Covered employers[1] must take the following steps to comply with the November 17, 2008 Federal regulations:
Post a Written Notice.Even if no employees are eligible for FMLA Leave, the employer must post a Notice of Rights approved by the Secretary of Labor explaining rights and responsibilities under FMLA; (Posted Notice Form)Electronic Posting is sufficient if accessible by all employees and job applicants. Include it in Handbook or Policy.If the employer has any FMLA-eligible employees, the Notice of Rights must be included in the employee handbook or other written guidance on employee benefits or leave rights; the Notice may need to be in Spanish, depending on the composition of the workforce, and provided in Braille or other method to apprise sensory-impaired individuals with notice. Content of Notice.The Notice should include information about employee rights and obligations under FMLA; it can be included in employee handbooks or other written personnel policies or agreements (including Collective Bargaining Agreements) or, if no handbook or other written policies covering the subject exist, provided as a general written guidance about employee rights and obligations under FMLA whenever an employee requests leave. A copy of Department of Labor issued Fact Sheet 28 will fulfill this requirement. See Fact Sheet 28A for FMLA Military Family Leave Entitlements. Written Eligibility Notice.When an employee exercises his or her rights, provide a written notice designating the leave as “FMLA leave” and detailing specific expectations and obligations of an employee who is exercising his/her FMLA entitlements. The employer may use the "Employer Response to Employee Request for Family or Medical Leave" (D.O.L. optional form WH-381) to meet this requirement. The written notice should be provided to the employee within five business days after receiving the employee's notice of need for leave and include the following: (1) that the leave will be counted against the employee's annual FMLA leave entitlement; (2) any requirements for the employee to furnish medical certification and the consequences of failing to do so; (3) the employee's right to elect to use accrued paid leave for unpaid FMLA leave and whether the employer will require the use of paid leave, and the conditions related to using paid leave; (4)any requirement for the employee to make co-premium payments for maintaining group health insurance and the arrangement for making such payments; (5) any requirement to present a fitness-for-duty certification before being restored to his/her job; (6) rights to job restoration upon return from leave; (7) the employee's potential liability for reimbursement of health insurance premiums paid by the employer during the leave if the employee fails to return to work after taking FMLA leave; and (8) whether the employee qualifies as a "key" employee and the circumstances under which the employee may not be restored to his or her job following leave. Source:Department of Labor website:
[1] “Covered employer” means either a public agency, including State, local or Federal employer, and local education agencies (schools); and, private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year.
Summary of ADA Amendment Provisions:
On September 25, 2008, the President signed the Americans with Disabilities Act Amendments Act of 2008 ("ADA Amendments Act" or "Act"). The Act makes important changes to the definition of the term "disability" by rejecting the holdings in several Supreme Court decisions and portions of ADAregulations issued by the EEOC. The Act retains the ADA's basic definition of "disability" as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, it changes the way that these statutory terms should be interpreted in several ways. Most significantly, the Act:
directs EEOC to revise that portion of its regulations defining the term "substantially limits";
expands the definition of "major life activities" (first by listing many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating); second, by listing major bodily functions (e.g., "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions");
mandates that mitigating measures shall not be considered in assessing whether an individual has a disability;
clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
provides that an individual subjected to an action prohibited by the ADA (e.g., failure to hire) because of an actual or perceived impairment will meet the "regarded as" definition of disability, unless the impairment is transitory and minor;
provides that individuals covered only under the "regarded as" prong are not entitled to reasonable accommodation; and
emphasizes that the definition of "disability" should be interpreted broadly.
The Department of Labor's Wage and Hour Division's Final Rule under the Family and Medical Leave Act became effective on January 16, 2009.FMLA now requires military Family Leave. The Federal Register Notice and related documents are available at the Department of Labor website: http://www.dol.gov/dol/topic/benefits-leave/fmla.htm. The regulations are the implementation of H.R. 4986, the National Defense Authorization Act for FY 2008 (NDAA), Pub. L. 110-181. Among other things, section 585 of the NDAA which amended the FMLA of 1993 to permit a "spouse, son, daughter, parent, or next of kin" to take up to 26 workweeks of leave to care for a "member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness." The NDAA also permits an employee to take FMLA leave for “any qualifying exigency (as the Secretary [of Labor] shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.” The NDAA is now effective its express terms, this provision of the NDAA as of the date the Secretary of Labor issued the final regulations defining “any qualifying exigency.”
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