February, 2008

Hello!

It's Leap Year ... the joy of having an extra 24 hours in the month of February! Hope you get to use it wisely ... maybe even for some fun!

We've got a new announcement this month ...on Monday, January 28, 2008, the President signed into law the first expansion of the Family and Medical Leave Act (FMLA).
 

The National Defense Authorization Act (H.R. 4986) now provides additional FMLA leave for military families.

Specifically, the bill adds two new FMLA-qualifying events, expanding FMLA to include employees caring for an injured service member as well as family members who have a family member called to active duty.

 
We cover all the details in our main article (found below), but before we take you there, we've got a couple of other important pieces of information for you.

1. OSHA 300-A Posting Deadline
   Beginning February 1 of each year, covered employers with 10 or more employees must post the OSHA-required Form 300A, which summarizes an employer's reportable injuries and illnesses for the prior year. The Form 300-A posting period is February 1- April 30. An employer subject to this requirement must post the OSHA Form 300-A even if the employer had no reportable injuries/illnesses in the prior year. In addition to the posting requirement, employees with no fixed work site or no access to posted sites must be provided with a copy of the report.

   If you are a covered employer and have not posted this form yet, we suggest you do this right away. Here is a link to the OSHA site to get the required forms:
   

   Form 300 and 300A and Instructions http://www.osha.gov/recordkeeping/new-osha300form1-1-04.pdf

   
    
   

2. Remember to check out our WebForms™!
   

   Use our toolset to: - Manage Your Day-to-Day Non-Profit or Small Business - Organize All Necessary Human Resource Information - Promote Legal Compliance Within Your Organization.

   Give yourself: - Solid Documentation For All Employment - Related Actions. - Accurate and Dependable Recordkeeping. - A Simplified Process

   To View All Included Forms
   Click Here

3. And of course ... this month's quiz which tests you on religious accomodation! Here is the situation:

   Four months after the department schedule was adopted, Pat says that he converted to a new religion that prohibits him from working on Tuesdays or during a full moon. Under federal Title VII, must Pat's company accommodate his new beliefs?

   Pick An Answer:
    
   A) Yes, the company must accommodate Pat's new religious beliefs as long as it does not cause an undue hardship.
    
   B) No, because Pat's religious beliefs changed after the department schedule was established.
    
   C) Only if Pat produces a certificate from his spiritual leader certifying the religious necessity of his scheduling restrictions.

   ANSWER FOUND AT END OF NEWSLETTER

Now on to our article!

On Monday, January 28, 2008, the President signed into law (P.L # - not yet available) the first expansion of the Family and Medical Leave Act (FMLA). The National Defense Authorization Act (H.R. 4986) provides additional FMLA leave for military families.

Specifically, the bill adds two new FMLA-qualifying events, expanding FMLA to include employees caring for an injured service member as well as family members who have a family member called to active duty. Under the new law, FMLA-eligible employees will now be entitled to the following:

• Family Leave Due to a Call to Active Duty
  This benefit provides FMLA leave due to a spouse, son, daughter or parent being on active duty or having been notified of an impending call or order to active duty in the Armed Forces. Leave may be used for any "qualifying exigency" arising out of the servicemember's current tour of active duty or because the servicemember is notified of an impending call to duty in support of a contingency operation.
  
  Contingent upon the Department of Labor's definition of a "qualifying exigency," this provision provides 12 weeks of leave to the immediate family of servicemembers called to active duty and complements state family military leave laws that provide for shorter duration of leave or only cover spouses of servicemembers.
  
  An employer may require that a request for such leave be supported by certification showing that the servicemember has been called to active duty. Seven states (California, Illinois, Indiana, Maine, Minnesota, Nebraska and New York) have passed state family leave laws which are somewhat different than the new federal law. (See related information further in this newsletter.).

 
• Caregiver Leave for an Injured Servicemember
  This benefit provides 26 weeks of FMLA leave during a single 12-month period for a spouse, son, daughter, parent, or nearest blood relative caring for a recovering service member.
  
  A recovering service member is defined as a member of the Armed Forces who suffered an injury or illness while on active-duty that may render the person unable to perform the duties of the member's office, grade, rank or rating.

Most of the provisions of the FMLA remain unchanged and will apply to these new types of FMLA leave, including employer coverage, employee eligibility requirements, health insurance continuation, and reinstatement rights. Employees can utilize the leave on an incremental basis or in the smallest increment that the employer's payroll system tracks under both of these new leave requirements,

While the Department of Labor (DOL) will need to issue regulations to fully implement this new law, they have released guidance that indicates the caregiver provision of the law is effective as of January 28, 2008, but the call to active duty provision will not be effective until the Secretary of Labor issues final regulations defining "any qualifying exigency." In the interim, the DOL encourages employers to provide this type of leave to qualifying employees.

Sources for this article: Jackson Lewis LLP and Society for Human Resource Management (SHRM)

FMLA regulations apply only to those employers with 50 or more employees. In our October 2007 newsletter we reported on the California law requiring employers of 25 or more employees to grant up to 10 days of unpaid leave when the employee's military spouse is home on leave. For details, please go back to that newsletter by clicking here or call our office and we will send you the requirements or here is a link to the new statute: http://www.leginfo.ca.gov/pub/07-08/bill/asm/ab_0351-0400/ab_392_bill_20070920_enrolled.pdf

The CA leave and the new FMLA requirement conflict somewhat as generally happens in these circumstances. While the general rule of thumb is that the prevailing law is the one that gives the employee the most benefit, this situation is a bit more complex. While the powers that be work out the conflicts, it is our advice that employers go ahead and provide the leave as outlined in both of the statutes.

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Answer To Our Quiz:
Answer is "A" - The company must accommodate Pat's new religious beliefs as long as it does not cause an undue hardship.

©2008 LawRoom

ABOUT MJMS, INC.

President and Principal Consultant: Margaret Jacoby, PHR

Margaret Jacoby has more than 25 years of Human Resources and professional management experience in a variety of industries. She has designed human resources infrastructure and implemented systems to ensure compliance with state and federal employment laws. She has directed high quality human resources functions for small and emerging businesses, and served as an external consultant to a wide range of diverse organizations, including non-profits.
 
Her work has included: 

• Conducting H.R. Needs Assessments
• Drafting employee handbooks and policy manuals
• Conducting job analysis and developing position descriptions
• Conducting on-site compliance audits
• Counseling management on progressive discipline
  
• Drafting and review of employee disciplinary actions
• Providing mediation in employee/employee conflict
  
• Training employees/supervisors/managers in the implementation of human resources systems and policies such as Sexual Harassment
• Conducting workshops for business owners on H.R. compliance issues.

 
Ms. Jacoby has earned the nationally-recognized certification of Professional in Human Resources (PHR) from the HR Certification Institute, Society for Human Resource Management (SHRM).
 
Ms. Jacoby's professional affiliations include:

• Professionals in Human Resources Association (PIHRA)
• Society for Human Resource Management (SHRM)
• National Association of Women Business Owners (NAWBO), Los Angeles and Phoenix
• California Chamber of Commerce


• Arizona Small Business Association (ASBA)
• Long Beach Community Business Network (LBCBN)
• Institute for Management Consultants (IMC)
• Los Angeles Area Chamber of Commerce