On January 28, 2008, President George W. Bush signed the NDAA (National Defense Authorization Act) HR 4986 into law. Included in this bill was a provision to expand the FMLA (Family Medical and Leave Act).
The bill went into effect immediately, which means military families were entitled to take FMLA beginning January 28, 2008.
As a result of this expansion, FMLA will now provide up to 26 weeks of unpaid, job-protected leave to relatives and spouses of National Guard and Reserve personnel who are called to active service. The law allows a spouse, son, daughter, parent or next of kin to take FMLA to care for military personnel who are under medical treatment, including physical or mental therapy and treatments on an outpatient basis. FMLA leave can also be taken to care for a soldier who’s on temporary disability for serious illness or injury.
In addition, the NDAA allows workers to take FMLA leave for “any qualifying exigency” regarding a family member who has been called to active duty. This “exigency” can include caring for children of a deployed soldier, or to care for an ill person previously under that soldier’s care.
According to FMLA currently in place, a family member was defined as spouse, parent, or child. As a result of NDAA, FMLA has been expanded to include “next of kin”. In some cases, the “next of kin” could include in-laws, cousins, aunts and uncles, which would allow them to take unpaid leave.
The regulations, including exactly what constitutes “any qualifying exigency” are still being drawn up by the U. S. Department of Labor. Until the final regulations are published, the NDAA is not technically in effect. Once the regulations are finalized, they will be sent to the White House for approval. Upon approval, the U. S. Department of Labor will publish the results.
Until publication, the U. S. Department of Labor requires employers to “act in good faith” and grant leave to eligible workers. To manage the leave, companies can utilize FMLA procedures already in place, such as medical certification and substitution of paid leave.
The previous FMLA parameters allow a worker to take up to 12 weeks of unpaid, job-protected leave for their own ill health, and/or to care for an ill parent, spouse or child. FMLA leave can also be taken to care for a newborn. Adopting a child, or bringing a newly fostered child under the age of 18 into the home are also covered by FMLA
Before the passage the FMLA (Family Medical and Leave Act) in 1993, workers who missed work due to serious health issues such as heart attack or major surgery risked losing their jobs. At that time, each employer handled leave for a worker’s ill health on a case by case basis. Often after a worker missed 2 or 3 weeks of work, the company fired him or her.
Some companies prefer to charge the employee’s paid time off (sick leave or vacation time) to the 12 weeks allowed under FMLA. These companies are permitted to do this only if the employee is informed in writing prior to taking FMLA leave.
The FMLA, a federal law, truly broke new ground for all employers. Under this Act, companies had to provide employees with unpaid, job-protected leave for a serious health issue. When the worker returned from leave, he or she must still have a job. If the same position is no longer available, then the employer must provide a position with similar pay, benefits and working conditions.
Several states have enacted laws to expand FMLA coverage. Some, like Hawaii, amended the definition of family member to include grandparents and in-laws. Other states extend the number of weeks available or the amount of benefits.
Recently, the National Defense Authorization Act of 2008 was enacted. This law expands the FMLA and is the first major expansion since FMLA was passed. The parameters of the NDAA’s expanded FMLA are still unknown, as the U. S. Department of Labor has yet to publish the new regulations.
Some people may have questions about the Vermont FMLA law. FMLA stands for Family and Medical Leave Act, and a poster concerning FMLA should be placed at all jobsites throughout the state. At the moment, we’re between the holidays marking Mother’s Day and Father’s Day, which offers the perfect opportunity to reexamine this law.
The Family Medical Leave Act is in place to help when employees have an accident, experience an illness, or in some other way find themselves distracted from their jobs. If a company employs 50 or more workers, then their business must be in compliance with the regulations of FMLA. In the case of public employees and school teachers, they are covered by FMLA regardless of the number of employees.
What FMLA does is it allows employees each year to take up to 12 weeks off without losing their jobs. This time off is granted only under certain circumstances. Included in these acceptable circumstances are life events such as serious illnesses suffered by an employee or close family member, the birth of a child, and the adoption of a child. A child being placed into a foster home is also an acceptable circumstance.
Because the Vermont FMLA law does not automatically protect employees’ jobs, precautions should be taken. To make certain employees understand the status of their leave, employers should give these employees notification in writing immediately that instructs how the employee should maintain contact with the workplace. The deadlines included in these instructions are important, and employees who are on leave need to follow the written instructions they receive from their employer. These written instructions should help employees stay in good standing with the company that employs them.
The Vermont FMLA is a program of the federal government. Although certain states have their own FMLA standards rather than follow the federal program, Vermont has decided to follow the federal program. Under federal law, time spent on active military service counts towards FMLA eligibility.
A law with an enormous impact on Vermont employee benefit plans, has been extended through December 31, 2007.The Mental Health Parity Act has just received a new lease on life. The MHPA is a law requiring that benefit limits on mental health care coverage must equal the limits on benefits for medical and surgical procedures.
The ruling by the EBSA or Employee Benefits Security Administration involves about 150 million employees throughout the U.S. The EBSA covers a significant majority of businesses nationwide. Its job is to monitor group health insurance plans and guarantee that they comply with any laws covering health insurance and pensions.
The MHPA does not require employers to include mental health care coverage in their group insurance plans. It requires parity. In other words, if a group health insurance plan already has a mental health component, the benefit limits for that mental health portion must not be lower than those for medical and surgical coverage.
Prior to enactment of the law, it would have been entirely legal for an insurance company to have a $250,000 limit as its absolute limit for surgery, but only a $15,000 limit for mental health care coverage. The law also impacts annual benefit caps. Under MHPA, mental health coverage limits must be the same as the lifetime or annual caps on surgery or medical care.
The MHPA, passed in 1996, included what is called a “sunset clause.” In other words, it had an expiration date. That date was September 31, 2001. Since that time, however, the law has gone through five amendments extending that expiration date. The latest ruling received little attention when information about it was released.
What is considered covered under mental health treatment? The list includes visit to licensed therapists or other mental health professionals, such as psychiatrists and psychologists. It also includes stays in mental health facilities – whether mental hospitals or the mental health section of medical hospitals for illnesses ranging from depression and schizophrenia to post-traumatic stress disorder.
Enough of the history lesson, you say? Well, fine, I was getting a little tired of talking about the past too. Let’s talk about the future! How you plan to become a better employer and a more successful business in the year 2007. Believe it or not, unemployment insurance can help you do just that.
For starters, if you were having a dry run in 2006, and had to let go some of your employees in this bad spell, unemployment insurance means that many of these employees will still be available come 2007 when your luck turns around, those work orders start coming in, and you need your full work force back again. That is one of the main reasons for unemployment insurance in the first place—to have a skilled work force that will stick around the community even when there is an economic downturn. I know, I know. I am back on the history lesson again!
Another way that unemployment insurance can benefit you and your business is that it can keep your company and human resource department organized. Now, hear me out on this one. It is a logical argument to say that, because you are required to report on your wages to the state of Vermont every quarter, that you would have to keep more accurate books in order to comply with the law.
By keeping up to date and full personnel files—complete with exit interview forms, employee separation forms, absence reports, and disciplinary action reports—you can also help the Vermont unemployment insurance system track down when former employees should not be receiving benefits. How do I come up with this stuff? Actually, I got this info directly from the Vermont Unemployment Insurance Program folks. They think organized employers are the greatest as well.
In order to determine whether an employer is required to provide unemployment insurance coverage to an individual, the department utilizes an employment “test”. This test is expressed in simple terms in Vermont Unemployment Insurance posters.
Under statute and case law, an “employment” relationship will exist unless and until the employer is able to demonstrate that all three parts of the so-called “ABC Test” are met. Those tests are:
A. Such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of service and in fact; and
B. Such service is either outside the usual course of the business for which such service is performed or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and
C. Such individual is customarily engaged in an independently established trade, occupation, profession or business.
The Vermont Legislature chose to use the ABC test, which is much more inclusive than other employment “tests”, in order to ensure broad unemployment insurance coverage. There has been significant case law developed over the years that helps define situations where unemployment coverage must be provided.
The Vermont Supreme Court has made it clear that direction and control will exist where the employer has the “right” to provide direction and control, regardless of whether such direction and control is actually exercised. The employer’s usual course of business is any business activity the employer chooses to engage in. Likewise, the employer’s place of business is all places where the employer conducts its business, not just the main location or office from which the employer conducts its business. All business locations, not just the main office also need to post Vermont Unemployment Insurance posters so that employees and other workers can view them.
Finally, being independently established means being established in a similar type of occupation or trade as the one being examined, and generally the individual must have some history of providing similar services for others in order for the “C” part of the test to be met.
Employers should understand that the department will follow Vermont law and use the ABC Test to determine if a worker is an employee for unemployment insurance purposes, and will be liable to report wages paid to and pay taxes on those wages unless all 3 parts of the ABC test are met. This is true even if the IRS “Evidentiary Factors” Test has a different outcome. Since misclassification of employees is the single most common problem with regard to the proper reporting of individuals for unemployment insurance purposes, it is imperative that you understand the rules and provide the correct education to your employees by posting Vermont Unemployment Insurance posters.