labor lawAdivision of labor law center

Indiana employers should be aware of changes to the FMLA regulations. Under new proposed changes to the FMLA regulations, employees would be able to use their accrued vacation and personal leave time as well as their paid time off (PTO) as part of their FMLA leave.

The change would be to the portion of the regulations regarding “substitution of paid leave” for FMLA.

This is just one of several proposed changes employers could expect under the proposed new FMLA regulations that were announced by the U.S. Department of Labor on February 11, 2008.

Employers may comment on the changes until April 11, 2008. After that date, the new regulations go into effect. To add a comment, click this link and then type in the keywords “Family and Medical Leave Act,” being sure to include the quotes. It is important for employers to understand that their comments and contact information will be visible to the public.

The “substitution of paid leave for FMLA” works in this way. The Act stipulates that employers are not required to pay workers who are taking FMLA leave. Workers may, however, take their accrued paid sick time concurrently with their FMLA now. Employers, in turn, may require that employees take the sick time concurrently with FMLA.

Under the new regulations proposed by the U.S Department of Labor, employees would be allowed to use not only sick time, but accrued vacation and personal leave, and paid time off (PTO), as part of their FMLA leave, provided they meet all of their employer’s criteria for taking paid leave. Employers may require workers to use all of their accrued paid time off as part of FMLA leave.

As an example, employee Ron has accumulated 10 weeks of paid time off, namely 3 weeks of personal leave, 5 weeks of vacation time, and 2 weeks of sick time. Under the existing rules, he could only take the 2 weeks of sick time as part of FMLA. Under the proposed changes, however, he would be allowed to use all 10 accumulated weeks of paid leave as FMLA.

More Indiana FMLA Changes

A public comment period continues until April 11, 2008 on proposed changes to the FMLA rules.

The Labor Department announced the proposed rule changes on February 11, 2008, and on April 11 they will be published as final, giving them the force of law. All employers must then comply with the new rules.

Some of the changes proposed include regulations that apply to the idea of an employee’s “serious health condition” and the process for medically certifying that condition.

The FMLA allows workers to take up to 12 weeks of unpaid leave annually in the event of a “serious medical condition” in the employee or his or her immediate family. Employers may require medical certification to prevent abuse of the Act. Employers may sometimes require a second or third opinion, provided they pay for them.

The new rule preserves 6 definitions of “serious medical condition” and provides guidance on 2 terms. An existing definition of “serious medical condition” requires 3 consecutive days of incapacity and “two visits to a health care provider.” The term “two visits” is undefined, and could be 2 visits in a month or a year. The new rules clarify that, saying the visits must take place within 30 days of the incapacity period.

Victoria Lipnic of the Labor department says the changes follow “a thoughtful, careful process that included a Request for Information with 15,000 public comments in 2006, many conversations with stakeholders, and the department’s experience in administering and enforcing the law.”

Other changes include a ruling on the “Ragsdale decision” on employer penalties and say light duty should not be counted as FMLA leave. They clarify an employee’s right to settle FMLA cases out of court, allow employers to deny “Perfect Attendance Awards” to workers who have taken FMLA leave, and permit the substitution of paid leave under some conditions. They would also change the “fitness-for-duty” certification for returning to work.

“It’s time to update these regulations,” said the Labor Department’s Lipnic, who added that the changes will also clear up some issues not anticipated when the FMLA was first approved.

Nearly every American with insurance is covered by an employee benefit plan. The EBSA, or the Employee Benefits Security Administration, is the federal government’s special agency to enforce laws regarding employee benefits and pension plans. Over 150 million employees are covered by EBSA plans. The agency now handles many violations of law concerning health care and pensions.

Many people would like to know if Indiana Employee benefits have to cover mental health. Although there is no law that states your group health insurance must cover any mental health treatments, many employer provided plans do pay for it. Since there is no obligation to do so, many choose not to offer coverage for mental health, and it is perfectly legal.

If coverage is offered, however, there are some regulations concerning the extent of coverage provided. The Mental Health Parity Act, or MHPA, demands that group health insurance provides the same amount of money for mental health treatments that it does for other medical treatments. Surgery coverage is counted in this requirement, so the amount covered for surgery must be matched in mental health treatment coverage.

The MHPA is a bill that has been renewed time and time again. Since 1996, when it was first passed, it has been amended five times. The most recent renewal of the bill occurred in February 2007, extending the bill to the very end of the year, December 31^st.

The bill not only calls for the equal parity of mental health coverage with medical coverage, but it also is concerned with annual limits. Before the MHPA was passed, health care plans could set extremely low limits on mental health treatments. In other words, they used to be able to set an annual limit for $70,000 on surgery and cap mental health treatment coverage at $3,000. Since the Mental Health Parity Act, that is not longer allowed.

New employers in the state of Indiana, the state authorities want to make sure you know two important things about the state unemployment insurance system. First, they want you to know they are a state that requires that every employer keep an unemployment insurance poster in their work places. That means each and every one of your work sites must have such a labor law poster in it, if you are liable for unemployment insurance taxes, that is.

You must hang the poster in a place that is prominent and easy to see in your work site. The state of Indiana even recommends that you have more than one unemployment benefit poster in each work site, to guarantee that all of your employees will see the poster on a regular basis.

And to go along with this unemployment insurance benefit poster, you must also have the proper unemployment insurance benefit handouts, reading materials to give out to employees whenever they request more information about how to qualify for unemployment insurance payments should you let them go.

According to the state rules, too, even if you don’t have a permanent work site where you can post such a poster, you still must have individual notices on unemployment insurance benefits to give out to each and every one of your employees.

What was that second thing that the state of Indiana wanted its new employees to know. That is that all of you will be taxed at a rate of 2.7 percent of your payroll, and that you will stay at this new employer tax rate until you have been taxed for 3 consecutive years, paid employees some money in the three years before registering as a new employer, or have not qualified for the penalty tax rate (for delinquent employers for instance.)

I understand that unemployment insurance is a partial, temporary replacement of income to employees who lose their jobs or work less than full time through no fault of their own. Employees must report immediately to the Indiana Department of Workforce Development to qualify.

The basic requirements for collecting unemployment are that an employee must: 

• Have been employed. The Indiana Department of Workforce Development publishes requirements for wages earned or time worked during an established period of time referred to as a “base period.”
• Be determined to be unemployed through no fault of their own as defined under Indiana law. If an employee lost a job through no fault of their own because of a plant closure, layoff, natural disaster to the workplace, or other situation, they are, in most cases, eligible for unemployment compensation. Workers are not eligible to receive unemployment insurance benefits if they quit a job or were fired for misconduct. Self-employed persons, independent contractors, casual employees, and farm workers are not covered.
• File ongoing claims and respond to questions concerning continued eligibility. Workers must report any earnings from work and any job offers or refusal of work during any claim period.

Employees are entitled to receive between $50 and $390, depending on how much they made during their 12-month base period.

All claims for unemployment benefits are in effect for a 52-week period called a benefit year, according to my research. However, the maximum number of weeks full benefits are paid is 26, with some claims having fewer weeks. 

No deductions are made from employees’ pay for unemployment insurance. This employer pays this tax. Employers are required to post a notice of unemployment insurance benefits in their workplace.

The Workforce Development Act provides grants and incentives to encourage innovative work programs in Indiana. I know that integrated services for job seekers, employers and partners are coordinated under the Department of Work Development and include: 

• Job Seekers – job matching, skill improvement and unemployment centers, job training, veteran programs, and custom services. 
• Employers receive job posting access, grants and credits, unemployment insurance and tax information, and statistical information. 
• Partners can evaluate the viability of Indiana’s workforce with statistical data, information on grants, and other news. 

The most public and advertised program sponsored by the DWD for employers and workers is the unemployment benefits. The act provides compliance information and regulations to employers, and evaluates and distributes unemployment benefits to workers. 

I understand that unemployment insurance is a partial, temporary replacement of income to employees who lose their jobs or work less than full time through no fault of their own. Employees must report immediately to the Indiana Department of Workforce Development to qualify. 

The basic requirements for collecting unemployment are that an employee must have been employed, be unemployed through no fault of their own, file ongoing claims and respond to questions concerning continued eligibility. 

The DWD provides displaced workers with job training, career advice, and many other benefits while they are unemployed. Employees are entitled to receive between $50 and $390, depending on how much they made during their 12-month base period. 

My research shows that all claims for unemployment benefits are in effect for a 52-week period called a benefit year, according to my research. However, the maximum number of weeks full benefits are paid is 26, with some claims having fewer weeks. 

No deductions are made from employees’ pay for unemployment insurance. This employer pays this tax. Employers are required to post a notice of worker’s right to the Workplace Development Act in their business.