New FMLA Regulations: Employers need to know!

On February 5, 2013, twenty years to the day after the Family and Medical Leave Act (FMLA) was signed into law, the U.S. Department of Labor (DOL) issued a revised Final Rule implementing recent expansions to the FMLA, effective March 8, 2013. This Final Rule expanded FMLA protection for military families, airline personnel and flight crews, and also requires covered employers to update their FMLA posters and policies. In addition, the Final Rule also implements clarifying changes for the calculation of intermittent and reduced schedule leave.

If your business has employees who have military personnel in their families, the Final Rule implements the following changes regarding Military Leave: 

• Extends the availability of FMLA leave to family members of members of the National Guard, Reserves, and the Regular Armed Forces for qualifying exigencies arising out of the servicemembers’ deployment
• Adds a qualified exigency leave category for parental care leave, allowing an employee to take leave to care for a military member’s parent who is incapable of self-care when the care is needed due to the servicemember’s covered active duty
• Increases the amount of time an eligible family member can take for Rest and Recuperation from five days to a maximum of 15 calendar days to spend with a military member on rest and recuperation leave orders
• Extends FMLA military caregiver leave for family members of current servicemembers to include an injury or illness that existed prior to service and was aggravated in the line of duty
• Extends FMLA military caregiver leave to family members of certain veterans with serious injuries or illnesses
• Provides that periods of absence from work by qualifying military members which are due to USERRA-covered service is counted in determining an employee’s eligibility for FMLA leave

The Final rule clarifies how Covered Employers calculate intermittent and "Reduced Schedule" Leave:

• Clarifies that an employer may not require an employee to take more leave than necessary
• Clarifies that FMLA leave may only be counted against an employee’s FMLA entitlement for leave actually taken and not for time that is worked
• Clarifies that an employer must track FMLA leave using smallest increment of time used for other forms of leave with a one hour maximum
• Clarifies that the physical impossibility exception is to be applied only in the most limited circumstances, and the employer has the responsibility to restore the employee to the same or equivalent position as soon as possible 

The Final Rule contemplates that all employers must post revised FMLA posters to reflect these new regulations, effective March 8, 2013. The updated poster can be found here.  Its also a good idea to update  your FMLA forms.  Our firm can certainly assist here, but you can see the DOL's suggested form updates here. We can also help Employers revise their policies and procedures to help comply with the updated FMLA regulations. 
 

The DOL also offers a most helpful side-by-side comparison chart to help Employers understand the changes in the Final Rule here.

Our Office has relocated . . . again!!

Yes, for those who are paying attention, John R. Russell, Ltd. wants to make it clear.  Our office has relocated to the South Holland Professional Center at 15525 South Park Avenue, Suite 104, South Holland, Illinois 60473.  I am sharing office space with veteran attorney Thomas Gilley, and I am looking forward to the new opportunities my new location will offer.  Please come and visit. 

Secession . . . Seriously???

I have to take a time out and comment on the latest internet based political argument.  Supposedly, up to thirty states now have some sort of internal call for secession from the Unite States.  This is not some official act by any of these states’ governments, but citizens signing petitions on the internet, asking that their state (i.e. Texas) to secede from the United States, just like the Confederacy attempted in the 1860s.  

I’ll speak to some specifics about this in a moment.  But are we really serious about this?  Look, republicans/conservatives lost the election.  A close election (by popular vote, anyway) mind you, but those of us who aspire to conservative values lost the election.  So are we going to take our ball and go home?  How mature!  There are plenty of real, practical ways to work towards getting the nation back on track.  The concept of secession is absurd.  

Why won’t secession work? 

It’s illegal.  It’s unconstitutional.  Our Constitution replaced the Articles of Confederation, which was basically a loose-fitting regime of sovereign states involved in multilateral negotiations with each other.  The Constitution replaced that with something much better – the democratic rule of law.  Every State in the Union has ratified the Constitution. This means the Constitution is “the supreme law of the land.”  This is clearly present in the ratification debates which led to the adoption of the original Constitution.  Its’ clear in the preamble’s reference to a “more perfect union.”  Our founding fathers never considered an “exit option.”  The Constitution is not an “at will” contract.  It is, by definition and the will of the people of every State in this nation, the “law of the land.”  Instead of each sovereign State being able to engage in multilateral negotiations, the Constitution sets in place national democratic institutions with authoritative dispute resolution by the federal courts.  This was the concept the southern states failed to recognize in 1860. The US Supreme Court, in interpreting contractual disputes involving the Confederate government during the Civil War, settled on the concept that such contracts were void because the Confederate government never had a right to exist.  Not because they lost the war, but because as a matter of law, there is no authorization to secede. Those who clamor for secession today also refuse to see this fundamental and foundational concept. 

Does anyone honestly think there is unanimity of purpose in any single state for secession?  I’d be willing to wager my annual income that no one could find even 75% unanimity for one side of the political spectrum on their own city block, let alone across an entire state.  We are a nation divided, indeed, but not based on geography.  The threat of secession doesn’t make any sense at all.  

Is anyone clamoring for the secession of states like Indiana or Nebraska thinking of the practical implications?  What happens to all the federal property within these states?  (Property paid for by the collective tax support of all 50 states).  Will Indiana reimburse the federal government for the unwarranted taking of this property?  And what about access to services, communication, travel etc. provided by the federal government or other states that choose to remain in the Union?  Will Indiana be able to access the drinking water from Lake Michigan? Will they pay the federal government for such access?  What about currency, or a monetary system?  What about mail delivery?  What happens when the corporation you work for, which has its headquarters in a state that stays loyal to the union, pulls out after secession?  What happens when airlines simply refuse to serve seceding states? What if the seceding states are blockaded, like during the Civil War?  How soon after secession will there be food on grocery store shelves, or consumer goods, or gasoline for your cars?  What happens when the federal government closes the interstate highway systems leading into the seceding states?  Our states are so intertwined with each other and the federal government, to even attempt to secede would be like cutting your midsection out, and expecting your legs to continue to function. 

Finally, the most compelling argument against secession is the federal “gravy train.”  Will any state, and its inhabitants, simply agree to forego all of the federal benefits and programs they currently enjoy?  The Federal Government currently spends about 3.8 trillion dollars every year.  The collective spending of the 50 states amounts to about 1.6 trillion.  The 50 states collectively spend about a half trillion on health care.  The federal government spends 1 trillion on health care alone.  Twice as much.  Will the individual states simply agree to forego these benefits for their citizens? What about all the internal state improvements funded by federal dollars?  Federal support of education?  What about pensions funded by federal funds?  How will each of these states raise armies?  Where will the money come from?  Especially in a state like Illinois, which is basically bankrupt to begin with. 

Secession didn’t work in 1860.  It won’t work now.  Its stupid, foolish speculation.  It only serves to allow those on the political left to paint all conservatives as stereotypes -- “right wing wack jobs.” Let’s find solutions that work, instead of this craziness.  Let’s pray for the electorate to wake up and realize the wrong path we’re going down.  Let’s be sensible and credible. 

Sending Your Kids to College . . . Are they Protected?

It’s that time of year – the end of August.  If you are the parent of a college student, you’ve either already moved them into their dorm rooms or apartments, or will be doing so by the end of next week.  The move to college takes a lot of planning – your college student has had to make sure they have what they need – clothes, school supplies, bedding, computer, refrigerator, etc. You’ve probably helped them make sure they have everything they need to be ready for the upcoming semester.  But have you thought of everything?  What would happen if your child became ill or was injured, and you needed to contact them?  What if the worst happened and your student was missing? How would you get the information you need to help them, or to find them?  

  

The problems I have just mentioned are exacerbated by the fact that most freshmen in college either are, or will become 18 years old.  In other words, they are legally an “adult.” Therefore, if you as a parent are to have the authority or ability to get the information you need to help your child in need, your 18 year old child needs to give you the legal authority to act on their behalf should they become disabled and unable to communicate.  Why?  Because health care providers and the colleges your child attends consider your child an adult when it comes to decisions relating to health care and school records.  Add to this the ramifications of the Health Insurance Portability and Accountability Act (known by its infamous acronym “HIPAA”), and health care providers become loathe to disclose any information about your son or daughter. 

This shouldn’t happen.  The HIPAA privacy regulations offer exceptions which give health care providers some “common sense” discretion to disclose “personal health information” to “a family member, other relative, or a close personal friend.” (45 CFR 164.510(b)). This rule goes on to specifically allow a provider to use its professional judgment and experience with common practice in deciding whether and what to tell such persons. 

But many providers overreact, and interpret HIPAA’s privacy protections as an absolute barrier to all disclosure.  This leads to absurd results. For example, a client told me about a college sophomore who traveled to an “away game” for the school’s hockey team.  This young lady was somehow injured at the game, and transported by ambulance to a local hospital.  The student’s parents were notified that their daughter had been hospitalized, but no one was willing to disclose where she had been taken, or the extent of her injuries.  Those parents spent a sleepless night worrying until their daughter contacted them the next morning, fortunately not seriously injured.

How can parents avoid this?  By having their college aged children execute a durable power of attorney (or “POA” for short).  This is a legal document that permits the child to appoint a parent (or other person) as agent to carry out certain functions and make decisions in their place. It is a simple form that is “fill in the blanks” and signed – no court order or other action is needed (though I do recommend consulting an attorney -- the instructions in the body of the document should be tailored for the specific situation).  Under Illinois law, a Durable Power of Attorney for Health Care permits your child to appoint you or your spouse as an agent while expressing their per­sonal wishes about health care decisions in the event they become incapacitated. In addition, I recommend executing a Durable Power of Attorney for Property to cover issues relating to school records (e.g. in the event of an emergency when the child is unavailable or missing, the school clearly understands the child’s intent to allow information to be given to his/her parents). Besides HIPAA, there is another federal statute known as FERPA (the "Family Educational Rights and Privacy Act"), which protects the privacy of student education records.  Most colleges are proactive in providing students with FERPA waiver forms to allow parents access to school records, but careful drafting of the POA for Property can expressly give parents access to any school records or be able to talk to any professor or other college employee in order to get critical information about your child.  

Some students might balk at the idea of their parents having access to their records, but these documents can be personalized to only allow such access in the event of an emergency.  I have personally assured my own college aged children of this limitation, and have respected those boundaries. But the usefulness of this kind of planning can go beyond emergencies. For example, if a student has a chronic health problem or a disability, the parent, as an agent under a POA, can be more involved with on-campus health services and the student’s instructors to monitor progress. 

While the exceptions to the HIPAA privacy regulations should allow parents to receive critical information about the medical treatment of their adult college-aged children, a properly worded and executed power attorney gives parents the specific, direct authority to overcome the misinterpretation of privacy rules. I recommend that parents of college aged children arrange to have their kids execute the appropriate powers of attorney as they begin school in the fall, and have copies filed with the appropriate authorities and health care providers on campus.  Then, they can head off situations like the one I described, and be assured that whatever happens, they will be “in the know” regarding their child’s status while away at college.

NEW OFFICE LOCATION

John R. Russell Ltd announces its new office location, in the heart of South Holland's business district.

Our new office is located in the Heritage Center, 401 East 162nd Street, Suite 203, South Holland, Illinois, 60473.  Our phone is still the same, 708-359-4906, fax is 708-310-3555, and the e-mail is john@jrusslaw.com.

More details are coming for exciting events this summer in conjunction with the Village of South Holland's summer promotions, events planned with the South Holland Business Association, and of course, some special events with our office as well.  Stay tuned!

JURY DUTY SCAM ALERT

Most of us take those summonses
 for jury duty seriously, but enough people skip out on their civic duty
 that a new and ominous kind of fraud has surfaced,

 The caller claims to be a Jury Duty Coordinator. If you protest that you
 never received a summons for jury duty, the Scammer asks you for your
 Social Security number and date of birth so he or she can verify the
 information and cancel the arrest warrant. Give out any of this
 information and bingo, your identity was just stolen..

 The fraud has been reported so far in 11 states, including Oklahoma ,
 Illinois , and Colorado , AZ and more. This (swindle) is particularly
 insidious because they use intimidation over the phone to try to bully
 people into giving information by pretending they are with the court
 system.

 The FBI and the federal court system have issued nationwide alerts on
 their web sites, warning consumers about the fraud.

 Check it out here:

http://www.fbi.gov/page2/june06/jury_scams060206.htm



and here:


 http://www.snopes.com/crime/fraud/juryduty.asp

Indiana Senate approves "right to work" law

Click here!

As reported in the Chicago Tribune.