News for Employers: New Guide for FMLA

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The Department of Labor has just released its newest publication – “The Employer’s Guide to the Family and Medical Leave Act.” This new FMLA Guide appears to be an an attempt to make the FMLA more “user friendly” to employers. The guide appears designed to help walk employers through the FMLA process.

The Guide follows FMLA regulations as an employer will experience them, starting with determining who is a covered employer through charting the typical course of an employee’s request for leave. The Guide is easy to follow and informative. One of the highlights is a very useful flowchart, the “Road Map to the FMLA,” which provides a concise explanation of the whole FMLA process. Some might also find it entertaining, with interactive cartoons to help explain the regulations.

One of the most common mistakes I see among my clients who run businesses with employees is the tendency to react to leave requests in a “knee-jerk” manner, with employers trying to grant FMLA leave before first determining eligibility of the employee for leave. The roadmap is an excellent reminder for running through the process of making sure that the employer is even covered by the FMLA, and then if the employee is actually eligible for leave. For example, some employer clients will grant a medical leave but not realize that the employee is not eligible because of a failure to have worked enough hours, or the employee’s worksite is not covered.

I believe this guide will prove to be the “go-to” reference for smaller companies and HR professionals. Of course, any time employers are not sure how to interpret the FMLA , they should consult legal counsel.

A pdf copy of the guide is available here:

https://jrusslaw.com/wp-content/uploads/2016/04/FMLA-Guide-for-Employers.pdf

At the same time the Department of Labor announced the publication of the Guide, it also announced that employers will be required to display a new FMLA poster. The Department has yet to publish the new poster, but insists it will contain nothing new. The poster is also supposed to be more “user friendly.” version. I will try to update my clients when the poster is published.

Estate Planning Quick Tip:

Estate-Planning 1 Most people think they don’t need a Will.

But when you die,  everything you own in your own name alone will be subject to Probate.

While there are some ways to get around the Probate process even when people don’t have Wills, this generally only works when the person who has died doesn’t own real estate.  Even then, the limitations for transferring property out of a deceased person’s estate in Illinois caps out at $100,000.  In most cases, when someone’s total estate is worth more than $100K, or that person owned real estate, Illinois law requires a probate estate be opened.

Someone might argue that often times, even WITH a Will, there is a need for Probate.  But there are key differences.  One such difference is the need for a bond.  Wills routinely have clauses in them which allow the Executor to serve without a bond.

Without a Will, however, the Court will require the Estate’s representative obtain a bond.  Essentially, this is an insurance policy, protecting the potential heirs of the Estate from a representative who might not act with care and diligence, or might actually steal from the Estate.

Depending on the size of the Estate, such a bond could cost the Estate hundreds, even thousands of dollars right off the top.

A simple Will with a clause allowing for the executor to serve without bond solves this problem.  That money is saved!

While some folks would argue that going through the trouble of estate planning and preparing a Will is expensive, it actually can be quite cost effective.

Protecting Your Children In College

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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 the first week of September.  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 soon 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, “fill in the blank” form that is completed 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 that it is 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 currently have two children in college, and I have personally assured them regarding  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 of 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.

Governor Rauner signs Reverse Mortgage Act

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On August 10, 2015, Governor Rauner signed the Reverse Mortgage Act, which provides increased consumer protections for Illinois borrowers involved in reverse mortgage loans. Some of the new protections include increased and more understandable disclosures to potential borrowers, a three day “cooling off” period whereby a potential borrower could rescind the deal, and granting the Attorney General’s office sole enforcement authority in connection with the Illinois Consumer Fraud Act. The Act becomes effective January 1, 2015

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