December 2008 - 2009 Brings New Statutory and Regulatory Obligations

DUFF, WHITE & TURNER, L.L.C.
Attorneys and Counselors at Law

Post Office Box 1486 Columbia, South Carolina 29202           Telephone 803/790-0603 Facsimile 803/790-0605

SCHOOL LAW
"ISSUE OF THE MONTH"
December 2008

2009 Brings New Statutory and Regulatory Obligations

In January 2009, school districts will be faced with several new statutory and regulatory obligations that will require planning and revision to current district practices and policies. We have highlighted the more significant aspects of these new obligations below:

Americans with Disabilities Amendments Act of 2008 (ADAAA) - As discussed in our October 2008 Issue of the Month, effective January 1, 2009, the scope of persons entitled to the protections of the Americans with Disabilities Act (ADA) will be expanded as a result of the ADAAA. Among the most significant ADAAA provisions are its broad definition of "major life activity," its specific inclusion of major bodily functions as major life activities, its inclusion of individuals with periodic impairments as "disabled" for purposes of the ADA, and its clarification of protections afforded to persons "regarded as" having a disability. Because courts interpret Section 504 and the ADA in many identical ways, the ADAAA's amendments to the ADA impact school districts' obligations pursuant to Section 504, particularly with respect to accommodations for students.

Because the expansion of protections for disabled persons through the ADAAA will likely increase the number of employee and student requests for accommodations under the ADA and Section 504, school districts should ensure that policies and administrative rules, as well as the parental rights notice required by Section 504, are reviewed and amended as necessary to reflect the ADAAA provisions. Employee handbooks, employee rights notices, and employee forms referencing disability accommodations also should be reviewed and revised as needed. All district employees responsible for implementing disability policies, particularly Section 504 compliance officers, should be trained to ensure that they are mindful of these amendments when reviewing disability accommodation requests.

Family and Medical Leave Act (FMLA) Regulations - As set forth in our March 2008 Issue of the Month, the FMLA has been amended to expand FMLA coverage to employees whose family members are in the military and are on active duty or may be called for active duty. The United States Department of Labor has issued final revised regulations implementing the new statutory revisions regarding family and medical leave for military family members, as well as clarifying employer rights and responsibilities regarding FMLA leave generally and expanding available damages for employer violations of FMLA.

With respect to military family leave, this year's statutory amendments to FMLA provide twelve (12) workweeks of job-protected FMLA leave to certain employees to use for "any qualifying exigency" arising out of the fact that a covered military member is on active duty or called to active duty status in support of a contingency operation. The new regulations now define "qualifying exigency" and specify when and what documentation may be required when an employee requests FMLA leave on this basis or to care for a family service member who acquires a serious illness or is injured the line of duty while on active duty. In the latter situation, the employee would be entitled to 26 weeks of FMLA leave.

The regulations also change the original FMLA scheme by revising the definition of a serious health condition, addressing the substitution of paid leave, revising the medical certification process, providing employer fitness-for-duty certification options, and clarifying employee and employer notice obligations. In particular, employers now must at various times provide employee notices about the FMLA: a general notice about the FMLA (through a poster, as well as in some other format, such as a handbook, upon an employee's hire); an eligibility notice and a rights and responsibilities notice (both given when leave is requested); and a FMLA leave designation notice (given when leave is designated as FMLA leave). Employers now have five days, rather than two days, to designate leave as FMLA leave.

Because these regulations are effective January 16, 2009, school districts should ensure that their FMLA policies, administrative rules, FMLA forms, and other documents reflect the districts' and employees' respective obligations pursuant to these regulations. If Department of Labor forms are currently used for FMLA purposes, the revised Department of Labor forms should be downloaded and utilized to ensure compliance with the new regulations. Employees, particularly those with responsibility for administering FMLA, should be trained regarding their rights and responsibilities pursuant to FMLA and its implementing regulations.

IRS 403(b) Regulations - As we discussed in our February 2008 Issue of the Month, the Internal Revenue Service (IRS) has promulgated new rules affecting tax-deferred investment accounts under Section 403(b) of the Internal Revenue Code. In the past, school districts were responsible only for directing employee 403(b) plan contributions to the correct vendor. The new IRS rules, however, allocate several new responsibilities to school districts as 403(b) plan "sponsors."

By January 1, 2009, school districts must adopt a written 403(b) plan document that, among other things, identifies authorized investment account vendors, explains any eligibility restrictions, and details the availability of loans and hardship withdrawals. Districts are responsible for ensuring compliance with the new regulations; however, it is relatively easy for districts, through plan documents, to shift most compliance responsibilities to vendors or third-party administrators.

South Carolina Illegal Immigration Reform Act - As we discussed more fully in our July 2008 Issue of the Month, the South Carolina Illegal Immigration Reform Act ("the Act") has been signed into law and is effective January 1, 2009. By that date, public employers, including school districts, must be registered for and participating in E-verify, a federal work authorization program. Additionally, with respect to any contract entered into after January 1, 2009, public employers must ensure that certain contractors and subcontractors comply with the employment authorization provisions of the Act by obtaining written certification from them that they will comply. The certifications from contractors and sub-contractors is only required when the contractors perform substantial manual work on behalf of the district. In addition, as of January 1, 2009, only contractors with 500 or more employees will be required to comply. Later in the year, smaller contractors will be required to comply.

Should you have any questions about any of the amendments discussed above, please feel free to contact this firm.

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