The National Defense Authorization Act (NDAA) of 2008 was signed into law on January 28, 2008 by President George W. Bush. Within the NDAA is a provision to expand the FMLA (Family Medical and Leave Act) to provide up to 26 weeks for spouses and relatives of National Guard and Reserve personnel who are called to active duty.
The law went into effect immediately and the U. S. Department of Labor is scrambling to finalize regulations for this new policy, which will be submitted to the White House for approval.
Until regulations are published by the Secretary of Labor, companies should utilize FMLA procedures, such as medical certification and substitution of paid time, to grant leave for family members to care for injured soldiers.
The expanded FMLA increases the current 12 weeks of unpaid, job-protected leave to 26 weeks for military families. Spouses, daughters, sons and parents can take this leave to care for a member of the National Guard, Reserve or active military who is undergoing physical or mental therapy, outpatient treatments or recuperating from illness. In addition, FMLA leave can be granted to care for soldiers on temporary disability due to illness or injury.
The FMLA expansion of the NDAA also includes the addition of “next of kin” as eligible persons to take leave. This means that aunts, uncles, cousins or in-laws to take unpaid FMLA leave.
In addition to caring for an injured soldier, FMLA allows a spouse, son, daughter or parent to take leave when a soldier is informed of imminent deployment. This leave would allow families of deployed military to stand in for that soldier while he or she is on active duty, to care for anyone in that soldier’s care. This provision of the FMLA will most likely be used to care for healthy children, but can also be used to care for an ill family member.
Currently no federal or state law exists requiring this leave to be paid. Some companies can count paid leave such as sick leave toward the 12 weeks of FMLA, but only if the employee is informed–in writing–prior to take leave.
Several states have enacted laws to expand their FMLA. Hawaii amended the definition of family member to include in-laws and grandparents. Other states increased benefits and/or extended the amount of leave available beyond 12 weeks.
The NDAA of 2008 is the first major expansion of the FMLA since it was originally enacted. At that time, no law existed that guaranteed leave for an employee to deal with serious health issues. Companies viewed the requests for leave due to medical reasons on a case by case basis, according to individual company policy. Often if an employee missed more than a couple of weeks because of major surgery, or recovering from a heart attack, that employee got fired.
The effect of the FMLA was groundbreaking. For the first time a federal law required companies to grant unpaid, job-protected leave for a worker facing serious health issues. The worker could use up to 12 weeks of leave to care for his or her illness, or for those of a parent, a spouse, or a child. In addition, FMLA allowed leave for childbirth, for the adoption of a child, and for newly fostering a child under the age of 18.
Recent passage of the National Defense Authorization Act of 2008 (NDAA) will expand the parameters of the Family Medical and Leave Act (FMLA), enacted in 1993.
When the employee returned to work, he or she still had a job. Usually, the worker is given the same job. If the same job isn’t available, though, the company must provide the worker with a position with comparable benefits, pay and working conditions.
How the new NDAA 2008 will affect any of the existing rules isn’t’ clear, yet. The U. S. Department of Labor is currently scrambling to define the regulations. Once those are spelled out, the Labor Department will publish the results.
Prior to 1996, most group insurance plans used to offer lower coverage for mental health treatments than for other medical treatments such as surgery. The differences were dramatic. An insurance plan that paid up to $100,000 for surgery might only pay $5,000 or $10,000 for mental health treatment. But in 1996, The Mental Health Parity Act, or MHPA, was approved. This law changed the rules of mental health coverage.
The MHPA was intended to end in September 31, 2001, because it included an expiration date. But, it was postponed several times. Recently the president signed yet another extension, and the law is still in force until December 31, 2007.
This extension has an important impact on workers covered by Washington employee benefit plans. The MHPA states that any insurance plan, which covers mental health treatments, must offer the same benefits as it does for other medical treatments.
Admission to mental health centers or areas in hospitals specializing in mental health are examples of treatments that are often covered. Other treatments involve sessions with psychologists or psychiatrists. Covered treatments also often include periods of drug or alcohol rehabilitation, and inpatient or outpatient treatments for ailments like schizophrenia, post-traumatic stress and depression.
Today the agency that regulates the enforcement of MHPA is the Employee Benefits Security Administration, or EBSA. It was created in 1974, under the name of the Pension and Welfare Benefits Program. The agency had the mission to enforce the Employee Retirement Income Security Act of 1974, also known as ERISA. Twelve years later, in January 1986, they agency’s name changed to the Pension and Welfare Benefits Administration. The last change was in 2003, when the agency changed its name yet again, to the current one. Group health insurance plans for employees today cover more than 150 million American workers, and EBSA oversees the enforcement of the law regarding particular healthcare and pensions.
And just as I was getting done saying that the United States won’t have a paid holiday leave bill any time soon, I need to move on to the latest developments in Washington state labor law—the passage of a bill that creates a minimum for employers in the amount of time they give employees of paid family leave off. We have talked about this bill before—oh, what would you say, my loyal readers, about two weeks ago when it first made its way through the Washington state legislature?
Anyway, just a couple days ago, the governor of the state, Gov. Christine Gregoire, signed the bill into law. What it will do is mandate that employers have to offer their workers as much as five weeks of paid time off, for such events as the birth of a child, or the adoption of a child. Starting October 1, 2009, these new parents would get from their employers up to $250 per week for those five weeks.
Where will this money come from? Not all of it will come from the employers, but where the rest of it will come from is still undecided. That will need to get figured out by a task force set up by the department of labor in the state to come up with feasible solutions. That is one of the reasons why these payments do not kick into effect until near the end of 2009—more than two years from now.
It could also explain why this Washington law is considered by some experts to be not as in-depth as a similar law passed in California back in 2002. That law gives employees the rights to get six weeks of paid leave off, whether it be for taking care of a sick child, spouse, older parent, or a registered so called domestic partner, or to spend time with a newborn child or a newly adopted child. The Cali law also allows for as much as $882 per week to be given to these employees. The way that the Golden State pays for these weekly benefits is through the state taking out a deduction from all employee payrolls—of as much as 0.08 percent of the payrolls.
One thing of note with the California law is that not as many employees have been taking advantage of it as people first thought. That is an interesting question, and one I have no answers for. (You will be the first to know if I eventually do track down why the California system is not running as busy as first thought.) But what the California situation could provide is perhaps a forecast of things to come in Washington state. We will have to wait and see.
One of the confusing things about these paid family leave laws could be that some employers and employees might get them confused with the Family and Medical Leave Act, which is the federal law passed in 1993 that allows employees to take as many as 12 weeks of unpaid time off for medical and family issues—such as pregnancies, births, adoptions, sick children and spouses, or serious illness with the employee themselves. This is the law that employers have to have included in their collection of labor law posters—the FMLA poster, or Family and Medical Leave Poster.
The important distinction with the Family and Medical Leave Act, however, and these state labor laws is that the Family and Medical Leave Act only gives employees the right to unpaid time off—whereas the Washington and California state laws give paid time off.
The Washington state law, when it is signed in effect into law in the next few days probably, will provide workers in the state with paid five weeks off for child care. However, this is not a precedent at all on the state level. As we saw the last few days when I talked about mandatory family leave and other forms of paid or unpaid time off—what do you mean, you don’t remember me talking about these things? Didn’t you read my blog over the weekend? You don’t work over the weekend? For shame on you!
Kidding aside, instead of forcing you to go back and scour my blog posts from last week, I will give you a quick review of what we talked about—past precedents in the paid leave minimum time off movement. The big law came about in California, back in 2002, which is technically the first such law in the whole country.
It required that employers in the state give their employees at least six weeks of paid time off whenever they needed it for family and or medical reasons, such as if they themselves got sick or had a new baby, or if they needed to care for a sick child or a sick elderly parent. The time off could also be used to care for a registered domestic partner, or more traditionally, for their spouse if they were sick. As with the Washington law, this paid time off could be used right after an adoption, too, to bond with the new child in the family.
The California law pays out more per week, too, than the proposed Washington law. Whereas the Washington law only offers out a minimum of $250 per week, the existing California law entitles workers on this paid leave as much as $882 per week, with benefits. And California requires the Family Rights Act Notice posters as well.
Remember that bill we talked about in Washington state that would require employers to give their employees as much as five weeks of paid leave off for a birth of a child, or to adopt a child, or to care for a sick family member? Well, from the sound of my sources out in Olympia, Washington, the governor is about to sign that bill into law.
Gov. Christine Gregoire, who has voiced support for the bill in the past, has said that giving more paid time off for family and medical reasons would be something she could support. The new rule would not kick into effect until Oct. 1, 2009, so that would at least give employers time to change their human resource policies, time off forms, time off calendar, and the like in order to incorporate the new law into their organization. I do not know if the new law will require a new family and medical leave labor law poster on the state level, but I will keep my antennae up and my radar on and let you know as soon as I hear something.
The rule would entitle these employees taking off to take care of a new born child at least as much as $250 per week for those five weeks. The catch, if you remember from our discussion of the bill a few weeks back, is that the state is not sure how to fund the new program yet. Originally, they had aimed to charge employees a tax on every hour of work that they put in—something like 2 cents per hour. But that got removed from the bill, and a new task force was set up with the task of figuring out a way to raise the money to pay for this new time off requirement.