HRACI Legislative Update
Additional Updates can be found at the Indiana SHRM website, and the SHRM national website.

• Repeal of Sutton v. UAL's core rulings
• Removal of language saying those with disabilities are a minority, and defining disability in a vast, all-encompassing way, that could apply ADA protections to many, many previously uncovered individuals.
  an Effective date of January 1, 2009
• The ADAAA militates in favor of employers taking a new approach to things like reasonable accommodations, in order to manage the new risks imposed by the new law.

Click here to view the entire Act.

July 2008

On June 16, 2008, the USCIS released a newly-dated I-9 form which employers may begin using immediately.

What’s behind the change?
Due to the Paperwork Reduction Act, the Office of Management and Budget (OMB) must have current expiration dates on all approved forms, including the I-9. While the content of the form has not changed from last year’s version, the date of the form and OMB expiration date have been adjusted.

While the use of new forms is generally not required before 30 days after appearing in the Federal Register and guidance on this requirement has yet to be issued, we want to make sure that SHRM members have the most updated form, and recommend that you begin using this new form as soon as possible.

Furthermore, the Department of Homeland Security (DHS) recently published higher civil fines against employers that violate federal immigration laws; as of March 27, 2008, monetary penalties increased approximately 25 percent. Penalties will be given on a per-alien basis—if an employer knowingly employed or continues to employ five unauthorized citizens, five separate fines may be charged.

I-9 Inspections on the Rise
The U.S. Immigration and Customs Enforcement (ICE) has launched a new I-9 inspection campaign across the country, targeting employers suspected of employing unauthorized workers. These “inspections” are announced by service of a subpoena calling for production of Forms I-9 for all current employees and for all employees terminated over the past year. To get more information on this topic, visit our Express Request service and select the key term Immigration Enforcement and Penalties.

110TH CONGRESS
2D SESSION S. 3406
AN ACT
To restore the intent and protections of the Americans with
Disabilities Act of 1990.
1 Be it enacted by the Senate and House of Representa2
tives of the United States of America in Congress assembled,
2
• S 3406 ES
1 SECTION 1. SHORT TITLE.
2 This Act may be cited as the ‘‘ADA Amendments Act
3 of 2008’’.
4 SEC. 2. FINDINGS AND PURPOSES.
5 (a) FINDINGS.—Congress finds that—
6 (1) in enacting the Americans with Disabilities
7 Act of 1990 (ADA), Congress intended that the Act
8 ‘‘provide a clear and comprehensive national man9
date for the elimination of discrimination against in10
dividuals with disabilities’’ and provide broad cov11
erage;
12 (2) in enacting the ADA, Congress recognized
13 that physical and mental disabilities in no way di14
minish a person’s right to fully participate in all as15
pects of society, but that people with physical or
16 mental disabilities are frequently precluded from
17 doing so because of prejudice, antiquated attitudes,
18 or the failure to remove societal and institutional
19 barriers;
20 (3) while Congress expected that the definition
21 of disability under the ADA would be interpreted
22 consistently with how courts had applied the defini23
tion of a handicapped individual under the Rehabili24
tation Act of 1973, that expectation has not been
25 fulfilled;
3
• S 3406 ES
1 (4) the holdings of the Supreme Court in Sut2
ton v. United Air Lines, Inc., 527 U.S. 471 (1999)
3 and its companion cases have narrowed the broad
4 scope of protection intended to be afforded by the
5 ADA, thus eliminating protection for many individ6
uals whom Congress intended to protect;
7 (5) the holding of the Supreme Court in Toyota
8 Motor Manufacturing, Kentucky, Inc. v. Williams,
9 534 U.S. 184 (2002) further narrowed the broad
10 scope of protection intended to be afforded by the
11 ADA;
12 (6) as a result of these Supreme Court cases,
13 lower courts have incorrectly found in individual
14 cases that people with a range of substantially lim15
iting impairments are not people with disabilities;
16 (7) in particular, the Supreme Court, in the
17 case of Toyota Motor Manufacturing, Kentucky, Inc.
18 v. Williams, 534 U.S. 184 (2002), interpreted the
19 term ‘‘substantially limits’’ to require a greater de20
gree of limitation than was intended by Congress;
21 and
22 (8) Congress finds that the current Equal Em23
ployment Opportunity Commission ADA regulations
24 defining the term ‘‘substantially limits’’ as ‘‘signifi4
• S 3406 ES
1 cantly restricted’’ are inconsistent with congressional
2 intent, by expressing too high a standard.
3 (b) PURPOSES.—The purposes of this Act are—
4 (1) to carry out the ADA’s objectives of pro5
viding ‘‘a clear and comprehensive national mandate
6 for the elimination of discrimination’’ and ‘‘clear,
7 strong, consistent, enforceable standards addressing
8 discrimination’’ by reinstating a broad scope of pro9
tection to be available under the ADA;
10 (2) to reject the requirement enunciated by the
11 Supreme Court in Sutton v. United Air Lines, Inc.,
12 527 U.S. 471 (1999) and its companion cases that
13 whether an impairment substantially limits a major
14 life activity is to be determined with reference to the
15 ameliorative effects of mitigating measures;
16 (3) to reject the Supreme Court’s reasoning in
17 Sutton v. United Air Lines, Inc., 527 U.S. 471
18 (1999) with regard to coverage under the third
19 prong of the definition of disability and to reinstate
20 the reasoning of the Supreme Court in School Board
21 of Nassau County v. Arline, 480 U.S. 273 (1987)
22 which set forth a broad view of the third prong of
23 the definition of handicap under the Rehabilitation
24 Act of 1973;
5
• S 3406 ES
1 (4) to reject the standards enunciated by the
2 Supreme Court in Toyota Motor Manufacturing,
3 Kentucky, Inc. v. Williams, 534 U.S. 184 (2002),
4 that the terms ‘‘substantially’’ and ‘‘major’’ in the
5 definition of disability under the ADA ‘‘need to be
6 interpreted strictly to create a demanding standard
7 for qualifying as disabled,’’ and that to be substan8
tially limited in performing a major life activity
9 under the ADA ‘‘an individual must have an impair10
ment that prevents or severely restricts the indi11
vidual from doing activities that are of central im12
portance to most people’s daily lives’’;
13 (5) to convey congressional intent that the
14 standard created by the Supreme Court in the case
15 of Toyota Motor Manufacturing, Kentucky, Inc. v.
16 Williams, 534 U.S. 184 (2002) for ‘‘substantially
17 limits’’, and applied by lower courts in numerous de18
cisions, has created an inappropriately high level of
19 limitation necessary to obtain coverage under the
20 ADA, to convey that it is the intent of Congress that
21 the primary object of attention in cases brought
22 under the ADA should be whether entities covered
23 under the ADA have complied with their obligations,
24 and to convey that the question of whether an indi6
• S 3406 ES
1 vidual’s impairment is a disability under the ADA
2 should not demand extensive analysis; and
3 (6) to express Congress’ expectation that the
4 Equal Employment Opportunity Commission will re5
vise that portion of its current regulations that de6
fines the term ‘‘substantially limits’’ as ‘‘signifi7
cantly restricted’’ to be consistent with this Act, in8
cluding the amendments made by this Act.
9 SEC. 3. CODIFIED FINDINGS.
10 Section 2(a) of the Americans with Disabilities Act
11 of 1990 (42 U.S.C. 12101) is amended—
12 (1) by amending paragraph (1) to read as fol13
lows:
14 ‘‘(1) physical or mental disabilities in no way
15 diminish a person’s right to fully participate in all
16 aspects of society, yet many people with physical or
17 mental disabilities have been precluded from doing
18 so because of discrimination; others who have a
19 record of a disability or are regarded as having a
20 disability also have been subjected to discrimina21
tion;’’;
22 (2) by striking paragraph (7); and
23 (3) by redesignating paragraphs (8) and (9) as
24 paragraphs (7) and (8), respectively.
7
• S 3406 ES
1 SEC. 4. DISABILITY DEFINED AND RULES OF CONSTRUC2
TION.
3 (a) DEFINITION OF DISABILITY.—Section 3 of the
4 Americans with Disabilities Act of 1990 (42 U.S.C.
5 12102) is amended to read as follows:
6 ‘‘SEC. 3. DEFINITION OF DISABILITY.
7 ‘‘As used in this Act:
8 ‘‘(1) DISABILITY.—The term ‘disability’ means,
9 with respect to an individual—
10 ‘‘(A) a physical or mental impairment that
11 substantially limits one or more major life ac12
tivities of such individual;
13 ‘‘(B) a record of such an impairment; or
14 ‘‘(C) being regarded as having such an im15
pairment (as described in paragraph (3)).
16 ‘‘(2) MAJOR LIFE ACTIVITIES.—
17 ‘‘(A) IN GENERAL.—For purposes of para18
graph (1), major life activities include, but are
19 not limited to, caring for oneself, performing
20 manual tasks, seeing, hearing, eating, sleeping,
21 walking, standing, lifting, bending, speaking,
22 breathing, learning, reading, concentrating,
23 thinking, communicating, and working.
24 ‘‘(B) MAJOR BODILY FUNCTIONS.—For
25 purposes of paragraph (1), a major life activity
26 also includes the operation of a major bodily
8
• S 3406 ES
1 function, including but not limited to, functions
2 of the immune system, normal cell growth, di3
gestive, bowel, bladder, neurological, brain, res4
piratory, circulatory, endocrine, and reproduc5
tive functions.
6 ‘‘(3) REGARDED AS HAVING SUCH AN IMPAIR7
MENT.—For purposes of paragraph (1)(C):
8 ‘‘(A) An individual meets the requirement
9 of ‘being regarded as having such an impair10
ment’ if the individual establishes that he or
11 she has been subjected to an action prohibited
12 under this Act because of an actual or perceived
13 physical or mental impairment whether or not
14 the impairment limits or is perceived to limit a
15 major life activity.
16 ‘‘(B) Paragraph (1)(C) shall not apply to
17 impairments that are transitory and minor. A
18 transitory impairment is an impairment with an
19 actual or expected duration of 6 months or less.
20 ‘‘(4) RULES OF CONSTRUCTION REGARDING
21 THE DEFINITION OF DISABILITY.—The definition of
22 ‘disability’ in paragraph (1) shall be construed in ac23
cordance with the following:
24 ‘‘(A) The definition of disability in this Act
25 shall be construed in favor of broad coverage of
9
• S 3406 ES
1 individuals under this Act, to the maximum ex2
tent permitted by the terms of this Act.
3 ‘‘(B) The term ‘substantially limits’ shall
4 be interpreted consistently with the findings
5 and purposes of the ADA Amendments Act of
6 2008.
7 ‘‘(C) An impairment that substantially lim8
its one major life activity need not limit other
9 major life activities in order to be considered a
10 disability.
11 ‘‘(D) An impairment that is episodic or in
12 remission is a disability if it would substantially
13 limit a major life activity when active.
14 ‘‘(E)(i) The determination of whether an
15 impairment substantially limits a major life ac16
tivity shall be made without regard to the ame17
liorative effects of mitigating measures such
18 as—
19 ‘‘(I) medication, medical supplies,
20 equipment, or appliances, low-vision de21
vices (which do not include ordinary eye22
glasses or contact lenses), prosthetics in23
cluding limbs and devices, hearing aids and
24 cochlear implants or other implantable
10
• S 3406 ES
1 hearing devices, mobility devices, or oxygen
2 therapy equipment and supplies;
3 ‘‘(II) use of assistive technology;
4 ‘‘(III) reasonable accommodations or
5 auxiliary aids or services; or
6 ‘‘(IV) learned behavioral or adaptive
7 neurological modifications.
8 ‘‘(ii) The ameliorative effects of the miti9
gating measures of ordinary eyeglasses or con10
tact lenses shall be considered in determining
11 whether an impairment substantially limits a
12 major life activity.
13 ‘‘(iii) As used in this subparagraph—
14 ‘‘(I) the term ‘ordinary eyeglasses or
15 contact lenses’ means lenses that are in16
tended to fully correct visual acuity or
17 eliminate refractive error; and
18 ‘‘(II) the term ‘low-vision devices’
19 means devices that magnify, enhance, or
20 otherwise augment a visual image.’’.
21 (b) CONFORMING AMENDMENT.—The Americans
22 with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.)
23 is further amended by adding after section 3 the following:
24 ‘‘SEC. 4. ADDITIONAL DEFINITIONS.
25 ‘‘As used in this Act:
11
• S 3406 ES
1 ‘‘(1) AUXILIARY AIDS AND SERVICES.—The
2 term ‘auxiliary aids and services’ includes—
3 ‘‘(A) qualified interpreters or other effec4
tive methods of making aurally delivered mate5
rials available to individuals with hearing im6
pairments;
7 ‘‘(B) qualified readers, taped texts, or
8 other effective methods of making visually deliv9
ered materials available to individuals with vis10
ual impairments;
11 ‘‘(C) acquisition or modification of equip12
ment or devices; and
13 ‘‘(D) other similar services and actions.
14 ‘‘(2) STATE.—The term ‘State’ means each of
15 the several States, the District of Columbia, the
16 Commonwealth of Puerto Rico, Guam, American
17 Samoa, the Virgin Islands of the United States, the
18 Trust Territory of the Pacific Islands, and the Com19
monwealth of the Northern Mariana Islands.’’.
20 (c) AMENDMENT TO THE TABLE OF CONTENTS.—
21 The table of contents contained in section 1(b) of the
22 Americans with Disabilities Act of 1990 is amended by
23 striking the item relating to section 3 and inserting the
24 following items:
‘‘ Sec. 3. Definition of disability.
‘‘ Sec. 4. Additional definitions.’’.
12
• S 3406 ES
1 SEC. 5. DISCRIMINATION ON THE BASIS OF DISABILITY.
2 (a) ON THE BASIS OF DISABILITY.—Section 102 of
3 the Americans with Disabilities Act of 1990 (42 U.S.C.
4 12112) is amended—
5 (1) in subsection (a), by striking ‘‘with a dis6
ability because of the disability of such individual’’
7 and inserting ‘‘on the basis of disability’’; and
8 (2) in subsection (b) in the matter preceding
9 paragraph (1), by striking ‘‘discriminate’’ and in10
serting ‘‘discriminate against a qualified individual
11 on the basis of disability’’.
12 (b) QUALIFICATION STANDARDS AND TESTS RE13
LATED TO UNCORRECTED VISION.—Section 103 of the
14 Americans with Disabilities Act of 1990 (42 U.S.C.
15 12113) is amended by redesignating subsections (c) and
16 (d) as subsections (d) and (e), respectively, and inserting
17 after subsection (b) the following new subsection:
18 ‘‘(c) QUALIFICATION STANDARDS AND TESTS RE19
LATED TO UNCORRECTED VISION.—Notwithstanding sec20
tion 3(4)(E)(ii), a covered entity shall not use qualification
21 standards, employment tests, or other selection criteria
22 based on an individual’s uncorrected vision unless the
23 standard, test, or other selection criteria, as used by the
24 covered entity, is shown to be job-related for the position
25 in question and consistent with business necessity.’’.
26 (c) CONFORMING AMENDMENTS.—
13
• S 3406 ES
1 (1) Section 101(8) of the Americans with Dis2
abilities Act of 1990 (42 U.S.C. 12111(8)) is
3 amended—
4 (A) in the paragraph heading, by striking
5 ‘‘WITH A DISABILITY’’; and
6 (B) by striking ‘‘with a disability’’ after
7 ‘‘individual’’ both places it appears.
8 (2) Section 104(a) of the Americans with Dis9
abilities Act of 1990 (42 U.S.C. 12114(a)) is
10 amended by striking ‘‘the term ‘qualified individual
11 with a disability’ shall’’ and inserting ‘‘a qualified
12 individual with a disability shall’’.
13 SEC. 6. RULES OF CONSTRUCTION.
14 (a) Title V of the Americans with Disabilities Act of
15 1990 (42 U.S.C. 12201 et seq.) is amended—
16 (1) by adding at the end of section 501 the fol17
lowing:
18 ‘‘(e) BENEFITS UNDER STATE WORKER’S COM19
PENSATION LAWS.—Nothing in this Act alters the stand20
ards for determining eligibility for benefits under State
21 worker’s compensation laws or under State and Federal
22 disability benefit programs.
23 ‘‘(f) FUNDAMENTAL ALTERATION.—Nothing in this
24 Act alters the provision of section 302(b)(2)(A)(ii), speci25
fying that reasonable modifications in policies, practices,
14
• S 3406 ES
1 or procedures shall be required, unless an entity can dem2
onstrate that making such modifications in policies, prac3
tices, or procedures, including academic requirements in
4 postsecondary education, would fundamentally alter the
5 nature of the goods, services, facilities, privileges, advan6
tages, or accommodations involved.
7 ‘‘(g) CLAIMS OF NO DISABILITY.—Nothing in this
8 Act shall provide the basis for a claim by an individual
9 without a disability that the individual was subject to dis10
crimination because of the individual’s lack of disability.
11 ‘‘(h) REASONABLE ACCOMMODATIONS AND MODI12
FICATIONS.—A covered entity under title I, a public entity
13 under title II, and any person who owns, leases (or leases
14 to), or operates a place of public accommodation under
15 title III, need not provide a reasonable accommodation or
16 a reasonable modification to policies, practices, or proce17
dures to an individual who meets the definition of dis18
ability in section 3(1) solely under subparagraph (C) of
19 such section.’’;
20 (2) by redesignating section 506 through 514
21 as sections 507 through 515, respectively, and add22
ing after section 505 the following:
15
• S 3406 ES
1 ‘‘SEC. 506. RULE OF CONSTRUCTION REGARDING REGU2
LATORY AUTHORITY.
3 ‘‘The authority to issue regulations granted to the
4 Equal Employment Opportunity Commission, the Attor5
ney General, and the Secretary of Transportation under
6 this Act includes the authority to issue regulations imple7
menting the definitions of disability in section 3 (including
8 rules of construction) and the definitions in section 4, con9
sistent with the ADA Amendments Act of 2008.’’; and
10 (3) in section 511 (as redesignated by para11
graph (2)) (42 U.S.C. 12211), in subsection (c), by
12 striking ‘‘511(b)(3)’’ and inserting ‘‘512(b)(3)’’.
13 (b) The table of contents contained in section 1(b)
14 of the Americans with Disabilities Act of 1990 is amended
15 by redesignating the items relating to sections 506
16 through 514 as the items relating to sections 507 through
17 515, respectively, and by inserting after the item relating
18 to section 505 the following new item:
‘‘ Sec. 506. Rule of construction regarding regulatory authority.’’.
19 SEC. 7. CONFORMING AMENDMENTS.
20 Section 7 of the Rehabilitation Act of 1973 (29
21 U.S.C. 705) is amended—
22 (1) in paragraph (9)(B), by striking ‘‘a phys23
ical’’ and all that follows through ‘‘major life activi24
ties’’, and inserting ‘‘the meaning given it in section
16
• S 3406 ES
1 3 of the Americans with Disabilities Act of 1990 (42
2 U.S.C. 12102)’’; and
3 (2) in paragraph (20)(B), by striking ‘‘any per4
son who’’ and all that follows through the period at
5 the end, and inserting ‘‘any person who has a dis6
ability as defined in section 3 of the Americans with
7 Disabilities Act of 1990 (42 U.S.C. 12102).’’.
8 SEC. 8. EFFECTIVE DATE.
9 This Act and the amendments made by this Act shall
10 become effective on January 1, 2009.
Passed the Senate September 11, 2008.
Attest:
Secretary.

110TH CONGRESS
2D SESSION S. 3406
AN ACT
To restore the intent and protections of the
Americans with Disabilities Act of 1990.

June 2008

Expanded FMLA Leave Protection for Close Relatives of Service Members
Written by Heather L. Wilson

Employers should take steps to prepare themselves for significant changes to the Family and Medical Leave Act of 1993. On January 28, 2008, the National Defense Authorization Act of 2008 was signed into law, which has provided extended FMLA protection to certain relatives of uniformed service members.

This is the first expansion of the FMLA since its enactment in 1993 and it has been amended in two principal ways. The first provision is a leave to handle “exigencies” which provides up to 12 weeks of FMLA leave for a “qualifying exigency” arising out of a close family member’s call to active duty. The second provision is leave to care for a family member injured during military service and provides up to 26 weeks of leave. Both forms of military family leave may be taken intermittently or on a reduced leave schedule. The FMLA requirements for employee and employer eligibility, notice, certifications and job protections apply.

On February 11, 2008, the Department of Labor (DOL) published a Notice of Proposed Rulemaking in the Federal Register, which provided some guidance on these new types of leaves. The proposed rules were open for public comment until April 11, 2008 and final rulemaking likely will not be concluded until the end of this year.

“Qualifying Exigency” Leave

On January 30, 2008, the DOL posted a notice on its website stating that the requirements to provide leave to deal with exigencies when a family member is called to active duty will not go into effect until final regulations are issued defining “qualifying exigency.” Once in effect, employees will be entitled to 12 weeks of leave due to a “qualifying exigency” which arises “out of the fact that the spouse, [child] or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces to support a contingency operation.” The 12 week “exigency” leave is part of the combined total of 12 weeks of FMLA leave available to employees in any 12 month period.

However, DOL’s proposed regulations did not propose a definition of “qualifying exigency.” Instead, it solicited comments on whether the following types of exigencies, as well as any others, should qualify: (1) making arrangements for child care; (2) making financial and legal arrangements to address the service member’s absence; (3) attending counseling related to the active duty of the service member; (4) attending official ceremonies or programs where the participation of the family member is requested by the military; (5) attending to farewell or arrival arrangements for a service member; and (6) attending to affairs caused by the missing status or death of a service member.

If leave is due to a “qualifying exigency”, the employer may require that the request be supported by certification issued in the manner as the DOL may prescribe in its regulations. The February 11th proposed regulations seek comment on various questions relating to certification, and include: (1) Who may issue a certification related to active duty or call to active duty status? Should anyone other than the Department of Defense provide a certification of the covered service member’s active duty or call to active duty status?; (2) Should an employee seeking FMLA leave due to a qualifying exigency provide certification of the qualifying exigency by statement or affidavit?; (3) Should an employer be permitted to clarify, authenticate or validate an active duty or call to active duty certification? If so, what limitations, if any, should be imposed on an employer’s ability to seek such clarification, authentication, or validation for certifications?

Servicemember Family Leave

Servicemember Family Leave is leave providing up to 26 weeks to care for an injured family member. This type of leave became effective immediately and should now be included in all FMLA policies. Under this provision, an eligible employee who is the spouse, child, parent or “next of kin” of a “covered” service member may take up to 26 weeks of job-protected leave in “a single 12-month” period” to care for the service member. “Next of kin” is defined as the “nearest blood relative of that individual. A “serious injury or illness” is limited to “an injury or illness incurred by the member in line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating.” “Servicemember family leave” is combined with all other FMLA leaves, which allows an employee a combined total of 26 weeks of leave during a single 12 month period.

Questions still exist regarding the provision for 26 weeks of leave in a single 12 month period, such as: (1) Should the 12 month period be calculated from the date of the service member’s injury, the date of the determination that the service member has a serious injury or the date on which an eligible employee is needed to care for a seriously injured service member?; (2) What is the meaning of “a single 12 month period”? Is it a one-time entitlement or do the 26 work weeks of leave renew each 12 month period?

Other Highlights from the DOL’s February 11, 2008 Proposed Rulemaking

The DOL’s proposed rules are the first significant update to the FMLA since the federal regulations were implemented in 1994. The DOL issued a “Request for Information” in December 2006, and received numerous comments. The comments included concerns regarding unscheduled intermittent leave, employee notice, interaction between the FMLA and the Americans with Disabilities Act, the definition of serious health condition, and medical certification. The proposed rules address some of these concerns.

The proposed rules include changes involving the medical certification process. Under the proposed rules, employers would now be allowed to contact medical providers directly for purposes of authenticating or clarifying a certification form. Currently, an employer may not contact the employee’s physician directly and employers are required to hire their own medical providers to ask questions about medical certifications. The rules would also permit employers to request annual recertification for conditions lasting more than a year and a semi-annual recertification for conditions described as “lifetime,” “indefinite,” or “unknown.”

The current regulations prevent employers from denying a bonus or award to employees simply because they took an FMLA leave of absence. The DOL has proposed a change that would now allow employers to disqualify an employee from a bonus or award that is predicated on the achievement of a goal, where the goal is not reached as a result of an FMLA leave of absence.

The DOL’s proposed rules also clarify that an employer and employee may voluntarily agree to the settlement of past FMLA claims without the permission of the DOL or a court. However, the prohibition of waivers on prospective FMLA claims remains intact.

Another area of proposed rulemaking includes the definition of serious health condition. The proposed rules would require employees who suffer from a chronic health condition to demonstrate that they have seen a doctor at least twice a year rather than on a “periodic” basis. In addition, a serious health condition involving three consecutive days of incapacity must include two separate visits to a medical provider within 30 days of the incapacity.

Practical Tips for Employers
While awaiting final regulations, employers should familiarize themselves with the new military family leave options available to their employees under the NDAA amendment, notify employees of the new types of leave and revise leave policies to reflect the changes in the FMLA.

Heather L. Wilson is an attorney with Locke Reynolds, LLP and chairs the firm’s labor and employment group. Ms. Wilson can be reached at (317) 237-3805 or hwilson@locke.com.

May 2008

• address exigent circumstances, created by being called up, deployed, etc., and
• care for members of the armed forces sustaining injuries or illnesses.
• Indiana law also permits employees to take 10 days' leave, in the thirty days before or after a spouse's active duty, as well as during breaks in a spouse's active duty.

• is this in any way related to military service?
• if so, please provide all relevant details.

• admonishment to any person making off-color or biased jokes or statements, reflecting improper bias,
• disavowal of any such jokes or statements to anyone within earshot, or receiving such communications vial email.

Indiana

With the close of the 2007-2008 General Assembly Short Session the main threat to the HR profession was Senate Bill 335 – The Illegal Immigration Bill. It passed both the Senate and House in the General Assembly but due to differences in the bills and growing opposition the bill was not passed. Many Indiana SHRM members communicated to their Legislators the many reasons why the bill was not good for Indiana.

HR professionals should be vigilant in the next Assembly as there will be another move to pass an illegal immigration bill.

Federal

Our Congress continues to consider many issues and bills. It is expected that the majority of the bills will be held over until after the election and considered in the next Congress. In March 2008 SHRM members from every State visited Capitol Hill and visited Representative and Senate offices. There were three areas discussed. The topics included the support of the New Employee Verification Act (NEVA) HR5515, the Family Medical Leave Act & the ADA Restoration Act HR 3195.