The Imperative Podcast: FMLA Update with Julie Ross

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Julie RossHappy New Year! We’re glad to bring you our first podcast of 2009.

In this episode, Mike interviews Julie Ross, a partner with the employment law firm of Lynn, Pham & Ross in Fort Worth. She represents employers and management in both public and private sectors in all aspects of labor and employment law. We hope you’ll listen as Julie talks with Mike about upcoming changes with the Family and Medical Leave Act (FMLA) for 2009.


For more information about Lynn, Pham & Ross, visit their website at www.laborcounsel.net. Or contact Julie at 817.332.8505.

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Imperative Information Group is a Fort Worth, Texas-based background investigations and business due diligence firm dedicated to clients who can’t afford a cheap background check. For more information about Imperative Information Group’s services, please contact Micah Taylor at 877-HR-FACTS (877-473-2287) or visit us online at http://www.imperativeinfo.com.

   

The transcript for this podcast follows:

Mike Coffey: Hello and thanks for listening to The Imperative Podcast. I’m Mike Coffey, President of Imperative Information Group. The Family and Medical Leave Act was enacted in February 1993. In the intervening sixteen years, employees have struggled to understand a number of the act’s provisions and many FMLA requirements were not well-defined until tested and interpreted by the courts. Through that process the courts invalidated a number of provisions of the Department of Labor’s regulations implementing the FMLA and then last year, the National Defense Authorization Act for FY 2008 expanded FMLA to include certain military service members and their families. In response to all these changes, the Department of Labor recently released updated FMLA regulations. Our guest on this Imperative Podcast is Julie Ross. Julie is a partner in the employment law firm of Lynn, Pham, and Ross in Ft. Worth. She represents employers and management in both public and private sectors in all aspects of labor and employment law. Thanks for being with us today Julie.

Julie Ross: My pleasure.

Mike: So we’ve heard a lot of discussion about these new FMLA regulations. When do they go into effect?

Julie: Mike they go into effect on January 16, 2009, which is not very far from now.

Mike: And I know there’s a lot of meat in those standards, those regulations. They were pretty long. Can you give us an overview of what it means for employers?

Julie: Sure. Well first of all the regs are in excess of 750 pages, which is, you know, an incredible amount to read and digest. The regs were issued on November 17 which only gives employers 60 days to digest everything and then come up with some new policies and procedures for their employees. But these changes really change the rules for FMLA which we’ve been dealing with now for fifteen years and many of us felt like we were just now getting where we knew exactly what we needed to be doing. But it’s all changed now. The new regulations have been a work in progress since 2006. There’s a lot there but just in response to your question the new regs, they change some of the Department of Labor’s former interpretations. They changed regulations to reflect court decisions that had been in conflict with some of the Department of Labor’s regulations. They reorganized and renumber some of the existing regulations. There are, as we know, the new regulations addressing service member leave, which provides FMLA leave for qualifying exigencies for eligible family members of personnel in active duty and to care for ill or injured service members. So in a nutshell what this means is employers have a month to update their FMLA policies and procedures, update their FMLA forms, and then train their HR employees and managers as well as different front line supervisors on the new responsibilities and rights under FMLA.

Mike: And this sounds like in a lot of ways in a lot of the FMLA sections this is a pretty wholesale change then to what we’ve been doing for the last fifteen years or whatever.

Julie: Absolutely and although the changes don’t solve many major areas of complaints that employers have had, for example the definition of serious health condition and intermittent leave issues, but in my view there are still a number of positive changes for employers and overall I believe the new regulations favor employers over employees and they also impose some additional obligations on health care providers.

Mike: Well you mentioned serious health conditions and I know that definition’s been problematic for years. Is there any help for employers there?

Julie: Well yes and no. Employers really lobbied the Department of Labor to modify that definition but pretty much the six individual definitions of serious health condition did not change. The new regulations do however clarify what is an unsettled item and whether or not it really clarifies remains to be seen. But in §825.115 it talks about continuing treatment and under the old regulation it was unclear what was meant by continuing treatment. Now when an employee takes leave involving more than three consecutive days and has two visits to a healthcare provider there’s a question as to when the visit to the doctor had to be in order to qualify as a continuing treatment. Now under the new regulations this continuing treatment requirement is met if two visits take place within 30 days from the date the incapacity started and the first visit takes place within seven days of the start of the incapacity. So while providing some clarity, these changes to the continuing treatment definition also create uncertainty. For example, since the employee now has up to 30 days to either receive treatment a second time from a healthcare provider or to have a regimen of continuing treatment following the first visit to the healthcare provider, employers are not going to immediately know if an absence will be FMLA qualified because there’s a window of opportunity there for employees.

Mike: So I’m sure there’s gonna be a lot of uncertainties with the new regs. Does that mean, every time there’s an uncertainty, do we have to wait on case law to get a clarification?

Julie: Oh sure, my regulations are tabbed and I have references to cases and things and so basically we’re starting all over as to what these regs really mean. But in this particular instance, the regs, I think they try to help but when they say that an employee has 30 days from when they were first sick to go to the doctor a second time, if they come back to work it’s just gonna – a lot of uncertainty. So we’re gonna have to wait for the courts to give us more clarification on what that really means.

Mike: What about the certifications needed from the medical professionals? Are there any changes there or how are those certifications affected by the new regulations?

Julie: Oh yeah the doctors are gonna absolutely love these new regulations. As we know, anybody who’s worked in the FMLA field knows that these medical certifications are often turned in incomplete or they sometimes raise more questions than they answer. But employers were really limited in what they could do to ask questions or follow-up on inconsistencies and so forth. So the new regs make a number of significant substitute changes to the medical certification process that will allow employers to obtain better medical information and make it easier to obtain. So first let me talk about the ability to gain clarification and authentication of medical certifications. So the new regulations give employers the ability to get better content in the certification if you will. If an employee turns in an incomplete or insufficient medical certification such that the employer cannot determine whether or not they actually qualify for FMLA, the employer first has to let the employee know in writing of the deficiencies in the certification and then give the employee seven days to fix this deficiency. Under the old regulations, if the employer had a question or needed a clarification, the employer had to first get the employee’s permission before it could contact the employee’s healthcare provider and if there were issues going on between the employer and employee, not surprisingly sometimes the employee would refuse to give that employer permission. But even if, under the old reg, the employee gave the employer permission to contact the doctor to get authenticity verified or ask questions, the employer was prohibited from contacting the doctor directly to discuss anything on that certification form. This was a royal pain because the employer had to have their own healthcare professional talk to the employee’s doctor. So with all that said, under the new regs, and just for those listening, it’s §825.307. So under that particular section employers (and this is big) are now allowed to directly contact the employee’s healthcare provider to authenticate certification or to clarify information on the medical certification form and they no longer have to get the employee’s permission before doing that. Now the caveat there, the person who actually makes contact with the employee’s healthcare provider must be a healthcare provider for the employer or, and this is where I think the regs are far more favorable to the employer, it can be an HR professional, it can be the employer’s leave administrator, or it can be a management official. The regulations are clear though that it cannot be the employee’s direct supervisor who makes the contact with the healthcare professional. That makes, in my view and I think most employers who sit down and read through these, this is a clear win for employers on the certification issue.

Mike: As far as the certification forms go, I understand DOL’s published two different medical certification forms for employers to use. What’s that about?

Julie: Mike there are two new forms and they’re both found in Appendix B of the new regulations and we all know the old Department of Labor sanctioned form, and again the form’s gone away, two new forms, one is for employees to use who are seeking leave for their own serious health condition and the second form is for employees to use who are seeking leave for a family member’s serious health condition. In addition to the new forms, if you look at the forms you can see that employers can now request information about a healthcare provider’s specialization and often times, these old forms, doctors didn’t know how to complete them, they were signed and sometimes the doctor’s name was illegible. You couldn’t even look them up on the internet to see what they did, what their specialization was. So we can now get that and we can also ask for their fax number to help us in contacting them. Employers can also request information about an employee or the employee’s family member’s diagnosis in the case of intermittent leave and this is new, employers can require certification from the doctor that intermittent or reduced leave is medically necessary. Employers are also going to be able to obtain more detailed information on the anticipated frequency and duration of intermittent and reduced scheduled leaves which I think will theoretically make it easier for employers to track this. We’ll have to wait and see exactly how it comes into reality but I think that this is a good change for employers.

Mike: So it sounds like these forms really improve an employer’s ability to understand whether the need for FMLA leave is legitimate.

Julie: Right and I think from the employer’s perceptive, complaints about the certification process and forms were right up there with the definition of serious health condition. So that was a huge issue for employers and we’ll just have to wait and see if it actually pans out.

Mike: Okay what about the notice that employers have to give to employees? Have those changed under the new regs?

Julie: Okay Mike there are now three different notices. There’s the first notice which is posting a poster and then there’s a general notice and that’s all included under the first notice but employers need to have a written policy or they can use the DOL’s prototype “Notices to Employees of Rights Under FMLA”. But that has to be included in the employee’s handbook. That’s the first notice. The second notice has to be provided to an employee within five business days of when an employee requests eligibility and that is the notice that tells the employee if they are eligible and then if they’re not eligible they need to let them know why they are not eligible. At the same time we give that personalized eligibility notice we also give the notice of the rights and responsibilities and that tells the employee what all they have to do in order to be eligible, or potentially eligible, for FMLA. They have to provide the certification form if the employer requires that. They have to be notified of the employer’s requirements for paid leave and then also the employer needs to tell the employee what happens if the employee fails to comply with those requirements. The third notice is what is called a designation leave and that’s the employer’s notification. They receive all the information from the employee and now they’ve evaluated and they’re telling the employee, “Yes you do qualify for FMLA,” or if you don’t, “Here’s the additional pieces of information that the employer needs to make that determination.” So there are some other things that need to be included in that notice. Again, I could go on for hours here about these notices but there are prototype notices and they’re set out in Appendix C, D, and E and I think employers will find them very easy to use. You can check off, “Yes you have to provide a certification,”, “Yes you have to provide a fitness for duty upon returning to work.” So there are a lot of good things in there that employers should take advantage of. So I think that employers are going to be happy with these new forms and the Department of Labor has provided them so the employer can fulfill their notification requirements.

Mike: Okay so remind me, under the old FMLA, what size employer is affected, is covered by FMLA?

Julie: And that has not changed, it’s 50 employees. If you have 50 employees you’re a covered employer and your employees will be eligible if they work in a location that has 50 or more employees of a 75-mile radius and also have to have worked for the employer for twelve months and they also have to have worked for the employer for 1,250 hours. There are some changes about that twelve months. It doesn’t have to be consecutive. So employers, if you have someone with a break in service, you want to make sure that check and make sure. The employee may be eligible if they’ve worked for you before.

Mike: But you mentioned when you started talking about the new notice requirements, you mentioned that the new posters that have to be put up, did I understand right that all employers have to do that even if they’re not FMLA covered?

Julie: Well a covered employer must post a general FMLA poster even if its employees are not eligible to take FMLA leave. So for example I have some clients who they have more than 50 employees but they have locations sort of in the hinterlands where there may be only two employees. So those employees are not going to be eligible because they are not in the 75-mile radius. So even though those employees will never be eligible that employer still has to post the notice in that far flung location. For example, for all public sector employers are covered by FMLA, although if they have fewer, say a small city has fewer than 50 employees, the city is a covered employer but the employees will never be eligible because there’s not 50 of them. It kind of doesn’t make sense but regardless, that employer still has to put the poster up.

Mike: Which can only lead to confusion when somebody wants to actually take advantage of what that poster promises.

Julie: Exactly. Because these are covered employers I’ve had situations where you draft a policy, you put it in the handbook and you say, “Here’s our FMAL policy, but ha-ha, guess what, you’re not eligible because we don’t have 50 employees.” So you’re absolutely right Mike. I suppose the purpose of this is to provide employees with notice of their rights but it causes confusion when we say, “These are your rights but you don’t really have any.”

Mike: Right, these are your rights but they’re not.

Julie: Exactly.

Mike: And so what happens if an employer fails to provide any of these required notices?

Julie: Well you have to look – the court is going to take an individualized look to see if the employee actually suffered an injury because of the employer’s failure to designate leave and probably most people right recall the Ragsdale opinion. It was the first FMLA case to go to the Supreme Court and that was a case where an employer failed to provide timely notice that an employee’s absence was FMLA qualifying and I believe she had taken seven months of leave and the employer never notified her that that was going to be FMLA so she said, “Oh you didn’t notify me, now I want my twelve weeks of FMLA.” The Court looked specifically at that employee and determined that she was not harmed in any way by the employer’s failure to notify her. So she wouldn’t be entitled to damages. You can think of situations though where an employee might be able to postpone surgery for example depending on where the FMLA falls. Say they failed to notify them one way or the other. They could show some type of damage. You think about people trying to use up all their – maybe it’s the end of the year for insurance and they’ve met their deductable and some things so they really could be damaged. So you just have to look at individual facts and circumstances to determine whether or not an employer is going to have to cough up damages. So the bottom line is let’s get those forms in place, get our procedures in place and make sure that whether it’s worker’s comp or any other absence, if it’s FMLA qualifying, to get that employee notified as quickly as possible.

Mike: Are there any new notice requirements for employees who want to go out on leave?

Julie: Well I guess turnabout is fair play but in this case, not as fair because there are some new requirements but not nearly as onerous as the employer’s requirements. But there have been some changes to §825.302-.303 of the regulations and I think that these changes are going to help employers be better informed of an employee’s need for FMLA leave. So first of all employees under the new regs must follow their employer’s usual policy for requesting leave, absent any unusual circumstances. So many employers have a policy of having to call in before a certain time and having to talk to a particular supervisor, whatever the policy is, and the new regs say that employers can enforce those policies with respect to FMLA. So we can require employees to provide written notice of their need to take leave if that’s what we require. S o I think that is a good thing for employers. In the past many employees I believe felt they got a free pass. If that’s FMLA I don’t have to follow your policy. So that’s a good move. Also if an employee fails to comply with the employer’s policy regarding notification the employer can either delay or deny the employee’s FMLA leave request and then if an employee is absent, and I think this is something employers are really going to appreciate, I had clients with employees who had five certifications going on at the same time meaning maybe they had healthcare certification for diabetes, they had a healthcare certification for asthma, they had a healthcare certification for migraines, and several others. Then they would just be absent but they wouldn’t tell the employer it was a migraine, it was diabetes, it was whatever. So the new regulations say if an employee is absent for what has been a previously certified FMLA condition then the employee has to specifically make reference when reporting that absence to either that this is FMLA, it’s asthma, or whatever it is, so that the employer has a much better idea as to the reason for their absence.

Mike: We’ll get back to my interview with Julie Ross in just a minute. First I want to tell you how you can enter our Imperative Podcast listener contest. In January we’re giving away an IPod nano to a lucky listener. To enter the contest, just go to our website, that’s www.ImperativeInfo.com, and click on the listener contest graphic. To enter the contest you’ll need an entry code though so here it is: FMLA. Now how hard is that? Type in “FMLA” in the entry code box and you’ll be entered in the contest to win an IPod nano. The winner will be announced on February 2. So be sure to enter soon. Now back to Julie Ross and the FMLA. Back when we were talking about the medical certifications and all of that you mentioned the fitness for duty information for employees who want to return to work following FMLA leave. That’s always been a headache. What specifically do the new regs do for employers in that instance?

Julie: And Mike this is a really big deal because some employers have situations where they have very physically demanding jobs and you can imagine somebody who works on a street crew for example with the city and working a jackhammer, lugging heavy things. Say they were off on FMLA for back surgery. Well there’s not an employer in America who is not going to be concerned that that employee is fit for duty after this back surgery and that they can get back in these holes and lift heavy equipment and operate expensive equipment without hurting themselves or others. Under the old regs, which I guess are actually still current regs, we could not require that employee to go to the employer’s doctor to get checked out. The only thing we could get from that employee was a simple little note from their doctor that says, “My employee may return to work.” So we never knew if that doctor was aware of the physical demanding job requirements that this person had. So anyway, that has been changed and employers can now require far more than just a note saying that it’s okay for the employee to return to work. I also want to point out, and then I’ll tell how the regs have changed, but under the old regulations employers were not allowed to require fitness for duty if an employee was on intermittent leave and we all know that intermittent leave is really a big deal in FMLA and oftentimes that’s what we end up with rather than a big chunk of time. So for intermittent leave employers could not require a fitness for duty. So under the new regs employers may now require an actual fitness for duty report from a doctor certifying that employee can perform their essential job functions. Now as I mentioned before it’s very important for the employer, in order to have the right to require a fitness for duty certification, that the employee be told of that requirement when the employer gives the employee that designation of leave notice. So that needs to be in writing that you’re going to require the employee to get the fitness for duty certification. Also under the new regs if an employee is on intermittent leave for a serious health condition that causes the employer to have a legitimate safety concern, then the employer can require a fitness for duty certification before that employee can return to work from an intermittent absence. Again, in order for that employer to have the right to require the fitness for duty certification the employee must be told of that requirement in the employer’s designation of leave notice. Again, I mentioned under intermittent leave, under the old regs, couldn’t get a fitness for duty, was not available. Employers can now require under these new regs can now require a fitness for duty certification to return to work from an intermittent leave absence if the employer has reasonable safety concerns about this employee’s ability to perform their job. Because of the way intermittent leave works, it’s not a chunk of time. They can take some here or some there, a portion of a day, fitness for duty certifications for intermittent leave can be required as often as once every 30 days. So I think that’s a step in the right direction for employers worrying about employees who have had some serious health conditions and they have a fairly physical job.

Mike: Well I know the FMLA was the death knell for perfect attendance bonuses in a lot of workplaces. Is there any change there that will help employers return to those kind of incentives for perfect attendance?

Julie: Yes, Mike, and I think, as you say, the death of perfect attendance bonuses was an unintended consequence of FMLA because you had situations where an employee could have taken that full twelve weeks of FMLA. So they had missed 25% of the work year. They would be fully eligible for an attendance bonus whereas you could have an employee who missed one day because they were at home sick with the flu, one day, and that person would have not been qualified for an attendance bonus. So it was crazy how the law worked in that situation. So the regs have been changed and employees taking non-FMLA leave are treated the same as employees taking FMLA leave, which means employers are not prohibited from pro-rating bonuses or awards if they wish to do so because of someone’s absence. So that is another way employers can now disqualify an employee who fails to achieve a bonus goal because they missed work or they failed to meet attendance requirements because they missed work for FMLA. So that’s a great thing.

Mike: Yeah that’s great. What about FMLA waivers? I know courts around the country have handled them all differently and some courts have even refused to enforce them unless the DOL or that court approved them. Is there any help for employers in getting FMLA waivers by?

Julie: Absolutely and I just did a presentation just on the issue of waivers last week and normally when we do these presentations we write our paper for maybe 2-3 months ahead of time. So typically we’re adding to the presentation because things have happened between the time we write the paper and the time we give the talk. But in this case I was able to take out a bunch of my presentation because the Fourth Circuit would not enforce these FMLA waivers unless the Department of Labor had signed off on it or a court had actually approved it. The Fifth Circuit treated that differently. Again, it split the circuits. So instead of having to explain all the differences I was able to succinctly say that the Department of Labor has revised regulation 825.220 to clarify that an employee may voluntarily settle or release an FMLA claim based on past employer conduct without first obtaining DOL or court approval for that civil release and I say past employer conduct. So employees still cannot waive future bad conduct or future breaches of FMLA but they can in the context of a settlement or if we have a separation agreement where an employee is leaving employment, we can get a valid waiver from that employee of any FMLA claims that they may have.

Mike: Another area that’s been complicated in the past are recertifications. Is there any help for employers in the new regs there?

Julie: Well Mike you’re absolutely right. Under the old rules recertifications are very complicated and cause lots of confusions on when an employer can require recertification and there have been some Department of Labor publications on that. Under the new regulations the general rule is that an employer can require recertification no more often than every 30 days and only in connection with an absence. You can’t get a recertification if the employee has been at work. But if the employee has been absent you can get a recert unless the minimum duration of the condition is more than 30 days. Recertifications can be requested in less than 30 day increments if the employee has requested an extension of leave or if the circumstances of the prior certification have changed significantly. For example, the employee may be absent every Monday and Friday or they’re being out a lot more than the original certification said they would be. If the nature of the illness or serious health condition has morphed from what it was in the original certification. An employer can also ask for recertification if it receives information which casts doubt on the continuing validity of the existing certification. So if we know an employee’s out for back injuries and can’t work and this employee is seen jumping on a trampoline or jumping off a roof or putting up Christmas lights, then we may as the employer decide that’s a great opportunity to get a recertification. There are a number of other changes to the recertification rules and I think what employers need to do is just simply sit down and read those and we may have been doing some of those anyway. But they are now a lot more clearly set out in the regulations.

Mike: And I know it’s kind of – there’s kind of an add-on to the new FMLA that covers military leave which is not something we traditionally think about with FMLA. But can you give us a brief run down on what the military tie in is here?

Julie: Sure, and this is something that employers are going to need to absolutely redo their policies to incorporate this. My advice previously, we just did a little amendment to employees’ existing FMLA policies because we really didn’t know what the regs were going to say and the law was fairly brief. But now the Department of Labor is going to allow us to fill in those gaps. Just for the listeners to kind of summarize, and most employers, I at this point have had very few calls about military FMLA leave. So it hasn’t been that common but I think the more it’s published and now that employers have to put it in their handbook policies, post it on their break room walls, more employees are going to know about it. But beginning January 28, and again that’s a little different timeframe from the other regs which is January 16, but January 28 employees are entitled to take up to 26 weeks of leave in a single twelve month period to care for a covered service member with a serious injury or illness. So this means that employees can take leave to take care of an injured service member who is the employee’s, and this is different from regular FMLA, what we think of as regular FMLA, it can be the employee’s spouse, parent, child, and relatives for whom the employee is the next of kin and that next of kin is a defined term and it’s defined for those folks who want to look it up in 825.127 of the Department of Labor’s regs. But it’s defined as the service member’s nearest blood relative and the regs go on to prioritize who’s considered next of kin. But there are situations that allow a service member to designate another blood relative as their nearest blood relative. So it gets fairly complicated. But just to kind of run through a few of the provisions in the new regs, employees may take leave to care for an injured son or daughter who is 18 years of age or older. The leave year is based on a single twelve month period and begins with the first day the employee takes leave. This differs from how a leave year is computed for all other forms of FMLA qualifying leave, including the exigent leave which we’ll talk about in a minute but it’s another type of military FMLA leave. Leave is applied on a per covered service member per injury basis. No more than 26 weeks of leave can be taken during any single twelve month period regardless of the number of times such leave is sought and that there is a separate certification form and it’s called “Certification for Serious Injury or Illness of Covered Service Member for Military Family Leave”, so try to say that real quick. I’ll say it again. It’s “Certification for Serious Injury or Illness of Covered Service Member for Military Family Leave” and that can be found in the back of the DOL’s regs at Appendix H. In connection with the certification process for this type of leave, the employer can obtain details about the service member’s medical condition. For example whether the injury occurred in the line of duty, when it occurred, it’s probably duration, and the amount of time that the service member will require care. These are pretty complicated and I think most of us are not used to reading through these and my advice is for HR folks to read through these a number of times when they do get those questions about military leave. Then there’s also for a qualifying exigency and most people don’t even know how to say that word, exigency. I know I had to practice it a couple times. But these provisions don’t actually take place until January 16, 2009. So again, those are earlier and go into effect a little bit differently. But that leave entitles employees to take up to twelve weeks of leave for a qualifying exigency arising out of the fact that the employee’s spouse, child, or parent has been called up to active duty. So Mike what that means is this type of leave does not apply to family members of military members who are in their regular armed services. It’s only when they’re being called up and the type of qualify exigencies this leave covers, and these are set out in 825.126, but it’s short notice deployment which is limited to seven calendar days from the date notified of deployment, military events and related activities, child care and school activities, financial and legal arrangements, counseling, rest and recuperation, post deployment activities, and additional activities that can be agreed to by both employer and employee. So the purpose of these is to allow someone to make quickly the type of arrangements that would be critical if you have someone getting called up and he’s gonna be out of the country for a year or so. So again these are fairly complicated. There is a certification form called “Certification for Qualifying Exigency for Military Family Leave” and it’s Appendix G. Again, we kind of lump these in together when we shorthand talk about the FMLA military leave but there’s two kinds. There’s leave to care for an injured service member and then the qualified exigency leave. So I think it’s gonna take some work on all of our part to become familiar with those.

Mike: So clearly Julie there’s a lot more here than can be covered in a podcast or even a single white paper or article on a website. What do you think HR professionals need to be doing between now and the middle of January to really get ready for these regulations?

Julie: Well I guess after they put their Christmas or holiday decorations up, they really need to focus on these new regulations. D-Day is January 16. It’s gonna be here before we know it. By my calculation that’s about six weeks, or five weeks from today and that means we have about a month to update our FMLA policies and procedures, update FMLA forms. Luckily there’s a lot of prototype forms that the Department of Labor has provided for us to use. But somebody needs to be a point person and really, really understand these regulations and we need to train HR employees so that they can answer questions of managers and employees. We also need to train managers and as always it’s the front line supervisors who can really get employers in trouble because if they don’t know about military leave or if they don’t know about some of these other things and they send an employee back to work and say, “Hey you can’t get off,” or, “If you ask for more FMLA you’re probably going to get fired or I’ll move you to a new position.” Those are the types of comments and actions that can put an employer in very hot water and it happens all the time. Now with the extra added burden of all these new regs, I think it’s just so critical, so critical for our HR departments to have this mandatory training and I think you’ve gotta do it when we come back from the new year and this is going to be difficult for even the lawyers who are reading through this to understand because we don’t have the case law again that kind of fills in the gaps and tells us what some of these regulations mean. But we need to provide as much support of these front line supervisors as we possibly can so that employers don’t find themselves in big trouble by January 16.

Mike: And I guess this isn’t – you might not say it because you don’t want to sound self-serving but this isn’t a situation where a lot of employers and HR professionals want to be do-it-yourself-ers either. They probably do want to want to their legal counsel, their professional advisors, and really make sure that they’re doing this right because they don’t want to be the case law in figuring out what’s right and wrong down the road.

Julie: Absolutely. I think many of the HR folks that I deal with had gotten very proficient at FMLA and I’d get called when there’d be some quirky things that went on but they had been doing it long enough they had the procedures in place and I won’t say it had become easy but they were accustomed to it and this just – it’s almost as if we’re starting over. It may even be a little more difficult than starting over because we’re hardwired now to know how we used to do it. So I think the analysis is okay, I can’t think of what I used to do because there’s all these new regs. So we have to purge our brain and our procedures and policies the old way and start fresh which I think may be even more difficult than it was sixteen years ago when we were starting off at the very beginning of FMLA. So what I’m doing with employers now is I’m helping them craft new policies or revising their existing policies, working with HR professionals to get their procedures in place, and then I’m starting next week to do training for HR groups and then managers and front line supervisors so at least they will know enough to call up HR before they spout off something that might get the employer in trouble, which is in many cases all you can ask, and that’s what we want them to do is have their antenna tuned up enough to know that they need to pick up the phone and call HR.

Mike: Julie I appreciate your time. This may end up being our longest podcast ever but it’s definitely stuff that’s relevant to HR and people need to be thinking about this. So thanks for your time and for joining us today.

Julie: Well thanks for having me and I will say that this was abbreviated. We could have probably spent another five hours and not covered everything. So there’s a lot there but again, I appreciate your having me and I enjoyed talked to you as always.

Mike: And thank you for listening to The Imperative Podcast. You can hear all of our previous podcasts or read our HR related blog items on our website at ImperativeInfo.com. You can also subscribe to The Imperative Podcast on ITunes. Finally, in today’s economic climate it is critical to get every hiring decision right. Do you really have time or budget to recruit, hire, train, manage, and then terminate a bad hire? A good background check needs to be a critical piece of your employment selection process. If you don’t absolutely love and trust your current background screening partner, please give me a call at toll-free 877-473-2287 or visit us online at ImperativeInfo.com. Again, I’m Mike Coffey, President of Imperative Information Group. Thanks for listening and have a great 2009.

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