Welcome to Foresight and Insight.

The Hartford’s Group Benefits Division is pleased to provide updates on newsworthy legislative and regulatory actions related to group disability and life insurance. Periodically, we’ll also offer more in-depth reports on workplace, workforce and benefit trends.

In the December 2008 edition:

FMLA Final Regulations Released - Special Feature

On November 17, 2008, the U.S. Department of Labor released final regulations revising the Family and Medical Leave Act. Over 750 pages long, the revised regulations become effective on January 16, 2009. Jackson Lewis (a national law firm specializing in workplace law) highlights some notable changes in the regulations.

• Read "Long Awaited FMLA Regulations Released" from Jackson Lewis.

Time Sensitive Information - 2009 State Statutory Disability Plans

Here's a handy reference guide for 2009 Statutory State Disability Benefit requirements. California, New Jersey, Hawaii and Rhode Island update their benefits annually. The other states listed remain unchanged from 2008.

• View the 2009 Statutory Disability Plans chart.

What Can We Expect From the Obama Administration On Paid Leave Initiatives?

During the campaign, President-elect Barack Obama outlined his desire to expand paid leave initiatives. His campaign Web site says that nearly four out of five employees who were eligible for absence under the Family Medical Leave Act (FMLA) chose not to take FML because the employee felt he or she could not afford to take unpaid time off of work. The Web site says women and low-income workers in particular are in need of expanded paid leave programs.

In His Own Words

In a November, 2007 speech entitled "Reclaiming the American Dream," Obama said that he will "put federal support behind state efforts to provide paid Family and Medical Leave." Obama's Blueprint for Change booklet states his administration will "initiate a strategy to encourage all 50 states to adopt paid-leave systems. They will provide a $1.5 billion fund to help states jump start paid-leave programs consistent with their local needs." Obama's Blueprint also states that his Administration will require employers to offer a minimum of seven paid days off of work each year.

Outlook

It is unclear if this will be an early initiative for the administration. We expect to see an increase in the number of paid leave proposals in the states with the potential for new paid time off requirements for employers.

Sources

• Blueprint for Change: Obama and Biden’s Plan for America (viewed on 12/1/09)
• Remarks of Senator Barack Obama: Reclaiming the American Dream (viewed on 12/1/09)

Milwaukee Voters Pass Paid Sick Leave Ordinance

While voting on November 4th to elect the next president, Milwaukee citizens also cast ballots approving paid sick leave. The ordinance will guarantee anyone who works within the city limits paid time away from work to treat an illness or care for a sick child. Implementation of all provisions of the ordinance must be accomplished no later than February 10, 2009. Employees do not begin to accrue paid sick leave until February 10, 2009.

Provisions:

• Milwaukee employers must provide their employees up to one hour of paid sick leave for every 30 hours worked in the city.
• The maximum is no more than 72 hours of paid sick leave per calendar year.
• Employees of companies with fewer than 10 workers may accrue up to five sick days.
• Larger company employees may accrue up to nine sick days.
• Sick leave may not be used until an employee is on the job for 90 days.

The law also guarantees paid "safe'' days, allowing for people dealing with domestic violence or sexual assault to take time off for violence-related court appearances or other services.

Opposition

The Metropolitan Milwaukee Association of Commerce (MMAC) is the referendum's chief opponent. MMAC President Tim Sheehy indicated his organization is exploring all available options, including legal action. He warned that the law could have a devastating impact on city businesses, saying, "This mandate will make the City of Milwaukee an island of regulation, discouraging business development in the region's core business district and scaring away potential employers who want to locate in the city."

Milwaukee is the third city in the United States to approve such a ballot initiative. San Francisco did so in 2006, as did the District of Columbia in 2008.

Sources

From information provided by Jackson Lewis from 11/3/2008 through 12/2/2008.

"Bereavement" Case Demonstrates Potential Legal Repercussions of Not Administering Leave Correctly

Where an eligible employee requests leave due to a death in the family, employers should proceed with caution. Employers should not automatically conclude that the employee is requesting bereavement leave outside of the protections of the FMLA. Employers may wish to make additional inquiries to determine whether the leave is FMLA-qualifying.

In Murphy v. FedEx National LTL, the United States District Court for the Eastern District of Missouri held that Susan Murphy's request for leave, following the death of her husband, was deemed sufficient to shift the burden of inquiry to the employer because FedEx knew: (1) she was asking for an extension of her approved FMLA leave; (2) the extension was for a significant period of time; and (3) she was demonstrably upset by the death of her spouse of 22 years.

Background

Susan and Paul Murphy, husband and wife, were employed as truck drivers by Watkins Motor Lines, which was subsequently purchased by FedEx. Due to a serious illness, Paul went on approved FMLA leave. His wife went on FMLA leave a few weeks later to care for Paul. Paul died unexpectedly a week later.

Susan informed FedEx of Paul's death that same day. She was crying when she called. She remained on leave. A few days later, Susan asked for an additional 30 days of leave "to take care of things." FedEx approved the leave. FedEx management testified that Susan was often crying and seemed "very sad" during these two discussions. Susan understood that she was approved for an additional 30 days of FMLA leave. FedEx subsequently informed Susan that she had been separated from the company prior to the expiration of the 30-day period.

Susan sued alleging that FedEx violated her FMLA rights by terminating her while she was on approved FMLA leave. FedEx defended by arguing that Susan was on bereavement leave, not FMLA leave, at the time of her termination.

Note

An employee is not entitled to FMLA leave "to care for" a covered family member once that family member passes away. The employee would, however, be still entitled to FMLA leave due to their own serious health condition, or to care for another covered family member with a serious health condition, such as emotional distress resulting from the death of the original covered family member, assuming the condition meets the definition of a serious health condition under FMLA.

Sources

From information found on The FMLA Blog, (viewed 12/1/09).