it: March 2010.
12. The return of an old recordkeeping task. Prepare to resurrect those logs your company had to check when recording musculoskeletal disorders. OSHA’s bringing it back. Expect it: January 2010.

(Answers below)

Answer True or False

1. Pregnant employees must begin taking FMLA leave not later than 30 days before their due date.

2. If you decide a pregnant employee cannot continue in her job because her condition presents a safety hazard to herself and others, you must have a doctor’s approval before you can prevent the employee from doing the job.

3. If you decide a pregnant employee is physically unable to perform the major tasks of a job (for instance, lifting or climbing), the law states you must provide that employee with another job that is less strenuous but carries the same pay and benefits.

Answers:

1. False. There is no set time period when a pregnant employee must begin taking FMLA leave. Generally, leave commences at a date of the employee’s choosing. The law does mention that, when able, employees should give their employer at least 30 days’ notice of the intent to take leave, but that time period is just a recommendation and doesn’t apply to all situations..

2. False. A supervisor or other member of management can make the call on whether a pregnant employee presents a safety hazard. A doctor’s agreement isn’t needed.

3. False. Under federal disability regs, you are only required to make a reasonable and practical effort to provide an alternative position, but not necessarily at the same pay. In some states, if the employee is unable to do the job, she’s eligible for short-term disability payments.

Outdated policies or the failure to properly inform employees about new policies can be a big black mark against employers defending themselves against a bias charge. So there’s no better way to kick off the New Year — in a business sense — than by making sure your handbook is up to date. The top-priority items to check:

• New FMLA regulations. The U.S.  Department of Labor has revised the Family and Medical Leave Act regulations a couple of times in the last year. Further, the DOL requires employers provide each employee a notice of their updated FMLA rights in a handbook or a handout at the time of hire. Failure to do so will be the first area attacked in a lawsuit over FMLA leave.
• Genetic Discrimination. The recently passed Genetic Information Nondiscrimination Act prohibits discrimination on the basis of an employee’s genetic information. What follows is that your employee handbook should include genetic information among the “protected” traits that have EEO status.
• Privacy and electronic devices. Employees may have privacy expectations in their use of company computers and other devices, such as PDAs. Still, courts have ruled generally that employers can monitor and limit computer and electronic-device usage for improper activities such as accessing “adult” materials, inappropriate e-mails, or outside business use, as well as strains on bandwidth. The handbook is one effective way to serve notice about company  monitoring policies and employee restrictions on use.
• Social Networking. Facebook, Twitter and similar sites have become part of our culture — and our workplaces. More and more companies are instituting policies regarding limits to access of such sites during work time and what employees may disclose about their workplace. Such policies should be part of your handbook.

Legal experts recommend that every employer start the year with an six-part legal checkup to ensure compliance with current employment laws.

Here’s the list from the law firm of Moore & Van Allen:

1. Do a quick review of your company’s written vacation policy. Take a look  to ensure that the policy provides proper notice of forfeiture, carryover, and accrual of vacation. Do a checkup to see that you’re in compliance with state laws.  For instance, some special rules apply in states like California regarding forfeiture of accrued vacation.
2. Update your company confidentiality agreement. First, make sure your agreement is tight and covers appropriate employees. A lot of law firms report that laid-off employees are taking revenge — or looking for an edge in finding a new job — by handing out confidential info from former employers. If you don’t have an up-to-date agreement, you leave your company open to such attacks. Second, review your agreements and policies to ensure they don’t prohibit employees from discussing their wages or terms and conditions of employment with their fellow employees. The  National Labor Relations Board views such prohibitions as illegal interference with concerted activity, even if your company is not unionized.
3. Get FMLA compliant. If your company has 50 or more employees, make sure that you post the FMLA poster that the US Department of Labor issued in 2009. Update your FMLA forms and policies, if you have not done so already. (To see if you’re in  compliance with FMLA and other federal posting requirements, use the DOL compliance advisor.
4. Get your managers up to speed on harassment policies. Review the policies with the bosses, and get them to schedule beginning-of-the-year meeting with their departments to review the policies.
5. Get FLSA compliant.  Review the company’s classification of employees as exempt from overtime under federal and state wage and hour laws. Lawsuits and investigations based on improper classifications of employees continue to be a hot area of the law and can result in significant awards against employers.
6. Conduct an internal I-9 audit. U.S. Immigration and Customs Enforcement  announced new I-9 audits for employers. Make sure your bases are covered.

Over the course of five years, an employee had a number of medical problems and took time off under both FMLA and the company’s short-term disability plan.

The company’s policy allows employees to take disability leave with a guarantee their jobs will be held open for 90 days (which, of course, is roughly the amount of time employees can take under FMLA).

When one of the employee’s periods of leave lasted longer than 90 days, the company told her it had to fill her position with someone. When she was ready to work again, she was offered a job at a lower level.

Sounds like the company did everything right: It held the woman’s position for her until she ran out of FMLA leave.

But she sued anyway, claiming she was retaliated against for taking FMLA. It turned out her old job was still open when she came back (though the employee never asked about reinstatement).

In court, the employee’s lawyer dug an e-mail her manager sent to HR explaining he wanted to hire someone else. He said the employee had taken “extended leave of absences for the past four or five years. Therefore, this has become almost a part-time position.”

The company tried to have the case thrown out, but after reading that e-mail, the judge concluded the company could have given the employee her old job back but didn’t, in retaliation for her FMLA leaves.

Cite: Keim v. National Railroad Passenger Corporation

A new fact sheet from the Department of Labor (DOL) spells out some important guidelines:

1. Leave taken by an employee who wants to avoid exposure to the flu isn’t protected under the FMLA. Employers should encourage people who are ill with pandemic influenza or are exposed to ill family members to stay home, and should consider flexible leave policies for their employees in these circumstances.

2. When schools are closed because of pandemic influenza, parents who must stay home to care for their healthy children aren’t covered by FMLA. There’s no federal law covering employees who take off from work to care for healthy children. Employers aren’t required by federal law to provide leave to those caring for healthy dependents who’ve been dismissed from school or child care. That said, given the potential for significant illness, employers should review their leave policies to consider providing increased flexibility to their employees and their families. (Remember, though, federal law says flexible leave policies can’t discriminate because of race, color, sex, national origin, retaliation, age, disability or veteran status. Policies must be applied equally.)

3. If employees can’t come to work because they have to take care of sick family members, in limited instances employers may be able to lay them off. If a worker is covered and eligible under the FMLA and has to care for a family member with a serious health condition, then he or she is entitled to 12 weeks of job-protected, unpaid leave during any 12-month period. Some states have similar family leave laws. However, people can be laid off if they’re not covered and eligible for FMLA leave – but the DOL encourages employers to:

a. consider other options, such as telecommuting, and

b. prepare an action plan specific to that particular workplace.

4. If a company sets a policy requiring employees to go home sick when they show symptoms of pandemic influenza, that time off could qualify as FMLA-protected leave. It’s important to set an action plan specific to your workplace – including giving the firm permission to send employees home. (Just be sure the policies aren’t discriminatory). This required leave would be covered under the FMLA if employees work for a covered employer and they’ve:

a. worked for the company for at least 12 months

b. worked for at least 1,250 hours over the previous 12 months, and

c. work at a location where at least 50 employees are employed by the firm within 75 miles.

Question:
We recently were advised we’re allowed to deny leave under the Family and Medical Leave Act to the highest-paid workers in our company. Is that true? If so, under what authority?

Answer:
You’re probably thinking about the so-called key-employee exception to the FMLA, says litigation expert Denise Drake. But no, you’re not allowed to deny them FMLA leave.

The exception says that key employees who are in the top 10% of the company and who take FMLA leave do not have an automatic guarantee to job restoration. The reason? It’s harder for a company to lose top-level people, hold their jobs open and sustain business until they return.

If  any of your top-paid workers request FMLA leave, advise them they are key employees and that you may fill their position before they return. But you can’t deny them leave.

The Department of Labor has issued final regs clarifying when time off does — and doesn’t — qualify under the Family Medical Leave Act (FMLA).

Tracking leave is especially important now as employees are bound to take time off for many reasons around the holidays — it could lead to trouble if they feel their time off wasn’t calculated properly and they were given less FMLA than they deserve.

Here are two areas of great concern and what’s allowed:

Leave around holidays

Whether you can count holidays toward someone’s FMLA entitlement depends on the type of leave the person takes.

Example: The hours the employee doesn’t work on the holiday will count against the leave entitlement — if he or she would normally be scheduled to work that day.

But the hours the employee didn’t work on the holiday can’t be counted against his or her leave requirement if the person wouldn’t have otherwise been required to work on that day.

Intermittent leave and OT

If an employee would’ve been required to work OT — if it weren’t for taking FMLA — then the hours the person would’ve worked (but didn’t) may be counted against his or her FMLA entitlement.

Example: Say an employee has a serious health condition that limits his normal 48-hour workweek to 40. He’d have to take 10 hours of FMLA-protected time off for the week.

Here’s what happened:

A steel mill worker in Arkansas had been demoted after having four unexcused absences for drunkenness.

The man filed suit, claiming his employer violated the Family and Medical Leave Act (FMLA) by demoting him.

He claimed that several phone calls he’d made to his supervisor during the four-day absence should’ve alerted the company to his need for FMLA leave.

The court’s decision

But a court said the calls merely put the employer “on notice that he was upset and intoxicated,” not suffering from a serious medical condition that would warrant an offer of FMLA leave.

Also, a judge said the company had no prior knowledge of the employee’s alcohol problem. And even if it had known of the worker’s problem, the FMLA only protects absences for alcohol treatment, not alcohol use.

Cite: Scobey v. Nucor Steel-Arkansas.

The ruling now gives companies more power to discipline employees who don’t provide proper FMLA notification.

What happened

A worker took intermittent leave for migraines. The side effects of his medicine made him sleep — up to 27 hours at a time — and he knew it.

The man took two doses of meds prior to his shift, but he didn’t call to notify his supervisor that he needed an FMLA day. He slept through his entire shift.

When the company suspended him for 20 days, the man sued, claiming FMLA interference.

The company said he knew he needed FMLA leave — especially after taking the second dose. He could’ve notified the company prior to his absence but failed to do so.

What the court said

The court agreed, saying the man should’ve notified his supervisor as soon as he took his medicine.

Regs require workers to notify employers as soon as possible. The worker didn’t so his suspension wasn’t FMLA interference.

Cite: Valdivia v. BNSF Railway Co., U.S. Dist. Crt., ED KN, No. 07-2467-KHV, 2/12/09.