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Legislative updates

Department of Labor

FMLA Clarification of definition of son or daughter ensures all caregivers the right to family leave

On June 22, the U.S. Department of Labor issued an interpretation letter (No. 2010-3) clarifying the definition of “son or daughter” under the Family and Medical Leave Act (“FMLA”), as it relates to whether leave may be taken by employees raising children “in loco parentis” (where they lack a biological or legal relationship to a child). In determining whether an employee is eligible for FMLA leave, the interpretation provides that “the employer may require the employee to provide reasonable documentation or statement of family relationship. A simple statement asserting that the requisite family relationship exists is all that is needed in situations such as in loco parentis where there is no legal or biological relationship.” The letter also states that “regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis to a child.”

The letter specifically mentions its application to unmarried partners and same-sex partners, and adds that the fact that a child has a biological parent at home or has both a mother and a father does not prevent a finding that the employee with a non-biological relationship is eligible for FMLA leave. 

DOL issues rules for posting requirements under NLRA

The U.S. Department of Labor (DOL) issued a final rule that requires federal contractors and subcontractors to post a notice advising employees of their rights under the National Labor Relations Act (NLRA). Advising employees of their rights under the NLRA to form, join and assist a union, and to bargain collectively with their employer, the notice lists examples of illegal conduct by employers and unions, and provides contact information to the National Labor Relations Board. Federal contractors and subcontractors must post the prescribed notice conspicuously in plants and offices where employees covered by the NLRA perform contract-related activity. For more information and to obtain copies of the prescribed notice, visit the DOL Web site.

DOL: Wage and Hour Class Actions continue to rise

The U.S. Department of Labor reports that there were 23,845 wage and hour complaints filed with the department in 2009. Litigation has centered around claims of misclassifying outside sales employees as exempt from overtime, especially salespeople in the pharmaceutical industry; employees working “off the clock”; and deducting time for meal breaks and other non-working periods without ensuring that the employees were not working.

Patient Protection and Affordable Care Act

Regulations on first-dollar preventive care

The U.S. Departments of Health and Human Services (HHS), Labor, and the Treasury issued Preventive Regulations on July 14, 2010, requiring new (i.e., "non-grandfathered") health plans to cover listed preventive services and eliminate cost-sharing requirements for such services.

The regulations apply to those who enroll in non-grandfathered health plans after Sept. 23, 2010 (in effect, Jan. 1, 2010, for calendar year plans).They are intended to provide easier access to services such as blood pressure, diabetes, and cholesterol tests; many cancer screenings; routine vaccinations; pre-natal care; and regular wellness visits for infants and children. Under the regulations, new health plans must cover these preventive services without charging patients a co-payment, co-insurance or deductible for preventive services delivered by a network provider. Employers will be able to continue to require cost sharing on preventive services employees receive from out-of-network providers.

Early Retiree Reinsurance Program application posted

The U.S. Department of Health and Human Services (HHS) posted its Early Retiree Reinsurance Program application, as well as application instructions, frequently asked questions and application submission do’s and don’ts, to the Office of Consumer Information and Insurance Oversight web site on June 29, 2010.

Congress appropriated $5 billion in funding for the temporary program, which ends by Jan. 1, 2014, which provides reimbursement to participating employment-based plans for a portion of the cost of health benefits for early retirees and their spouses, surviving spouses and dependents.

DOT extends deadline for drug and alcohol forms

The Department of Transportation has extended the mandatory use date for updated alcohol testing forms to Jan. 1, 2011, According to a notice published in the July 2 Federal Register.

Rule aims to ease path for vets seeking PSTD treatment

A new Department of Veterans Affairs final rule is intended to make it easier for veterans suffering from post-traumatic stress disorder to receive medical treatment. According to the final rule, veterans no longer will have to prove a specific event caused their PTSD. Instead, veterans only have to show proof of deployment to a combat zone and PTSD diagnosis to receive benefits.