HR Compliance Regulatory Updates

EEOC Revises "EEO is the Law" Poster to Include Information on GINA

As of November 21, 2009, covered employers will be required to post information on the ban on employment discrimination based on genetic information contained in the Genetic Information Nondiscrimination Act of 2008 (GINA). GINA prohibits employers from discriminating against applicants and employees based on genetic information. The law also restricts employers' acquisition and disclosure of genetic information. The employment provisions of GINA apply to private and state and local government employers with 15 or more employees, employment agencies, labor unions, and joint labor-management training programs.

The Equal Employment Opportunity Commission (EEOC) has approved a proposed final rule implementing the employment nondiscrimination provisions and has revised its "Equal Employment Opportunity is the Law" poster to add information about GINA. The revised poster also includes updates from the Department of Labor. The EEOC has provided several ways for employers to comply with the posting requirement:

• Employers can print the EEOC's "EEO is the Law" poster supplement and post it alongside the EEOC's September 2002 "EEO is the Law" poster or the OFCCP's August 2008 "EEO is the Law" poster. The supplement can be downloaded at no charge from the EEOC's website at http://www.eeoc.gov/employers/upload/eeoc_gina_supplement.pdf.
• Alternatively, employers can print and post the EEOC's November 2009 version of the "EEO is the Law" poster, which is also available at no charge on the EEOC's website at http://www.eeoc.gov/employers/upload/eeoc_self_print_poster.pdf.
• Employers who need more than ten copies of the poster should order it from the EEOC Clearinghouse. Although the EEOC website states that the poster is on backorder, it also states that it will be shipped when it becomes available in the near future.

Although employers may receive solicitations from companies offering to sell them the revised EEO poster or a combination poster, it is not necessary to purchase a poster because the EEOC makes all required postings available at no charge on its website.

FMLA's Military Leave Provisions Expanded

On October 28, 2009, President Obama signed the National Defense Authorization Act for Fiscal Year 2010 (the "NDAA"), which, among other things, expands the scope of the provisions of the Family and Medical Leave Act (FMLA) pertaining to leave for qualifying exigencies and military caregiver leave. Specifically, the NDAA now permits family members of active duty service members to take leave for a qualifying exigency. Previously, only family members of National Guard and Reservists called to active duty in support of a contingency operation were permitted to take leave for a qualifying exigency. The NDAA also extends the scope of military caregiver leave to families of certain veterans, who previously were not covered by the provision. It also permits military caregiver leave for serious injuries or illnesses that are the result of pre-existing conditions that were aggravated by service while on active duty.

The FMLA permits eligible employees to take a total of twelve weeks of job-protected leave during a twelve-month period due to the employee's or a family member's serious health condition, or the birth, adoption, or placement of a child for adoption or foster care. Eligible employees are those who have been employed for at least twelve months (not necessarily consecutive months), have worked for at least 1,250 hours during the twelve-month period immediately preceding the leave of absence, and work in an office or worksite at which fifty or more employees are employed.

NDAA Revisions to Qualifying Exigency Leave:

The NDAA amends the FMLA to provide leave for a qualifying exigency for covered family members of regular Armed Forces service members deployed to a foreign country as well as members of a reserve component of the Armed Forces deployed to a foreign country under a call or order to active duty under a provision of law referred to in 10 USC § 101(a)(13)(B). NDAA Revisions Military Caregiver Leave Provisions:

• Pre-existing Conditions Now Covered: The NDAA amends the definition of serious injury or illness to include pre-existing conditions that were aggravated by service in the line of duty while on active duty as well as those incurred in the line of duty while on active duty.
• Family Members of Veterans Now Covered: The NDAA also amends the military caregiver leave provisions to include family members of a veteran who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness and who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the five-year period preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy.
• Definition of Serious Injury or Illness for Veterans: The NDAA defines serious injury or illness for such veterans to mean a qualifying (as defined by the Secretary of Labor) injury or illness that was incurred by the service member in the line of duty on active duty in the Armed Forces (or a pre-existing condition that was aggravated by service in line of duty on active duty) and that manifested itself before or after the member became a veteran.

More information on compliance with federal and state FMLA regulations can be found at http://www.dol.gov/esa/whd/fmla

Upcoming Deadlines for Retirement Plan Amendments

by Jeffrey Ashendorf

Plan sponsors should be aware of upcoming deadlines for adoption of amendments to their qualified retirement plans. Certain amendments are required by the end of the 2009 plan year (December 31, 2009 for calendar year plans), while others are required by the plan sponsor's 2009 tax-filing deadline. In some cases, there may also be amendments required to be adopted by January 31, 2010.

PPA Amendments

The first category of amendments is those that are required (or permitted) in order to comply with changes made by the Pension Protection Act of 2006 ("PPA"). Even though the PPA amendments were enacted with various effective dates, some as early as 2006, and plans may have already had to comply in operation with those changes, documentary amendments are generally only required by the end of the 2009 plan year (December 31, 2009 for calendar year plans). Primary among the PPA changes are those affecting defined benefit plan funding and applying funding-based benefit restrictions; those changes are required to be made by year-end. Other changes made by the PPA (some of which are required and some of which are optional) include:

• allowing direct rollovers from qualified plans to Roth IRAs (mandatory);
• modifying the qualified preretirement survivor annuity options (mandatory, where applicable);
• expanding hardship withdrawal provisions in 401(k) plans (optional);
• authorizing "Qualified Reservist Distributions" (optional);
• increasing to 180 days the current 90-day notice and consent periods for both direct rollover elections and qualified joint and survivor elections and consents (optional);
• eliminating the requirement that 401(k) plans distribute "gap period" earnings when correcting excess deferrals (mandatory); and
• permitting non-spouse beneficiaries to roll over plan distributions (mandatory for plan years beginning after 2009; optional for prior years).

Discretionary (Optional) Amendments

A plan sponsor often has a great deal of flexibility concerning the design or administration of its plan, and generally is free to make various changes that are not required by amendments to the law or regulations. When such a change, that is not mandated by a change in the law, is made, a "discretionary" plan amendment usually is required to be adopted by the end of the plan year in which the amendment is effective. Some of these discretionary amendments might be adding (or changing) any of the following plan provisions:

• plan loans;
• hardship distributions;
• "designated Roth contributions";
• automatic 401(k) enrollment feature (an automatic contribution arrangement); or
• participant-directed investments.

Plan sponsors should review their plans to determine whether there are any such discretionary amendments that need to be adopted at this time.

Required Determination Letter Applications

Cycle D Filings Due by January 31, 2010

The IRS prescribes procedures under which individually-designed plans are required to be amended, and submitted for determination letters, based on a five-year cycle determined according to the last digit of the plan sponsor's EIN. Sponsors whose EINs end in "4" or "9" are assigned to "Cycle D," and have an amendment/submission deadline of January 31, 2010. This means that all required amendments must be adopted by that date (discretionary amendments that are effective in 2009, as well as required PPA amendments, must still be adopted by the end of the 2009 plan year, as described above).

In connection with those amendments, the IRS maintains listings of statutory and regulatory changes that must be complied with by the plans to which each five-year cycle applies. Notice 2008-108 is the "Cumulative List of Changes in Plan Qualification Requirements" for Cycle D plans, and reflects all changes that are required to be adopted for such a plan by January 31, 2010.

Plans other than Cycle D Filings

Individually-designed plans that are not Cycle D plans (whose sponsors have EINs ending in other than "4" and "9") will be subject to different amendment deadlines; for example, sponsors with EINs ending in "5" or "0" are Cycle E, and their plans must be amended/submitted by January 31, 2011. However, even between five-year cycles, plans may be required to adopt interim "good faith" amendments when required by the IRS on the basis of, e.g., changes in regulations. Such interim amendments are required to be adopted prior to the sponsor's tax-filing deadline (with extensions, if applicable) for the year in which the amendment is effective.

If you have any questions regarding this article, you can contact the author, Jeffrey Ashendorf, at 212-453-5926, jashendorf@fordharrison.com, or any other member of Ford & Harrison's Employee Benefits practice group.