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Viewpoint: When Employers Fail to Designate FMLA Leave

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Viewpoint: When Employers Fail to Designate FMLA Leave

Your employee, Johnny, takes a leave of absence because he stubbed his toe at work, resulting in a lengthy workers’ compensation absence. For one reason or another, Johnny’s one-week leave of absence turns into one month, then six months.One night, right about the time Johnny is nine months into a leave of absence, you wake up in a cold sweat, realizing for the first time that you completely forgot to designate any of Johnny’s nine months away as leave taken under the Family and Medical Leave Act (FMLA).What You Should Have DoneWhen an employer is put on notice that an employee needs leave for a reason that may be covered by the FMLA, the employer has an obligation to provide the employee a Notice of Eligibility and of Rights and Responsibilities under the FMLA (which is usually accompanied by a blank medical certification form). Once you have sufficient information from your employee to determine whether the absence qualifies under FMLA, then you send your employee a Designation Notice. If you don’t send these notices to your employees, you risk an FMLA violation.But take some heart in a recent FMLA case, Jeanette Jergens v. Marias Medical Center. In Jergens’ situation, she took a leave of absence for alleged anxiety which, interestingly enough, coincided with her employer’s decision to keep her on an administrative leave of absence while it investigated her alleged workplace misconduct. However, Jergens’ employer failed to provide her with a Notice of Eligibility. It didn’t send her a medical certification form and a designation notice, either.It literally sent her nothing.Jergens was terminated a short time later for reasons not related to her leave of absence. When she filed suit against his former employer, she claimed—among other things—that her employer violated the FMLA because it did not provide her proper or timely FMLA notices.Employee Must Show Notice Failure Caused HarmThe court reviewing Jergens claim took a rather pragmatic approach. On one hand, the employer technically violated the FMLA when it failed to provide Jergens with proper and timely FMLA notices, but this inaction does not create a standalone FMLA claim.On the other hand, Jergens failed to provide any evidence that she actually was harmed by the employer’s failure to provide proper notice. For the court, nothing was lost, nor was any harm suffered, by reason of the failure to provide proper and timely notices.Case dismissed.Insights for EmployersThe employer dodged a bullet here. I share this case not to highlight employer best practices (clearly, the employer’s actions here are not a model for us to follow), but as a reminder that the way to go—indeed, the best practice—is to provide proper and timely FMLA notices:When we receive notice of the need for leave that may be covered by FMLA, we provide the Notice of Eligibility and of Rights and Responsibilities. When we have enough information from medical certification as to whether FMLA applies, we provide the Designation Notice.Let’s dig in a bit more though.Catching the Oversight Soon EnoughIf we have missed the deadlines …

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Take the Fear out of Feedback

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Take the Fear out of Feedback

​The ability to give feedback is a superpower. Little nuggets of feedback can change lives. But the word “feedback” has a negative connotation, perhaps because not many people are comfortable giving it.One mistake many managers make when giving feedback is to focus only on poor performance instead of also speaking to successful performance.That’s according to Tamra Chandler, partner at EY, and Laura Grealish, senior manager at EY, both in Washington state, who co-authored the book Feedback and Other Dirty Words: Why We Fear It, How to Fix It (Berrett-Koehler, 2019). They provided a new outlook on one of the more dreaded duties of HR and managers during their session “Redeeming Feedback for Good” during the SHRM Annual Conference & Expo 2021.”We need to redeem feedback and start over, because feedback is good for your company,” the presenters shared. “You have to lean in and listen in your feedback. If you do, you will outperform those companies who don’t.”Chandler and Grealish said teams should allow frank and positive thoughts in their feedback because teams that encourage this will stay together longer. Employees who receive specific praise in the form of feedback performed better at future tasks than their counterparts, they said.For example, two-thirds of employees whose managers focus on their strengths are “fully engaged.” When managers focus on their weaknesses, employee engagement drops to 31 percent.”Research shows that focusing people on their shortcomings doesn’t enable learning. It impairs it,” Chandler said. “Our words have the power to inspire, to unlock potential, to lift us up instead of knocking us down. If that doesn’t get you on board with fixing feedback … nothing will.”Most importantly, when supervisors focus on fixing a performance problem through negative feedback, “It’s a huge turnoff in the employees’ minds,” they said. “When we exert control over someone, their performance will actually go down, outcomes suffer, and learning is limited. As a supervisor, remember it’s about their future and not your agenda.”Trust and Positivity Are KeyWhen giving feedback, managers shouldn’t be judgmental. Feedback should be intended to help individuals or teams thrive and grow. “If not, then don’t fool yourself into thinking it’s feedback,” they said.Once a manager and employee develop trust, more valuable and more effective discussions over feedback can be had, they said.”When there’s a trusting relationship, so many good things happen. There’s 74 percent less stress, 106 percent more energy, 50 percent more productivity, 60 percent more joy, 70 percent more purpose and 50 percent more retention,” Chandler said.Chandler and Grealish said negativity will kill the process. They recommended that supervisors tie necessary negative feedback to the future: They recommended conveying the message “It’s not that you did it wrong. It’s that you can do it even better.”Don’t Make Feedback ScarySupervisors should aim to lower employees’ fear of receiving feedback. “The last thing an employee wants to hear is, ‘Let’s set up some time tomorrow for you to visit with me in my office,’ ” Grealish said. “That is something that will surely lead to …

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5 Common Mental Health Challenges in the Workplace

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5 Common Mental Health Challenges in the Workplace

​You can’t see mental health challenges, but they are happening all around you.Speaking during a session at the recent SHRM Annual Conference & Expo 2021, Andrea Sides Herron, SHRM-CP, told the plight of her sister, who has struggled with mental health issues for nearly her entire life. Then COVID-19 made them worse. Herron’s sister initially hid how she was feeling from friends and family, but eventually the warning signs became clearly visible and she asked for help.Mental health issues are afflicting people in your office, too, Herron said. Pre-pandemic, 1 in 5 people in the U.S. had some form of mental disorder; the numbers have skyrocketed since then. Identifying Employees Who Are Experiencing Mental Health Challenges”Many of you are being squished by mental illness,” Herron said. “You have more than you can handle.”One way HR teams and supervisors can identify staff members experiencing mental health challenges, she said, is by paying attention to each person’s base lines. What is the person’s typical behavior? Learning this becomes more difficult with remote workers, she said, but there are signs that should cause concern.”Have you noticed that a person’s appearance has shifted?” she asked. “Are they choosing not to have their camera on during videoconference meetings when they usually did? Is there evidence that they’re drinking too much or [have] picked up smoking again? Maybe they’ve told you about the 12 Amazon deliveries that show up at their house each day. These are signs.”Herron, a seasoned HR executive, author and host of the HR Scoop podcast, advised HR and managers to be careful when reacting or responding to an employee’s changed behavior. “Do not add to the shame that can come with mental health’s stigma,” she said. Addressing Struggling EmployeesHerron described five fictional employees, explored some of their behaviors and suggested ways of dealing with those behaviors. Masa: He’s been an employee at the company for three years. He’s been a solid performer, but his manager has noticed changes in his behavior and there are rumors that he’s getting a divorce.Check in with him. Managers should keep an open-door policy and let employees know they are there for support, Herron said. “Employers should never make that first one-on-one meeting … because an employee did something wrong,” she said. “Try to meet earlier on with employees under friendly terms to help to establish a better relationship.” Carlyn: She’s been working at the company for two years. She’s a high-performer, and she has asked for an off-cycle raise. You sense that she’s under financial strain.It turns out her partner was fired and her household is lacking income. She’s become uncharacteristically angry at her co-workers.”We know there is a strong link between financial stress and mental health,” Herron said.Herron suggested that the employer might:Offer her a promotion with more responsibilities since she is a high-performer, if it makes business sense.Think about whether the company is doing enough to offer resources that support financial wellness.Consider offering tuition reimbursement or student loan payoffs or other benefits in addition to a traditional 401(k).Employees can be high-performers and have mental …

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British Columbia Updates Rules for Investigations, Working Children

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British Columbia Updates Rules for Investigations, Working Children

​British Columbia, Canada, has broadened and clarified its ability to investigate employment compliance matters and will tighten rules for hiring children younger than 16 years old under changes to the province’s Employment Standards Act (ESA).The changes arose from 2019 amendments to the ESA meant to ensure employment standards are evenly applied, properly enforced, and reflect workers’ and employers’ evolving needs. New Investigatory FeaturesAs of Aug. 15, 2021, new rules went into effect governing investigation, complaint and determination processes under the ESA. Among other changes, British Columbia’s employment standards director may conduct an investigation to ensure compliance with the ESA “at any time for any reason,” and expand a probe stemming from one worker’s complaint, according to the amendments.”The director of employment standards has always had the power to investigate compliance with the ESA and Employment Standards Regulation regardless of whether or not a complaint has been filed,” said George Vassos, an attorney with Littler in Toronto. “The changes now make it clear that the director can initiate or stop or postpone an investigation ‘at any time or for any reason.’ “In addition, he said, “The director will now be able to expand an investigation of one worker’s complaint to the broader workplace if needed. This certainly strengthens protections for workers.”Other employees need not sign on to the original complaint for the director to broaden the investigation, noted Ritu Mahil, an attorney with Lawson Lundell LLP in Vancouver. If the wider probe isn’t completed or doesn’t resolve the matter, the director must rule on the original complaint.The employment standards director isn’t required to hold hearings when investigating but must give investigated parties the opportunity to respond, Mahil noted. When an investigation concludes, the law now requires the director to issue a written report summarizing the findings, she said.The report must be provided to the complaining party, the person cited in the complaint and anyone whom the director believes deserves an opportunity to respond. “This step provides procedural fairness for everyone involved before a decision is made,” Vassos said.While fired employees must file any complaint within six months of their last day of work, the new rules allow a worker an extension if the director believes that special circumstances delayed the filing or that an injustice would otherwise occur without the extra time.The director must investigate any complaint considered to be filed validly. Under the new provisions, the director can now use alternative dispute resolution during an investigation, calling on a neutral mediator to help settle or arbitrate matters. Vassos called the option beneficial for employers and employees.Child Employment RulesESA amendments also put into place several new rules going into effect on Oct. 15 related to hiring children, including specifying the type of work permitted and permissions required.”New changes to employment standards will better protect young people at work by raising the general working age in British Columbia from 12 to 16 and defining the types of jobs appropriate for those under 16,” the government said in a press release, which noted …

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How Networking Speeds Your Job Search

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How Networking Speeds Your Job Search

Bestselling author Martin Yate, a career coach and former HR professional, takes your questions each week about how to further your career in HR. Contact him at the e-mail address at the end of this column.If there’s a bit of career advice you’ve heard over and over, it’s that networking is the best way to get a job. But what we seldom hear is exactly how to network.Networking isn’t just about knowing people. The value lies in who those people are, what you hope to gain from a relationship with them and what you intend to offer them in return. No matter how early it might be in your career, think about and decide where you want your career to go, then work backwards to identify the stepping stones you’ll need to get to that goal.You can know influential people in your profession, but the relationship you have with them is what’s important. And you can’t build those relationships without meaningful conversations moving those relationships forward.Consequently, the people who land the best opportunities fastest and with greatest ease do so because they have built solid professional relationships that are based on knowing, learning from and helping those people who can best influence their careers. Their resumes can reflect these relationships.Your Resume Powers Your Social Media PresenceManaging your professional networks with a robust and properly focused social media presence is one of the most powerful methods for managing your career destiny. Your social media presence represents how you think of yourself as a professional and how you present yourself to your working world.Defining your professional persona starts with writing the right resume. Your resume will form the basis not only of your job hunts but also the social media presence through which you become known to your professional community. In building your resume, don’t try to make yourself the perfect choice for multiple jobs. When you try to squeeze all the things you can do into one resume, the resulting resume will lack focus and will be found less frequently in recruiters’ resume database searches. Focusing on one job (or sometimes two very closely related jobs) will make your resume dense in the necessary keywords necessary to be discovered in database searches. Your social media profile should reflect much the same information. The Best Networking ContactsNetworking is more than just knowing people; it’s developing mutually beneficial relationships. These are the types of people who can be of most value in your professional network:Anyone who works in your profession is a good contact, but of greater value are people who work in either your particular area of responsibility or an area of expertise that your job interacts with on a regular basis.Even better potential networking colleagues are people who,work in your specialty or one closely related to it and who hold job titles one, two or three levels above yours. These are the people most likely to be involved in hiring someone like you.You can meet all these people at local SHRM chapter meetings and in online groups. With online groups you can, of course, reach out and ask to …

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How to Avoid Discrimination When Using AI

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How to Avoid Discrimination When Using AI

Given the prevalence and rising use of artificial intelligence for customer service, feedback and general information, it’s no surprise that HR teams are adopting AI-driven bots for workplace communication.Companies are embracing bot tools as time and money savers to conduct and evaluate interviews, substituting them for face-to-face conversations. AI tools can also screen resumes, monitor employees and provide predictive analytics.Jennifer Betts, an attorney with Ogletree Deakins, joined her colleague Joseph L. Beachboard during the session “AI, the Right Way: Avoiding Employment Discrimination with Artificial Intelligence” at the recent SHRM Annual Conference & Expo 2021 to discuss the trend.The Emergence of AIAI uses machines, or computers, to perform tasks in a way that is intelligent, in that the computers can change course depending on the information being collected. These tasks are conducted through algorithms, or a set of instructions for the computer to follow.AI-enabled content generation and other AI-based tools have been available on the marketplace for years. Now they have transitioned from the “hype” of new technology to the adoption phase due to necessities resulting from the pandemic, Betts said.There are many different forms of AI. The two most important forms for employers to understand are machine learning and natural language processing.Machine learning involves AI systems that show improved performance as they are fed more data and as they predict more outcomes. In other words, they become wiser over time and through more extensive use.Natural language processing is the branch of computer science—and more specifically, the branch of AI—concerned with giving computers the ability to understand text and spoken words in much the same way humans can.AI today can be found in autonomous vehicles, injury prediction, fraud detection, precision medicine, photo tagging and “talk to text.”CREATE LASTING IMPACT IN THE WORKPLACEJoin us at the SHRM INCLUSION 2021 conference Oct. 25-27 in Austin, Texas, for three engaging days of learning and networking. You will get the tools, best practices and actionable solutions you need to build a more diverse, equitable and inclusive workplace. Register Now Proper AI Programming Is KeyAI-powered analytics tools make it easier to effectively and cheaply, for example, measure productivity, identify trends and recognize potential areas for improvement—all necessary enhancements in the workplace of the future. There are many slow adopters and skeptics of AI. Betts said it’s important to realize that “Artificial intelligence itself is neither inherently good nor inherently bad. It’s critical to remember that AI’s effectiveness is all about how the AI and bots are programmed and maintained, not the concept of AI itself.” AI and Hiring PracticesAI has grabbed a lot of headlines about hiring lately, with articles reporting on how applicants can “beat the system” and have their resumes gain more attention by using and prioritizing specific words and phrases that suggest they are a better fit for the job description.Many organizations utilize AI during the initial stages of the hiring process, such as to deliver programmed questions to applicants via a robot, which can save time for hiring managers who …

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Open Enrollment Guide & Resources

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Open Enrollment Guide & Resources

Companies are preparing to kick off open enrollment for their employees to choose their workplace benefits. Health, vision, dental, life insurance … even pet insurance may be up for grabs. How can HR professionals best communicate with employees about their choices, when many workers are unfamiliar with the language and concepts of benefits offerings? What’s the best way to help employees through open enrollment season?Take a look at our primer below for ways to start the conversation, and at our glossary of common (and commonly misunderstood) terms. Our news articles offer lots of tips on educating employees and helping them make great choices. What is open enrollment for benefits?In the U.S., open enrollment season is a period of time when employees may elect or change the benefit options available through their employer, such as health, dental and life insurance, and ancillary or voluntary benefits ranging from legal services to pet insurance. Some benefits are fully paid by the employer, some are employee-paid through salary deferral or a section 125 cafeteria plan, and for some the cost is shared.  When do most companies have open enrollment?Most companies schedule open enrollment to end a few weeks before enrollment forms must be submitted to benefit providers. For calendar-year benefit plans starting Jan. 1, open enrollment often takes place in November. How long does open enrollment have to be?Open enrollment is not required to be a certain length of time. Most employers have an open enrollment period of at least two to four weeks.2021 SHRM Webcasts Preparing for This Year’s Open Enrollment and Critical Benefits CommunicationsWebcast live on July 21, 2021 (now available on-demand)Scott Van Horn from Tango Health explores the challenges employers are facing, best ways to engage your remote or flexible workers and strategies for embedding your competitive benefits into your employee recruiting and retention plans.  The Future of Open EnrollmentWebcast live on July 22, 2021 (now available on-demand )Employee benefits and communication expert Candace Jodice, vice president of HR benefits at CVS Health (now a Fortune 4) explains how she successfully adapted the company’s strategy and toolset not only during the upcoming open enrollment period, but also year-round. Open Enrollment Resources Need help defining health benefit terms to employees? Check out and share the health benefit terms glossary here on SHRM.org. You can also download a PDF version to print and share with employees. These 10 questions for employees choosing next year’s health plans are a great way to encourage employees to consider health and relationship changes before making their open enrollment selections. How to explain high-deductible plans to employees. More companies are making high-deductible health plans an option (or, increasingly, the sole choice) for employer-sponsored health coverage. Here is a quick guide on how to help employees understand the costs and benefits. How much life insurance is enough? This guide will help get employees on the right track when determining how much life insurance is right for them. Mandatory Health Plan Notices For the many employers in the midst of open enrollment planning, SHRM has compiled model health plan notices from federal government agencies.2022 Inflation- Adjusted Limits …

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Agencies Seek Input on Form 5500 Revisions

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Agencies Seek Input on Form 5500 Revisions

Federal agencies are seeking public comments on proposed revisions to the Form 5500 Annual Return/Report filed by private-sector employee benefit plans to comply with statutory changes under the Setting Every Community Up for Retirement Enhancement (SECURE) Act, which became law in 2019.”The proposed form changes and related regulatory amendments address [SECURE] Act changes, especially for multiple employer plans, and improve [Form 5500 as a] critical enforcement, research and public disclosure tool,” said Ali Khawar, Department of Labor (DOL) acting assistant secretary for employee benefits security.On Sept. 15, the DOL’s Employee Benefits Security Administration (EBSA), the IRS and the Pension Benefit Guaranty Corporation (PBGC) published two proposed rules in the Federal Register: Annual Reporting and Disclosure, to conform Form 5500 reporting regulations under the Employee Retirement Income Security Act (ERISA) with the proposed Form 5500 revisions.The agencies also released a fact sheet summarizing the proposed changes.SECURE Act ChangesWhile employers in the same industry had previously been allowed to form multiple employer plans, known as MEPs, the SECURE Act permits unaffiliated employers, as of January 2021, to join together in a single 401(k) pooled employer plan (PEP).”A PEP has a single plan document, a single Form 5500 filing and a single independent plan audit,” noted Craig P. Hoffman, an attorney with San Francisco-based Trucker Huss, when the SECURE Act became law. A pooled plan provider, whether a financial services firm, insurance company, third-party administrator or similar entity, “must serve as the ERISA section 3(16) plan administrator, as well as the named fiduciary for the plan,” he explained.Defined Contribution Group PlansThe SECURE Act also established another new type of plan arrangement, often referred to as a group of plans (GoP) but which the proposed rules now call a defined contribution group (DCG).A DCG allows employers, whether unrelated or related, to file a single Form 5500 for multiple defined contribution plans if the plans have the same trustee, administrator, fiduciaries, investments and plan year. However, unlike PEPs, plans in a DCG remain distinct entities. While they can file a single consolidated Form 5500, individual plans participating in a DCG arrangement with a consolidated Form 5500 filing remain subject to audit requirements, the proposed revisions clarify.After considering multiple issues, “the departments decided to propose that a large plan that elects to participate in a DCG must continue to be subject to an IQPA [independent qualified plan accountant] audit and that the audit report for the plan would have to be filed with the consolidated Form 5500 of the DCG reporting arrangement,” the Proposed Revision of Annual Information Return/Reports states.Pete Swisher, president of Waypoint Fiduciary, a consultancy in Versailles, Ky., focused on group retirement plans, wrote that “as part of the package of guidance, the Departments addressed the audit requirement in GoPs by killing the hopes of those who expected a GoP to have a single consolidated audit like that of multiple employer plans.”MEWAs Also AffectedAs an ancillary matter, some of the proposed Form 5500 revisions would apply to multiple employer welfare arrangements (MEWAs) that offer …

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Missouri Law Requires Leave for Victims of Domestic Violence

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Missouri Law Requires Leave for Victims of Domestic Violence

​Effective Aug. 28, Missouri employers with at least 20 employees in the state must provide unpaid leave for employees who are victims of domestic or sexual violence—as defined by state statute—or have family or household members who are victims of such violence. Covered employers must also notify current employees of their right to leave under the law by Oct. 27 or upon commencement of employment for future employees.The new law—titled the Victims Economic Safety and Security Act (VESSA)—provides employees with protected leave time to: seek abuse-related medical attention and counseling, or recover from abuse-related injuries (physical or psychological); obtain services from a victim services organization; participate in safety planning; temporarily or permanently relocate to a safer living space, or take other actions to increase the safety of the employee (or family or household member); and/or pursue legal remedies to ensure the health and safety of the employee (or family or household member), including preparing for civil and criminal actions resulting from the violence. Of note, not only may employees take VESSA leave relating to their own experience with domestic or sexual violence, they may also take leave to deal with such abuse suffered by a “family or household member,” including individuals who reside in the same household as the employee, immediate family members by blood or marriage, and people who “share a relationship through a son or daughter.”Similar to the FMLA and other protected leave frameworks, an employee who takes VESSA leave must be returned to the same or other equivalent position upon their return to work, and the employer may not deprive them of any employment benefits they had before the leave. Unique to VESSA, the amount of leave available will vary depending on the employer’s number of employees. Specifically:1-19 employees = no leave entitlement.20-49 employees = 1 week unpaid leave per year.50 or more employees = 2 weeks unpaid leave per year.The employee’s VESSA leave need not be used on consecutive days, but the employee is required to give the employer at least 48-hour notice of anticipated leave usage. If prior notice is not practicable under the circumstances, the employee may provide a certification that the unscheduled absence was VESSA-related within a “reasonable period” after the absence, though “reasonable period” is not defined in the statute. Employers may require employee certification of the reason for leave in either situation and may request periodic updates from the employee regarding their expected return date. Types of permissible employee certification are outlined in the statute.In addition to leave, employers must provide reasonable safety accommodations to employees affected by domestic or sexual violence to the employee (or their family or household member) so long as the accommodation does not pose an undue hardship on the employer’s operations. The statute provides that reasonable safety accommodations include actions such as adjustment to a job structure, work facility, or work requirement—for example, transfer, reassignment, modified schedule, leave, a changed telephone number or seating assignment, installation of a lock, implementation of a safety procedure, or assistance in documenting actual or threatened domestic violence that occurs in the workplace or work-related settings. In determining whether a safety accommodation is reasonable, employers may consider any exigent circumstances or danger facing the employee or the worker’s family or household member. Employers may require employees who request safety accommodations to provide a written statement—signed by the employee or an individual acting on the employee’s behalf—certifying that the accommodation is for an authorized purpose.Finally, as noted above, covered employers must notify all current employees of their rights under the law on or before Oct. 27 or upon commencement of employment for future employees. The new law does not contain a penalty for failure to comply with the notice requirement, but compliance is relatively straightforward to achieve and may be provided to employees electronically. The Missouri Department of Labor and Industrial Relations has also published a poster that must be posted in common areas along with other required employee notices.Employers should take action to implement VESSA-related leave and accommodations policies, and prepare to meet the notice requirement on or before Oct. 27. In addition, employers should educate and train supervisors on identifying situations that may trigger an obligation to provide VESSA leave or accommodations to employees. Jennifer Chierek Znosko is an attorney with Littler in St. Louis. Whitney L. Fay is an attorney with Littler in Kansas City, Mo. © 2021 Littler. All rights reserved. Reposted with permission. 

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