Sign Up
Stay current with GH&R Newsletters. Click here to sign up.
HR Matters
HR Matters - November 2007 - Volume XI, Issue 127
November 30, 2007
LABOR & EMPLOYMENT NEWSEmployer’s Denial of FMLA Due to Inadequate Medical Certification Upheld . A court recently held that an employer did not unlawfully interfere with an employee’s rights under the FMLA when it denied leave and discharged her for violation of its no-fault attendance policy. The employee requested FMLA for her back injury and to care for her adult daughter who had postpartum depression. The employer questioned the authenticity of the physician’s medical certification form the employee submitted, and obtained the employee’s permission to contact the physician directly. After receiving a second inadequate certification, the employer contacted the physician and learned that the physician had not seen the employee for several years, that the information provided was received second-hand from another physician, and that portions of one of the forms had been completed by the physician’s assistant, unbeknownst to the physician at the employee’s insistence. Consequently, the employer denied the FMLA request for the employee’s back condition and the care of her daughter. The court agreed with the employer, holding that the employer had satisfied its duty by seeking to authenticate the certification forms, and permitting the employee to submit additional forms. The court also agreed that the employee was not entitled to leave under the FMLA for care of her adult daughter because the daughter’s condition did not qualify as a disability (Novak v. MetroHealth Center).
WORKPLACE HEALTH & SAFETY NEWS
OSHA Issues Personal Protective Equipment Standard. On November 15, OSHA issued a rule that requires employers to pay for employee personal protective equipment ("PPE"). The rule will go into effect 90 days later, and must be implemented within 6 months. The PPE rule requires employers to pay for protective clothing and gear in an effort to prevent hazards in the workplace. Safety benefits include: (1) employees are more inclined to use PPE that is provided at no cost to them; (2) employers are more likely to ensure equipment is the correct type for the job; and (3) an improved safety culture at worksites. Employers will not have to pay for ordinary gear that can be worn off the job or for protective equipment where none has been previously required. Lost or intentionally damaged PPE does not have to be replaced at the employer’s cost. OSHA estimates the rule will cost $85.7 million annually.
IMMIGRATION NEWS
New I-9 Form and Employer Handbook. The Department of Homeland Security ("DHS") has recently published a new Form I-9 (Employment Eligibility Verification Form) and a new "Handbook for Employers," which contains instructions for completing the new I-9. Copies of the new I-9 and the Handbook are available at www.uscis.gov/I-9.
The most significant change to the I-9 is that effective November 7, 2007, five documents previously acceptable as proof of employment authorization are no longer valid. Therefore, employers can no longer rely on those documents when completing the I-9 . Changes to the Handbook include guidance regarding use of electronic signatures, electronic storage, E-verify procedures, and unlawful discrimination.
As of November 7, 2007, the amended I-9 is the only valid version of the form, and only the documents listed on it are acceptable as proof of employment authorization. However, in a Notice posted in the Federal Register on November 26, 2007, the DHS announced it will not seek penalties against an employer for using a previous version of the I-9 on or before December 26, 2007. Even though the new form will not be required until December 26, 2007, we recommend that employers begin using the new form immediately for new hires. Please note that this rule is not retroactive, and employers need not complete a new I-9 for current employees.
EMPLOYEE BENEFITS & EXECUTIVE COMPENSATION
Benefit Statements for Defined Benefit Pension Plans . The Pension Protection Act of 2006 (the "PPA") contains a new benefit statement requirement for defined benefit plans. The PPA provides that defined benefit pension plans must provide a statement to all participants who are currently employed by the employer once every three years and upon participant request. The benefit statement must contain (i) a participant’s accrued benefit, (ii) the vested portion of the participant’s benefit, and (iii) an explanation of the plan’s integration formula. The first statement is not due until the end of the 2009 plan year. Alternatively, an annual notice may be provided to participants explaining their rights to obtain a benefit statement upon request. If a company wants to take advantage of the annual notice alternative, the first notice is due no later than December 31, 2007.
Extension of 409A Document Compliance Deadline . The IRS has extended the deadline for amending deferred compensation plans until December 31, 2008. Plans may be amended to change the time and form of payment until the end of 2008. However, even though the document compliance deadline has been extended, all plans that provide for deferred compensation must already be operating in compliance with section 409A of the Internal Revenue Code. Even after this extension for document compliance, it is imperative for a benefits attorney to review all deferred compensation arrangements, severance plans, employment agreements, and change in control agreements as soon as possible to assure that the plans are operating in compliance with section 409A.
This Newsletter is a periodic publication of Graydon Head & Ritchey LLP and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult your own advisor concerning your situation and any specific legal question you may have.