Regulatory Updates January 2009

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Text of Regulatory Updates January 2009

  • 1. Regulatory Updates And Legislative Outlooks January 2009

2. Conference Call Agenda

  • Review regulatory updates
    • ADAAA
    • FMLA
  • Review outlook on EFCA
  • Identify next steps and on going communication plan

3. Regulatory Changes

  • ADAAA Americans with Disabilities Act Amendments
    • Expands the definition of individuals who are considered disabled and protected under ADA
    • Restricts courts ability to consider mitigating measures
    • effective 1/1/09
  • FMLA Amendments Family Medical Leave Act
    • Several changes in process regarding how FMLA is determined and qualified
    • effective 1/16/09

4. ADAAAAmericans with disabilities act amendments act of 2008

  • Congress has clearly expressed their intent to shift the focus of inquiry from does the individual have a disability? to has the covered entity complied with their obligations?As a result, protected classes of physical and mental disabilities will increase in scope and the number and duration of ADA claims will rise
  • Three part test to determine if an individual is covered
      • Physical or mental impairment that substantially limits one or more major life activities
      • A record of such impairment
      • Being regarded as having such an impairment
  • Defined Major Life Activities and introduced a new term: Major Bodily Functions to further specify what is meant by Major Life Activities
      • Life Activities: Eating, Sleeping, Standing, Breathing
      • Bodily Functions: Digestive, Circulatory, Respiratory, Reproductive
  • Require broad construction of the terms disability and substantially limits to be as inclusive as possible
  • An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active
      • Migraine Headaches
      • Epilepsy

5. ADAAA continued

  • The determination of substantially limits must be made without regard to mitigating measures such as medication, equipment, prosthetics, hearing aids, assistive technology, reasonable accommodations or learned behavioral adaptations (ordinary eyeglasses or contacts are excluded)
  • Removed all limitations on the what is meant by Regarded as having such an impairment.
    • An individual meets the requirement of being regarded as having such an impairment if the individual establishes that he or she has been subjected to an action prohibited under this act because of anactual or perceivedphysical or mental impairmentwhether or not the impairment limits or is perceived to limit a major life activity
  • This new definition specifically excludes transitory and minor impairments from coverage and defines transitory impairments as those limited to 6 months or less actual or expected duration
      • Post-operative infection

6. ADAAA continued

  • Strong emphasis on recognizing when entering the interactive process is necessary will increase company supervisory personnel responsibility to know what to listen for and how to respond
      • Migraine Headache
      • Sleep Disorder
  • Greater scrutiny of the interactive process for good faith participation by the employer may require a new approach/procedure (Guide to the interactive process inAppendix A.1page 28)
  • Limits employers ability to dismiss cases based upon the severity of impairment
      • High blood pressure
  • Additional care in approaching the way impairments are perceived and regarded do not treat an individual differently without a formal process

7. ADAAA Summary

    • Identify next steps where appropriate
      • Job description review
        • To include physical requirements(see examples inAppendix A.2pages 29 and 30)
      • Handbook review
        • Not necessary to reference but if there are references, it should be reviewed.
      • Procedures regarding reasonable accommodation
      • Training and education for management(see examples inAppendix A.1Page 28)

8. FMLA Regulatory Changes

  • Reorganized the rules and clarified many provisions
  • Intention was to ensure the law is working for employees and employers

9. FMLA Specific Provisions

  • Military Caregiver Leave eligible employees who are family members of covered service members are able to take up to 26 weeks of leave in a single 12 month period to care for a covered service member with a serious illness or injury incurred n the line of duty while on active duty
  • Qualifying Exigency Leave the normal 12 work weeks leave is available to eligible employees where the qualifying exigency arises out ofthe fact that the eligible employees spouse, child or parent is on or has been called to active duty in the US Armed Forces. Examples given:
    • Short-notice deployment; Military events; Childcare and school activities; Financial and legal arrangements; Counseling; Rest and recuperation; Post-deployment activities

10. FMLA Specific Provisions Continued

  • Light Duty Under the final rule, time spent performing light duty work following FMLA leave does not count against an employees FMLA leave entitlement
  • Waiver of Rights Employees may voluntarily settle or release their FMLA claims without court or EEOC approval
      • All Separation Agreements should be revised

11. FMLA Specific Provisions Continued

  • Serious Health Condition
  • Added guidance regarding the definitions of serious health conditions:
    • More than three consecutive, full calendar days of incapacity plus two visits to a health care provider:the two visits must occur within 30 days of the beginningof the period of incapacity and the first visit must take place within 7 days of the first day of incapacity .
        • Bicycling accident two broken arms and in the hospital
        • ACL tear no visit in the first 30 days
    • More than three consecutive, full calendar days of incapacity plus a regimen of continuing treatment:the first visit to the health care provider must take place within seven days of the first day of incapacity .
        • Lifting herniated disc physical therapy
    • Defines periodic visits for chronic serious health conditions as at least two visits to a health care provider per year.
        • Asthma, Diabetes, Epilepsy, etc.

12. FMLA Specific Provisions Continued

  • Substitution of Paid Leave
    • Employees may take, andemployers may require employees to take , any accrued paid vacation, personal, family, or medical or sick leave, as offered by the employer, concurrently with any FMLA leave.
    • All forms of paid leave offered by an employer will be treated the same regardless of the type of paid leave substituted. The employee must follow the same terms and conditions that apply to other employees regarding the paid leave.
      • Maternity is the same as a bypass operation
    • An employee is always entitled to unpaid FMLA leave if he or she does not meet the employers conditions for taking paid leave.An employer may waive any procedural requirements for taking any type of paid leave in order to meet either the employees desire to substitute paid leave or the employers requirement of the use of paid leave.

13. FMLA Specific Provisions Continued

  • Employer Notice Requirements
  • Employers will be required to provide employees with a general notice (Poster and handbook at hire), an eligibility notice, a rights and responsibility notice, and a designation notice.In order to comply employers will be given additional time to provide notice (5 business days, increased from 2)The specific forms are not yet available . ( SeeAppendix B.1 page which includes a handbook policy which conforms to the requirements of the final rule.)

14. FMLA Specific Pr