labor lawAdivision of labor law center

The National Defense Authorization Act (NDAA) of 2008 provides for an expansion of FMLA leave to up to 26 weeks in a year, which affects nearly every Ohio employer.

Currently, under traditional FMLA (Family Medical and Leave Act) leave, an employee can take unpaid, job-protected leave for up to 12 weeks per year for certain personal reasons. These reasons include caring for an ill spouse, child or parent, and for the care of a newborn child, a newly adopted child and a newly fostered child.

The new NDAA provision applies to families of military personnel, specifically to those of an injured solider in active military service, or on deployment with the National Guard or Reserve. According to the new NDAA, a parent, spouse, son or daughter can take expanded FMLA leave to care for a family member who is an injured soldier. Under this provision, aunts, uncles and cousins, may also be allowed expanded FMLA in some cases as “next of kin”.

In addition to caring for injured military personnel, the new NDAA permits parents, spouses, sons and daughters to take expanded FMLA leave to stand in for a family member who is a solder called to active duty. This provision allows a family member to not only take care of an ill person in that soldier’s charge, but also to care for his or her healthy children, too.

The new NDAA went into effect immediately, allowing families of soldiers to start taking extended FMLA leave as of January 28, 2008.

The U.S. Department of Labor is scrambling to finalize the details of the NDAA, which could take several weeks. Interim regulations allow companies to charge paid leave to the 26 weeks of unpaid FMLA, as long as the employee is informed in advance. Until the finalized regulations are published, the U. S. Department of Labor expects companies to comply with the expanded FMLA to the best of their ability.

In 1993, a ground-breaking federal law was passed. The Family Medical and Leave Act (FMLA) was the first law to require employers to provide unpaid, job-protected leave for employees with health concerns.

A new law, NDAA (National Defense Authorization Act of 2008) was recently passed to expand FMLA, and is the first major expansion of that law since 1993.

Prior to FMLA, an employee who missed work because of major surgery or chemotherapy was at risk of becoming unemployed. Companies dealt with these cases on an individual basis, using their own company policy. If an employee needed leave for medical reasons, the business decided how much for how long. Often, after a worker missed 2 to 3 weeks of work because of illness, the company simply fired him or her.

Passage of the FMLA provided a standard for employers with over 50 workers within a 75 mile radius. Under this law, employees are entitled to take up to 12 weeks of unpaid, job-protected leave to care for their own illness, or to care for a seriously ill parent, spouse or child. FMLA also covers recovery time and care of the baby after childbirth, plus adoptions and newly fostering a child under 18.

The law guarantees that when the employee returns to work, he or she will still have a job. Usually, the original job is available. If not, the company is required to provide a job with similar working conditions, wages and benefits.

Expanding FMLA isn’t completely new. Eleven states have increased their FMLA benefits already. Ohio includes grandparents and in-laws in its definition of family member. Other states allow more than 12 weeks of leave, while other states increase the amount of benefits.

The NDAA of 2008 will expand the federal FMLA. To what degree is currently unknown. The U. S. Department of Labor has not yet published the regulations for this new act. Once those regulations are finalized, all eligible employers will be required to follow the new mandates.

The Mental Health Parity Act, or MHPA, requires health insurers to cover mental health at same level of other medical treatments, including surgery. That means that if an insurance plan offers mental health coverage, it must offer the same level of coverage for mental health treatments as for other types of treatment.

There are many questions regarding Ohio employee benefits. Many people want to know if their group health insurance is required to cover mental treatments. Others ask if the insurer can pay a low amount for mental health treatments and a higher amount for other medical treatments. Although the MHPA bill deals directly with this issue, the answer is not easy.

There is no law that forces insurers to cover mental health treatments. The MHPA bill requires that if the insurance covers mental health, the payments must be comparable to other types of health treatments.

The MHPA came into effect in 1996 but was scheduled to expire on September 30, 2001. But it is still valid because the deadline was postponed 5 times. The most recent extension was in February 2007. The new expiration date is December 31, 2007, but probably it will be extended again.

Prior to 1996, when the MHPA was approved, insurances could pay a different amount for mental health treatments. Many insurers paid less for any type of mental health treatment. Today, that practice is not permitted, and plans must pay the same amount for both types of treatment.

The Employee Benefits Security Administration, or ESBA, is the federal government agency in charge of the enforcing the law regarding employee benefits and pension plans. The agency now handles violations of the law regarding health care and pensions. The ESBA today enforces the law for plans that cover more than 150 million workers.

Mental health treatments are covered in many healthcare plans offered by employers, including treatment in or out of a hospital. However, there are still many plans that don’t cover any type of mental health treatment.

So who can employers trust? Well, loyal readers, as I am sure you know already. The best person to trust is yourself when it comes to making policies for your employees that fit within the guidelines and regulations provided by your state and federal department of labors, as outlined in those labor law poster collections that you lawfully display on the walls of your work sites.

And as it stands now, the law of the land—at least in Ohio and in all of the states—is that there is no requirement for how many sick days that an employer of any size must give their employees. In fact, there is no requirement at all that employers give any sick days. Besides Ohio, however, there is some movement in New Jersey, Illinois, Washington state, Oregon, Massachusetts and Texas. In the first three states—New Jersey, Illinois, and Washington—the legislature is considering a law to create some sort of requirement and actually have introduced bills into the mix to do just that.

In Massachusetts, Oregon, and Texas, the laws are just in the research and consideration stage, according to my sources, and no bills have yet to be introduced in the halls of the state assemblies.

There is one city in the entire country that has a mandatory sick day rule for its employers. Can you guess which city that is? Home of the Grateful Dead, the Golden Gate Bridge, and some the wildest hilly roads in all of the world. Yup, you got it—San Francisco.

The law that the Ohio union wants would make it so that all employers with more than 24 employees would need to give those seven sick days to employees, which could then be used for their own sicknesses, injuries, medical issues, or preventative doctor visits, as well as those for their children, older parents, or their spouses.

Even after the Attorney General in the state verifies those 1,000 signatures, employers, that does not mean you will have to change the way you give your employees sick days, completely rewrite your training manual, and put up some new labor law poster for the state of Ohio. No, after that, the Union would then need to manage to get more than 120,683 signatures to check yes for the measure—which roughly equals about 3 percent of the total voting population in Ohio as of 2006.

Then would the proposal to make employers give their employees at least seven sick days off work become law? No, then the proposal gets passed to the legislature, which would have to vote and compromise on the bill. The Ohio legislature is currently controlled by Republicans, but without being judgmental, let us just say for argument’s sake that the legislature, whoever is in control, does not act on the ballot measure.

If that happens, then the Union could go out and get more signatures to force the measure onto the ballot come November 2008. Sounds complicated? Yes, but that is how democracy, or whatever our Founding Fathers gave us, works.

However, the sides of the debate are already lining up, even before any of these signatures have been collected, or before any of the legislatures have started to debate the measure. Business supporters, such as the National Federation of Independent Business of Ohio, have already come out to say that the law would be unnecessary because most employers in the state already give their employees enough sick days.

The Service Employees International Union District 1199 says, however, according to my sources, that about 48 percent of all workers in the state working for private employers and 79 percent of low wage workers have not sick days.

If you will allow me, my loyal readers, I would like to take another break from the hustle and bustle of the minimum wage situations in the states across the United States, and in the domed edifice that is Capitol Hill. Yes, believe it or not, there are other issues, news, and happenings going on out there in legislatures and court rooms across the country that affect, or could affect, employers—and some of them do not have to do with minimum wages.

They do, sometimes, though, have to do with other labor laws and employment regulations, such as a new proposed ballot initiative in Ohio that could change the way that employers in Ohio give their employers sick days. It could be as important as to affect, down the road, how all employers, across the entire country, give their employees sick days. So would that be worth a few seconds break from all this minimum wage talk? That is what I thought!

The situation is coming about in Columbus, Ohio, because one of the state’s major unions is pressing the issue. The union—called the Service Employees International Union, District 1199—is proposing a ballot initiative that would make all Ohio employers with more than 24 employees to give all of those employees at least seven sick days a year. Call it a minimum sick day labor law.

The Union, with its 28,000 members in the health care and social service industries across Ohio, West Virginia, and Kentucky, has some clout, perhaps enough to get something started. It already has 1,800 signatures for a petition to get the proposal on the ballot for November 2008, and then passed on those signatures to the state Attorney General Marc Dann in April. The attorney general has to confirm that at least 1,000 of those signatures are from Ohio residents.