The articles below describes changes that have been made effective to the Family and Medical Leave Act (FMLA). Two new categories have been added to FMLA, up to 26 weeks of unpaid leave to care for a wounded U.S. soldier and up to 12 weeks of unpaid leave to “prepare” for the active duty of an immediate family member. Please contact us at A-Plus Benefits if you have any questions or concerns about these changes to FMLA.

Bush Signs Military Leave FMLA Expansion into Law
By Bill Leonard - SHRM

President Bush signed the first expansion of the Family and Medical Leave Act (FMLA) in 15 years into law on Jan. 28, 2008. The FMLA expansion was included in a defense authorization package (H.R. 4986) that Congress had approved a week earlier.

Under the FMLA expansion, businesses are required to offer up to 26 weeks of unpaid leave to employees who provide care to wounded U.S. military personnel. Employers also must provide 12 weeks of FMLA leave to immediate family members (spouses, children or parents) of soldiers, reservists and members of the National Guard who have a “qualifying exigency.” While the measure does not define “qualifying exigency,” examples could include overseas assignments, recalls to active duty and troop mobilizations, sources say.

Congress did not specify an effective date for the FMLA provisions, and sources familiar with the issue say employers should consider that the leave expansion took effect the moment the president signed the bill. However, employers don’t need to panic about federal regulators breathing down their necks, sources say.

Chief congressional sponsors of the FMLA expansion have stated that they were aware that employers would need time to comply with the new leave requirements. Still, employers should begin notifying their employees about the new leave options, as soon as possible, recommends Frank Alvarez, a partner with Jackson Lewis and national coordinator of the law firm’s Disability, Leave and Health Management Practice Group.

“The FMLA is all about notification. Any employer that is prepared to notify [its] employees about these new leave options will be ahead of the game,” Alvarez said.

The leave expansion was signed into law just weeks before the U.S. Department of Labor (DOL) is expected to release a revised set of regulations for the FMLA based on issues that were sticking points for employers and employees long before the military family provisions were proposed and enacted. DOL officials sent the rule changes—which are not yet available to the news media and the public—to the federal Office of Management and Budget (OMB) for review on Jan. 24. While the OMB has 90 days to review the proposed revisions, sources familiar with the issue say the changes could be released and published in the Federal Register as soon as mid-February.

Victoria Lipnic, assistant labor secretary for the Employment Standards Administration, has indicated that the proposed revisions could include some guidelines for the new leave requirements for military families and caregivers. Since Congress approved two previous versions of the FMLA expansion during the last three months of 2007, DOL officials had time to prepare for the changes to the law, sources say.

Congress included the earlier versions of the FMLA expansion into legislation eventually vetoed by the president. The FMLA expansion signed into law is identical to a measure that cleared both houses of Congress and then was vetoed in late December 2007.

Bill Leonard is senior writer for SHRM Online.

Expanded FMLA Will Complicate Coordination of Leave
By Allen Smith

Coordination of compliance between federal and state leave mandates just became more complex because of the expansion of the Family and Medical Leave Act (FMLA) that was signed into law on Jan. 28, 2008.

New coordination-of-leave issues will arise mainly because of the FMLA’s new leave mandate for family members of people who are on or about to go on active duty, according to Conrad Kee, a Jackson Lewis attorney and reservist who has served in Iraq. This mandate creates an entitlement for up to 12 weeks of leave for the spouse, son, daughter or parent of a person on or about to be on active military duty for any “qualifying exigency,” a phrase that the U.S. Department of Labor (DOL) must clarify through rulemaking. In effect, the active duty leave mandate expands the types of family leave—as opposed to medical leave—available to these workers, as long as they have worked 1,250 hours in a 12-month period at a site with at least 50 employees within 75 miles. The new leave may be taken intermittently. (Please remember – all employees associated with clients who receive PEO services through A-Plus Benefits are eligible for FMLA)

By contrast, the FMLA’s new requirement for caregiver leave for wounded service members does not raise the same coordination issues with state laws, Kee told SHRM Online. The new caregiver mandate grants an eligible employee who is the spouse, son, daughter, parent or next of kin—defined as the nearest blood relative—of a covered service member up to 26 workweeks of unpaid leave during one 12-month period to care for a wounded service member. A husband and wife who work for the same employer can use no more than 26 weeks combined for this new leave.

All Not in the Family
Military family leave laws already exist in California, Illinois, Indiana, Maine, Minnesota, Nebraska and New York. The FMLA does not pre-empt these state laws.

Many of the state leave laws apply to small employers not covered by the FMLA, and some protect employees not covered by the federal law, though only one applies to the children of service members.

An assignment for HR and employers in the early part of 2008 will be “to figure out state by state when you can run these leaves concurrently and serially,” Margaret Hart Edwards, an attorney with Littler Mendelson in San Francisco, told SHRM Online. If the leave under state law is similar to a “qualifying exigency,” employers might be able to run them concurrently, except in California.
In California, leave mandated by state law is in addition to federal law, according to Susan Webman of FortneyScott in Washington, D.C., and the principal drafter of the Uniformed Services Employment and Reemployment Rights Act while she was the primary legal and policy advisor at the DOL.

California’s law, which Gov. Arnold Schwarzenegger signed on Oct. 9, 2007, requires employers with more than 25 employees to provide up to 10 days of unpaid leave if a military spouse is on leave from deployment in a combat zone. In California, domestic partners would have the same legal rights as spouses, despite the military’s “don’t ask, don’t tell” policy.

California’s law was modeled on New York’s law, the first of its kind when it was enacted in 2006, according to Edwards. The New York law also requires up to 10 days of unpaid leave for the spouse of a person on active duty in a combat zone, but, like the FMLA, does not grant the same rights to domestic partners as it does to spouses. Unlike the expanded FMLA, children and parents do not have the right to military family leave under the state law.

In Illinois, small employers (those with 15 to 50 employees) must provide up to 15 days of unpaid military family leave to the spouse or parent of a soldier called to military service. Larger employers have to provide up to 30 days of leave. Edwards said that Nebraska’s military family leave law is almost “a carbon copy” of Illinois’.

Employers with 50 or more employees must provide active duty leave for up to 10 days under Indiana’s law for employees who are grandparents, siblings, spouses or parents of individuals ordered to active duty. Grandparents and siblings are not covered by the FMLA’s expanded active duty mandate, though they might be next of kin eligible for the FMLA’s new caregiver leave for wounded service members.

Maine takes a different approach, mandating that employers with 15 or more employees provide 15 days of leave before, after or during deployment to the spouse, domestic partner or parent of someone called to active duty.

Of the state military family leave laws, only Minnesota mandates time off for the children of those on active duty. Minnesota’s law mandates up to 10 days off if an employee is the parent, child, sibling or spouse of someone killed or injured on active military duty.

Qualifying What?
Until the DOL issues regulations clarifying the meaning of a “qualifying exigency,” employers are in “a very awkward period,” Edwards observed. The DOL already is on the verge of issuing revised proposed FMLA regulations and may take this opportunity to issue proposed regulations for the new military family leave requirements, according to Lisa Horn, manager of health care for the SHRM Government Affairs Department.

The DOL has stated on its web site that the new caregiver leave is effective as of Jan. 28, 2008, but that the active duty leave for family members “is not effective until the Secretary of Labor issues final regulations defining ‘any qualifying exigency.’” The DOL noted that it “is expeditiously preparing such regulations. In the interim, DOL encourages employers to provide this type of leave to qualifying employees.”

Edwards remarked that if she were drafting the DOL regulations, “I would be collecting state laws and trying to develop a definition of ‘qualifying exigency’ that would swallow the reasons referred to in state laws.” She said that this “would be a favor to employers.” If the DOL provides a “good definition, hopefully it would provide some way to fit the state and federal laws together.”
Sue Willman, SPHR, an attorney with Spencer Fane Britte & Browne LLP in Kansas City, Mo., noted that the phrase “qualifying exigency” is broad and could include shutting down a house for a service member, snow-blowing walks or mowing the lawn while a family member is on active duty.

It’s understandable that an employee may want to take time off work to bond with a family member on the verge of going off to Iraq or elsewhere where the loved one faces the possibility of being killed or injured. Time away for family members to bond will be protected leave under the expanded FMLA, Willman said. She cautioned employers not to ask for documentation of the need for active duty leave until the DOL provides guidance.

Willman suspects “that some states that have the leave laws may amend the laws to be consistent” with the expanded FMLA.

As for the FMLA amendments, she observed that they have “opened the door to FMLA expansion. Employers have to be more sensitive that it could be expanded in other ways.”

Allen Smith, J.D., is SHRM’s manager of workplace law content.

Randall Barker is the VP of Human Resources for A Plus Benefits, Inc.

COBRA (Consolidated Omnibus Budget Reconciliation Act) is a regulation that many employers and employees have questions about.

COBRA allows employees and their families who have lost health care benefits due to a qualifying event the opportunity to continue the benefits offered by their group health plan. In this situation a qualifying event could be voluntary or involuntary job loss, reduction in the hours worked, transition between jobs, death, or divorce. Employees who qualify for COBRA may be required to pay the entire premium for their health benefits.

COBRA only affects those employers with 20 or more employees. Employers with less than 20 employees are not required to offer any continuation of health care coverage.

Employers are responsible for notifying COBRA eligible employees within 30 days of a qualifying event. Individuals then have 60 days to elect benefits and 45 days after electing benefits to pay their first premium.

For more information about COBRA please visit the Department of Labor website or contact the benefits department at A Plus Benefits.

Samantha Bushard is an HR employee for the Idaho office of A Plus Benefits Inc.

Flexible spending accounts (also called cafeteria plans) can be a great way for both employees and employers to decrease their taxable income. Flexible spending accounts allow employees to elect a certain amount of money for medical or day care expenses for the year to be pulled out of their check before taxes. This money can then be reimbursed to the employee as medical or day care expenses are incurred.

Flexible spending accounts are “use it or lose it” plans, meaning that if you elect $2,000 over the course of the year and only turn in receipts for reimbursement for $1,900, the $100 will no longer be available after the end of the year.

Both qualified medical expenses and day care expenses can be reimbursed through the flexible spending account. Here is a list of medical expenses that qualify for reimbursement under a flexible spending account. Sample Flexible Spending Expenses.pdf

These rules are similar to those for HSAs discussed in a previous blog.

All full-time employees (those working at least 30 hours a week) of A Plus Benefits are eligible to participate in our flexible spending account. Signing up for the flexible spending account must occur at the time of benefits enrollment or during open enrollment in December. Flexible spending elections do not roll over year to year so new elections must be turned in by December 31^st of each year.

If you would like more information about the A Plus Benefits flexible spending account, please contact the benefits department.

Samantha Bushard is an HR employee for the Idaho office of A Plus Benefits, Inc.

Expansion of FMLA Approved by Congress
By Bill Leonard - SHRM

The first expansion of the Family Medical Leave Act (FMLA) since 1993 cleared a final hurdle in Congress when the Senate voted 90-3 to approve the National Defense Authorization Act (H.R. 1585) on Dec. 14, 2007. The measure had passed the House of Representatives just two days before, also with overwhelming bipartisan support.

The legislation now moves onto White House, where officials have indicated that President Bush will sign the bill into law. A conference committee with members from both houses of Congress crafted the final version of H.R. 1585, which includes a provision granting FMLA-protected leave to workers who provide care to wounded U.S. soldiers and to family members of military reservists called to active duty.

The final version of the FMLA expansion is a combination of several different proposals, which have been under consideration in Congress for months. Most of the proposals surfaced after the President’s Commission on Care for America’s Returning Wounded Warriors issued a list of recommendations in March 2007.

Both houses of Congress approved a similar proposal to expand the FMLA into legislation that would have reauthorized the State Children’s Health Insurance Program. However, President Bush vetoed the bill and supporters of the FMLA expansion then moved to attach the provision to H.R. 1585.

The final measure requires that employers provide 12 weeks of FMLA leave to the immediate family members (spouses, children or parents) of reservists or members of the National Guard who are called to active duty in the U.S. military. Under the new law, employers also must offer up to 26 weeks of unpaid leave to employees who are providing care for family members wounded while serving in the U.S. military. Workers can take the leave in increments of the shortest time periods tracked by their employers’ payroll system.

It is unclear when President Bush would sign the measure into law, but sources familiar with the issue say the president will sign the bill soon—most likely before Christmas. The measure does not stipulate an effective date for the FMLA expansion, which has left many people wondering if the law will take effect on the day the president signs it.

Members of Congress who sponsored the leave expansion have said they are aware that employers will need time to prepare and comply with the new requirements. Several business-related groups, including the Society for Human Resource Management (SHRM), have asked the key sponsors of the measure to draft a statement clarifying their intent regarding an effective date. At the same time, officials with the Department of Labor have told Congress that they will need time to draft new regulations.

Sources familiar with the issue say that while the federal government won’t begin strict enforcement of the new leave requirements immediately, employers do need to review the changes with their attorneys or in-house counsels and be ready to comply with the new law as soon as possible.

“We are seeking further guidance on when and how the new leave provisions will take effect,” said Lisa Horn, manager for health care for SHRM. “Still, employers do need to be aware that the law is changing, and that they should begin preparing now to comply with these changes.”

Bill Leonard is a senior writer for SHRM Online.

Employees who are a part of the A Plus Benefits health plan often have questions about finding doctors that are in network. It is important to go to in network doctors in order to receive the best coverage from your medical or dental plan.

There are two different networks for the medical plan. You can find the name of your health network on the medical plan cards sent to you in the mail or by asking the benefits department at A Plus Benefits.

First Health (used in Idaho)
To find doctors on the First Health network go to www.firsthealth.com.
Click on Consumer of the left side of the screen.
Then click on Electronic Directory on the left side of the screen.
On the next screen under Provider Types, click on Physicians/Clinics.
Choose a specialty (such as family practice, dermatology, etc.) or select Any Specialty from the drop down list on the left side of the screen.
On right side of the screen enter your zip code and the amount of miles away from that zip code you would like to search.
Click on the Search button.
Information on doctors in the area should show up on the next screen. For more information about each doctor, click on their name.

Beech Street (used in Utah)
To find doctors on the Beech Street network go to www.beechstreet.com.
Click on Patients in the blue bar in the center of the screen.
On the right side of the screen in a small green box click Search for a doctor or hospital near you.
Enter in your city and state or zip code.
Scroll down and choose a specialty from the drop down list (such as family practice, dermatology, etc.) or select All.
Click on the Search button.
Information on doctors in the area should show up on the next screen. For more information about each doctor, click on their name.

The dental network is the same for all employees.

Dental Select
To find dentists on the Dental Select network go to www.dentalselect.com.
Click on Members in the right side of the screen.
On the right side of the screen in the Providers box click on the orange Go button.
Choose your state and your plan (Silver, Gold or Platinum) from the drop down lists.
Choose your city from the drop down list or enter your zip code.
Choose a specialty or select all from the specialty drop down list.
Enter other information if you wish and then click on the Search button.
Information on dentists in the area should show up on the next screen.

These electronic directories are updated as often as possible, but some changes may not be in the system immediately. Please remember to ask your doctor if they accept your network before making an appointment.

If you have questions about doctor networks please contact the benefits department at A Plus Benefits.

Samantha Bushard is an HR Employee for the Idaho office of A Plus Benefits, Inc.