Urgent Employee Medical Leave Updates for 2009

1. Urgent Employee Medical Leave Updates for 2009 Patrick T. Collins, Esq. Keith D. McDonald, Esq. David E. Cassidy, Esq. The material provided herein is for informational purposes only and is not intended as legal advice or counsel.

2. Please help yourself to food and drinks Please let us know if the roomtemperature is too hot or cold Bathrooms are located past the reception desk on the right Please turn OFF your cell phones Please complete and returnsurveys at the end of the seminar

3. The New FMLA & MFLA Regulations Patrick T. Collins, Esq.

4. Introduction • Final rule issued on November 17, 2008 - Over 20,000 comments • Overall attempt to clarify communication process • Q&A format gone • New forms • Changes effective January 16, 2009 • DOL website: www.dol.gov/esa/whd/fmla/finalrule.htm

5. Introduction • Final regulations with comments over 750 pages • Four categories of changes: 1. Substantive Standards 2. Notice/Timing Rights and Requirements 3. Medical Certification Process 4. Military Family Leave

6. Substantive Standards ELIGIBILITY Old Regulations • Did not specify how a break in service would affect 12 month employment requirement • Did not address employees on leave at 12 month anniversary New Regulations • Previous periods of employment count if break in service is less than 7 years • Employees on leave at 12 month anniversary become eligible as long as benefits/compensation provided on leave

7. Substantive Standards WAIVERS Old Regulatory/Case Law • Employees may not waive FMLA rights New Regulation • Employees may waive FMLA rights retroactively

8. Substantive Standards PERFECT ATTENDANCE AWARDS Old Regulations • Cannot disqualify employee from awards/bonuses based on attendance on basis of FMLA leave New Regulations • Can be disqualified based on FMLA as long as non-FMLA leave is treated the same

9. Substantive Standards SERIOUS HEALTH CONDITION Old Regulations • Period of incapacity for (a) more than 3 consecutive calendar days and (b) treatments by health care provider (either (i) one treatment plus regimen of treatment or (ii) two treatments). No guidance on when treatment must occur. New Regulations • Period of incapacity for 3 FULL consecutive calendar days • In person treatment within 7 days of first day of incapacity plus (a) regimen of treatment or (b) second in-person treatment within 30 days of first day of incapacity

10. Substantive Standards CHRONIC CONDITIONS Old Regulations • “Periodic visits” to health care provider. No guidance on how many visits or how often. New Regulations • At least 2 visits to health care provider per year

11. Substantive Standards SUBSTITUTION OF PAID TIME OFF Old Regulations • Employees may substitute PTO for unpaid FMLA leave New Regulations • The right to substitute PTO depends on the employer’s policies • The employer may enforce all normal rules for PTO Examples: Vacation: Minimum increments of 8 hours Sick Time: Limited to employee’s illness NOTE: Employees may opt to take unpaid FMLA leave in smaller increments.

12. Substantive Standards LIGHT DUTY Old Regulations • Light duty assignments count as FMLA leave New Regulations • Light duty assignments do not count as FMLA leave • Reinstatement rights exist for up to the full 12-month leave year while on light duty

13. Notice/Timing Rights POSTER Old Regulations • Must have poster posted New Regulations • New poster (General Notice) • Posted hard copy or electronically • Must be included in Employee Handbooks • Must be distributed to all current employees, all new hires and provided to applicants

14. Notice/Timing Rights ELIGIBILITY NOTICE Old Regulations • 2 Business days New Regulations • 5 business days from date of request • Notice of Eligibility and Rights and Responsibilities (Form WH-381) • Part A – Notice of Eligibility • Part B – Rights and Responsibilities • Explain 12 month leave year • Written confirmation required • PTO included

15. Notice/Timing Rights DESIGNATION NOTICE (Form WH-382) • Designating leave as FMLA leave • Amount of leave to be counted • Whether PTO will be applied • Whether Fitness For Duty Certification will be required • Attached list of essential job duties • Procedures when additional information is needed

16. Notice/Timing Rights FAILURE TO DESIGNATE FMLA LEAVE Old Regulations • Employee’s leave does not count as FMLA leave unless and until employer designates leave as FMLA (RAGSDALE V. WOLVERINE WORLD WIDE, INC. (535 U.S. 81 (2002)) New Regulations • Adopts RAGSDALE • Employer may retroactively designate leave as FMLA leave unless employee can show harm from failure to timely designate

17. Medical Certifications 2 NEW FORMS • Employee’s Serious Health Condition (Form WH-380-E) • Family Member’s Serious Health Condition (Form WH-380-F) • Must provide form with Rights and Responsibilities Notice • Can request a diagnosis, symptoms, treatment, etc. • Explain why care is medically necessary • Probable duration • “unknown,” “indeterminate,” and “lifetime” are not acceptable • 15 calendar days to provide completed certifications

18. Medical Certifications INCOMPLETE OR INSUFFICIENT • Employer must provide written notice to employee as to specific information still needed • Employee has 7 calendar days to cure AUTHENTICATION/CLARIFICATION • HR, Management, company doctor may contact employee’s doctor • Employee’s supervisor MAYNOT

19. Medical Certifications • Certifications will request sensitive health information about employees or family members • HIPAA consents will be required • If employee refuses consent, leave can be denied • Limits on who can contact employee’s doctor • Employers should designate their employees • Certifications must be maintained in confidential medical files • Separate from general personnel file • Genetic information concerns • Restrictions on disclosure

20. Medical Certifications RECERTIFICATIONS Old Regulations • Every 30 days New Regulations • Every 30 days is out! • More than 30 days, when duration of leave expires • Every 6 months • Less than 30 days – not permitted • Requests for extensions • Significant changedcircumstances

21. MFLA Leave

22. MFLA Leave • Exigency Leave • Certification of Qualifying Exigency (Form WH-384) • Military Caregiver • Certification for Serious Injury or Illness for Covered Service Member (Form WH-385)

23. MFLA Leave EXIGENCY LEAVE • Employee’s spouse, son/daughter or parent is on/called to active duty in National Guard or Reserves • Federal (not State) • 12 weeks max, part of regular FMLA

24. MFLA Leave QUALIFYING EXIGENCY • Short-notice deployment activities; • Military events and related activities; • Childcare and school activities; • Financial and legal arrangements; • Counseling activities; • Rest and recuperation activities; • Post-deployment activities; and/or • Additional activities

25. MFLA Leave MILITARY CAREGIVER • All employees who are spouse, son, daughter, parent or next of kin to care for “covered service member” who incurs serious illness or injury in line of active duty • Covers both National Guard or Reserves and Regular Armed Forces • 26 weeks in any single 12-month period • Per covered service member/per injury

26. Practical Considerations • Download the DOL website onto your Favorites • Familiarize yourself with Regulations • Familiarize yourself with New Forms • Distribute and post the new General Notice • Review Employee Handbooks, FMLA policies • Review polices/safeguards for medical information • Train employees who will be dealing with these issues

27. New Jersey’s Paid Family Leave Benefits Keith D. McDonald, Esq.

28. Overview • Applies to all New Jersey employers regardless of number of employees • Administered through the State Temporary Disability Benefits Program • Employee funded through payroll tax • Wage replacement, not technically “leave” • Benefits available starting July 1, 2009

29. Overview • Available to all New Jersey employees who pay into the State Temporary Disability Benefits Program • Test: Worked at least 20 weeks or earned at least 1000 times the hourly minimum wage during the prior year (for any NJ employer) • A seven day waiting period is required before paid leave kicks in

30. Overview • Provides employees with six weeks of paid leave over any 12-month period to: • Care for a newborn or newly-adopted child • Care for a “family member” with a “serious health condition” • Employees receive two-thirds of their wages, capped at $546 a week • Tax withholding of 0.09% or approximately $0.64 per week

31. Definitions • “Family member” • “Parent” • “Child” • “Care” • “Serious Health Condition”

32. How Much Leave? • Six weeks with respect to “any one period” of continuous leave • 42 days with respect to leave taken on intermittent basis to care for sick family member • Any 12 month period – not based on calendar year

33. Medical Certification • Must state: • Date of onset of condition • Probable duration of condition • Medical facts within knowledge of provider regarding the condition • Statement that condition warrants participation of employee • Estimate of amount of time care will be needed • Statement that intermittent care is necessary (if applicable)

34. Are You In Compliance? • Employee tax withholdings required to begin on January 1, 2009 • Posting requirements should have taken place by December 15, 2008

35. Employer Notice Requirements • Notice must be issued: • not later than 30 days after the notification form is provided by the Department of Labor; • at the time of hire; • whenever an employee provides notice that the employee is taking covered leave; and • at any time, upon an employee’s first request for a copy of the notice

36. Employee Notice Requirements • At least 30 days notice required when seeking leave to care for a newborn or newly-adopted child • Prior notice not required when an employee seeks leave to care for an ill family member • Provided in a reasonable manner • Intermittent leave – 15 days notice absent unforeseen circumstances

37. NJFLA and FMLA • Paid family leave does not affect the protections provided by the NJFLA and FMLA • An employee that qualifies for leave under these statutes and paid family leave can receive paid leave for six of the 12 weeks of unpaid leave • Paid family leave benefits run concurrent with NJFLA and FMLA benefits

38. Job Protection • Unlike the NJFLA and FMLA, paid family leave does not offer job protection for employees • Creates a “small employer exception” • Risks to small employers

39. Effects on Current Policies • Employers have the option to require employees to use up to two weeks of available PTO before receiving the paid family leave benefits • No waiting period • Policy must be written

40. Payments to Employee • Employer submission not later than 9th days after leave begins • Employee submission not later than 30th day after leave begins • State makes determination • Reasonable delay provision

41. Can Employer Deny a Paid Family Leave Request? • No, the State determines whether to grant Paid Family Leave benefits • The employer may challenge State’s grant by way of appeal under same procedures in the Temporary Disability Statute

42. Private Plans • Employer can elect to use private plan instead of State plan • “Written Election” requirement if employees are required to contribute • Contributions cannot exceed State plan contributions • All private plans require State approval

43. Disability and Paid Leave • Receipt of disability benefits does not affect eligibility for paid family leave • No waiting period for paid leave to bond with newborn when leave is taken immediately following temporary disability pregnancy-related claim

44. Other Issues • Employees cannot “opt out” of paid leave program • Payments estimated to be made two weeks after employee’s claim • State may request that family member be examined by a State designated doctor at State expense

45. Additional Resources • New Jersey Department of Labor website: http://lwd.dol.state.nj.us/labor/fli.html • Employee Notification Form and poster available for download at website and included in the materials • Prior Labor & Employment Alerts included in the materials

46. Americans With Disabilities Act Amendments Act of 2008:What Every Employer Should Know David E. Cassidy, Esq.

47. ADA Amendments Act of 2008 • “An act to restore the intent and protections of the Americans with Disabilities Act of 1990” • Purpose: to reinstate “a broad scope of protection” under the ADA

48. ADA Amendments of 2008-Retroactivity • Effective January 1, 2009 • But: Individuals not qualified with a disability before January 1, 2009, may qualify for an accommodation now

49. Important Definitions Going Forward

50. Basic Definition • ADA’s definition of a disability remains mostly unchanged • ADAAA changes how courts must interpret whether an individual qualifies as disabled • ADAAA requires the EEOC to issue new guidance