Recently in National Defense Authorization Act (NDAA) Category

Party Like It's the FMLA's Birthday

Posted by Molly DiBiancaOn February 8, 2013In: Family Medical Leave, Leaves of Absence, National Defense Authorization Act (NDAA)

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The Family Medical Leave Act (FMLA) celebrated its 20th birthday this week. And boy, oh boy, was the DOL was ready to celebrate!

And what kind of birthday would it be without a party? Acting Secretary of Labor Harris hosted a commemoration program that featured celebrity special guests, including former President Bill Clinton, former Senator Christopher Dodd, and former labor secretary Hilda Solis, among others. The entire program, which lasts about an hour, is viewable on YouTube.

But wait, there's more!! On February 5, the actual anniversary of the day the FMLA was signed into law, the DOL issued a final rule implementing expansions that cover military families and airline flight crews. Under the rule, military family members can take leave to care for a covered veteran who is seriously ill or injured. They can now take additional time, up to 15 days of leave, to be with a service member who is on leave from active duty. Additionally, the rule expands the FMLA's protections to airline pilots and flight crews who were frequently ineligible for FMLA due to their unique work schedule.

And, for those who really can't get enough of the FMLA, there is a new survey, "Family and Medical Leave Act in 2012: A Final Report," which was released just in time for the big celebration. According to the DOL, the survey shows that the FMLA "has had a positive effect on the lives of millions of workers and their families without imposing an undue burden on employers."

And, now, one for the road. Last month, the Wage and Hour Division issued an Administrator Interpretation providing guidance on the definition of "son or daughter" under the FMLA as it applies to an individual 18 years of age or older and incapable of self-care because of a mental or physical disability. Fact Sheet, FAQs

That ought to satisfy your FMLA thirst this Friday. Have a great weekend!

Two New Employment-Outreach Programs from the ODEP

Posted by Molly DiBiancaOn February 15, 2009In: Leaves of Absence, National Defense Authorization Act (NDAA), Resources

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Military caregiver leave, which was amended to the FMLA in January 2008 as part of the National Defense Authorization Act, provides unpaid leave to employees who need to take time away from work to help care for a covered family member who became ill or was injured in the line of duty. This leave can be critical to these employees.  But what about when the employee is the service member?  There are ways that employers can offer assistance to employee service member, as well. 

Employment can play a major role in the recovery of wounded and injured service members. To support these brave men and women in their return to civilian life, the U.S. Department of Labor (DOL), has launched two employment-related outreach programs for returning service members and their employers—REALifelines and America’s Heroes at Work.soldier march

Recovery & Employment Assistance Lifelines (REALifelines)

The DOL's Veterans' Employment and Training Service (VETS), developed the REALifelines program, which is managed by the DOL's Office of Disability Employment Policy (ODEP).  The program creates a personalized network to ensure that wounded and injured service members are trained for rewarding careers in the public and private sectors. REALifelines provides wounded and injured service members—and their primary caregivers—the opportunity to meet face-to-face with a Disabled Veterans’ Outreach Program specialist who provides guidance on how to secure employment and achieve economic self-sufficiency.

America’s Heroes at Work

The DOL’s second initiative, America’s Heroes at Work, focuses on the employment challenges of returning service members living with Traumatic Brain Injury (TBI) and Post-Traumatic Stress Disorder (PTSD), which are two of the most common injuries among today's service members.  America’s Heroes at Work offers a variety of educational resources devoted to workplace best practices for returning service members with TBI and PTSD. Materials include fact sheets, Web-based training tools, educational presentations and more—all designed for employers, workforce development professionals, service branches, key military support systems, veterans’ service organizations and One-Stop Career Centers.

These two programs are representative of the ODEP's ongoing efforts to give the men and women of the U.S. Armed Forces practical assistance in their transition back to civilian life.  Employers who employ service members or the family of service members should not hesitate to take advantage of the many initiatives made available by the DOL and ODEP.  

Resource from the Department of Labor For Military-Spouse Employees

Posted by Molly DiBiancaOn December 23, 2008In: Internet Resources, National Defense Authorization Act (NDAA), Uniformed Services (USERRA)

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The National Defense Authorization Act (NDAA), amended the Family Medical Leave Act (FMLA) on January 1, 2008.  The NDAA is one of several laws that obligate employers to provide special protections to employees who are members of the Armed Forces.  The Uniformed Services Employment and Reemployment Rights Act (USERRA), is another such law offering similar, but not identical protections to employees who serve in the uniformed services. 

In these times, military service is a reality for many employers who must navigate the labyrinth-like leave laws.  Employers also want to provide their employees with the support they need to transition successfully and safely between the workplace and active duty.  We've posted before about some of the many resources and services offered by the U.S. Department of Labor (DOL), each of which is marketed towards a specific audience. 

Yet another resource provided by the DOL is specifically designed for military spouses and the special employment challenges they face as a result of their marital ties to the military. MilSpouse.org is an online library for military spouse employment, education, and relocation information.  The DOL provides links to employment-related information and other resources for military spouses and military families.  The site is a collaborative project between the DOL's Women's Bureau, the Employment and Training Administration, and the Office of the Assistant Secretary for Policy, in cooperation with the Department of Defense.

A few examples of the many resources include:

  • Information on portable career fields and options available with them;
  • Career Center database of hundreds of thousands of jobs, scholarships, and training opportunities;
  • Access to the DOD's website, Military HOMEFRONT, which offers information on Quality of Life.

These are just a few of the resources available, all designed to assist troops and their families.  Provide your military employees with free access to a number of resources by referring them to this website. Your employees will thank you!

FMLA and NDAA New Online Resource for Injured Vets and Families Who Care For Them

Posted by Molly DiBiancaOn November 17, 2008In: Internet Resources, National Defense Authorization Act (NDAA)

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Final regulations for the National Defense Authorization Act (NDAA), a recent amendment to the Family Medical Leave Act (FMLA), were released by the U.S. Department of Labor (DOL), today.  The NDAA, discussed in detail in previous posts, provides a new type of family and medical leave to employees whose family members are servicemembers and who are either called to active duty or who are injured while in active duty.  The NDAA has been in effect since being signed by President Bush in January 2008.  But, with the DOL's publications of the final regulations, employers can expect to see more specific questions relating to leave under the NDAA.   

There is a new online resource to help employees who may be navigating leave under the military-caregiver provision of the NDAA.   The National Resource Directory, a collaborative effort between the departments of Defense, Labor and Veterans Affairs, is a Web-based network of care that includes resources for wounded, ill and injured service members, veterans, their families, families of the fallen and those who support them.  (Last week, in honor of Veteran's Day, we posted about  similar initiative, America's Heroes at Work, which provides employers with a variety of helpful information and tools to assist veterans in the reemployment process.)image

The scope of the Directory is comprehensive and includes information on topics such as available benefits, eligibility requirements, help filing claims and appeals processes.  Information on education and employment is also available, such as financial aid and scholarship information, apprentice and internship programs, and job training and placement.  Additionally, family support programs, child-care services, counseling and support group information is all available in the Family and Caregiver Support section. 

Information on housing, transportation, financial and legal support, assistive technology, medical care, psychological and behavioral conditions is also provided.  Finally, resources can be listed by geography--on either a state or local level.  This is an excellent resource filled with a tremendous amount of information that your employees caring for injured or ill servicemembers could potentially find very useful.  Employers, you may consider sending a notice to employees about the availability of this and other government resources being made available to them at no cost. 

The original press release, issued today, can be found here:  Department of Defense Launches National Resource Directory For Wounded Warriors, Families And Caregivers

New FMLA Regulations Explain Military-Caregiver Leave

Posted by William W. BowserOn November 16, 2008In: Family Medical Leave, National Defense Authorization Act (NDAA)

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The Family and Medical Leave Act (FMLA), will be the talk of the HR world next week when the U.S. Department of Labor (DOL), formally issues its new revised final regulations. The new regulations finally define the scope of two new types of FMLA leave that were created by the National Defense Authorization Act for FY 2008 (NDAA). These two new kinds of leave, known as active-duty leave and military-caregiver leave, provide FMLA leave for the families of servicemembers called to active duty or injured in the line of duty. In an earlier post, (New FMLA Regulations Define Scope of Active-Duty Leave), we addressed the regulations dealing with active-duty leave.  Now we examine the regulations on military-caregiver leave.

The NDAA provides that “an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember shall be entitled to a total of 26 workweeks of leave during a [single] 12-month period to care for the servicemember.”   This type of leave is different from other forms of FMLA leave, including Active-Duty leave, in that it provides for up to 26 weeks of leave rather than 12 weeks.  In addition, the NDAA also provides that a covered servicemember’s “next of kin” is eligible to take FMLA leave to care for the servicemember.

Defining "Next of Kin"

The NDAA left several questions unanswered. The first group of questions involved the phrase "next of kin."  Just who is a "next of kin"?  Is it just one person or a group of relatives? Can the employee designate his or her "next of kin"?  Can the employer require an employee to prove his or relation to the servicemember? The new regulations address all of these questions.

The final regulations define a servicemember’s “next of kin” as the servicemember’s nearest blood relative, other than the covered servicemember’s spouse, parent, son, or daughter, in the following order of priority: blood relatives who have been granted legal custody of the servicemember by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins, unless the covered servicemember has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of military-caregiver leave under FMLA, in which case the designated individual shall be deemed to be the covered servicemember’s next of kin.

The final regulations also provide that all family members sharing the closest level of familial relationship to the servicemember shall be considered the servicemember’s next of kin, unless the servicemember has specifically designated an individual as his or her next of kin for military-caregiver leave purposes. In the absence of a designation, where a servicemember has three siblings, all three siblings will be considered the servicemember’s next of kin.

Finally, the regulations permit an employer to confirm an employee’s status as a covered servicemember’s next of kin.

How Much Leave Is Available?

The next set of questions left open by the NDAA involved the amount of military-caregiver leave that could be taken by an employee. Is this type of leave a one-time entitlement?  Can an employee take more than one period of military caregiver leave to care for multiple covered servicemembers with a serious injury or illness, or the same covered servicemember with multiple serious injuries or illnesses? How should the “single 12-month period” should be determined?

The final rule explains that an eligible employee may take no more than 26 workweeks of military caregiver leave in any “single 12-month period.” This section also provides that the 26-workweek entitlement is to be applied as a per servicemember, per-injury entitlement, meaning that an eligible employee may take 26 workweeks of leave to care for one covered servicemember in a “single 12-month period” and then take another 26 workweeks of leave in a different “single 12-month period” to care for another covered servicemember or to care for the same covered servicemember with a subsequent serious injury or illness. The final rule also provides that the “single 12-month period” begins on the first day the eligible employee takes military-caregiver leave and ends 12 months after that date.

New FMLA Regulations Define Scope of Active-Duty Leave

Posted by William W. BowserOn November 14, 2008In: Family Medical Leave, Legislative Update, National Defense Authorization Act (NDAA)

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The Family and Medical Leave Act (FMLA), will be clarified when the U.S. Department of Labor (DOL), formally publishes new regulations on Monday, November 17, 2008. Among the many changes contained in the regulations, are provisions dealing with the recently enacted leave benefits for family members of both seriously injured or ill service members and National Guard and Reserve members who have been called to service.

On January 28, 2008, President Bush signed into law the National Defense Authorization Act for FY 2008 (NDAA). One section of the NDAA was an amendment to the Family and Medical Leave Act of 1993 (FMLA) which created two new types of FMLA leave: Military Caregiver Leave and Active-Duty Leave. Although the NDAA became effective immediately following the President's signature, the DOL announced that it would not look to enforce the Act until it issued regulations as long as an employer was attempting to comply with the NDAA "in good faith." The new regulations apparently end this amnesty period.

Active-Duty Leave, as the name suggests, is triggered when the employee's relative is called to active duty. It can be taken by employees spouse, parent, or child who is on or has been called to active duty in the Armed Forces. These workers may take up to 12 weeks of FMLA leave when they experience "any qualifying exigency." The new regulations finally define what is a "qualifying exigency."

Section 825.126(a) of the final rule defines qualifying exigency by providing a specific and exclusive list of reasons for which an eligible employee can take leave because of a qualifying exigency. These reasons are divided into seven general categories: (1) Short-notice deployment, (2) Military events and related activities, (3) Childcare and school activities, (4) Financial and legal arrangements, (5) Counseling, (6) Rest and Recuperation, (7) Post-Deployment activities, and (8) Additional activities.

The short-notice deployment category involve the situation where a covered military member is notified less that seven days prior to a deployment. Under these circumstances, leave can be taken to address any issue that arises from the deployment. Leave taken for this purpose can be used for a period of seven calendar days beginning on the date the covered military member is notified of an impending call or order to active duty.

The Military Events and related activities category allows leave to attend any official ceremony, program, or event sponsored by the military and to attend family support and assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross that are related to the active duty or call to active duty status of a covered military member.

The Childcare and School activities category allows an eligible employee to take leave to arrange childcare or attend certain school activities for a biological, adopted, or foster child, a stepchild, or a legal ward of the covered military member, or a child for whom the covered military member stands in loco parentis, who is either under age 18, or age 18 or older and incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence.

Leave may be taken under this to arrange for alternative childcare when the active duty or call to active duty status of a covered military member necessitates a change in the existing childcare arrangement; (2) to provide childcare on an urgent, immediate need basis (but not on a routine, regular, or everyday basis) when the need to provide such care arises from the active duty or call to active duty status of a covered military member; (3) to enroll the child in or transfer the child to a new school or day care facility when enrollment or transfer is necessitated by the active duty or call to active duty status of a covered military member; and (4) to attend meetings with staff at a school or a day care facility, such as meetings with school officials regarding disciplinary measures, parent-teacher conferences, or meetings with school counselors, when such meetings are necessary due to circumstances arising from the active duty or call to active duty status of a covered military member.

The Financial and Legal Arrangements category allows qualifying exigency leave to make or update financial or legal arrangements to address the covered military member’s absence while on active duty or call to active duty status, such as preparing and executing financial and health-care powers of attorney, transferring bank account signature authority, enrolling in the Defense Enrollment Eligibility Reporting System (“DEERS”), obtaining military identification cards, or preparing or updating a will or living trust. It also allows leave to act as the covered military member’s representative before a federal, state, or local agency for purposes of obtaining, arranging, or appealing military service benefits while the covered military member is on active duty or call to active duty status and for a period of 90 days following the termination of the covered military member’s active duty status.

The Counseling category allows qualifying leave to attend counseling provided by someone other than a health-care provider for oneself, for the covered military member, or for the biological, adopted, or foster child, a stepchild, or a legal ward of the covered military member, or a child for whom the covered military member stands in loco parentis, who is either under age 18, or age 18 or older and incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence, provided that the need for counseling arises from the active duty or call to active duty status of a covered military member.

The Rest and Recuperation category provides leave to spend time with a covered military member who is on short-term, temporary rest and recuperation leave during the period of deployment. Eligible employees may take up to five days of leave for each instance of rest and recuperation.

The Post-Deployment activities category allows qualifying exigency leave to attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military for a period of 90 days following the termination of the covered military member’s active duty and to address issues that arise from the death of a covered military member while on active duty status, such as meeting and recovering the body of the covered military member and making funeral arrangements.

Finally, the Additional Activities category allows leave to address other events which arise out of the covered military member’s active duty or call to active duty status provided that the employer and employee agree that such leave shall qualify as an exigency, and agree to both the timing and duration of such leave.

A future post will address how the new regulations answer the many open issues surrounding military caregiver leave. Stay tuned.

FMLA Servicemember Leave. “Military-Caregiver” Leave”

Posted by William W. BowserOn May 5, 2008In: Family Medical Leave, National Defense Authorization Act (NDAA)

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This FMLA Update briefly reviews the second new type of FMLA leave offered to servicemembers and their families, Military-Caregiver Leave.

The two new FMLA leave types are designed to protect members of the Armed Forces and their families. Both types of leave enable a family member of a servicemember to take protected leave in two circumstances. The first, Active Duty Leave, was discussed in an earlier post. The second, is known as Military-Caregiver Leave. This new protection grants time off to the family member to care for a related servicemember who is ill or injured due to active duty.

• Employees may take an unprecedented 26 weeks of FMLA leave when a spouse, parent, child, or other blood relative for whom they are "next of kin" incurs a serious injury or illness on active duty in the Armed Forces.

• This 26 week total includes regular FMLA leave.

• Leave may be taken intermittently, but must be completed in a 12-month period.

• This is a one-time leave entitlement.

• "Next of kin" is an entirely new category of family member; it applies only to this specific type of leave.

• "Serious injury or illness" is much broader than the typical serious health condition; it applies only to this specific type of leave. Your speaker will provide a detailed definition.

• As with other FMLA leave, employers may require employees to take this type of leave concurrently with paid leave such as vacation, personal, or sick leave.

• Employers may require certification of servicemember’s health condition.

FMLA Servicemember Leave--"Active-Duty" Leave

Posted by William W. BowserOn May 5, 2008In: Family Medical Leave, National Defense Authorization Act (NDAA)

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The FMLA now provides two completely new categories of leave for employees who are related to a servicemember who is called to active duty or injured in the military.


The first type of leave is triggered when the employee's relative is called to active duty. It is designed to enable servicemembers' family to get FMLA time off to make the arrangements necessary for the servicemember's departure. Below is a short summary of the need-to-know points for this first type of new FMLA leave.

Active-Duty Leave:

• Covers employees who have a spouse, parent, or child who is on or has been called to active duty in the Armed Forces. These workers may take up to 12 weeks of FMLA leave when they experience "any qualifying exigency." While “qualifying exigency" is yet to be defined by DOL, but it probably will include -- at a minimum -- covering necessary family and childcare responsibilities of the servicemember when that family member is called to active duty.

• Employees who request this type of leave are subject to most of the same requirements as other forms of FMLA leave, including employee eligibility and notice requirements, maintenance of benefits, and job reinstatement.

• Employers may require certification that the employee’s family member is on active military duty in accordance with guidance to be provided by the Secretary of Labor.

• Employers should grant these leave requests liberally until DOL defines the term "qualifying exigency".

Thank You to Everyone Who Attended the Annual Employment Law Seminar

Posted by Barry M. WilloughbyOn April 16, 2008In: Family Medical Leave, Jerks at Work, National Defense Authorization Act (NDAA), YCST

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Our Annual Seminar for Employers was held today at the Chase Center on the Riverfront in Wilmington, Delaware. The attendance at the seminar was our best ever, with more than 130 of Delaware's best human resource professionals, labor relations specialists, senior managers, and small business owners.

Our many thanks to The Honorable Mary Pat Thynge, who spoke candidly about the federal mediation process. Her comments were direct and insightful for everyone, including for the attorneys!

Another thanks to all of the attendees who completed and submitted a survey at the end of the day. We're looking forward to reviewing your comments. Our objective is to make the seminar as effective and enjoyable as possible. Your opinion really tells us what we can do to better to maximize the client experience. We are especially interested to learn what topics most interest you for future seminars. If you were in attendance today but did not have an opportunity to submit an evaluation, just let us know and we'll send you one that can be completed and returned electronically--no stamp necessary!

Again, thank you to all of our clients, colleagues, and new friends, who gave us your attention and participation for a very full day on a variety of employment-law topics.

Compliance Alert: Family and Medical Leave Act Poster Insert

Posted by Molly DiBiancaOn March 30, 2008In: Cases of Note, Family Medical Leave, National Defense Authorization Act (NDAA)

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whd logo Now that President Bush has signed into law the National Defense Authorization Act (NDAA), which amends the Family and Medical Leave Act (FMLA), employers must update their FMLA postings.

Under the FMLA, all covered employers are required to display and keep displayed a poster prepared by the Department of Labor summarizing the major provisions of The Family and Medical Leave Act (FMLA) and telling employees how to file a complaint. The poster must be displayed in a conspicuous place where employees and applicants for employment can see it. A poster must be displayed at all locations even if there are no eligible employees.

A copy of the standard FMLA poster prepared by the Department (WH 1420) is available for posting in the workplace at the DOL's website. The poster is also available in Spanish.

The DOL has also published a single-page insert poster, which includes the NDAA amendment. The insert is also available at the DOL's website. It's available here for download and use.

Changes on the Horizon: FMLA Update Part 1

Posted by Molly DiBiancaOn March 21, 2008In: Family Medical Leave, National Defense Authorization Act (NDAA)

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F-M-L-A.

Four little letters that strike terror in the hearts of HR Managers around the country. And it's not for want of trying. Employers want to comply--they really do. But the FMLA doesn't make it easy. Enacted with good intentions, the statute and its enforcement regulations have become one of the biggest employer complaints. Business groups have been calling for a substantial revision of the "FMLA Regs" for some time. The Regs have made compliance cumbersome and difficult to truly understand. Unfortunately, they have also enabled the statute to be grossly misused by not-so-well-intended employees.

On February 8th, the Department of Labor took a major step towards an answer to the cries of employers and business-protection organizations by publishing new proposed regulations. Getting here has been a long time in the making. In 1996 and again in 2001, the DOL published studies on how the FMLA was being administered. Several decisions from the Supreme Court and countless lower court rulings have also had a great impact on how the Regs have been interpreted. And, in 2006, the DOL posted a Request for Information (RFI), in response to which it received 15,000 public comments, which were summarized in the DOL's June 2007 Report on the RFI.

The Notice of Proposed Rulemaking (NPRM) is intended to be the culmination of these sources of comment and feedback.

At this stage of the rulemaking process, the proposed Regs are open for comment until April 11, 2008. Comments can be made online through the Federal eRulemaking Portal. After the commenting period closes, the DOL will review the comments and, at some point, publish new regulations.

Employers are encouraged to post their comments to the proposed regs as we work towards a clarified and improved set of FMLA rules.

FMLA Amendment: National Defense Authorization Act

Posted by Molly DiBiancaOn March 15, 2008In: Family Medical Leave, National Defense Authorization Act (NDAA)

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On January 28, 2008, President Bush signed into law the National Defense Authorization Act for FY 2008 (NDAA). One section of the NDAA is an amendment to the Family and Medical Leave Act of 1993 (FMLA). The NDAA became effective immediately following the President's signature. The Department of Labor (DOL) has not issued regulations, though. Until they do, the DOL announced that it will not look to enforce the Act so long as employers are complying "in good faith."

And what exactly is "good faith" mean in this context? A likely starting point are the FMLA regulations. The two Acts are similar in purpose--both dealing with protected leave. By using the FMLA standards for notice and certification requirements, employers have a solid starting point for applying the NDAA.

And just what does the NDAA provide? There are similarities and differences between the two:

1. Like the FMLA, the NDAA provides for protected leave.

2. But the FMLA's provisions are expanded to include a “spouse, son, daughter, parent, or next of kin” of a "member of the Armed Forces."

3. Instead of the 12 weeks' leave provided by the FMLA, the NDAA guarantees employees can take up to 26 workweeks of leave.

4. And, though not a tremendously signficant expansion, the NDAA does not borrow the FMLA's "serious-medical-condition" language. Instead, the NDAA can be employed to care for a military family member, "who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.”

As complicated as the FMLA has been in application, there is now another element with similar-but-different requirements. HR Professionals should be sure to keep up with these changes as the new law continues to develop.