Vermont Code of Rules, Agency 24 — Department of Labor

Subagency 000 GENERAL

Chapter 001 CETA WORK EXPERIENCE PROGRAM

24-001 Code Vt. R. 24-000-001-X CETA WORK EXPERIENCE PROGRAM

Services performed under Title IIB of the Comprehensive Employment and Training Act (CETA Work Experience Programs) shall be excluded from the statutory definition of "employment" found in 21 V.S.A. § 1301 by virtue of the terms of 21 V.S.A. § 1301(6)(C) (vii)(e). 21 V.S.A. § 1301

History

• EFFECTIVE DATE: November 12, 1981 (SOS Rule Log # 81-84);
• AMENDED: April 2007 (Department of Employment and Training merged with the Department of Labor and Industry to form a new Department of Labor. Formerly 23 005 001 under Department of Employment and Training)

Chapter 002 CETA ISSUE RESOLUTION PROCEDURE

24-002 Code Vt. R. 24-000-002-X CETA ISSUE RESOLUTION PROCEDURE

Section I Definitions

A. "Issue - (Local level) - any dispute or controversy relating to the CETA program which arises among the prime sponsor, its contractors and subcontractors, participants and other aggrieved parties. Issues may include, but are not limited to:

Alleged civil rights violations;

Conflicts over pay, benefits, or working hours.

B. "Complaint" - (Prime Sponsor level) - an oral or written expression of dissatisfaction to the Vermont Comprehensive Employment and Training Office concerning an issue which has not been satisfactorily resolved by local procedures at its point of origin.

C. "Formal Allegation" - (Department of Labor level) - An aggrieved party's formal statement of dissatisfaction which has not been resolved by the Prime Sponsor, and is presented to the Regional Administrator for Employment and Training.

D. "Contractor" - That agency, whether in the public or private sector, with whom the Prime Sponsor contracts to provide services, under the Comprehensive Employment and Training Act, to qualified participants.

E. "Director" - The Director of the Vermont Comprehensive Employment and Training Office, or his or her designee.

F. "Local Procedure"

• The procedure which each contractor establishes to resolve issues at their point of origin (see Section III).

G. "Participant" - An individual who qualifies and receives services, or takes part in activities under the provisions of the Comprehensive Employment and Training Act.

H. "Prime Sponsor" - The State of Vermont, through the Vermont Comprehensive Employment and Training Office.

I. "Act" - The Comprehensive Employment and Training Act of 1973 ("CETA"), as amended.

Section II Policy

A. It is the policy of the Vermont Comprehensive Employment and Training Office to require a prompt and timely determination of any unresolved issues, by use of local procedures wherever possible.

B. This procedure is available for prompt resolution of issues which may arise among the Prime Sponsor, its contractors, and any aggrieved party, e.g., participants, applicants, local governments, community organizations, and the general public. However, where an issue is raised by a party who will not be directly affected by its outcome, the Director shall have the discretion to appoint a representative to meet with that party and to discuss the issue without resorting to the fair hearing process.

C. The Director will (through executive directive, corrective action, fair hearing, or other action) attempt to resolve all anticipated or existing issues, complaints, or infractions of the Comprehensive Employment and Training Act, and any amendments thereto.

D. The Prime Sponsor shall be notified immediately in writing by the contractor of:

1. Issues arising at the local level.

2. Complaints received at its local level.

3. Allegations of discrimination.

4. All local procedures (see SECTION III).

All administrative separations.

E. Any issue which is not resolved by local procedure shall be filed as a complaint in accordance with SECTION IV.

F. All partieshave the right to be represented by legal counsel or other representative of their choosing. CETA funds may not be used by participants to hire such legal counsel.

G. All issues raised by the general public will be directed to, and resolved by the Vermont Comprehensive Employment and Training Office.

H. The authority for all decisions within the Comprehensive Employment and Training Act within the State of Vermont rests with the Director of the Vermont Comprehensive Employment and Training Office whose determination will be final. Any further appeal will be directed to the U.S. Department of Labor in accordance with Section IV, B, 6.

Section III Local Procedure

A. Each potential contractor will submit its local issue resolution procedure to the Director with its application for a Comprehensive Employment and Training Act contract. Contracts will not be awarded until these procedures are reviewed, revised and found acceptable by this office. Local procedures must include:

1. Protection for the civil rights of all involved parties.

2. An opportunity, such as a conference, for all parties to meet informally and attempt to resolve issues.

Local procedures must also provide for a maximum time limit (not greater than 30 days) after an issue arises during which the complainant must raise the issue.

B. Each contractor's local procedure will constitute the first level for addressing issues raised by an aggrieved party. In the event of the involvement of a sub-contractor, an outstation, or local office, the contractor bears the responsibility for resolving these issues in a prompt and timely manner by its own local procedures. All issues should be resolved by the contractor within 15 working days. If not, any party may immediately file a complaint with the prime sponsor.

C. Procedures for Staff Employees

All contractors will have, and insure that their staffs are aware of, a local procedure to address employment issues. All procedures must be approved prior to contract award, as above (see Section III, A). Contractors' staff personnel must first utilize local procedures for resolving all employment issues. If any such issue involves a violation of the Act or of federal CETA regulations, it may be appealed by filing a complaint with the Vermont Comprehensive Employment and Training Office under Section IV, A.

Staff employees of the prime sponsor shall avail themselves, where applicable, of the State Grievance Procedure as their exclusive means of resolving employment disputes. If for any reason the State Grievance Procedure is not available to a staff employee, or if that employee alleges a violation of the Act or federal CETA regulations which cannot be addressed in the State Grievance Procedure, then that employee may file a complaint under Section IV, A.

D. Notification to Participant

Upon each participant's enrollment in the program, the contractor will provide two (2) copies of the notification concerning the local procedure which would be used to redress his/her complaint(s). One copy will be retained by the participant, and one copy will be signed and placed in his/her personnel folder by the contractor. A copy of this notification will be available to the public at all times, and will contain the following minimum information:

1. The name, address, and telephone number of the contractor's representative to contact with his/her complaint.

2. A brief and understandable summary of the local procedure.

3. Notice of his/her right to request a fair hearing at the Vermont Comprehensive Employment and Training Office, and subsequently to appeal to the Department of Labor.

4. Notification of the aggrieved party's right to be represented by counsel or other representative of his/her choosing, at their expense.

Section IV Vermont Comprehensive Employment and Training Office Issue Resolution Procedure

A. General Considerations

1. If a satisfactory settlement is not reached at the point of origin (local level), a complaint may be presented to the Vermont Comprehensive Employment and Training Office.

2. All complaints filed with the Vermont Comprehensive Employment and Training Office shall be submitted within five days after receipt of an unfavorable decision at the point of origin. Where no local level procedure is available, a complainant must file his complaint within 30 days of the incident generating the complaint.

3. Complaints shall be filed with the Vermont Comprehensive Employment and Training Office, 79 River Street, Montpelier, Vermont 05602 (828-3355), and must contain the following information.

a. The full name and address of the person submitting the complaint;

b. The full name and address of the employing agency;

c. A concise statement of the nature of the complaint and how a local resolution was attempted; and,

d. A statement of the remedial action sought.

The Director shall acknowledge receipt of complaints in writing within five (5) days of receipt.

4. Upon receipt of a complaint the Director may immediately assign an appropriate staff member to investigate matters concerning discrimination will be assigned to the Equal Employment Opportunity Officer.

5. The investigator will make a written report of his or her findings of fact within 20 working days. The investigator may also in his or her discretion, make recommendations toward a resolution of the matter prior to an informal fair hearing. If a fair hearing is later held, the investigative report may be made a part of the record, subject to the objections of any parties.

6. If no resolution is forthcoming, the Director will schedule a fair hearing not later than 30 working days after the receipt of a complaint. The Director shall give reasonable notice of the fair hearing to all parties. Such notice shall include:

a. The date, time, and place of hearing.

b. A statement of the issues, including references to pertinent laws, procedures, and contracts, where pertinent.

c. Reference to the right to submit written briefs, the right to bring witnesses and present evidence, the right to be represented (at participant's expense) by counsel or other representatives of their own choosing, and the right to-request a rescheduling of the hearing for good cause.

B. The Fair Hearing

When appropriate, an informal fair hearing will be conducted by the Director's designee.

1. The Hearing Officer will conduct the hearing informally, provide all parties an opportunity to respond and present evidence on all issues involved, and then make a written recommendation to the Director within 15 working days after the hearing.

2. Should any party fail, without reasonable excuse, to appear as scheduled, a recommendation may be made on the basis of information submitted in his/her absence.

3. A recording of the oral proceedings will be taken, and a copy of those documents presented will be attached. These records will be retained by the Vermont Comprehensive Employment and Training Office, and copies will be provided to any authorized party upon request and payment of reason able cost.

4. The informal hearing will be scheduled and held in such a manner as to be the least disruptive to the Comprehensive Employment and Training Act operation, and place as little hardship as possible upon the involved parties.

5. If a hearing is scheduled outside the town of a participant residence, the Vermont Comprehensive Employment and Training Office shall pay his/her reasonable * travel expenses upon verification of such expenses.

• The maximum allowable travel reimbursements are those established by the State of Vermont.

6. Upon receipt of the hearing officer's recommendation, the Director will render the final decision within 10 working days and will notify all parties in accordance with Section V. Included in this notice shall be the manner and place (address) in which a formal allegation against the Director's decision can be filed with the Regional Administrator for Employment and Training (Department of Labor level):

Luis Sepulveda

Regional Administrator for Employment and Training

U.S. Department of Labor

JFK Federal Building

Boston, Massachusetts 02203

7. A formal allegation shall be initiated within 30 days of the date of the Director's decision and in accordance with sections 98.40 - 98.44 of Subpart C - Hearings and Judicial Review of Federal Register - Dated October 18, 1977.

8. In the event of an appeal to the Department of Labor, any party may request the Director to delay implementation of his/her decision until the appeal is decided.

9. The Vermont Comprehensive Employment and Training Office will abide by the final results of the federal hearing process (Department of Labor level).

Section V Service of Decisions

Hearing decisions shall be served by certified mail, return receipt requested; or hand delivered (hand delivery to be verified by signed receipt).

Section VI Extensions of Time

The time limits specified in this Issue Resolution Procedure may be extended for good cause by the Director. This does not apply to the time limits established by the Department of Labor for initiating a formal allegation. 21 V.S.A. § 1305

History

• EFFECTIVE DATE: July 11, 1978 (SOS Rule Log # 78-71)
• AMENDED: April 2007 (Department of Employment and Training merged with the Department of Labor and Industry to form a new Department of Labor. Formerly 23 005 002 under Department of Employment and Training)

Subagency 010 ADMINISTRATIVE DIVISION

Chapter 003 WORKERS' COMPENSATION AND OCCUPATIONAL DISEASE RULES

24-003 Code Vt. R. 24-010-003-X WORKERS' COMPENSATION AND OCCUPATIONAL DISEASE RULES

Rule 1.0000. Purpose and Construction.

1.1100 "The purpose of the workers' compensation law is to provide, not only for the employees, a remedy which is both expeditious and independent of proof of fault, but also for employers, a liability which is limited and determinate. It places on business the burden of caring for injured employees, or when killed, their dependents to the extent provided for in the act...." Morrisseau v. Legac, 123 Vt. 70, 76 (1962).

1.1200 "While the [Workers'] Compensation Act is to be construed liberally to accomplish the humane purpose for which it was passed, a liberal construction does not mean an unreasonable or unwarranted construction." Herbert v. Layman, 125 Vt. 481, 485-86 (1966).

Rule 2.0000. Definitions.

For the purposes of these rules:

2.1100 "Accident" means an unlooked-for mishap or an untoward event that is not expected or designed.

2.1200 "Aggravation" means an acceleration or exacerbation of a pre-existing condition caused by some intervening event or events. Compare with "flare-up," Rule 2.2300, and "recurrence," Rule 2.3900.

2.1210 In determining whether there has been an aggravation or recurrence, the following factors should be considered:

2.1211 Whether a subsequent incident or work condition has destabilized a previously stable condition;

2.1212 Whether the injured worker had stopped treating medically;

2.1213 Whether the injured worker had successfully returned to work;

2.1214 Whether the injured worker had reached an end medical result; and

2.1215 Whether the subsequent work contributed independently to the final disability.

2.1300 "Commissioner" means the Commissioner of Labor or the Commissioner's designee. 21 V.S.A. § 601(20).

2.1400 "Corporate officer" means an officer described in a corporation's bylaws or appointed by the board of directors in accordance with its bylaws, and as further defined and described in the Vermont Business Corporation Act, 11A V.S.A. §§ 1.01 et seq.

2.1500 "Date of injury" means:

2.1510 For purposes of filing a claim and statute of limitations, the point in time when the injury, and its relationship to employment, is reasonably discoverable and apparent. 21 V.S.A. § 656(b); see Rules 3.1500 and 3.1700.

2.1520 For purposes of calculating average weekly wage pursuant to 21 V.S.A. § 650(a) when there are one or more periods of disability, the date(s) on which the injury becomes disabling. See Rule 8.1650.

2.1600 "Department" means the Vermont Department of Labor.

2.1700 "EIN" means an employer's federal Employer Identification Number.

2.1800 "Electronic data interchange" (EDI) means the computer-to-computer exchange of the data elements contained in a First Report of Injury (Form 1) between an employer's workers' compensation insurance carrier (or if self-insured, the employer's workers' compensation claims administrator) and the Department. 21 V.S.A. § 660a. See Rule 3.1200.

2.1900 "Employer" means the employer as defined in 21 V.S.A. § 601 (3) and its workers' compensation insurance carrier.

2.2000 "End medical result" or "medical end result" or "maximum medical improvement" means the point at which a person has reached a substantial plateau in the medical recovery process, such that significant further improvement is not expected, regardless of treatment.

2.2100 "Evidence that reasonably supports" a denial of benefits means relevant evidence that a reasonable mind might accept as adequate to support a conclusion that must be based on the record as a whole, and take into account whatever in the record fairly detracts from its weight. 21 V.S.A. § 601 (24). Compare with "preponderance of the evidence," Rule 2.3700.

2.2200 "First-aid only injury" means an injury for which the injured worker loses no time from work (except for the time, not exceeding one day of work, related to medical treatment and recovery), and which requires only one treatment that generates a bill for less than $ 750.00. 21 V.S.A. § 640(e). See Rule 3.1300.

2.2300 "Flare-up" means a temporary worsening of a pre-existing condition caused by a new injury for which a new employer or insurance carrier is responsible, but only until the condition returns to baseline and not thereafter. Compare with "aggravation," Rule 2.1200, and "recurrence," Rule 2.3900.

2.2400 "Functional capacity evaluation" (FCE) means testing performed by a registered physical or occupational therapist or other qualified medical provider, in which the injured worker's ability to participate in activities within a work setting is objectively determined. An FCE is used to match physical capabilities to job requirements and should address such activities as bending, lifting, pushing, pulling, balance, reaching, climbing, stooping, standing, sitting, eye-hand-foot coordination, manual finger dexterity and physical endurance. See Vermont Vocational Rehabilitation Rule 51.1200.

2.2500 "Health care provider" means a person, partnership, corporation, facility or institution, licensed or certified or authorized by law to provide professional health care service to an individual during the individual's medical care, treatment or confinement. 21 V.S.A. § 601(22).

2.2600 "Injury" means any harmful work-related change in the body, whether occurring instantaneously or gradually, and includes a claimed or apparent injury or disease. The term also includes damage to and the cost of replacement of prosthetic devices, hearing aids and eyeglasses when the damage or need for replacement arises out of and in the course of employment. 21 V.S.A. § 601 (7). Depending on the circumstances, the term "injury" also includes "aggravation," "flare-up" or "recurrence" as those terms are defined in Rules 2.1200, 2.2300 and 2.3900.

2.2700 "Maximum medical improvement" - see "end medical result," Rule 2.2000.

2.2800 "Medical bill" means any claim, bill, or written request for payment from a health care provider or injured worker for all or any portion of health care services provided to the injured worker as a consequence of an injury for which he or she has filed a claim under Vermont's Workers' Compensation Act. 21 V.S.A. § 601 (25). See also Vermont Workers' Compensation Rule 40.000.

2.2900 "Medical case management" means the planning and coordination of health care services appropriate to achieve the goal of medical rehabilitation. Medical case management may include medical case assessment, including personal interview with the injured worker, assistance in developing, implementing and coordinating a medical care plan with health care providers in consultation with the injured worker and his or her family, and evaluation of treatment results. The goal of medical case management should be to avail the injured worker of reasonable treatment options to ensure that he or she can make an informed choice. Medical Case Managers shall not provide medical care or adjust claims. See Vermont Vocational Rehabilitation Rule 51.1900.

2.3000 "Medical end result" - see "end medical result," Rule 2.2000.

2.3100 "Misclassification" means improperly classifying an employee as an independent contractor for the purpose of avoiding workers' compensation insurance coverage.

2.3200 "Miscoding" means improperly categorizing an employee under the National Council on Compensation Insurance (NCCI) workers' compensation classification codes, which account for varying levels of risk attributable to different job types for the purpose of calculating workers' compensation insurance premiums.

2.3300 "Occupational disease" means a disease that results from causes and conditions characteristic of and peculiar to a particular trade, occupation, process or employment, and to which an employee is not ordinarily subjected or exposed outside or away from the employment and which arises out of and in the course of the employment. 21 V.S.A. § 601(23).

2.3400 "Palliative care" means medical services rendered to reduce or moderate temporarily the intensity of an otherwise stable medical condition, but does not include those medical services rendered to diagnose, heal or permanently alleviate or eliminate a medical condition. Palliative care is compensable if it is reasonable, medically necessary and offered for a condition that is causally related to a compensable work injury.

2.3500 "Payment without prejudice" means the payment of benefits claimed to be due and payable under the provisions of Vermont's Workers' Compensation Act that are made by an employer or insurance carrier prior to its acceptance of the claim and without waiving its right to contest compensability of the claimed benefit(s). See Rule 3.2300.

2.3600 "Pre-authorization" means the process by which, upon written request submitted with supporting medical evidence, the employer or insurance carrier agrees to pay for a proposed medical procedure or treatment. 21 V.S.A. § 640b. See Rule 7.0000.

2.3700 "Preponderance of the evidence" means the greater weight of the evidence, the more probable hypothesis when all relevant evidence is considered, evidence sufficient to incline an impartial mind to one side of the issue rather than the other. Compare with "evidence that reasonably supports," a denial of benefits, Rule 2.2100.

2.3800 "Reasonable medical treatment" means treatment that is both medically necessary and offered for a condition that is causally related to the compensable work injury. As to the medically necessary component, the determination whether a treatment is reasonable should be based primarily on evidence establishing the likelihood that it will improve the patient's condition, either by relieving symptoms and/or by maintaining or increasing functional abilities. See also 21 V.S.A. § 601 (27), defining "medically necessary care."

2.3900 "Recurrence" means the return of symptoms following a temporary remission. Compare with "aggravation," Rule 2.1200, and "flare-up," Rule 2.2300.

2.3910 In determining whether there has been an aggravation or recurrence, the following factors should be considered:

2.3911 Whether a subsequent incident or work condition has destabilized a previously stable condition;

2.3912 Whether the injured worker had stopped treating medically;

2.3913 Whether the injured worker had successfully returned to work;

2.3914 Whether the injured worker had reached an end medical result; and

2.3915 Whether the subsequent work contributed independently to the final disability.

2.4000 "Regular full time employment" means a job that was at the time of hire, or is currently, expected to continue indefinitely. See Vermont Vocational Rehabilitation Rule 51.2100.

2.4100 "Successful return to work" means a return to employment that the injured worker has demonstrated the physical capacity and actual ability to perform without imminent risk of re-injury. Where the injured worker was employed in a temporary or part-time capacity prior to his or her injury, "successful return to work" means a return to employment under the same or similar circumstances.

2.4200 "Suitable wage" means a wage that equates as closely as possible to 100 percent of the injured worker's average weekly wage as calculated in Rule 8.0000. See Vermont Vocational Rehabilitation Rule 51.2700.

2.4300 "Suitable work" means work:

2.4310 For which the injured worker has the necessary physical capacities, knowledge, skills and abilities, as those terms are defined in Vermont Vocational Rehabilitation Rules 51.2610-51.2630;

2.4320 Located where the injured worker customarily worked prior to his or her injury, or within reasonable commuting distance of his or her residence;

2.4330 Which pays or would average on a year-round basis a suitable wage, as defined in Rule 2.4200; and

2.4340 Which is regular full-time employment, as defined in Rule 2.4000. Temporary or part-time work is suitable if it equates as closely as possible to the injured worker's annual income from a similarly temporary or part-time job held prior to the injury. See Vermont Vocational Rehabilitation Rule 51.2600.

2.4400 "Voluntary payments" means payments made by an employer or insurance carrier to an injured worker during the period of disability, or to his or her dependents, that were not due and payable under the provisions of Vermont's Workers' Compensation Act at the time they were made. 21 V.S.A. § 651.

Rule 3.0000. Reporting the Injury and Adjusting Claims.

3.1100 First Report of Injury; when filed. Except for first-aid only injuries, every employer shall file a First Report of Injury (Form 1) with its insurance carrier (or if self-insured, with its workers' compensation claims administrator) within 72 hours (Sundays and legal holidays excluded) of receiving notice or knowledge of a claimed work-related injury that either (a) causes an absence of one day or more from work; and/or (b) necessitates medical attention. 21 V.S.A. § 701.

3.1110 The employer shall file a First Report of Injury with its insurance carrier or claims administrator even if it disputes the facts surrounding the injury and/or its relationship to the injured worker's employment. Filing the First Report of Injury does not in any respect amount to an admission of liability.

3.1120 Upon filing a First Report of Injury with its insurance carrier or claims administrator, as promptly as possible the employer shall deliver a copy to the injured worker.

3.1130 If the injury results in death, the employer shall also file a Report of Fatal Accident (Form 4) with its insurance carrier or claims administrator.

3.1200 Electronic Data Interchange (EDI). Within 30 days after being approved by the Department of Financial Regulation to write workers' compensation insurance in Vermont (or, for self-insured employers, within 30 days after being approved to self-insure), the insurance carrier (or, if self-insured, the employer's workers' compensation claims administrator) shall complete and submit a Department-approved EDI trading partner agreement with an approved EDI vendor. A new trading partner agreement shall be submitted every three years, or sooner in the event of a change in EDI vendor. An updated transmission profile shall be filed in the event of a change in contact information.

3.1210 Immediately upon receipt of an employer's First Report of Injury, the employer's insurance carrier or claims administrator shall transmit the data elements contained therein to the Commissioner via EDI. The level of record detail in the electronically submitted report shall be equivalent to that required in a written paper record, and shall be complete, valid and accurate. Each electronic transmission of data shall include appropriate header and trailer records. 21 V.S.A. § 660a.

3.1300 First-aid only injuries. In the event of a first-aid only injury, within five days of receiving notice of its occurrence the employer shall file a First Report of Injury with the Commissioner. As promptly as possible thereafter, the employer shall give a copy of the First Report of Injury to the injured worker. 21 V.S.A. § 640(e).

3.1310 In the event that the employer contests a claimed first-aid only injury, within five days of receiving notice of its occurrence the employer shall also file the First Report of Injury with its workers' compensation insurance carrier.

3.1320 If the employer accepts a first-aid only injury as compensable, it shall pay the associated medical bill within 30 days of receipt.

3.1330 In the event that an accepted injury no longer qualifies as a first-aid only injury, either because (a) the billing for the associated one-time-only medical treatment is $ 750.00 or more; or (b) the injury necessitates additional medical treatment; and/or (c) the injury causes an absence of more than one day from work, the employer shall promptly report the claim to its workers' compensation insurer, which shall adjust it accordingly.

3.1400 First Report of Injury; complete information required. Whether filed via EDI or otherwise, the employer shall provide all information necessary to complete the First Report of Injury in full. An employer who fails to do so may be subject to administrative penalty. 21 V.S.A. § 702.

3.1500 Notice of claimed injury. An injured worker must give an employer notice of any claimed work-related injury (including the recurrence, aggravation or flare-up of a prior injury or condition), as soon as practicable after its occurrence, and must file a claim for compensation within six months after the date of injury. The notice and/or claim may be given or made by any person claiming entitlement to compensation or acting on the injured worker's behalf. 21 V.S.A. § 656(a).

3.1510 As used in this Rule, "date of injury" means the point in time when both the injury and its relationship to the employment are reasonably discoverable and apparent.

3.1520 When the employer or insurance carrier has paid benefits voluntarily or without prejudice, the injured worker need not file a claim for benefits unless and until payments are denied or discontinued. The injured worker shall have six months from the date of denial or discontinuance within which to file a claim for benefits. 21 V.S.A. § 656(c).

3.1600 Failure to give notice. An injured worker who fails to give notice or make a claim for compensation within six months of the date of injury may nonetheless pursue a claim for compensation and benefits, provided he or she can show either that the employer, the employer's agent or representative had knowledge of the accident, or that the employer has not been prejudiced by the delay or want of notice. 21 V.S.A. § 660(a).

3.1700 Statute of limitations. Proceedings to initiate a claim for a work-related injury may not be commenced after three years from the date of injury. 21 V.S.A. § 660(a). This provision shall not be construed to limit a subsequent claim for benefits stemming from a timely filed work-related injury claim; such claims shall be filed within six years of the date on which they accrue.

3.1800 Occupational disease claims. A claim for occupational disease shall be made within two years of the date when the occupational disease and its relationship to the employment are reasonably discoverable and apparent. 21 V.S.A. §§ 656(b), 660(b).

3.1900 Employee's Notice of Injury. If the employer fails or refuses to file a First Report of Injury, the injured worker may file an Employee's Notice of Injury and Claim for Compensation (Form 5) directly with the Commissioner. The filing of a Notice of Injury shall not absolve the employer or insurance carrier from responsibility either for filing a First Report of Injury or for investigating and determining compensability in accordance with this Rule.

3.2000 Investigation; forms. Having received notice or knowledge of an injury, the employer or insurance carrier shall promptly investigate and determine whether any compensation is due. In all cases in which the injured worker is alleged to have been disabled from working for at least three calendar days as a result of his or her injury the employer or insurance carrier shall immediately complete a Wage Statement (Form 25), and solicit a completed Certificate of Dependency and Concurrent Employment (Form 10) from the injured worker. Upon receipt, both forms shall be filed with the Commissioner, with copies to the injured worker. See Rule 8.0000.

3.2100 Disclosure and use of medical information. The filing of a claim for workers' compensation benefits shall be a waiver of all claims to privilege as between the parties regarding medical information relevant to the specific claim. Therefore, upon request by the employer or insurance carrier in the course of its investigation, the injured worker shall execute Medical Authorizations (Form 7) as needed for the release of all relevant medical records and reports regarding his or her diagnosis, condition, treatment, permanent impairment and/or return to work restrictions or limitations. Information that may be requested includes minimum data to justify services and payment, office notes of the examination relating to diagnosis or treatment and any other relevant provider records contained in the file. 21 V.S.A. § 655a.

3.2110 Medical information relevant to a specific claim includes records and reports pertaining to a past history of complaints or treatment of a condition similar to that presented in the claim or other conditions related to the same body part. Disputes as to the relevance of particular medical information shall be resolved by the Commissioner. The employer or insurance carrier shall not use medical information that is found not to be relevant to the claim to deny or limit an injured worker's entitlement to benefits.

3.2120 The employer or insurance carrier shall use any medical information received in conjunction with a claim solely for the purpose of advancing or defending the injured worker's claim for benefits, investigating a claim of false representation, and/or ensuring compliance with the workers' compensation statute and rules. In all other circumstances, the employer or insurance carrier shall be prohibited from disclosing medical information (including but not limited to uploading such information to a central claims database), for use in conjunction with other claims, whether work-related or not, involving the same injured worker.

3.2130 An injured worker's failure or refusal, without good cause, to provide a medical authorization upon request is grounds for the employer or insurance carrier to deny a claim or discontinue benefits by filing the appropriate Denial of Workers' Compensation Benefits (Form 2) or Notice of Intention to Discontinue Payments (Form 27) with the Commissioner, or for the Commissioner to dismiss the claim without prejudice. See Rules 11.0000 and 12.0000.

3.2140 The employer or insurance carrier shall take no negative action with regard to a claim based solely on an oral communication with a medical provider. All substantive communications with an injured worker's treatment provider(s) must be in writing and simultaneously copied to the injured worker or, if represented, to his or her attorney.

3.2200 Claim denial; request for extension. The employer or insurance carrier shall have 21 days (measured from the date on which the employer received notice or knowledge of a claimed work-related injury) within which to determine whether any compensation is due. If it determines that no compensation is due, within 21 days after receiving notice or knowledge of the injury, it shall file a Denial of Workers' Compensation Benefits (Form 2) with the Commissioner and the injured worker. The Denial shall clearly state the reason(s) for the denial, and shall be accompanied by copies of all relevant documentation, medical or otherwise, relied upon to support it. See Rule 11.0000.

3.2210 If, despite good faith efforts, the employer or insurance carrier cannot render a decision within 21 days, it may request an extension in writing. The extension request must be specific as to the reason for the delay and the number of additional days requested (not to exceed an additional 21 days). It must be accompanied by documentation demonstrating that the employer or insurance carrier has made good faith efforts to investigate the claim, and must be received by the Commissioner (with a copy to the injured worker) prior to the expiration of the initial 21-day time limit.

3.2220 An employer or insurance carrier who has denied a claim on the grounds that information relevant to its investigation was appropriately requested but not forthcoming shall have an affirmative obligation to reconsider its denial if the requested information is received within 45 days thereafter.

3.2300 Payment without prejudice. At any time during its investigation, the employer or insurance carrier may elect to pay without prejudice all or a portion of any benefits to which the injured worker claims entitlement. The employer or insurance carrier shall notify both the injured worker and the Commissioner of its election to do so in writing. In the case of medical bills, the notice shall specify the nature and duration of all medical services or supplies to be paid without prejudice. In the case of indemnity benefits, the notice shall specify the type and duration of the benefit(s) to be paid without prejudice, and shall be accompanied by a Certificate of Dependency and Concurrent Employment (Form 10) and a Wage Statement (Form 25) sufficient to allow calculation of the compensation rate to be used. If the employer or insurance carrier fails to deny compensability of the claimed benefit(s) in accordance with Rule 11.0000 within 90 days of making a payment without prejudice, it shall be deemed to have accepted responsibility for them. In that event, it shall follow the procedures outlined in Rule 12.0000 prior to discontinuing payment.

3.2400 Interim order. If the employer or insurance carrier fails either to commence payment without prejudice or to make a determination whether any compensation is due within the time period specified in Rules 3.2200 or 3.2210 above, upon written request by the injured worker and if the available evidence does not reasonably support a denial, the Commissioner shall issue an interim order that compensation be paid. 21 V.S.A. § 662(b). Unless otherwise specified therein, any such payments shall be due and payable upon issuance of the interim order.

3.2500 Compensation agreements; medical bill payments. If the employer or insurance carrier determines that indemnity compensation is due, it shall enter into the appropriate compensation agreement, in accordance with Rules 9.0000 and/or 10.0000. If it determines that medical benefits are due, it shall promptly review, audit and pay the associated medical bills in accordance with Vermont Workers' Compensation Rule 40.000.

3.2510 Direct billing for prescription medications and/or medical supplies. Where medically necessary treatment for a compensable injury includes prescription medications and/or medical supplies that the injured worker is expected to require for four months or longer, the employer or insurance carrier shall establish direct billing and payment procedures with an appropriate mail order or local vendor. 21. V.S.A. § 640(d). The following rules shall apply to such procedures:

3.2511 The employer or insurance carrier shall provide written notification to the injured worker as to the name, physical and/or email address and telephone number of the vendor(s) it has selected to provide prescribed medications and/or medical supplies.

3.2512 The employer or insurance carrier shall promptly provide both the injured worker and the selected vendor(s) with a list of all approved medications and/or medical supplies covered by the direct billing and payment arrangement, including any maximum limit on the number of authorized refills or units to be supplied.

3.2513 The injured worker shall promptly notify the employer or insurance carrier of any changes to his or her prescribed treatment regimen, including any extension of the maximum limit and/or number of authorized refills for previously approved medications and/or medical supplies. Upon receipt, the employer or insurance carrier shall promptly provide both the injured worker and the selected vendor(s) with an updated list of approved medications and/or medical supplies incorporating such changes.

3.2514 In the event that the employer or insurance carrier elects to change vendor(s), it shall promptly provide written notification to the injured worker in accordance with Rule 3.2511 above, and shall promptly provide the new vendor(s) with a list of approved medications and/or medical supplies in accordance with Rule 3.2512 above.

3.2515 An injured worker who is dissatisfied with a vendor's ability to provide prescription medications and/or medical supplies promptly, accurately and efficiently shall first notify the employer or insurance carrier of his or her concerns. Thereafter, if such concerns are not adequately addressed and for good cause shown, the Commissioner may order that the employer or insurance carrier select a new vendor to service the injured worker.

3.2600 Weekly benefit payments. The following rules shall apply to the payment of benefits, whether made pursuant to agreement or as ordered by the Commissioner:

3.2610 Method of Payment. Weekly benefits shall be paid by check issued to the injured worker. Alternatively, with the injured worker's written consent weekly benefits may be paid by either of the following methods:

3.2611 By electronic funds transfer or direct deposit to a checking, savings or other deposit account maintained by or for the injured worker and which he or she designates in writing for that purpose, 21 V.S.A. § 618(f); or

3.2612 By credit to a an electronic prepaid benefit card account, in a manner consistent with the requirements of 21 V.S.A. § 342(c)(2).

3.2612.1 The issuer of such a card shall comply with all of the requirements, and provide the injured worker with all of the consumer protections, that apply to a payroll card account under the rules implementing the Electronic Fund Transfer Act, 15 U.S.C. § 1693 et seq., as may be amended.

3.2612.2 An electronic prepaid benefit card account may be used only for weekly payment of temporary disability benefits. It shall not be used for payment of a lump sum award or for permanent disability benefits. 21 V.S.A. § 618(f).

3.2620 Weekly payment day. When weekly benefits have been awarded or are not in dispute as described in 21 V.S.A. § 650(e), the employer or insurance carrier shall establish the weekday on which payment shall be mailed, deposited or credited, and shall notify the injured worker and Commissioner of that day. The employer or insurance carrier shall ensure that each weekly payment is mailed or deposited on or before the day established. 21 V.S.A. § 650(f).

3.2621 In the event that the employer or insurance carrier elects to change the originally established weekday on which payment is to be mailed or deposited, it shall give at least seven days' prior notice of the change to the injured worker, his or her attorney if represented, and the Commissioner.

3.2622 If the employer or insurance carrier fails to mail or deposit a weekly benefit payment on the day established (or if no day has yet been established, then on the injured worker's regular pay day), it shall pay to the injured worker a late fee of $ 10.00 or five percent of the benefit amount, whichever is greater, for each weekly payment that is made after the established day. In the event of a dispute, proof of payment shall be established by affidavit. 21 V.S.A. § 650(f).

3.2630 Late payment; interest. If an employer or insurance carrier fails to make payment to an injured worker in accordance with an executed compensation agreement, interim or final order of the Commissioner or arbitration award within 15 days after the payment is due, it shall also pay interest at the statutory rate on any such overdue amount(s). 21 V.S.A. § 675(c). For the purposes of this Rule, payment shall be deemed due (a) upon entering into an agreement for compensation in accordance with Rules 9.1400, 10.1800 or 10.1910; (b) upon filing a partially executed compensation agreement with the Department in accordance with Rules 9.1430, 10.1830 or 10.1913; or (c) upon issuance of an interim or final order, whichever occurs first.

3.2640 Late payment; monetary penalty. If weekly compensation benefits or weekly accrued benefits (including benefits paid pursuant to an interim or final order of the Commissioner or an arbitration award) are not timely paid within 21 days after becoming due and payable pursuant to 21 V.S.A. § 650(e), the employer or insurance carrier shall be assessed a penalty of ten percent of the overdue amounts(s), which shall be added to the amount due and paid to the injured worker. Interest shall also be assessed and, if justified, late fees under Rule 3.2622 and/or administrative penalties under 21 V.S.A. § 688.

3.2650 Late payment; administrative penalty. In appropriate circumstances, an employer or insurance carrier who fails to make timely payment of any benefit due to or on behalf of an injured worker may be subject to administrative penalties in accordance with 21 V.S.A. § 688 and Vermont Workers' Compensation Rule 45.

3.2700 Duty to disclose discoverable information. The parties to a pending workers' compensation claim have an ongoing, affirmative duty to promptly disclose the following information to all other parties, and if specifically required by these Rules, to the Commissioner as well:

3.2710 All relevant medical information obtained in accordance with Rule 3.2100;

3.2720 The identity of any expert witness that the disclosing party may use to support its claims or defenses, as well as any written report(s) prepared and signed by such witness, provided that:

3.2721 Disclosure shall not be required as to draft reports, regardless of the form in which they are recorded; and

3.2722 Disclosure shall not be required as to communications with a party's attorney, except to the extent that the communications (a) relate to compensation for the expert's study or testimony; (b) identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or (c) identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed.

3.2730 Video and/or audio recordings of independent medical examinations, but only to the extent and in the manner required by Rules 6.1420 and 6.1500;

3.2740 Surveillance photographs, video and/or written reports, to the extent that the disclosing party's position on a disputed issue relies, in whole or in part, on information gleaned therefrom;

3.2750 Any other records, documents and recorded statements, and/or the identity of any other individual likely to have discoverable information - as well as the subject of that information - that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.

3.2800 Written communication to injured worker; appeal rights. Any written communication from an employer or insurance carrier to an injured worker that (a) purports to affect his or her entitlement to benefits, or (b) provides notice of an independent medical examination scheduled in accordance with Rule 6.0000, shall include the following statement: "Please contact the Department of Labor's Workers' Compensation Division for further information regarding your right to appeal this action, and the process and procedure for doing so."21 V.S.A. § 602(c).

3.2900 Communication with employer or insurance carrier. Upon receipt of a First Report of Injury involving lost time from work, the employer or insurance carrier shall provide the injured worker and the Commissioner with written notice of the name and mailing address of the workers' compensation claims adjuster assigned to the claim. This information shall be updated whenever a change occurs.

3.3000 Determining timeliness; electronic delivery.

The provisions of Vermont Rule of Civil Procedure 6(a) shall apply to the computation of any time period required or allowed by these Rules. In addition, except for attachments exceeding 20 pages in length, which must be delivered in paper or disc format, any communication required or allowed by these Rules may be sent electronically (a) to the Department; (b) to the attorney for a represented party; and/or (c) to an unrepresented party provided he or she is able to receive electronic communication.

3.3100 Electronically transmitted forms. Any form, report or communication required by these Rules to be filed with the Commissioner may be signed and transmitted electronically.

Rule 4.0000. Choice of Physician; Travel and Meals; Wages While Undergoing Medical Treatment or Examination.

4.1100 Choice of physician; notice of intent to change. An employer or insurance carrier may designate a health care facility and/or provider, as those terms are defined in 18 V.S.A. §§ 9432(8) and (9), to initially treat an injured worker immediately following a claimed work-related injury. 21 V.S.A. § 640(b).

4.1110 At or before initial treatment, the employer, insurance carrier or designated health care facility or provider shall provide the injured worker with a Notice of Intent to Change Health Care Provider (Form 8). At any time after the initial treatment, the injured worker may select another health care facility and/or provider by filing the completed Notice with the employer or insurance carrier. The Notice shall include the injured worker's reason(s) for dissatisfaction with the initially designated health care facility or provider and the name and address of the health care facility or provider with whom he or she intends to treat. 21 V.S.A. § 640(b).

4.1120 The Commissioner may permit an employer or insurance carrier to refuse to reimburse a health care facility or provider selected by the injured worker upon a showing that he or she failed to provide the notice required by Rule 4.1110, unless the failure was due to excusable neglect or inadvertence. 21 V.S.A. § 640(b).

4.1200 Independent medical examinations. If the injured worker selects a new health care provider in accordance with this Rule, the employer or insurance carrier shall have the right to require other medical examinations as provided for in 21 V.S.A. § 640(c) and Rule 6.0000.

4.1300 Travel and meal reimbursement. When an injured worker is required to travel for medical treatment or examination (including independent medical examinations under Rule 6.0000), and/or for vocational rehabilitation-related counseling or assessment, the employer or insurance carrier shall provide reimbursement as follows:

4.1310 Mileage reimbursement at the current U.S. General Services Administration rate for authorized use of a privately owned vehicle;.

4.1320 Meal reimbursement for breakfast, lunch and/or dinner, when those meals must be taken during travel, at the current rate in effect for classified Vermont state employees; and/or

4.1330 Reimbursement for overnight accommodations, and/or for air, rail, bus, taxi, ambulance, rental car or other transportation expense, when reasonable in amount and required as a consequence of an injured worker's medical condition.

4.1340 The injured worker shall be responsible for providing reasonable documentation for any reimbursement request submitted to the employer or insurance carrier. Upon receipt of a properly documented request, the employer or insurance carrier shall make payment within 21 days.

4.1400 Wages while undergoing medical treatment or examination. An employer shall not withhold any wages from an injured worker, or otherwise require him or her to use accumulated leave time, when absence from work is required in order to attend a medical appointment necessitated by a compensable work injury. 21 V.S.A. § 640(c). This rule shall apply to an injured worker's current employer, notwithstanding that the injury occurred while he or she was employed by a prior employer. The injured worker and/or insurance carrier shall make every reasonable effort to schedule such appointments at times that do not conflict with the injured worker's regular work schedule. Disputes as to wages that allegedly were improperly withheld under this Rule shall be referred to the Department's Wage and Hour Division for resolution in accordance with its procedures.

Rule 5.0000. Resolving Medical Disputes.

5.1100 Previously promulgated rules relating to the conduct of independent medical examinations under 21 V.S.A. § 667 shall be held in abeyance until such time as the pool of examiners contemplated by § 667(b) has been established.

Rule 6.0000. Independent Medical Examinations.

6.1100 Scheduling; location. Independent medical examinations requested by the employer or insurance carrier pursuant to 21 V.S.A. § 655 shall be scheduled at reasonable intervals and with due regard for the injured worker's schedule and ability to travel. The examination shall be conducted at a location that is within a two-hour driving radius of the injured worker's residence; however, in the Commissioner's discretion an examination outside the two-hour driving radius may be permitted if the injured worker consents, and/or if his or her condition warrants the specialized expertise of a more remotely located provider.

6.1200 Notice. Except in exigent circumstances, written notice of a scheduled independent medical examination shall be provided to the injured worker (and if represented, to his or her attorney as well) at least seven days prior to the scheduled examination date. The notice shall identify the reasons for the examination and the issues to be addressed by the examining medical provider. In addition, the notice shall include information as to the injured worker's and the examining medical provider's respective rights and responsibilities regarding video and/or audio recordings of the examination in accordance with Rules 6.1400 and 6.1500.

6.1300 Notice of intent not to attend. An injured worker shall notify the employer or insurance carrier at least three business days prior to an examination scheduled pursuant to this Rule if he or she plans not to attend, and the reasons therefor. Depending on the circumstances, if the injured worker fails without good cause to provide such notice, and/or fails to establish good cause for his or her inability to attend, the Commissioner may assess all or a part of the cost of the examination against him or her, and/or may suspend payment of compensation benefits to which he or she otherwise might be entitled.

6.1400 Injured worker's right to record examination. At his or her own expense, an injured worker may make a video or audio recording of any examination requested pursuant to this Rule, 21 V.S.A. § 655, in which case the following rules shall apply:

6.1410 At least three business days prior to the scheduled examination date, the injured worker shall give notice of his or her intention to make a video or audio recording of the examination to the employer or insurance carrier, who shall in turn notify the examining medical provider.

6.1420 To the extent that the injured worker's position on a disputed issue relies, in whole or in part, on information gleaned from a video or audio recording of the examination, he or she shall promptly provide an unedited and un-retouched copy to the employer or insurance adjuster.

6.1430 An injured worker shall not be penalized in any way for exercising his or her right to make a video or audio recording of an examination in compliance with this Rule.

6.1440 As an alternative to making a video or audio recording of an examination requested pursuant to this Rule, an injured worker may, at his or her own expense, designate a licensed health care provider to be present at the examination. 21 V.S.A. § 655.

6.1500 Examining medical provider's right to record examination. Absent the injured worker's prior written consent, an examining medical provider shall have no right to make a video recording of any examination conducted pursuant to this Rule. However, provided notice is given at the start of the examination, he or she may make an audio recording of the examination, with or without the injured worker's consent. Upon request, the employer or insurance carrier shall, at its own expense, provide the injured worker with an unedited copy of any such audio recording in a timely manner, in accordance with Rule 3.2730. 21 V.S.A. § 655.

6.1600 Neutral videographer. Nothing in this Rule shall preclude the parties from agreeing to the selection and payment of a neutral videographer.

6.1700 Recording of examination; admissibility. A video or audio recording of an examination conducted pursuant to this Rule shall be admissible in the context of either informal and/or formal dispute resolution procedures at the Commissioner's discretion, and only upon a showing that (a) it is unedited and unretouched; and (b) it has been provided to the opposing party in a timely manner.

6.1800 Duty to disclose examination report. Upon receipt of the examining medical provider's office notes and/or final report relating to an examination conducted pursuant to this Rule, the employer or insurance carrier shall promptly provide a copy to the injured worker, or if represented, to his or her attorney, in accordance with Rule 3.2720.

6.1900 Refusal to attend; obstruction of examination. Notwithstanding Rule 6.1300, if an injured worker refuses without good cause to submit him- or herself to an examination scheduled pursuant to this Rule, or if he or she in any way obstructs the examination, his or her right to take or prosecute any proceeding under the Workers' Compensation Act shall be suspended until such refusal or obstruction ceases, and compensation shall not be payable for the period during which such refusal or obstruction continues. 21 V.S.A. § 655.

Rule 7.0000. Pre-Authorization of Proposed Medical Treatment.

7.1100 Request for preauthorization. An injured worker or treating medical provider may submit a request to an employer or insurance carrier that a proposed medical treatment or diagnostic procedure be preauthorized. 21 V.S.A. § 640b. The request must be in writing, and must be accompanied by written documentation supporting both the medical necessity of the proposed treatment or procedure and its causal relationship to the injured worker's compensable injury or condition. The request also must clearly delineate the extent of any treatment or diagnostic procedure proposed, in terms of amount, duration and frequency.

7.1200 Response to request. The employer or insurance carrier shall have 14 days following the receipt of both the request for preauthorization and the supporting medical documentation within which to respond. 21 V.S.A. § 640b(a). It may do so in one of three ways:

7.1210 By authorizing the proposed treatment or diagnostic procedure. 21 V.S.A. § 640b(a)(1). Once authorized, the employer or insurance carrier shall be obligated to pay all appropriately billed charges related to the proposed treatment or diagnostic procedure in accordance with Rule 40.000.

7.1220 By denying the proposed treatment or diagnostic procedure on one or more of the following grounds:

7.1221 That the preauthorization request was not accompanied by the required supporting documentation;

7.1222 That compensability of the injury or condition for which the treatment or diagnostic procedure is sought is disputed, on either legal or factual grounds. This defense shall not be available to an employer or insurance carrier against whom an interim order to pay benefits has been issued. 21 V.S.A. § 640b(b)(2);

7.1223 That the proposed treatment or diagnostic procedure (a) is not medically necessary and/or (b) is not causally related to the injured worker's compensable injury or condition. 21 V.S.A. § 640b(b)(3).

7.1230 By ordering a medical record review and/or scheduling an independent medical examination in accordance with Rule 6.0000 for the purpose of determining whether the proposed treatment or diagnostic procedure is medically necessary and causally related to the injured worker's compensable injury or condition. 21 V.S.A. § 640b(b)(4).

7.1300 Time period for responding after ordering medical record review and/or scheduling independent medical examination. In claims in which the employer or insurance carrier has responded to a preauthorization request by ordering a medical record review and/or scheduling an independent medical examination under Rule 7.1230, it shall have 45 days following the receipt of both the request for preauthorization and the supporting medical documentation within which to either approve or deny it. In the Commissioner's sole discretion, an extension of up to ten days may be granted, but only upon a showing of extremely unusual and/or emergency circumstances. 21 V.S.A. § 640b(b)(4). Alternatively, if both parties agree in writing an extension of ten or more days may be granted for any reason, provided the time period within which to respond is clearly and specifically stated.

7.1400 Failure to respond; request for interim order. If the employer or insurance carrier fails to respond to a preauthorization request within the time periods specified in Rules 7.1200 and/or 7.1300 above, either the injured worker or the treating medical provider may request that the Commissioner issue an interim order authorizing the treatment or diagnostic procedure by operation of law. 21 V.S.A. § 640b(c).

7.1410 The Commissioner shall notify the employer or insurance carrier of an injured worker's or treating medical provider's request for interim order upon receipt. The employer or insurance carrier shall have five days within which to respond, following which the Commissioner shall have five days within which to rule on the request.

7.1420 Unless compensability of the injury or condition for which the treatment or diagnostic procedure is sought has been denied or disputed, and provided the initial request for preauthorization conforms to the requirements of Rule 7.1100, absent extraordinary circumstances issuance of an interim order shall be presumed appropriate in all claims in which the employer or insurance carrier has failed to respond within the required time period.

7.1430 In claims in which compensability of the injury or condition for which the treatment or diagnostic procedure is sought has been denied or disputed, the Commissioner shall consider a request for interim order according to the same criteria applied when reviewing a denial under Rules 3.2200 and 11.0000. 21 V.S.A. § 640b(d).

7.1500 Preauthorization denied; interim order. If the employer or insurance carrier denies a preauthorization request, either initially under Rule 7.1220 or following a medical record review and/or independent medical examination under Rules 7.1230 and 7.1300, the Commissioner may, either on his or her own initiative or at the injured worker's request, consider whether an interim order authorizing the proposed treatment or diagnostic procedure is appropriate. 21 V.S.A. § 640b(c). The burden of proof in such circumstances shall be on the injured worker to establish that the proposed medical treatment or diagnostic procedure is both medically necessary and causally related to the compensable injury or condition for which it is sought.

7.1600. Required notices; form and content. When responding to a preauthorization request, the employer or insurance carrier shall provide written notice as follows:

7.1610 If it is authorizing the proposed treatment or diagnostic procedure under Rule 7.1210, to the injured worker, the treating medical provider and the Department, 21 V.S.A. § 640b(a)(1);

7.1620 If it is denying the proposed treatment or diagnostic procedure under Rule 7.1220, to the injured worker, the treating medical provider and the Department, 21 V.S.A. § 640b(a)(2)(B), by way of a Denial of Workers' Compensation Benefits (Form 2), accompanied by (a) the medical documentation provided in support of the initial preauthorization request; and (b) the medical documentation supporting denial;

7.1630 If it is ordering a medical record review and/or scheduling an independent medical examination under Rule 7.1230, to the injured worker, the treating medical provider and the Department, 21 V.S.A. § 640b(a)(3). The notice shall identify the medical provider with whom the record review and/or independent medical examination has been scheduled, and if the latter, the date, time and location at which the examination will occur.

7.1700 Requests not covered. The following requests are not considered preauthorization requests, and therefore are not covered by this Rule, but may instead be pursued in accordance with the provisions of 21 V.S.A. § 640a:

7.1710 A demand that the charges for a treatment or diagnostic procedure already undertaken, including prescription medications already purchased, be paid;

7.1720 A request that the charges for medical supplies, including special clothing, footwear or equipment but excluding prescription medications proposed as a course of treatment, be paid or reimbursed.

7.1800 Expired preauthorization. Once approved by the employer or insurance carrier or ordered by the Department, the authorization or order for the proposed medical treatment or diagnostic procedure shall be deemed valid (a) for nine months; or (b) until a change in the injured worker's medical condition warrants reevaluation of the request, whichever occurs first. If the injured worker fails to undergo the treatment or procedure within this time period, a new request must be submitted in accordance with Rule 7.1100.

Rule 8.0000. Calculating Average Weekly Wage and Compensation Rate.

8.1100 Gross wages; amounts included. In order to calculate an injured worker's average weekly wage and compensation rate, the employer or insurance carrier shall first file a Certificate of Dependency and Concurrent Employment (Form 10) and a Wage Statement (Form 25), as required by Rule 3.2000. The Wage Statement shall include the gross wages paid and/or due the injured worker for each of the 26 weeks preceding the injury, but not including the week of the injury. 21 V.S.A. § 650(a). In addition, for each of the 26 weeks preceding the injury, the Wage Statement shall also include:

8.1110 Any overtime earnings and/or tips paid, due or received;

8.1120 Any bonuses paid, due or received; and

8.1130 The fair market value of any room, board, food, electricity, telephone, uniforms or similar benefits provided the injured worker; provided, however, that if the injured worker continues to receive any of these benefits during the period of his or her temporary disability, the value of such benefit shall not be included in his or her temporary disability compensation rate.

8.1200 Total gross wages; weeks excluded. In determining the injured worker's total gross wages, the following weeks shall not be included:

8.1210 Any week(s) during which the injured worker (a) worked for fewer than one-half of his or her normally scheduled hours, including zero hours, and (b) was paid for fewer than one half of his or her normally scheduled hours on account of unpaid time off due to sickness, vacation, holiday or personal leave, or because the employer either suspended operations and/or did not schedule the employee accordingly; and

8.1220 [REPEALED]

8.1230 Any weeks preceding a raise, promotion and/or transfer as a result of which the injured worker was paid and/or due larger regular wages. 21 V.S.A. § 650(a).

8.1300 Average weekly wage calculation. An injured worker's average weekly wage shall be determined by dividing the total gross wages, calculated in accordance with Rule 8.1100 above, by the number of weeks qualifying for inclusion in accordance with Rule 8.1200 above. However:

8.1310 If the injured worker has been employed for fewer than four weeks at the time of his or her injury, or if fewer than four weeks of includable wages remain after the application of Rules 8.1210 and/or 8.1220 above, then his or her average weekly wage shall be based instead on the gross wages of a comparable employee working in a similar capacity under like conditions for the 26 weeks prior to the injury. If the wages of a comparable employee cannot be determined, then the injured worker's average weekly wage shall be based instead on his or her agreement with the employer as to both expected hours per week and contract rate of pay. 21 V.S.A. § 650(a).

8.1400 [REPEALED]

8.1500 Concurrent employment. If an injured worker is regularly employed by two or more insured employers at the time of his or her injury (or, in claims in which the disability does not occur concurrently with the injury, at the time of his or her disability), a separate wage statement shall be obtained from each employer, and the injured worker's compensation rate shall be based on the combined average weekly wage from all employers. 21 V.S.A. § 650(a).

8.1600 Compensation rate; temporary total disability. An injured worker's weekly compensation rate for temporary total disability shall be two-thirds (0.667) of his or her average weekly wage, calculated in accordance with 21 V.S.A. § 650 and this Rule. 21 V.S.A. § 642. In addition, the following rules shall apply:

8.1610 The compensation rate shall not be more than the maximum nor less than the minimum weekly compensation rate as set annually in accordance with 21 V.S.A. § 650(d) and Rule 8.2000. 21 V.S.A. § 642.

8.1620 The compensation rate shall be adjusted annually beginning on the first July 1 [ st ] following the receipt of 26 weeks of indemnity benefits, in accordance with 21 V.S.A. § 650(d) and Rule 8.2000, provided, however, that it does not exceed the maximum weekly compensation rate.

8.1630 During the period of his or her temporary total disability, the injured worker also shall receive $ 20.00 per week for each dependent child, as defined in 21 V.S.A. § 601(2), who is under the age of 21 years, provided that no other injured worker is receiving the same benefits on behalf of the same dependent child or children. 21 V.S.A. § 642. The allowance shall be adjusted weekly to reflect the number of dependent children during the week of payment. [The $ 20.00 benefit set forth in 21 V.S.A. 642 is effective through June 30, 2028, after which it reverts to $ 10.00 unless the Legislature acts to extend it. Accordingly, this Rule 8.1630 is effective during all time periods when the $ 20.00 statutory provision is in effect, including during any extension of the $ 20.00 benefit beyond June 30, 2028. If the $ 20.00 benefit is not extended, then the amount set forth in this rule shall revert to $ 10.00 on July 1, 2028.]

8.1640 Notwithstanding the provisions of Rule 8.1610, in no event shall an injured worker's total weekly wage replacement benefits, including any payments for a dependent child, exceed 90 percent of his or her average weekly wage prior to applying any applicable cost of living adjustment. 21 V.S.A. §§ 601(19), 642.

8.1650 When temporary disability, either total or partial, does not occur in a continuous period but occurs in separate intervals each resulting from the original injury, the injured worker's weekly compensation rate shall be adjusted for each such recurrence as follows, 21 V.S.A. § 650(c):

8.1651 If the average weekly wage has increased since a prior period of disability, the compensation rate for the current period of disability shall be adjusted upward accordingly;

8.1652 If as a consequence of the injury the average weekly wage has decreased since a prior period of disability, the compensation rate for the prior period of disability shall remain in effect;

8.1653 If the average weekly wage has decreased since a prior period of disability for reasons unrelated to the injury, the compensation rate for the current period of disability shall be adjusted downward accordingly.

8.1654 If more than three months have elapsed between separate intervals of disability, the employer or insurance carrier shall submit a new Wage Statement (Form 25) and Agreement for Temporary Compensation (Form 32) documenting weekly compensation payments in accordance with Rules 8.1651 through 8.1653 above.

8.1660 If more than three months have elapsed between the date of injury and an initial period of temporary disability (whether total or partial) causally related thereto, two Wage Statements (Form 25) shall be submitted - one covering the 26-week period prior to the date of injury and one covering the 26-week period prior to the date of disability. Upon comparing them, the employer or insurance carrier shall calculate the injured worker's weekly compensation rate as follows:

8.1661 If the average weekly wage has increased since the date of injury, the compensation rate shall be adjusted upward accordingly;

8.1662 If as a consequence of the injury the average weekly wage has decreased since the date of injury, the compensation rate shall be based on the average weekly wage as of the date of injury;

8.1663 If the average weekly wage has decreased since the date of injury for reasons unrelated thereto, the compensation rate shall be adjusted downward accordingly.

8.1700 Compensation rate; temporary partial disability. An injured worker's weekly compensation rate for temporary partial disability shall be the greater of (a) the difference between the amount the injured worker would be eligible to receive under 21 V.S.A. § 642, including any applicable cost of living adjustment or dependency benefits, and the injured worker's current weekly wage; and (b) two-thirds (0.667) of the difference between the injured worker's pre-injury average weekly wage, calculated in accordance with 21 V.S.A. § 650 and this Rule, and his or her current weekly wage. 21. V.S.A. § 646(a). In addition, the following rules shall apply:

8.1710 The compensation rate shall be adjusted annually beginning on the first July 1st following the receipt of 26 weeks of indemnity benefits, in accordance with 21 V.S.A. § 650(d) and Rule 8.2000. 21 V.S.A. § 646(a).

8.1720 During the period of temporary partial disability, the injured worker also shall receive $ 20.00 per week for each dependent child, as defined in 21 V.S.A. § 601(2), who is under the age of 21 years, provided that no other injured worker is receiving the same benefits on behalf of the same dependent child or children. The allowance shall be adjusted weekly to reflect the number of dependent children during the week of payment. 21 V.S.A. § 646(b). [The dependency benefit set forth in 21 V.S.A.§ 646(b) is effective through June 30, 2028, after which it is repealed unless the Legislature acts to extend it. Accordingly, this Rule 8.1720 is effective during all time periods when the statutory dependency benefit for temporary partial disability benefits is in effect, including during any extension of the dependency benefit beyond June 30, 2028. If the dependency benefit is not extended, then there will be no dependency benefit for claimants receiving temporary partial disability benefits beginning July 1, 2028.]

8.1800 Compensation rate; permanent partial and permanent total disability. An injured worker's weekly compensation rate for permanent partial and/or permanent total disability shall be two-thirds (0.667) of his or her average weekly wage, calculated in accordance with 21 V.S.A. § 650 and this Rule. 21 V.S.A. § 648(a). In addition, the following rules shall apply:

8.1810 The compensation rate shall not be more than the maximum nor less than the minimum weekly compensation rate as set annually in accordance with 21 V.S.A. § 650(d) and Rule 8.2000. 21 V.S.A. § 648(a).

8.1820 The compensation rate shall be adjusted annually on July 1 [ st, ] in accordance with 21 V.S.A. § 650(d) and Rule 8.2000, provided that it does not exceed the maximum weekly compensation rate. The compensation shall be adjusted for each July 1 following the date of injury regardless of whether indemnity benefits were paid on each intervening July 1 [ st ] 21 V.S.A. § 650(d)(3).

8.1830 Notwithstanding Rule 8.1810 above, if the injured worker's average weekly wage is lower than the minimum weekly compensation, the weekly compensation rate shall be the full amount of his or her average weekly wage. 21 V.S.A. § 601(19).

8.1900 Compensation rate; death benefits. The weekly compensation rate at which death benefits are paid shall be as required by 21 V.S.A. §§ 632 through 636. In addition, the following rules shall apply:

8.1910 The compensation rate shall not be more than the maximum nor less than the minimum compensation rate as set annually in accordance with 21 V.S.A. § 650(d) and Rule 8.2000.

8.1920 The compensation rate shall be adjusted annually on July 1 [ st, ] in accordance with 21 V.S.A. § 650(d) and Rule 8.2000, provided that it does not exceed the maximum weekly compensation rate.

8.2000 Calculating cost of living adjustments and maximum and minimum compensation rates. On or before July 1 [ st ] annually, the Commissioner shall publish the annual change in compensation rate and new minimum and maximum weekly compensation rates for the coming fiscal year. 21 V.S.A. § 650(d).

8.2010 The employer or insurance carrier shall file a Notice of Change in Compensation Rate (Form 28) with the Commissioner by July 1 [ st ] annually as to any injured worker or dependent who is receiving indemnity benefits as of that date and who is entitled to an adjustment of compensation in accordance with this Rule. Concurrent with the filing, the employer or insurance carrier shall mail a copy of the Notice of Change in Compensation Rate to the injured worker or if appropriate, to his or her dependent(s).

8.2020 The Commissioner shall maintain a list of current and historical changes in annual compensation rates on the Department's website.

Rule 9.0000. Temporary Total and Temporary Partial Disability Benefits.

9.1100 Temporary total disability benefits; when payable. If as a result of a compensable injury an injured worker is temporarily disabled from working in any capacity, he or she shall be entitled to temporary total disability benefits as follows, 21 V.S.A. § 642:

9.1110 Waiting period. Temporary total disability benefits are not owed unless and until the injured worker has been totally disabled from working for more than three calendar days, which need not be consecutive. The date of injury shall count as the first day of total disability, unless the injured worker was paid in full for that date. If the injured worker continues to be disabled for seven or more consecutive calendar days after the third day, then he or she shall be entitled to temporary total disability benefits retroactive to the first day of disability. 21 V.S.A. § 642.

9.1120 Average weekly wage and compensation rate; payment for partial weeks. Temporary total disability benefits shall be calculated based on the injured worker's average weekly wage and compensation rate as determined in accordance with Rule 8.0000. Where the injured worker is entitled to temporary total disability compensation for only a portion of a week, benefits shall be paid at a daily rate based on the number of days per week he or she regularly worked during the 26 weeks prior to the injury.

9.1200 Temporary partial disability benefits; when payable. If as a result of a compensable injury an injured worker is temporarily disabled from working in a full time and/or full duty capacity, he or she shall be entitled to temporary partial disability benefits as follows, 21 V.S.A. § 646:

9.1210 Waiting period. Temporary partial disability benefits are not owed unless and until the injured worker has been disabled from working, either totally or partially, for at least eight calendar days, which need not be consecutive. 21 V.S.A. § 646. The date of injury shall count as the first day of disability, unless the injured worker was paid in full for that date.

9.1220 Compensation rate. Temporary partial disability benefits shall be calculated in accordance with Rule 8.1700.

9.1300 Evidence required. An injured worker's claim for temporary total and/or temporary partial disability benefits must be supported by credible medical evidence establishing both the extent of his or her disability and its causal relationship to the compensable injury.

9.1400 Agreement for Temporary Compensation. In all cases in which temporary total and/or temporary partial disability benefits are owed, the employer or insurance carrier shall enter into an Agreement for Temporary Compensation (Form 32) with the injured worker, and shall begin paying benefits immediately. Once executed by the parties, the completed Agreement shall be filed with the Commissioner for review and approval.

9.1410 Any Agreement for Temporary Compensation submitted for the Commissioner's review must be accompanied by the necessary supporting documentation, including but not limited to a Wage Statement (Form 25) and Certificate of Dependency and Concurrent Employment (Form 10). The Commissioner shall not approve an Agreement that is inaccurately or insufficiently completed, or that lacks the necessary supporting documentation.

9.1420 The Commissioner shall send a copy of the approved Agreement for Temporary Compensation to both the injured worker and the employer or insurance carrier. Once approved, a duly executed Agreement for Temporary Compensation constitutes a binding and enforceable contract. Absent evidence of fraud or material mistake of fact, the parties will be deemed to have waived their right to contest the material portions thereof.

9.1430 An injured worker's failure or refusal to execute an Agreement for Temporary Compensation shall not disqualify him or her from receiving benefits otherwise determined to be owed. If despite at least two written requests the injured worker fails or refuses to execute an Agreement, the employer or insurance carrier shall promptly notify the Commissioner in writing of this fact, by filing (a) the partially executed Agreement (signed by the employer or insurance carrier); (b) the necessary supporting documentation; and (c) copies of its written requests to the injured worker. Thereafter, the employer or insurance carrier shall pay the amount the Department deems correct in accordance with the partially executed Agreement. However, the Department's review shall not constitute approval of the Agreement, and the injured worker's acceptance of any payments made thereunder shall not, by itself, constitute a waiver of his or her right to contest its material terms.

9.1500 Discontinuing benefits. The employer or insurance carrier must fully comply with the requirements of Rule 12.0000 in order to discontinue an injured worker's temporary disability benefits. Absent extraordinary circumstances, if it fails to do so it shall remain responsible for ongoing benefits until such time as full compliance occurs.

9.1600 Extended temporary total disability benefit claims. The employer or insurance carrier shall review every claim for temporary total disability benefits that continues for more than 104 weeks. Within 30 days thereafter, it shall file with the Commissioner and the injured worker medical evidence documenting (a) the injured worker's current medical status; (b) the currently expected duration of his or her disability; and (c) the current likelihood that he or she will be capable of returning to work and if so, when. If the current medical evidence establishes that the injured worker has reached an end medical result, the employer or insurance carrier shall concurrently file an Employer's Notice of Intention to Discontinue Payment (Form 27) in accordance with Rule 12.1200. 21 V.S.A. § 642a.

9.1700 Work Search Requirement. An employer may require an injured worker who is receiving temporary disability benefits pursuant to 21 V.S.A. § 646 to engage in a good faith work search if:

(a) the injured worker is medically released to return to work, with or without restrictions;

(b) the employer has provided the injured worker with written notice of the work release and any applicable restrictions; and

(c) the employer cannot offer work that the injured worker is medically released to do. 21 V.S.A. § 643d(a). The injured worker shall not be required to contact more than three employers per week as part of the good faith work search. 21 V.S.A. § 643d(c).

9.1710 Exceptions. An injured worker shall not be required to engage in a work search if the worker (a) is already employed; or (b) has been referred for or is scheduled to undergo a surgical procedure. 21 V.S.A. § 643d(b).

Rule 10.0000. Permanent Partial Disability, Permanent Total Disability and Death Benefits.

[To calculate the permanent partial disability compensation applicable to injuries occurring before April 1, 1995, please refer to prior Rules 11.1000 through 11.1530, posted on the Department's website.]

10.1100 Permanency benefits; entitlement. If as a result of a compensable injury an injured worker suffers a permanent impairment or is deemed to be permanently and totally disabled, he or she shall be entitled to permanent partial or permanent total disability benefits. 21 V.S.A. §§ 644, 645, 648.

10.1200 Payment for permanent partial impairment evaluation. Within 45 days after receiving notice or knowledge that the injured worker has reached an end medical result, the employer or insurance carrier shall take action necessary to determine whether he or she has suffered a permanent impairment as a result of the compensable injury.

10.1210 The employer or insurance carrier shall promptly notify the injured worker in writing of his or her right to seek a permanent impairment rating, either from the treating physician or from another physician of his or her choosing. The employer or insurance carrier shall be responsible for paying for at least one such permanent impairment rating, notwithstanding its decision to obtain a rating from another medical examiner as well if it so chooses. At the Commissioner's discretion, the employer or insurance carrier may be ordered to pay for additional permanent impairment evaluations.

10.1220 Consistent with Rule 3.2720, a party who receives a final permanent impairment rating report shall promptly disclose it to all other parties.

10.1300 Rating permanent partial impairment. Except for mental and behavioral disorders, the existence and degree of an injured worker's permanent partial impairment shall be determined in accordance with the whole person determinations as set out in the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th edition (AMA Guides). 21 V.S.A. § 648(b). In doing so, the Commissioner shall have discretion to consider competent expert opinions concerning the existence of an impairment notwithstanding that such opinions are based on diagnostic criteria different from those specified in the AMA Guides.

10.1310 The existence and degree of permanent partial impairment referable to mental and behavioral disorders shall be determined in accordance with the rating methodology described in Chapter 14 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 6 [ th ] edition.

10.1320 Compensation for other injuries or conditions for which the AMA Guides does not provide numerical impairment ratings shall be as determined by the Commissioner and in proportion to the compensation paid for analogous injuries for which numerical impairment ratings are provided.

10.1400 Calculating compensation for permanent partial impairment not referable to spine. Except with respect to the spine, the permanent partial disability compensation due an injured worker as a consequence of permanent impairment to a body part, system or function shall be based on the percentage impairment of the whole person multiplied by 405 weeks. 21 V.S.A. § 648.

10.1410 When a compensable injury results in permanent impairment to more than one body part, system or function, not including the spine, the whole person impairment shall be determined in accordance with the AMA Guides' combined values chart, and the number of weeks for which compensation must be paid shall be based on the resulting percentage impairment of the whole person multiplied by 405 weeks.

10.1500 Calculating compensation for permanent partial impairment referable to spine. The permanent partial disability compensation due an injured worker as a consequence of permanent impairment to the back or spine shall be based on the percentage impairment of the whole person multiplied by 550 weeks. 21 V.S.A. § 648.

10.1510 When a compensable injury results in permanent impairment to more than one body part, system or function, including the spine, the number of weeks for which compensation must be paid shall be determined by adding together:

10.1511 The percentage whole person impairment to the body part, system or function, not including the spine, multiplied by 405 weeks; and

10.1512 The percentage whole person impairment to the spine, multiplied by 550 weeks.

10.1600 Permanent total disability. The disability caused by any of the injuries or conditions enumerated in 21 V.S.A. § 644(a) shall be deemed total and permanent. Provided compensability is established, an injured worker who suffers any such injury or condition shall be entitled to permanent total disability benefits in accordance with 21 V.S.A. § 645.

10.1700 Odd lot doctrine. An injured worker shall be considered permanently and totally disabled in accordance with the odd lot doctrine if a compensable injury causes a physical and/or mental impairment that renders him or her unable to perform regular, gainful work. In evaluating whether or not an injured worker is permanently and totally disabled under this rule, his or her age, experience, training, education, occupation and mental capacity shall be considered, in addition to physical or mental limitations and/or pain. 21 V.S.A. § 644(b).

10.1710 Unless the extent to which an injured worker's functional limitations precludes regular, gainful work is so obvious that formal assessment is not necessary, a claim for permanent total disability under the odd lot doctrine should be supported by the following:

10.1711 A functional capacity evaluation (FCE) that assesses the injured worker's physical capabilities; and

10.1712 A vocational assessment that concludes that the injured worker is not reasonably expected to be able to return to regular, gainful work, either with or without vocational rehabilitation assistance. See Vermont Vocational Rehabilitation Rule 51.1000.

10.1720 For the purposes of this Rule, "regular, gainful work" refers to regular employment in any well-known branch of the labor market. Work that is so limited in quality, dependability or quantity that a reasonably stable market for it does not exist does not constitute "regular, gainful work."

10.1800 Agreement for Permanent Partial or Permanent Total Disability Compensation. In all cases in which permanent partial or permanent total disability benefits are owed, the employer or insurance carrier shall enter into an Agreement for Permanent Partial or Permanent Total Disability Compensation (Form 22) with the injured worker, and shall begin advancing benefits immediately. Once executed by the parties, the completed Agreement shall be filed with the Commissioner for review and approval.

10.1810 Any Agreement for Permanent Partial or Permanent Total Disability Compensation submitted for the Commissioner's review must be accompanied by the necessary supporting documentation, including but not limited to (a) a Wage Statement (Form 25); and (b) medical evidence establishing the date of end medical result and the extent of any permanent impairment and/or disability causally related to the compensable injury. The Commissioner shall not approve an Agreement that is inaccurately or insufficiently completed, or that lacks the necessary supporting documentation.

10.1820 The Commissioner shall send a copy of the approved Agreement for Permanent Partial or Permanent Total Disability Compensation to both the injured worker and the employer or insurance carrier. Once approved, a duly executed Agreement for Permanent Partial or Permanent Total Disability Compensation constitutes a binding and enforceable contract. Absent evidence of fraud or material mistake of fact, the parties will be deemed to have waived their right to contest the material portions thereof.

10.1830 An injured worker's failure or refusal to execute an Agreement for Permanent Partial or Permanent Total Disability Compensation shall not disqualify him or her from receiving benefits otherwise determined to be owed. If despite at least two written requests the injured worker fails or refuses to execute an Agreement, the employer or insurance carrier shall promptly notify the Commissioner in writing of this fact, by filing (a) the partially executed Agreement (signed by the employer or insurance carrier); (b) the necessary supporting documentation; and (c) copies of its written requests to the injured worker. Thereafter, the employer or insurance carrier shall pay the amount the Department deems correct in accordance with the partially executed Agreement. However, the Department's review shall not constitute approval of the Agreement, and the injured worker's acceptance of any payments made thereunder shall not, by itself, constitute a waiver of his or her right to contest its material terms.

10.1840 Unless separately negotiated in the context of a compromise agreement approved by the Commissioner in accordance with Rule 13.0000, the Commissioner's approval of an Agreement for Permanent Partial or Permanent Total Disability Compensation shall not relieve the employer or insurance carrier from its ongoing responsibility to provide medically necessary treatment causally related to the compensable injury in accordance with 21 V.S.A. § 640.

10.1900 Death from causes related to compensable injury. If death results from a compensable injury, the employer or insurance carrier shall pay compensation in accordance with 21 V.S.A. §§ 632 through 637 and Rule 8.1900.

10.1910 In all cases in which death benefits are owed as a consequence of a compensable injury, the employer or insurance carrier shall enter into an Agreement for Compensation in Fatal Cases (Form 23) with the injured worker's spouse and/or dependent beneficiaries, and shall begin paying benefits immediately. Once executed by the parties, the completed Agreement shall be filed with the Commissioner for review and approval.

10.1911 Any Agreement for Compensation in Fatal Cases submitted for the Commissioner's review must be accompanied by the necessary supporting documentation, including but not limited to (a) a First Report of Injury (Form 1) and Report of Fatal Accident (Form 4), if not already filed; and (b) a Wage Statement (Form 25). The Commissioner shall not approve an Agreement that is inaccurately or insufficiently completed, or that lacks the necessary supporting documentation.

10.1912 The Commissioner shall send a copy of the approved Agreement for Compensation in Fatal Cases to both the injured worker's spouse and/or dependent beneficiaries and the employer or insurance carrier. Once approved, a duly executed Agreement for Compensation in Fatal Cases constitutes a binding and enforceable contract. Absent evidence of fraud or material mistake of fact, the parties will be deemed to have waived their right to contest the material portions thereof.

10.1913 Failure or refusal of the injured worker's spouse and/or dependent beneficiaries to execute an Agreement for Compensation in Fatal Cases shall not disqualify any of them from receiving benefits otherwise determined to be owed. If despite at least two written requests the injured worker's spouse and/or dependent beneficiaries fail or refuse to execute an Agreement, the employer or insurance carrier shall promptly notify the Commissioner in writing of this fact, by filing (a) the partially executed Agreement (signed by the employer or insurance carrier); (b) the necessary supporting documentation; and (c) copies of its written requests to the injured worker's spouse and/or dependent beneficiaries. Thereafter, the employer or insurance carrier shall pay the amount the Department deems correct in accordance with the partially executed Agreement. However, the Department's review shall not constitute approval of the Agreement, and the acceptance of any payments made thereunder by the injured worker's spouse and/or dependent beneficiaries shall not, by itself, constitute a waiver of their right to contest its material terms.

10.2000 Death from causes unrelated to compensable injury. If an injured worker dies from causes unrelated to the compensable injury, the employer or insurance carrier shall pay any compensation benefits that already have accrued to his or her surviving spouse and/or dependent beneficiaries in accordance with 21 V.S.A. §§ 635 and 636. If the injured worker dies without leaving either a surviving spouse or dependent beneficiaries, then any remaining accrued benefits shall be applied to burial, funeral and out-of-state transportation expenses in accordance with 21 V.S.A. § 639.

Rule 11.0000. Denying Benefits.

11.1100 Generally. An employer or insurance carrier who seeks to deny an injured worker's claim for specific benefits causally related to a compensable injury shall file a Denial of Workers' Compensation Benefits (Form 2) with the Commissioner and the injured worker. The Denial shall clearly state the reason(s) for the denial, and shall be accompanied by copies of all relevant documentation, medical or otherwise, relied upon to support it.

11.1110 An employer or insurance carrier who has denied a claim for specific benefits on the grounds that information relevant to its investigation was appropriately requested but not forthcoming shall have an affirmative obligation to reconsider its denial if the requested information is received within 45 days thereafter.

11.1200 Interim order. Upon written request by the injured worker and if the available evidence does not reasonably support a denial, the Commissioner shall issue an interim order that the denied benefit(s) be paid pending a formal determination in accordance with Rule 17.0000. Unless otherwise specified therein, any such benefit payments shall be due and payable upon issuance of the interim order. If following a formal hearing the Commissioner concludes that some or all of the benefits paid pursuant to an interim order were not in fact owed, the employer or insurance carrier may request that the injured worker be ordered to make repayment, and may enforce such order in any court of law having jurisdiction. 21 V.S.A. § 662(b).

11.1300 Application of rule. This rule shall apply to claims for an initial or successive period of temporary disability, claims for new or resumed medical services or supplies and claims for permanent disability. An employer or insurance carrier who seeks to terminate its responsibility for ongoing benefits, whether indemnity or medical, must do so in accordance with Rule 12.0000.

11.1400 Denying payment for opioid medications. The Vermont Department of Health requires a medical provider who prescribes opioid medications for acute or chronic pain to comply with the Rule Governing the Prescribing of Opioids for Pain, as currently promulgated at 4A Code of Vermont Rules 13 140 076 and as amended from time to time. If credible evidence establishes that a medical provider has failed to comply with that Rule in prescribing opioid medications to an injured worker for chronic pain, a rebuttable presumption shall arise that the medications, as prescribed, do not constitute reasonable medical treatment. If the employer or insurance carrier seeks to deny payment on those grounds, it shall file a Denial of Workers' Compensation Benefits (Form 2) with the Commissioner and the injured worker, and shall comply in all respects with the requirements of this Rule 11.0000. In addition, it shall notify the prescribing provider of the specific basis for its determination that he or she has failed to comply with the above-referenced Vermont Department of Health rule. Thereafter, the injured worker shall have the burden of proving that the treatment is reasonable notwithstanding the prescribing provider's failure to comply. In any event, the Commissioner shall not approve a proposed discontinuance under this Rule unless credible medical evidence establishes that the effective date thereof comports with a safe taper plan. 21 V.S.A. § 640c.

Rule 12.0000. Discontinuing Benefits.

12.1100 Generally. Except as provided in Rule 12.1500 with respect to successful return to work and/or in Rule 3.2300 with respect to payment without prejudice, an employer or insurance carrier shall not discontinue an injured worker's compensation benefits until at least seven days after an Employer's Notice of Intention to Discontinue Payments (Form 27) is received by both the Commissioner and the injured worker. 21 V.S.A. § 643a. If the injured worker is represented by counsel, a copy of the Notice must also be sent to his or her attorney.

12.1110 Notwithstanding the provisions of Rule 3.2700, the Employer's Notice of Intention to Discontinue Payments must be accompanied by all relevant evidence in the employer's or insurance carrier's possession that pertains directly to the specific benefit(s) for which discontinuance is sought, including both supporting and countervailing evidence. Previously filed evidence, including medical records referenced in an independent medical examination report or medical records review, need not be duplicated, but should be so referenced in the current filing.

12.1111 Relevant evidence may be filed in either paper or disc format. If the latter, the disc must not be encrypted or password-protected, and must be submitted in a searchable format. Whether chronologically or otherwise, the evidence must be organized in such fashion that the specific information upon which the discontinuance is based is readily identifiable and available for review. Failure to comply with this Rule may be grounds for rejecting the proposed discontinuance.

12.1120 If the injured worker is represented by counsel, the parties may stipulate to a discontinuance of benefits as of a specified date, in which case the employer or insurance carrier shall file a copy of the signed stipulation with the Employer's Notice of Intention to Discontinue Payments. Relevant evidence in support of the discontinuance shall also be filed, but countervailing evidence need not be included.

12.1200 Discontinuing temporary disability benefits; end medical result. An employer or insurance carrier who proposes to discontinue an injured worker's temporary disability benefits on the basis of end medical result shall comply in all respects with the requirements of Rule 12.1100. The employer or insurance carrier shall also comply with the requirements of Rule 10.0000 with respect to evaluating the extent of any permanent impairment referable to the compensable injury and paying permanent disability benefits accordingly.

12.1300 Discontinuing temporary disability benefits; failure or refusal to return to work. An employer or insurance carrier who proposes to discontinue an injured worker's temporary disability benefits on the basis of his or her failure or refusal to return to work shall comply in all respects with the requirements of Rule 12.1100 and Rule 9.1700 - 9.1710. In such cases, the Employer's Notice of Intention to Discontinue Payments must be accompanied by written documentation establishing:

12.1310 That the injured worker has been medically released to return to work, either with or without restrictions; and

12.1320 That the employer or insurance carrier has notified the injured worker, in writing, that he or she has been medically released to return to work, either with or without restrictions, and either (a) that the employer has made suitable work available; or (b) that the injured worker is obligated to conduct a good faith search for suitable work; and

12.1330 That the injured worker has failed to conduct a good faith search for suitable work and/or has refused an offer of suitable available work once notified.

12.1400 Discontinuing temporary disability benefits; other grounds. An employer or insurance carrier who proposes to discontinue an injured worker's temporary disability benefits on other grounds shall comply in all respects with the requirements of Rule 12.1100. Such other grounds may include, but are not limited to:

12.1410 The injured worker's failure or refusal to comply with medical treatment recommendations;

12.1420 The injured worker's failure or refusal to cooperate with vocational rehabilitation efforts; and/or

12.1430 The injured worker's failure or refusal to adhere to other obligations imposed by statute or rule.

12.1500 Discontinuing temporary disability benefits; notice not required. The provisions of Rule 12.1100 shall not apply in situations where the employer or insurance carrier seeks to discontinue temporary disability benefits on the grounds that the injured worker has successfully returned to work as defined in Rule 2.4100.

12.1510 If the injured worker has returned to work under circumstances that entitle him or her to temporary partial disability benefits in accordance with Rule 9.1200, the employer or insurance carrier shall promptly file a new Agreement for Temporary Compensation (Form 32), in accordance with Rule 9.1400, and shall commence paying weekly benefits immediately.

12.1520 Unless other grounds for discontinuance exist, the employer or insurance carrier shall be obligated to reinstate temporary disability benefits previously discontinued under this Rule upon receiving notice that as a consequence of the compensable injury the injured worker's return to work has proven unsuccessful.

12.1600 Discontinuing temporary disability benefits; vocational rehabilitation screening verification. In all cases in which the injured worker has been totally disabled from working for a period of 90 days or more, the employer or insurance carrier shall verify in writing that it has offered vocational rehabilitation services as required by 21 V.S.A. § 641(a)(3).

12.1700 Discontinuing medical benefits. An employer or insurance carrier who proposes to discontinue payment for specific medical services or supplies previously covered under 21 V.S.A. § 640 shall comply in all respects with the provisions of Rule 12.1100.

12.1710 The grounds for such discontinuance include, but are not limited to, proof that the specified service or supply is no longer medically necessary and/or causally related to the compensable injury. In appropriate circumstances, an injured worker's documented pattern of non-compliance with prescribed medical treatment may also provide sufficient grounds for discontinuance.

12.1720 If the proposed discontinuance pertains to narcotic or other medications for which a safe taper plan is medically necessary, the employer or insurance carrier shall provide credible medical evidence establishing that the date of its proposed discontinuance comports with such a plan.

12.1730 The Vermont Department of Health requires a medical provider who prescribes opioid medications for acute or chronic pain to comply with the Rule Governing the Prescribing of Opioids for Pain, as currently promulgated at 4A Code of Vermont Rules 13 140 076 and as amended from time to time. If credible evidence establishes that the medical provider has failed to comply with that Rule in prescribing opioid medications to an injured worker for chronic pain, a rebuttable presumption shall arise that the medications, as prescribed, do not constitute reasonable medical treatment. If the employer or insurance carrier proposes to discontinue payment on those grounds, it shall file an Employer's Notice of Intention to Discontinue Payments (Form27) with the Commissioner and the injured worker, and shall comply in all respects with the requirements of this Rule 12.0000. In addition, it shall notify the prescribing provider of the specific basis for its determination that he or she has failed to comply with the above-referenced Department of Health rule. Thereafter, the injured worker shall have the burden of proving that the treatment is reasonable notwithstanding the prescribing provider's failure to comply. In any event, the Commissioner shall not approve a proposed discontinuance under this Rule unless credible medical evidence establishes that the effective date thereof comports with a safe taper plan as required by Rule 12.1720. 21 V.S.A. § 640c.

12.1800 Discontinuing permanent partial disability, permanent total disability and death benefits. The provisions of Rule 12.1100 shall not apply in situations where the employer or insurance carrier seeks to discontinue permanent partial disability, permanent total disability or death benefits. However, where the employer or insurance carrier seeks to discontinue permanent total disability or death benefits on the grounds of a change in status on the part of the injured worker or his or her dependent beneficiaries, it shall provide notification in accordance with Rule 3.2800.

12.1900 Injured worker's objection to discontinuance; request for extension. If the injured worker disputes a discontinuance proposed by the employer or insurance carrier, he or she may request that the Commissioner extend its effective date for a period of 14 days. The request must be in writing, and must be filed with the Commissioner, with a copy to the employer or insurance carrier, within 7 days after the injured worker receives the Employer's Notice of Intention to Discontinue Benefits. The request must specifically identify the reason(s) why the proposed discontinuance is objectionable and must be accompanied by supporting evidence. The Commissioner shall review the request for extension promptly upon receipt, and shall either approve or deny it, which decision shall not be subject to reconsideration or appeal. 21 V.S.A. § 643a.

12.2000 Commissioner's review of discontinuance. The Commissioner shall review every Employer's Notice of Intention to Discontinue Benefits to determine whether a sufficient basis exists for the proposed discontinuance.

12.2010 If a preponderance of the relevant evidence reasonably supports discontinuance, the Commissioner shall approve it as of its effective date. In that event, the employer or insurance carrier shall be entitled to offset any benefit payments made either during the seven-day notice period required by Rule 12.1100 and/or during the 14-day extension period granted in accordance with Rule 12.1900 against any permanent partial disability benefits subsequently determined to be due. 21 V.S.A. § 643a.

12.2020 If a preponderance of the relevant evidence fails to reasonably support discontinuance, the Commissioner shall issue an interim order that benefits continue. 21 V.S.A. § 643a.

12.2100 Appeal. If any party is aggrieved by the Commissioner's decision upon review of a proposed discontinuance, it may request a formal hearing in accordance with Rule 14.0000. If following a formal hearing the Commissioner concludes that some or all of the benefits paid subsequent to a proposed discontinuance were not in fact owed, the employer or insurance carrier may request that the injured worker be ordered to make repayment, and may enforce such order in any court of law having jurisdiction. 21 V.S.A. § 643a.

12.2110 The injured worker may request that discontinued benefits be reinstated prior to formal hearing by providing sufficient new evidence to the Commissioner establishing that a preponderance of the relevant evidence no longer reasonably supports discontinuance. 21 V.S.A. § 643a.

12.2120 Notwithstanding the issuance of an interim order against it under Rule 12.2020, the employer or insurance carrier may at any time seek to discontinue benefits on grounds not previously alleged by filing a new Employer's Notice of Intention to Discontinue Benefits in accordance with Rule 12.1100.

Rule 13.0000. Lump Sum Payments and Compromise Agreements.

13.1100 Lump sum payment; generally. The employer or insurance carrier shall issue payment of compensation benefits to the injured worker in a lump sum under the following circumstances:

13.1110 Where the amount paid represents retroactive and/or past due compensation;

13.1120 Upon request by the injured worker, and with the Commissioner's approval under Rule 13.1200, where the amount paid represents compensation for some or all of the permanent partial and/or permanent total disability benefits to which the injured worker is entitled;

13.1130 Where the amount paid is in accordance with a compromise agreement approved by the Commissioner under Rule 13.1500.

13.1200 Lump sum request; Commissioner's approval. An injured worker who seeks to have some or all of the permanent partial and/or permanent total disability benefits to which he or she is entitled paid in a lump sum must file a written request with the Commissioner, with a copy to the employer or insurance carrier. The request must specify both the lump sum amount requested and the reason(s) therefor. The Commissioner shall approve the request upon a showing that a lump sum payment is in the injured worker's best interests. 21 V.S.A. § 652(b).

13.1210 In determining whether a lump sum payment is in the injured worker's best interests, the following factors shall be considered positive:

13.1211 That the injured worker's household benefits from a regular source of income aside from any workers' compensation benefit(s) currently being paid;

13.1212 That the lump sum payment likely will hasten or improve the injured worker's ability to return to gainful employment; and/or

13.1213 That other specified circumstances justify payment in a lump sum.

13.1220 Unless the employer or insurance carrier consents, the Commissioner shall not approve a lump sum request for benefits awarded pursuant to an interim order or formal hearing decision from which the employer or insurance carrier has appealed.

13.1230 Notwithstanding the above, the Commissioner shall not approve a lump sum request for payment of permanent total disability benefits beyond 330 weeks unless the employer or insurance carrier consents.

13.1240 The employer or insurance carrier shall have 30 days following the Commissioner's approval of a lump sum request within which to issue payment to the injured worker. Upon request, the Commissioner may extend this time period for good cause shown.

13.1300 Lump sum payment; Social Security offset. With the exception of lump sum payments of retroactive or past due compensation benefits, and unless the injured worker waives this provision in writing, every request for a lump sum payment to be issued under Rule 13.1100 shall include a provision accounting for excludable expenses and prorating the remainder of the lump sum payment in the manner set forth by the Social Security Administration in order to protect the injured worker's entitlement to Social Security benefits. 21 V.S.A. § 652(c).

13.1400 Lump sum payment; attorney fees. In appropriate circumstances, and with the injured worker's consent, the Commissioner may approve a lump sum payment by way of a check issued jointly to the injured worker and his or her attorney. Alternatively, with the injured worker's consent, the Commissioner may approve payment of the attorney's associated costs and fees by way of a separate check payable directly to the attorney. An attorney who requests payment in this manner must do so in writing, with a copy to the injured worker, and must specify the amount of costs and attorney fees to be deducted from the lump sum payment.

13.1500 Compromise agreement; generally. With the Commissioner's approval, the parties may enter into a compromise agreement to fully and finally resolve all or part of an injured worker's claim for workers' compensation benefits. The Commissioner shall approve the agreement upon a showing that it is in the injured worker's best interests. 21 V.S.A. § 662(a). The Commissioner's review process may include contacting either or both parties for more information, including contacting unrepresented injured workers to ensure that they understand the essential agreement terms and wish to proceed with the agreement.

13.1600 Compromise agreement; process. The parties to a negotiated compromise agreement shall submit a Compromise Agreement (Form 16) to the Commissioner for review. The form must be accompanied by a letter, signed by both parties, that contains the following additional information:

13.1610 The disputed issues, if any, that the proposed compromise agreement is intended to resolve;

13.1620 The parties' respective positions on each of these issues;

13.1630 A full explanation of the proposed compromise agreement's terms, including an itemized breakdown of the settlement monies to be paid and the extent, if any, to which the injured worker's entitlement to Social Security disability and/or Medicare benefits will be affected thereby;

13.1640 A plainly worded statement identifying (a) the specific benefits to which the injured worker is relinquishing his or her rights and (b) the specific benefits to which he or she might still claim entitlement;

13.1650 If the injured worker is unrepresented, (a) a list compiled by the employer or insurance carrier detailing any outstanding bills, invoices and/or other charges for medical services or supplies, vocational rehabilitation services or other claims-related expenses that remain unpaid, and clearly identifying which party to the compromise agreement shall be responsible for making payment; (b) if the compromise agreement includes the injured worker's resignation of employment, a statement to that effect; and (c) if the compromise agreement includes a Medicare Set Aside (MSA), a statement naming the payee for any funds that remain in the MSA account after the injured worker's death; and

13.1660 The reason(s) why the proposed compromise agreement is in the injured worker's best interests.

13.1700 Compromise agreement; payment of amount due. The employer or insurance carrier shall have 30 days following the Commissioner's approval of a proposed compromise agreement within which to issue payment to the injured worker. Upon request, the Commissioner may extend this time period for good cause shown. Payments made in accordance with this rule shall not be subject to interest or penalties under 21 V.S.A. § 650(e) and or Rule 3.2640.

Rule 14.0000. Requesting a Hearing in a Contested Claim.

14.1100 Notice and Application for Hearing; filing. When a claim for compensation is contested, any party may file a Notice and Application for Hearing (Form 6) with the Commissioner. Upon receipt, the Commissioner shall serve a copy on all other parties, either by first class mail or electronically in accordance with Rule 3.3000.

14.1110 The Commissioner may treat any written communication from a party as a Notice and Application for Hearing, and make the necessary service of the application on the other party or parties. Any written communication by an unrepresented injured worker that appeals or otherwise questions the denial, discontinuance or miscalculation of any benefit shall be deemed an application for hearing. 21 V.S.A. § 662(b).

14.1200 Contents. The Notice and Application for Hearing shall contain a short and plain statement of the claim and the specific relief sought, and shall be accompanied by all relevant supporting documentation not previously filed. The Notice and Application for Hearing shall be signed by the applicant or an authorized representative.

14.1300 Response. Within 21 days after the Notice and Application for Hearing is served by the Commissioner, the opposing party or parties shall serve an answer upon the applicant, all other parties and the Commissioner. The answer shall specifically respond to each claim asserted, identify the issues in dispute and reference all relevant supporting evidence (copies of which shall be attached if not previously filed). If the injured worker has provided specific facts sufficient to support the claim, failure to answer by the employer or insurance carrier may be treated as an unreasonable denial subject to an order to pay compensation pursuant to 21 V.S.A. § 662(b) and/or an award of attorney fees pursuant to Rule 20.0000. This provision shall not be construed to bar the timely assertion of additional defenses when justice so requires.

14.1400 Service of papers. Once a Notice and Application for Hearing has been filed, every paper or document subsequently filed by a party shall be served upon all other parties and the Commissioner. Filing with the Commissioner shall occur when a document or paper is received by the Commissioner, whether in paper, disc or electronic format. Except as provided in Rule 6.1200 (notice of independent medical examination) and in Rule 12.1100 (notice of discontinuance), if a party is represented by counsel, service shall be on counsel.

Rule 15.0000. Representation in a Contested Claim; Assistance by Bargaining Unit Representative.

15.1100 Personal appearance; attorney representation. Parties to a contested claim before the Commissioner may appear personally or, upon filing of a written notice of appearance, may be represented by a licensed attorney. Upon request and in the Commissioner's discretion, an attorney who is not licensed to practice in Vermont may be permitted to represent a party, provided he or she (a) is in good standing with the bar of another state; and (b) actively associates with a member of the Vermont bar.

15.1200 Notice to or by party. Except as provided in Rule 6.1200 (notice of independent medical examination) and in Rule 12.1100 (notice of discontinuance), any notice given to or by an attorney of record for a party, or to or by the employer's or insurance carrier's claims adjuster, shall be considered in all respects as notice to or by that party.

15.1300 Attorney withdrawal. An attorney who seeks to withdraw from representing a party after he or she has entered an appearance must first request the Commissioner's authorization to do so in writing. In ruling on such a request, the Commissioner shall consider whether the attorney has complied with the requirements of Rule 1.16 of the Vermont Supreme Court Rules of Professional Conduct, particularly with respect to providing notice to the client and alleging sufficient grounds for the withdrawal. If applicable, the Commissioner shall also consider the manner in which any lien for attorney fees granted in accordance with 21 V.S.A. § 682 and Rule 20.1800 is to be addressed.

15.1400 Assistance by collective bargaining unit representative. An injured worker who is a member of a collective bargaining unit may identify a bargaining unit representative to provide informal assistance in furtherance of his or her claim for workers' compensation benefits. In order for the Commissioner to discuss any details of the claim with such representative, the injured worker first must sign and submit a written release, identifying the representative's name, title and bargaining unit. The release shall remain effective until (a) the injured worker modifies or withdraws it; (b) the named bargaining unit representative ceases to hold a representative position, or (c) an attorney enters his or her appearance on the injured worker's behalf. The bargaining unit representative's assistance shall not extend to providing legal representation at any stage of the dispute resolution process, but may consist of the following:

15.1410 Conveying general information regarding the workers' compensation claims process to the injured worker;

15.1420 Conveying specific information to the injured worker as to the status of his or her claim;

15.1430 Assisting the injured worker to prepare forms, letters or other submittals, provided that all such filings shall be signed by the injured worker him- or herself; and/or

15.1440 With the Commissioner's approval, conferring with the injured worker and/or speaking on his or her behalf at an informal telephone conference.

Rule 16.0000. The Informal Dispute Resolution Process.

16.1100 Informal conference; scheduling. Upon receipt of a Notice and Application for Hearing (Form 6), and after notice to the parties in accordance with Rule 14.1100, the Commissioner shall review the claim and, if appropriate, may issue an interim order or schedule an informal telephone conference. If necessary, the Commissioner may require that additional supporting documentation be filed before taking further action. The Commissioner shall not be responsible for obtaining records, documents or other evidence, and shall not bear any of the costs associated with doing so.

16.1200 Purpose. The purpose of the informal conference is to identify, address and, if possible, resolve the disputed legal and/or factual issues raised by the Notice and Application for Hearing. If at any time it becomes apparent that additional information is required in order for this to occur, the Commissioner may continue the matter until such information is received, at which time additional informal conferences may be scheduled.

16.1210 Subject to the provisions of Rule 3.2700, each party shall provide relevant evidence to the Commissioner and to the other party or parties with sufficient promptness so that it can be adequately reviewed and considered in advance of the informal conference. In the Commissioner's discretion, a party's failure to do so may delay or preclude the issuance of any interim order or other ruling sought by that party.

16.1300 Formal hearing docket referral. When it appears that no further progress towards resolution is likely at the informal level, the Commissioner shall forward the claim to the formal hearing docket.

16.1400 Interim order. At any time before, during or following an informal conference, if the evidence produced does not support a denial or discontinuance of benefits in accordance with the applicable evidentiary standard, the Commissioner may issue an interim order that payments be made, in whole or in part. 21 V.S.A. §§ 643a, 662(b); Rules 11.1200 and 12.2000. Unless otherwise specified therein, any such benefit payments shall be due and payable upon issuance of the interim order.

Rule 17.0000. Formal Hearing Procedure; Appeals.

17.1100 Purpose. The purpose of the formal hearing is to determine the rights of the parties by a speedy and inexpensive procedure. To that end, in general hearings shall be conducted in accordance with the Vermont Rules of Civil Procedure and the Vermont Rules of Evidence, but only insofar as they do not defeat the informal nature of the hearing. 21 V.S.A. §§ 602, 604.

17.1200 Attorney representation. An injured worker or uninsured employer who is a party to a formal hearing proceeding may appear pro se. An insured employer must appear by way of legal counsel appointed for that purpose by its workers' compensation insurance carrier.

17.1300 Pretrial conference. Upon forwarding of a disputed claim to the formal hearing docket, the assigned Workers' Compensation Administrative Law Judge shall schedule a telephone pretrial conference with the parties.

17.1310 In advance of the pretrial conference, each party shall file a preliminary disclosure in which it (a) identifies the disputed issue(s); (b) discloses any hearsay evidence upon which it intends to rely at hearing; (c) identifies any exhibits it intends to use and/or introduce; and (d) outlines the proposed testimony of any witnesses it intends to call.

17.1320 At the pretrial conference, the Administrative Law Judge shall set the date upon which the formal hearing shall occur, the deadline for mandatory mediation under Rule 18.0000 and the date by which final disclosures must be filed. In situations where some financial, medical or other emergency requires immediate resolution, every effort shall be made to expedite the pretrial discovery process so that a formal hearing can be scheduled as quickly as possible. Continuances shall be granted at the Administrative Law Judge's sole discretion.

17.1330 In advance of the formal hearing and by the deadline established at the pretrial conference, each party shall file a final disclosure setting forth (a) a final statement of the disputed issue(s); (b) a joint and final statement of uncontested facts; (c) a final witness list and brief statement as to the substance of each witness' proposed testimony; (d) a final list of exhibits to be used and/or introduced; and (e) a final statement as to any hearsay evidence, not yet disclosed, upon which it intends to rely.

17.1400 Subpoena. The Administrative Law Judge may issue a subpoena requiring the attendance of any witness for the purpose of examination either at a deposition and/or at the formal hearing upon the written request of any party filed at least 10 days prior thereto. 21 V.S.A. § 603(a). The requesting party shall be responsible for ensuring appropriate service of the subpoena and for paying the appropriate mileage and witness fees.

17.1500 Photographic and/or video evidence. A party seeking to introduce photographic and/or video evidence must provide copies to the opposing party in a timely manner prior to the formal hearing, so as to allow sufficient opportunity to review the evidence and verify its accuracy.

17.1600 Joint medical exhibit. The parties shall make every effort to compile a joint medical exhibit, containing legible copies of all relevant medical records and reports, in advance of the formal hearing. Any records or reports that are intended to be offered for admission by one party but are not to be included in the joint medical exhibit shall be produced no later than the final disclosure deadline.

17.1700 Late-disclosed evidence. Notwithstanding the above, at the Administrative Law Judge's discretion a party may be permitted to produce evidence or identify witnesses after the final disclosure deadline upon a showing that doing so will cause no unfair surprise to the opposing party.

17.1800 Hearsay evidence. Hearsay evidence shall be admissible at the formal hearing provided that it (a) is of a type commonly relied upon by prudent people in the conduct of their affairs; (b) conforms to the requirements of this Rule; and (c) is produced with notice sufficient for the opposing party to verify its accuracy.

17.1900 Repetitive material. Repetitive and clearly irrelevant material shall be excluded.

17.2000 Expert medical testimony. At the Administrative Law Judge's discretion, expert medical testimony may be submitted by deposition. Depositions of witnesses, other than depositions of medical experts, shall be admitted by agreement or pursuant to Rule 32 of the Vermont Rules of Civil Procedure. Upon agreement of the parties, or at the Administrative Law Judge's discretion, a witness shall be permitted to testify via telephone, video or other electronic media.

17.2100 Judicial notice. The Administrative Law Judge shall take notice of judicially cognizable facts, generally recognized technical and scientific facts within his or her specialized knowledge and all previously filed workers' compensation forms.

17.2200 Post-hearing pleadings; opinion and order.

If ordered by the Administrative Law Judge, proposed findings of fact and conclusions of law shall be submitted within thirty days after the hearing concludes, or longer if the parties agree and/or if good cause is shown. Absent prior leave, a party's proposed findings and conclusions shall not exceed 20 double-spaced pages. At the Administrative Law Judge's discretion, responsive pleadings also may be allowed. The Commissioner's opinion and order, which may include abbreviated findings of fact and/or conclusions of law when appropriate, shall issue within sixty days after the date the hearing is completed, the evidentiary record is closed and all required submissions are filed. 21 V.S.A. §§ 663, 664. However, exceeding the sixty-day time limit set forth in 21 V.S.A. § 664 does not divest the Commissioner of jurisdiction. Coleman v. United Parcel Serv., 155 Vt. 646, 646 (1990).

17.2300 Appeals; certified questions. Except with regard to transcripts, appeals to the superior court shall be governed by 21 V.S.A. § 670 and Rule 74 of the Vermont Rules of Civil Procedure. Appeals to the supreme court shall be governed by 21 V.S.A. § 672 and Rule 4 of the Vermont Rules of Appellate Procedure.

17.2310 Within 30 days after a notice of appeal is filed with the Department, the Commissioner shall certify the questions on appeal to the appropriate court in accordance with 21 V.S.A. §§ 671 and 672. In the Commissioner's sole discretion, such questions may be derived, in whole or in part, from those proposed by any party to the appeal.

17.2400 Formal hearing recording or transcript. Upon request by either party, the Commissioner shall produce a digital recording of the formal hearing, the expense of which shall be borne by the requesting party. The Commissioner shall not be responsible for transcribing all or any portion of the formal hearing. A party who wants a certified transcript of the digital recording may engage a professional court reporter to prepare and certify a transcript, the expense of which shall be borne by the requesting party.

17.2500 Motions Practice. Where appropriate, a party may file dispositive and non-dispositive motions with the Workers' Compensation Administrative Law Judge.

17.2510 If a represented party requests relief from the Administrative Law Judge, the party must cite to relevant legal authority permitting or requiring the requested relief, or disclose that no such authority is known to the party. If no authority is cited nor disclosure made, the request for relief may be summarily denied.

17.2520 Motions practice before the Administrative Law Judge consists of a motion, a response to the motion and, if desired, a reply. A party seeking to file anything subsequent to a reply (e.g., a supplemental memorandum or sur-reply) must request permission to do so in writing, supported by a showing of good cause why additional facts or arguments were not raised in an earlier filing. Notwithstanding this requirement, the Administrative Law Judge may ask the parties for supplemental briefing, if such briefing would be helpful.

17.2530 Prior to filing a non-dispositive motion or subpoena request, the moving party shall confer, or make a reasonable effort to confer, with the opposing party and shall make a good faith effort to resolve by agreement the issue to be raised in the motion or request. If efforts to resolve the issue are not successful, the moving party shall state in the motion that the party has made a good faith effort but was unable to resolve the issue.

17.2540 Where appropriate, a party may file a dispositive motion with the Administrative Law Judge, including a summary judgment motion as set forth in Vermont Rule of Civil Procedure 56. Such motions shall not be filed until the parties' dispute has been referred to the formal docket. If the motion is filed prior to referral, the opposing party's response time shall begin to run on the date the pretrial conference is held, unless the Administrative Law Judge sets a different deadline.

17.2550 Absent prior leave, the following double-spaced page limitations shall apply to motions filed at the formal docket level: four (4) pages for discovery motions, six (6) pages for other non- dispositive motions, and fifteen (15) pages for dispositive motions. In all cases, the page limit shall not include statements of undisputed material fact or exhibits.

Rule 18.0000. Mediation.

18.1100 Disputes appropriate for mediation. Unless otherwise provided in this Rule, upon referral to the formal hearing docket the Commissioner may order mediation in any disputed workers' compensation claim not resolved at the informal level. In exercising this discretion, the Commissioner shall consider the extent, if any, to which mediation is likely to speed resolution of the dispute in a cost-effective manner. 21 V.S.A. § 663a(a).

18.1200 Disputes not covered. The following disputes shall not be subject to mandatory mediation under this Rule:

18.1210 Disputes involving administrative fraud, misclassification and/or penalty proceedings brought under 21 V.S.A. §§ 688, 689, 692, 702, 704, 705, 708 and/or Vermont Workers' Compensation Rule 45;

18.1220 Disputes involving an employer's obligation, if any, to maintain workers' compensation insurance coverage over a putative employee or independent contractor; and/or

18.1230 Insurance coverage disputes between an employer and its insurance carrier.

18.1300 Waiver. Upon request by any party, in appropriate circumstances the Commissioner may waive mandatory mediation. In ruling on such a request, the Commissioner shall consider the following factors:

18.1310 Whether the disputed issues are primarily legal or factual in nature;

18.1320 Whether the amount in dispute is small in comparison to the cost of mediation;

18.1330 Whether the cost of mediation is prohibitive given the injured worker's financial circumstances;

18.1340 Whether the injured worker has access to legal representation, and if not, whether he or she is capable of representing him- or herself at mediation;

18.1350 Whether the other party or parties to the dispute concur with the request to waive mandatory mediation; and/or

18.1360 Whether it is unlikely under the circumstances that mediation will be successful.

18.1400 List of approved mediators. The Commissioner shall publish and maintain a list of mediators who have been approved to conduct mandatory mediations under this Rule. 21 V.S.A. § 663a(c).

18.1410 A person who seeks approval to serve as a mediator shall submit to the Commissioner, in writing, a list of his or her qualifications, which shall include familiarity with Vermont's workers' compensation statute, rules and case law, as well as practical mediation experience, if any.

18.1420 A person need not be a Vermont licensed attorney in order to qualify as an approved mediator. A Vermont licensed workers' compensation adjuster, former Department of Labor Workers' Compensation and Safety Division employee, Vermont licensed physician and/or a currently practicing mediator may qualify, provided he or she can demonstrate practical mediation experience and/or familiarity with Vermont's workers' compensation statute, rules and case law.

18.1430 The Commissioner may remove a mediator from the approved list upon a showing that he or she has violated appropriate standards of competence, ethical conduct, impartiality and/or confidentiality.

18.1500 Selecting a mediator. The parties may mutually agree on a qualified mediator from the Commissioner's list of approved mediators. If they are unable to do so within 14 days after being ordered to mediate, the Commissioner shall assign a qualified mediator from the approved list.

18.1600 Mediation process. Once a mediator is chosen, the mediation shall be scheduled as soon as practicable, but at least 30 days prior to any scheduled formal hearing.

18.1610 The mediation process shall conform to the Vermont Uniform Mediation Act, 12 V.S.A. § 5711 et seq.

18.1620 Any discussions or admissions made in the course of the mediation process shall be deemed confidential, and shall not be subject to disclosure at formal hearing. However, this provision shall not relieve any party from its obligation to fully and promptly disclose relevant information in accordance with Rule 3.2700.

18.1630 Under no circumstances shall a mediator be called upon to testify or otherwise participate in any workers' compensation proceeding involving the mediated claim.

18.1700 Good faith participation required. The parties to a mediation shall each make a good faith effort to participate fully in the process and endeavor to resolve the disputed issues.

18.1710 All parties shall be fully prepared to discuss the legal and factual bases for their respective positions on the disputed issues.

18.1720 A representative for the employer or insurance carrier, who may be an attorney or Vermont licensed adjuster, shall be present at the mediation. Should such representative lack the full and final authority necessary to settle the claim, a person with such authority shall also participate by telephone for the duration of the mediation session.

18.1730 In the Commissioner's discretion, a party who fails to participate in mediation in good faith may be ordered to pay for all or an additional portion of the costs associated with the mediation. If the offending party is the injured worker, the Commissioner may order that further action on the claim and/or ongoing benefit payments be suspended until such time as good faith participation occurs. If the offending party is the employer or insurance carrier, the Commissioner may issue an interim order to pay benefits pending formal hearing.

18.1740 Included in the obligation to mediate in good faith is the obligation to participate in mediation as ordered by the Commissioner. Therefore, failure or refusal to engage in mediation without leave may give rise to any of the remedies enumerated in the statute and these Rules.

18.1800 Mediator's responsibilities. The mediator shall prepare for and conduct the mediation in such a way as to maximize the likelihood that the disputed issues will be successfully resolved. Within 15 days after mediation is concluded, the mediator shall file a Workers' Compensation Mediation Report with the Commissioner.

18.1900 Mediation fees and costs. Unless the parties agree otherwise, all mediation fees and costs shall be split equally among the parties to the mediation.

18.1910 Unless the parties and the mediator agree otherwise, the mediator's fee shall be $ 600.00 per half-day (4.5 hours) mediation session.

18.1920 If following an unsuccessful mediation the injured worker substantially prevails at formal hearing, he or she may recover his or her share of the mediation fees and costs in accordance with 21 V.S.A. § 678(a) and Rule 20.1600. 21 V.S.A. § 663a(b).

18.2000 Voluntary mediation. Nothing in this Rule shall preclude the parties to a workers' compensation claim from agreeing voluntarily to mediate at any time during the dispute resolution process.

Rule 19.0000. Arbitration of Insurance Disputes.

19.1100 Claims subject to arbitration. Either upon order of the Commissioner or by mutual agreement of the parties, and after payment to the injured worker, any dispute among employers and/or insurance carriers arising under 21 V.S.A. §§ 662 (c) or (d) may be resolved through arbitration rather than formal hearing. 21 V.S.A. § 662(e). The scope of arbitration shall be limited, and shall not address any claim-related issues or disputes other than those arising under §§ 662(c) or (d).

19.1200 Qualifications of arbitrator. To be qualified to arbitrate disputes arising under this Rule, an arbitrator must (a) have basic knowledge of Vermont workers' compensation law; (b) be unbiased towards any party; and (c) be free from any financial or other interest in the outcome of the dispute.

19.1300 Selection of arbitrator. Within 21 days after an order or agreement to arbitrate, the parties shall select a qualified arbitrator and notify the Commissioner of their selection. In the event the parties are unable to reach agreement as to an arbitrator, the Commissioner shall assign one. Once selected or assigned, the arbitrator shall provide timely notice of all further proceedings to the parties.

19.1400 Initial arbitration conference. Within 30 days after selection or assignment, the arbitrator shall conduct an initial arbitration conference. In advance of the conference, the parties shall share responsibility for submitting to the arbitrator copies of all relevant records, documents and other evidence upon which they intend to rely at hearing. At the conference, the arbitrator shall establish a discovery schedule and, with due regard for each party's circumstances, shall set the time, place and manner in which the arbitration hearing shall be conducted.

19.1500 Discovery disputes and pretrial motions. The arbitrator shall be responsible for resolving discovery disputes and ruling on pretrial motions.

19.1600 Arbitrated claim settlement. Any proposed settlement of the issues ordered to arbitration shall be submitted to the Commissioner for review and approval in accordance with Rule 13.0000.

19.1700 Arbitration hearing. Unless extended by mutual agreement of the parties, the arbitration hearing shall be held within 90 days after the initial arbitration conference. The arbitrator shall be responsible for maintaining a record of the hearing.

19.1800 Arbitrator's decision; contents. The arbitrator shall issue a written decision, including both findings of fact and conclusions of law, within 45 days after the date the hearing is completed, the evidentiary record is closed and all required submissions are filed. As part of the decision, the arbitrator shall determine apportionment of liability for the claim, including costs and attorney fees, among one or more parties. 21 V.S.A. § 662(e)(2)(A). In doing so, the arbitrator shall consider the facts as established at the hearing and/or as stipulated by the parties, and the law as properly applied thereto.

19.1900 Arbitrator's decision; delivery. The arbitrator's decision shall be signed by the arbitrator and delivered to each party, and to the Commissioner, either by first class mail or electronically in accordance with Rule 3.3000. The arbitrator's decision shall be a part of the record of the arbitration proceeding, but shall not be admissible in other proceedings under this chapter except as between the parties to the arbitration.

19.2000 Arbitrator's decision final. In the absence of fraud, the findings of fact made by the arbitrator acting within his or her powers shall be conclusive. Once signed by the arbitrator, the arbitration decision shall be final. 21 V.S.A. § 662(e)(2)(B). An arbitration award may only be modified upon a showing of mathematical miscalculation or other mistake in identifying a person, thing or property referenced therein, and may only be vacated upon a showing of corruption, fraud or partiality.

19.2100 Effective date of award. The arbitrator's award shall be of full force and effect 30 days after issuance.

19.2200 Arbitrator's fee. The arbitrator shall set a reasonable fee for his or her services, which, if not shared by mutual agreement of the parties, shall be apportioned among them in his or her sole discretion.

19.2300 Enforcement of arbitrator's award. If a party against whom an arbitration award is made fails to comply with its terms, the prevailing party may proceed to collect all or any part of the amount owed in any court of law having jurisdiction over the amount involved. If successful, the prevailing party also shall be entitled to interest, costs and reasonable attorney fees.

19.2400 Late payment; interest and penalties. If an employer or insurance carrier fails to make timely payment to an injured worker in accordance with an arbitration award, interest and penalties shall be assessed in accordance with Rules 3.2630 and 3.2640. In the Commissioner's discretion, administrative penalties also may be assessed in accordance with 21 V.S.A. § 688 and Rule 3.2650.

Rule 20.0000. Costs and Attorney Fees; Attorney Liens.

20.1100 Award of attorney fees. In addition to any compensation or other benefits awarded, the Commissioner may award reasonable attorney fees to an injured worker who substantially prevails in either formal or informal dispute resolution procedures. 21 V.S.A. § 678.

20.1200 Request for award. A request for an award of attorney fees shall be submitted no later than 30 days following the issuance of a decision in which the injured worker substantially prevails. 21 V.S.A. § 678(e). The request must be accompanied by an itemized statement of hours billed and work performed, stated with sufficient specificity to determine whether they are reasonable in amount.

20.1300 Amount. At the Commissioner's discretion, an award of attorney fees may be based on either an hourly or contingency basis.

20.1310 If based on an hourly fee, the award shall not exceed a charge of $ 200.00 per hour for attorney time, and $ 75.00 per paralegal time.

20.1320 If based on a contingent fee, the award shall not exceed 20 percent of the compensation or benefits awarded.

20.1330 The above limitations apply only to an award of fees by the Commissioner, and shall not prohibit an attorney and client from agreeing to a different hourly or contingent fee as between themselves.

20.1340 Beginning July 1, 2017 and on each subsequent July 1, the hourly rates stated in Rule 20.1310 shall be increased by (a) the percentage increase of the Consumer Price Index, CPI-U, U.S. city average, not seasonally adjusted, or successor index, as calculated by the U. S. Department of Labor or successor agency for the 12 months preceding the previous May 1; or (b) five percent, whichever is smaller, but in no event shall the hourly rates and/or maximums be decreased. The hourly rates shall be rounded off to the nearest $ 5.00.

20.1400 Award of fees absent formal hearing. Attorney fee awards to prevailing injured workers are discretionary, and generally shall be considered only in cases resolved at the formal hearing level. In cases that are resolved prior to formal hearing, the Commissioner may award attorney fees if the injured worker is able to demonstrate the following, 21 V.S.A. § 678(b)(3):

20.1410 That a formal hearing was requested;

20.1420 That the injured worker retained an attorney in response to an actual or effective denial of all or part of a claim; and

20.1430 That thereafter payments were made to the injured worker as a result of the attorney's efforts.

20.1500 Exercise of discretion. The discretion to award attorney fees in cases that are resolved prior to formal hearing is intended to be exercised in limited circumstances and not as a general rule. When considering a fee request under Rule 20.1400, the Commissioner shall also consider whether an award of fees will further the goals of (a) maintaining appropriate standards of employer and adjuster conduct; (b) discouraging excessive delay or unnecessarily adversarial conduct; and/or (c) encouraging the parties to make effective use of the informal dispute resolution process.

20.1600 Costs. Necessary costs awarded under 21 V.S.A. § 678(a) shall include, but shall not be limited to, deposition expenses, subpoena fees, expert witness fees and, if itemized, reasonable copy, fax and/or long-distance telephone charges. Necessary costs shall also include mandatory mediation fees and costs incurred in accordance with Rule 18.1900. 21 V.S.A. § 663a(b). Costs referable to ordinary office overhead shall not be allowed.

20.1700 Objections; when filed. The employer or insurance carrier shall have 30 days from the date upon which an injured worker's request for an award of costs and attorney fees is filed within which to file any objections thereto. Unless stayed by the Commissioner, the employer or insurance carrier shall pay any awarded costs and attorney fees directly to the injured worker's attorney in a lump sum.

20.1800 Lien for attorney fees. When approved by the Commissioner, a lien for attorney fees may be enforced against an injured worker's compensation as provided in 21 V.S.A. § 682. The lien amount must be calculated in accordance with the provisions of Rules 20.1310 and/or 20.1320 above, and if based on a contingent fee agreement, shall not be excessive when considered against the factors listed in Rule 1.5 of the Vermont Supreme Court Rules of Professional Conduct. Absent extenuating circumstances, a lien for attorney fees shall not be approved for so long as a conflicting lien exists.

20.1900 Request for acknowledgment of lien. An attorney's request for acknowledgment of a lien may be made to the Commissioner in writing, with a copy to the injured worker, at any time after a notice of appearance is filed. The request must be accompanied by a copy of the written fee agreement executed by the injured worker.

20.1910 If the lien is acknowledged, the Commissioner shall provide written notice to the employer or insurance carrier and to the injured worker, advising that a lien is claimed against future compensation benefits awarded.

20.1920 Having received written notice of an acknowledged attorney's lien, an employer or insurance carrier shall reserve 20 percent of any permanent disability and/or lump sum retroactive temporary disability compensation owed to the injured worker for the purposes of satisfying the lien. If the employer or insurance carrier fails to do so, in the Commissioner's discretion it shall be liable for payment of the acknowledged lien to the attorney.

20.2000 Notice. Having received written notice of an acknowledged attorney's lien, an employer or insurance carrier shall first notify the injured worker's attorney prior to issuing payment of any compensation benefits subject to the lien.

20.2100 Enforcement. An attorney seeking to enforce an acknowledged attorney's lien must file a written request with the Commissioner, with copies to both the injured worker and the employer or insurance carrier, prior to the date that benefits subject to the lien are due and payable. The request must be accompanied by an itemized statement detailing both the work performed and the hours billed, in increments sufficient to discern whether the charges are reasonable, and an itemized statement of any expenses included in the enforcement request.

20.2110 If enforcement of the lien is approved, the Commissioner shall direct the employer or insurance carrier to deduct the amount approved and advance it to the attorney against (a) the end of any permanent disability compensation due; (b) any lump sum payment of retroactive temporary disability benefits and/or (c) any lump sum compromise settlement.

20.2120 If an attorney fails to request enforcement of a lien in a timely fashion, in the Commissioner's discretion enforcement may be limited or denied so as not to impede the disbursement of benefit payments due to the injured worker.

Rule 21.0000. Third Party Liability Actions.

21.1100 Notice of third party liability action. An injured worker, employer and/or insurance carrier who seeks to enforce the liability of a third party for a compensable work-related injury shall notify the Commissioner by registered mail at least 30 days prior to commencing suit. The notice shall conform to the requirements of 21 V.S.A. § 624(a), and shall also include the state file number assigned to the underlying workers' compensation claim.

21.1200 Process. The prosecution, settlement and/or resolution of any third party liability claim shall conform to the requirements of 21 V.S.A. § 624(b) through (g).

21.1300 Allocation of damages. Where the injured worker's recovery against a third party for damages resulting from personal injury or death is less, after deducting the expenses of recovery, than the full value of such claim, any reimbursement due the employer or insurance carrier shall be limited to that portion of the recovery allocated to damages covered by the Workers' Compensation Act. If the court has not allocated the damages, and/or if the parties cannot agree, any party may request that the Commissioner make an administrative determination. 21 V.S.A. § 624(e)(2).

21.1310 Upon receiving such request, the Commissioner shall order mediation in accordance with Rule 18.0000.

21.1320 Should mediation prove unsuccessful, the Commissioner shall either adjudicate the dispute or refer it to arbitration in accordance with Rule 19.0000. The determination of the Commissioner or arbitrator shall be final.

21.1400 Reimbursement from third party recovery. In determining the extent to which an employer or insurance carrier is entitled to reimbursement from an injured worker's third party recovery under 21 V.S.A. § 624(e)(1), credit shall be allowed for any amounts paid for indemnity compensation, medical services and supplies, vocational screening and assessment, and those vocational rehabilitation costs specified on an approved Return to Work Plan. Credit shall not be allowed for claims adjustment, medical management and/or other vocational rehabilitation costs.

21.1500 Allocating third party recovery expenses; workers' compensation "holiday." An employer or insurance carrier's share of an injured worker's third party recovery expenses shall be calculated by dividing the total allowable third party recovery expenses by the gross third party proceeds allocable to damages covered by the Workers' Compensation Act. This expense ratio shall be applied to reduce any credit, whether past or future, from which the employer or insurance carrier benefits as a result of a third party recovery. 21 V.S.A. § 624(e) and (f).

Rule 22.0000. Reporting Benefit and Expense Payments.

22.1100 Reporting claim-specific data. Within 60 days after the final payment of any claim-related benefits or expenses to or on behalf of an injured worker, the employer or insurance carrier shall file a Report of Benefits and Related Expenses Paid (Form 13) with the Commissioner. 21 V.S.A. §§ 701, 703.

22.1200 Reporting aggregate claim data. On or about July 1 [ st ] annually, the employer or insurance carrier shall file an Aggregate Annual Reporting Form (Form 13-A) with the Commissioner. 21 V.S.A. § 704.

22.1300 Penalty for failure to report. An employer or insurance carrier who fails to file the reports required by this Rule in a timely manner may be subject to administrative penalties in accordance with Vermont Workers' Compensation Rule 45. 21 V.S.A. §§ 702, 704.

Rule 23.0000. Compliance Statements.

23.1100 Generally. Upon receipt of evidence that an employer has failed to procure and/or maintain workers' compensation insurance in accordance with Vermont law, the Commissioner shall deliver a written request, either in person or by certified mail, that the employer complete a Compliance Statement. For the purposes of this Rule, the term "employer" shall include a subcontractor and/or independent contractor. 21 V.S.A. § 690(b)(1).

23.1200 Contents; currently insured employer. If at the time the Compliance Statement is requested the employer has a current workers' compensation policy in force, the following information shall be supplied:

23.1210 The issuing insurance carrier, policy number and policy effective and expiration dates;

23.1220 The insurance agent, if any, through which the policy was procured;

23.1230 The number of employees employed during the policy term, sorted by job site and National Council on Compensation Insurance (NCCI) class code;

23.1240 The number of employee hours for which remuneration was paid, sorted by job site and NCCI class code;

23.1250 A list of all subcontractors and/or 1099 contractors, sorted by job site and including federal employer identification number, function and remuneration paid; and

23.1260 As an attachment, a copy of the insurance policy declaration pages, including the payroll and hours upon which the NCCI classification code(s) and policy premium were based.

23.1300 Contents; currently uninsured employer. If at the time the Compliance Statement is requested the employer does not have a current workers' compensation policy in force, the following information shall be supplied:

23.1310 The number of employees employed during the twelve-month period immediately preceding the request, sorted by job site; and

23.1320 A list of all subcontractors and/or 1099 contractors, sorted by job site and including federal employer identification number, function and compensation paid.

23.1400 Response period. Unless a different time period is specified, and/or if the Commissioner consents in writing to an extension, an employer shall return a completed Compliance Statement to the Commissioner within 30 day of receipt.

23.1500 Penalty for failure to respond; falsified information. An employer who fails to return a Compliance Statement within the appropriate response period, or who falsifies information contained therein, may be assessed an administrative penalty of not more than $ 5,000.00 for each week during which the noncompliance or falsification occurred, as well as any costs and attorney fees required to enforce this Rule. The Commissioner may also seek injunctive relief in Vermont Superior Court, Washington Unit Civil Division. 21 V.S.A. § 690(b)(2). In addition, an employer who knowingly falsifies information contained in a Compliance Statement may be subject to further enforcement action and/or prosecution in accordance with 21 V.S.A. § 708(b) and (c).

23.1600 Review; enforcement. The Commissioner shall review and investigate the information supplied on a completed Compliance Statement, and if warranted, shall take appropriate enforcement action in accordance with 21 V.S.A. § 692 and Vermont Workers' Compensation Rule 45. 21 V.S.A. § 690(b)(3).

23.1610 A Compliance Statement shall be a public record. The Commissioner shall provide an employer's completed Compliance Statement to any person upon request. 21 V.S.A. § 690(b)(3).

23.1620 Upon review and investigation of an employer's completed Compliance Statement, in the event that the Commissioner finds no evidence of non-compliance, timely written notification of this fact shall be provided to the employer and any other requesting party. 21 V.S.A. § 690(b)(4).

Rule 24.0000. Filing Certificates of Insurance, Notices of Cancellation or Non-Renewal and Anti-Fraud Reports; Investigating Claims of Fraud.

24.1100 NCCI as agent. The National Council on Compensation Insurance (NCCI) is hereby designated the Commissioner's agent for the purpose of receiving the certificates of insurance and notices of cancellation and non-renewal required by 21 V.S.A. §§ 690(a), 696 and 697. The information required shall be filed in whatever format deemed acceptable to NCCI. This designation does not extend to a copy of the insurance contract or policy requested by the Commissioner under 21 V.S.A. § 690(a) or to a Compliance Statement requested in accordance with 21 V.S.A. § 690(b)(1) and Rule 23.0000, which shall be filed directly with the Commissioner.

24.1200 Certificate of insurance. A certificate of insurance must be filed with NCCI no later than 30 days following a policy's issuance, renewal and/or reinstatement. The certificate shall include the insured's name, address and federal identification number, the carrier's name and address, the policy number and the policy effective and expiration dates. 21 V.S.A. § 690(a).

24.1300 Notice of cancellation. An insurance carrier seeking to cancel a policy prior to its expiration date shall provide notice, both to NCCI and to the insured employer, at least 45 days prior to the effective cancellation date. The notice to the insured employer shall be provided by certified mail, and shall clearly and specifically state the date and time at which coverage under the current policy shall be cancelled. 21 V.S.A. § 696.

24.1400 Notice of non-renewal. An insurance carrier who does not intend to renew an employer's workers' compensation insurance policy or guarantee contract shall provide notice, both to NCCI and to the insured employer, at least 45 days prior to the current policy or contract expiration date. The notice to the insured employer shall be provided by certified mail, and shall clearly and specifically state the date and time at which coverage under the current policy or contract shall expire. 21 V.S.A. § 697.

24.1410 An insurance carrier who fails to give the notice required by this Rule shall continue the insurance policy or guarantee contract in force beyond its expiration date for 45 days from the date on which the notice of non-renewal is received by both NCCI and the insured employer. 21 V.S.A. § 697. However, in the following circumstances, notice to the insured employer shall not be required, and coverage under the current policy or contract shall expire upon notice to NCCI alone:

24.1411 If, on or before the expiration date stated in the current policy or guarantee contract the insurance carrier has, by delivery of a renewal contract or otherwise, offered to continue the insurance;

24.1412 If the insured employer notifies the insurance carrier in writing that it does not wish that coverage be continued beyond the expiration date stated in the current policy or guarantee contract; and/or

24.1413 If the employer otherwise secures coverage as required by 21 V.S.A. § 687.

24.1500 Penalty for non-compliance. In the Commissioner's discretion, an insurance carrier who fails to comply with the requirements of Rules 24.1200 through 24.1400 above may be subject to administrative penalties and other sanctions as provided in 21 V.S.A. § 688.

24.1600 Anti-fraud plan. Upon request by the Commissioner, a workers' compensation insurance carrier shall file its anti-fraud plan with the Department, which shall include information about fraud investigations, referrals or prosecutions involving Vermont workers' compensation claims, misclassifications and/or miscoding. Information regarding investigations and referrals shall not be public unless the Commissioner or the attorney general commences administrative or criminal proceedings. 8 V.S.A. § 4750(b).

24.1700 Investigating claims of fraud. Upon receipt of an allegation that an employee has committed fraud for the purpose of obtaining a workers' compensation benefit or payment, the Commissioner shall determine whether further investigation is warranted. 21 V.S.A. § 663b.

24.1710 The Commissioner shall require the employer or insurance carrier to promptly investigate specific allegations of fraud and submit a written report.

24.1720 Upon receipt of the employer or insurance carrier's report, the Commissioner shall deliver a copy to the employee, who shall have 30 days within which to respond, either in writing or in person, at a time and in a manner specified by the Commissioner. The Commissioner may order that either the employer or insurance carrier or the employee provide additional information.

24.1730 The Commissioner shall issue a determination on the fraud allegation in a timely manner. An employee who is found to have committed fraud for the purpose of obtaining a workers' compensation benefit or payment shall be ordered to repay all compensation fraudulently received, in addition to administrative penalties and/or other sanctions authorized by 21 V.S.A. § 708. The employee may appeal the Commissioner's determination in accordance with the Vermont Administrative Procedure Act, 3 V.S.A. § 800 et seq.

24.1740 For the purposes of calculating its experience rating, an employer shall not be charged for any compensation benefits or payments determined to have been fraudulently received by an employee.

Rule 25.0000. Excluding Corporate Officers and LLC Managers and Members from Coverage.

25.1100 Definitions. For the purposes of this Rule, the following definitions shall apply:

25.1110 As applied to a for-profit corporation, the terms "board of directors," "director" and "officer" shall be as defined and/or described in the Vermont Business Corporation Act, 11A V.S.A. §§ 1.01 et seq.

25.1120 As applied to a non-profit corporation, the terms "board of directors," "director" and "officer" shall be as defined and/or described in the Vermont Non-Profit Corporation Act, 11B V.S.A. §§ 1.01 et seq.

25.1130 As applied to a limited liability company, the terms "limited liability company," "manager" and "member" shall be as defined and/or described in 11 V.S.A. §§ 3001 et seq.

25.1200 Generally. An executive officer of a corporation, or a manager or member of a limited liability company (LLC), who elects to be excluded from coverage under the Workers' Compensation Act pursuant to 21 V.S.A. § 601(14)(H) must file an Application for Exclusion (Form 29) with the Commissioner for approval. Up to four corporate executive officers or LLC managers or members may be excluded from coverage. A corporate director who does not hold a corporate office and who is not an employee as defined in 21 V.S.A. § 601(14) is considered exempt and does not need to file an application for exclusion.

25.1300 Application for exclusion. The Application for Exclusion must be accompanied by the following documentation:

25.1310 A sworn statement or affidavit from an officer or director of the corporation, a manager or member of the LLC or the attorney for the corporation or LLC, who is fully familiar with the business entity's organizational documents and who confirms the date on which the corporation's board of directors or LLC's managers and members consented to exclude the individuals listed on the Application for Exclusion; or

25.1320 A notarized copy of the minutes of the meeting of the corporation's board of directors, or of the meeting of the LLC's managers and/or members, at which the authority to request exclusion for the individuals listed on the Application for Exclusion was granted; and

25.1330 If the individuals listed on the Application for Exclusion are not identified as officers, managers and/or members in the organizational documents on file with the Secretary of State, a notarized copy of the minutes of the meeting of the corporation's board of directors, or of the meeting of the LLC's managers and/or members, at which they were appointed or recognized as officers, managers and/or members.

25.1400 Review and approval. The Commissioner shall approve a properly documented Application for Exclusion upon verifying that the corporation or LLC is properly registered, either with the Vermont Secretary of State or in the state or country in which it is incorporated. Thereafter, the Commissioner shall notify the applicant in writing, either that the requested exclusion has been granted or the grounds upon which it has been denied.

25.1500 Effect of approved exclusion. If all of the officers of a corporation, or all of the managers and members of an LLC, receive approval for exclusion, and if the corporation or LLC has no other employees, then it shall not be required to purchase workers' compensation insurance coverage. 21 V.S.A. § 601(14)(H).

25.1510 If after having been approved for exclusion, a corporate officer, or manager or member of an LLC, suffers a personal injury and files a claim for workers' compensation benefits, the corporation

25.1520 Other than the excluded officer, member or manager, an exclusion election shall not prevent any individual who is found to be an employee of the corporation or LLC from recovering workers' compensation benefits either from the corporation or LLC or from a statutory employer.

25.1600 New application required. A new Application for Exclusion shall be filed whenever there is a change of business entity, corporate officers or LLC members or managers.

25.1700. Rescinding exclusion. An individual who has elected and been approved for exclusion may rescind the election upon written notice to the Commissioner, the corporation's board of directors or LLC's managers and/or members, and if applicable, the corporation's or LLC's current workers' compensation insurance carrier. A rescinded election shall take effect 30 days after the required notice is received, or as soon as insurance coverage is procured, whichever occurs first.

Rule 26.0000. Self-Insurance.

26.1100 An employer desiring to self-insure under 21 V.S.A. § 687(3) shall annually apply to the Commissioner for approval on a form provided by the Commissioner. The applicant shall submit, for each of the employer's three fiscal years immediately preceding the application:

26.1110 an audited balance sheet and income statement;

26.1120 an annual payroll report, categorized in accordance with the system used by the National Council on Compensation Insurance (NCCI) Occupational Classifications; and

26.1130 the workers' compensation insurance rate including the disease rate for each $ 100.00 of payroll category above as most recently determined by NCCI and as filed with and approved by the Commissioner of Financial Regulation. Copies of that filing may be obtained from NCCI, One Penn Plaza, New York, NY 10119.

26.1200 Using the information obtained in Rule 26.1100, the Commissioner shall annually determine whether or not the employer meets each of the following tests for each of the preceding three years:

26.1300 For the purposes of Rule 26.1200:

26.1310 AEC = Average Expected Claims = the sum of the products of the actual payroll as determined by category under Rule 26.1120, multiplied by the rate for each payroll category as determined in Rule 26.1130, divided by 100.

26.1311 F = cash flow = net income after taxes plus allowances for depreciation and depletion.

26.1320 E = earnings = net income before taxes and extraordinary items.

26.1321 A = total assets.

26.1330 L = total liabilities.

26.1331 CA = current assets.

26.1340 CL = current liabilities.

26.1341 I = inventory.

26.1350 TA = tangible assets = total assets less intangible items.

26.1351 S = net sales = gross sales less returns and allowances.

26.1360 W = net worth = assets less liabilities (A-L).

26.1361 a = subscript denoting industry median data.

26.1370 b = subscript denoting lower base quartile industry data.

26.1371 c = subscript denoting upper quartile industry data.

26.1400 If the Commissioner finds that an employer fails one or more of the tests enumerated in Rule 26.1200, the Commissioner shall disapprove the application for self-insurance unless the Commissioner finds that a test is inappropriate to a particular employer because of the nature of that employer's business, in which case the Commissioner may waive that test. If the Commissioner finds that the employer passes each of the tests enumerated in Rule 26.1200, the Commissioner may approve the application for self-insurance and require the employer to do one or more of the following:

26.1410 Establish a cash reserve fund, held in trust in this state, from which claim payments can immediately be made. The fund should be equal to 25% of AEC as defined in Rule 26.1300. Payments from the fund must be able to be made by the Commissioner; and

26.1420 Hold a surety bond in an amount determined by the Commissioner written by a company licensed to do business in this state guaranteeing the payment of claims in the amount of that bond. The bond must require notice to the Commissioner at least 90 days before cancellation; and

26.1430 Hold excess insurance issued by a company authorized to do business in the State of Vermont for claims in excess of the amount of the surety bond under which claims are payable regardless of the financial bond under which claims are payable regardless of the financial condition (including bankruptcy) of the employer; and

26.1400 Identify a person or claims adjusting agency who is skilled in workers' compensation claims adjustment and who has a demonstrated knowledge of the Vermont Act. That person must have the full power and authority to act for the self-insurer in any matter respecting workers' compensation; and

26.1500 Have sufficient assets located in this state that are readily available to satisfy claims.

Rule 27.0000. Application and Effect of Rules, Severability, Effective Date.

27.1100 Procedures under these rules, not affecting the substantive rights of a party, shall apply to pending and future claims and cases. Nothing contained in these rules shall be construed to limit the Commissioner's authority under Vermont's Workers' Compensation Act, 21 V.S.A. §§ 601 et seq.

27.1200 Except for Vermont Workers' Compensation Rules 40.000 (medical fee schedule) and 45 (administrative penalties), Vermont Vocational Rehabilitation Rules 50.0000-58.0000, the rules relating to Bennington Sarcoidosis Claims and the Workers' Compensation Administrative Fund rules, all previously promulgated rules under Vermont's Workers' Compensation Act, 21 V.S.A. §§ 601 et seq., are hereby repealed.

27.1300 In the event that any part or provision of these rules is modified, limited or invalidated by either court decision or statute, all other parts and provisions shall remain in full force in effect.

27.1400 These rules shall take effect on August 1, 2015.

History

• EFFECTIVE DATE:
• February 7, 1994 (Secretary of State Rule Log #94-1)
• AMENDED:
• April 1, 1995 Secretary of State Rule Log #95-22 and #95-24; May 15, 1996 Secretary of State Rule Log #96-33; September 13, 1999 Secretary of State Rule Log #99-42); August 15, 2000 Secretary of State Rule Log #00-39, #00-40, #00-41; September 13, 2000 - Rule 10 Secretary of State Rule Log #00-48; August 2, 2001 Secretary of State Rule Log #01-43; December 6, 2001 - Rule 10 Secretary of State Rule Log #01-65; March 5, 2007 Secretary of State Rule Log #07-002; August 31, 2009 Secretary of State Rule Log #09-026; June 15, 2010 Secretary of State Rule Log #10-023; August 1, 2015 Secretary of State Rule Log #15-031; October 2015 [correction to various sections by Agency]; November 1, 2016 Secretary of State Rule Log #16-040 [11.1400, 12.1730], #16-042 [20.1300 and correction to various sections by Agency]; 11/30/2024 Secretary of State Rule Log #24-041
• STATUTORY AUTHORITY: 21 V.S.A. §§ 601, 602, 640(d), 640c, 667 and 678(a)

Chapter 004 WORKERS' COMPENSATION ADMIN. FUND RULES

24-004 Code Vt. R. 24-010-004-X WORKERS' COMPENSATION ADMIN. FUND RULES

1 Statement of Purpose

The purpose of the Workers' Compensation Administration Fund is to provide the funds necessary to administer Vermont's Workers' Compensation program as constitutionally and statutorily mandated.

2 Definitions

As used in these Rules:

(a) "Commissioner" means the Commissioner of the Department of Labor & Industry or his/her designee;

(b) "Workers' Compensation Program" means the Workers' Compensation Program under Chapter 9 of Title 21 and the Compensation for Occupational Diseases Program under Chapter 11 of Title 21;

(c) "Insurer" means an insurance carrier as defined in 21 VSA § 601(8) authorized to transact the business of insurance in this state;

(d) "Self insurer" means an employer approved by the Commissioner under 21 VSA § 687(3) or a state, county or municipal body that retains employees for public employment as that term is defined in 21 VSA § 601(12).

(e) "Expenditures for administration of the program" includes but is not limited to the operational costs of the Workers' Compensation Program necessary to process and record all injury reports, review and approve all compensation agreements, monitor payment and insurance company compliance with the law, mediate disputes, conduct hearings and issue orders when appropriate, and perform all other administrative responsibilities granted under Chapters 9 and 11 of Title 21, but shall not include the payment of any particular benefits claimed under either of said chapters;

(f) "Direct calendar year premium" means the direct written workers' compensation premium reported to the Vermont Department of Banking, Insurance and Securities and the National Association of Insurance Commissioners;

(g) "Workers' compensation losses" means all benefits [due or] paid and/or the reasonable value of all services provided as a consequence of an employee's work-related injury or illness under Chapters 9 and 11 of Title 21, but does not include attorney's fees or costs under § 678 of Title 21.

3 Reports by insurers; Assessment

(a) Each insurer authorized to transact the business of workers' compensation in this state shall collect from each employer insured for claims under the Workers' Compensation Act a Workers' Compensation Adminstration Fund assessment at the rate of .70 percent of the direct calendar year premium for workers' compensation insurance to be paid by each employer. Such assessment shall appear separately on the premium notice, shall be noted as the Workers' Compensation Administration Fund Assessment and shall not be reported as premiums for tax or regulation purposes. Insurers shall be guarantors of payment to the fund, but shall not be precluded from cancelling or refusing to renew a workers' compensation insurance policy for an insured from whom collection is not made despite reasonable efforts by the carrier to obtain payment, pursuant to s 696 and 697 of Title 21.

(b) Estimated payment. Commencing January 1, 1991 said assessment shall be due and payable as follows:

(1) The estimated assessment for the period from January 1 through March 31 shall be due and payable no later than April 30;

(2) The estimated assessment for the period from April 1 through June 30 shall be due and payable no later than July 31;

(3) The estimated assessment for the period from July 1 through September 30 shall be due and payable no later than October 31;

(4) The estimated assessment for the period from October 1 through December 31 shall be due and payable no later than January 31.

(c) Each quarterly payment referred to above shall be accompanied by a verified statement, on a form prescribed by the Commissioner, indicating the estimated direct written workers' compensation premiums billed during the preceding quarter.

(d) A reconciliation payment, representing the difference between the total of the quarterly estimated assessments paid on the above-mentioned dates and the actual assessment due as calculated according to the actual direct written workers' compensation premium reported annually to the Vermont Department of Banking, Insurance and Securities, shall be due and payable no later than March 15, 1992 and annually on March 15 thereafter.

Said reconciliation payment shall be accompanied by a verified statement, on a form prescribed by the Commissioner indicating the total direct written workers' compensation premium billed during the preceding calendar year as reported annually to the Vermont Department of Banking, Insurance and Securities, and the total quarterly estimated assessments already paid. Any overpayment established by such reconciliation statement may be credited against the next estimated quarterly payment due.

(e) Transition Period.

(i) The estimated assessment for the period from July 1, 1990 through December 31, 1990 shall be due and payable no later than February 1, 1991.

(ii) The reconciliation statement and reconciliation payment if any for the above period shall be due no later than March 15, 1991. Said statement shall separately list the actual direct written workers' compensation premiums billed for the period from January 1, 1990 through June 30, 1990 and for the period from July 1, 1990 through December 31, 1990. The total shall correspond to the total direct written workers' compensation premiums billed during calendar year 1990 as reported to the Vermont Department of Banking, Insurance & Securities.

4 Reports by Self-Insurers; Assessment

(a) On or before March 1, 1992, and annually on March 1 thereafter, each self insurer shall file a verified report, on forms prescribed by the Commissioner, indicating the total amount paid for workers' compensation losses during the preceding calendar year.

(b) Each self-insurer for workers' compensation coverage shall pay annually a workers' compensation administration fund assessment at the rate of one percent of the total amount paid [and/or due] for workers' compensation losses during the preceding calendar year. Said assessment shall be due and payable no later than March 1, 1992 and annually on March 1 thereafter.

(c) Notwithstanding the provisions of subparagraphs (a) and (b) above, with the prior written approval of the Commissioner a self-insurer may elect to file its report and pay the assessment due within 60 days of the close of its fiscal year rather then on a calendar year basis.

(d) Transition period. The report and assessment for the period from July 1, 1990 through December 31, 1990 shall be due and payable no later than March 1, 1991.

5 Inspection of records; Audits

(a) The Commissioner may inspect, audit or otherwise review and evaluate the records of any insurer or self-insurer of workers' compensation liability in the state. Any such inspections or other evaluation shall be made at reasonable times and in a manner reasonably necessary to verify all information related to this section. In addition, at least every three years an annual audit may be required, at the insurer's or self-insurer's sole expense, which audit shall include a certification from a certified public accountant verifying the accuracy of the direct written workers' compensation premium and/or total amount of workers' compensation losses reported for the audited period.

(b) A self-insurer's refusal to allow reasonable inspection or verification shall be sufficient cause for the revocation of the Commissioner's approval of self-insurance. After notice and hearing the Commissioner may revoke such approval and order the employer to obtain workers' compensation coverage pursuant to [687 of Title 21.

6 Refund

The Commissioner may credit or remit all or any part of an assessment paid pursuant to these rules that is determined to have been paid or collected erroneously.

7 Enforcement

An insurer or self-insurer who fails to comply with the provisions of these rules shall be subject to prosecution by the Attorney General upon referral by the Commissioner and in addition to the assessment calculated pursuant to Rule 3(a) or 4(b) above also shall be liable for interest, attorney's fees and other related costs of collection.

[Forms]

INSURER'S RECONCILIATION STATEMENT

| 1. | Total direct written worker's compensation premium as reported to the Vermont Department of Banking, Insurance and Securities on page 14, line 16, column (2) of the insurance carrier's annual statement; | $ .... | | --- | --- | --- | | 2. | Actual annual assessment due (line 1 X .007): | $ .... | | 3. | Quarterly assessments paid: | | | April 15 | $ .... | | | July 15 | $ .... | | | October 15 | $ .... | | | January 15 | $ .... | | | Total: | $ .... | | | 4. | Balance due (line 2 - line 3): | $ .... | | or | | | | Credit to be subtracted from | | | | next quarterly payment | | | | (line 3 - line 2): | $ .... | |

SELF-INSURER'S REPORT

| 1. | Total Workers' Compensation Benefits paid for the reporting period: | | | --- | --- | --- | | (a) Indemnity | $ .... | | | (b) Medical | $ .... | | | (c) Total | $ .... | | | 2. | Assessment due | | | (line 1(c) X .01) | $ .... | | | 3. | Claims for which benefits were paid for this reporting period: | | | Name | Date of Injury | State File # |

History

• Effective Date: January 21, 1991 (SOS Rule Log # 91-2)

Chapter 005 RULE 45.0000 - RULES FOR ADMINISTRATIVE CITATIONS AND PENALTIES

24-005 Code Vt. R. 24-010-005-X RULE 45.0000 - RULES FOR ADMINISTRATIVE CITATIONS AND PENALTIES

45.1000 Scope of Rules

These rules establish the procedure for issuing administrative citations, conducting hearings on citations and penalties, and assessing penalties.

The Commissioner, after notice and an opportunity for a hearing, may assess an administrative penalty against any person who violates the Workers' Compensation statute or any rule adopted pursuant to it, or any order issued by the Commissioner or the Workers' Compensation Division.

45.2000 Authority to Adopt Rules

45.2100. These rules are adopted pursuant to 21 V.S.A. §§ 602, 603, 604, 663b, 688, 689, 690(b), 692, 702, 704, 705, and 708. (Employer liability and Workers' Compensation);

45.2200. 8 V.S.A. §§ 4793(c) and 4803. (Licensing requirements); and

45.2300. 3 V.S.A. §§ 809-815. (Administrative Procedure).

45.3000 Issuance of Administrative Citations

45.3100. The Director of the Workers' Compensation and Safety Division may issue an administrative citation to any person, including an employee, employer, attorney, medical provider, insurer or a representative of the insurer, if the Director determines after an investigation that the person has:

45.3110. Refused or neglected to comply with the provisions of the Workers' Compensation Act (21 V.S.A. Chapter 9);

45.3120. Refused or neglected to comply with the rules promulgated pursuant to the Act;

45.3130. Refused or neglected to file in a complete and timely fashion any reports required by the Act or the rules, or when ordered to do so by the Commissioner;

45.3140. Refused or neglected to comply with any interim or final order issued by the Commissioner or his or her representative; or

45.3150. Willfully made a false statement or representation for the purpose of obtaining any benefit or payment for either himself or herself or any other person.

45.3200. Service of Citation.

The administrative citation shall be served on the person by certified mail or personal service. Each citation shall be in writing and shall specifically describe the nature of the violation and include a citation to the specific statute, rule, or order alleged to have been violated. The citation shall also state the amount of the administrative penalty imposed, the debarment period if applicable, and the process for requesting a hearing.

45.3300. Response.

The person served with an administrative citation shall have 20 days from the date of service to notify the Director in writing of his or her intent to contest the administrative citation and penalty. If the person does not file a notice contesting the citation, the citation and penalty shall be deemed a final order of the Commissioner.

45.3400. Enforcement Authority Not Limited

Administrative citations and penalties issued under these rules shall not limit the authority of the Commissioner to issue orders or seek injunctive relief and penalties through the court, or to take any other appropriate enforcement action authorized by law.

45.3500. Investigations and Determinations Under 21 VSA § 663b.

45.3510. If an allegation of claimant fraud is submitted to the Department, a determination shall be made as to whether further investigation is warranted. If warranted, the Commissioner shall order the Workers' Compensation insurer to investigate the specific allegations of fraud and submit a written report to the Department.

45.3520. The report submitted to the Department shall contain:

45.3521. A description of all action taken to investigate the allegations;

45.3522. The names and contact information of all persons interviewed, along with a copy of any statements taken;

45.3523. Copies of any photographs, videos, or other recordings taken as part of the investigation; the reports of any investigators hired as part of the investigation; and,

45.3524. The insurer's opinion as to whether fraudulent activity has occurred.

45.3525. The insurer shall provide the Department with a status report on its investigation every 30 days, until a final report is submitted.

45.3526. The investigation and report shall be in addition to any actions related to adjusting the claim.

45.3530. Upon receipt of the insurer's report the Commissioner shall determine whether it is complete, or whether additional information is necessary. Once a completed report is received, the Commissioner shall provide the claimant with an opportunity to respond in person or in writing within 30 days.

45.3540. After providing the claimant an opportunity to respond, the Commissioner shall make a determination as to whether fraud has occurred, and may assess penalties and order reimbursement as appropriate.

45.4000 Administrative Citation and Penalty Hearing

45.4100. A person contesting a citation and penalty issued pursuant to Rule 45.3000 shall be entitled to a hearing before the Commissioner within 60 days of filing the notice to contest. The 60-day time frame may be extended by the Commissioner if the person makes a written request for additional time to prepare for the hearing.

45.4200. Hearing Notice.

The hearing notice shall include the following:

45.4210. A statement of the time, place, and nature of the hearing;

45.4220. A statement of the legal authority and jurisdiction under which the hearing is to be held;

45.4230. A reference to the specific statute, rule, or order involved in the hearing; and

45.4240. A short and plain statement of the matters at issue.

45.4300. The Commissioner shall appoint a hearing officer to hear the evidence, prepare findings, and issue a decision. The procedures set forth in 3 V.S.A. §§ 809-813, and § 815 shall apply to all hearings conducted under these rules.

45.4400. The person may appear at the hearing with counsel, present evidence, and examine and cross-examine witnesses.

45.4500. Evidence shall be admitted at the hearing as provided in 3 V.S.A. § 810.

45.4600. The hearing officer may compel by subpoena the attendance and testimony of witnesses and the production of books and records in accordance with 21 V.S.A. § 603(a), and 3 V.S.A. §§ 809a and 809b.

45.4700. Nothing in this section shall prohibit the informal disposition of a citation by stipulation, agreed settlement, consent order, or default. An informal disposition of the citation may proceed using clear and simple documentation without complete adherence to the requirements of this section.

45.5000 Administrative Penalties

45.5100. False Statement or Representation.

45.5110. A person who willfully makes a false statement or representation for the purpose of obtaining any benefit or payment either for himself or herself or another person shall be assessed an administrative penalty of not more than $ 20,000.00, in accordance with 21 V.S.A. § 708.

45.5120. Except as provided in 45.5160 - 45.5190, the Commissioner shall not reduce a penalty imposed under rule 45.5110 if:

45.5130. The false statement or representation was made to establish the compensability of the claim; or

45.5140. The false statement or representation involved falsifying medical records; or

45.5150. The false statement or representation was sworn testimony.

45.5160. Penalty Reduction Factors.

The Commissioner may reduce the penalty if the person demonstrates:

45.5170. That the person has repaid or entered into an agreement to repay the benefits or amounts received as a result of the false statement or representation; and

45.5180. The benefit or payment gained was less than the amount of the penalty; or

45.5190. The person has agreed to forfeit any claim for additional Workers' Compensation benefits based on the alleged workplace injury.

45.5200. Forfeiture of Benefits.

45.5210. An employee who willfully makes a false statement or representation of material fact for the purpose of obtaining a Workers' Compensation benefit shall forfeit all or a portion of his or her right to benefits based on the alleged workplace injury.

45.5220. Partial Forfeiture of Benefits.

45.5230. In the Commissioner's discretion, an employee may forfeit only a portion of his or her Workers' Compensation benefits if:

45.5240. The employee has repaid the benefits or entered into an agreement to repay the benefits received as a result of the false statement or representation; or

45.5250. The benefit or payment to be gained was less than $ 1,000.00; or

45.5260. The benefit or payment to be gained was limited to one portion of the Workers' Compensation benefit to which the employee was entitled. In this instance, the benefits owed the employee that were not received as a result of the false statement or representation shall not be forfeit.

45.5300. Referral to Department of Financial Regulation.

Whenever the Commissioner has reason to believe that an employer has willfully made a false statement or representation for the purpose of obtaining a lower Workers' Compensation premium, written notice and any supporting documentation shall be provided to the Commissioner of Financial Regulation along with a request to investigate and take any appropriate action on the matter.

45.5400. Debarment; False Statement or Representation.

45.5410. In addition to the penalties listed in rule 45.5110 above, the Commissioner shall prohibit an employer who willfully makes a false statement or representation for the purpose of deriving any benefit, including a lower insurance premium, from contracting, directly or indirectly, with the State or any of its subdivisions, for up to three years.

45.5420. Any prohibition from contracting with the State shall be made only after consultation with the Commissioner of Buildings and General Services or the Secretary of Transportation, or other agencies as appropriate. When the Commissioner believes that debarment is appropriate, the Commissioner shall provide written notice and supporting documentation to the Commissioner of Buildings and General Services or the Secretary of Transportation or other Agency or Department head as appropriate. The debarment shall be ordered if no objection is raised by the Department or Agency consulted within five business days of receiving notice of the proposed debarment. If an objection is raised, the Commissioner shall consider it, but in his or her discretion may order the debarment nevertheless.

45.5440. An initial violation shall subject the employer to a debarment period of one year.

45.5450. A second violation occurring within three years of the previous violation shall subject the employer to a debarment period of two years.

45.5460. A third or subsequent violation occurring within three years of the most recent violation shall subject the employer to a debarment period of three years.

45.5470. The Commissioner may reduce the period of debarment if the employer demonstrates that the non-compliance was the result of a good faith misunderstanding of the law's requirements, excusable neglect, or other mitigating factor.

45.5500. Administrative Penalty; Failure to Insure.

45.5510. An employer that fails to comply with the requirements of 21 V.S.A. § 687 (maintaining workers' compensation insurance or self-insurance as required by law) shall be assessed an administrative penalty of not more than $ 100.00 per day for the first seven days that the employer neglected to secure coverage and not more than $ 150.00 for every day thereafter. An employer shall ensure that any subcontractor it has hired for a particular job is in compliance with 21 V.S.A. § 687.

The per day penalty shall be based on the annual- North American Classification System (NAICS) for the employer. NAICS groupings for Industry Sector may be found in the appendix to this rule.

45.5511. For employers with NAICS Industry Sectors 11, 51, 52, 53, 54, 55, 61, 71, 92, the penalty shall be $ 30 per day for each day without insurance for an initial violation. If a second violation occurs within three years of the initial violation, the per day penalty shall be doubled. If a third violation occurs within three years of the initial violation the penalty shall be assessed at the full statutory rate.

45.5512. For employers with NAICS Industry Sectors 31, 32, 33, 42, 44, 45, 62 the penalty shall be $ 40 per day for each day without insurance for an initial violation. If a second violation occurs within three years of the initial violation, the per day penalty shall be doubled. If a third violation occurs within three years of the initial violation the penalty shall be assessed at the full statutory rate.

45.5513. For employers with NAICS Industry Sectors 21, 22, 23, 48, 49, 56, 72, 81 the penalty shall be $ 50 per day for each day without insurance for an initial violation. If a second violation occurs within three years of the initial violation, the per day penalty shall be doubled. If a third violation occurs within three years of the initial violation the penalty shall be assessed at the full statutory rate.

45.5520. Penalty Reduction Factors.

The Commissioner may reduce the penalty assessed under section 45.5500 if the employer demonstrates:

45.5530. That the failure to secure or maintain Workers' Compensation insurance was inadvertent or the result of excusable neglect and was promptly corrected;

45.5540. That the penalty amount significantly exceeds the amount of any premium expenditures that would have been paid if an insurance policy had been properly secured or maintained; or

45.5550. That the small size of the employer and the non-hazardous nature of the employment presented minimal risk to employees.

45.5560. Failure to Insure; Stop-Work Order.

45.5570. If an employer fails to comply with the requirements of 21 V.S.A. § 687 after investigation by the Commissioner, the Commissioner shall issue an emergency stop-work order to the employer. Additionally, an employer that fails to secure Workers' Compensation coverage after being ordered in writing to do so by the Commissioner shall be assessed an administrative penalty of up to $ 250.00 for every day the employer fails to obtain coverage after being ordered to do so, and may also be assessed an administrative penalty of up to $ 250.00 per employee for every day that the employer has failed to secure the ordered Workers' Compensation coverage.

45.5571. The stop-work order shall clearly state the name of the employer, the penalties for violating the order, the process for having the order rescinded, and the method to appeal the order.

45.5572. A stop-work order may be appealed pursuant to VRCP 75.

45.5580. Debarment; Violation of Stop-Work Order.

45.5590. In addition to the penalties listed in Rule 45.5570 above, the Commissioner shall prohibit an employer that has been issued a stop-work order pursuant to 21 V.S.A. § 692(b) from contracting, directly or indirectly, with the State or any of its subdivisions, for up to three years.

45.5591. Prior to issuing any debarment penalty, the Commissioner shall consult with the Commissioner of Buildings and General Services and the Secretary of Transportation, or other agencies as appropriate. The consultation may occur informally provided that a written or electronic record of that consultation naming the employer involved, a description of the violation(s), the proposed debarment period, and any response received from the Commissioner of Buildings and General Services or the Secretary of Transportation is maintained. The debarment shall be ordered if no objection is raised by the Department or Agency consulted within five business days of receiving notice of the proposed debarment. If an objection is raised, the Commissioner shall consider it, but in his or her discretion may order the debarment nevertheless.

45.5592. An administrative determination shall be issued to advise the employer of the debarment period and the employer's appeal rights.

45.5593. In establishing a debarment period under this section, the Commissioner may consider any relevant mitigating factors, including the employer's good faith or excusable neglect, or the impact of debarment on public health and safety.

45.5594. An initial violation shall result in a debarment period of one year, prior to consideration of any mitigating factors.

45.5595. A second violation occurring within three years from the previous violation shall result in a debarment period of two years, prior to consideration of any mitigating factors.

45.5596. A third or subsequent violation occurring within three years from the most recent violation shall result in a debarment period of three years, prior to consideration of any mitigating factors.

45.5597. Notwithstanding any mitigating factors, the debarment period shall not be less than the period during which the employer was in violation of 21 V.S.A. § 687.

45.6000 Severability Clause

In the event any part or provision of these rules is held to be illegal, this shall not have the effect of making void or illegal any of the other parts or provisions of these rules.

45.6600 Other Penalties

45.6610. Non-compliance with an interim or final order.

Any person, including an employer or Workers' Compensation insurance carrier who fails to comply with an interim or final order of the Commissioner shall be assessed a penalty of $ 500.00. An additional penalty of $ 100.00 per day shall be assessed for each day the person fails to comply after the date set for compliance. The total penalty shall not exceed $ 5,000.00. The Commissioner may reduce the penalty if the person demonstrates that non-compliance was the result of excusable neglect.

45.6620. A self-insured employer or Workers' Compensation insurance carrier that fails to ensure that any of its agents or subcontractors complies with the Workers' Compensation statute or rules, or with an interim or final order of the Department, shall be assessed a penalty of $ 500.00 for a first offense. A first offense shall be defined as one instance of failing to comply with the statute, rule, or order in one claim. The employer or a Workers' Compensation insurance carrier shall be assessed an additional penalty of $ 500.00 for each additional instance of failing to comply but shall not be assessed a penalty in excess of $ 5,000.00. In addition, the agent or subcontractor of an employer or insurer who refuses or neglects to comply shall be assessed a penalty of $ 50.00 for each instance of refusing or neglecting to comply with the Act, but shall not be assessed a penalty in excess of $ 5,000.00.

45.6630. Penalty; Failure to Submit Forms or Reports; Technical Violations

45.6635. An employer that fails to submit a First Report of Injury (Form 1) within 72 hours of receiving notice or knowledge of a claimed work-related injury causing an absence of one day or more, or necessitating medical attendance, shall be assessed a penalty of $ 100.00 for each violation.

45.6640 An employer that fails to provide an employee with a copy of the First Report of Injury (Form 1) promptly, after filing it with the Department, shall be assessed a penalty of $ 50.00 for each violation.

45.6650. Any person, including an employer or Workers' Compensation insurance carrier who fails to submit any form required by the Workers' Compensation statute or rules to be filed with the Department shall be assessed a penalty of $ 100.00 for each violation.

45.6660. An employer or insurance carrier that fails to comply with 21 V.S.A. § 640a shall be assessed a penalty of $ 500.00.

45.6670. An employer or Workers' Compensation insurance carrier that fails to file any interim or final report required by 21 V.S.A. §§ 701, 702, or 703 shall be assessed a penalty of $ 100.00 for each violation.

45.6680. An employer or Workers' Compensation insurance carrier that fails to file any statistical report requested by the Commissioner or his or her designee pursuant to 21 V.S.A. § 704 shall be assessed a penalty of $ 1,000.00.

45.6690. The penalty for any administrative or technical violation not otherwise noted in this section shall be $ 500.00.

45.7000 Violations of 21 VSA Section 690(b)

45.7100. The Commissioner may issue a written request directing an employer to provide a Workers' Compensation Compliance Statement. Upon receipt of a request the employer shall provide all information required by 21 VSA § 690(b) within thirty days of receiving the request. An employer may request additional time in which to respond, and if good cause is demonstrated, the Commissioner may grant additional time to respond.

45.7200. An employer that fails to comply with a request for a compliance statement within thirty days, or if an extension is granted, by the extension date may be subject to a penalty of up to $ 5000.00 a week until compliance occurs.

45.72100. The penalty for a first offense shall be $ 1000.00 for the first week of noncompliance and shall increase $ 500.00 for each subsequent week up to a maximum of $ 5000.00 per week. The penalty for subsequent failures to comply with a request for a compliance statement shall be $ 5000.00 per week

45.72200. Penalty Reduction Factors

The Commissioner may reduce the penalty assessed under this section if the employer demonstrates:

That the failure to provide a compliance statement was inadvertent or the result of excusable neglect and was promptly corrected; or,

The assessed penalty is out of proportion with the small size of the employer.

Falsifying Compliance Statement

45.7300. An employer that falsifies information on a compliance statement shall be subject to an administrative penalty of $ 5000.00 for each week that the falsification occurred.

45.8000 Severability

In the event any part or provision of these rules is held invalid, the invalidity shall not affect the remainder of the rules that can be given effect without the invalid provision, and to this end these rules are severable.

45.9000 Effective Date

These Rules are effective February 13, 2017

Appendix to Rule 45. 2012 NAICS.

The following table provides a general description of the two digit NAICS sector codes and the corresponding Rule 45 penalty section.

| Rule 45 Section | Sector | Description | | --- | --- | --- | | $S 45.5511 | 11 | Agriculture, Forestry, Fishing and Hunting | | $S 45.5513 | 21 | Mining, Quarrying, and Oil and Gas Extraction | | $S 45.5513 | 22 | Utilities | | $S 45.5513 | 23 | Construction | | $S 45.5512 | 31-33 | Manufacturing | | $S 45.5512 | 42 | Wholesale Trade | | $S 45.5512 | 44-45 | Retail Trade | | $S 45.5513 | 48-49 | Transportation and Warehousing | | $S 45.5511 | 51 | Information | | $S 45.5511 | 52 | Finance and Insurance | | $S 45.5511 | 53 | Real Estate and Rental and Leasing | | $S 45.5511 | 54 | Professional, Scientific, and Technical Services | | $S 45.5511 | 55 | Management of Companies and Enterprises | | $S 45.5513 | 56 | Administrative and Support and Waste Management and Remediation Services | | $S 45.5511 | 61 | Educational Services | | $S 45.5512 | 62 | Health Care and Social Assistance | | $S 45.5511 | 71 | Arts, Entertainment, and Recreation | | $S 45.5513 | 72 | Accommodation and Food Services | | $S 45.5513 | 81 | Other Services (except Public Administration) | | $S 45.5511 | 92 | Public Administration |

More detailed information on NAICS Codes and industry sectors is available at: https://www.census.gov/cgi-bin/sssd/naics/naicsrch§chart=2012

History

• STATUTORY AUTHORITY: 8 V.S.A. §§ 4793, 4803; 21 V.S.A. §§ 602, 603, 604, 663b, 688, 689, 690, 692, 702, 704, 705, 708
• EFFECTIVE DATE: April 1, 1995 Secretary of State Rule Log #95-20
• AMENDED: May 11, 2001 Secretary of State Rule Log #01-30; February 13, 2017 Secretary of State Rule Log #17-002

Chapter 006 WORKERS' COMPENSATION MEDICAL FEE SCHEDULE - RULE 40.000

24-006 Code Vt. R. 24-010-006-X WORKERS' COMPENSATION MEDICAL FEE SCHEDULE - RULE 40.000

Section 40.000 Workers' Compensation Medical Fee Schedule

The five-digit numeric codes and descriptions included in Rule 40. 000, Medical Fee Schedule, are obtained from the Physicians' Current Procedural Terminology, Copyright 2005 and any updates thereto, by the American Medical Association (CPT). Appendix I of Rule 40.000 shall be updated on April 1 of each consecutive year to reflect any additions, deletions and modifications of the CPT Codes contained in any update to the Physicians' Current Procedural Terminology, Copyright 2005. CPT is a listing of descriptive terms and numeric identifying codes and modifiers for reporting medical services and procedures performed by physicians.

This publication includes only CPT numeric identifying codes and modifiers for reporting medical services and procedures that were selected by the Vermont Department of Labor. Any use of CPT outside the fee schedule should refer to the Physicians' Current Procedural Terminology, copyright 2005 American Medical Association and any update thereto. These CPT publications contain the complete and most current listing of CPT descriptive terms and numeric identifying codes and modifiers for reporting medical services and procedures.

No fee schedules, basic unit values, relative value guides, conversion factors or scales are included in any part of the Physicians' Current Procedural Terminology, copyright 2005 American Medical Association and any update thereto. All rights reserved.

Section 40.010 General Provisions

Section 40.011 Authority and Purpose

This rule is promulgated by the Vermont Department of Labor under the authority of 21 V.S.A. § 640(d). It establishes that the liability of an employer to pay for medical, surgical, hospital and nursing services provided to an injured employee shall not exceed the maximum fee for a particular service as provided for in this rule.

Section 40.012 Definitions

(A) "Charge" shall mean the amount billed by the health care provider or health care facility to all payers for the same service, whether under workers' compensation or not. Hospitals shall provide an electronic copy of their charge master to the department within 45 days of the effective date of this rule.

(B) "CPT code" means a numeric code, included in the Current Procedure Terminology manual, used to identify a specific medical service, article or supply. The Current Procedure Terminology manual is published by and may be purchased from the American Medical Association, Order Department: OP054194HA, P.O. Box 10950, Chicago, Illinois 60610.

(C) "Commissioner" means the Commissioner of the Vermont Department of Labor.

(D) "Follow-up Days (FUD)" means the maximum number of days of care following a surgical procedure that are included in the procedure's maximum allowable payment but does not include care for complications, exacerbations, recurrent, or other diseases or injuries.

(E) "Health care facility" shall mean the same as defined in 18 V.S.A. § 9432(7).

(F) "Health care provider" shall mean the same as defined in 18 V.S.A. § 9432(8).

(G) "Hospital" shall mean the same as defined in 18 V.S.A. § 1902(a) and shall be licensed in its state of domicile.

(H) "Incidental Surgery" means a surgery which is performed on the same patient, on the same day, by the same doctor but is not related to the diagnosis.

(I) "Maximum Allowable Payment" means the maximum fee for a procedure listed in Appendix I, subject to the provisions of section 40.020 of this rule, or the health care facility's or health care provider's charge whichever is less. For those procedures having no code listed in Appendix I of this fee schedule, payment shall not exceed 83% of the charge for the service. This percentage shall be adjusted annually to consider any increase or decrease in the total operating expense of all hospitals based on hospital budget submissions to the Department of Banking, Insurance, Securities, and Health Care Administration (BISHCA). The change shall be calculated using the ratio of the new cost-to-charge ratio to the prior year cost-to-charge ratio.

(J) "Modifier" means a two-digit number that is added to a procedure code to indicate that the service rendered differs in some material respect from the service described in this rule or in the Current Procedure Terminology manual in effect on the date the service was rendered.

(K) "Nursing home", "residential care home", and "therapeutic community residence" shall mean the same as defined in 33 V.S.A. § 7102 and shall be licensed in its state of domicile.

(L) "Health Insurer", means any health insurance company, nonprofit hospital and medical service corporation and managed care organizations.

(M) "Employer", includes any body of persons, corporate or unincorporated, public or private, and the legal representative of a deceased employer, and includes the owner or lessee of premises or other person who is virtually the proprietor or operator of the business there carried on, but who, by reason there being an independent contractor or for any other reason, is not the direct employer of the worker there employed. If the employer is insured, "employer" includes the carrier so far as applicable. ( 21 V.S.A. § 601(3) and § 687 ).

(N) "Insurance Carrier", includes any corporation from which an employer has obtained workers' compensation or guaranty insurance in accordance with the provisions of 21 V.S.A. § 601.

(O) "Medical Necessity", Workers' compensation insurers are only responsible for paying for services or items that are medically necessary. Medically necessary is defined as health care services that "are appropriate, in terms of type, amount, frequency, level, setting, and duration to the beneficiary's diagnosis or condition". Medically necessary care must be consistent with generally accepted practice parameters as recognized by health care providers in the same or a similar general specialty as typically treat or manage the diagnosis or condition, and help restore or maintain the claimant's health; or prevent deterioration or palliate the claimant's condition.

Section 40.013 Interpretation

It is the intention of the Vermont Department of Labor that this rule be generally interpreted and administered based on the conventional practices of the licensed health insurers in Vermont, e.g. following the practice of reimbursing for certain procedures based on time increments or specific units.

Section 40.020 Reimbursement

Section 40.021 General Reimbursement Requirements

(A) An employer is not liable for reimbursement for health care services provided to an injured employee in excess of the maximum allowable payment provided for in this rule. The maximum allowable payment is the maximum fee for a procedure listed in Appendix I of this rule or, subject to the other provisions of this rule, or the health care facility's or health care provider's charge whichever is less. For those procedures having no code listed in Appendix I of this fee schedule, the maximum allowable payment shall not exceed 83% of the charge for the service. This percentage shall be adjusted annually to consider any increase or decrease in the total operating expense of all hospitals based on hospital budget submissions to the Department of Banking, Insurance, Securities, and Health Care Administration (BISHCA). The change shall be calculated using the ratio of the new cost-to-charge ratio to the prior year cost-to-charge ratio.

(1) Reimbursement for an amount less than the maximum allowable payment in Rule 40.000 is allowed, but only in those instances where there is a contract for workers' compensation related services between the employer or insurance carrier and the health care provider that provides for a lower amount.

(B) In accord with 21 V.S.A. § 640(a), the employer/insurance carrier is responsible for payment of reasonable and necessary medical treatment for a work-related injury. Billing for treatment of a work-related injury shall be directed to the employer/insurance carrier. In no event shall the employee be required to provide payment to the medical provider for treatment of a work-related injury deemed compensable nor is the employee required to pay additional reimbursement for medical services which are subject to this fee schedule.

(1) Pre-payment under this schedule is prohibited.

(C) The employer/carrier shall pay the health care provider's charge or the maximum allowable payment under this fee schedule, whichever is less, within 30 days of receipt of the bill and legible, supporting documentation. If the claim is held for more than 30 days without payment, then the employer/carrier must notify the provider in writing as to the status of the claim. When payment for a procedure is denied, the employer/carrier must provide an "Explanation Of Benefits" (EOB)/Remittance Advice to the medical provider within 30 days of receipt of the bill. If the employer/carrier disagrees with the appropriateness of a procedure code billed, it shall request a hearing, in writing, before the Commissioner within 30 days of receipt of the bill. An employer/carrier may not change a billed procedure code unless the medical provider agrees.

(D) Reimbursement shall be limited to duly licensed health care providers for services provided within the scope of their practice. Payment for a service provided by a para-professional operating under the supervision of another health care professional may be paid either to the para-professional or the supervising health care professional, but not both, subject to the provisions of paragraph 40.040 (F) of this rule.

(E) The health care provider shall maintain documentation for each service provided which is sufficiently detailed to allow for the review of the medical necessity of the service and the appropriateness of the fee charged. This documentation shall include but is not necessarily limited to progress or chart notes, test results, and billing information (HCFA 1450 and/or HCFA 1500 -- documentation to determine appropriateness of the fee charged is sufficient if a line item detail bill is provided with these forms). Individual invoices are not required. Failure to provide documentation when requested may result in delays and/or, with the approval of the commissioner, denial of reimbursement.

(F) Separate charges for procedure(s) which are normally performed as part of another procedure shall generally not be permitted (i.e. no unbundling).

Appendix III lists procedures that have been assigned as component parts of a more comprehensive procedure. Payment for the major procedure includes any separately identified component parts of the procedure which are to be denied.

(G) Bills submitted by health care providers or health care facilities to carriers or employers for reimbursement of medical services must specify the date and type of service, the appropriate procedure code from the CPT manual in effect at the time of service or the appropriate facility revenue code, the condition treated, and the charges for each service. Health care providers are required to properly bill on form HCFA 1500, form HCFA 1450 (UB-92), or the ADA claim form and provide patient's Social Security Number, to comply with this requirement. Uncoded bills may be returned for coding.

(H) Durable medical equipment, prosthetics, orthotics and supplies (DMEPOS) as defined under the Medicare program, shall be reimbursed at 83% of billed charge and adjusted annually thereafter or 150% of cost whichever is less. Individual invoices are not required, but documentation allowing a reasonable determination of what the provider paid for the DMEPOS must be submitted.

Section 40.022 Hospital Reimbursement

(A) Hospital reimbursement for services provided to an employee who is an inpatient or outpatient at a hospital shall be paid at 83% of the charge and adjusted annually thereafter for services identified by the appropriate revenue codes on the HCFA-1450 (UB-92) uniform billing claim form.

(B) Durable medical equipment, prosthetics, orthotics and supplies (DMEPOS) as defined under the Medicare program, shall be reimbursed at 83% of billed charge and adjusted annually thereafter or 150% of cost whichever is less. Individual invoices are not required, but documentation allowing a reasonable determination of what the provider paid for the DMEPOS must be submitted.

(C) Emergency room. When professional components are billed on the HCFA 1500 form by a hospital or emergency care facility for an emergency unscheduled initial visit or an emergency follow-up visit, as supported by medical records, both the professional and the facility fees will be reimbursed at 83% of the charge and adjusted annually thereafter.

(D) Professional components, other than noted in (C) above, billed by a hospital or emergency care facility, irrespective of treatment setting, shall be identified by their appropriate CPT code and submitted to the payer on a HCFA-1500 claim form. The payment for these professional components shall be the lesser of the amount listed in Appendix I of Rule 40.000 or the claim chargeamount.

Section 40.023 Nursing Home Reimbursement

Nursing home reimbursement, residential care home reimbursement, and therapeutic community residence reimbursement shall not exceed 83% of the charge and adjusted annually thereafter for the services.

Section 40.024 Prescription Drug Reimbursement

(A) Prescription drug reimbursement shall be the lower of the charge for the prescription drug or the average wholesale price (AWP), as determined by the Red Book manual or its equivalent, plus a $ 3.15 dispensing fee.

(B) The provisions of 18 V.S.A., Chapter 91. Generic Drugs, shall apply.

(C) Intravenous Drugs/Infusion Therapy. The provider must be accredited by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) as a home care provider of intravenous services under the Standards for Accreditation of Home Care and can provide the following services at a Per Diem Rate (all inclusive):

. Intravenous Solutions;

. Pharmacy Professional Services including compounding, dispensing, clinical management, consultations and 24 hour 7 day a week availability;

. Ancillary Medical Supplies including all syringes, tubing, bags, cassettes, supplies necessary to maintain IV catheter patency;

. Durable Medical Equipment (DME) delivery, set-up, instruction, maintenance (24 hour, 7 day a week availability), replacement and removal as appropriate;

. Waste disposal.

Per Diem Rates are billable for the dates on which home infusion therapy is administered.

2. Drug Costs will be paid on the basis of the AWP less 10%.

3. Nursing Services will be coordinated through a Home Health Agency by the Infusion Therapy Provider. If services for Initial Patient Assessment and claimant/care giver education and training is billed by the Home Health Agency, no reimbursement will be provided to the Infusion Therapy Provider for these services. These services are reimbursed on an hourly basis.

WASTAGE POLICY

When an unanticipated change in a patient's condition requires a change in treatment plan, carrier will pay the listed per diem rates plus 83% of AWP for delivered but unutilized supplies and drugs per the following guidelines:

Pain Therapy Drugs

Antibiotics

Chemotherapy Drugs

All other therapies

PRIOR AUTHORIZATION

All services must be preauthorized by the carrier. Per Diem Rates are billable for the dates on which home infusion therapy is administered.

Section 40.025 Reimbursement for Procedures, Articles, and Supplies not listed in Appendix I

For those procedures, articles, and supplies having no code listed in Appendix I, or not otherwise addressed by written sections of this rule, the maximum allowable payment shall not exceed 83% of the charge and adjusted annually thereafter for the service.

Section 40.030 Modifiers

(A) The modifier codes recognized by these rules are defined in accord with the AMA CPT Manual.

(B) A modifier code shall be used to describe any unusual circumstances or services that arise in the treatment of a work related injury or illness. The modifier codes recognized by these rules are defined in accord with the AMA CPT Manual.

Section 40.040 Anesthesia Guidelines

(A) Reimbursement to the health care provider applies only when anesthesia care is provided by or under the medical directions of a physician anesthesiologist.

(B) To be eligible for reimbursement, the anesthesia service shall include: performance of a pre-anesthetic examination and evaluation; prescription of the anesthesia care required; personal participation in, or medical direction of, the entire plan of care; continuous physical presence of the anesthesiologist or, in the case of medical direction, of the qualified individual (one who is qualified to perform those tasks not personally performed by the anesthesiologist, such as a CRNA, resident or other individual authorized by the hospital or facility to perform such services) being medically directed; proximate presence or (in the case of medical direction) availability of the anesthesiologist for diagnosis or treatment of emergencies; and medical direction of not more than four concurrent anesthesia procedures.

(C) Reimbursement will be determined by the addition of the base unit value, time units and modifying units (if any) and multiplying this sum by a conversion factor of $ 34.25 per unit. The definition of the unit components will follow. Base unit values are listed in Table A of Appendix I.

(D) The anesthesia care may include, but is not limited to general, regional, monitored anesthesia care, supplementation of local anesthesia, or other supportive services in order to afford the patient the optimal anesthesia care prescribed by the anesthesiologist during any procedure.

(E) Specialized forms of monitoring (e.g., intra-arterial, central venous, and Swan-Ganz) are not included and will be reimbursed separately based on the appropriate medical or surgical fee schedule.

(F) With respect to anesthesia care team payments for claims from two separate billing entities, the total payment to the anesthesia care team is the same as the payment level for an individually performing anesthesiologist or health care provider, with 50 % of the total payment paid to each of the billing entities.

(G) Definition of the Unit Components.

1. Relative Unit Value: The relative unit value (RUV) includes usual pre and post-operative visits, the administration of fluids and/or blood incident to the anesthesia care and interpretation of non-invasive monitoring (ECG, temperature, blood pressure, oximetry, capnography, and mass spectrometry). When multiple surgical procedures are performed during a single anesthetic administration the highest relative unit value should be used. The relative unit value will be applied to each CPT anesthesia code as outlined at the conclusion of this section.

2. Time Units: Anesthesia time begins when the anesthesiologist, or other qualified individual, physically starts to prepare the patient for induction of anesthesia in the operating room (or its equivalent) and ends when the anesthesiologist, or other qualified individual, is no longer in constant attendance (when the patient may be safely under postoperative supervision).

One time unit is allowed for each 15 minute time interval, or fraction thereof.

Reimbursement for Pain Management Services: Reimbursement for pain management services (evaluation and management, medical or surgical services) will be separate from any reimbursement for anesthesia services. Reimbursement for services for pain management will be based on the appropriate evaluation and management, medical or surgical fee schedule.

4. Modifying Units: Physical status modifying units will be reimbursed if the patient is ranked in one of the following three categories:

| RANK | UNIT | | --- | --- | | VALUE | | | P-3 - A patient with severe systemic disease | 1 | | P-4 - A patient with severe systemic disease that is a constant threat to life | 2 | | P-5 - A moribund patient who is not expected to survive without the operation. | 3 |

Other modifying units will be available for the following qualifying circumstances described in the CPT:

| CPT | UNIT VALUE | | --- | --- | | 99100 - Anesthesia for a patient of extreme age, under one year and over seventy. | 1 | | 99116 - Anesthesia complicated by utilization of total body hypothermia. | 5 | | 99135 - Anesthesia complicated by utilization of controlled hypotension. | 5 | | 99140 - Anesthesia complicated by emergency conditions (an emergency is defined as existing when delay in treatment of the patient would lead to a significant increase in the threat to life or body part). | 2 |

Section 40.050 Radiology Guidelines

(A) The maximum fee for a radiology procedure is either the global or, where appropriate, the professional component (-26) or the technical component (-27). These are found in Appendix I under the radiological maximum fee.

(B) When two bills are submitted for a radiological procedure, the professional component shall be identified by using modifier code -26. The technical component, identified by modifier code -27, covers materials and facilities/space for the diagnostic or therapeutic service.

(C) Billings for radiologic procedures are not reimbursable without a report of findings.

Section 40.060 Surgical Guidelines

(A) For surgical procedures that usually mandate a variety of attendant services, the reimbursement allowances are based on a global reimbursement concept. Global reimbursement covers the performance of the basic service and the normal range of care required before and after surgery. The normal range of post-surgical care is indicated at the right-hand column under follow-up days (FUD) in Appendix I. There are two ranges established: on the same day as a surgical procedure; and 30-day global reimbursement policy.

Same day visits (S or I): Surgical procedure codes that are followed by the letter S or I in Appendix I allow for reimbursement for a medical service by the surgeon on the same day as the procedure.

The letter S indicates that an office visit, new patient or established patient, may be allowed. The letter I indicates that only a new patient visit is allowed in addition to the procedure. In the case of an accident-related procedure, the new patient visit with a -WF modifier may be reimbursed in addition to the surgical procedure.

30-day global reimbursement policy: For all surgical procedure codes listed in Appendix I, with 30 follow-up days indicated in the right column under FUD, any medically necessary care related to that procedure may be allowed during the 30-day period following the procedure and may be billed in addition to the procedure.

For those surgical procedure codes in Appendix I that do not have a 30, S or I indicated, all professional routine pre-operative care and post operative care, for 30 days following the surgical procedure, are included as a part of the global fee for that surgery, and medical follow-up visits for the same or a related condition within 30 days of the procedure should be denied.

A surgical procedure shall include all of the following:

1. All office and hospital visits which occur on the day of or day prior to major surgery.

2. Surgery.

3. Post surgical care. The number of follow-up days (FUD) is indicated in the fee schedule which will determine the normal range of post surgical care for that particular procedure.

4. Removal of sutures.

(B) An evaluation and management (E&M) service will not be billed in addition to a minor procedure unless the E&M service was for a significant, separately identified reason. In this instance, Modifier - 25 should be reported with the appropriate E&M CPT procedure code.

(C) The following four exceptions to the global reimbursement policy may warrant additional reimbursement for services provided before surgery:

1. When a preoperative visit is the initial visit and prolonged detention or evaluation is necessary to prepare the patient or to establish the need for a particular type of surgery.

2. When the preoperative visit is a consultation.

3. When preoperative services are provided that are usually not part of the preparation for a particular surgical procedure, for example, bronchoscopy prior to chest surgery.

4. When a procedure would normally be performed in the office, but circumstances mandate hospitalization.

(D) Additional charges and reimbursement may be warranted for additional services rendered to treat complications, exacerbation, recurrence, or other diseases and injuries. Under such circumstances, additional reimbursement may be requested. Documentation substantiating the medical necessity of the additional services rendered must be submitted with the medical bill.

(E) An incidental surgery which is not part of the primary procedure performed, and for which there is no diagnostic evidence relating it to the injury, shall not be paid under the Workers' Compensation system.

(F) Reimbursement for the concurrent services of two or more health care providers may be warranted for:

1. Identifiable medical services provided preoperatively, during the surgical procedure or in the postoperative period.

2. Surgical Assistants - Modifier code -80 shall identify the procedure or the procedures which may be performed by the Surgical Assistant. Reimbursement for surgical assistants is limited to health care providers who assist the surgery and must not exceed 25% of the total surgical procedure.

3. Two Surgeons

(a) Certain circumstances where the skills of two surgeons (usually with different specialties) may be required to complete a surgery.

(b) Reimbursement will be made according to the information on the provider's medical bill and the substantiating documentation submitted. Each provider must submit an individual claim for services.

4. A Surgical Team. Some highly complex procedures require the concomitant services of several physicians, often of different specialties. Such complex services may also involve other highly skilled and specially trained personnel, as well as various types of sophisticated equipment. This type of complicated procedure may be carried out under the "surgical team" concept with a single, global reimbursement for the total service. The charges should be supported by a written report and include itemization of the physician services, paramedical personnel and equipment included in the charge.

(G) Multiple or Bilateral Procedures

1. When multiple or bilateral procedures are provided at the same operative session, the first major procedure should be coded as listed on one line of the HCFA -1500 claim form and the additional procedure(s) on the following line(s) with modifier -50 or -51.

2. The total reimbursement for all services shall be the maximum reimbursement allowance of the major procedure in addition to 50% for the secondary procedure, 25% for the tertiary procedure and 10% for each lesser procedure thereafter. The lesser procedure(s) should be coded using the appropriate modifier -50 (bilateral procedure) or -51 (multiple procedures).

Those services listed in Appendix II of this rule, which can be billed with the -50 modifier, do not have the usual payment adjustment for bilateral procedures. For these services, payment is based on 100% for each side, organ or site.

Except when specifically stated, initial dressings, immobilization, or casting is included in the basic allowance for the basic procedure.

Section 40.070 Good Cause Exception

If an employee or medical provider demonstrates to the satisfaction of the Commissioner that reasonable and necessary treatment, or a related medical service, is not reasonably available at a fee consistent with this fee schedule, the Commissioner may authorize reimbursement for those procedures at a rate higher than that permitted in the fee schedule.

Section 40.080 Psychotherapy Services

CPT Codes 90801 through 90889 may be used for psychotherapy by M.D. level Psychiatrists, Clinical Psychologists and Clinical Social Workers, with the exception of codes 90820, 90862, 90870, and 90871, which may be billed by M.D. level Psychiatrists only.

The reimbursement policy for the practitioner performing the services is as follows:

. M.D. level Psychiatrists shall receive the maximum fee for a procedure, listed in Appendix I, or the practitioner's charge, whichever is less;

. Clinical Psychologists shall receive 80% of the maximum fee for a procedure listed in Appendix I, or the practitioner's charge, whichever is less;

. Clinical Social Workers shall receive 60% of the maximum fee for a procedure listed in Appendix I, or the practitioner's charge, whichever is less.

The level of licensure of the practitioner providing the service shall be indicated on the billing form.

Section 40.090 Fee Adjustments for Physical Medicine and Rehabilitation Modalities; Applicable Only To Supervised and Constant Attendance Modalities

Maximum fees for physical medicine and rehabilitation modalities that require supervised or constant attendance only are determined according to the following payment schedule when one or more modalities are provided to the patient on the same day. (This section does not apply to hospital reimbursement.)

100 % of the fee for the most expensive modality;

75 % of the fee for the second most expensive modality;

50 % of the fee for the third most expensive modality; and

10 % of the fee for all other modalities

All modalities after the first most expensive shall be coded by adding modifier -51 to the appropriate procedure code.

All other therapeutic procedure codes shall be paid in accord with Appendix I or, if the procedure code is not listed in Appendix I, reimbursement shall be 83% of the provider's charge.

Section 40.100 Fees for Depositions, Mileage and Supplemental Reports

Section 40.101 Fees for Depositions and Mileage

(A) Any health care provider who gives a deposition shall use code 99075. Reimbursement shall be $ 300.00 for one hour or less. Additional time shall be reimbursed at $ 75.00 for each additional 15 minutes.

(B) The party requesting the deposition assumes responsibility for payment of the witness fee and any related mileage unless the costs of the deposition is included as a part of an award. The costs for witness fees and any related mileage shall be considered inclusive of an award of the deposition cost.

(C) Health care providers shall receive a maximum of $ 150.00 for a canceled deposition. The party canceling the deposition is responsible for the incurred costs. No charge will be paid if the deposition is canceled and the health care provider is notified at least three business days before the scheduled date.

(D) Round trip mileage may be charged by the health care provider for travel related to the deposition at the maximum rate allowed for deductions by the internal revenue service.

Section 40.102 Fees for Supplemental Reports

(A) Health care providers shall be reimbursed for providing supplemental reports that are in addition to the documentation required under paragraph 40.021(E) of this rule. Supplemental reports shall be identified by using CPT Code 99080 and appropriately billed on a HCFA 1500 form.

(B) Reimbursement for supplemental reports is limited to $ 10.00 per page with the total not to exceed $ 70.00. The party requesting the supplemental reports assumes responsibility for payment.

Section 40.110 Fraud

Workers' compensation insurers are only responsible for paying for services that are actually provided and that are medically necessary. In filing a claim for reimbursement, the CPT code should be chosen that most accurately describes the service that was provided. It is a felony under Vermont law knowingly to do, attempt, or aid and abet in any of the following when seeking or receiving reimbursement from a workers' compensation insurer:

File a claim for services which were not rendered

File a false claim

File a claim for unauthorized items or services

Bill the beneficiary, or the beneficiary's family for an amount in excess of that allowed by law or regulation

Fail to credit the state or its agent for payments received from social security, insurance or other sources

Receive unauthorized payment

Suspected fraud should be reported to the Workers' Compensation and Safety Division of the Vermont Department of Labor.

Appendix I, Table A.

Conversion factor = $ 34.25

One time unit = 15 minutes

| PROCEDURE | CPT DESCRIPTION | RVU | | --- | --- | --- | | 00100 | Anesth, Skin Surgery | 5.00 | | 00102 | Anesth, Repair of Clerf Lip | 6.00 | | 00104 | Anesth for Electroshock | 4.00 | | 00120 | Anesthesia for Ear Surgery | 5.00 | | 00124 | Anesthesia for Ear Exam | 4.00 | | 00126 | Anesth, Tympanotomy | 5.00 | | 00140 | Anesth, Procedures on Eye | 5.00 | | 00142 | Anesthesia for Lens Surgery | 6.00 | | 00144 | Anesth, Corneal Transplant | 7.00 | | 00145 | Anesth, Vitrectomy | 6.00 | | 00147 | Anesth, Iridectomy | 6.00 | | 00148 | Anesthesia for Eye Exam | 4.00 | | 00160 | Anesth, Nose, Sinus Surgery | 5.00 | | 00162 | Anesth, Nose, Sinus Surgery | 7.00 | | 00164 | Anesth, Biopsy of Nose | 4.00 | | 00170 | Anesth, Procedure on Mouth | 5.00 | | 00172 | Anesth, Cleft Palate Repair | 6.00 | | 00174 | Anesth, Pharyngeal Surgery | 6.00 | | 00176 | Anesth, Pharyngeal Surgery | 7.00 | | 00190 | Anesth, Facial Bone Surgery | 5.00 | | 00192 | Anesth, Facial Bone Surgery | 7.00 | | 00210 | Anesth, Open Head Surgery | 11.00 | | 00212 | Anesth, Skull Drainage | 5.00 | | 00214 | Anesth, Skull Drainage | 9.00 | | 00216 | Anesth, Head Vessel Surgery | 15.00 | | 00218 | Anesth, Special Head Surgery | 13.00 | | 00220 | Anesth, Spinal Fluid Shunt | 11.00 | | 00222 | Anesth, Head Nerve Surgery | 5.00 | | 00300 | Anesth, Skin Surgery, Neck | 3.00 | | 00320 | Anesth, Neck Organ Surgery | 6.00 | | 00322 | Anesth, Biopsy of Thyroid | 3.00 | | 00350 | Anesth, Neck Vessel Surgery | 10.00 | | 00352 | Anesth, Neck Vessel Surgery | 5.00 | | 00400 | Anesth, Chest Skin Surgery | 3.00 | | 00402 | Anesth, Surgery of Breast | 5.00 | | 00404 | Anesth, Surgery of Breast | 5.00 | | 00406 | Anesth, Surgery of Breast | 13.00 | | 00410 | Anesth, Correct Heart Rhythm | 4.00 | | 00420 | Anesth, Skin Surgery, Back | 3.00 | | 00450 | Anesth, Surgery of Shoulder | 5.00 | | 00452 | Anesth, Surgery of Shoulder | 6.00 | | 00454 | Anesth, Collarbone Biopsy | 3.00 | | 00470 | Anesth, Removal of Rib | 6.00 | | 00472 | Anesth, Chest Wall Repair | 10.00 | | 00474 | Anesth, Surgery of Rib(s) | 13.00 | | 00500 | Anesth, Esophageal Surgery | 15.00 | | 00520 | Anesth, Chest Procedure | 5.00 | | 00522 | Anesth, Chest Lining Biopsy | 4.00 | | 00524 | Anesth, Chest Drainage | 4.00 | | 00528 | Anesth, Chest Partition View | 8.00 | | 00530 | Anesth, Pacemaker Insertion | 4.00 | | 00532 | Anesth, Vascular Access | 4.00 | | 00534 | Anesth, Cardioverter/Defib | 7.00 | | 00540 | Anesth, Chest Surgery | 13.00 | | 00542 | Anesth, Release of Lung | 15.00 | | 00544 | Anesth, Chest Lining Removal | 15.00 | | 00546 | Anesth, Lung Chestwall Surg | 13.00 | | 00548 | Anesth, Trachea, Bronchi Surg | 15.00 | | 00560 | Anesth, Open Heart Surgery | 15.00 | | 00562 | Anesth, Open Heart Surgery | 20.00 | | 00580 | Anesth, Heart/Lung Transplant | 20.00 | | 00600 | Anesth, Spine, Cord Surgery | 10.00 | | 00604 | Anesth, Surgery of Vertebra | 13.00 | | 00620 | Anesth, Spine, Cord Surgery | 10.00 | | 00622 | Anesth, Removal of Nerves | 13.00 | | 00630 | Anesth, Spine, Cord Surgery | 8.00 | | 00632 | Anesth, Removal of Nerves | 7.00 | | 00634 | Anesth for Chemonucleolysis | 10.00 | | 00670 | Anesth, Spine, Cord Surgery | 13.00 | | 00700 | Anesth, Abdominal Wall Surg | 3.00 | | 00702 | Anesthesia for Liver Biopsy | 4.00 | | 00730 | Anesth, Abdominal Wall Surg | 5.00 | | 00740 | Anesth, GI Visualization | 5.00 | | 00750 | Anesth, Repair of Hernia | 4.00 | | 00752 | Anesth, Repair of Hernia | 6.00 | | 00754 | Anesth, Repair of Hernia | 7.00 | | 00756 | Anesth, Repair of Hernia | 7.00 | | 00770 | Anesth, Blood Vessel Repair | 15.00 | | 00790 | Anesth, Surg Upper Abdomen | 7.00 | | 00792 | Anesth, Part Liver Removal | 13.00 | | 00794 | Anesth, Pancreas Removal | 8.00 | | 00796 | Anesth, For Liver Transplant | 30.00 | | 00800 | Anesth, Abdominal Wall Surg | 3.00 | | 00802 | Anesth, Fat Layer Removal | 5.00 | | 00806 | Anesth, Pelvic Visualization | 6.00 | | 00810 | Anesth, Intestine Endoscopy | 6.00 | | 00820 | Anesth, Abdominal Wall Surg | 5.00 | | 00830 | Anesth, Repair of Hernia | 4.00 | | 00832 | Anesth, Repair of Hernia | 6.00 | | 00840 | Anesth, Surg Lower Abdomen | 6.00 | | 00842 | Anesth, Amniocentesis | 4.00 | | 00844 | Anesth, Pelvis Surgery | 7.00 | | 00846 | Anesth, Hysterectomy | 8.00 | | 00848 | Anesth, Pelvic Organ Surg | 8.00 | | 00850 | Anesth, Cesarean Section | 7.00 | | 00855 | Anesth, Hysterectomy | 8.00 | | 00857 | Analgesia, Labor & C-Section | 7.00 | | 00860 | Anesth, Surgery of Abdomen | 6.00 | | 00862 | Anesth, Kidney, Urether Surg | 7.00 | | 00864 | Anesth, Removal of Bladder | 8.00 | | 00866 | Anesth, Removal of Adrenal | 10.00 | | 00868 | Anesth, Kidney Transplant | 10.00 | | 00870 | Anesth, Bladder Stone Surg | 5.00 | | 00872 | Anesth, Kidney Stone Destruct | 7.00 | | 00873 | Anesth, Kideny Stone Destruct | 5.00 | | 00880 | Anesth, Abdomen Vessel Surg | 15.00 | | 00882 | Anesth, Major Vein Ligation | 10.00 | | 00884 | Anesth, Major Vein Revision | 5.00 | | 00900 | Anesth, Perineal Procedure | 3.00 | | 00902 | Anesth, Anorectal Surgery | 4.00 | | 00904 | Anesth, Perineal Surgery | 7.00 | | 00906 | Anesth, Removal of Vulva | 4.00 | | 00908 | Anesth, Removal of Prostate | 6.00 | | 00910 | Anesth, Bladder Surgery | 3.00 | | 00912 | Anesth, Bladder Tumor Surg | 5.00 | | 00914 | Anesth, Removal of Prostate | 5.00 | | 00916 | Anesth, Bleeding Control | 5.00 | | 00918 | Anesth, Stone Removal | 5.00 | | 00920 | Anesth, Genitalia Surgery | 3.00 | | 00922 | Anesth, Sperm Duct Surgery | 6.00 | | 00924 | Anesth, Testis Exploration | 4.00 | | 00926 | Anesth, Removal of Testis | 4.00 | | 00928 | Anesth, Removal of Testis | 6.00 | | 00930 | Anesth, Testis Suspension | 4.00 | | 00932 | Anesth, Amputation of Penis | 4.00 | | 00934 | Anesth, Penis, Nodes Removal | 6.00 | | 00936 | Anesth, Penis, Nodes Removal | 8.00 | | 00938 | Anesth, Insert Penis Device | 4.00 | | 00940 | Anesth, Vaginal Procedures | 3.00 | | 00942 | Anesth, Surgery on Vagina | 4.00 | | 00944 | Anesth, Vaginal Hysterectomy | 6.00 | | 00946 | Anesth, Vaginal Delivery | 5.00 | | 00948 | Anesth, Repair of Cervix | 4.00 | | 00950 | Anesth, Vaginal Endoscopy | 5.00 | | 00952 | Anesth, Uterine Endoscopy | 4.00 | | 00955 | Anesth, Vaginal Delivery | 4.00 | | 01000 | Anesth, Skin Surgery, Pelvis | 3.00 | | 01110 | Anesth, Skin Surgery, Pelvis | 5.00 | | 01120 | Anesth, Pelvis Surgery | 6.00 | | 01130 | Anesth, Body Cast Procedure | 3.00 | | 01140 | Anesth, Amputation at Pelvis | 15.00 | | 01150 | Anesth, Pelvic Tumor Surgery | 8.00 | | 01160 | Anesth, Pelvi Procedure | 4.00 | | 01170 | Anesth, Pelvis Surgery | 8.00 | | 01180 | Anesth, Pelvis Nerve Removal | 3.00 | | 01190 | Anesth, Pelvis Nerve Removal | 4.00 | | 01200 | Anesth, Hip Joint Procedure | 4.00 | | 01202 | Anesth, Arthroscopy of Hip | 4.00 | | 01210 | Anesth, Hip Joint Surgery | 6.00 | | 01212 | Anesth, Hip Disarticulation | 10.00 | | 01214 | Anesth, Replacement of Hip | 10.00 | | 01220 | Anesth, Procedure on Femur | 4.00 | | 01230 | Anesth, Surgery of Femur | 6.00 | | 01232 | Anesth, Amputation of Femur | 5.00 | | 01234 | Anesth, Radical Femur Surg | 8.00 | | 01240 | Anesth, Upper Leg Skin Surg | 3.00 | | 01250 | Anesth, Upper Leg Surgery | 4.00 | | 01260 | Anesth, Upper Leg Veins Surg | 3.00 | | 01270 | Anesth, Thigh Arteries Surg | 8.00 | | 01272 | Anesth, Femoral Artery Surg | 4.00 | | 01274 | Anesth, Femoral Embolectomy | 6.00 | | 01300 | Anesth, Skin Surgery, Knee | 3.00 | | 01320 | Anesth, Knee Area Surgery | 4.00 | | 01340 | Anesth, Knee Area Procedure | 4.00 | | 01360 | Anesth, Knee Area Surgery | 5.00 | | 01380 | Anesth, Knee Joint Procedure | 3.00 | | 01382 | Anesth, Knee Arthroscopy | 3.00 | | 01390 | Anesth, Knee Area Procedure | 3.00 | | 01392 | Anesth, Knee Area Surgery | 4.00 | | 01400 | Anesth, Knee Joint Surgery | 4.00 | | 01402 | Anesth, Replacement of Knee | 7.00 | | 01404 | Anesth, Amputation at Knee | 5.00 | | 01420 | Anesth, Knee Joint Casting | 3.00 | | 01430 | Anesth, Knee Veins Surgery | 3.00 | | 01432 | Anesth, Knee Vessel Surg | 5.00 | | 01440 | Anesth, Knee Arteries Surg | 5.00 | | 01442 | Anesth, Knee Artery Surg | 8.00 | | 01444 | Anesth, Knee Artery Repair | 8.00 | | 01460 | Anesth, Lower Leg Skin Surg | 3.00 | | 01462 | Anesth, Lower Leg Procedure | 3.00 | | 01464 | Anesth, Ankle Arthroscopy | 3.00 | | 01470 | Anesth, Lower Leg Surgery | 3.00 | | 01472 | Anesth, Achilles Tendon Surg | 5.00 | | 01474 | Anesth, Lower Leg Surgery | 5.00 | | 01480 | Anesth, Lower Leg Bone Surg | 3.00 | | 01482 | Anesth, Radical Leg Surgery | 4.00 | | 01484 | Anesth, Lower Leg Revision | 4.00 | | 01486 | Anesth, Ankle Replacement | 7.00 | | 01490 | Anesth, Lower Leg Casting | 3.00 | | 01500 | Anesth, Leg Arteries Surg | 8.00 | | 01502 | Anesth, Lowerleg Embolectomy | 6.00 | | 01520 | Anesth, Lower Leg Vein Surg | 3.00 | | 01522 | Anesth, Lower Leg Veing Surg | 5.00 | | 01600 | Anesth, Shoulder Skin Surg | 3.00 | | 01610 | Anesth, Surgery of Shoulder | 5.00 | | 01620 | Anesth, Shoulder Procedure | 4.00 | | 01622 | Anesth, Shoulder Arthroscopy | 4.00 | | 01630 | Anesth, Surgery of Shoulder | 5.00 | | 01632 | Anesth, Surgery of Shoulder | 6.00 | | 01634 | Anesth, Shoulder Joint Amput | 9.00 | | 01636 | Anesth, Forequarter Amput | 15.00 | | 01638 | Anesth, Shoulder Replacement | 10.00 | | 01650 | Anesth, Shoulder Artery Surg | 6.00 | | 01652 | Anesth, Shoulder Vessel Surg | 10.00 | | 01654 | Anesth, Shoulder Vessel Surg | 8.00 | | 01656 | Anesth, Arm-Leg Vessel Surg | 10.00 | | 01670 | Anesth, Shoulder Vein Surg | 4.00 | | 01680 | Anesth, Shoulder Casting | 3.00 | | 01682 | Anesth, Airplane Cast | 4.00 | | 01700 | Anesth, Elbow Area Skin Surg | 3.00 | | 01710 | Anesth, Elbow Area Surgery | 3.00 | | 01712 | Anesth, Upperarm Tendon Surg | 5.00 | | 01714 | Anesth, Upperarm Tendon Surg | 5.00 | | 01716 | Anesth, Biceps Tendon Repair | 5.00 | | 01730 | Anesth, Upperarm Procedure | 3.00 | | 01732 | Anesth, Elbow Arthroscopy | 3.00 | | 01740 | Anesth, Upper Arm Surgery | 4.00 | | 01742 | Anesth, Humerus Surgery | 5.00 | | 01744 | Anesth, Humerus Repair | 5.00 | | 01756 | Anesth, Radical Humerus Surg | 6.00 | | 01758 | Anesth, Humeral Lesion Surg | 5.00 | | 01760 | Anesth, Elbow Replacement | 7.00 | | 01770 | Anesth, Upperarm Artery Surg | 8.00 | | 01772 | Anesth, Upperarm Embolectomy | 6.00 | | 01780 | Anesth, Upper Arm Vein Surg | 3.00 | | 01782 | Anesth, Upperarm Vein Repair | 4.00 | | 01784 | Anesth, AV Fistula Repair | 10.00 | | 01800 | Anesth, Lower Arm Skin Surg | 3.00 | | 01810 | Anesth, Lower Arm Surgery | 3.00 | | 01820 | Anesth, Lower Arm Procedure | 3.00 | | 01830 | Anesth, Lower Arm Surgery | 3.00 | | 01832 | Anesth, Wrist Replacement | 6.00 | | 01840 | Anesth, Lowerarm Artery Surg | 6.00 | | 01842 | Anesth, Lowerarm Embolectomy | 6.00 | | 01844 | Anesth, Vascular Shunt Surg | 6.00 | | 01850 | Anesth, Lower Arm Vein Surg | 3.00 | | 01852 | Anesth, Lowerarm Vein Repair | 4.00 | | 01860 | Anesth, Lower Arm Casting | 3.00 | | 01900 | Anesth, Uterus/Tube Inject | 3.00 | | 01902 | Anesth, Burr Holes, Skull | 9.00 | | 01904 | Anesth, Skull X-Ray Inject | 7.00 | | 01906 | Anesth, Lumbar Myelography | 5.00 | | 01908 | Anesth, Cervical Myelography | 5.00 | | 01910 | Anesth, Skull Myelography | 9.00 | | 01912 | Anesth, Lumbar Discography | 5.00 | | 01914 | Anesth, Cervical Discography | 6.00 | | 01916 | Anesth, Head Arteriogram | 5.00 | | 01918 | Anesth, Limb Arteriogram | 5.00 | | 01920 | Anesth, Catheterize Heart | 7.00 | | 01921 | Anesth, Vessel Surgery | 7.00 | | 01922 | Anesth, CAT or MRI Scan | 7.00 | | 01990 | Support for Organ Donor | 7.00 | | 01995 | Regional Anesthesia, Limb | 5.00 | | 01996 | Manage Daily Drug Therapy | 3.00 | | 01999 | Unlisted Anesth Procedure | * |

Appendix I, Table B.

CPT codes only are copyright 2006 AMA

See Table in Printed Version

Appendix II.

The following services which can be billed with the 50 modifier do not have the usual payment adjustment for bilaterial procedures. For these services payment is based on 100% for each side, organ or site.

See Table in Printed Version %

Appendix III.

See Table in Printed Version 21 V.S.A. § 640(d)

History

• EFFECTIVE DATE: April 1, 1995 (Secretary of State Rule Log # 95-22)
• AMENDED: April 15, 1998 (Secretary of State Rule Log # 98-21); May 15, 2006 (Secretary of State Rule Log # 06-015)

Chapter 007 RULE GOVERNING THE LICENSING AND REGULATED ACTIVITIES OF EMPLOYEE LEASING COMPANIES IN THE STATE OF VERMONT

24-007 Code Vt. R. 24-010-007-X RULE GOVERNING THE LICENSING AND REGULATED ACTIVITIES OF EMPLOYEE LEASING COMPANIES IN THE STATE OF VERMONT

Section 1 AUTHORITY, SCOPE AND PURPOSE

A. This regulation is issued by the Department of Labor and Industry pursuant to the authority vested in the Commissioner of Labor and Industry by 21 V.S.A. Section 1032.

B. This regulation applies to any person that transacts business in the state of Vermont as an employee leasing company. The regulation does not apply to temporary help companies as defined in 21 V.S.A. 1031(8) and section 2 below.

C. The purpose of this regulation is to establish rules which govern the licensing and regulated activities of employee leasing companies in the state of Vermont.

Section 2 DEFINITIONS

As used in this regulation:

"Applicant" means a person applying for a license or for a renewal of a license under this rule. 21 V.S.A. 1031(1).

"Client company" means a person who enters into an agreement with an employee leasing company to lease any or all of its regular employees. 21 V.S.A. 1031(3).

"Commissioner" means the commissioner of labor and industry or the commissioner's designee, 21 V.S.A. 1031(2), except where otherwise indicated.

"Controlling person" means an individual who is at least 18 years of age and has the authority to direct the management or policies of an employee leasing company or who is employed, appointed or authorized by an employee leasing company to enter into contractual relationships with client companies on the employee leasing company's behalf. 21 V.S.A. 1034.

"Employee leasing agreement" means an agreement, executed between an employee leasing company and a client company, pursuant to which an employee leasing company provides one or more individuals to perform services for a client company on an ongoing basis. 21 V.S.A. 1031(4).

"Employee leasing company" or "leasing company" means a person engaged in the business of providing individuals to perform ongoing services for an indefinite time period for client companies pursuant to one or more employee leasing agreements executed between the leasing company and the client company. "Employee leasing company" does not include labor organizations, or a temporary help company. 21 V.S.A. 1031(5).

"Financial responsibility" means the current and expected future condition of financial solvency sufficient to support a reasonable expectation that an employee leasing company can successfully conduct its business without jeopardizing the interests of the employees leased to the client company, client company or the public. 21 V.S.A. 1031(6).

"Licensee" means an employee leasing company licensed under this rule. 21 V.S.A. 1031(7).

"Temporary help company" means a person who hires its own employees and provides them to another business entity as temporary full or part-time personnel to provide services for a finite period of time in special or unusual situations such as employee absences, temporary skill shortages, seasonal workloads and special work assignments and projects. 21 V.S.A. 1031(8). Determination as to whether a company is an employee leasing company or a temporary help company must necessarily be made on a case by case basis. Factors to be considered include the agreement between the company and the client business, the number of persons provided to the client business(es), the length and type of service provided to the client business, and the employees' understanding as to whether they may be rotated periodically among different client businesses or are assigned to one client business unless fired. Typically a temporary help company hires individuals experienced in various fields who form a standby labor pool, which provides client businesses with temporary help to supplement the client's regular staff or to perform special services. The individual may or may not be available for fulltime work and may reject job assignments for any reason. The client company may not know what the individual is paid or whether the individual receives benefits.

Section 3 LICENSE REQUIREMENTS FOR EMPLOYEE LEASING COMPANIES

A. No person shall engage in the business of employee leasing in Vermont unless the person is granted a license by the commissioner. 21 V.S.A. 1033.

B. An applicant shall file an application for licensure with the commissioner on a form approved by the commissioner accompanied by a one-time, non-refundable application fee of $ 100.00 and a licensing fee of $ 1,000.00. 21 V.S.A. 1033(b).

C. A license under this rule shall expire one year from the date shown on the license. At least 60 days before the expiration date of the license, a licensee shall file a renewal application accompanied by the licensing fee and documentation as required by this section. 21 V.S.A. 1033(c).

D. The applicant shall file the following, on forms, and in a manner, satisfactory to the commissioner:

1. A list of all the controlling persons of the applicant, their biographical information, and an affidavit from each attesting to his or her good moral character and management competence.

2. Documentation that the applicant maintains a place of business in this state, or has designated an agent of service, domiciled in the state, if there are to be no more than 50 leased employees working in the state, and that the applicant is licensed, if required, in the applicant's state of domicile.

3. Certification that the applicant does not conduct a temporary help business through the same entity as the employee leasing business.

4. An agreement to maintain separate records for each client company; and file reports as required by this rule and law for each of its client companies.

5. An agreement to pay unemployment contributions and workers' compensation premiums based on the experience rating of each client company, provided that, for workers' compensation premiums, the client company has sufficient workers' compensation premium volume to be experience rated, otherwise the workers' compensation premiums shall be paid at the rate approved for an employer that cannot be experience rated, and provided that, for unemployment compensation contributions, the client company has sufficient experience to be experience rated, otherwise contributions shall be paid at the applicable new employer rate.

6. An acknowledgment of the applicant's joint and several liability with its client companies for protections required by or damages due under laws designed to protect the health, safety or welfare of an individual leased to a client company.

7. Evidence of financial responsibility in accordance with this rule.

8. An agreement that the commissioner may liquidate any securities or bond, provided pursuant to this rule, upon default by the applicant in the payment of wages, benefits, workers' compensation premiums or awards or unemployment compensation contributions, in order to use the funds to pay the same.

9. Such additional information as the commissioner determines is necessary to evaluate the application.

See, 21 V.S.A. 1033(b) (1-8).

E. The applicant shall acquire and maintain an initial surety bond or letter of credit for the benefit of the commissioner in the amount of $ 100,000. A copy of the executed bond or letter of credit shall be filed with the commissioner at the time of application for a license. For each subsequent year of licensing, the applicant must file and maintain a surety bond or letter of credit to the benefit of the commissioner equal to not less than 5% of the prior year's total Vermont wages, benefits, workers' compensation premiums or awards or unemployment compensation contributions, but not less than $ 100,000 or such other amount as the commissioner may require. See 21 V.S.A. 1033(b)(7); 21 V.S.A. 1035(a).

1. An employee leasing company shall not require a client company to contribute in any manner to payment of the securities or bond required under this subsection.

2. The commissioner may waive the bonding or security requirement if the applicant demonstrates that it is accredited by a national accrediting entity that has been approved by the commissioner.

3. Notice of cancellation or non renewal of the surety bond or letter of credit shall be provided to the commissioner in writing at least 45 days prior to the cancellation or non renewal.

F. The commissioner may reject an application for license:

1. where the application is not fully completed, properly executed or is otherwise deficient;

2. where any fee required by this section is not submitted;

3. where the applicant has had an employee leasing company license revoked in this or any other state, unless such revocation has been subsequently rescinded or otherwise suspended and the problems remedied to the satisfaction of the commissioner.

4. where the applicant has made a material misrepresentation in the application.

5. Conviction of a felony or any misdemeanor involving moral turpitude.

6. If in the conduct of the applicant's or any controlling person's affairs, the applicant or any controlling person has used fraudulent, coercive, or dishonest practices or shown himself or herself to be incompetent, untrustworthy, or financially irresponsible.

G. The records relating to all employee leasing agreements shall be maintained by the licensee for a period of four years after termination of the employee leasing agreement and shall be available to the commissioner for inspection and copying during normal business hours.

H. A licensed employee leasing company shall within 10 days of initiation or termination of an employee leasing agreement notify in writing the commissioner, the commissioner of the department of employment and training and its workers' compensation insurance carrier of the initiation or termination.

1. The initiation notice, required under this sub-section, shall include an acknowledgment by the client company of its joint and several liability for protection or damages provided under laws designed to protect the health, safety and welfare of an employee, as provided for under section 6(B).

I. A license issued to any person under this rule may not be transferred or assigned, and a licensee may not operate under any other name other than that specified in the application, without having received the prior written consent of the commissioner.

Section 4 FINANCIAL RESPONSIBILITY

A. Evidence of financial responsibility under this rule shall include an audited financial statement, prepared in accordance with generally accepted accounting principles, that demonstrates that the applicant has an adjusted net worth of at least $ 100,000.00 or five percent of the prior year's total Vermont wages, benefits, workers' compensation premiums or awards or unemployment compensation contributions, whichever is greater.

1. The financial statement shall have been prepared within six months of the date of application by an independent certified public accountant licensed in this state. 21 V.S.A. 1035(a).

B. The commissioner may audit a licensee's financial condition if the commissioner determines that the licensee's financial responsibility is in question. The commissioner may contract for the audit and charge the licensee a fee that shall not exceed the actual cost of performing the audit. 21 V.S.A. 1035(b).

C. Financial information submitted to the commissioner by an applicant or licensee shall be confidential and shall not be available for public inspection. Nothing in this section shall be construed to restrict the commissioner from sharing this information with the attorney general, the department of banking, insurance, and securities, the department of employment and training, the department of taxes, the secretary of state or the U.S. Internal Revenue Service.

Section 5 EMPLOYEE LEASING COMPANY; DUTIES

A licensee shall:

A. Within ten days after licensure under this rule, register with the following:

1. The department of employment and training;

2. The department of taxes;

3. The secretary of state; and

4. The U.S. Internal Revenue Service.

B. Make timely payment of workers' compensation premiums and unemployment compensation contributions on all leased employees based on the experience rating of the client company to which the employees are leased.

C. File all reports as required by this rule, and applicable law.

D. Maintain financial responsibility and management competence.

E. Provide written notification of the employment arrangement to all employees leased pursuant to an employee leasing agreement within ten days after executing the agreement.

F. Keep any surety bond or letter of credit in effect or retain accreditation, whichever was provided pursuant to this rule, during the period the license is valid.

G. Implement an employee grievance system and provide to each leased employee at the time of hiring a manual that outlines the terms and conditions of employment, including the applicable grievance system. The manual should also state that the employee leasing company is subject to licensing regulations, which will be provided to the employee by the Department of Labor and Industry upon request.

H. Enter into a written employee leasing agreement with each client company.

See, 21 V.S.A. 1036.

Section 6 EMPLOYEE LEASING COMPANY; DEEMED EMPLOYER

A. Except as otherwise provided for in this rule or in chapter 12 of Title 21, an employee leasing company licensed under this chapter shall be deemed to be the employer for the payment of wages and other employment benefits due to leased employees pursuant to the employee leasing agreement. 21 V.S.A. 1036(b).

B. An employee leasing company and the client company shall be jointly and severally liable for protection or damages provided under laws designed to protect the health, safety and welfare of an employee. 21 V.S.A. 1039(c).

Section 7 WORKERS' COMPENSATION

A. Workers' compensation insurance premiums shall be determined and paid based on the experience rating of the client company for which the leased employee performs services, provided the client company has sufficient workers' compensation premium volume to be experience rated, otherwise the premiums shall be at the rate approved for an employer that cannot be experience rated. 21 V.S.A. 1037(a).

B. The employee leasing company shall maintain separate payroll records and separate records of work-related injuries and illnesses for each client company and for the employee leasing company's nonleased employees.

C. Consistent with the provisions of 21 V.S.A. 687, the client company is responsible for providing workers compensation insurance for the client company's non-leased employees.

D. A workers' compensation insurer shall notify the commissioner and the client company no later than 30 days prior to any failure to renew by the insured, or any request by the insured to terminate, the workers' compensation coverage for the client company's leased employees. 21 V.S.A. 1037(c).

E. Both the employee leasing company and its client company shall be entitled to the exclusivity of remedy provisions of 21 V.S.A. 622 provided that workers' compensation coverage is in effect. 21 V.S.A. 1037(b).

Section 8 UNEMPLOYMENT COMPENSATION BENEFITS

A. For this section, "commissioner" means the commissioner of employment and training, or the commissioner's designee, and "department" means the Department of Employment and Training.

B. Unemployment compensation benefits shall be charged against the experience rating record of the applicable client company in accordance with the provisions of 21 V.S.A. 1325.

C. Wage and Contribution reports shall be filed quarterly, and under the seven digit account number assigned by the department, for each client company and contributions shall be paid quarterly on the taxable wages paid by each client company during the preceding calendar quarter at the tax rate assigned by the department to that client company.

D. The commissioner may require an employee leasing company to make weekly contribution payments.

E. The department shall notify both the client company and the employee leasing company of:

1. Benefits charged against the experience rating record of the client company.

2. The contribution rate of the client company based on its status and experience as an employer.

F. An employee leasing company shall register with the department on a form provided by the commissioner and shall file the following with the commissioner:

1. A copy of each employee leasing agreement within ten days after the agreement is executed and notice within ten days after an agreement is terminated.

2. On or before December 31 of each year, or whenever the commissioner shall deem to be reasonably necessary for the proper and efficient administration of the unemployment insurance program, a list of each client company, including the client company's name, address, seven digit state employer account number, as assigned by the department, and federal employer identification number.

G. Each employee leasing firm must, on behalf of each client company, maintain true and accurate records covering each person leased by each client company respecting employment, wages, hours, unemployment and related matters as the commissioner deems reasonably necessary for the effective administration of the unemployment insurance program. Such records shall be available to the commissioner for inspection and copying during normal business hours.

Section 9 EMPLOYEE BENEFITS

A. An employee leasing company that offers employee benefit and welfare plans shall offer comparable benefits to each client company, but is not required to provide comparable benefits to leased employees of different client companies.

B. An employee leasing company that provides health insurance benefits to its leased employees shall provide those benefits only pursuant to one of the following:

1. An insurance policy issued under chapter 107 of Title 8 by an insurer or entity authorized to do business by the commissioner of banking, insurance, and securities.

2. A plan that has been qualified as a single employer plan under the provisions of the Employment Retirement Income Security Act (ERISA), as amended.

Section 10 COLLECTIVE BARGAINING; INTERFERENCE PROHIBITED

A. For purposes of the collective bargaining process, including the right to organize employee units based upon specific work sites, an employee leasing company shall be bound by law and liable for any violations of a collective bargaining agreement covering any of its leased employees. An employee leasing company shall not reassign leased employees or take any other action for the purpose of interfering with the terms and conditions of any collective bargaining agreement or organizational activity. 21 V.S.A. 1040.

B. Nothing in this rule shall be construed to relieve a client company of its obligations under any applicable law or to reduce or diminish any rights of leased employees to organize or collectively bargain.

Section 11 ENFORCEMENT; APPEALS; PROHIBITIONS; PENALTY

A. The commissioner may revoke, suspend, restrict or place on probation the license of any employee leasing company for a violation of any provision of this rule, for unprofessional conduct or for a violation of any law relating to the conduct of the business of employee leasing. Unprofessional conduct includes:

1. Failure to maintain financial responsibility and management competence.

2. Occupational advertising that is intended or tends to deceive the public.

Failure to comply with substantial provisions of state or federal law governing the conduct of an employee leasing company.

4. Conviction of a crime related to the conduct of the business of employee leasing by a controlling person of a licensee.

5. Failure to promptly pay all wages, benefits, workers' compensation premiums or awards or unemployment compensation contributions.

B. Before the commissioner shall revoke, suspend, restrict or place on probation the license of any employee leasing company, the licensee shall be entitled to notice and an opportunity to be heard in accordance with 3 V.S.A. Chapter 25.

C. The commissioner may charge the licensee the actual cost of any investigation undertaken at the direction of the commissioner in response to any complaint filed against the licensee.

D. A person may appeal an action taken by the commissioner under this section to the superior court.

E. Any person who conducts the business of employee leasing or holds themselves out as an employee leasing company without being licensed under this chapter shall be fined not more than $ 15,000.00.Statutory Authority: 21 V.S.A. Section 1032

History

• Effective Date: February 26, 1997 (Secretary of State Rule Log #97-7)

Chapter 008 PERMITTED AND PROHIBITED DUTIES OF BASEBALL BAT GIRL OR BAT BOY

24-008 Code Vt. R. 24-010-008-X PERMITTED AND PROHIBITED DUTIES OF BASEBALL BAT GIRL OR BAT BOY

(a) Authority.

Section 434 of title 21 allows children under the age of 16 to be employed to perform sportsattending services at professional baseball games. The statute directed the commissioner to establish, by rule, permissible duties of a baseball bat girl or bat boy.

(b) Permissible Duties.

A baseball bat girl or bat boy may:

(1) perform pre- and post-game or practice setup of balls, items and equipment;

(2) supply and retrieve balls, items and equipment during baseball games or practice;

(3) clear the field of debris, moisture, etc. during play;

(4) providing ice, drinks, towels, etc., to players during play;

(5) run errands for trainers, managers, coaches, and players before, during, and after the baseball game;

(6) return and/or storing balls, items and equipment in club house or locker room after the game.

(c) Prohibited Duties.

Duties shall not include:

(1) grounds or field maintenance such as grass mowing, spreading or rolling tarpaulins used to cover playing areas, etc.;

(2) cleaning and repairing equipment;

(3) cleaning locker rooms, showers, lavatories, rest rooms, team vehicles, club houses, dugouts or similar facilities;

(4) loading and unloading balls, items, and equipment from team vehicles before and after a game;

(5) doing laundry;

(6) working in concession stands or other selling and promotional activities.

(d) Interpretation.

This rule shall be interpreted to be consistent with federal child labor laws relating to duties of sports attendants. See 29 C.F.R. § 570.35. [32 FR 15478, Nov. 8, 1967. Redesignated and amended at 36 FR 25156, Dec. 29, 1971; 37 FR 5246, Mar. 11, 1972; 60 FR 19339, Apr. 17, 1995]Statutory Authority: 21 V.S.A. § 434

History

• Effective Date: March 12, 2001 (Secretary of State Rule Log # 01-12)

Chapter 009 VERMONT CHILD LABOR RULES

24-009 Code Vt. R. 24-010-009-X VERMONT CHILD LABOR RULES

Introduction

The Vermont Legislature amended Vermont's child labor laws in 2001. The amendments directed the Commissioner to adopt child labor regulations consistent with the federal regulations adopted by the United States Department of Labor (USDOL). The child labor regulations adopted here are based on the federal child labor regulations which can be found at 29 C.F.R. Part 570. Federal application and interpretation of those regulations shall guide the interpretation and application of the Vermont Child Labor Rules. If the U.S.D.O.L. adopts a rule reducing the protection provided children under existing Vermont law and these rules, it shall not become effective in Vermont unless specifically adopted through Vermont's rulemaking process.

Statutory Authority to Adopt these rules.

The Commissioner's authority to adopt these rules is established in 21 V.S.A. §§ 430(c); 434; and, 436.

Coverage

These rules apply to any employment of children in the state of Vermont. A child is employed if the child is suffered or permitted to work by an employer. Since Vermont statute does not contain a specific definition of the term employer for child labor purposes, the department iterprets the term in accord with its common law meaning under Vermont child labor law.

Part A General

570.1 Definitions

As used in this part:

(a) "F.L.S.A" means the Fair Labor Standards Act of 1938, as amended (52 Stat. 1060, as amended; 29 U.S.C. §§ 201 - 219) .

(b) "Oppressive child labor" means employment of a minor in an occupation for which the minor does not meet the minimum age standards of the F.L.S.A or Vermont law, as set forth in Sec. 570.2 of this Part.

(c) "Oppressive child labor age" means an age below the minimum age established under the F.L.S.A or Vermont law for the occupation in which a minor is employed or in which employment is contemplated.

(d) A "certificate of age" means a certificate as provided in Sec. 570.5(b)(1) or (2) of this Part.

(e) [Reserved]

(f) "Commissioner" means the Commissioner of Labor & Industry or authorized representative.

(g) Wage and Hour Program means the Wage and Hour Program in the Vermont Department of Labor & Industry.

(h) [Reserved]

(i) "State agency" means any officer, executive department, board, bureau or commission of a State or any division or program thereof authorized to take action with respect to the application of laws relating to minors.

570.2 Minimum age standards

(a) All occupations except in agriculture.

(1) Vermont's child labor law and the F.L.S.A set a general 16-year minimum age which applies to all employment subject to the child labor provisions in any occupation other than in agriculture, with the following exceptions:

(i) These laws authorize the Secretary of Labor or the Commissioner to provide by regulation or by order that the employment of employees between the ages of 14 and 16 years in occupations other than manufacturing and mining shall not be deemed to constitute oppressive child labor, if and to the extent that the Secretary of Labor or the Commissioner determine that such employment is confined to periods which will not interfere with their schooling and to conditions which will not interfere with their health and well-being (see Part C of this part); and

(ii) These laws set an 18-year minimum age with respect to employment in any occupation found and declared by the Secretary of Labor to be particularly hazardous for the employment of minors of such age or detrimental to their health or well-being (see subpart E of this part).

(2) Both Vermont's child labor law and the F.L.S.A exempt from the minimum age requirements the employment by a parent of the parent's own child, or by a person standing in place of a parent of a child in his custody, except in occupations to which the 18-year age minimum applies and in manufacturing and mining occupations.

(b) Occupations in agriculture. A 16-year age minimum is set for employment in agriculture during school hours for the school district in which the employed minor is living at the time, and also for employment in any occupation in agriculture that the Secretary of Labor finds and declares to be particularly hazardous except where such employee is employed by the child's parent or by a person standing in the place of the parent on a farm owned or operated by such parent or person (see Part E-1 of this part). There is a minimum age requirement of 14 years generally for employment in agriculture outside school hours for the school district where such employee is living while so employed. However, (1) a minor 12 or 13 years of age may be so employed with written consent of the minor's parent or person standing in place of the parent, or may work on a farm where such parent or person is also employed, and (2) a minor under 12 years of age may be employed by his parent or by a person standing in place of his parent on a farm owned or operated by such parent or person, or may be employed with consent of such parent or person on a farm where all employees are exempt from the minimum wage provisions by virtue of section 13(a) (6) (A) of the F.L.S.A.

Part B Certificates of Age [Reserved]

See Vermont's statutory provisions -- 21 V.S.A. §§ 431 -- 432.

| 570.5 - | [Reserved.] | | --- | --- | | 570.6 - | [Reserved.] | | 570.7 - | [Reserved.] | | 570.8 - | [Reserved.] | | 570.9 - | [Reserved.] | | 570.10 - | [Reserved.] | | 570.11 - | [Reserved.] | | 570.25 - | [Reserved.] | | 570.27 - | [Reserved.] |

Part C Employment of Minors Between 14 and 16 Years of Age (USDOL Child Labor Reg. 3)

570.31 Determination

The employment of minors between 14 and 16 years of age in the occupations, for the periods, and under the conditions hereafter specified does not interfere with their schooling or with their health and well-being and shall not be considered oppressive child labor.

570.32 Effect of this subpart

In all occupations covered by this Part the employment (including suffering or permitting to work) by an employer of minor employees between 14 and 16 years of age for the periods and under the conditions specified in Sec. 570.35 shall not be considered oppressive child labor within the meaning of the Fair Labor Standards Act of 1938 or Vermont child labor laws.

570.33 Occupations

This Part shall apply to all occupations other than the following:

(a) Manufacturing, mining, or processing occupations, including occupations requiring the performance of any duties in work rooms or work places where goods are manufactured, mined, or otherwise processed;

(b) Occupations which involve the operation or tending of hoisting apparatus or of any power-driven machinery other than office machines;

(c) The operation of motor vehicles or service as helpers on such vehicles;

(d) Public messenger service;

(e) Occupations which the U.S. Secretary of Labor may find and declare to be hazardous for the employment of minors between 16 and 18 years of age or detrimental to their health or well-being;

(f) Occupations in connection with:

(1) Transportation of persons or property by rail, highway, air, water, pipeline, or other means;

(2) Warehousing and storage;

(3) Communications and public utilities;

(4) Construction (including demolition and repair);

except such office (including ticket office) work, or sales work, in connection with paragraphs (f)(1), (2), (3), and (4) of this section, as does not involve the performance of any duties on trains, motor vehicles, aircraft, vessels, or other media of transportation or at the actual site of construction operations.

570.34 Occupations in retail, food service, and gasoline service establishments

(a) This Part shall apply to the following permitted occupations for minors between the ages of 14 and 16 employed by retail, food service, and gasoline service establishments.

(1) Office and clerical work, including the operation of office machines;

(2) Cashiering, selling, modeling, art work, work in advertising departments, window trimming, and comparative shopping;

(3) Price marking and tagging by hand or by machine, assembling orders, packing and shelving;

(4) Bagging and carrying out customers' orders;

(5) Errand and delivery work by foot, bicycle, and public transportation;

(6) Clean up work, including the use of vacuum cleaners and floor waxers, and maintenance of grounds, but not including the use of power-driven mowers, or cutters;

(7) Kitchen work and other work involved in preparing and serving food and beverages, including the operation of machines and devices used in the performance of such work, such as but not limited to, dish-washers, toasters, dumbwaiters, popcorn poppers, milk shake blenders, and coffee grinders;

(8) Work in connection with cars and trucks if confined to the following: Dispensing gasoline and oil; courtesy service; car cleaning, washing and polishing; and other occupations permitted by this section, but not including work involving the use of pits, racks, or lifting apparatus, or involving the inflation of any tire mounted on a rim equipped with a removable retaining ring.

(9) Cleaning vegetables and fruits, and wrapping, sealing, labeling, weighing, pricing and stocking goods when performed in areas physically separate from those where the work described in paragraph (b)(7) of this section is performed;

(b) Paragraph (a) of this section shall not be construed to permit the application of this Part to any of the following occupations in retail, food service, and gasoline service establishments:

(1) All occupations listed in Sec. 570.33 except occupations involving processing, operation of machines and work in rooms where processing and manufacturing take place which are permitted by paragraph (a) of this section;

(2) Work performed in or about boiler or engine rooms;

(3) Work in connection with maintenance or repair of the establishment, machines or equipment;

(4) Outside window washing that involves working from window sills, and all work requiring the use of ladders, scaffolds, or their substitutes;

(5) Cooking (except at soda fountains, lunch counters, snack bars, or cafeteria serving counters) and baking;

(6) Occupations which involve operating, setting up, adjusting, cleaning, oiling, or repairing power-driven food slicers and grinders, food choppers, and cutters, and bakery-type mixers;

(7) Work in freezers and meat coolers and all work in the preparation of meats for sale except as described in paragraph (a)(9) of this section;

(8) Loading and unloading goods to and from trucks, railroad cars, or conveyors;

(9) All occupations in warehouses except office and clerical work.

570.35 Periods and conditions of employment

(a) Except as provided in paragraph (b) of this section, employment in any of the occupations to which this Part is applicable shall be confined to the following periods:

(1) Outside school hours;

(2) Not more than 40 hours in any 1 week when school is not in session;

(3) Not more than 18 hours in any 1 week when school is in session;

(4) Not more than 8 hours in any 1 day when school is not in session;

(5) Not more than 3 hours in any 1 day when school is in session;

(6) Between 7 a.m. and 7 p.m. in any 1 day, except during the summer (June 1 through Labor Day) when the evening hour will be 9 p.m.

(b) In the case of minors 14 and 15 years of age who are employed to perform sports-attending services at professional sporting events, i.e., baseball, basketball, football, soccer, tennis, etc., the requirements of paragraphs (a)(2) through (a)(6) of this section shall not apply, provided that the duties of the sports-attendant occupation consist of pre- and post-game or practice setup of balls, items and equipment; supplying and retrieving balls, items and equipment during a sporting event; clearing the field or court of debris, moisture, etc. during play; providing ice, drinks, towels, etc., to players during play; running errands for trainers, managers, coaches, and players before, during, and after a sporting event; and returning and/or storing balls, items and equipment in club house or locker room after a sporting event. For purposes of this exception, impermissible duties include grounds or field maintenance such as grass mowing, spreading or rolling tarpaulins used to cover playing areas, etc.; cleaning and repairing equipment; cleaning locker rooms, showers, lavatories, rest rooms, team vehicles, club houses, dugouts or similar facilities; loading and unloading balls, items, and equipment from team vehicles before and after a sporting event; doing laundry; and working in concession stands or other selling and promotional activities.

See "Bat Boy" Rule.

570.35a Work experience and career exploration programs

(a) This section varies some provisions of this Part for the employment of minors between 14 and 16 years of age who are enrolled in and employed pursuant to a school-supervised and school-administered work-experience and career exploration program which meets the requirements of paragraph (b) of this section, in the occupations permitted under paragraph (c) of this section, and for the periods and under the conditions specified in paragraph (d) of this section. With these safeguards, such employment is found not to interfere with the schooling of the minors or with their health and well-being and therefore is not considered oppressive child labor.

(b)

(1) A school-supervised and school-administered work-experience and career exploration program shall meet the educational standards established and approved by the Vermont Department of Education.

(2) The State Educational Agency shall file with the USDOL Wage and Hour Division a letter of application for approval of a State program as one not interfering with schooling or with the health and well-being of the minors involved and therefore not constituting oppressive child labor. The application must include information concerning the criteria listed in paragraph (b)(3) of this section. The USDOL Wage and Hour Division shall approve the application, or give prompt notice of any denial and the reasons therefore.

(3) The criteria to be used in consideration of applications are the following:

(i) Eligibility. Any student aged 14 or 15 years who authoritative local school personnel identify as being able to benefit from the program shall be eligible to participate.

(ii) Credits. Students shall receive school credits for both in-school related instruction and on-the-job experience.

(iii) Size. Each program unit shall be a reasonable size. A unit of 12 to 25 students to one teacher-coordinator would be generally considered reasonable. Whether other sizes are reasonable would depend upon the individual facts and circumstances involved.

(iv) Instructional schedule. There shall be (a) allotted time for the required classroom instruction in those subjects necessary for graduation under the State's standards and (b) regularly scheduled classroom periods of instruction devoted to job-related and to employability skill instruction.

(v) Teacher-coordinator. Each program unit shall be under the supervision of a school official to be designated for the purpose of the program as a teacher-coordinator, who shall generally supervise the program and coordinate the work and education aspects of the program and make regularly scheduled visits to the work stations.

(vi) Written training agreement. No student shall participate in the program until there has been made a written training agreement signed by the teacher-coordinator, the employer, and the student. The agreement shall also be signed or otherwise consented to by the student's parent or guardian.

(vii) Other provisions. Any other provisions of the program providing safeguards ensuring that the employment permitted under this section will not interfere with the schooling of the minors or with their health and well-being may also be submitted for use in consideration of the application.

(4) Every State Educational Agency having students in a program approved pursuant to the requirements of this section shall comply with the following:

(i) Permissible occupations. No student shall be assigned to work in any occupation other than one permitted under paragraph (c) of this section.

(ii) Records and reports. The names and addresses of each school enrolling work experience and career exploration program students and the number of enrollees in each unit shall be kept at the State Educational Agency office. A copy of the written training agreement for each student participating in the program shall be kept in the State Educational Agency office or in the local educational office. The records required for this paragraph shall be kept for a period of 3 years from the date of enrollment in the program and shall be made available for inspection or transcription to the representatives of the Administrator of the Wage and Hour Division.

(c) Employment of minors enrolled in a program approved pursuant to the requirements of this section shall be permitted in all occupations except the following:

(1) Manufacturing and mining.

(2) Occupations declared to be hazardous for the employment of minors between 16 and 18 years of age in Part E, and occupations in agriculture declared to be hazardous for employment of minors below the age of 16 in Part E-1.

(3) Occupations other than those permitted under Secs. 570.33 and 570.34, except upon approval of a variation by the Administrator of the Wage and Hour Division in acting on the program application of the State Educational Agency. The Administrator shall have discretion to grant requests for special variations if the applicant demonstrates that the activity will be performed under adequate supervision and training (including safety precautions) and that the terms and conditions of the proposed employment will not interfere with the health or well-being or schooling of the minor enrolled in an approved program. The granting of a special variation is determined on a case-by-case basis.

(i) The Administrator's decision on whether to grant a special variation will be based on information provided in the application filed by the State Educational Agency, and/or any supplemental information that may be requested by the Administrator.

(ii) The Administrator's decision shall be in writing, and may designate specific equipment safeguards or other terms and conditions governing the work-activity approved by variation. If the request is denied, in whole or part, the reason(s) for the decision will be provided to the applicant, who may request reconsideration.

(iii) A special variation will be valid only during the period covered by an approved program, and must be renewed with the filing of a new program application.

(iv) The Administrator shall revoke or deny a special variation, in whole or in part, where there is reason to believe that program participants have been or will be employed contrary to terms and conditions specified for the variation, or these regulations, other provisions of the Fair Labor Standards Act, or otherwise in conditions detrimental to their health or well-being or schooling.

(v) Requests for special variations and related documentation will be available for examination in the Branch of Child Labor and Polygraph Standards, Wage and Hour Division, Room S3510, 200 Constitution Avenue, NW., Washington, DC 20210. Any interested person may oppose the granting of a special variation or may request reconsideration or revocation of a special variation. Such requests shall set forth reasons why the special variation should be denied or revoked.

(d) Employment of minors enrolled in a program approved pursuant to the requirements of this section shall be confined to not more than 23 hours in any 1 week when school is in session and not more than 3 hours in any day when school is in session, any portion of which may be during school hours. Insofar as these provisions are inconsistent with the provisions of Sec. 570.35, this section shall be controlling.

(e) The employment of a minor enrolled in a program pursuant to the requirements of this section must not have the effect of displacing a worker employed in the establishment of the employer.

(f) Programs shall be in force and effect for a period of two (2) school years from the date of their approval by the Administrator of the Wage and Hour Division. A new application for approval must be filed at the end of that period. Failure to meet the requirements of this section may result in withdrawal of approval.

570.36 Certificates of age; effect

The employment of any minor in any of the occupations to which this Part is applicable, if confined to the periods specified in Sec. 570.35, shall not be considered oppressive child labor within the meaning of the Vermont child labor law if the employer shall have on file evidence certifying that such minor is of an age between 14 and 16 years.

570.37 Effect on other laws

No provision of this Part shall under any circumstances justify or be construed to permit noncompliance with the wage and hour provisions of the F.L.S.A or with the provisions of any State law or municipal ordinance establishing higher standards than those established under this subpart.

570.38 Reserved

Part E Occupations Particularly Hazardous for the Employment of Minors Between 16 and 18 Years of Age or Detrimental to Their Health or Well-Being

570.50 General

Note: The provisions of this subpart declaring certain occupations to be particularly hazardous for the employment of minors between 16 and 18 years of age or detrimental to their health or well-being do not apply to employment in agriculture.

(a) Higher standards. Nothing in this subpart shall authorize non-compliance with any Federal or State law, regulation, or municipal ordinance establishing a higher standard. If more than one standard within this Part applies to a single activity the higher standard shall be applicable.

(b) Apprentices. Some sections in this Part contain an exemption for the employment of apprentices. Such an exemption shall apply only when:

(1) The apprentice is employed in a craft recognized as an apprenticeable trade;

(2) the work of the apprentice in the occupations declared particularly hazardous is incidental to his training;

(3) such work is intermittent and for short periods of time and is under the direct and close supervision of a journeyman as a necessary part of such apprentice training; and

(4) the apprentice is registered by the Bureau of Apprenticeship and Training of the United States Department of Labor as employed in accordance with the standards established by that Bureau, or is registered by a State agency (Vermont Department of Employment and Training (DET)) as employed in accordance with the standards of the State apprenticeship agency recognized by the Bureau of Apprenticeship and Training, or is employed under a written apprenticeship agreement and conditions which are found by the Secretary of Labor to conform substantially with such Federal or State standards.

(c) Student-learners. Some sections in this Part contain an exemption for the employment of student-learners. Such an exemption shall apply when:

(1) The student-learner is enrolled in a course of study and training in a cooperative vocational training program under a recognized State or local educational authority or in a course of study in a substantially similar program conducted by a private school and;

(2) Such student-learner is employed under a written agreement which provides:

(i) That the work of the student-learner in the occupations declared particularly hazardous shall be incidental to his training;

(ii) That such work shall be intermittent and for short periods of time, and under the direct and close supervision of a qualified and experienced person;

(iii) That safety instructions shall be given by the school and correlated by the employer with on-the-job training; and

(iv) That a schedule of organized and progressive work processes to be performed on the job shall have been prepared.

Each such written agreement shall contain the name of student-learner, and shall be signed by the employer and the school coordinator or principal. Copies of each agreement shall be kept on file by both the school and the employer. This exemption for the employment of student-learners may be revoked in any individual situation where it is found that reasonable precautions have not been observed for the safety of minors employed thereunder. A high school graduate may be employed in an occupation in which he has completed training as provided in this paragraph as a student-learner, even though he is not yet 18 years of age.

570.51 Occupations in or about plants or establishments manufacturing or storing explosives or articles containing explosive components (Order 1)

(a) Finding and declaration of fact. The following occupations in or about plants or establishments manufacturing or storing explosives or articles containing explosive components are particularly hazardous for minors between 16 and 18 years of age or detrimental to their health or well-being:

(1) All occupations in or about any plant or establishment (other than retail establishments or plants or establishments of the type described in paragraph (a)(2) of this section) manufacturing or storing explosives or articles containing explosive components except where the occupation is performed in a "nonexplosives area" as defined in paragraph (b)(3) of this section.

(2) The following occupations in or about any plant or establishment manufacturing or storing small-arms ammunition not exceeding .60 caliber in size, shotgun shells, or blasting caps when manufactured or stored in conjunction with the manufacture of small-arms ammunition:

(i) All occupations involved in the manufacturing, mixing, transporting, or handling of explosive compounds in the manufacture of small-arms ammunition and all other occupations requiring the performance of any duties in the explosives area in which explosive compounds are manufactured or mixed.

(ii) All occupations involved in the manufacturing, transporting, or handling of primers and all other occupations requiring the performance of any duties in the same building in which primers are manufactured.

(iii) All occupations involved in the priming of cartridges and all other occupations requiring the performance of any duties in the same workroom in which rim-fire cartridges are primed.

(iv) All occupations involved in the plate loading of cartridges and in the operation of automatic loading machines.

(v) All occupations involved in the loading, inspecting, packing, shipping and storage of blasting caps.

(b) Definitions. For the purpose of this section:

(1) The term plant or establishment manufacturing or storing explosives or articles containing explosive component means the land with all the buildings and other structures thereon used in connection with the manufacturing or processing or storing of explosives or articles containing explosive components.

(2) The terms explosives and articles containing explosive components mean and include ammunition, black powder, blasting caps, fireworks, high explosives, primers, smokeless powder, and all goods classified and defined as explosives by the Interstate Commerce Commission in regulations for the transportation of explosives and other dangerous substances by common carriers ( 49 CFR parts 71 to 78) issued pursuant to the Act of June 25, 1948 (62 Stat. 739; 18 U.S.C. 835).

(3) An area meeting all of the criteria in paragraphs (b)(3) (i) through (iv) of this section shall be deemed a "nonexplosives area":

(i) None of the work performed in the area involves the handling or use of explosives;

(ii) The area is separated from the explosives area by a distance not less than that prescribed in the American Table of Distances for the protection of inhabited buildings;

(iii) The area is separated from the explosives area by a fence or is otherwise located so that it constitutes a definite designated area; and

(iv) Satisfactory controls have been established to prevent employees under 18 years of age within the area from entering any area in or about the plant which does not meet criteria of paragraphs (b)(3) (i) through (iii) of this section.

570.52 Occupations of motorvehicle driver and outside helper (Order 2)

But cf.

Vermont state motor vehicle laws - must hold license for one year

(a) Findings and declaration of fact. Except as provided in paragraph (b) of this section, the occupations of motor-vehicle driver and outside helper on any public road, highway, in or about any mine (including open pit mine or quarry), place where logging or sawmill operations are in progress, or in any excavation of the type identified in Sec. 570.68(a) are particularly hazardous for the employment of minors between 16 and 18 years of age.

(b)

(1) Exemption--Incidental and occasional driving. The findings and declaration in paragraph (a) of this section shall not apply to the operation of automobiles or trucks not exceeding 6,000 pounds gross vehicle weight if such driving is restricted to daylight hours; provided, such operation is only occasional and incidental to the minor's employment; that the minor holds a State license valid for the type of driving involved in the job performed and has completed a State approved driver education course; and provided further, that the vehicle is equipped with a seat belt or similar restraining device for the driver and for each helper, and the employer has instructed each minor that such belts or other devices must be used. This paragraph shall not be applicable to any occupation of motor-vehicle driver which involves the towing of vehicles.

(2) Special exemption for school bus driving through 1995-1996 school year. The Secretary of Labor shall have the discretion to grant an exemption from the finding and declaration in paragraph (a) of this section for school bus driving by students on the basis of an application filed and approved by the Governor of the State in which the vehicle is registered, provided that such exemption can only be granted to a school district in which student drivers were employed under this exemption during the school years 1989-1990 and 1990-1991. An application for such school district may be filed for each school year up to and including school year 1995-1996, and thereafter school bus driving by students who are minors between 16 and 18 years of age will no longer be permitted. In evaluating the annual application for such exemption, the Secretary will consider the following:

(i) Whether the accident experience of school bus drivers under 18 years of age in the State, if any are employed, compares favorably with that of adult school bus drivers.

(ii) Whether school bus drivers are selected by the school principal and approved by the county superintendent or an official of equivalent responsibility.

(iii) Whether school bus drivers are required to have completed a State approved driver education course, or a special school bus driver training course prior to being allowed to transport passengers.

(iv) Whether training and testing of school bus drivers includes classroom and behind-the-wheel training and is done by qualified officials.

(v) Whether school bus drivers are required to pass a physical examination.

(vi) Whether the operation of school buses is supervised by the school principal, the transportation or other equivalent officer, and State, county, or city police.

(vii) Whether school buses are thoroughly inspected a minimum of four times a year at a State, district, or county inspection station and receive maintenance and repairs at regular intervals to ascertain and insure their safe operating conditions on a continuous basis, and that all inspections, maintenance, and repairs are performed by qualified inspectors and mechanics.

(viii) Whether school bus drivers are provided with and required to use seat belts.

(ix) Whether adequate measures are taken by State and local officials to control the speed of school buses in order to insure that the buses are not driven at a speed greater than is reasonable and prudent.

(x) Whether adult chaperons, approved by local school authorities, accompany school bus drivers on special activity trips sponsored by the school.

(xi) Whether the school buses conform substantially to the minimum Standards for School Buses, 1964 Revised Edition, recommended by the National Conference on School Transportation and published by the National Education Association.

(xii) Any other factors with the Secretary may find relevant in evaluating the application for exemption.

(c) Definitions. For the purpose of this section:

(1) The term motor vehicle shall mean any automobile, truck, truck-tractor, trailer, semi trailer, motorcycle, or similar vehicle propelled or drawn by mechanical power and designed for use as a means of transportation but shall not include any vehicle operated exclusively on rails.

(2) The term driver shall mean any individual who, in the course of employment, drives a motor vehicle at any time.

(3) The term outside helper shall mean any individual, other than a driver, whose work includes riding on a motor vehicle outside the cab for the purpose of assisting in transporting or delivering goods.

(4) The term gross vehicle weight includes the truck chassis with lubricants, water and a full tank or tanks of fuel, plus the weight of the cab or driver's compartment, body and special chassis and body equipment, and payload.

570.53 Coal-mine occupations (Order 3)

(a) Finding and declaration of fact. All occupations in or about any coal mine, except the occupation of slate or other refuse picking at a picking table or picking chute in a tipple or breaker and occupations requiring the performance of duties solely in offices or in repair or maintenance shops located in the surface part of any coal-mining plant, are particularly hazardous for the employment of minors between 16 and 18 years of age.

(b) Definitions. For the purpose of this section:

(1) The term coal shall mean any rank of coal including lignite, bituminous, and the anthracite coals.

(2) The term all occupations in or about any coal mine shall mean all types of work performed in any underground working, open-pit, or surface part of any coal-mining plant, that contribute to the extraction, grading, cleaning, or other handling of coal.

570.54 Logging occupations and occupations in the operation of any sawmill, lath mill, shingle mill, or cooperage stock mill (Order 4)

(a) Finding and declaration of fact. All occupations in logging and all occupations in the operation of any sawmill, lath mill, shingle mill, or cooperage-stock mill are particularly hazardous for the employment of minors between 16 and 18 years of age, except the following:

(1) Exceptions applying to logging:

(i) Work in offices or in repair or maintenance shops.

(ii) Work in the construction, operation, repair, or maintenance of living and administrative quarters of logging camps.

(iii) Work in timber cruising, surveying, or logging-engineering parties; work in the repair or maintenance of roads, railroads, or flumes; work in forest protection, such as clearing fire trails or roads, piling and burning slash, maintaining fire-fighting equipment, constructing and maintaining telephone lines, or acting as fire lookout or fire patrolman away from the actual logging operations: Provided, That the provisions of this paragraph shall not apply to the felling of bucking of timber, the collecting or transporting of logs, the operation of power-driven machinery, the handling or use of explosives, and work on trestles.

(iv) Peeling of fence posts, pulpwood, chemicalwood, excelsior wood, cordwood, or similar products, when not done in conjunction with and at the same time and place as other logging occupations declared hazardous by this section.

(v) Work in the feeding or care of animals.

(2) Exceptions applying to the operation of any permanent sawmill or the operation of any lath mill, shingle mill, or cooperage-stock mill: Provided, That these exceptions do not apply to a portable sawmill the lumberyard of which is used only for the temporary storage of green lumber and in connection with which no office or repair or maintenance shop is ordinarily maintained: And further provided, That these exceptions do not apply to work which entails entering the sawmill building:

(i) Work in offices or in repair or maintenance shops.

(ii) Straightening, marking, or tallying lumber on the dry chain or the dry drop sorter.

(iii) Pulling lumber from the dry chain.

(iv) Clean-up in the lumberyard.

(v) Piling, handling, or shipping of cooperage stock in yards or storage sheds other than operating or assisting in the operation of power-driven equipment.

(vi) Clerical work in yards or shipping sheds, such as done by ordermen, tally-men, and shipping clerks.

(vii) Clean-up work outside shake and shingle mills, except when the mill is in operation.

(viii) Splitting shakes manually from precut and split blocks with a froe and mallet, except inside the mill building or cover.

(ix) Packing shakes into bundles when done in conjunction with splitting shakes manually with a froe and mallet, except inside the mill building or cover.

(x) Manual loading of bundles of shingles or shakes into trucks or railroad cars, provided that the employer has on file a statement from a licensed doctor of medicine or osteopathy certifying the minor capable of performing this work without injury to himself.

(b) Definition. As used in this section:

(1) The term all occupations in logging shall mean all work performed in connection with the felling of timber; the bucking or converting of timber into logs, poles, piles, ties, bolts, pulpwood, chemical wood, excelsior wood, cordwood, fence posts, or similar products; the collecting, skidding, yarding, loading, transporting and unloading of such products in connection with logging; the constructing, repairing and maintaining of roads, railroads, flumes, or camps used in connection with logging; the moving, installing, rigging, and maintenance of machinery or equipment used in logging; and other work performed in connection with logging. The term shall not apply to work performed in timber culture, timber-stand improvement, or in emergency fire-fighting.

(2) The term all occupations in the operation of any sawmill, lath mill, shingle mill, or cooperage-stock mill shall mean all work performed in or about any such mill in connection with storing of logs and bolts; converting logs or bolts into sawn lumber, laths, shingles, or cooperage stock; storing, drying, and shipping lumber, laths, shingles, cooperage stock, or other products of such mills; and other work performed in connection with the operation of any sawmill, lath mill, shingle mill, or cooperage-stock mill. The term shall not include work performed in the planing-mill department or other remanufacturing departments of any sawmill, or in any planing mill or remanufacturing plant not a part of a sawmill.

570.55 Occupations involved in the operation of powerdriven woodworking machines (Order 5)

(a) Finding and declaration of fact. The following occupations involved in the operation of power-driven wood-working machines are particularly hazardous for minors between 16 and 18 years of age:

(1) The occupation of operating power-driven woodworking machines, including supervising or controlling the operation of such machines, feeding material into such machines, and helping the operator to feed material into such machines but not including the placing of material on a moving chain or in a hopper or slide for automatic feeding.

(2) The occupations of setting up, adjusting, repairing, oiling, or cleaning power-driven woodworking machines.

(3) The occupations of off-bearing from circular saws and from guillotine-action veneer clippers.

(b) Definitions. As used in this section:

(1) The term power-driven woodworking machines shall mean all fixed or portable machines or tools driven by power and used or designed for cutting, shaping, forming, surfacing, nailing, stapling, wire stitching, fastening, or otherwise assembling, pressing, or printing wood or veneer.

(2) The term off-bearing shall mean the removal of material or refuse directly from a saw table or from the point of operation. Operations not considered as off-bearing within the intent of this section include:

(i) The removal of material or refuse from a circular saw or guillotine-action veneer clipper where the material or refuse has been conveyed away from the saw table or point of operation by a gravity chute or by some mechanical means such as a moving belt or expulsion roller, and

(ii) the following operations when they do not involve the removal of material or refuse directly from a saw table or from the point of operation: The carrying, moving, or transporting of materials from one machine to another or from one part of a plant to another; the piling, stacking, or arranging of materials for feeding into a machine by another person; and the sorting, tying, bundling, or loading of materials.

(c) Exemptions. This section shall not apply to the employment of apprentices or student-learners under the conditions prescribed in Sec. 570.50(b) and (c).

570.57 Exposure to radioactive substances and to ionizing radiations (Order 6)

(a) Finding and declaration of fact. The following occupations involving exposure to radioactive substances and to ionizing radiations are particularly hazardous and detrimental to health for minors between 16 and 18 years of age:

(1) Any work in any workroom in which

(i) radium is stored or used in the manufacture of self-luminous compound,

(ii) self-luminous compound is made, processed, or packaged,

(iii) self-luminous compound is stored, used, or worked upon,

(iv) incandescent mantles are made from fabric and solutions containing thorium salts, or are processed or packaged,

(v) other radioactive substances are present in the air in average concentrations exceeding 10 percent of the maximum permissible concentrations in the air recommended for occupational exposure by the National Committee on Radiation Protection, as set forth in the 40-hour week column of table one of the National Bureau of Standards Handbook No. 69 entitled "Maximum Permissible Body Burdens and Maximum Permissible Concentrations of Radionuclides in Air and in Water for Occupational Exposure," issued June 5, 1959.

(2) Any other work which involves exposure to ionizing radiations in excess of 0.5 rem per year.

(b) Definitions. As used in this section:

(1) The term self-luminous compound shall mean any mixture of phosphorescent material and radium, mesothorium, or other radioactive element;

(2) The term workroom shall include the entire area bounded by walls of solid material and extending from floor to ceiling;

(3) The term ionizing radiations shall mean alpha and beta particles, electrons, protons, neutrons, gamma and X-ray and all other radiations which produce ionizations directly or indirectly, but does not include electromagnetic radiations other than gamma and X-ray.

570.58 Occupations involved in the operation of power-driven hoisting apparatus (Order 7)

(a) Finding and declaration of fact. The following occupations involved in the operation of power-driven hoisting apparatus are particularly hazardous for minors between 16 and 18 years of age:

(1) Work of operating an elevator, crane, derrick, hoist, or high-lift truck, except operating an unattended automatic operation passenger elevator or an electric or air-operated hoist not exceeding one ton capacity.

(2) Work which involves riding on a manlift or on a freight elevator, except a freight elevator operated by an assigned operator.

(3) Work of assisting in the operation of a crane, derrick, or hoist performed by crane hookers, crane chasers, hookers-on, riggers, rigger helpers, and like occupations.

(b) Definitions. As used in this section:

(1) The term elevator shall mean any power-driven hoisting or lowering mechanism equipped with a car or platform which moves in guides in a substantially vertical direction. The term shall include both passenger and freight elevators (including portable elevators or tiering machines), but shall not include dumbwaiters.

(2) The term crane shall mean a power-driven machine for lifting and lowering a load and moving it horizontally, in which the hoisting mechanism is an integral part of the machine. The term shall include all types of cranes, such as cantilever gantry, crawler, gantry, hammerhead, ingot-pouring, jib, locomotive, motor-truck, overhead traveling, pillar jib, pintle, portal, semi-gantry, semi-portal, storage bridge, tower, walking jib, and wall cranes.

(3) The term derrick shall mean a power-driven apparatus consisting of a mast or equivalent members held at the top by guys or braces, with or without a boom, for use with an hoisting mechanism or operating ropes. The term shall include all types of derricks, such as A-frame, breast, Chicago boom, gin-pole, guy and stiff-leg derrick.

(4) The term hoist shall mean a power-driven apparatus for raising or lowering a load by the application of a pulling force that does not include a car or platform running in guides. The term shall include all types of hoists, such as base mounted electric, clevis suspension, hook suspension, monorail, overhead electric, simple drum and trolley suspension hoists.

(5) The term high-lift truck shall mean a power-driven industrial type of truck used for lateral transportation that is equipped with a power-operated lifting device usually in the form of a fork or platform capable of tiering loaded pallets or skids one above the other. Instead of a fork or platform, the lifting device may consist of a ram, scoop, shovel, crane, revolving fork, or other attachments for handling specific loads. The term shall mean and include highlift trucks known under such names as fork lifts, fork trucks, fork-lift trucks, tiering trucks, or stacking trucks, but shall not mean low-lift trucks or low-lift platform trucks that are designed for the transportation of but not the tiering of material.

(6) The term manlift shall mean a device intended for the conveyance of persons which consists of platforms or brackets mounted on, or attached to, an endless belt, cable, chain or similar method of suspension; such belt, cable or chain operating in a substantially vertical direction and being supported by and driven through pulleys, sheaves or sprockets at the top and bottom.

(c) Exception.

(1) This section shall not prohibit the operation of an automatic elevator and an automatic signal operation elevator provided that the exposed portion of the car interior (exclusive of vents and other necessary small openings), the car door, and the hoistway doors are constructed of solid surfaces without any opening through which a part of the body may extend; all hoistway openings at floor level have doors which are interlocked with the car door so as to prevent the car from starting until all such doors are closed and locked; the elevator (other than hydraulic elevators) is equipped with a device which will stop and hold the car in case of overspeed or if the cable slackens or breaks; and the elevator is equipped with upper and lower travel limit devices which will normally bring the car to rest at either terminal and a final limit switch which will prevent the movement in either direction and will open in case of excessive over travel by the car.

(2) For the purpose of this exception the term automatic elevator shall mean a passenger elevator, a freight elevator, or a combination passenger-freight elevator, the operation of which is controlled by pushbuttons in such a manner that the starting, going to the landing selected, leveling and holding, and the opening and closing of the car and hoistway doors are entirely automatic.

(3) For the purpose of this exception, the term automatic signal operation elevator shall mean an elevator which is started in response to the operation of a switch (such as a lever or pushbutton) in the car which when operated by the operator actuates a starting device that automatically closes the car and hoistway doors--from this point on, the movement of the car to the landing selected, leveling and holding when it gets there, and the opening of the car and hoistway doors are entirely automatic.

570.59 Occupations involved in the operations of power-driven metal forming, punching, and shearing machines (Order 8)

(a) Finding and declaration of fact. The following occupations are particularly hazardous for the employment of minors between 16 and 18 years of age:

(1) The occupations of operator of or helper on the following power-driven metal forming, punching, and shearing machines:

(i) All rolling machines, such as beading, straightening, corrugating, flanging, or bending rolls; and hot or cold rolling mills.

(ii) All pressing or punching machines, such as punch presses except those provided with full automatic feed and ejection and with a fixed barrier guard to prevent the hands or fingers of the operator from entering the area between the dies; power presses; and plate punches.

(iii) All bending machines, such as apron brakes and press brakes.

(iv) All hammering machines, such as drop hammers and power hammers.

(v) All shearing machines, such as guillotine or squaring shears; alligator shears; and rotary shears.

(2) The occupations of setting up, adjusting, repairing, oiling, or cleaning these machines including those with automatic feed and ejection.

(b) Definitions.

(1) The term operator shall mean a person who operates a machine covered by this section by performing such functions as starting or stopping the machine, placing materials into or removing them from the machine, or any other functions directly involved in operation of the machine.

(2) The term helper shall mean a person who assists in the operation of a machine covered by this section by helping place materials into or remove them from the machine.

(3) The term forming, punching, and shearing machines shall mean power-driven metal-working machines, other than machine tools, which change the shape of or cut metal by means of tools, such as dies, rolls, or knives which are mounted on rams, plungers, or other moving parts. Types of forming, punching, and shearing machines enumerated in this section are the machines to which the designation is by custom applied.

(c) Exemptions. This section shall not apply to the employment of apprentices or student-learners under the conditions prescribed in Sec. 570.50(b) and (c).

570.60 Occupations in connection with mining, other than coal (Order 9)

(a) Finding and declaration of fact. All occupations in connection with mining, other than coal, are particularly hazardous for the employment of minors between 16 and 18 years of age or detrimental to their health or well-being and employment in such occupations is therefore prohibited under section 12 of the Fair Labor Standards Act, as amended, except the following:

(1) Work in offices, in the warehouse or supply house, in the change house, in the laboratory, and in repair or maintenance shops not located underground.

(2) Work in the operation and maintenance of living quarters.

(3) Work outside the mine in surveying, in the repair and maintenance of roads, and in general clean-up about the mine property such as clearing brush and digging drainage ditches.

(4) Work of track crews in the building and maintaining of sections of railroad track located in those areas of open-cut metal mines where mining and haulage activities are not being conducted at the time and place that such building and maintenance work is being done.

(5) Work in or about surface placer mining operations other than placer dredging operations and hydraulic placer mining operations.

(6) The following work in metal mills other than in mercury-recovery mills or mills using the cyanide process:

(i) Work involving the operation of jigs, sludge tables, flotation cells, or drier-filters;

(ii) Work of hand-sorting at picking table or picking belt;

(iii) General clean-up work:

Provided, however, That nothing in this section shall be construed as permitting employment of minors in any occupation prohibited by any other hazardous occupations order issued by the Secretary of Labor.

(b) Definitions. As used in this section: The term all occupations in connection with mining, other than coal shall mean all work performed underground in mines and quarries; on the surface at underground mines and underground quarries; in or about open-cut mines, open quarries, clay pits, and sand and gravel operations; at or about placer mining operations; at or about dredging operations for clay, sand or gravel; at or about bore-hole mining operations; in or about all metal mills, washer plants, or grinding mills reducing the bulk of the extracted minerals; and at or about any other crushing, grinding, screening, sizing, washing or cleaning operations performed upon the extracted minerals except where such operations are performed as a part of a manufacturing process. The term shall not include work performed in subsequent manufacturing or processing operations, such as work performed in smelters, electro-metallurgical plants, refineries reduction plants, cement mills, plants where quarried stone is cut, sanded and further processed, or plants manufacturing clay glass or ceramic products. Neither shall the term include work performed in connection with coal mining, in petroleum production, in natural-gas production, nor in dredging operations which are not a part of mining operations, such as dredging for construction or navigation purposes.

Section 29 Occupations in the operation of power-driven meat-processing machines and occupations involving slaughtering, meat packing or processing, or rendering. (Order No. 10)

(a) Findings and declaration of fact. The following occupations in or about slaughtering and meat packing establishments, rendering plants, or wholesale, retail or service establishments are particularly hazardous for the employment of minors between 16 and 18 years of age or detrimental to their health or well-being:

(1) All occupations on the killing floor, in curing cellars, and in hide cellars, except the work of messengers, runners, handtruckers, and similar occupations which require entering such workrooms or workplaces infrequently and for short periods of time.

(2) All occupations involved in the recovery of lard and oils, except packaging and shipping of such products and the operation of lard-roll machines.

(3) All occupations involved in tankage or rendering of dead animals, animal offal, animal fats, scrap meats, blood, and bones into stock feeds, tallow, inedible greases, fertilizer ingredients, and similar products.

(4) All occupations involved in the operation or feeding of the following power-driven machines, including setting-up, adjusting, repairing, oiling, or cleaning such machines, regardless of the product being processed by these machines (including, for example, the slicing in a retail delicatessen of meat, poultry, seafood, bread, vegetables, or cheese, etc.): Meat patty forming machines, meat and bone cutting saws, meat slicers, knives (except bacon-slicing machines), headsplitters, and guillotine cutters; snoutpullers and jaw-pullers; skinning machines; horizontal rotary washing machines; casing-cleaning machines such as crushing, stripping, and finishing machines; grinding, mixing, chopping, and hashing machines; and presses (except belly-rolling machines).

(5) All boning occupations.

(6) All occupations that involve the pushing or dropping of any suspended carcass, half carcass, or quarter carcass.

(7) All occupations involving handlifting or handcarrying any carcass or half carcass of beef, pork, or horse, or any quarter carcass of beef or horse.

(b) Definitions. As used in this section:

(1) The term slaughtering and meat packing establishments means places in or about which cattle, calves, hogs, sheep, lambs, goats, or horses are killed, butchered, or processed. The term also includes establishments which manufacture or process meat products or sausage casings from such animals.

(2) The term rendering plants means establishments engaged in the conversion of dead animals, animal offal, animal fats, scrap meats, blood, and bones into stock feeds, tallow, inedible greases, fertilizer ingredients, and similar products.

(3) The term killing floor includes a workroom, workplace where cattle, calves, hogs, sheep, lambs, goats, or horses are immobilized, shackled, or killed, and the carcasses are dressed prior to chilling.

(4) The term curing cellar includes a workroom or workplace which is primarily devoted to the preservation and flavoring of meat by curing materials. It does not include a workroom or workplace solely where meats are smoked.

(5) The term hide cellar includes a workroom or workplace where hides are graded, trimmed, salted, and otherwise cured.

(6) The term boning occupations means the removal of bones from meat cuts. It does not include work that involves cutting, scraping, or trimming meat from cuts containing bones.

(7) The term retail/wholesale or service establishments includes establishments where meat or meat products are processed or handled, such as butcher shops, grocery stores, restaurants/fast-food establishments, hotels, delicatessens, and meat-locker (freezer-locker) companies, and establishments where any food product is prepared or processed for serving to customers using machines prohibited by section (a) of this Order.

(c) Exemptions. This section shall not apply to:

(1) The killing and processing of poultry, rabbits, or small game in areas physically separated from the killing floor.

(2) The employment of apprentices or student-learners under the conditions prescribed in Sec. 570.50(b) and (c).

Section 29 CFR 570.62 Occupations involved in the operation of bakery machines (Order 11)

(a) Finding and declaration of fact. The following occupations involved in the operation of power-driven bakery machines are particularly hazardous for the employment of minors between 16 and 18 years of age:

(1) The occupations of operating, assisting to operate, or setting up, adjusting, repairing, oiling, or cleaning any horizontal or vertical dough mixer; batter mixer; bread dividing, rounding, or molding machine; dough brake; dough sheeter; combination bread slicing and wrapping machine; or cake cutting band saw.

(2) The occupation of setting up or adjusting a cookie or cracker machine.

Section 29 CFR 570.63 Occupations involved in the operation of paper-products machines (Order 12)

(a) Findings and declaration of fact. The following occupations are particularly hazardous for the employment of minors between 16 and 18 years of age:

(1) The occupations of operation or assisting to operate any of the following power-driven paper products machines:

(i) Arm-type wire stitcher or stapler, circular or band saw, corner cutter or mitering machine, corrugating and single-or-double-facing machine, envelope die-cutting press, guillotine paper cutter or shear, horizontal bar scorer, laminating or combining machine, sheeting machine, scrap-paper baler, or vertical slotter.

(ii) Platen die-cutting press, platen printing press, or punch press which involves hand feeding of the machine.

(2) The occupations of setting up, adjusting, repairing, oiling, or cleaning these machines including those which do not involve hand feeding.

(b) Definitions.

(1) The term operating or assisting to operate shall mean all work which involves starting or stopping a machine covered by this section, placing or removing materials into or from the machine, or any other work directly involved in operating the machine. The term does not include the stacking of materials by an employee in an area nearby or adjacent to the machine where such employee does not place the materials into the machine.

(2) The term paper products machine shall mean all power-driven machines used in:

(i) The remanufacture or conversion of paper or pulp into a finished product, including the preparation of such materials for recycling; or

(ii) The preparation of such materials for disposal. The term applies to such machines whether they are used in establishments that manufacture converted paper or pulp products, or in any other type of manufacturing or nonmanufacturing establishment.

(c) Exemptions. This section shall not apply to the employment of apprentices or student-learners under the conditions prescribed in Sec. 570.50(b) and (c).

Section 29 CFR 570.64 Occupations involved in the manufacture of brick, tile, and kindred products (Order 13)

(a) Findings and declaration of fact. The following occupations involved in the manufacture of clay construction products and of silica refractory products are particularly hazardous for the employment of minors between 16 and 18 years of age, and detrimental to their health and well-being.

(1) All work in or about establishments in which clay construction products are manufactured, except

(i) work in storage and shipping:

(ii) work in offices, laboratories, and storerooms; and

(iii) work in the drying departments of plants manufacturing sewer pipe.

(2) All work in or about establishments in which silica brick or other silica refractories are manufactured, except work in offices.

(3) Nothing in this section shall be construed as permitting employment of minors in any occupation prohibited by any other hazardous occupations order issued by the Secretary of Labor.

(b) Definitions.

(1) The term clay construction products shall mean the following clay products: Brick, hollow structural tile, sewer pipe and kindred products, refractories, and other clay products such as architectural terra cotta, glazed structural tile, roofing tile, stove lining, chimney pipes and tops, wall coping, and drain tile. The term shall not include the following non-structural-bearing clay products: Ceramic floor and wall tile, mosaic tile, glazed and enameled tile, faience, and similar tile, nor shall the term include non-clay construction products such as sand-lime brick, glass brick, or non-clay refractories.

(2) The term silica brick or other silica refractories shall mean refractory products produced from raw materials containing free silica as their main constituent.

Section 29 CFR 570.65 Occupations involved in the operations of circular saws, band saws, and guillotine shears (Order 14)

(a) Findings and declaration of fact. The following occupations are particularly hazardous for the employment of minors between 16 and 18 years of age:

(1) The occupations of operator of or helper on the following power-driven fixed or portable machines except machines equipped with full automatic feed and ejection:

(i) Circular saws.

(ii) Band saws.

(iii) Guillotine shears.

(2) The occupations of setting-up, adjusting, repairing, oiling, or cleaning circular saws, band saws, and guillotine shears.

(b) Definitions.

(1) The term operator shall mean a person who operates a machine covered by this section by performing such functions as starting or stopping the machine, placing materials into or removing them from the machine, or any other functions directly involved in operation of the machine.

(2) The term helper shall mean a person who assists in the operation of a machine covered by this section by helping place materials into or remove them from the machine.

(3) The term machines equipped with full automatic feed and ejection shall mean machines covered by this Order which are equipped with devices for full automatic feeding and ejection and with a fixed barrier guard to prevent completely the operator or helper from placing any part of his body in the point-of-operation area.

(4) The term circular saw shall mean a machine equipped with a thin steel disc having a continuous series of notches or teeth on the periphery, mounted on shafting, and used for sawing materials.

(5) The term band saw shall mean a machine equipped with an endless steel band having a continuous series of notches or teeth, running over wheels or pulleys, and used for sawing materials.

(6) he term guillotine shear shall mean a machine equipped with a movable blade operated vertically and used to shear materials. The term shall not include other types of shearing machines, using a different form of shearing action, such as alligator shears or circular shears.

(c) Exemptions. This section shall not apply to the employment of apprentices or student-learners under the conditions prescribed in Sec. 570.50(b) and (c).

Section 29 CFR 570.66 Occupations involved in wrecking, demolition, and shipbreaking operations (Order 15)

(a) Finding and declaration of fact. All occupations in wrecking, demolition, and shipbreaking operations are particularly hazardous for the employment of minors between 16 and 18 years of age and detrimental to their health and well-being.

(b) Definition. The term wrecking, demolition, and shipbreaking operations shall mean all work, including clean-up and salvage work, performed at the site of the total or partial razing, demolishing, or dismantling of a building, bridge, steeple, tower, chimney, other structure, ship or other vessel.

Section 29 CFR 570.66 Occupations involved in wrecking, demolition, and shipbreaking operations (Order 15)

(a) Finding and declaration of fact. All occupations in roofing operations are particularly hazardous for the employment of minors between 16 and 18 years of age or detrimental to their health.

(b) Definition of roofing operations 1. The term roofing operations shall mean all work performed in connection with the application of weatherproofing materials and substances (such as tar or pitch, asphalt prepared paper, tile, slate, metal, translucent materials, and shingles of asbestos, asphalt or wood) to roofs of buildings or other structures. The term shall also include all work performed in connection with:

(1) The installation of roofs, including related metal work such as flashing and

(2) alterations, additions, maintenance, and repair, including painting and coating, of existing roofs. The term shall not include gutter and downspout work; the construction of the sheathing or base of roofs; or the installation of television antennas, air conditioners, exhaust and ventilating equipment, or similar appliances attached to roofs.

(c) Exemptions. This section shall not apply to the employment of apprentices or student-learners under the conditions prescribed in Sec. 570.50(b) and (c).

Section 29 CFR 570.68 Occupations in excavation operations (Order 17)

(a) Finding and declaration of fact. The following occupations in excavation operations are particularly hazardous for the employment of persons between 16 and 18 years of age:

(1) Excavating, working in, or backfilling (refilling) trenches, except (i) manually excavating or manually backfilling trenches that do not exceed four feet in depth at any point, or (ii) working in trenches that do not exceed four feet in depth at any point.

(2) Excavating for buildings or other structures or working in such excavations, except:

(i) Manually excavating to a depth not exceeding four feet below any ground surface adjoining the excavation, or

(ii) working in an excavation not exceeding such depth, or

(iii) working in an excavation where the side walls are shored or sloped to the angle of repose.

(3) Working within tunnels prior to the completion of all driving and shoring operations.

(4) Working within shafts prior to the completion of all sinking and shoring operations.

(b) Exemptions. This section shall not apply to the employment of apprentices or student-learners under the conditions prescribed in Sec. 570.50(b) and (c).

Part E 1 Occupations in Agriculture Particularly Hazardous for the Employment of Children Below the Age of 16

Section 29 CFR 570.70 Purpose and scope

(a) Purpose. Section 13(c)(2) of the Fair Labor Standards Act of 1938, as amended ( 29 U.S.C. 213(c)(2)) states that the "provisions of section 12 [of the Act] relating to child labor shall apply to an employee below the age of 16 employed in agriculture in an occupation that the Secretary of Labor finds and declares to be particularly hazardous for the employment of children below the age of 16, except where such employee is employed by his parent or by a person standing in the place of his parent on a farm owned or operated by such parent or person." The purpose of this subpart is to apply this statutory provision.

(b) Exception. This Part shall not apply to the employment of a child below the age of 16 by his parent or by a person standing in the place of his parent on a farm owned or operated by such parent or person.

(c) Statutory definitions. As used in this Part, the terms agriculture, employer, and employ have the same meanings as the identical terms contained in section 3 of the Fair Labor Standards Act of 1938, as amended ( 29 U.S.C. 203) , which are as follows:

(1) Agriculture includes farming in all its branches and among other things includes the cultivation and tillage of soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in section 15(g) of the Agricultural Marketing Act, as amended), the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.

(2) Employer includes any person acting directly or indirectly in the interest of an employer in relation to an employee but shall not include the United States or any State or political subdivision of a State (except with respect to employees of a State or a political subdivision thereof, employed:

(i) In a hospital, institution, or school referred to in the last sentence of section (r) of the Act, or

(ii) In the operation of a railway or carrier referred to in such sentence), or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization.

(iii) Employ includes to suffer or permit to work.

Section 29 CFR 570.71 Occupations involved in agriculture

(a) Findings and declarations of fact as to specific occupations. The following occupations in agriculture are particularly hazardous for the employment of children below the age of 16:

(1) Operating a tractor of over 20 PTO horsepower, or connecting or disconnecting an implement or any of its parts to or from such a tractor.

(2) Operating or assisting to operate (including starting, stopping, adjusting, feeding, or any other activity involving physical contact associated with the operation) any of the following machines:

(i) Corn picker, cotton picker, grain combine, hay mower, forage harvester, hay baler, potato digger, or mobile pea viner;

(ii) Feed grinder, crop dryer, forage blower, auger conveyor, or the unloading mechanism of a nongravity-type self-unloading wagon or trailer; or

(iii) Power post-hole digger, power post driver, or nonwalking type rotary tiller.

(3) Operating or assisting to operate (including starting, stopping, adjusting, feeding, or any other activity involving physical contact associated with the operation) any of the following machines:

(i) Trencher or earthmoving equipment;

(ii) Fork lift;

(iii) Potato combine; or

(iv) Power-driven circular, band, or chain saw.

(4) Working on a farm in a yard, pen, or stall occupied by a:

(i) Bull, boar, or stud horse maintained for breeding purposes; or

(ii) Sow with suckling pigs, or cow with newborn calf (with umbilical cord present)

(5) Felling, bucking, skidding, loading, or unloading timber with butt diameter of more than 6 inches.

(6) Working from a ladder or scaffold (painting, repairing, or building structures, pruning trees, picking fruit, etc.) at a height of over 20 feet.

(7) Driving a bus, truck, or automobile when transporting passengers, or riding on a tractor as a passenger or helper.

(8) Working inside:

(i) A fruit, forage, or grain storage designed to retain an oxygen deficient or toxic atmosphere;

(ii) An upright silo within 2 weeks after silage has been added or when a top unloading device is in operating position;

(iii) A manure pit; or

(iv) A horizontal silo while operating a tractor for packing purposes.

(9) Handling or applying (including cleaning or decontaminating equipment, disposal or return of empty containers, or serving as a flagman for aircraft applying) agricultural chemicals classified under the Federal Insecticide, Fungicide, and Rodenticide Act ( 7 U.S.C. 135 et seq.) as Category I of toxicity, identified by the word "poison" and the "skull and crossbones" on the label; or Category II of toxicity, identified by the word "warning" on the label;

(10) Handling or using a blasting agent, including but not limited to, dynamite, black powder, sensitized ammonium nitrate, blasting caps, and primer cord; or

(11) Transporting, transferring, or applying anhydrous ammonia. (b) Occupational definitions. In applying machinery, equipment, or facility terms used in paragraph (a) of this section, the Wage and Hour Division will be guided by the definitions contained in the current edition of Agricultural Engineering, a dictionary and handbook, Interstate Printers and Publishers, Danville, Ill. Copies of this dictionary and handbook are available for examination in Regional Offices of the Wage and Hour Division, U.S. Department of Labor.

Section 29 CFR 570.72 Exemptions

(a) Student-learners. The findings and declarations of fact in Sec. 570.71(a) shall not apply to the employment of any child as vocational agriculture student-learner in any of the occupations described in paragraph (1), (2), (3), (4), (5), or (6) of Sec. 570.71(a) when each of the following requirements are met:

(1) The student-learner is enrolled in a vocational education training program in agriculture under a recognized State or local educational authority, or in a substantially similar program conducted by a private school;

(2) Such student-learner is employed under a written agreement which provides;

(i) that the work of the student-learner is incidental to his training;

(ii) that such work shall be intermittent, for short periods of time, and under the direct and close supervision of a qualified and experienced person;

(iii) that safety instruction shall be given by the school and correlated by the employer with on-the-job training; and

(iv) that a schedule of organized and progressive work processes to be performed on the job have been prepared;

(3) Such written agreement contains the name of the student-learner, and is signed by the employer and by a person authorized to represent the educational authority or school; and

(4) Copies of each such agreement are kept on file by both the educational authority or school and by the employer.

(b) Federal Extension Service. The findings and declarations of fact in Sec. 570.71(a) shall not apply to the employment of a child under 16 years of age in those occupations in which he has successfully completed one or more training programs described in paragraph (b) (1), (2), or (3) of this section provided he has been instructed by his employer on safe and proper operation of the specific equipment he is to use; is continuously and closely supervised by the employer where feasible; or, where not feasible, in work such as cultivating, his safety is checked by the employer at least at midmorning, noon, and midafternoon.

(1) 4-H tractor operation program. The child is qualified to be employed in an occupation described in Sec. 570.71(a)(1) provided:

(i) He is a 4-H member;

(ii) He is 14 years of age, or older;

(iii) He is familiar with the normal working hazards in agriculture;

(iv) He has completed a 10-hour training program which includes the following units from the manuals of the 4-H tractor program conducted by, or in accordance with the requirements of, the Cooperative Extension Service of a land grant university:

(a) First-year Manual:

Unit 1--Learning How to be Safe;

Unit 4--The Instrument Panel;

Unit 5--Controls for Your Tractor;

Unit 6--Daily Maintenance and Safety Check; and

Unit 7--Starting and Stopping Your Tractor;

(b) Second-year Manual:

Unit 1--Tractor Safety on the Farm;

(c) Third-year Manual:

Unit 1--Tractor Safety on the Highway;

Unit 3--Hitches, Power-take-off, and Hydraulic Controls;

(v) He has passed a written examination on tractor safety and has demonstrated his ability to operate a tractor safely with a two-wheeled trailed implement on a course similar to one of the 4-H Tractor Operator's Contest Courses; and

(vi) His employer has on file with the child's records kept pursuant to part 516 of this title (basically, name, address, and date of birth) a copy of a certificate acceptable by the Wage and Hour Division, signed by the leader who conducted the training program and by an Extension Agent of the Cooperative Extension Service of a land grant university to the effect that the child has completed all the requirements specified in paragraphs (b)(1) (i) through (v) of this section.

(2) 4-H machine operation program. The child is qualified to be employed in an occupation described in Sec. 570.71(a)(2) providing:

(i) He satisfies all the requirements specified in paragraphs (b)(2)(i) through (v) of this section;

(ii) He has completed an additional 10-hour training program on farm machinery safety, including 4-H Fourth-Year Manual, Unit 1, Safe Use of Farm Machinery;

(iii) He has passed a written and practical examination on safe machinery operation; and

(iv) His employer has on file with the child's records kept pursuant to part 516 of this title (basically, name, address, and date of birth) a copy of a certificate acceptable by the Wage and Hour Division, signed by the leader who conducted the training program and by an Extension Agent of the Cooperative Extension Service of a land grant university, to the effect that the child has completed all of the requirements specified in paragraphs (b)(2) (i) through (iii) of this section.

(3) Tractor and machine operation program. The child is qualified to be employed in an occupation described in Sec. 570.71(a) (1) and (2) providing:

(i) He is 14 years of age, or older;

(ii) He has completed a 4-hour orientation course familiarizing him with the normal working hazards in agriculture;

(iii) He has completed a 20-hour training program on safe operation of tractors and farm machinery, which covers all material specified in paragraphs (b) (1)(iv) and (2)(ii) of this section.

(iv) He has passed a written examination on tractor and farm machinery safety, and has demonstrated his ability to operate a tractor with a two-wheeled trailed implement on a course similar to a 4-H Tractor Operator's Contest Course, and to operate farm machinery safely.

(v) His employer has on file with the child's records kept pursuant to part 516 of this title (basically, name, address and date of birth) a copy of a certificate acceptable by the Wage and Hour Division, signed by the volunteer leader who conducted the training program and by an Extension Agent of the Cooperative Extension Service of a land grant university, to the effect that all of the requirements of paragraphs (b)(2) (i) through (iv) of this section have been met.

(c) Vocational agriculture training. The findings and declarations of fact in Sec. 570.71(a) shall not apply to the employment of a vocational agriculture student under 16 years of age in those occupations in which he has successfully completed one or more training programs described in paragraph (c)(1) or (2) of this section and who has been instructed by his employer in the safe and proper operation of the specific equipment he is to use, who is continuously and closely supervised by his employer where feasible or, where not feasible, in work such as cultivating, whose safety is checked by the employer at least at midmorning, noon, and midafternoon, and who also satisfies whichever of the following program requirements are pertinent:

(1) Tractor operation program. The student is qualified to be employed in an occupation described in Sec. 570.71(a)(1) provided:

(i) He is 14 years of age, or older;

(ii) He is familiar with the normal working hazards in agriculture;

(iii) He has completed a 15-hour training program which includes the required units specified in the Vocational Agriculture Training Program in Safe Tractor Operation, outlined by the Office of Education, U.S. Department of Health, Education, and Welfare and acceptable by the U.S. Department of Labor. The training program is outlined in Special Paper No. 8, April 1969, prepared at Michigan State University, East Lansing, Mich., for the Office of Education. Copies of this training program outline are available for examination in the Regional Offices of the Wage and Hour Division, U.S. Department of Labor, and a copy may be obtained from the Office of Education, U.S. Department of Health, Education, and Welfare, Washington, DC 20202.

(iv) He has passed both a written test and a practical test on tractor safety including a demonstration of his ability to operate safely a tractor with a two-wheeled trailed implement on a test course similar to that described in the Vocational Agriculture Training Program in Safe Tractor Operation, outlined by the Office of Education, U.S. Department of Health, Education, and Welfare; and

(v) His employer has on file with the child's records kept pursuant to part 516 of this title (basically, name, address, and date of birth) a copy of a certificate acceptable by the Wage and Hour Division, signed by the Vocational Agriculture teacher who conducted the program to the effect that the student has completed all the requirements specified in paragraphs (c)(1)(i) through (iv) of this section.

(2) Machinery operation program. The student is qualified to be employed in an occupation described in paragraph (2) of Sec. 570.71(a) provided he has completed the Tractor Operation Program described in paragraph (c)(1) of this section and:

(i) He has completed an additional 10-hour training program which includes the required units specified in the Vocational Agriculture Training Program in Safe Farm Machinery Operation, outlined by the Office of Education, U.S. Department of Health, Education, and Welfare and approved by the U.S. Department of Labor;

(ii) He has passed both a written test and a practical test on safe machinery operation similar to that described in the Vocational Agriculture Training Program in Safe Farm Machinery Operation, outlined by the Office of Education, U.S. Department of Health, Education, and Welfare; and

(iii) His employer has on file with the child's records kept pursuant to part 516 of this title (basically, name, address and date of birth) a copy of a certificate acceptable by the Wage and Hour Division, signed by the Vocational Agriculture teacher who conducted the program to the effect that student has completed all the requirements specified in paragraphs (c)(2)(i) and (ii) of this section.

(d) Agency review, he provisions of paragraphs (a), (b), and (c) of this section will be reviewed and reevaluated before January 1, 1972. In addition, determinations will be made as to whether the use of protective frames, crush resistant cabs, and other personal protective devices should be made a condition of these exemptions.

Part G General Statements of Interpretation of the Child Labor Provisions of the Fair Labor Standards Act of 1938, as Amended

Section 29 CFR 570.101 Introductory statement

(a) This Part discusses the meaning and scope of the child labor provisions contained in the Fair Labor Standards Act, as amended (hereinafter referred to as the Act). These provisions seek to protect the safety, health, well-being, and opportunities for schooling of youthful workers and authorize the Secretary of Labor to issue legally binding orders or regulations in certain instances and under certain conditions. The child labor provisions are found in sections 3(1), 11(b), 12, 13(c) and (d), 15(a)(4), 16(a), and 18 of the Act. They are administered and enforced by the Secretary of Labor who has delegated to the Wage and Hour Division the duty of making investigations to obtain compliance, and of developing standards for the issuance of regulations and orders relating to:

(1) Hazardous occupations,

(2) employment of 14- and 15-year-old children, and

(3) age certificates.

(b) The interpretations of the Secretary contained in this Part indicate the construction of the law which will guide the performance of duties until directed otherwise by authoritative rulings of the courts or until subsequently decided that the prior interpretation is incorrect.

Section 29 CFR 570.102 General scope of statutory provisions

The most important of the child labor provisions are contained in sections 12(a), 12(c), and 3(l) of the Act. Section 12(a) provides that no producer, manufacturer, or dealer shall ship or deliver for shipment in interstate or foreign commerce any goods produced in an establishment in or about which oppressive child labor was employed within 30 days before removal of the goods. The full text of this subsection is set forth in Sec. 570.104 and its terms are discussed in Secs. 570.105 to 570.111, inclusive. Section 12(c) prohibits any employer from employing oppressive child labor in interstate or foreign commerce or in the production of goods for such commerce. The text and discussion of this provision appear in Secs. 570.112 and 570.113. Section 3(l) of the Act, which defines the term "oppressive child labor," is set forth in Sec. 570.117 and its provisions are discussed in Secs. 570.118 to 570.121, inclusive. It will further be noted that the Act provides various specific exemptions from the foregoing provisions which are set forth and discussed in Secs. 570.122 to 570.126, inclusive.

Section 29 CFR 570.103 Comparison with wage and hour provisions

A comparison of the child labor provisions with the so-called wage and hours provisions contained in the Act discloses some important distinctions which should be mentioned.

(a) The child labor provisions contain no requirements in regard to wages. The wage and hours provisions, on the other hand, provide for minimum rates of pay for straight time and overtime pay at a rate not less than one and one-half times the regular rate of pay for overtime hours worked. Except as provided in certain exemptions contained in the Act, these rates are required to be paid all employees subject to the wage and hours provisions, regardless of their age or sex. The fact therefore, that the employment of a particular child is prohibited by the child labor provisions or that certain shipments or deliveries may be proscribed on account of such employment, does not relieve the employer of the duties imposed by the wage and hours provisions to compensate the child in accordance with those requirements.

(b) There are important differences between the child labor provisions and the wage and hours provisions with respect to their general coverage. As pointed out in Sec. 570.114, two separate and basically different coverage provisions are contained in section 12 relating to child labor. One of these provisions ( section 12(c)) , which applies to the employment by an employer of oppressive child labor in commerce or in the production of goods for commerce, is similar to the wage and hours coverage provisions, which include employees engaged in commerce or in the production of goods for commerce or employed in enterprises having employees so engaged. The other provision ( section 12(a)) , however, differs fundamentally in its basic concepts of coverage from the wage and hours provisions, as will be explained in Secs. 570.104 to 570.111.

(c) Another distinction is that the exemptions provided by the Act from the minimum wage and/or overtime provisions are more numerous and differ from the exemptions granted from the child labor provisions. There are only four specific child labor exemptions of which only one applies to the minimum wage and overtime pay requirements as well. This is the exemption for employees engaged in the delivery of newspapers to the consumer. n1 With this exception, none of the specific exemptions from the minimum wage and/or overtime pay requirements applies to the child labor provisions. However, it should be noted that the exclusion of certain employers by section 3(d) n2 of the Act applies to the child labor provisions as well as the wage and hours provisions.

n1 Section 13(d) of the Act.

n2 Section 13(d) defines "employer" to include "any person acting directly or indirectly in the interest of an employer in relation to an employee but shall not include the United States or any State or political subdivision of a State, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization".

Section 29 CFR 570.104 General

Section 12(a) of the Act provides as follows:

No producer, manufacturer, or dealer shall ship or deliver for shipment in commerce any goods produced in an establishment situated in the United States in or about which within 30 days prior to the removal of such goods therefrom any oppressive child labor has been employed: Provided, That any such shipment or delivery for shipment of such goods by a purchaser who acquired them in good faith in reliance on written assurance from the producer, manufacturer, or dealer that the goods were produced in compliance with the requirements of this section, and who acquired such goods for value without notice of any such violation, shall not be deemed prohibited by this subsection: And provided further, That a prosecution and conviction of a defendant for the shipment or delivery for shipment of any goods under the conditions herein prohibited shall be a bar to any further prosecution against the same defendant for shipments or deliveries for shipment of any such goods before the beginning of said prosecution.

In determining the applicability of this provision, consideration of the meaning of the terms used is necessary. These terms are discussed in Secs. 570.105 to 570.111, inclusive.

Section 29 CFR 570.105 "Producer, manufacturer, or dealer"

It will be observed that the prohibition of section 12(a) with respect to certain shipments or deliveries for shipment is confined to those made by producers, manufacturers, and dealers. The terms "producer, manufacturer, or dealer" used in this provision are not expressly defined by the statute. However, in view of the definition of "produced" in section 3(j), for purposes of this section a "producer" is considered to be one who engages in producing, manufacturing, handling or in any other manner working on goods in any State. n3 Since manufacturing is considered a specialized form of production, the word "manufacturer" does not have as broad an application as the word "producer." Manufacturing generally involves the transformation of raw materials or semi finished goods into new or different articles. A person may be considered a "manufacturer" even though his goods are made by hand, as is often true of products made by homeworkers. Moreover, it is immaterial whether manufacturing is his sole or main business. Thus, the term includes retailers who, in addition to retail selling, engage in such manufacturing activities as the making of slip-covers or curtains, the baking of bread, the making of candy, or the making of window frames. The word "dealer" refers to anyone who deals in goods (as defined in section 3(i) of the Act), n4 including persons engaged in buying, selling, trading, distributing, delivering, etc. It includes middlemen, factors, brokers, commission merchants, wholesalers, retailers and the like.

n3 For a discussion of the definition of "produced" as it relates to section 12(a), see Sec. 570.108.

n4 See Sec. 570.107.

Section 29 CFR 570.106 "Ship or deliver for shipment in commerce"

(a) Section 12(a) forbids producers, manufacturers, and dealers to "ship or deliver for shipment in commerce" the goods referred to therein. A producer, manufacturer, or dealer may "ship" goods in commerce either by moving them himself in interstate or foreign commerce or by causing them to so move, as by delivery to a carrier. n5 Thus, a baker "ships" his bread in commerce whether he carries it in his own truck across State lines or sends it by contract or common carrier to his customers in other States. The word "ship" must be applied in its ordinary meaning. For example, it does not apply to the transmission of telegraphic messages. n6

n5 Section 3(b) of the Act defines "commerce" to mean "trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof."

n6 Western Union Telegraph Co. v. Lenroot, 323 U.S. 490.

(b) To "deliver for shipment in commerce" means to surrender the custody of goods to another under such circumstances that the person surrendering the goods knows or has reason to believe that the goods will later be shipped in commerce. n7 Typical is the case of a Detroit manufacturer who delivers his goods in Detroit to a distributor who, as the manufacturer is well aware, will ship the goods into another State. A delivery for shipment in commerce may also be made where raw materials are delivered by their producer to a manufacturer in the same State who converts them into new products which are later shipped across State lines. If the producer in such case is aware or has reason to believe that the finished products will ultimately be sent into another State, his delivery of the raw materials to the manufacturer is a delivery for shipment in commerce. Another example is a paper box manufacturer who ships a carton of boxes to a fresh fruit or vegetable packing shed within the same State, with knowledge or reason to believe that the boxes will there be filled with fruits or vegetables and shipped outside the State. In such case the box manufacturer has delivered the boxes for shipment in commerce.

n7 Tobin v. Grant, N. D. Calif., 79 Sup. 975 which was a suit for injunction by the Secretary of Labor against a manufacturer of books and book covers employing oppressive child labor. The facts showed that the manufactured articles sold by defendant to purchasers in the same State had an ultimate out-of-State destination which was manifest to defendant. The court construed the words "deliver for shipment in commerce" as sufficiently broad to cover this situation even though the purchasers acquired title to the goods.

Section 29 CFR 570.107 "Goods" n8

n8 The term goods is discussed in more detail in part 776 of this title (Interpretative Bulletin on the coverage of the wage and hours provisions) issued by the Administrator of the Wage and Hour Division.

(a) Section 12(a) prohibits the shipment or delivery for shipment in commerce of "any goods" produced in an establishment which were removed within 30 days of the employment there of oppressive child labor. It should be noted that the statute does not base the prohibition of section 12(a) upon the percentage of an establishment's output which is shipped in commerce.

(b) The Act furnishes its own definition of "goods" in section 3(i), as follows:

Goods means goods (including ships and marine equipment), wares, products, commodities, merchandise, or articles or subjects of commerce of any character, or any part or ingredient thereof, but does not include goods after their delivery into the actual physical possession of the ultimate consumer thereof other than a producer, manufacturer, or processor thereof.

The term includes such things as food-stuffs, clothing, machinery, printed materials, blueprints and also includes intangibles such as news, ideas, and intelligence. The statute expressly excludes goods after their delivery into the actual physical possession of an ultimate consumer other than a producer, manufacturer, or processor thereof. Accordingly, such a consumer may lawfully ship articles in his possession although they were ineligible for shipments (commonly called "hot goods") before he received them. n9

n9 For a discussion of the exclusionary clause in section 3(i) of the Act, see Powell et al. v. United States Cartridge Co., 70 S. CT.

Section 29 CFR 570.108 "Produced"

The word "produced" as used in the Act is defined by section 3(j) to mean:

• • • produced, manufactured, mined, handled, or in any other manner worked on in any state; * * * n10

n10 The remaining portion of section 3(j) provides: "* * * and for the purposes of this Act an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any closely related process or occupation directly essential to the production thereof, in any State."

(a) The prohibition of section 12(a) cannot apply to a shipment of goods unless those goods (including any part or ingredient thereof) were actually "produced" in and removed from an establishment where oppressive child labor was employed. This provision is applicable even though the under-age employee does not engage in the production of the goods themselves if somewhere in the establishment in or about which he is employed goods are "produced" which are subsequently shipped or delivered for shipment in commerce. In contrast to this restrictive requirement of section 12(a), it will be noted that the employees covered under the wage and hours provisions as engaged in the production of goods for commerce are not limited to those in or about establishments where such goods are being produced. If the requisite relationship n11 to production of such goods is present, an employee is covered for wage and hours purposes regardless of whether his work brings him in or near any establishment where the goods are produced. n12

n11 See footnote 10.

n12 See section 776 of this title (interpretative Bulletin on the coverage of the wage and hours provisions) issued by the Administrator of the Wage and Hour Division. Also, see Secs. 570.112 and 570.113.

(b) Since the first word in the definition of "produced" repeats the term being defined, it seems clear that the first word must carry the meaning that it has in everyday language. Goods are commonly spoken of as "produced" if they have been brought into being as a result of the application of work. The words "manufactured" and "mined" in the definition refer to special forms of production. The former term is generally applied to the products of industry where existing raw materials are transformed into new or different articles by the use of industrial methods, either by the aid of machinery or by manual operations. Mining is a type of productive activity involving the taking of materials from the ground, such as coal from a coal mine, oil from oil wells, or stone from quarries. The statute also defines the term "produced" to mean "handled" or "in any other manner work on." n13 These words relate not only to operations carried on in the course of manufacturing, mining, or production as commonly described, but include as well all kinds of operations which prepare goods for their entry into the stream of commerce, without regard to whether the goods are to be further processed or are so-called "finished goods." n14 Accordingly, warehouses, fruit and vegetable packing sheds, distribution yards, grain elevators, etc., where goods are sorted, graded, stored, packed, labeled or otherwise handled or worked on in preparation for their shipment out of the State are producing establishments for purposes of section 12(a). n15 However, the handling or working on goods, performed by employees of carriers which accomplishes the interstate transit or movement in commerce itself, does not constitute production under the Act. n16 Accordingly, warehouses, fruit and vegetable packing sheds, distribution yards, grain elevators, etc., where goods are sorted, graded, stored, packed, labeled or otherwise handled or worked on in preparation for their shipment out of the State are producing establishments for purposes of section 12(a). n17 However, the handling or working on goods, performed by employees of carriers which accomplishes the interstate transit or movement in commerce itself, does not constitute production under the Act. n18

n13 For a more complete discussion of these words, see Sec. 776.16 of part 776 (bulletin on coverage of the wage and hours provisions) of chapter V of this title.

n14 In Western Union Telegraph Co. v. Lenroot, 323 U.S. 490, the Supreme Court stated that these words bring within the statutory definition "every step in putting the subject of commerce in a state to enter commerce," including "all steps, whether manufacture or not, which lead to readiness for putting goods into the stream of commerce" and "every kind of incidental operation preparatory to putting goods into the stream of commerce."

n15 Lenroot v. Kemp and Lenroot v. Hazlehurst Mercantile Co., 153 F. 2d 153 (C.A. 5), where the court directed issuance of injunctions to restrain violations of the child labor provisions by operators of vegetable packing sheds at which they bought, then washed, sorted, crated, and packed cabbage and tomatoes for shipment in interstate commerce.

n16 Western Union Telegraph Co. v. Lenroot, 323 U.S. 490.

n17 Lenroot v. Kemp and Lenroot v. Hazlehurst Mercantile Co., 153 F. 2d 153 (C.A. 5), where the court directed issuance of injunctions to restrain violations of the child labor provisions by operators of vegetable packing sheds at which they bought, then washed, sorted, crated, and packed cabbage and tomatoes for shipment in interstate commerce

n18 Western Union Telegraph Co. v. Lenroot, 323 U.S. 490

Section 29 CFR 570.109 "Establishment situated in the United States"

(a)

(1) The statute does not expressly define "establishment." Accordingly, the term should be given a meaning which is not only consistent with its ordinary usage, but also designed to accomplish the general purposes of the Act. As normally used in business and in Government, the word "establishment" refers to a distinct physical place of business. This is the meaning attributed to the term as it is used in section 13(a)(2) of the Act. n19 Since the establishments covered under section 12(a) of the Act are those in which goods are produced, the term "establishment" there refers to a physical place where goods are produced. Typical producing establishments are industrial plants, mines, quarries, and the like. The producing establishment, however, need not have a permanently fixed location as is the case with a factory or mine. A boat, for instance, where productive activities such as catching or canning fish are carried on is considered a producing establishment for purposes of section 12(a).

n19 A. H. Phillips, Inc. v. Walling, 324 U.S. 490. See part 779 (bulletin on the retail and service establishment exemption from the wage and hours provisions) of chapter V of this title.

(2) Frequently, questions arise as to what should be considered a single establishment. No hard and fast rule can be laid down which will fix the area of all establishments. Accordingly, a determination of the area contained in a single establishment must be based upon the facts of each individual situation. Facts which are particularly pertinent in this connection, however, are those which relate to the physical characteristics and the manner of operation and control of the business. Sometimes, an establishment may extend over an area of several square miles as is common with farms, logging enterprises, mines, and quarries. On the other hand, it may be confined to a few square feet. A typical illustration of this is a loft building that houses the workshops of hundreds of independent manufacturing firms. Each of the workshops is, for purposes of this section, a separate establishment.

(3) Similar principles are applicable in determining whether several buildings located on the same premises constitute one establishment or more than one. For example, where several factory buildings are located on the same premises and owned and operated by the same person, they are generally to be considered as a single establishment. On the other hand, factory buildings located on the same premises, but owned and operated by different persons, will not ordinarily be treated as a single establishment. Where the several factories, however, are engaged in a joint productive enterprise, they may constitute a single establishment. This is the case, for example, where a large shipyard contains the plants of a number of subcontractors who are engaged in making parts or equipment for the boats that are built in the yard.

(b) The phrase "situated in the United States" is construed to include any of the 50 States or the District of Columbia or any Territory or possession of the United States.

Section 29 CFR 570.110 "In or about"

(a) Section 12(a) excludes from the channels of interstate commerce goods produced in an establishment "in or about" which oppressive child labor has been employed. In a great many situations it is obviously easy to determine whether a minor is employed "in" an establishment. Thus, he is so employed where he performs his occupational duties on the premises of the producing establishment. Furthermore, a minor is also considered as employed in an establishment where he performs most of his duties off the premises but is regularly required to perform certain occupational duties in the establishment, such as loading or unloading a truck, checking in or out, or washing windows. This is true in such cases even though the minor is employed by someone other than the owner or operator of the particular establishment. On the other hand, a minor is not considered to be employed in an establishment other than his employer's merely because such establishment is visited by him for brief periods of time and for the sole purpose of picking up or delivering a message or other small article.

(b) If, in the light of the statements in paragraph (a) of this section, the minor cannot be considered as employed in the establishment, he may, nevertheless, be employed "about" it if he performs his occupational duties sufficiently close in proximity to the actual place of production to fall within the commonly understood meaning of the term "about." This would be true in a situation where the foregoing proximity test is met and the occupation of the minor is directly related to the activities carried on in the producing establishment, in this connection, occupations are considered sufficiently related to the activities carried on in the producing establishment to meet the second test above at least where the requisite relationship to production of goods exists within the meaning of section 3(j) of the Act. n20 By way of example, a driver's helper employed to assist in the distribution of the products of a bottling company who regularly boards the delivery truck immediately outside the premises of the bottling plant is considered employed "in or about" such establishment, without regard to whether he ever enters the plant itself. On the other hand, employees working entirely within one establishment are not considered to be employed "in or about" a wholly different establishment occupying separate premises and operated by another employer. This would be true even though the two establishments are contiguous. But in other situations the distance between the producing establishment and the minor's place of employment may be a decisive factor. Thus, a minor employed in clearing rights-of-way for power lines many miles away from the power plant cannot well be said to be employed "in or about" such establishment. In view of the great variety of establishments and employments, however, no hard and fast rule can be laid down which will once and for all distinguish between employments that are "about" an establishment and those that are not. Therefore, each case must be determined on its own merits. In determining whether a particular employment is "about" an establishment, consideration of the following factors should prove helpful:

(1) Actual distance between the producing establishment and the minor's place of employment;

(2) nature of the establishment;

(3) ownership or control of the premises involved;

(4) nature of the minor's activities in relation to the establishment's purpose;

(5) identity of the minor's employer and the establishment's owner;

(6) extent of control by the producing establishment's owner over the minor's employment.

n20 See part 776 (bulletin on coverage of the wage and hours provisions) of this title.

Section 29 CFR 570.111 Removal "within 30 days"

According to section 12(a) goods produced in an establishment in or about which oppressive child labor has been employed are barred as "hot goods" from being shipped or delivered for shipment in commerce in the following two situations: First, if they were removed from the establishment while any oppressive child labor was still being employed in or about it; second, if they were removed from an establishment in or about which oppressive child labor was no longer employed but less than 30 days had then elapsed since any such employment of oppressive child labor came to an end. Once any goods have been removed from a producing establishment within the above-mentioned thirty-day period, they are barred at any time thereafter from being shipped or delivered for shipment in commerce so long as they remain "goods" for purposes of the Act. n21 Goods are considered removed from an establishment just as soon as they are taken away from the establishment as that term has been defined. n22 The statute does not require that this "removal" from the establishment be made for the purpose or in the course of a shipment or delivery for shipment in commerce. A "removal" within the meaning of the statute also takes place where the goods are removed from the establishment for some other purpose such as storage, the granting of a lien or other security interest, or further processing. n23

n21 However, section 12(a) contains a provision relieving innocent purchasers from liability thereunder provided certain conditions are met. For a discussion of this provision, see Sec. 570.128.

Also, section 15(a)(1) relieves any common carrier from liability under the Act for the transportation in commerce in the regular course of its business of any goods not produced by such common carrier.

n22 For a discussion of the meaning of "establishment," see Sec. 570.109.

n23 [Reserved]

Section 29 CFR 570.112 General

(a) Section 12(c) of the Act provides as follows: No employer shall employ any oppressive child labor in commerce or in the production of goods for commerce or in an enterprise engaged in commerce or in the production of goods for commerce.

(b) This provision, which was added by amendments of 1949 and 1961 to the Act, broadens child labor coverage to include employment in commerce. Moreover, it establishes a direct prohibition of the employment of oppressive child labor in commerce or in the production of goods for commerce. The legislative history pertaining to this provision leads to the conclusion that Congress intend its application to be generally consistent with that of wage and hours coverage provisions. The application of the provision depends on the existence of two necessary elements:

(1) The employment of "oppressive child labor" n24 by some employer and

(2) the employment of such oppressive child labor in activities or enterprises which are in commerce or in the production of goods for commerce within the meaning of the Act.

n24 "Oppressive child labor" is discussed in Secs. 570.117 to 570.121, inclusive.

Section 29 CFR 570.113 Employment "in commerce or in the production of goods for commerce" n25

n25 Evidently there is no footnote 25.

(a) The term "employ" is broadly defined in section 3(g) of the Act to include "to suffer or permit to work." The Act expressly provides that the term "employer" includes "any person acting directly or indirectly in the interest of an employer in relation to an employee". The nature of an employer-employee relationship is ordinarily to be determined not solely on the basis of the contractual relationship between the parties but also in the light of all the facts and circumstances. Moreover, the terms "employer" and "employ" as used in the Act are broader than the common-law concept of employment and must be interpreted broadly in the light of the mischief to be corrected. Thus, neither the technical relationship between the parties nor the fact that the minor is unsupervised or receives no compensation is controlling in determining whether an employer-employee relationship exists for purposes of section 12(c) of the Act. However, these are matters which should be considered along with all other facts and circumstances surrounding the relationship of the parties in arriving at such determination. The words "suffer or permit to work" include those who suffer by a failure to hinder and those who permit by acquiescence in addition to those who employ by oral or written contract. A typical illustration of employment of oppressive child labor by suffering or permitting an under-aged minor to work is that of an employer who knows that his employee is utilizing the services of such a minor as a helper or substitute in performing his employer's work. If the employer acquiesces in the practice or fails to exercise his power to hinder it, he is himself suffering or permitting the helper to work and is, therefore, employing him, within the meaning of the Act. Where employment does exist within the meaning of the Act, it must, of course, be in commerce or in the production of goods for commerce or in an enterprise engaged in commerce or in the production of goods for commerce in order for section 12(c) to be applicable.

(b) As previously indicated, the scope of coverage of section 12(c) of the Act is, in general, coextensive with that of the wage and hours provisions. The basis for this conclusion is provided by the similarity in the language used in the respective provisions and by statements appearing in the legislative history concerning the intended effect of the addition of section 12(c). Accordingly, it may be generally stated that employees considered to be within the scope of the phrases "in commerce or in the production of goods for commerce" for purposes of the wage and hours provisions are also included within the identical phrases used in section 12(c). To avoid needless repetition, reference is herein made to the full discussion of principles relating to the general coverage of the wage and hours provisions contained in parts 776 and 779 of this chapter. In this connection, however, it should be borne in mind that lack of coverage under the wage and hours provisions or under section 12(c) does not necessarily preclude the applicability of section 12(a) of the Act. n26

n26 See Sec. 570.116

Section 29 CFR 570.114 General

It should be noted that section 12(a) does not directly outlaw the employment of oppressive child labor. Instead, it prohibits the shipment or delivery for shipment in interstate or foreign commerce of goods produced in an establishment where oppressive child labor has been employed within 30 days before removal of the goods. Section 12(c), on the other hand, is a direct prohibition against the employment of oppressive child labor in commerce, or in the production of goods for commerce. Moreover, the two subsections provide different methods for determining the employees who are covered thereby. Thus, subsection (a) may be said to apply to young workers on an "establishment" basis. If the standards for child labor are not observed in the employment of minors in or about an establishment where goods are produced and from which such goods are removed within the statutory 30-day period, it becomes unlawful for any producer, manufacturer, or dealer (other than an innocent purchaser who is in compliance with the requirements for a good faith defense as provided in the subsection) to ship or deliver those goods for shipment in commerce. It is not necessary for the minor himself to have been employed by the producer of such goods or in their production in order for the ban to apply. On the other hand, whether the employment of a particular minor below the applicable age standard will subject his employer to the prohibition of subsection (c) is dependent upon the minor himself being employed in commerce or in the production of goods for commerce, or in an enterprise engaged in commerce or in production of goods for commerce within the meaning of the Act. If such a minor is so employed by his employer and is not specifically exempt from the child labor provisions then his employment under such circumstances constitutes a violation of section 12(c) regardless of where he may be employed or what his employer may do. Moreover, a violation of section 12(c) occurs under the foregoing circumstances without regard to whether there is a "removal" of goods or a shipment or delivery for shipment in commerce.

Section 29 CFR 570.115 Joint applicability

The child labor coverage provisions contained in sections 12(a) and 12(c) of the Act may be jointly applicable in certain situations. For example, a manufacturer of women's dresses who ships them in interstate commerce, employs a minor under 16 years of age who gathers and bundles scraps of material in the cutting room of the plant. Since the employment of the minor under such circumstances constitutes oppressive child labor and involves the production of goods for commerce, the direct prohibition of section 12(c) is applicable to the case. In addition, section 12(a) also applies to the manufacturer if the dresses are removed from the establishment during the course of the minor's employment or within 30 days thereafter. To illustrate further, suppose that a transportation company employs a 17-year-old boy as helper on a truck used for hauling materials between railroads and the plants of its customers who are engaged in producing goods for shipment in commerce. The employment of the minor as helper on a truck is oppressive child labor because such occupation has been declared particularly hazardous by the Secretary for children between 16 and 18 years of age. Since his occupation involves the transportation of goods which are moving in interstate commerce, his employment in such occupation by the transportation company is, therefore, directly prohibited by the terms of section 12(c). If the minor's duties in this case should, for example, include loading and unloading the truck at the establishments of the customers of his employer, then the provisions of section 12(a) might be applicable with respect to such customers. This would be true where any goods which they produce and ship in commerce are removed from the producing establishment within 30 days after the minor's employment there.

Section 29 CFR 570.116 Separate applicability

There are situations where section 12(c) does not apply because the minor himself is not considered employed in commerce or in the production of goods for commerce. This does not exclude the possibility of coverage under the provisions of section 12(a), however. In those cases where oppressive child labor is employed in commerce but not in or about a producing establishment, coverage exists under section 12(c) but not under the provisions of section 12(a). The employment of telegraph messengers under 16 years of age would normally involve this type of situation. n27 There may also be cases where oppressive child labor is employed in occupations closely related and directly essential to the production of goods in a separate establishment and therefore covered by section 12(c) but due to the fact that none of the goods produced in the establishment where the minors work are ever shipped or delivered for shipment in commerce either in the same form or as a part or ingredient of other goods, coverage of section 12(a) is lacking. An illustration of this type of situation would be the employment of a minor under the applicable age minimum in a plant engaged in the production of electricity which is sold and consumed exclusively within the same State and some of which is used by establishments in the production of goods for commerce.

n27 In "Western Union Telegraph Co. v. Lenroot," 323 U.S. 490, the court held section 12(a) inapplicable to Western Union on the grounds that the company does not "produce" or "ship" goods within the meaning of that subsection.

Section 29 CFR 570.117 General

(a) Section 3(1) of the Act defines "oppressive child labor" as follows:

Oppressive child labor means a condition of employment under which (1) any employee under the age of sixteen years is employed by an employer (other than a parent or a person standing in place of a parent employing his own child or a child in his custody under the age of sixteen years in an occupation other than manufacturing or mining or an occupation found by the Secretary of Labor to be particularly hazardous for the employment of children between the ages of sixteen and eighteen years or detrimental to their health or well-being) in any occupation, or (2) any employee between the ages of sixteen and eighteen years is employed by an employer in any occupation which the Secretary of Labor shall find and by order declare to be particularly hazardous for the employment of children between such ages or detrimental to their health or well-being, but oppressive child labor shall not be deemed to exist by virtue of the employment in any occupation of any person with respect to whom the employer shall have on file an unexpired certificate issued and held pursuant to regulations of the Secretary of Labor certifying that such person is above the oppressive child labor age. The Secretary of Labor shall provide by regulation or by order that the employment of employees between the ages of fourteen and sixteen years in occupations other than manufacturing and mining shall not be deemed to constitute oppressive child labor if and to the extent that the Secretary of Labor determines that such employment is confined to periods which will not interfere with their schooling and to conditions which will not interfere with their health and well-being.

(b) It will be noted that the term includes generally the employment of young workers under the age of 16 years in any occupation. In addition, the term includes employment of minors 16 and 17 years of age by an employer in any occupation which the Secretary finds and declares to be particularly hazardous for the employment of children of such ages or detrimental to their health or well-being. Authority is also given the Secretary to issue orders or regulations permitting the employment of children 14 and 15 years of age in nonmanufacturing and nonmining occupations where he determines that such employment is confined to periods which will not interfere with their schooling and to conditions which will not interfere with their health and well-being. The subsection further provides for the issuance of age certificates pursuant to regulations of the Secretary which will protect an employer from unwitting employment of oppressive child labor.

Section 29 CFR 570.118 Sixteenyear minimum

The Act sets a 16-year-age minimum for employment in manufacturing or mining occupations. Furthermore, this age minimum is applicable to employment in all other occupations unless otherwise provided by regulation or order issued by the Secretary.

Section 29 CFR 570.119 Fourteenyear minimum

With respect to employment in occupations other than manufacturing and mining, the Secretary is authorized to issue regulations or orders lowering the age minimum to 14 years where he finds that such employment is confined to periods which will not interfere with the minors' schooling and to conditions which will not interfere with their health and well-being. Pursuant to this authority, the Secretary permits the employment of 14- and 15-year-old children in a limited number of occupations where the work is performed outside school hours and is confined to other specified limits. Under the provisions of Child Labor Regulation No. 3, as amended, n28 employment of minors in this age group is not permitted in the following occupations:

(a) Manufacturing, mining, or processing occupations;

(b) Occupations requiring the performance of any duties in a workroom or workplace where goods are manufactured, mined, or otherwise processed;

(c) Occupations involving the operation or tending of hoisting apparatus or of any power-driven machinery other than office machines;

(d) Public messenger service;

(e) Occupations declared to be particularly hazardous or detrimental to health or well-being by the Secretary; or

(f) Occupations (except office or sales work) in connection with:

(1) Transportation of persons or property by rail, highway, air, water, pipeline, or other means;

(2) warehousing and storage;

(3) communications and public utilities, and

(4) construction (including demolition and repair).

n28 Subpart C of this part.

The exception permitting office and sales work performed in connection with the occupations specified in paragraph (f) of this section does not apply if such work is performed on trains or any other media of transportation or at the actual site of construction operations. Employment of 14- and 15-year-olds in all occupations other than the foregoing is permitted by the regulation, if the following conditions are observed:

(i) Employment only outside school hours and between the hours of 7 a.m. and 7 p.m., except during the summer (June 1 through Labor Day) when the evening hour will be 9 p.m.;

(ii) employment for not more than 3 hours a day nor more than 18 hours a week when school is in session; and,

(iii) employment for not more than 8 hours a day nor more than 40 hours a week when school is not in session. The employment of minors under 14 years of age is not permissible under any circumstances if the employment is covered by the child labor provisions and not specifically exempt.

Section 29 CFR 570.120 Eighteenyear minimum

To protect young workers from hazardous employment, the Act provides for a minimum age of 18 years in occupations found and declared by the Secretary to be particularly hazardous or detrimental to health or well-being for minors 16 and 17 years of age. Hazardous-occupations orders are the means through which occupations are declared to be particularly hazardous for minors. They are issued after public hearing and advice from committees composed of representatives of employers and employees of the industry and the public and in accordance with procedure established in Child Labor Regulations No. 5 published in subpart D of this part. The effect of these orders is to raise the minimum age for employment to 18 years in the occupations covered. Seventeen orders, published in subpart E of this part, have thus far been issued under the Act and are now in effect. In general, they cover:

| No. 1. | Occupations in or about plants manufacturing explosives or articles containing explosive components. | | --- | --- | | No. 2. | Occupations of motor-vehicle driver and helper. | | No. 3. | Coal-mine occupations. | | No. 4. | Logging occupations and occupations in the operation of any sawmill, lath mill, shingle mill, or cooperage-stock mill. | | No. 5. | Occupations involved in the operation of power-driven woodworking machines. | | No. 6. | Occupations involving exposure to radioactive substances. | | No. 7. | Occupations involved in the operation of power-driven hoisting apparatus. | | No. 8. | Occupations involved in the operation of power-driven metal forming, punching, and shearing machines. | | No. 9. | Occupations in connection with mining, other than coal. | | No. 10. | Occupations in or about slaughtering and meat packing establishments and rendering plants. | | No. 11. | Occupations involved in the operation of bakery machines. | | No. 12. | Occupations involved in the operations of paper products machines. | | No. 13. | Occupations involved in the manufacture of brick, tile, and kindred products. | | No. 14. | Occupations involved in the operation of circular saws, bandsaws, and guillotine shears. | | No. 15. | Occupations in wrecking, demolition, and shipbreaking operations. | | No. 16. | Occupations in roofing operations. | | No. 17. | Occupations in excavation operations. |

n29 n30 [skipped]

n29 Skipped.

n30 skipped.

Section 29 CFR 570.121 Age certificates

(a) To protect an employer from unwitting violation of the minimum age standards, it is provided in section 3(1)(2) of the Act that "oppressive child labor shall not be deemed to exist by virtue of the employment in any occupation of any person with respect to whom the employer shall have on file an unexpired certificate issued and held pursuant to regulations of the Secretary of Labor certifying that such person is above the oppressive child labor age." An age certificate is a statement of a minor's age issued under regulations of the Secretary (Child Labor Regulation No. I) , n31 based on the best available documentary evidence of age, and carrying the signatures of the minor and the issuing officer. Its purpose is to furnish an employer with reliable proof of the age of a minor employee in order that he may, as specifically provided by the act, protect himself against unintentional violation of the child labor provisions. Pursuant to the regulations of the Secretary, State employment or age certificates are accepted as proof of age in 45 States, the District of Columbia, and Puerto Rico, and Federal certificates of age in Idaho, Mississippi, South Carolina and Texas. If there is a possibility that the minor whom he intends to employ is below the applicable age minimum for the occupation in which he is to be employed, the employer should obtain an age certificate for him.

n31 Subpart A of this part

(b) It should be noted that the age certificate furnishes protection to the employer as provided by the act only if it shows the minor to be above the minimum age applicable thereunder to the occupation in which he is employed. Thus, a State certificate which shows a minor's age to be above the minimum required by State law for the occupation in which he is employed does not protect his employer for purposes of the Fair Labor Standards Act unless the age shown on such certificate is also above the minimum provided under that act for such occupation.

Section 29 CFR 570.122 General

Specific exemptions from the child labor requirements of the Act are provided for:

(a) Employment of children in agriculture outside of school hours for the school district where they live while so employed;

(b) Employment of employees engaged in the delivery of newspapers to the consumer;

(c) Employment of children as actors or performers in motion pictures or in theatrical, radio, or television productions; and

(d) Employment by a parent or a person standing in a parent's place of his own child or a child in his custody under the age of sixteen years in any occupation other than the following:

(1) Manufacturing,

(2) Mining,

(3) An occupation found by the Secretary to be particularly hazardous for the employment of children between the ages of sixteen and eighteen years or detrimental to their health or well-being.

In his interpretations of these provisions, the Secretary will be guided by the principle that such exemptions should be narrowly construed and their application limited to those employees who are plainly and unmistakably within their terms. Thus, the fact that a child's occupation involves the performance of work which is considered exempt from the child labor provisions will not relieve his employer from the requirements of section 12(c) or the producer, manufacturer, or dealer from the requirements of section 12(a) if, during the course of his employment, the child spends any part of his time doing work which is covered but not so exempt.

Section 29 CFR 570.123 Agriculture

(a) Section 13(c) of the Act provides an exemption from the child labor provisions for "any employee employed in agriculture outside of school hours for the school district where such employee is living while he is so employed." This is the only exemption from the child labor provisions relating to agriculture or the products of agriculture. The various agricultural exemptions provided by sections 7(b)(3), 7(c), 13(a)(6), 13(a)(10) and 13(b)(5) from all or part of the minimum wage and overtime pay requirements are not applicable to the child labor provisions. This exemption, it will be noted, is limited to periods outside of school hours in contrast to the complete exemption for employment in "agriculture" under the wage and hours provisions. Under the original act, the exemption became operative whenever the applicable State law did not require the minor to attend school. The legislative history clearly indicates that in amending this provision, Congress sought to establish a clearer and simpler test for permissive employment which could be applied without the necessity of exploring State legal requirements regarding school attendance in the particular State. It recognized that the original provision fell short of achieving the objective of permitting agricultural work only so long as it did not infringe upon the opportunity of children for education. By recasting the exemption on an "outside of school hours" basis, Congress intended to provide a test which could be more effectively applied toward carrying out this purpose.

(b) The applicability of the exemption to employment in agriculture as defined in section 3(f) n32 of the Act depends in general upon whether such employment conflict with school hours for the locality where the child lives. Since the phrase "school hours" is not defined in the Act, it must be given the meaning that it has in ordinary speech. Moreover, it will be noted that the statute speaks of school hours "for the school district" rather than for the individual child. Thus, the provision does not depend for its application upon the individual student's requirements for attendance at school. For example, if an individual student is excused from his studies for a day or a part of a day by the superintendent or the school board, the exemption would not apply if school was in session then. "Outside of school hours" generally may be said to refer to such periods as before or after school hours, holidays, summer vacation, Sundays, or any other days on which the school for the district in which the minor lives does not assemble. Since "school hours for the school district" do not apply to minors who have graduated from high school, the entire year would be considered "outside of school hours" and, therefore, their employment in agriculture would be permitted at any time. While it is the position of the Department that a minor who leaves one district where schools are closed and who moves into and lives in another district where schools are in session may not work during the hours that schools are in session in the new district, it will not be asserted that this position prevents the employment of a minor in a district where schools are in session, if the school last attended by the minor has closed for summer vacation. As a reasonable precaution, however, no employer should employ a child under such circumstances before May 15, and after that date he should do so only if he is shown by the minor satisfactory evidence in the form of a written statement signed by a school official stating that the school with which he is connected is the one last attended by the minor and that the school is closed for summer vacation. Such statement should contain the minor's name, the name and address of the school, the date the school closed for the current year, the date the statement was signed, and the title of the school official signing the statement.

n32 Agriculture as defined in section 3(f) includes "farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in section 15(g) of the Agricultural Marketing Act, as amended), the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry, or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market."

(c) Attention is directed to the fact that by virtue of the parental exemption provided in section 3(1) of the Act, children under 16 years of age are permitted to work, for their parents on their parents' farms at any time provided they are not employed in a manufacturing or mining occupation.

(d) The orders (subpart E of this part) declaring certain occupations to be particularly hazardous for the employment of minors between 16 and 18 years of age or detrimental to their health or well-being do not apply to employment in agriculture, pending study as to the hazardous or detrimental nature of occupations in agriculture. n33

n33 See note to subpart E of this part.

Section 29 CFR 570.124 Delivery of newspapers

Section 13(d) of the Act provides an exemption from the child labor as well as the wage and hours provisions for employees engaged in the delivery of newspapers to the consumer. This provision applies to carriers engaged in making deliveries to the homes of subscribers or other consumers of newspapers (including shopping news). It also includes employees engaged in the street sale or delivery of newspapers to the consumer. However, employees engaged in hauling newspapers to drop stations, distributing centers, newsstands, etc., do not come within the exemption because they do not deliver to the consumer.

Section 29 CFR 570.125 Actors and performers

Section 13(c) of the Act provides an exemption from the child labor provisions for "any child employed as an actor or performer in motion pictures or theatrical productions, or in radio or television productions." The term "performer" used in this provision is obviously more inclusive than the term "actor." In regulations issued pursuant to section 7(d)(3) of the Act, the Administrator of the Wage and Hour Division has defined a "performer" on radio and television programs for purposes of that section. n34 The Secretary will follow this definition in determining whether a child is employed as a "* * * performer * * * in radio or television productions" for purposes of this exemption. Moreover, in many situations the definition will be helpful in determining whether a child qualifies as a "* * * performer in motion pictures or theatrical productions * * *" within the meaning of the exemption.

n34 Section 550.2(b) of this title provides: (b) The term "performer" shall mean a person who performs a distinctive, personalized service as a part of an actual broadcast or telecast including an actor, singer, dancer, musician, comedian, or any person who entertains, affords amusement to, or occupies the interest of a radio or television audience by acting, singing, dancing, reading, narrating, performing feats of skill, or announcing, or describing or relating facts, events and other matters of interest, and who actively participates in such capacity in the actual presentation of a radio or television program. It shall not include such persons as script writers, stand-ins, or directors who are neither seen nor heard by the radio or television audience; nor shall it include persons who participate in the broadcast or telecast purely as technicians such as engineers, electricians and stage hands.

Section 29 CFR 570.126 Parental exemption

By the parenthetical phrase included in section 3(l)(1) of the Act, a parent or a person standing in place of a parent may employ his own child or a child in his custody under the age of 16 years in any occupation other than the following:

(a) Manufacturing;

(b) mining;

(c) an occupation found by the Secretary to be particularly hazardous or detrimental to health or well-being for children between the ages of 16 and 18 years. This exemption may apply only in those cases where the child is exclusively employed by his parent or a person standing in his parents' place. Thus, where a child assists his father in performing work for the latter's employer and the child is considered to be employed both by his father and his father's employer, the parental exemption would not be applicable. The words "parent" or a "person standing in place of a parent" include natural parents, or any other person, where the relationship between that person and a child is such that the person may be said to stand in place of a parent. For example, one who takes a child into his home and treats it as a member of his own family, educating and supporting the child as if it were his own, is generally said to stand to the child in place of a parent. It should further be noted that occupations found by the Secretary to be hazardous or detrimental to health or well-being for children between 16 and 18 years of age, as well as manufacturing and mining occupations, are specifically excluded from the scope of the exemption.

Section 29 CFR 570.127 General

Section 15(a)(4) of the Act makes any violation of the provisions of sections 12(a) or 12(c) unlawful. Any such unlawful act or practice may be enjoined by the United States District Courts under section 17 upon court action, filed by the Secretary pursuant to section 12(b) and, if willful will subject the offender to the criminal penalties provided in section 16(a) of the Act. n35

n35 Section 16(a) provides:

Any person who willfully violates any of the provisions of section 15 shall upon conviction thereof be subject to a fine of not more than $ 10,000, or to imprisonment for not more than six months, or both. No person shall be imprisoned under this subsection except for an offense committed after the conviction of such person for a prior offense under this subsection.

Section 29 CFR 570.128 Good faith defense

A provision is contained in section 12(a) of the Act relieving any purchaser from liability thereunder who ships or delivers for shipment in commerce goods which he acquired in good faith in reliance on written assurance from the producer, manufacturer, or dealer that the goods were produced in compliance with section 12, and which he acquired for value without notice of any violation. n36

n36 For a complete discussion of this subject see part 789 of this title, General Statement on the Provisions of section 12(a) and section 15(a)(1) of the Fair Labor Standards Act, as amended, relating to Written Assurances.

Section 29 CFR 570.129 Relation to other laws Section 18 provides, in part, that "no provision of this act relating to the employment of child labor shall justify noncompliance with any Federal or State law or municipal ordinance establishing a higher standard than the standard established under this act." The child labor requirements of the Fair Labor Standards Act, as amended, must be complied with as to the employment of minors within their general coverage and not excepted from their operation by special provision of the act itself regardless of any State, local, or other Federal law that may be applicable to the same employment. Furthermore, any administrative action pursuant to other laws, such as the issuance of a work permit to a minor or the referral by an employment agency of a minor to an employer does not necessarily relieve a person of liability under this act. Where such other legislation is applicable and does not contravene the requirements of the Fair Labor Standards Act, however, nothing in the act, the regulations or the interpretations announced by the Secretary should be taken to override or nullify the provisions of these laws. Although compliance with other applicable legislation does not constitute compliance with the act unless the requirements of the act are thereby met, compliance with the act, on the other hand, does not relieve any person of liability under other laws that establish higher child labor standards than those prescribed by or pursuant to the act. Moreover, such laws, if at all applicable, continue to apply to the employment of all minors who either are not within the general coverage of the child labor provisions of the act or who are specifically excepted from their requirements. 21 V.S.A. §§ 430(c), 434, 436

History

• EFFECTIVE DATE: October 6, 2003 Secretary of State Rule Log # 03-33

Subagency 050 VERMONT OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

Chapter 010 RULES PERTAINING TO VOSHA - CONCRETE AND MASONRY CONSTRUCTION (1926.700)

24-010 Code Vt. R. 24-050-010-X RULES PERTAINING TO VOSHA - CONCRETE AND MASONRY CONSTRUCTION (1926.700)

Incorporated by reference. See 29 CFR (Code of Federal Regulations) Part 1926.700, or contact the Department of Labor, Vermont Occupational Safety and Health Review Board.

History

• EFFECTIVE DATE: January 6, 1992 Secretary of State Rule Log # 91-080
• AMENDED: July 2007 non-substantive correction

Subagency 010 ADMINISTRATIVE DIVISION

Chapter 011 ADMINISTRATION AND COLLECTION OF THE EMPLOYERS' HEALTH CARE PREMIUM CONTRIBUTION

24-011 Code Vt. R. 24-010-011-X ADMINISTRATION AND COLLECTION OF THE EMPLOYERS' HEALTH CARE PREMIUM CONTRIBUTION

Section I Authority

Issued by Authority of and under the provisions of Section 34 of Act 191 of the 2006 Session of the Vermont General Assembly, and codified as Chapter 25 of Title 21 of the Vermont Statutes Annotated. Specific authorization for this rule is codified as 21 V.S.A. § 2003(c).

Section II Application

These rules are applicable to all employers (as that term is defined in Section III.3 below) having more than eight full-time equivalent employees. As of July 1, 2008, these rules will be applicable to all employers having more than six full-time equivalent employees. As of July 1, 2009, these rules will be applicable to all employers having more than four full-time equivalent employees.

IMPORTANT NOTE: The employer's health care premium contribution is intended to provide a partial source of funding for the Catamount Health plan. The payment of a premium contribution on behalf of an uncovered employee does not necessarily entitle that uncovered employee to enrollment in the Catamount Health plan. Enrollment in the Catamount Health plan is the responsibility of the individual, and is subject to income caps and additional individual contributions.

Section III Definitions

1. Commissioner: The Vermont Commissioner of Labor.

2. Employee: Any individual, 18 years of age or older for all of a calendar quarter, employed full-time or part-time by an employer to perform services in this state, when such services fall under the definition of employment as that term is defined by section 1301(6) of Title 21 of the Vermont Statutes Annotated. It is the intent of this rule that employees used by an employer for purposes of the employer's health care premium contribution calculation will be substantially the same as the employees reported by an employer for purposes of complying with Vermont unemployment compensation law.

a) Sole Proprietors are not considered employees.

b) Limited Liability Companies (LLCs) with a single member or manager are not considered employees.

c) LLCs with more than one member or manager are not considered employees if they elect partnership status for federal tax purposes.

d) LLCs electing corporate status for federal tax purposes are considered employees.

3. Employer: Any person who is required under subchapter 4 of chapter 151 of Title 32 of the Vermont Statutes Annotated to withhold income taxes from payments of income with respect to services, but shall not include the United States government.

4. Full-time equivalent (FTE): The number of employees expressed as the number of employee hours worked during a calendar quarter divided by 520. The FTE calculation is based on a 40-hour workweek. No more than one FTE may be assessed against an individual employee, regardless of the actual number of hours worked by that employee.

For the purpose of calculating FTEs, the phrase "hours worked during a calendar quarter" means hours worked during all pay periods in that quarter for which gross wages were reported as paid.

5. Uncovered Employee:

a) An employee of an employer who does not offer to pay any part of the cost of health care coverage for its employees.

b) An employee who is not eligible for health care coverage offered by an employer to any other employees as defined by the health care plan offered by the employer; or

c) An employee who is offered and is eligible for coverage by the employer but elects not to accept the coverage and has no other health care coverage under either a private or public plan.

i. An employee who has health care coverage during any portion of a calendar quarter shall not be considered an uncovered employee for purposes of that quarter's premium contribution.

ii. An employee who has enrolled in a health care coverage plan, but is not actually covered under such plan until a subsequent effective date of coverage, shall not be considered an uncovered employee, provided such intervening period is no longer than six months.

6. Health Care Coverage: Catamount Health Care, Medicare, Medicaid, the Vermont health access plan (VHAP), Dr. Dynasaur, or private insurance or employer-sponsored coverage that includes both hospital and physician services.

Section IV Method of Calculating and Reporting Hours Worked by Uncovered Employees

1. Employers must report, on a quarterly basis, the total number of hours worked by each uncovered employee, as that term is defined in Section III. Reporting will be accomplished by means of Department of Labor Form C-101, the same form used by employers to report wage information for purposes of complying with Vermont's unemployment compensation law. Form C-101 has been modified to accommodate reporting wage information necessary for both health care premium contributions and unemployment compensation assessments.

2. Employers must file Form C-101 on or before the last day of the month following the end of the quarter.

3. Quarterly health care premium contributions are calculated in the following manner:

a) Add the total hours worked by all uncovered employees during the quarter.

i) For each salaried employee, use 520 hours a quarter;

ii) For each employee who worked in excess of 520 hours in the quarter, use 520 hours a quarter.

b) Divide the resulting number by 520 (representing one FTE, or full-time equivalent), and round down to the nearest whole number.

c) Subtract 8 (as of July 1, 2008 subtract 6; as of July 1, 2009 subtract 4).

d) Multiply the resulting number by the quarterly health care premium contribution, currently established as $ 91.25. Starting in fiscal year 2009, this number will be adjusted annually by a percentage equal to any percentage change in premiums for Catamount Health for that fiscal year. The commissioner will notify employers of the new number annually.

4. A worksheet, attached to these rules as Appendix A, can be used to help calculate the total quarterly premium contribution. An online calculator is available at the Department of Labor's website. (insert URL once it is up)

Section V Record Keeping Requirement

On an annual basis, an employer who offers health care coverage must obtain, from each person in his or her employ who declines the employer's health care coverage, a declaration of health care coverage. Such declaration shall be on a form, document or secure electronic statement provided to each employee by the employer, and shall require each employee to state whether or not the employee has health care coverage. In the event the employee has health care coverage, the employee shall affirmatively acknowledge the existence of such coverage.

Declarations of coverage and records of reported uncovered employees shall be maintained in such a manner as required by law, and as to be reasonably available for review or audit by the commissioner, and shall be maintained for a minimum of four years.

Section VI Employee Leasing Companies

In an employee leasing agreement between an employee leasing company and a client company, as those terms are defined in section 1031 of Title 21 of the Vermont Statutes Annotated, leased employees shall be considered employees of the client company for purposes of complying with the provisions of this rule.

Section VII Penalties and Interest

Failure to file a timely quarterly report, or failure to accurately report all hours worked by uncovered employees, shall subject an employer to a penalty consistent with section 1328 of Title 21 of the Vermont Statutes Annotated.

2. Failure to make timely payment of all health care premium contributions due shall subject an employer to the interest rates and collection methods set forth in section 1329 of Title 21 of the Vermont Statutes Annotated. 21 V.S.A. § 2003

History

• EFFECTIVE DATE: January 5, 2007 Secretary of State Rule Log # 06-042

Chapter 012 WORKERS' COMPENSATION VOCATIONAL REHABILITATION RULES

24-012 Code Vt. R. 24-010-012-X WORKERS' COMPENSATION VOCATIONAL REHABILITATION RULES

Part I PURPOSE STATEMENT

Rule 50.0000 Vocational Rehabilitation

Purpose.

Vocational rehabilitation (V.R.) shall be provided to a worker when, because of the work injury, he or she is unable to return to suitable employment for which he or she has prior training or experience relevant to currently available suitable employment. The services provided include retraining and job placement, as may be reasonably necessary to restore the employee to suitable employment. See 21 V.S.A. § 641. The purpose of vocational rehabilitation is to provide those services including retraining, necessary to allow a return to suitable employment. The benefits provided under the statute are specifically tied to restoration of earning skills, See Bishop v. Town of Barre, 140 Vt 564 (1982), and not tied to providing specific employment. See Wentworth v. Crawford & Co., 174 VT 118 (2002). A worker is only entitled to vocational rehabilitation if the offered plan will result in suitable employment. See Bishop v. Town of Barre, 140 Vt 564 (1982). The statute envisions a collaborative process between a worker and the employer/insurer to develop and implement an appropriate plan. The Commissioner may order such rehabilitation, treatment or training necessary and appropriate to render the employee fit for a remunerative occupation. See 21 V.S.A. § 641(a)(4).

Part II DEFINITIONS

Rule 51.0000 Definitions

For the purposes of these rules:

51.1000 "Assessment", for the purpose of vocational rehabilitation, means selecting, administering, scoring, and interpreting instruments designed to assess an individual's attitudes, abilities, achievements, interests, personal characteristics, disabilities and mental, emotional, or behavioral disorders as well as the use of methods and techniques for understanding human behavior in relation to coping with, adapting to, or changing life situations.

51.1100 "End Medical Result" or "Medical End Result" means the point at which a person has reached a substantial plateau in the medical recovery process, such that significant further improvement is not expected, regardless of treatment.

51.1200 "Functional Capacity Evaluation" may also be known as (FCE); (PCA); (PCE); (FCA); (RFE); or (QFE), is defined as the objective determination of the claimant's ability to participate in activities within a work setting. The FCE is used to match physical capabilities to job requirements and should address such activities as bending; lifting; pushing; pulling; balance; reaching; climbing; stooping; standing; sitting; eye-hand-foot coordination; manual finger dexterity; and physical endurance. The FCE shall be performed by a registered physical or occupational therapist or other qualified medical provider.

51.1300 "Identifying Information" refers to the employee's name, current mailing address, date of injury, date of birth, employee's phone number, education level, average weekly wage, vocational rehabilitation referral date, Department of Labor's file number, insurer's name, insurer's current mailing address, claims adjuster's name, phone number, insurer's file number, employer's name and phone number, vocational rehabilitation counselor's name, counselor's current address, counselor's phone number and the counselor's registration number.

51.1400 "Job Analysis" means a systematic study that reports work activity as follows:

51.1410 What the employee does in the job being analyzed in relation to data, people and things;

51.1420 What methods and techniques are employed by the employee;

51.1430 What machines, tools and work aids are used;

51.1440 What materials, products, subject matter, or services result;

51.1450 What traits are required by the employee; AND

51.1460 What the physical and mental demands of the job are.

51.1500 "Job Development" means a systematic contact of prospective employers resulting in opportunities for interviews and employment that might not otherwise have existed. Job development facilitates a prospective employer's consideration of a qualified employee for employment.

51.1600 "Job Modification" means altering the work environment to accommodate physical or mental limitations. It includes changing or modifying equipment, the methods or procedures for completing tasks, or changing or modifying job duties.

51.1700 "Job Placement" means the activities of the counselor and the injured employee that support a worker's search for work, including, but not limited to:

51.1710 The identification of job leads;

51.1720 Arranging for job interviews;

51.1730 The preparation of a worker to conduct an effective job search;

51.1740 Communication of information about, but not limited to, the labor market conditions.

51.1800 "Labor Market Survey" is information compiled, or the compiling activity, to determine the wages, hiring practices and availability of suitable employment with regard to a specific worker, obtained from direct contact with employers.

51.1900 "Medical Case Management" refers to the planning and coordination of health care services appropriate to achieve the goal of medical rehabilitation. Medical case management may include medical case assessment, including personal interview with the injured employee, and the assistance in developing, implementing and coordinating a medical care plan with health care providers, as well as the employee and his or her family and evaluation of treatment results. Medical Case Managers shall not provide medical care or adjust claims. The goal of medical case management should be to avail the disabled individual of all available treatment options to ensure that the client can make an informed choice.

51.2000 "On-The-Job-Training" (OJT) means job training provided to a worker while the employee is engaged in productive work. Such training is designed to provide knowledge or skills essential to the satisfactory performance of the job. Specific vocational preparation levels will be used as a guide in determining the length of training on OJT; however, the actual need of the participant is the determining factor.

51.2100 "Regular Full Time Employment" means a job, at the time of hire was, or is currently expected to continue indefinitely.

51.2200 "Rehabilitation Conference" means a conference conducted for the purpose of addressing disputed issue(s) regarding adequacy, feasibility and sufficiency of the vocational rehabilitation services.

51.2300 "Rehabilitation Professional" is defined as a Vocational Evaluator; Vocational Rehabilitation Counselor; Vocational Job Developer/Intern.

51.2400 "Rehabilitation Services" means both medical rehabilitation services and vocational rehabilitation services designed to return an individual to "suitable employment" as defined by these rules. The program begins with the first interview with the employee. The program consists of the sequential delivery and coordination of services by rehabilitation service providers. Specific services under this plan may include, but are not limited to:

51.2410 Counseling and guidance by a certified rehabilitation counselor;

51.2420 Ergonomic modifications, lifting devices and other reasonable accommodations that would enhance the employability of the injured employee;

51.2430 Assistance in job placement by a certified rehabilitation counselor with emphasis on matching the job most closely to the skills, abilities and functional capacity of the injured employee;

51.2440 Vocational testing;

51.2450 Other rehabilitation services that may include, job analysis, job modification, labor market survey, transferable skills analysis, work adjustment, job seeking skills training, on-the-job training, retraining and coordination of other activities as necessary to return a worker to suitable employment.

51.2500 "Return to Work Plan" means a written document cooperatively developed by a rehabilitation counselor, the employee and the employer/insurer that describes the manner and the means by which the employee will be returned to suitable employment. The Return to Work Plan identifies the skills the employee needs to return to suitable employment, an identified job goal, the responsibilities of each party in achieving that goal and the time frame in which the plan will be completed.

51.2600 "Suitable Employment" means employment for which the employee has the necessary mental and physical capacities, knowledge, skills and abilities;

51.2601 Located where the employee customarily worked, or within reasonable commuting distance of the employee's residence;

51.2602 Which pays or would average on a year-round basis a suitable wage; AND

51.2603 Which is regular full-time work. Temporary work is suitable if the employee's job at injury was temporary and it can be shown that the temporary job will duplicate his or her annual income from the job at injury.

51.2610 "Knowledge" is an organized body of factual or procedural information derived from the worker's education, training and experience.

51.2620 "Skills" are the demonstrated mental and physical proficiency to apply knowledge.

51.2630 "Abilities" are the mental and physical capability to apply the employee's knowledge and skills.

51.2700 "Suitable Wage" means a wage as close as possible to 100 percent of the average weekly wage as described in Rule 15.0000. If the goal of 100% of the AWW is not reasonably attainable then the closest reasonably attainable wage to 100% may be considered suitable.

51.2800 "Transferable Skills" means the knowledge and skills demonstrated in past training or employment that make a worker employable in suitable new employment. More general characteristics such as aptitudes or interests do not, by themselves, constitute transferable skills.

51.2900 "Vocational Evaluation" means the comprehensive assessment of vocational aptitudes and potential, using information about a worker's past history, medical and psychological status, and information from appropriate vocational testing, which may use paper and pencil instruments, work samples, simulated work stations, or assessment in a real work environment.

51.3000 "Vocational Rehabilitation" refers to the delivery and coordination of services designed to achieve the goal of returning the injured employee to suitable employment as quickly as possible. Specific services may include, but would not be limited to: collection of relevant medical information; vocational assessment; counseling; job analysis; job modification; job development and placement; labor market survey; vocational testing; analysis of transferable skills; job-seeking skills training; coordination of on-the-job training and retraining; and follow-up after reemployment.

51.3100 "Vocational Rehabilitation Counselor" is an individual that counsels, interviews and evaluates injured employees and confers with medical and professional personnel to determine entitlement to vocational rehabilitation services and feasibility of vocational rehabilitation. In consultation with the employee and the employer/insurer a counselor shall consider the injured employee's desires, aptitudes, physical, mental and emotional limitations and the Department's definition of suitable employment when determining what might be an appropriate job.

51.3200 "Vocational Testing" means the measurement of vocational interests, aptitudes, and ability using standardized, professionally accepted psychometric procedures.

51.3300 "Division of Vocational Rehabilitation" (DVR) shall refer to the Vermont Department of Aging and Independent Living's (DAIL) Division of Vocational Rehabilitation Services.

Part III OBTAINING SERVICES

Rule 52.0000 Requesting Vocational Rehabilitation Services

52.1000 The employer/insurer may voluntarily initiate V.R. services at any time by filing a V.R. referral for the employee. The referral shall be filed with the department, the employee, and the selected V.R. counselor.

52.2000 The employee may request V.R. services at any time by filing a written request with the department and indicating a reason for the request. After filing the request, the employee shall be screened as described below.

52.3000 In the event an employer/insurer has not voluntarily made a V.R. referral and/or the employee has not requested V.R. services, any employee who has received temporary total disability benefits for ninety days shall be screened as provided below.

Part IV SCREENING

Rule 53.0000 Identification and Referral

Vocational rehabilitation (also V.R.) shall be provided to a worker when, because of the work injury, he or she is unable to return to suitable employment for which he or she has prior training or experience relevant to currently available suitable employment. The services provided include retraining and job placement, as may be reasonably necessary to restore the employee to suitable employment. See 21 V.S.A. § 641.

53.1000 Any injured worker who has received, or is entitled to receive more than 90 days of continuous temporary total disability benefits, shall be identified and screened.

53.1100 Identification. Insurers are required to file a Memorandum of Payment form (Form 25M) with the department whenever a claimant is eligible to receive more than 90 calendar days of continuous temporary total disability benefits. A Memorandum of Payment is required for any lost time payment issued, regardless of whether payment is issued voluntarily or in an accepted claim. This form shall be filed with the department no later than the ninety-seventh day of eligibility or receipt of continuous temporary total disability benefits. (Failure to file this form is punishable by issuance of an administrative penalty in addition to other sanctions). Using the information in the Memorandum of Payment, the department shall identify injured workers who have received 90 days or more of continuous temporary total disability benefits.

[Interim screening provision Rules 53.1200A - 53.1320A shall govern screening until the Legislature authorizes the Vermont Department of Aging and Independent Living's (DAIL) Division of Vocational Rehabilitation (DVR) to bill and collect from workers' compensation insurers the screening assessment fee authorized by these rules.]

53.1200A Screening shall be performed by qualified vocational rehabilitation professionals assigned by the department. An assigned screener shall promptly notify the department, the employer/insurer, and the claimant of any possible conflict of interest, including any financial relationship with any party, personal friendship, or other matter that might be perceived as interfering with the ability to perform an objective assessment. The department shall evaluate the information and either appoint a new screener, or authorize screening to proceed.

53.1300A Notice/Assignment. Within 10 days of identifying an injured worker, either through the worker's request or pursuant to Rule 53.1100, the department shall:

53.1310A Assign the case to a qualified vocational rehabilitation professional. The assignment shall be made from an alphabetical list of qualified vocational rehabilitation professionals registered with the department. If the geographical location of the assigned screener and the injured worker would create a travel hardship the next qualified vocational rehabilitation professional located closest to the injured worker shall be assigned.

53.1320A Provide the injured worker a vocational rehabilitation notice and response form. The form explains the injured worker's rights, including the choice of provider, the right to challenge a determination, and reimbursement for related expenses. The form also asks the injured worker to indicate whether he or she is interested in receiving vocational rehabilitation services. The worker shall sign the form and return it to the department. See 21 V.S.A. § 641.

[Effective July 1, 2007, Rules 53.1200 - 53.1320 shall supersede interim rules 53.1200A - 53.1320A if prior to that date the Legislature authorizes the Vermont Department of Aging and Independent Living's (DAIL) Division of Vocational Rehabilitation (DVR) to bill and collect from workers' compensation insurers the screening assessment fee authorized by these rules.]

53.1200 Screening shall be performed by qualified vocational rehabilitation professionals employed by the Vermont Department of Aging and Independent Living's (DAIL) Division of Vocational Rehabilitation (DVR).

53.1300 Notice/Assignment. Within 10 days of identifying an injured worker, either through the worker's request or pursuant to Rule 53.1100, the department shall:

53.1310 Refer the injured worker's case to the Division of Vocational Rehabilitation (DVR) Screening Coordinator. The screening coordinator shall assign the case to a qualified vocational rehabilitation professional employed by DVR in the district closest to the employer and the injured worker.

53.1320 Provide the injured worker a vocational rehabilitation notice and response form. The form explains the injured worker's rights, including the choice of provider, the right to challenge a determination, and reimbursement for related expenses. The form also asks the injured worker to indicate whether he or she is interested in receiving vocational rehabilitation services. The worker shall sign the form and return it to the department. See 21 V.S.A. § 641.

[The remainder of these rules shall apply to all screening conducted before, or after July1, 2007]

53.1400 Screening. The assigned independent screener shall obtain the injured worker's response form from the department and review it, along with the entire worker's compensation file, which must be provided by the employer/insurer. The screener shall also consult with the injured worker and his employer. Based on the record review, response form, and consultation, the screener shall provide a recommendation concerning eligibility after considering:

53.1410 Whether the employee has been medically released to return to work.

53.1420 Whether evidence indicates that the employee will eventually be able to return to his or her job.

53.1430 Whether the employer has suitable work available for the employee.

The recommendation shall be provided to the injured worker, the employer/insurer, and the department. In the event that two or more responses are answered in the negative, the injured worker shall receive an entitlement assessment.

53.1440 If the recommendation is for an entitlement assessment, the employer/insurer shall promptly file a V.R. referral for an entitlement assessment and send a copy to the employee. If the employer/insurer wishes to contest the screening results it shall nonetheless file a V.R. referral form at the time it files its denial.

53.1500 Time. Absent extenuating circumstances the screening process should be completed in no more than 10 days from the date of screener assignment. The screener shall provide all parties and the department with the recommendation.

53.1600 In the event no screening response form is received for an identified injured worker, the screener shall conduct telephonic screening to obtain the necessary screening information.

53.2000 An employer/insurer who wishes to contest a screener's recommendation shall file a written denial, with supporting evidence. The written denial must be filed within 21 days of receiving the screening results and must be accompanied by a V.R. referral. The Commissioner shall review the evidence upon which the denial is based and if the evidence does not reasonably support the denial, the Commissioner may order an entitlement assessment. See 21 V.S.A. § 662(b).

53.3000 In the event a screener recommends against an entitlement assessment, the injured worker may contest the determination in writing to the department indicating their reason for contest and requesting a hearing.

53.4000 Conflict of Interest. Because screening is being provided by an independent state agency the department does not believe it likely that conflicts of interest will arise. The screener shall exercise independent professional judgment, and shall not provide workers' compensation vocational rehabilitation services to persons he or she has screened. Nonetheless any party who believes that an assigned screener has a conflict of interest, may petition for the assignment of a new screener, and provide evidence of the conflict of interest. The fact that the state agency shall bill and be paid by the employer/insurer is not a conflict of interest.

53.5000 Actual vocational rehabilitation services shall be provided by a certified vocational rehabilitation counselor.

53.5100 If an employer/insurer does not designate a rehabilitation counselor within 15 days of receiving the screener's report, the employee may choose a counselor by filing a V.R.-8.

53.5200 If the employee is not satisfied with a rehabilitation counselor chosen by the employer/insurer, he or she may select another counselor by filing a V.R.-8 and providing their reason for dissatisfaction. The employee should not file a V.R.-8 if the counselor has found them not entitled to vocational rehabilitation services. Instead he or she must contest the denial of services.

53.5300 If a change in rehabilitation counselor occurs for a reason other than party selection, the party who chose the counselor has first choice in designating a replacement counselor.

53.5400 The Commissioner may order a change in a rehabilitation counselor if presented evidence that the current counselor is not complying with the law or the rules, does not hold current certification, and/or claimant and counselor are unable to engage in an effective working relationship.

53.5500 Any request for change of a rehabilitation service provider pursuant to Rule 53.5400 shall be directed to the Commissioner. The Commissioner (designee) may then schedule an informal conference to discuss the concerns of the requesting party.

53.6000 A party may hire a vocational evaluator (V.E.) to provide their opinion concerning a rehabilitation plan, and the reasonableness and necessity of services provided or proposed by a rehabilitation counselor appointed by the opposing party. A counselor who has provided rehabilitation services to a worker for a given work injury may not be a V.E. for that claim.

53.7000 If the independent screener determines that the employee's medical condition makes it too difficult to determine whether the injured worker may be eligible for vocational rehabilitation, the employee shall be rescreened after every additional ninety days or at medical end result, which ever occurs first.

Part V ENTITLEMENT ASSESSMENT

Rule 54.0000 Entitlement

Vocational rehabilitation (V.R.) shall be provided to a worker when, because of the work injury, he or she is unable to return to suitable employment for which he or she has prior training or experience relevant to currently available suitable employment.

54.1000 The V.R. counselor conducting the entitlement assessment shall contact the employer and the employee to discuss the possibility of the employee's potential for return to work with the employer, including discussion of any opportunity for light duty work, job modifications or any other possibility of return to suitable employment.

54.2000 An assessment as to the entitlement for V.R. services shall be made and a report filed with the Workers' Compensation Division within 30 days of the filing of the vocational rehabilitation referral. An extension of the 30 day period may be granted if the parties agree or if, despite good faith efforts to complete the assessment within 30 days, additional time is needed. An entitlement assessment shall include a face-to-face interview between the employee and the V.R. counselor. The written report shall include, at a minimum, the following:

54.2100 A summary of current medical status including physical capabilities, secondary conditions affecting recovery, treatment, prognosis and estimate of time frames if possible;

54.2200 A vocational profile that includes an educational background and work history;

54.2300 A summary of positive and negative indicators for return to work; and

54.2400 The counselor's conclusion regarding the employee's entitlement.

54.3000 In the event a worker undergoes an entitlement assessment and is found "Not Entitled" to vocational rehabilitation services, then the employer/insurer bears no responsibility for payment or provision of further V.R. benefits.

54.4000 In the event the employee is found not entitled to V.R. services the employee may contest the determination in writing to the department indicating their reason for contest and requesting a hearing.

54.5000 An employer/insurer who wishes to contest an entitlement recommendation shall file a written denial, with supporting evidence. The written denial must be filed within 21 days of receiving the entitlement assessment. The Commissioner shall review the evidence upon which the denial is based and if the evidence does not reasonably support the denial, the Commissioner may order that V.R. services be provided. See 21 V.S.A. § 662(b).

Part VI RETURN TO WORK

Rule 55.0000 Return to Work Plan

55.1000 Within 45 days of completing the entitlement assessment, the V.R. counselor shall submit a Return to Work Plan for a worker that has been determined entitled to V.R. services. The plan shall be developed in consultation with the worker and the employer/insurer. The Return to Work Plan shall contain a plan of action for a specific vocational goal or objective and identify the specific skills, training or expertise that will result in the employee's return to suitable employment. The plan shall clearly establish steps and a time table for attainment of the objective. A counselor may request an extension of the 45 day period if, despite good faith efforts to complete the plan within 45 days, additional time is needed.

55.2000 The department shall assume a higher likelihood of successful return to work based on the following hierarchy of vocational options, which are listed in descending order of preference.

55.2100 Return to the same employer in a modified job or a different job;

55.2200 Return to a different employer in a modified or different job;

55.2300 On-the-Job Training:

55.2400 New Skill Training or Retraining;

55.2500 Educational / Academic Program;

55.2600 Self-Employment.

55.3000 The Return to Work Plan shall include such information as is necessary to assess the proposal and to track the claim. In addition the following information shall be included in the plan.

55.3100 The Return to Work Plan shall include a specific vocational outcome and associated milestones or output measures. The plan shall contain a firm time frame for completion.

55.3200 The Return to Work Plan shall define specific responsibilities of the employee; counselor; and the employer/insurer.

55.3300 The Return To Work Plan shall include an itemization of the projected costs associated with the vocational plan, including but not limited to total equipment costs, travel, training, and the projected costs of services provided by the rehabilitation service providers. The actual costs associated with this plan shall be included on the Closure Report when submitted. Failure to provide required information may result in the Return to Work Plan being denied, and payment for V.R. services denied.

55.4000 The Return to Work Plan shall be forwarded to the department after the employee, the counselor and the employer/insurer have completed the plan and all parties have signed the plan. In the event that any party fails or refuses to sign the Return to Work Plan, the Return to Work Plan as proposed shall be filed with a written explanation, by the refusing party, of the reasons for failure or refusal to sign the document. An employer/insurer shall promptly review the plan and file any objections within 21 days of receiving it.

55.5000 A properly documented plan shall be deemed approved if it is not rejected within 25 days of its receipt by the department. In the event of a dispute the Return to Work Plan shall be reviewed for the feasibility of the vocational objective and the plan of action. The Commissioner (designee) may extend his or her review period for an additional 25 days by informing all parties of the extension. If the proposed plan is denied the Vocational Rehabilitation provider shall submit a revised plan within 30 days of the date of denial.

If any party has failed or refused to sign the Return to Work Plan, and/or if the Commissioner (designee) has found the vocational objective or plan of action not to be practicable an informal conference and/or formal hearing shall be scheduled in accordance with the Workers' Compensation Rules 5.0000 & 6.0000. The Commissioner (designee) may issue an interim order requiring or suspending further vocational rehabilitation services pending such a conference and/or hearing in accordance with 21 V.S.A. Sec. 641(b) and/or 662(b).

55.6000 Vocational rehabilitation services shall terminate on the projected completion date indicated in the agreed upon plan unless an amendment is filed and agreed to by all parties prior to the completion date. Amendments are appropriate under the following circumstances:

55.6100 When it is apparent that the original vocational objective and/or plan has become inappropriate because of the employee's medical condition as documented by medical reports or,

55.6200 When it is apparent that the employee is not able to obtain the objective despite reasonable efforts to do so.

55.6300 When an extension for a defined period will permit achievement of the plans objectives.

55.7000 Any amendment to a Return to Work Plan must be submitted to the department prior to the expiration of the current agreed upon plan. All amendments must have the employee's, counselor's and insurance adjuster's signatures affixed to the document prior to the submission of the document to the department. Proposed amendments shall be reviewed by the Commissioner (designee).

55.8000 The rehabilitation service provider shall file progress reports only as reasonably necessary, or only if requested by the employer/insurer or employee. The progress report shall evaluate progress toward the vocational objective of the agreed upon Return to Work Plan. If such a report is necessary or requested all parties to the plan and the department shall receive a copy of any progress reports provided.

Rule 55.9000 Self-Employment

55.9100 Self-employment is the least favored vocational goal because of the capital usually required to undertake it, the time it usually takes to achieve an appropriate wage level and the inherent risks associated with any new business venture. For this reason, a Return to Work Plan that proposes self-employment as the means of returning a claimant to suitable employment must be carefully considered to ensure that this is in fact the most appropriate vocational goal and that no other vocational goal is as likely to lead to suitable employment. This may include reviewing and applying the hierarchy of vocational options as defined in Rule 55.2000.

55.9200 A Return to Work Plan that proposes self-employment as the employee's vocational goal shall be accompanied by a Self-Employment Workbook completed by the employee with the V.R. counselor's assistance. In addition to the workbook, the employee, if his or her is seeking any financial assistance from the insurance employer/insurer, must submit documentation that his or her has contacted and discussed the business plans with a qualified small business consultant with a written evaluation including recommendations to be completed by the consultant.

55.9300 In determining the required extent of an employer/insurer's financial contribution to an approved self-employment plan, the following factors shall be considered:

55.9310 The total amount required to adequately finance the business' start-up, as itemized in the Self Employment Workbook; and

55.9320 The extent to which the employee has or will incur extraordinary costs as a result of his or her injury that are distinguishable from the ordinary costs associated with the proposed business venture, such as the cost of modified equipment and/or assistive technology; and

55.9330 The availability of financing from other sources.

Part VII DISPUTES; TERMINATION

Rule 56.0000 Vocational Rehabilitation Dispute Resolution

In the case of any dispute involving vocational rehabilitation, the Commissioner (designee) either on his or her own motion or upon request of the employer/insurer or employee, may schedule an informal conference to resolve the issue(s) in dispute. A party dissatisfied with the results of an informal conference(s) may request a formal hearing but shall comply with the directives of the informal conference until a formal hearing is held and a decision rendered.

Rule 56.1000 Terminations of Vocational Rehabilitation Services

56.1100 Vocational rehabilitation services may be suspended and/or terminated under the following circumstances:

56.1110 Upon successful completion of an approved Return to Work Plan, documented by the claimant's successful return to suitable employment, not including any on-the-job training period, for at least 60 days.

56.1120 When it becomes apparent because of a change in the employee's current medical condition that the provision of further vocational rehabilitation services would serve no useful purpose at this time.

56.1130 When it becomes apparent the employee is unable to participate in V.R. because circumstances are such that the provision of further V.R. services would serve no useful purpose at this time.

56.1140 Upon the employee's return to suitable employment that is not contingent upon successful completion of the plan.

56.1150 When it becomes apparent the employee is refusing to cooperate with the V.R. process.

56.2000 An employer/insurer's decision to suspend or terminate the employee's vocational rehabilitation benefits because of refusal or failure to cooperate with the rehabilitation process shall be filed with the department at least 10 days prior to the discontinuance of vocational rehabilitation services, along with supporting evidence. The notice shall be given to the employee at the same time it is filed with the department. Evidence of a worker's refusal or failure to cooperate with rehabilitation may include but is not limited to the following:

56.2100 Failure to cooperate with the initial assessment to determine entitlement within the time limitations specified in these rules;

56.2200 Failure to follow through with the responsibilities of an approved Return to Work Plan without good cause;

56.2300 Failure to maintain contact with the rehabilitation counselor;

56.2400 Failure to follow employment leads provided by the rehabilitation counselor in a reasonable and timely manner; or

56.2500 Failure to accept and perform suitable employment, unless refusal is justified.

56.3000 Prior to suspending or terminating vocational rehabilitation services, a Vocational Rehabilitation Closure Report shall be filed with the division, with a copy to the employee. Upon review, the Commissioner may either approve or deny the closure. If the closure is denied, the Commissioner (designee) may order the prompt resumption of vocational rehabilitation services. At either party's request, or at the Commissioner's discretion, an informal conference and/or formal hearing may be scheduled to resolve any dispute concerning the continuation, modification or termination of vocational rehabilitation services.

56.4000 The injured worker has the burden of proving entitlement to services and the reasonableness and necessity of a return to work plan. If an insurer/employer agrees that an injured worker is entitled or accepts a return to work plan, or fails to timely dispute that entitlement or return to work plan, it shall have the burden of proving that the injured worker is no longer entitled, or that the return to work plan is not reasonable, necessary, or will not result in suitable employment.

Part VIII VR PROVIDER CREDENTIALS/DISCIPLINE

Rule 57.0000 Qualifying Criteria for Rehabilitation Professionals

An applicant seeking certification as a Vermont Certified Rehabilitation Professional shall submit an application to the Commissioner of the Department of Labor. The Commissioner may require rehabilitation professionals to regularly report information describing their services, including the geographic areas served by the professionals and the nature, cost and outcome of services provided to employees under these rules. After evaluating the application and all supporting documents the Commissioner may certify the person as a Vermont registered vocational rehabilitation evaluator; counselor; job developer, or intern, if the applicant has completed the following minimum education and experience. The education must have been received from an accredited school.

57.1000 All vocational rehabilitation services shall be provided by a certified vocational rehabilitation counselor, evaluator or job developer/intern. Those individuals certified as a Job Developer/Intern shall be supervised by a certified vocational rehabilitation counselor who shall co-sign and assume all responsibility for all of the intern's determinations, evaluations, rehabilitation plans, reports and billing.

57.1100 Vocational Rehabilitation Counselor, defined as anyone directly providing services or supervising vocational rehabilitation counselors, interns or job developers.

Education: Master's in Rehabilitation Counseling from an accredited institution; Completion of the Vermont Rehabilitation Professional's Orientation workshop no later than six months after submission of an application for Vermont registration as a rehabilitation professional, or

Master's in Counseling from an accredited institution with documentation that the following courses had been successfully completed:

One graduate course with a primary focus on the Theories and Techniques of Counseling; and

One graduate course with a primary focus on Assessment; and

One graduate course with a primary focus on Occupational Information; and

One graduate course with a primary focus on medical or psychosocial aspects of disability and

Completion of the Vermont Rehabilitation Professional's Orientation workshop no later than six months after submission of an application for certification as a Vermont certified rehabilitation professional.

Experience: Twelve months of acceptable employment experience including six months of the past 24 months working with Vermont Workers' Compensation claimants.

57.1110 Notwithstanding the specific education requirements, any counselor who has been continuously certified, as a vocational counselor by the department for the past six years; who has completed the required core courses shall and complied with all continuing education requirements shall be deemed to have met the education requirement.

57.1200 Vocational Evaluator:

Education: Same as that required of the Vocational Rehabilitation Counselor.

Experience: Sixty months of acceptable employment experience including 24 months working with Vermont Workers' Compensation claimants.

57.1300 Vocational Job Developer/Intern:

Education: Baccalaureate degree in any field. Completion of the Vermont Rehabilitation Professional's Orientation workshop no later than six months after submission of an application for certification as a Vermont certified rehabilitation professional.

Experience: None.

57.1400 Continuing Education: All of the above mentioned positions shall attend annual training in either vocational rehabilitation or Vermont workers' compensation.

57.1500 Required knowledge: Each applicant applying to be a Vermont certified rehabilitation professional shall have a working knowledge of the Vermont Department of Labor rules and regulations. The Commissioner may require an examination as proof of that knowledge.

57.1600 Education criteria. Applicants shall have the burden of proof establishing education. Proof of education shall include an official transcript from any accredited school or college.

57.1700 Experience criteria. Applicants shall have the burden of proof establishing experience. School internships shall not be acceptable as employment experience. Supporting documents shall consist of signed statements, regarding the applicant's work by present and previous employers which shall include, but not be limited to, the specifications of services, the applicant's position description including caseload, and amount of time spent in vocational rehabilitation or medical case management work.

57.1800 Professional Conduct. All rehabilitation professionals shall comply with the Code of Professional Ethics as published by the Commission on Rehabilitation Counselor Certification (CRCC) until such time the Vermont Department of Labor publishes its own. In the event any ethical standard appears to conflict with the Vermont Workers' Compensation statutes, rules, or orders, the statutes, rules, or orders shall control.

57.2000 The Vermont certification shall be valid for three years from the date of the certification. Written application for renewal shall be received by the Commissioner no earlier than one hundred twenty days, but not later than seventy-five days prior to the current certification's expiration date. If the certification has lapsed or has been withdrawn by the Commissioner, the applicant must follow the procedures established for new applicants. If the certification lapses or is withdrawn the counselor may not provide any vocational rehabilitation services in Vermont until the certification has been reinstated. All renewals shall only submit a new application.

57.2100 The department shall maintain a current listing of all Vermont certified rehabilitation professionals, including the areas served, and shall provide the list at no charge to employees, employers and insurers.

57.3000 Each Vermont certified rehabilitation professional offering rehabilitation services to workers' compensation claimants shall be evaluated periodically by the Workers' Compensation & Safety Division of the Vermont Department of Labor. The evaluation shall focus on the quality of the services provided, the costs of such services, the results achieved by such services and the professional's compliance with any Department of Labor established standards of performance. The Department of Labor shall notify in writing any rehabilitation professional who fails to attain a satisfactory rating. Such notice shall state specifically the reasons for the unsatisfactory rating. The Commissioner may suspend or revoke the professional's certification based on the results of the evaluation.

57.4000 Rehabilitation professionals who provide services to employees without obtaining prior certification from the Commissioner or during periods when their certification is suspended or has been revoked, shall be required to terminate those services immediately, and shall not be considered for certification for a period of two years from the date of the infraction. An uncertified person providing vocational services shall not be paid for those services.

57.5000 The Commissioner may revoke the certification of a vocational rehabilitation professional for a period, not to exceed three years if following an investigation, to include an opportunity for the professional to respond, the Commissioner finds that the professional failed to:

57.5100 Comply with the Department of Labor's established rules and regulations; or

57.5200 Fulfill any obligation in providing the rehabilitation services prescribed in an approved rehabilitation plan; or

57.5300 Comply with the established Vermont rehabilitation professional's performance standards or Code of Ethics; or

57.5400 Comply with any state or federal laws relating to employment practices; or

57.5500 Comply with the established continuing education requirements.

Part IX V.R. PROVIDER FEE SCHEDULE

Rule 58.0000 Vocational Rehabilitation Fee Schedule

A vocational rehabilitation fee schedule is authorized by 21 V.S.A. § 641(a) in order to establish reasonable reimbursement rates for vocational rehabilitation benefits and services while providing reasonable choice and access. The employer/insurer shall not be liable for fees that exceed the maximum set by this schedule. All fees shall be supported by an itemized statement at the time of the bill, initialed and certified as accurate by the counselor. Failure to provide an itemized statement may result in a denial of the fee. By submitting an itemized bill for services to the employer/insurer the vocational rehabilitation counselor is attesting to the reasonableness and necessity of the services provided and the accuracy of the bill. Counselors are reminded that false statements may constitute workers' compensation fraud.

58.1000 The employer/insurer shall pay the vocational rehabilitation counselor's charge or the maximum allowable payment under this fee schedule within 30 days of receipt of the bill and legible, supporting documentation. If the employer/insurer is denying all or a portion of a bill it shall notify the vocational rehabilitation counselor and the injured worker within 21 days of receipt of the bill and legible supporting documentation. If the employer/insurer wishes to obtain a vocational evaluation of the services prior to accepting or denying the charges, it shall notify the vocational rehabilitation counselor within 21 days of receiving the bill. Review shall occur within 30 days. If the vocational rehabilitation counselor's bill is not denied, scheduled for an evaluation, or paid within 30 days, then the employer/insurer shall be liable for interest in addition to payment of the bill.

58.2000 The employer/insurer shall pay the Department of Aging and Independent Living $ 160.00 per screening conducted by the Division of Vocational Rehabilitation (DVR). During the period the interim screening provisions are in effect, the employer/insurer shall pay the counselor performing the screening $ 160.00 per screening.

58.3000 [Effective 11/1/2016] The fee for an Entitlement Assessment shall be $ 95.00 per hour not to exceed $ 1,200.00 per assessment, unless a higher amount is authorized by the employer/insurer, or ordered by the Commissioner if determined reasonable and necessary. All bills must be supported with an itemized statement.

58.4000 [Effective 11/1/2016] Plan development fees in excess of $ 2,500.00 require employer/insurer authorization.

58.5000 [Effective 11/1/2016] The maximum hourly fee for vocational rehabilitation services shall be $ 95.00.

58.5500 [Effective 11/1/2016] Beginning July 1, 2017 and on each subsequent July 1, the hourly rates stated in Rule 58.3000 and 58.5000 shall be increased by (a) the percentage increase of the Consumer Price Index, CPI-U, U.S. city average, not seasonally adjusted, or successor index, as calculated by the U.S. Department of Labor or successor agency for the 12 months preceding the previous May 1; or (b) five percent, whichever is smaller, but in no event shall the hourly rates and/or maximums be decreased. The hourly rates shall be rounded off to the nearest $ 5.00. Beginning July 1, 2022 and continuing every five years thereafter, the maximum amounts stated in Rules 58.3000 and 58.4000 shall be reviewed and increased as necessary to reflect intervening changes to the hourly rates upon which they are based.

58.6000 The contracting or subcontracting out of services shall not serve to raise the maximum allowable fee, unless agreed upon in advance by the employer/insurer and the claimant and counselor.

58.7000 Time for a counselor's travel in excess of two hours per trip shall be reimbursed at a rate not to exceed 50% of the maximum allowable hourly rate. Mileage shall be reimbursed at the same rate as that paid state employees.

58.7100 Workers shall be reimbursed reasonable and necessary travel expenses for travel related to a screening, entitlement assessment, or required meetings with a counselor or necessary to fulfill requirements of a return to work plan. Mileage shall be reimbursed at the same rate as that paid state employees.

58.8000 Fees shall not be reimbursed that are not reasonable and necessary. The party requesting the fee shall have the burden of proving the reasonableness and necessity of the charges.

58.9000 In the event a worker is either unable or not expected to be able to participate in vocational rehabilitation for a period of 30 days or more, V.R. shall be suspended and no V.R. services shall be due nor reimbursed for the suspension period, except as agreed upon by the parties.

History

• STATUTORY AUTHORITY: 21 V.S.A. § 641
• EFFECTIVE DATE: March 5, 2007 Secretary of State Rule Log #07-002
• AMENDED: November 1, 2016 Secretary of State Rule Log #16-041

Chapter 013 NOTICE OF POTENTIAL LAYOFFS ACT RULES

24-013 Code Vt. R. 24-010-013-X NOTICE OF POTENTIAL LAYOFFS ACT RULES

Rule No.1 Authority to Adopt Rules

These rules are adopted pursuant to 21 V.S.A. § 416(a).

Rule No.2 Scope

These rules pertain to the notice, administrative hearing, and penalty provisions of the Notice of Potential Layoffs Act (Act), 21 V.S.A. chapter 5, subchapter 3A.

Rule No.3 Definitions

As used in these rules:

(1) "Affected employees" means employees who may be expected to experience an employment loss as a consequence of a proposed or actual business closing or mass layoff by their employer. The term "affected employees" also includes employees who will likely lose their jobs because of bumping rights or other factors, to the extent that the individual employees can be reasonably identified at the time notice is required to be given. The term "affected employee" includes a managerial and supervisory employee, but does not include an officer, director, shareholder, or business partner, or a consultant or contract employee who has a separate employment relationship with another employer and is paid by that employer, or an individual who is self-employed.

(2) "Business closing" means:

(A) the permanent shutdown of a facility;

(B) the permanent cessation of operations at one or more worksites in the State that results in the layoff of 50 or more employees over a 90-day period; or

(C) the cessation of work or operations not scheduled to resume within 90 days that affects 50 or more employees.

(3) "Commissioner" means the Commissioner of Labor, or designee.

(4) "Date of termination" means the last day an employee is eligible or permitted to work for his or her employer. The fact that an employer continues to pay an employee after the date of termination does not change the employee's employment status for the purpose of this rule. Payments to an employee subsequent to the date of termination, whether continuing to pay an employee's normal weekly wage, or for severance pay, vacation pay, personal leave, or other similar benefits, shall not extend the employee's date of termination.

(4) "Department" means the Department of Labor.

(5) "Employee representative" means an exclusive bargaining agent legally recognized under State or Federal Labor laws.

(6)

(A) "Employer" means any person that employs:

(i) 50 or more full-time employees;

(ii) 50 or more part-time employees who work at least 1,040 hours per employee per year; or

(iii) a combination of 50 or more full-time employees and part-time employees who work at least 1,040 hours per employee per year.

(B) The calculation of total hours shall include overtime hours.

(C) Subsidiaries that are wholly or partially owned by a parent company may be treated by the Commissioner as a separate employer depending on the degree of independence from the parent. The factors to be considered in making this determination include:

(1) common ownership;

(2) common directors or officers;

(3) de facto exercise of control; and

(4) unity of personnel policies emanating from a common source.

(D) "Employer" includes a receiver, trustee, debtor-in-possession, or other fiduciary under the provisions the U.S. Bankruptcy Code (Title 11 of the United States Code) or any other provision of federal or state law where a party is responsible for the continued operation of a business entity.

(E) An employer may have one or more sites of employment under common ownership or control.

(F) "Employer" shall not include the federal government. However, private or not-for-profit businesses contracting with the federal government may be considered an employer.

(7) "Employment loss" means the termination of employment that is the direct result of a business closing or mass layoff. An employee will not have suffered an employment loss if the employee is offered a transfer to a different site of employment within 35 miles, or if prior to receiving the layoff notice the employee voluntarily separates or retires from employment or is separated by the employer for unsatisfactory performance or misconduct.

(8) "Mass layoff means a permanent employment loss of at least 50 employees at one or more worksites in Vermont during any 90-day period. In determining whether a mass layoff has occurred or will occur, employment losses for two or more groups of employees, each of which is below the threshold but which in the aggregate exceed the threshold and which occur within any 90-day period shall be considered to be a mass layoff unless the employer demonstrates that the employment losses are the result of separate and distinct actions and causes.

(9) "Secretary" means the Secretary of Commerce and Community Development.

Rule No.4 Employer Requirements; Generally

(a) An employer who will engage in a business closing or mass layoff shall provide notice to the Commissioner and the Secretary 45 days prior to the effective date of the closing or layoffs. Additionally, the employer shall provide 30 days notice to the chief elected official or administrative officer of the municipality in which the business closing or mass layoff will occur, the affected employees, and the employee representative if any. When all of the employees are not terminated on the same date, the date of the first individual termination shall trigger the notice requirement. The first and each subsequent group of employees to be terminated are entitled to a full 45 days notice.

(b) Notice to the Commissioner and the Secretary shall be in writing and comply with the requirements of Rule 6.

(c) The information in the notice shall be specific and based on the best information available to the employer at the time that notice is provided.

(d) An employer claiming an exception to the notice requirement or a reduction in the notice period shall provide a statement to the Commissioner and the Secretary of the reasons for reducing the notice period and a factual explanation of the basis for claiming the reduced notice period.

(e) Where an employer has sold all or part of a business, the selling employer shall be responsible for providing notice of any business closing or mass layoff connected with the sale up to and including the effective date of the sale. After the effective date of the sale, the purchasing employer shall be responsible for providing notice in accordance with the Act. Any individual who is an employee of the selling employer as of the effective date of the sale shall be considered an employee of the purchasing employer immediately after the effective date of the sale.

(f) An employer is encouraged to voluntarily provide notice of employment losses to its employees, the Commissioner, and the Secretary even if the notice is not required.

(g) The notice requirements of this rule shall not apply to a nursing home in situations where Rules 2.8 and 3.14 of the Vermont Licensing and Operating Rules for Nursing Homes apply or where the CMS Requirements for Long-Term Care Facilities apply, pursuant to 42 CF.R. §§ 483.12 and 483.75.

Rule No.5 Service of Notice

(a) Notice shall be provided within the time period provided by the Act using a reasonable and timely method of delivery designed to ensure its receipt. Acceptable forms of delivery include first class mail or personal delivery with optional signed receipt. If first class mail is used, the notice must be postmarked within the time period specified in the Act.

(b) Notice to the affected employees may also be served by:

(1) Insertion of the notice into envelopes containing pay or envelopes containing receipts for direct deposit of pay; or

(2) Electronic mail (e-mail). E-mail notification may only be utilized where all the affected employees have regular access in the workplace to personal computers at which e-mail may be received and viewed during work hours. If an employer elects to use electronic mail to provide notice to employees, the employer shall demonstrate that an e-mail notice was received by each affected employee. The employee e-mail addresses used to give notice shall be addresses provided to the employees by the employer and used in the conduct of business. The e-mail notice shall be identified as "urgent." If an e-mail notice is returned to the sender as undeliverable, notice shall be provided to the employee as soon as possible, for example by overnight delivery, hand delivery, or inter-office mail.

(c) Notice shall be sent on the official letterhead of the employer or on the employer's computer network and shall be signed by an individual with authority to represent the employer. The employer's representative must have the authority to bind the employer and shall attest to the truthfulness of all the information provided in the notice.

(d) Notice shall be provided within the statutory time frame to:

(1) The Commissioner;

(2) The Secretary;

(3) The affected employees;

(4) The local chief elected official or administrative officer of the municipality in which the business closing or mass layoffs will occur; and

(5) The employee representative, if any.

(e) Notice is required to be given to employees who may reasonably be expected to experience an employment loss. This includes employees who will likely lose their jobs because of bumping rights, to the extent that these employees can be identified at the time notice is required to be given.

Rule No.6 Contents of Notice

(a) Notice sent to the recipients identified below shall be provided within the time frame required by the Act and shall be provided for each site of employment where a business closing or mass layoff will occur. Notice to an affected employee shall be provided in a language the employee understands.

(b) Notice to Commissioner and the Secretary. Notice to the Commissioner and the Secretary shall include the following:

(1) The name and address of the employment site where the business closing or mass layoff will occur.

(2) The name and telephone number of an employer representative to contact for further information.

(3) The name and telephone number of an employee representative to contact for further information.

(4) The name of the employer's liaison with the Department for the purpose of providing rapid response to the affected employees.

(5) The name, job title, mailing address, telephone number, and email, if applicable, of each affected employee.

(6) The expected first date of separation of employees and the anticipated schedule of separations.

(7) A statement indicating whether bumping rights exist.

(8) A statement indicating whether the planned action is expected to be permanent or temporary, and whether the entire worksite is to be closed. The notice shall state whether the planned action is expected to affect identifiable units of employees differently, for example if the layoff of employees in one unit is temporary and permanent in another.

(9) A statement indicating whether the other notices required by statute will be given, including the date the notice was or will be given.

(10) A statement indicating the method of delivery used to give notice to the affected employees.

(11) A sample of the notice provided to the affected employees.

(c) Notice to employees. Notice to each affected employee shall include the following:

(1) The expected date of the first separation of employees and the date when the individual employee will be separated.

(2) A statement indicating whether the planned separation is expected to be permanent or temporary, and whether the entire worksite is to be closed. The notice shall state whether the separations are expected to affect identifiable units of employees differently, for example if the layoff of employees in one unit is temporary and permanent in another.

(3) A statement indicating whether bumping rights exist.

(4) The name and telephone number of an employer representative to contact for further information.

(5) The following notice:

"You are hereby notified that as a result of your employment loss you may be eligible to receive job training, re-employment services, and other assistance from the Vermont Department of Labor. You may also be eligible for unemployment benefits. The Vermont Department of Labor will provide information regarding all available benefits and services. You are encouraged to visit one of the Department's local offices for job placement information and assistance."

(d) Notice to employee representative. Notice to the employee representative shall include the following:

(1) The name and address of the employment site where the business closing or mass layoff will occur.

(2) The name and telephone number of an employer representative to contact for further information.

(3) A statement indicating whether bumping rights exist.

(4) A statement indicating whether the planned separation is expected to be permanent or temporary, and whether the entire worksite is to be closed. The notice shall state whether the separations are expected to affect identifiable units of employees differently, for example if the layoff of employees in one unit is temporary and permanent in another.

(5) The expected first date of separation of employees and the anticipated schedule of separations.

(6) The names and addresses of the affected employees and their job titles.

(7) A statement indicating whether the other notices required by statute have been given or will be given, including the date the notice was or will be given.

(8) A statement indicating the method of delivery used to give notice to the affected employees.

(e) Notice to municipality. Notice to the local chief elected official or administrative officer of the municipality shall include:

(1) The name and address of the employment site where the business closing or mass layoff will occur.

(2) The expected first date of separation of employees and the anticipated schedule of separations.

(3) A list of the broad occupational categories that are affected by the layoff or closing, and general information regarding the number of employees affected.

(4) A statement indicating whether the planned separation is expected to be permanent or temporary, and whether the entire worksite is to be closed. The notice shall state whether the separations are expected to affect identifiable units of employees differently, for example if the layoff of employees in one unit is temporary and permanent in another.

Rule No.7 Exceptions

(a) An employer is not required to provide notice or may delay providing notice if:

(1) The business closing or mass layoff results from a strike or a lockout.

(2) The employer is actively attempting to secure capital or investments in order to avoid a business closing or mass layoff.

(3) The business closing or mass layoff is caused by business circumstances that were not reasonably foreseeable at the time notice was required.

(4) The business closing or mass layoff is due to a disaster beyond the control of the employer.

(5) The business closing or mass layoff is the result of the conclusion of seasonal or temporary employment.

(b)

(1) Faltering company. An employer is not required to give notice if at the time notice was required:

(A) The employer was actively seeking capital or business and identifies the specific actions taken to obtain the capital or business. For example, the employer shall demonstrate its efforts to obtain financing or refinancing through the arrangement of loans, the issuance of stocks, bonds, or other methods, or to obtain additional money, credit, or business through any other commercially reasonable method;

(B) There was a realistic opportunity to obtain the capital or business sought; and

(C) The employer reasonably and in good faith believed that giving notice would have precluded the ability to obtain the needed capital or business. The employer must be able to objectively demonstrate that a potential customer or financing source would have been unwilling to provide the business or capital if notice was given.

(2) For the purpose of the exception, the employer's actions shall be viewed in a company-wide context. A company with access to capital markets or cash reserves may not avail itself of the exception by looking solely at the financial condition of the single site of employment to be closed.

(c)

(1) Unforeseeable business circumstances. An employer is not required to give notice if the business closing or mass layoff was caused by business circumstances that were not reasonably foreseeable when notice was required.

(2) A business circumstance that is not reasonably foreseeable may be established by the occurrence of a sudden, dramatic, and unexpected action or condition outside the employer's control. Examples include a principal client's sudden and unexpected termination of a major contract with the employer, a strike at a major supplier of the employer, an unanticipated and dramatic major economic downturn, or a government-ordered closing of an employment site which occurs without prior notice.

(d)

(1) Disaster. An employer is not required to give notice if the business closing or mass layoff was the result of a disaster beyond the employer's control. To qualify for this exception, the employer must show that:

(A) The closing or layoff was the direct result of a natural disaster including fire, floods, earthquakes, droughts, storms, or other similar effects of nature; and

(B) The employer provided as much notice as was practicable and available under the circumstances, either in advance or after an employment loss caused by the disaster.

(2) When a plant closing or mass layoff occurs as the indirect result of a disaster, this exception shall not apply, but the exception for unforeseeable business circumstances may be applicable.

(e)

(1) Seasonal employment. Notice is not required if the business closing or mass layoff results from the completion of a particular seasonal project or undertaking, and the affected employees were hired with the understanding that their employment was limited to the duration of the seasonal project or undertaking. Seasonal employment includes businesses with regularly planned shutdowns during certain periods of the year, including breaks between academic terms, and the regular cessation of activity in construction, ski areas, mining, quarrying, and other industries.

(2) The employer must be able to demonstrate that it informed each employee at the time of hire that the job was seasonal.

(3) Employment in an industry that traditionally hires seasonal employees does not make an employee a seasonal employee if the employee was hired to perform a variety of jobs and tasks continuously through a majority of the calendar year.

(f)

(1) Temporary employment. Notice is not required if the business closing or mass layoff results from the completion of a particular project or undertaking, and the affected employees were hired with the understanding that their employment was limited to the duration of the project or undertaking.

(2) The employer shall demonstrate that it informed each employee at the time of hire that the job was temporary. For purposes of this rule, "at will" employment is not "temporary" employment and providing notification to employees at the time of hire or otherwise that their employment is at will and subject to termination at any time by the employer shall not constitute notice that the employment is temporary.

(3) Employment in an industry that traditionally hires temporary employees does not make an employee a temporary employee if the employee was hired to perform a variety of jobs and tasks continuously through a majority of the calendar year. Providing written notice that a project is temporary with the intent of converting permanent employment into temporary work to avoid the notice requirement shall be considered a violation of the Act.

(g) Partial notice. If the employer is eligible for an exception to the notice requirement it shall provide as much notice as is practicable. The notice shall include a statement of the reason for reducing the notice period and the factual basis for claiming an exception.

Rule No.8 Investigation

(a) The Commissioner shall investigate all complaints of violations of the notice requirements of 21 V.S.A. § 413 and may initiate investigations.

(b) If the Commissioner determines that an employer has violated any provision of the Act, the Commissioner shall notify the employer of the violation and the amounts due for wages or benefits, as well as any penalties resulting from the violation. The notification shall be sent to the employer as a Notice of Violation accompanied by a Notice of Hearing.

(c) The Commissioner shall not issue an order without first holding a hearing, unless the employer has waived its right to a hearing pursuant to a settlement on terms acceptable to the Commissioner, or failed to respond to the Notice of Violation and Notice of Hearing.

Rule No.9 Administrative Hearing; Order

(a) A hearing shall be held before a hearing officer designated by the Commissioner to determine whether an employer has violated the provisions of the Act.

(b) Notice of the Hearing shall be sent to the parties at least 14 days prior to the hearing date.

(c) The hearing shall be conducted informally and in a manner to ascertain the substantial rights of the employer and the employees. All relevant issues shall be considered and passed upon. The hearing officer may accept evidence into the record and may examine or cross-examine any party or witness. Testimony shall be given under oath or affirmation. Hearsay evidence shall be allowed.

(d) The parties and their representatives shall be provided with any relevant documentary evidence prior to the hearing and may examine or cross-examine any other party or witness, and explain or rebut any evidence. The parties shall provide one another with any relevant documentary evidence at least 48 hours prior to the hearing.

(e) If a party is not represented by legal counsel or other agent, the hearing officer shall advise the party of his or her rights and may aid the party in examining or cross-examining witnesses, and give the party every assistance compatible with the impartial discharge of the hearing officer's duties. The hearing officer may take any additional evidence he or she deems necessary, provided that the parties shall be given an opportunity to examine, cross-examine, and refute the additional evidence. The parties shall be given an opportunity to present an argument which shall become part of the record.

(f) Following the conclusion of the hearing, the hearing officer shall render and issue a recommendation to the Commissioner. The recommendation shall be in writing and be signed by the hearing officer. It shall set forth the findings of fact, the reasons for the recommendation, and the recommendation.

(g) All testimony produced at the hearing shall be recorded by the hearing officer but need not be transcribed unless an appeal to the Superior Court is taken. A participant in the hearing is not permitted to record the proceedings. The cost of transcribing the hearing shall be borne by the requesting party.

(h) Administrative hearings shall be conducted by an officer designated by the Commissioner. The hearing officer shall make a recommendation to the Commissioner based on the evidence in the record. The Commissioner shall review the recommendation and shall promptly issue a determination and order.

(i) If the Commissioner determines that an employer has violated any of the requirements of the Act or of this Rule, he or she shall issue an order to the employer that it is in violation of the Act.

(j) The order shall include:

(1) The facts upon which the violation was found;

(2) A demand for any wages or benefits owed to any affected employee;

(3) An assessment of any penalties; and

(4) A notice of the employer's appeal rights.

Rule No.10 Violations of the Act

(a) An employer that violates the notice provisions of the Act is liable to each employee who lost his or her employment for:

(1) one day of severance pay for each day after the first day in the 45-day notice period, up to a maximum of ten days severance pay; and

(2) the continuation, not to exceed one month after an employment loss, of existing medical or dental coverage under an employment benefit plan, if any, necessary to cover any delay in an employee's eligibility for obtaining alternative coverage resulting directly from the employer's violation of the Act's notice requirements.

(b) Reduction in liability. The amount of an employer's liability under subsection (a) of this section shall be reduced by the following:

(1) any voluntary and unconditional payments made by the employer to the employee that were not required to satisfy any legal obligation;

(2) any payments by the employer to a third party or trustee, such as premiums for health benefits or [payments to a defined contribution pension plan, on behalf of and attributable to the employee for the period of the violation; and

(3) any liability paid by the employer under any applicable federal law governing notification of mass layoffs, business closings, or relocations.

(c) If an employer proves to the satisfaction of the Commissioner that the act or omission that violated the Act was dome in good faith, the Commissioner may reduce the amount of liability. In determining the reduction of liability, the Commissioner shall consider any efforts by the employer to mitigate the violation.

Rule No.11 Administrative Penalties

An employer who fails to give notice as required by the Act shall be subject to an administrative penalty of $ 500.00 for each day that the employer was deficient in providing notice to the Department. The Commissioner may waive the administrative penalty if the employer:

(1) demonstrates good cause under the Act;

(2) pays to all affected employees the amounts for which the employer is liable under the Act within 30 days from the date of the business closing or mass layoff; and

(3) pays to all affected employees any unpaid wages and compensation owed to the worker.

Rule No.12 Appeal

The employer may appeal an order issued by the Commissioner to the Superior Court within 30 days of the order.

Each order issued by the Commissioner shall state clearly the place and manner for filing an appeal from the order and the period within which the appeal may be taken.

Rule No.13 Severability

If any provision of these rules is held invalid, the invalidity shall not affect the remainder of the rules that can be given effect without the invalid provision, and to this end these rules are severable.

History

• STATUTORY AUTHORITY: 21 V.S.A. § 416(a)
• EFFECTIVE DATE: May 22, 2015 Secretary of State Rule Log #15-016

Chapter 014 RULE 45.0000 - EARNED SICK TIMES

24-014 Code Vt. R. 24-010-014-X RULE 45.0000 - EARNED SICK TIMES

Section 1 Authority

This rule is issued by authority of the Commissioner of Labor pursuant to 21 V.S.A. § 487 and Act 69 of the 2016 General Assembly ("Act").

Section 2 Purpose and Scope

(a) Purpose. To clarify practices and policies in the administration and enforcement of "An act relating to absence from work for health care and safety." 21 V.S.A. §§ 481 - 486 (the Act).

(b) Interaction with the Vermont Parental and Family Leave Act. Time accrued by an employee may be used at the same time as time off provided by the Vermont Parental and Family Leave Act. An employee may choose to use earned sick time as provided under the Act to receive pay when taking leave under the Vermont Parental and Family Leave Act that would otherwise be unpaid.

Section 3 Definitions

As used in the Act, the following terms shall have the following meanings unless the context clearly requires otherwise:

(1) "Annual period" means any continuous 12-month period of time as determined by the first day of work. If an employee has been working before the implementation date of the Act, his or her annual period will start on January 1. An employer with an existing fixed paid leave year may use such fixed paid leave year as the annual period, provided that all earned sick time accrued pursuant to the act shall be carried over into the fixed paid leave year. The use of approved off-payroll time does not restart the annual period and accrual of earned sick time shall resume upon the employee's return to work.

(2) "Child" means a minor or adult son or daughter by birth or adoption.

(3) "Commissioner" means the Commissioner of Labor or his or her designee.

(4) "Discharge" means a separation from employment initiated by the employer, including a temporary or seasonal layoff.

(5) "Domestic Violence" has the same definition as in 15 V.S.A. § 1151.

(6) "Earned Sick Time" means paid time off from work accrued by an employee and provided by an employer for the purposes permitted by the Act.

(7) "Employee" means any person who, in consideration of direct or indirect gain or profit is employed by an employer for an average of not less than 18 hours per week. To calculate if an employee has worked an average of 18 hours per week an employer shall, on a yearly basis, divide the number of hours worked by the employee in the last completed calendar year by 52. If an individual has been employed for an average of not less than 18 hours per week in the prior calendar year, the individual's accrual of sick time shall be deemed to have commenced on the first day of that year. The previous calendar year calculation shall not be applied to those individuals hired during that calendar year who are anticipated to work an average of more than 18 hours a week. The term "employee" shall not include:

(A) an employee of the federal government;

(B) an individual who is employed by an employer for 20 weeks or fewer in a 12- month period and in a job scheduled to last 20 weeks or fewer. If the job extends past 20 weeks, sick time accrual shall be deemed to have commenced on the first day of work. The one year waiting period on the use of earned sick time may still apply to the employee.

(C) an individual that is employed by the State and is exempt or excluded from the State classified service pursuant to 3 V.S.A. § 311, but not an individual that is employed by the State in a temporary capacity pursuant to 3 V.S.A. § 331.

(D) an employee of a health care facility as defined in 18 V.S.A. § 9432(8) or a facility as defined in 33 V.S.A. § 7102(2) if the employee only works on a per diem or intermittent basis.

(i) "Health care facility" means all persons or institutions, including mobile facilities, whether public or private, proprietary or not for profit, which offer diagnosis, treatment, inpatient, or ambulatory care to two or more unrelated persons, and the buildings in which those services are offered. The term shall not apply to any institution operated by religious groups relying solely on spiritual means through prayer for healing, and shall include but is not limited to:

(aa) hospitals, including general hospitals, mental hospitals, chronic disease facilities, birthing centers, maternity hospitals, and psychiatric facilities including any hospital conducted, maintained, or operated by the state of Vermont, or its subdivisions, or a duly authorized agency thereof;

(bb) nursing homes, health maintenance organizations, home health agencies, outpatient diagnostic or therapy programs, kidney disease treatment centers, mental health agencies or centers, diagnostic imaging facilities, independent diagnostic laboratories, cardiac catheterization laboratories, radiation therapy facilities, or any inpatient or ambulatory surgical, diagnostic, or treatment center.

(ii) "Facility" means a residential care home, nursing home, assisted living residence, home for persons who are terminally ill, or therapeutic community residence licensed or required to be licensed pursuant to the provisions of Chapter 71 of Title 33.

(E) an employee of a school district, supervisory district, or supervisory union as defined in 16 V.S.A. § 11 that:

(i) is employed pursuant to a school district or supervisory union policy on substitute educators as required by the Vermont Standards Board for Professional Educators Rule 5381; and

(ii) is under no obligation to work a regular schedule; and

(iii) is not under contract or written agreement to provide at least one period of long-term substitute coverage which is defined as 30 or more consecutive school days in the same assignment.

(iv) "School district" means town school districts, union school districts, interstate school districts, city school districts, unified union districts, and incorporated school districts, each of which is governed by a publicly elected board.

(v) "Supervisory district" means a supervisory union that consists of only one school district, which may be a unified union district.

(vi) "Supervisory union" means an administrative, planning, and educational service unit created by the State Board of Education under 16 VSA § 261 that consists of two or more school districts; if the context clearly allows, the term also means a supervisory district.

(F) an individual who is under 18 years of age.

(G) an individual that is either:

(i) a sole proprietor or partner owner of an unincorporated business who is excluded from the definition of employee under 21 VSA § 601(14)(F); or

(ii) an executive officer, manager, or member of a corporation or a limited liability company for whom the Commissioner has approved an exclusion from the provisions of chapter 9 of Title 21, pursuant to § 601(14)(H).

(H) an individual that:

(i) works on a per diem or intermittent basis; and

(ii) works only when he or she indicates that he or she is available to work; and

(iii) is under no obligation to work for the employer offering the work; and

(iv) has no expectation of continuing employment with the employer.

(8) "Employer" means any individual, organization, or governmental body, partnership, association, corporation, legal representative, trustee, receiver, trustee in bankruptcy, and any common carrier by rail, motor, water, air or express company doing business or operating within this state.

(9) "Foster child" mean a foster child, a stepchild, a legal ward, or a child for whom an employee has assumed the responsibilities of parenthood, and a child of an employee standing in loco parentis, as defined by 29 U.S.C. § 2611(12) and 29 C.F.R. §§ 825.122(c) and 825.800 .

(10) "Paid time off policy" means any policy under which the employer provides paid time off from work to the employee that includes a combination of one or more of the following:

(i) annual leave;

(ii) combined time off;

(iii) vacation leave;

(iv) personal leave;

(v) sick time; or

(vi) any similar type of leave.

(11) "Sexual Assault" has the same definition as in 15 V.S.A. § 1151.

(12) "Small Employer" means an employer who on January 1, 2017 has five or fewer employees who averaged 30 hours or more per week during the previous calendar year. Individuals working less than 30 hours per week shall not be counted when calculating the number of employees. A small employer is not subject to the requirements of the Act until January 1, 2018.

(13) "Stalking" has the same definition as in 15 V.S.A. § 1151.

Section 4 Eligibility to Earn Sick Time

(a) An employee is eligible to accrue and use earned sick time if the employee's primary place of work is in Vermont, regardless of the primary location of the employer.

(b) If an employee is eligible to accrue and use earned sick time, then all hours the employee works shall be applied toward accrual of earned sick time regardless of the location of the work. [1 ]

(c) An eligible employee who is permanently transferred to another state but remains with the same employer will no longer accrue earned sick time but may use any sick time already accrued.

Section 5 Accrual of Earned Sick Time

(a) Between January 1, 2017, and December 31, 2018, an employee shall accrue earned sick time on all hours worked at a rate of no less than one hour of earned sick time for every 52 hours worked, including overtime hours, of which a minimum of 24 hours shall be usable per annual period.

(b) After December 31, 2018, an employee shall accrue earned sick time on all hours worked at a rate of no less than one hour of earned sick time for every 52 hours worked, including overtime hours, of which a minimum of 40 hours shall be usable per annual period.

(c) An employer may allow the accrual of additional earned sick time in excess of the minimum amount.

(d) An employer shall not be required to track accrual balances in increments of less than one hour.

(e) An employee exempt from overtime requirements under The Fair Labor Standards Act ( 29 U.S.C. § 213(a)(1)) shall be assumed to work 40 hours in each work week for purposes of earned sick time accrual unless the job worked specifies a lower number of hours per week. In such cases, earned sick time shall accrue based on the specified number of hours worked per week.

(f) Adjunct faculty compensated on a fee-for-service or "per-course" basis shall be deemed to work 3 hours for each "classroom hour" worked.

(g) An employer shall be in compliance with this section if the employer provides the employee with at least the full amount of earned sick time required by subsections (a) and (b) of this section at the beginning of each annual period. If the employer provides an employee with the full amount of sick time at the beginning of each annual period, any unused earned sick time hours at the end of the annual period shall not carry over into the subsequent annual period.

(h) Except as otherwise provided in subsection (g) of this section and section seven of these rules, earned sick time that remains unused at the end of an annual period shall be carried over to the next annual period and the employee shall continue to accrue earned sick time at the same rate established in the Act. However, nothing in this subsection shall be construed to permit an employee to use more earned sick time during an annual period than any limit on the use of earned sick time that is established by his or her employer pursuant to the Act.

Section 6 Use of Earned Sick Time

(a) From January 1, 2017, to December 31, 2018, an employee has the right to use up to 24 hours of accrued earned sick time per annual period.

(b) Beginning January 1, 2019, an employee has the right to use up to 40 hours of accrued sick time per annual period.

(c) An employee may use earned sick time for the following:

(1) care for the employee's own physical or mental illness, injury, or medical condition that requires homecare, professional medical diagnosis or care, or preventative medical care, including diagnostic, preventive, routine, or therapeutic health treatment;

(2) care for the employee's parent, grandparent, spouse, child, brother, sister, parent- in-law, grandchild or foster child, who is suffering from a physical or mental illness, injury, or medical condition that requires home care, professional medical diagnosis or care, or preventative medical care;

(3) care for the employee's sick or injured parent, grandparent, spouse, child, brother, sister, parent-in-law, grandchild, or foster child, including helping that individual obtain diagnostic, preventive, routine, or therapeutic health treatment, or accompanying the employee's parent, grandparent, spouse, or parent-in-law to an appointment related to his or her long-term care. Routine healthcare treatment includes travel to and from an appointment, a pharmacy, or other location related to the purpose for which the time was taken.

(4) arranging for social or legal services or obtaining medical care or counseling for the employee or for the employee's parent, grandparent, spouse, child, brother, sister, parent-in-law, grandchild, or foster child, who is a victim of domestic violence, sexual assault, or stalking or who is relocating as the result of domestic violence, sexual assault, or stalking. "Domestic violence," "sexual assault," and "stalking" shall have the same meanings as in 15 V.S.A. § 1151.

(5) care for a parent, grandparent, spouse, child, brother, sister, parent-in-law, grandchild or foster child, because the school or business where that individual is normally located during the employee's workday is closed for public health or safety reasons. A "business" includes a care facility.

(d) An employer is not required to pay earned sick time and the employee shall not be charged for the use of earned sick time if the employee is not scheduled to be at work during the period of use.

(e) If an employee's absence is shorter than a normal workday, the employee shall use earned sick time in the smallest time increments that the employer's payroll system uses or that the employer's paid time off policy permits. Employers may limit the minimum use of earned sick time to one hour.

(f) An employer shall post notice of the provisions of the Act in a form provided by the Commissioner, and in a place conspicuous to an employee at the employer's place of business. An employer shall also notify an employee of the provisions of the Act at the time the employee is hired.

(g) An employer shall not require an employee to make up time off from work as a condition of using earned sick time. However, an employee and employer may by mutual agreement arrange for the employee to work additional hours during the same pay period to avoid the use of and payment for earned sick time.

(h) An employer shall not require an employee to find a replacement for the employee's absences for purposes authorized by the Act, including absences for professional diagnostic, preventive, routine, or therapeutic health care.

(i) If an employee is absent from work for one of the reasons listed in subsection (c) of this section, the employee shall not be required to use earned sick time and the employer will not be required to pay for the time that the employee was absent if the employer and the employee mutually agree that either:

(1) the employee will work an equivalent number of hours as the number of hours for which the employee is absent during the same pay period; or

(2) the employee will trade hours with a second employee so that the second employee works during the hours for which the employee is absent and the employee works an equivalent number of hours in place of the second employee during the same pay period.

(j) An employer may adopt a policy that requires an employee to use earned sick time for an absence from work for a reason listed in subsection (c) of this section.

Section 7 Payment of Earned Sick Time

(a) Earned sick time shall be paid on the same schedule and in the same paycheck as regular wages are paid. An employer shall not delay compensating an employee for earned sick time.

(b) An employer may pay an employee for any hours of unused earned sick time at the end of the annual period or when the employee leaves employment. If an employer chooses to pay unused sick time at the end of an annual period, then the sick time that is paid out shall not carry over into the subsequent annual period.

(c) An employee who voluntarily separates from employment without good cause attributable to the employer shall forfeit all accrued earned sick time and any accrued earned sick time shall not transfer if the employee is subsequently hired by another employer.

(d) An employer is not allowed to interrupt insurance benefits for an employee during the use of earned sick time. Group insurance benefits shall continue during the period an employee uses earned sick time at the same level and conditions that coverage would be provided for normal work hours. The employer may require that the employee contribute to the cost of the benefits during the use of earned sick time at the existing rate of employee contribution.

(e) If an employee is compensated on an hourly basis, the normal hourly rate means the amount that an employee is regularly paid for each hour of work.

(f) If an employee receives different pay rates for hourly work from the same employer, the normal hourly rate means either:

(1) the wages the employee would have been paid for the hours absent during use of earned sick time if the employee had worked; or

(2) the blended rate, determined by taking the weighted average of all regular rates of pay over the previous pay period, month, quarter or other established period of time the employer customarily uses to calculate blended rates for similar purposes.

(3) Regardless of the method the employer elects to determine the normal hourly rate, the employer shall use a consistent method for all his or her employees throughout an annual period.

(g) If an employee is paid a salary, the normal hourly rate means the employee's total earnings in the previous pay period divided by the total hours worked during the previous pay period. For determining total hours worked during the previous pay period, an employee who is exempt from overtime requirements under the Fair Labor Standards Act ( 29 U.S.C. § 213(a) (1)) , shall be presumed to work 40 hours each week unless his or her normal work week is less than 40 hours, in which case the normal hourly rate shall be calculated based on the employee's normal work week. Regardless of the basis used, the normal hourly rate shall not be less than the effective minimum wage established by 21 V.S.A. § 384.

(h) If an employee is paid on commission (whether base wage plus commission or commission only), the normal hourly rate means the greater of the base wage or the effective minimum wage established by 21 V.S.A. § 384.

(i) For a tipped employee who ordinarily receives the tipped wage rate under 21 V.S.A. § 384, the normal hourly rate means the non-tipped minimum wage rate established by 21 V.S.A. § 384.

(j) As used in this section, the normal hourly rate shall not include:

(1) sums paid as commissions, drawing accounts, bonuses, or other incentive pay based on sales or production;

(2) sums excluded under 29 U.S.C. § 207(e), including contributions irrevocably made by an employer to a trustee or third person pursuant to a bona fide plan for providing old-age, retirement, life, accident, or health insurance, and any other employee benefit plans; and

(3) overtime, holiday pay, or other premium rates. However, where an employee's regular hourly rate is a "differential rate," meaning a different wage rate paid for the same work performed under differing conditions (e.g. a night shift), the "differential rate" is not a premium.

Section 8 One Year Waiting Period

(a) A newly hired employee. An employee begins accruing earned sick time on the first date of actual work. An employer may require a waiting period for a newly hired employee of up to one year. During this waiting period, an employee shall accrue earned sick time pursuant to the Act, but an employer may prohibit the use of earned sick time until after the employee has completed the waiting period.

(b) An existing employee. An employer may require for an existing employee on January 1, 2017, a waiting period of up to one year. The waiting period shall begin on January 1, 2017, and shall end on or before December 31, 2017. During this waiting period, an employee shall accrue earned sick time but an employer may prohibit the use of earned sick time until after the employee has completed the waiting period.

(c) A small employer. A small employer need not comply with the Act until January 1, 2018. The waiting period for small employers shall begin on January 1, 2018, and shall end on or before December 31, 2018. During this waiting period, an employee shall accrue earned sick time but an employer may prohibit the use of earned sick time until after the employee has completed the waiting period.

(d) An employee who is discharged by his or her employer after he or she has completed a waiting period, and is subsequently rehired by the same employer within 12 months after the discharge from employment shall begin to accrue and may use earned sick time without a waiting period. However, the employee shall not be entitled to retain any earned sick time that accrued before the time of his or her discharge unless agreed to by the employer.

(e) An employee who is discharged prior to completing his or her waiting period and is subsequently rehired by the same employer within 12 months after the discharge from employment, shall have the same time remaining in his or her waiting period as on the date of discharge. [2 ]

(f) An employee that voluntarily separates from employment after he or she has completed a waiting period, and is subsequently rehired by the same employer within 12 months after the separation from employment shall not be entitled to use previously accrued sick time and may be required to begin a new waiting period unless waived by the employer.

Section 9 Notice of Use of Earned Sick Time

(a) An employer may require an employee planning to use earned sick time to make reasonable efforts to avoid scheduling routine or preventive health care during regular work hours, or to notify the employer as soon as practicable of the intent to take earned sick time and the expected duration of the employee's absence.

(b) An employer may require an employee to provide reasonable notice before using earned sick time.

(c) The notice required to be given for unforeseeable absences is what is reasonable under the circumstances, recognizing that there are certain situations such as accidents or sudden illness for which advance notice might be infeasible.

(d) For multi-day absences, an employer may require notification of the expected duration of the leave from the employee or the employee's surrogate (e.g. spouse, adult family member or other responsible party), unless the circumstances make such notice impracticable.

(e) An employer may require an employee to give notice in a manner the employee customarily uses to communicate with the employer for reporting absences or requesting leave.

(f) An employee who is required to give notice shall specify that he or she is using earned sick time.

(g) An employer may require an employee to provide reasonable proof that the employee's use of earned sick time is for one of the purposes allowed by the Act.

Section 10 Allow able Substitution of Employers' Paid Leave Policies

(a) An employer may have their own sick time or paid leave policies, as long as all employees can use at least the same amount of leave, for the same purposes, under the same conditions, and with the same job protections provided in the Act.

(b) An employer may have different paid leave policies for different groups of employees, as long as each policy meets the minimum requirements provided in the Act.

(c) An employer that provides paid time off in amounts consistent with the Act that also may be used as earned sick time shall not be required to provide additional sick time to an employee. [3 ]

(d) Nothing in these rules shall be construed to diminish an employer's obligation to comply with any collective bargaining agreement or paid time off policy that provides greater earned sick time rights than the rights provided by the Act.

(e) A collective bargaining agreement or paid time off policy may not diminish the rights provided by the Act.

Section 11 Retaliation Prohibited

(a) An employer shall not discharge or in any other manner retaliate against an employee because:

(1) the employee lodged a complaint of a violation of the Act;

(2) the employee has cooperated with the Commissioner in an investigation of a violation of the Act; or

(3) the employer believes that the employee may lodge a complaint or cooperate in an investigation of a violation of the Act.

(b) Notwithstanding subsection (a), an employer may discipline an employee for using his or her earned sick time for reasons not consistent with the Act.

Section 12 Recordkeeping and Disclosure

(a) An employer shall keep true and accurate records of the accrual and use of earned sick time pursuant to 21 V.S.A. § 393.

(b) An employer shall maintain such records for a period of three years and shall provide copies within 10 days upon demand by the Commissioner. An employee who requests his or her records shall be provided with a copy within 5 days and shall be allowed to inspect the original paper or electronic records at a reasonable time and place.

Section 13 Violations of the Earned Sick Time Law

(a) An employer who violates 21 V.S.A. § 482 or § 483 shall be fined not more than $ 5,000.00 per violation.

(b) An employee may file a complaint with the Commissioner in the manner prescribed by the Commissioner. The Commissioner shall investigate and enforce any violations in accordance with 21 V.S.A. § 342a.

(c) In addition to recovery of earned sick time pay, the Commissioner may assess a civil penalty of not more than $ 5,000.00 per violation.

Section 14 Severability of Provisions

If any provision of these rules or the application of such provision to any person or circumstances shall be held invalid, the remainder of these rules and the application of such provisions to persons or circumstances other than those as to which it is held invalid shall not be affected thereby.

Section 15 New Employers

(a) Notwithstanding any provision of the Act to the contrary, new employers shall not be subject to the provisions of the Act for a period of one year after the employer hires its first employee.

(b) For purposes of enforcement, an employer shall be presumed to be subject to the provisions of the Act unless the employer proves that a period of no more than one year elapsed between the date on which the employer hired its first employee and the date on which the employer is alleged to have violated the provisions of the Act.

(c) No employer shall transfer an employee to a second employer with whom there is, at the time of the transfer, substantially common ownership, management, or control for the purposes of either employer claiming an exemption pursuant to these rules.

Section 16 Effective Dates

These rules shall take effect on January 15, 2017.

Endnotes:

[1 ] For example, in a single year, an employee of a Vermont catering company works 550 hours in Vermont, 350 hours in New Hampshire and 200 hours in Maine. The caterer will accrue earned sick time on all 1,100 hours worked for the catering company.

[2 ] For example, if a person worked for eight months and was laid off and rehired two months later he or she will only have four months left until he or she has completed the waiting period.

[3 ] For example, a sporting goods store provides its employees with 40 hours of paid vacation time that can also be used as earned sick time, consistent with the Act. Does the store need to provide any separate sick time§ No. The sporting goods store does not need to provide additional sick time, but the store would be well advised to notify the employees that if they use all of their hours for vacation, there will be no additional paid sick time available.

History

• STATUTORY AUTHORITY: 21 V.S.A. § 487
• EFFECTIVE DATE: January 15, 2017 Secretary of State Rule Log #16-068

Subagency 050 VERMONT OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

Chapter 015 INCORPORATED BY REFERENCE ONLY

24-015 Code Vt. R. 24-050-015-X INCORPORATED BY REFERENCE ONLY

See 29 CFR (Code of Federal Regulations) Part 1910.146, or Contact the Department of Labor and Industry in Vermont, Vermont Occupational Safety and Health Review Board.

History

• Effective Date: June 7, 1993 (Secretary of State Rule Log #93-37)
• Amended Date: April 19, 2000 (Secretary of State Rule Log #00-25)
• Statutory Authority: 21 V.S.A. §§ 201(c)(2), 204(b) and 224(a)

Chapter 016 29 CFR 1904, UPDATES AND IMPROVEMENTS IN RECORDKEEPING

24-016 Code Vt. R. 24-050-016-X 29 CFR 1904, UPDATES AND IMPROVEMENTS IN RECORDKEEPING

PART NUMBER: 1904

PART TITLE: RECORDING AND REPORTING OCCUPATIONAL INJURIES AND ILLNESS

Subpart: D

Subpart Title: Other OSHA injury and Illness Recordkeeping Requirements

§ 1904.35 Employee involvement.

(a) Basic requirement. Your employees and their representatives must be involved in the recordkeeping system in several ways.

(1) You must inform each employee of how he or she is to report a work-related injury or illness to you.

(2) You must provide employees with the information described in paragraph (b)(1)(iii) of this section.

(3) You must provide access to your injury and illness records for your employees and their representatives as described in paragraph (b)(2) of this section.

(b) Implementation--

(1) What must I do to make sure that employees report work-related injuries and illnesses to me?

(i) You must establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness;

(ii) You must inform each employee of your procedure for reporting work-related injuries and illnesses;

(iii) You must inform each employee that:

(A) Employees have the right to report work-related injuries and illnesses; and

(B) Employers are prohibited from discharging or in any manner discriminating against employees for reporting work-related injuries or illnesses; and

(iv) You must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.

1904.35(b)(2)(i)

Who is an authorized employee representative? An authorized employee representative is an authorized collective bargaining agent of employees.

1904.35(b)(2)(ii)

Who is a "personal representative" of an employee or former employee? A personal representative is:

1904.35(b)(2)(ii)(A)

Any person that the employee or former employee designates as such, in writing; or

1904.35(b)(2)(ii)(B)

The legal representative of a deceased or legally incapacitated employee or former employee.

1904.35(b)(2)(iii)

If an employee or representative asks for access to the OSHA 300 Log, when do I have to provide it?

When an employee, former employee, personal representative, or authorized employee representative asks for copies of your current or stored OSHA 300 Log(s) for an establishment the employee or former employee has worked in, you must give the requester a copy of the relevant OSHA 300 Log(s) by the end of the next business day.

1904.35(b)(2)(iv)

May I remove the names of the employees or any other information from the OSHA 300 Log before I give copies to an employee, former employee, or employee representative? No, you must leave the names on the 300 Log. However, to protect the privacy of injured and ill employees, you may not record the employee's name on the OSHA 300 Log for certain "privacy concern cases," as specified in paragraphs 1904.29(b)(6) through 1904.29(b)(9).

1904.35(b)(2)(v)

If an employee or representative asks for access to the OSHA 301 Incident Report, when do I have to provide it?

1904.35(b)(2)(v)(A)

When an employee, former employee, or personal representative asks for a copy of the OSHA 301 Incident Report describing an injury or illness to that employee or former employee, you must give the requester a copy of the OSHA 301 Incident Report containing that information by the end of the next business day.

1904.35(b)(2)(v)(B)

When an authorized employee representative asks for a copies of the OSHA 301 Incident Reports for an establishment where the agent represents employees under a collective bargaining agreement, you must give copies of those forms to the authorized employee representative within 7 calendar days. You are only required to give the authorized employee representative information from the OSHA 301 Incident Report section titled "Tell us about the case." You must remove all other information from the copy of the OSHA 301 Incident Report or the equivalent substitute form that you give to the authorized employee representative.

1904.35(b)(2)(vi)

May I charge for the copies? No, you may not charge for these copies the first time they are provided. However, if one of the designated persons asks for additional copies, you may assess a reasonable charge for retrieving and copying the records.

§ 1904.36 Prohibition against Discrimination.

In addition to § 1904.35, section 11(c) of the OSH Act also prohibits you from discriminating against an employee for reporting a work-related fatality, injury, or illness. That provision of the Act also protects the employee who files a safety and health complaint, asks for access to the part 1904 records, or otherwise exercises any rights afforded by the OSH Act.

Subpart: E

Subpart Title: Reporting Fatality, Injury and Illness Information to the Government

§ 1904.41 Electronic submission of Employer Identification Number (EIN) and injury and illness records to OSHA.

1904.41(a)(1) Annual electronic submission of information from OSHA Form 300A Summary of Work- Related Injuries and Illnesses.

(i) If your establishment had 20-249 employees at any time during the previous calendar year, and your establishment is classified in an industry listed in appendix A to subpart E of this part, then you must electronically submit information from OSHA Form 300A Summary of WorkRelated Injuries and Illnesses to OSHA or OSHA's designee. You must submit the information once a year, no later than the date listed in paragraph (c) of this section of the year after the calendar year covered by the form.

(ii) If your establishment had 250 or more employees at any time during the previous calendar year, and this part requires your establishment to keep records, then you must electronically submit information from OSHA Form 300A Summary of Work-Related Injuries and Illnesses to OSHA or OSHA's designee. You must submit the information once a year, no later than the date listed in paragraph (c) of this section of the year after the calendar year covered by the form.

1904.41(a)(2)

Annual electronic submission of information from OSHA Form 300 Log of Work-Related Injuries and Illnesses and OSHA Form 301 Injury and Illness Incident Report by establishments with 100 or more employees in designated industries. If your establishment had 100 or more employees at any time during the previous calendar year, and your establishment is classified in an industry listed in appendix B to subpart E of this part, then you must electronically submit information from OSHA Forms 300 and 301 to OSHA or OSHA's designee. You must submit the information once a year, no later than the date listed in paragraph (c) of this section of the year after the calendar year covered by the forms.

1904.41(a)(3)

Electronic submission of part 1904 records upon notification. Upon notification, you must electronically submit the requested information from your part 1904 records to OSHA or OSHA's designee.

1904.41(a)(4)

Electronic submission of the Employer Identification Number (EIN). For each establishment that is subject to these reporting requirements, you must provide the EIN used by the establishment.

1904.41(b)

Implementation -

1904.41(b)(1) Does every employer have to routinely make an annual electronic submission of information from part 1904 injury and illness recordkeeping forms to OSHA? No, only three categories of employers must routinely submit information from these forms. The first category is establishments that had 20-249 employees at any time during the previous calendar year, and are classified in an industry listed in appendix A to this subpart; establishments in this category must submit the required information from Form 300A to OSHA once a year. The second category is establishments that had 250 or more employees at any time during the previous calendar year, and are required by this part to keep records; establishments in this category must submit the required information from Form 300A to OSHA once a year. The third category is establishments that had 100 or more employees at any time during the previous calendar year, and are classified in an industry listed in appendix B to this subpart; establishments in this category must also submit the required information from Forms 300 and 301 to OSHA once a year, in addition to the required information from Form 300A. Employers in these three categories must submit the required information by the date listed in paragraph (c) of this section of the year after the calendar year covered by the form (for example, 2024 for the 2023 form(s)). If your establishment is not in any of these three categories, then you must submit the information to OSHA only if OSHA notifies you to do so for an individual data collection.

1904.41(b)(2)

Do part-time, seasonal, or temporary workers count as employees in the criteria for number of employees in paragraph (a) of this section? Yes, each individual employed in the establishment at any time during the calendar year counts as one employee, including full-time, part-time, seasonal, and temporary workers.

1904.41(b)(3)

How will OSHA notify me that I must submit information as part of an individual data collection under paragraph (a)(3) of this section? OSHA will notify you by mail if you will have to submit information as part of an individual data collection under paragraph (a)(3). OSHA will also announce individual data collections through publication in the Federal Register and the OSHA newsletter, and announcements on the OSHA website. If you are an employer who must routinely submit the information, then OSHA will not notify you about your routine submittal.

1904.41(b)(4)

When do I have to submit the information? If you are required to submit information under paragraph (a)(1) or (2) of this section, then you must submit the information once a year, by the date listed in paragraph (c) of this section of the year after the calendar year covered by the form (for example, 2019 for the 2018 form). If you are submitting information because OSHA notified you to submit information as part of an individual data collection under paragraph (a)(3) of this section, then you must submit the information as specified in the notification.

1904.41(b)(5)

How do I submit the information? You must submit the information electronically. OSHA will provide a secure website for the electronic submission of information. For individual data collections under paragraph (a)(3) of this section, OSHA will include the website's location in the notification for the data collection.

1904.41(b)(6)

Do I have to submit information if my establishment is partially exempt from keeping OSHA injury and illness records? If you are partially exempt from keeping injury and illness records under §§ 1904.1 and/or 1904.2, then you do not have to routinely submit information under paragraphs (a)(1) and (2) of this section. You will have to submit information under paragraph (a)(3) of this section if OSHA informs you in writing that it will collect injury and illness information from you. If you receive such a notification, then you must keep the injury and illness records required by this part and submit information as directed.

1904.41(b)(7)

Do I have to submit information if I am located in a State Plan State? Yes, the requirements apply to employers located in State Plan States.

1904.41(b)(8)

May an enterprise or corporate office electronically submit information for its establishment(s)? Yes, if your enterprise or corporate office had ownership of or control over one or more establishments required to submit information under paragraph (a) of this section, then the enterprise or corporate office may collect and electronically submit the information for the establishment(s).

1904.41(b)(9)

If I have to submit information under paragraph (a)(2) of this section, do I have to submit all of the information from the recordkeeping forms? No, you are required to submit all of the information from the forms except the following:

(i) Log of Work-Related Injuries and Illnesses (OSHA Form 300): Employee name (column B).

(ii) Injury and Illness Incident Report (OSHA Form 301): Employee name (field 1), employee address (field 2), name of physician or other health care professional (field 6), facility name and address if treatment was given away from the worksite (field 7).

1904.41(b)(10)

My company uses numbers or codes to identify our establishments. May I use numbers or codes as the establishment name in my submission? Yes, you may use numbers or codes as the establishment name. However, the submission must include a legal company name, either as part of the establishment name or separately as the company name.

1904.41(c) Reporting dates.

(c) Establishments that are required to submit under paragraph (a)(1) or (2) of this section must submit all of the required information by March 2 of the year after the calendar year covered by the form(s) (for example, by March 2, 2024, for the forms covering 2023).

Appendix A to Subpart E of Part 1904--

Designated Industries for § 1904.41(a)(1)(i) Annual Electronic Submission of Information From OSHA Form 300A Summary of Work-Related Injuries and Illnesses by Establishments With 20-249 Employees in Designated Industries

NAICS Industry

11 Agriculture, Forestry, Fishing and Hunting.

22 Utilities.

23 Construction.

31-33 Manufacturing.

42 Wholesale Trade.

4413 Automotive Parts, Accessories, and Tire Stores.

4421 Furniture Stores.

4422 Home Furnishings Stores.

4441 Building Material and Supplies Dealers.

4442 Lawn and Garden Equipment and Supplies Stores.

4451 Grocery Stores.

4452 Specialty Food Stores.

4522 Department Stores.

4523 General Merchandise Stores, including Warehouse Clubs and Supercenters.

4533 Used Merchandise Stores.

4542 Vending Machine Operators.

4543 Direct Selling Establishments.

4811 Scheduled Air Transportation.

4841 General Freight Trucking.

4842 Specialized Freight Trucking.

4851 Urban Transit Systems.

4852 Interurban and Rural Bus Transportation.

4853 Taxi and Limousine Service.

4854 School and Employee Bus Transportation.

4855 Charter Bus Industry.

4859 Other Transit and Ground Passenger Transportation.

4871 Scenic and Sightseeing Transportation, Land.

4881 Support Activities for Air Transportation.

4882 Support Activities for Rail Transportation.

4883 Support Activities for Water Transportation.

4884 Support Activities for Road Transportation.

4889 Other Support Activities for Transportation.

4911 Postal Service.

4921 Couriers and Express Delivery Services.

4922 Local Messengers and Local Delivery.

4931 Warehousing and Storage.

5152 Cable and Other Subscription Programming.

5311 Lessors of Real Estate.

5321 Automotive Equipment Rental and Leasing.

5322 Consumer Goods Rental.

5323 General Rental Centers.

5617 Services to Buildings and Dwellings.

5621 Waste Collection.

5622 Waste Treatment and Disposal.

5629 Remediation and Other Waste Management Services.

6219 Other Ambulatory Health Care Services.

6221 General Medical and Surgical Hospitals.

6222 Psychiatric and Substance Abuse Hospitals.

6223 Specialty (except Psychiatric and Substance Abuse) Hospitals.

6231 Nursing Care Facilities (Skilled Nursing Facilities).

6232 Residential Intellectual and Developmental Disability, Mental Health, and Substance Abuse Facilities.

6233 Continuing Care Retirement Communities and Assisted Living Facilities for the Elderly

6239 Other Residential Care Facilities.

6242 Community Food and Housing, and Emergency and Other Relief Services.

6243 Vocational Rehabilitation Services.

7111 Performing Arts Companies.

7112 Spectator Sports.

7121 Museums, Historical Sites, and Similar Institutions.

7131 Amusement Parks and Arcades.

7132 Gambling Industries.

7211 Traveler Accommodation.

7212 RV (Recreational Vehicle) Parks and Recreational Camps.

7223 Special Food Services.

8113 Commercial and Industrial Machinery and Equipment (except Automotive and Electronic) Repair and Maintenance.

8123 Drycleaning and Laundry Services.

Appendix B to Subpart E of Part 1904--

Designated Industries for § 1904.41(a)(2) Annual Electronic Submission of Information From OSHA Form 300 Log of Work-Related Injuries and Illnesses and OSHA Form 301 Injury and Illness Incident Report by

Establishments With 100 or More Employees in Designated Industries NAICS Industry

1111 Oilseed and Grain Farming.

1112 Vegetable and Melon Farming.

1113 Fruit and Tree Nut Farming.

1114 Greenhouse, Nursery, and Floriculture Production.

1119 Other Crop Farming.

1121 Cattle Ranching and Farming.

1122 Hog and Pig Farming.

1123 Poultry and Egg Production.

1129 Other Animal Production.

1133 Logging.

1141 Fishing.

1142 Hunting and Trapping.

1151 Support Activities for Crop Production.

1152 Support Activities for Animal Production.

1153 Support Activities for Forestry.

2213 Water, Sewage and Other Systems.

2381 Foundation, Structure, and Building Exterior Contractors.

3111 Animal Food Manufacturing.

3113 Sugar and Confectionery Product Manufacturing.

3114 Fruit and Vegetable Preserving and Specialty Food Manufacturing.

3115 Dairy Product Manufacturing.

3116 Animal Slaughtering and Processing.

3117 Seafood Product Preparation and Packaging.

3118 Bakeries and Tortilla Manufacturing.

3119 Other Food Manufacturing.

3121 Beverage Manufacturing.

3161 Leather and Hide Tanning and Finishing.

3162 Footwear Manufacturing.

3211 Sawmills and Wood Preservation.

3212 Veneer, Plywood, and Engineered Wood Product Manufacturing.

3219 Other Wood Product Manufacturing.

3261 Plastics Product Manufacturing.

3262 Rubber Product Manufacturing.

3271 Clay Product and Refractory Manufacturing.

3272 Glass and Glass Product Manufacturing.

3273 Cement and Concrete Product Manufacturing.

3279 Other Nonmetallic Mineral Product Manufacturing.

3312 Steel Product Manufacturing from Purchased Steel.

3314 Nonferrous Metal (except Aluminum) Production and Processing.

3315 Foundries.

3321 Forging and Stamping.

3323 Architectural and Structural Metals Manufacturing.

3324 Boiler, Tank, and Shipping Container Manufacturing.

3325 Hardware Manufacturing.

3326 Spring and Wire Product Manufacturing.

3327 Machine Shops; Turned Product; and Screw, Nut, and Bolt Manufacturing.

3328 Coating, Engraving, Heat Treating, and Allied Activities.

3331 Agriculture, Construction, and Mining Machinery Manufacturing.

3335 Metalworking Machinery Manufacturing.

3361 Motor Vehicle Manufacturing.

3362 Motor Vehicle Body and Trailer Manufacturing.

3363 Motor Vehicle Parts Manufacturing.

3366 Ship and Boat Building.

3371 Household and Institutional Furniture and Kitchen Cabinet Manufacturing.

3372 Office Furniture (including Fixtures) Manufacturing.

3379 Other Furniture Related Product Manufacturing.

4231 Motor Vehicle and Motor Vehicle Parts and Supplies Merchant Wholesalers.

4233 Lumber and Other Construction Materials Merchant Wholesalers.

4235 Metal and Mineral (except Petroleum) Merchant Wholesalers.

4239 Miscellaneous Durable Goods Merchant Wholesalers.

4244 Grocery and Related Product Merchant Wholesalers.

4248 Beer, Wine, and Distilled Alcoholic Beverage Merchant Wholesalers.

4413 Automotive Parts, Accessories, and Tire Stores.

4422 Home Furnishings Stores.

4441 Building Material and Supplies Dealers.

4442 Lawn and Garden Equipment and Supplies Stores.

4451 Grocery Stores.

4522 Department Stores.

4523 General Merchandise Stores, including Warehouse Clubs and Supercenters.

4533 Used Merchandise Stores.

4543 Direct Selling Establishments.

4811 Scheduled Air Transportation.

4841 General Freight Trucking.

4842 Specialized Freight Trucking.

4851 Urban Transit Systems.

4852 Interurban and Rural Bus Transportation.

4853 Taxi and Limousine Service.

4854 School and Employee Bus Transportation.

4859 Other Transit and Ground Passenger Transportation.

4871 Scenic and Sightseeing Transportation, Land.

4881 Support Activities for Air Transportation.

4883 Support Activities for Water Transportation.

4889 Other Support Activities for Transportation.

4911 Postal Service.

4921 Couriers and Express Delivery Services.

4931 Warehousing and Storage.

5322 Consumer Goods Rental.

5621 Waste Collection.

5622 Waste Treatment and Disposal.

6219 Other Ambulatory Health Care Services.

6221 General Medical and Surgical Hospitals.

6222 Psychiatric and Substance Abuse Hospitals.

6223 Specialty (except Psychiatric and Substance Abuse) Hospitals.

6231 Nursing Care Facilities (Skilled Nursing Facilities).

6232 Residential Intellectual and Developmental Disability, Mental Health, and Substance Abuse Facilities.

6233 Continuing Care Retirement Communities and Assisted Living Facilities for the Elderly.

6239 Other Residential Care Facilities.

6243 Vocational Rehabilitation Services.

7111 Performing Arts Companies.

7112 Spectator Sports.

7131 Amusement Parks and Arcades.

7211 Traveler Accommodation.

7212 RV (Recreational Vehicle) Parks and Recreational Camps.

7223 Special Food Services.

History

• EFFECTIVE DATE:
• 1995
• AMENDED:
• December 17, 2001 Secretary of State Rule Log #01-68; February 7, 2003 Secretary of State Rule Log #03-02; September 10, 2015 Secretary of State Rule Log #15-037; September 12, 2017 Secretary of State Rule Log #17-053; February 24, 2021 Secretary of State Rule Log #21-002; 8/1/2024 Secretary of State Rule Log #24-028
• STATUTORY AUTHORITY: 21 V.S.A. §§ 201, 204, 224

Chapter 017 PERSONAL PROTECTIVE EQUIPMENT 29 CFR PARTS 1910, 1915, AND 1926

24-017 Code Vt. R. 24-050-017-X PERSONAL PROTECTIVE EQUIPMENT 29 CFR PARTS 1910, 1915, AND 1926

Incorporated by reference. See 29 CFR (Code of Federal Regulations) Parts 1910, 1915, and 1926, or contact the Department of Labor, Vermont Occupational Safety and Health Review Board.

History

• STATUTORY AUTHORITY: 21 V.S.A. §§ 204, 224
• EFFECTIVE DATE: January 1, 1995 Secretary of State Rule Log #95-002
• AMENDED: July 2007 non-substantive correction; June 10, 2008 Secretary of State Rule Log #08-020; September 16, 2009 Secretary of State Rule Log #09-027; November 11, 2014 Secretary of State Rule Log #14-040

Chapter 018 VOSHA RULE 29 CFR PARTS 1910 AND 1926 HAZARDOUS WASTE OPERATION AND EMERGENCY RESPONSE, FINAL RULE

24-018 Code Vt. R. 24-050-018-X VOSHA RULE 29 CFR PARTS 1910 AND 1926 HAZARDOUS WASTE OPERATION AND EMERGENCY RESPONSE, FINAL RULE

Chapter 019 CADMIUM (29 CFR 1910.19; 1910.1000; 1910.1027; 1926.63 INCORPORATED BY REFERENCE)

24-019 Code Vt. R. 24-050-019-X CADMIUM (29 CFR 1910.19; 1910.1000; 1910.1027; 1926.63 INCORPORATED BY REFERENCE)

Part Number: 1910

Part Number Title: Occupational Safety and Health Standards

Subpart: 1910 Subpart B

Subpart Title: Adoption and Extension of Established Federal Standards

Standard Number: 1910.19

Title: Special provisions for air contaminants.

Part Number: 1910

Part Number Title: Occupational Safety and Health Standards

Subpart: 1910 Subpart Z

Subpart Title: Toxic and Hazardous Substances

Standard Number: 1910.1000

Title: Air contaminants.

Part Number: 1910

Part Number Title: Occupational Safety and Health Standards

Subpart: 1910 Subpart Z

Subpart Title: Toxic and Hazardous Substances

Standard Number: 1910.1027

Title: Cadmium

Appendix: ABCDEF

Part Number: 1926

Part Number Title: Safety and Health Regulations for Construction

Subpart: 1926 Subpart Z

Subpart Title: Toxic and Hazardous Substances

Standard Number: 1926.1127 (formerly 1926.63)

Title: Cadmium

Appendix: ABCDEF

History

• EFFECTIVE DATE:
• March 23, 1993 Secretary of State Rule Log #93-019
• AMENDED:
• November 19, 1993 Secretary of State Rule Log #93-030; March 13, 1995 Secretary of State Rule Log #95-019; February 2019 [Renumbered from 13 140 049]
• STATUTORY AUTHORITY: 18 V.S.A. § 1417(2); 21 V.S.A. § 224(b)

Chapter 021 RULES PERTAINING TO VOSHA - RETENTION OF DOT MARKINGS, PLACARDS AND LABELS

24-021 Code Vt. R. 24-050-021-X RULES PERTAINING TO VOSHA - RETENTION OF DOT MARKINGS, PLACARDS AND LABELS

Incorporated by reference. See 29 CFR (Code of Federal Regulations) Parts 1910.1201, 1926.61 and 1928.21, or contact the Department of Labor, Vermont Occupational Safety and Health Review Board.

History

• EFFECTIVE DATE: July 11, 1995 Secretary of State Rule Log # 95-042
• AMENDED: July 2007 non-substantive correction

Chapter 022 SUBPART Z; OCCUPATIONAL EXPOSURE TO RESPIRABLE CRYSTALLINE SILICA IN GENERAL INDUSTRY (CFR 1910.1053 INCORPORATED BY REFERENCE)

24-022 Code Vt. R. 24-050-022-X SUBPART Z; OCCUPATIONAL EXPOSURE TO RESPIRABLE CRYSTALLINE SILICA IN GENERAL INDUSTRY (CFR 1910.1053 INCORPORATED BY REFERENCE)

-- Part Number: 1910

-- 7 Part Title: Occupational Safety and Health Standards

-- Subpart: z

-- Subpart Title: Toxic and Hazardous Substances

-- Standard Number: 1910.1053

-- Title: Respirable crystalline silica.

History

• EFFECTIVE DATE:
• Original effective date not provided.
• AMENDED:
• June 14, 2017 Secretary of State Rule Log #17-031
• STATUTORY AUTHORITY: None provided.

Chapter 022A SUBPART Z; OCCUPATIONAL EXPOSURE TO RESPIRABLE CRYSTALLINE SILICA IN MARITIME INDUSTRY (CFR 1910.1053; 1915.1053, 1926.1153 INCORPORATED BY REFERENCE)

24-022A Code Vt. R. 24-050-022A-X SUBPART Z; OCCUPATIONAL EXPOSURE TO RESPIRABLE CRYSTALLINE SILICA IN MARITIME INDUSTRY (CFR 1910.1053; 1915.1053, 1926.1153 INCORPORATED BY REFERENCE)

-- Part Number: 1915

-- Part Title: Occupational Safety and Health Standards for Shipyard Employment

-- Subpart: Z

-- Subpart Title: Toxic and Hazardous Substances

-- Standard Number: 1915.1053

-- Title: Respirable crystalline silica.

History

• EFFECTIVE DATE:
• Original effective date not provided.
• AMENDED:
• June 14, 2017 Secretary of State Rule Log #17-032
• STATUTORY AUTHORITY: None provided.

Chapter 022B SUBPART Z; OCCUPATIONAL EXPOSURE TO RESPIRABLE CRYSTALLINE SILICA IN CONSTRUCTION (CFR 1926.1153 INCORPORATED BY REFERENCE)

24-022B Code Vt. R. 24-050-022B-X SUBPART Z; OCCUPATIONAL EXPOSURE TO RESPIRABLE CRYSTALLINE SILICA IN CONSTRUCTION (CFR 1926.1153 INCORPORATED BY REFERENCE)

-- Part Number: 1926

-- Part Title: Safety and Health Regulations for Construction

-- Subpart: z

-- Subpart Title: Toxic and Hazardous Substances

-- Standard Number: 1926.1153

-- Title: Respirable crystalline silica.

History

• EFFECTIVE DATE:
• Original effective date not provided.
• AMENDED:
• June 14, 2017 Secretary of State Rule Log #17-030
• STATUTORY AUTHORITY: None provided.

Chapter 023 RULES PERTAINING TO VOSHA - LOGGING OPERATIONS

24-023 Code Vt. R. 24-050-023-X RULES PERTAINING TO VOSHA - LOGGING OPERATIONS

Incorporated by reference. See 29 CFR (Code of Federal Regulations) Part 1910.266, or contact the Department of Labor, Vermont Occupational Safety and Health Review Board. 21 V.S.A. §§ 204, 210, 224

History

• EFFECTIVE DATE: February 3, 1996 Secretary of State Rule Log # 96-006
• AMENDED: July 2007 non-substantive correction

Chapter 024 VOSHA RULE, 29 CFR PARTS 1910 AND 1926: RESPIRATORY PROTECTION

24-024 Code Vt. R. 24-050-024-X VOSHA RULE, 29 CFR PARTS 1910 AND 1926: RESPIRATORY PROTECTION

Incorporated by reference only. For a copy, see 29 CFR Parts 1910 and 1926 excluding section 1910.139 or contact Vermont Occupational Safety and Health Review Board, Vermont Department of Labor.

History

• EFFECTIVE DATE: 1996 Secretary of State Rule Log #96-76
• AMENDED: August 12, 1998 Secretary of State Rule Log #98-61; December 1, 2004 Secretary of State Rule Log #04-39; July 14, 2007 Secretary of State Rule Log #07-25
• STATUTORY AUTHORITY: 18 V.S.A. § 1417; 21 V.S.A. §§ 204(b), 224

Chapter 025 RULES PERTAINING TO VOSHA, 29 CFR PARTS 1903.19, ABATEMENT VERIFICATION

24-025 Code Vt. R. 24-050-025-X RULES PERTAINING TO VOSHA, 29 CFR PARTS 1903.19, ABATEMENT VERIFICATION

History

• Effective Date: 1999 (Secretary of State Rule Log #99-4)
• Statutory Authority: 21 V.S.A. §§ 201, 204, 224

Chapter 026 RULES PERTAINING TO VOSHA POWERED INDUSTRIAL TRUCK OPERATOR TRAINING; FINAL RULE

24-026 Code Vt. R. 24-050-026-X RULES PERTAINING TO VOSHA POWERED INDUSTRIAL TRUCK OPERATOR TRAINING; FINAL RULE

INCORPORATED BY REFERENCE ONLY

See 29 CFR (Code of Federal Regulations) Part 1910.178, or Contact the Department of Labor and Industry in Vermont, Vermont Occupational Safety and Health Review Board.

History

• Effective Date: [In effect. First effective date not available.]
• Amended Date: April 19, 2000 (Secretary of State Rule Log #00-24)
• Statutory Authority: 21 V.S.A. §§ 201(c)(2), 204(b) and 224(a)

Chapter 027 RULES PERTAINING TO VOSHA SAFETY STANDARDS FOR SCAFFOLDS USED IN CONSTRUCTION INDUSTRY

24-027 Code Vt. R. 24-050-027-X RULES PERTAINING TO VOSHA SAFETY STANDARDS FOR SCAFFOLDS USED IN CONSTRUCTION INDUSTRY

History

• Effective Date: 1999 (Secretary of State Rule Log #99-4)
• Statutory Authority: 21 V.S.A. §§ 201, 204, 224

Chapter 032 VOSHA STEEL ERECTION STANDARD (1926 SUBPART R-INCORPORATED BY REFERENCE)

24-032 Code Vt. R. 24-050-032-X VOSHA STEEL ERECTION STANDARD (1926 SUBPART R-INCORPORATED BY REFERENCE)

Incorporated by reference only. For a copy, see 29 CFR 1926 Subpart R, or contact VOSHA, Vermont Department of Labor and Industry

History

• EFFECTIVE DATE:
• Original effective date not provided.
• AMENDED:
• December 10, 2002 Secretary of State Rule Log #02-51; February 20, 2016 Secretary of State Rule Log #16-002
• STATUTORY AUTHORITY: 21 V.S.A. § 204, 224

Chapter 033 VOSHA RULE: EXIT ROUTES, EMERGENCY ACTION PLANS AND FIRE PREVENTION PLANS

24-033 Code Vt. R. 24-050-033-X VOSHA RULE: EXIT ROUTES, EMERGENCY ACTION PLANS AND FIRE PREVENTION PLANS

Incorporated by reference only. For a copy, see 29 CFR Part 1910 or contact VOSHA, Vermont Department of Labor and Industry. 21 V.S.A. § 204(b)

History

• EFFECTIVE DATE: June 1, 2004 Secretary of State Rule Log # 04-19

Chapter 034 HEXAVALENT CHROMIUM (CHROMIUM VI)

24-034 Code Vt. R. 24-050-034-X HEXAVALENT CHROMIUM (CHROMIUM VI)

See Code of Federal Regulations: 29 C.F.R. §§ 1910.1026 and 1926.1126

History

• STATUTORY AUTHORITY: 21 V.S.A. §§ 204, 224
• EFFECTIVE DATE: November 6, 2006 Secretary of State Rule Log #06-034
• AMENDED: August 29, 2014 Secretary of State Rule Log #14-027 [1910.1026 (d)(4) and 1926.1126 (d)(4)]

Chapter 035 CRANES AND DERRICKS IN CONSTRUCTION (29 CFR 1926)

24-035 Code Vt. R. 24-050-035-X CRANES AND DERRICKS IN CONSTRUCTION (29 CFR 1926)

Incorporated by reference. See the parts and sections indicated of the Code of Federal Regulations or contact the Department of labor, Vermont Occupational Safety and Health Review Board.

29 CFR 1926 Subpart T.

Section 1926. 800

Section 1926. 856

Section 1926. 858

29 CFR 1926 Subpart CC.

Subpart CC, Sections 1926.1400 to 1926.1442 and appendices A, B, and C to Subpart CC of Part 1926.

History

• EFFECTIVE DATE:
• March 17, 2011 Secretary of State Rule Log #11-015
• AMENDED:
• May 15, 2015 Secretary of State Rule Log #15-014; January 4, 2020 Secretary of State Rule Log #19-074 [Amendment to §§ 1926.1427 and 1926.1430 ]
• STATUTORY AUTHORITY: 21 V.S.A. §§ 204, 224

Chapter 036 29 CFR PART 1915 STANDARDS FOR SHIPYARD EMPLOYMENT

24-036 Code Vt. R. 24-050-036-X 29 CFR PART 1915 STANDARDS FOR SHIPYARD EMPLOYMENT

Incorporated by reference. See the parts and sections indicated of the Code of Federal Regulations or contact the Department of Labor, Vermont Occupational Safety and Health Review Board.

This standard is available on the US Department of Labor, Occupational Safety and Health Administration website at the following link.

http://www.osha.gov/pls/oshaweb/owasrch.search form?p doc tvpe=STANDARDS&p toc level=1 &p keyvalue=1915

History

• STATUTORY AUTHORITY: 21 VSA §§ 204, 224
• EFFECTIVE DATE: February 24, 2012 Secretary of State Rule Log #12-004
• AMENDED: May 6, 2016 Secretary of State Rule Log #16-014

Chapter 037 VOSHA RULE: GLOBALLY HARMONIZED SYSTEM (GHS) OF CLASSIFICATION AND LABELING OF CHEMICALS CFR section 1900.1200 (INCORPORATED BY REFERENCE ONLY)

24-037 Code Vt. R. 24-050-037-X VOSHA RULE: GLOBALLY HARMONIZED SYSTEM (GHS) OF CLASSIFICATION AND LABELING OF CHEMICALS CFR section 1900.1200 (INCORPORATED BY REFERENCE ONLY)

History

• STATUTORY AUTHORITY: 21 VSA §§ 204, 224
• EFFECTIVE DATE: July 1984
• AMENDED: October 12, 2012 Secretary of State Rule Log #12-035 [amended and moved from Department of Health (13 140 053)]

Chapter 038 ACETYLENE (29 CFR 1910.102)

24-038 Code Vt. R. 24-050-038-X ACETYLENE (29 CFR 1910.102)

See Code of Federal Regulations: 29 C.F.R. § 1910.102.

History

• STATUTORY AUTHORITY: 21 V.S.A. §§ 204, 224
• EFFECTIVE DATE: June 1996
• AMENDED: August 29, 2014 Secretary of State Rule Log #14-028

Chapter 039 PART 1928 - OCCUPATIONAL SAFETY AND HEALTH STANDARDS FOR AGRICULTURE

24-039 Code Vt. R. 24-050-039-X PART 1928 - OCCUPATIONAL SAFETY AND HEALTH STANDARDS FOR AGRICULTURE

See Code of Federal Regulations: 29 C.F.R. Part 1928.

History

• STATUTORY AUTHORITY: 21 V.S.A. §§ 204, 224
• EFFECTIVE DATE: August 22, 2015 Secretary of State Rule Log #15-033

Chapter 040 29 CFR 1910.1024 OCCUPATIONAL EXPOSURE TO BERYLLIUM IN GENERAL INDUSTRY (INCORPORATED BY REFERENCE)

24-040 Code Vt. R. 24-050-040-X 29 CFR 1926.1124, 29 CFR 1915.1024; UPDATES TO THE BERYLLIUM STANDARD FOR THE CONSTRUCTION AND SHIPYARD INDUSTRY (INCORPORATED BY REFERENCE)

1926.1124 Beryllium In Construction.

1926.1124(a) Scope and application.

1926.1124(a)(1) This standard applies to occupational exposure to beryllium in all forms, compounds, and mixtures in construction, except those articles and materials exempted by paragraphs (a)(2) and (a)(3) of this standard.

1926.1124(a)(2) This standard does not apply to articles, as defined in the Hazard Communication standard (HCS) (29 CFR 1910.1200(c)), that contain beryllium and that the employer does not process.

1926.1124(a)(3) This standard does not apply to materials containing less than 0.1% beryllium by weight where the employer has objective data demonstrating that employee exposure to beryllium will remain below the action level as an 8-hour TWA under any foreseeable conditions.

1926.1124(b) Definitions. As used in this standard:

Action level means a concentration of airborne beryllium of 0.1 micrograms per cubic meter of air (g/m [3]) calculated as an 8-hour time-weighted average (TWA).

Airborne exposure and airborne exposure to beryllium mean the exposure to airborne beryllium that would occur if the employee were not using a respirator.

Assistant Secretary means the Assistant Secretary of Labor for Occupational Safety and Health, United States Department of Labor, or designee.

Beryllium lymphocyte proliferation test (BeLPT) means the measurement of blood lymphocyte proliferation in a laboratory test when lymphocytes are challenged with a soluble beryllium salt.

Beryllium sensitization means a response in the immune system of a specific individual who has been exposed to beryllium. There are no associated physical or clinical symptoms and no illness or disability with beryllium sensitization alone, but the response that occurs through beryllium sensitization can enable the immune system to recognize and react to beryllium. While not every beryllium-sensitized person will develop chronic beryllium disease (CBD), beryllium sensitization is essential for development of CBD.

CBD diagnostic center means a medical diagnostic center that has a pulmonologist or pulmonary specialist on staff and on-site facilities to perform a clinical evaluation for the presence of chronic beryllium disease (CBD). The CBD diagnostic center must have the capacity to perform pulmonary function testing (as outlined by the American Thoracic Society criteria), bronchoalveolar lavage (BAL), and transbronchial biopsy. The CBD diagnostic center must also have the capacity to transfer BAL samples to a laboratory for appropriate diagnostic testing within 24 hours. The pulmonologist or pulmonary specialist must be able to interpret the biopsy pathology and the BAL diagnostic test results.

Chronic beryllium disease (CBD) means a chronic granulomatous lung disease caused by inhalation of airborne beryllium by an individual who is beryllium sensitized.

Competent person means an individual who is capable of identifying existing and foreseeable beryllium hazards in the workplace and who has authorization to take prompt corrective measures to eliminate or minimize them. The competent person must have the knowledge, ability, and authority necessary to fulfill the responsibilities set forth in paragraph (e) of this standard.

Confirmed positive means the person tested has had two abnormal BeLPT test results, an abnormal and a borderline test result, or three borderline test results, obtained from tests conducted within a three-year period. It also means the result of a more reliable and accurate test indicating a person has been identified as having beryllium sensitization.

Director means the Director of the National Institute for Occupational Safety and Health (NIOSH), U.S. Department of Health and Human Services, or designee.

Objective data means information, such as air monitoring data from industry-wide surveys or calculations based on the composition of a substance, demonstrating airborne exposure to beryllium associated with a particular product or material or a specific process, task, or activity. The data must reflect workplace conditions closely resembling or with a higher airborne exposure potential than the processes, types of material, control methods, work practices, and environmental conditions in the employer's current operations.

Physician or other licensed health care professional (PLHCP) means an individual whose legally permitted scope of practice (i.e., license, registration, or certification) allows the individual to independently provide or be delegated the responsibility to provide some or all of the health care services required by paragraph (k) of this standard.

This standard means this beryllium standard, 29 CFR 1926.1124.

1926.1124(c) Permissible Exposure Limits (PELs) --

1926.1124(c)(1) Time-weighted average (TWA) PEL. The employer must ensure that no employee is exposed to an airborne concentration of beryllium in excess of 0.2 g/m3 calculated as an 8-hour TWA.

1926.1124(c)(2) Short-term exposure limit (STEL). The employer must ensure that no employee is exposed to an airborne concentration of beryllium in excess of 2.0 g/m 3 as determined over a sampling period of 15 minutes.

1926.1124(d) Exposure assessment --

1926.1124(d)(1) General. The employer must assess the airborne exposure of each employee who is or may reasonably be expected to be exposed to airborne beryllium in accordance with either the performance option in paragraph (d)(2) or the scheduled monitoring option in paragraph (d)(3) of this standard.

1926.1124(d)(2) Performance option. The employer must assess the 8-hour TWA exposure and the 15-minute short-term exposure for each employee on the basis of any combination of air monitoring data and objective data sufficient to accurately characterize airborne exposure to beryllium.

1926.1124(d)(3) Scheduled monitoring option.

1926.1124(d)(3)(i) The employer must perform initial monitoring to assess the 8-hour TWA exposure for each employee on the basis of one or more personal breathing zone air samples that reflect the airborne exposure of employees on each shift, for each job classification, and in each work area.

1926.1124(d)(3)(ii) The employer must perform initial monitoring to assess the short-term exposure from 15-minute personal breathing zone air samples measured in operations that are likely to produce airborne exposure above the STEL for each work shift, for each job classification, and in each work area.

1926.1124(d)(3)(iii) Where several employees perform the same tasks on the same shift and in the same work area, the employer may sample a representative fraction of these employees in order to meet the requirements of this paragraph (d)(3). In representative sampling, the employer must sample the employee(s) expected to have the highest airborne exposure to beryllium.

1926.1124(d)(3)(iv) If initial monitoring indicates that airborne exposure is below the action level and at or below the STEL, the employer may discontinue monitoring for those employees whose airborne exposure is represented by such monitoring.

1926.1124(d)(3)(v) Where the most recent exposure monitoring indicates that airborne exposure is at or above the action level but at or below the TWA PEL, the employer must repeat such monitoring within six months of the most recent monitoring.

1926.1124(d)(3)(vi) Where the most recent exposure monitoring indicates that airborne exposure is above the TWA PEL, the employer must repeat such monitoring within three months of the most recent 8-hour TWA exposure monitoring.

1926.1124(d)(3)(vii) Where the most recent (non-initial) exposure monitoring indicates that airborne exposure is below the action level, the employer must repeat such monitoring within six months of the most recent monitoring until two consecutive measurements, taken 7 or more days apart, are below the action level, at which time the employer may discontinue 8-hour TWA exposure monitoring for those employees whose exposure is represented by such monitoring, except as otherwise provided in paragraph (d)(4) of this standard.

1926.1124(d)(3)(viii) Where the most recent exposure monitoring indicates that airborne exposure is above the STEL, the employer must repeat such monitoring within three months of the most recent short-term exposure monitoring until two consecutive measurements, taken 7 or more days apart, are below the STEL, at which time the employer may discontinue short-term exposure monitoring for those employees whose exposure is represented by such monitoring, except as otherwise provided in paragraph (d)(4) of this standard.

1926.1124(d)(4) Reassessment of exposure. The employer must reassess airborne exposure whenever a change in the production, process, control equipment, personnel, or work practices may reasonably be expected to result in new or additional airborne exposure at or above the action level or STEL, or when the employer has any reason to believe that new or additional airborne exposure at or above the action level or STEL has occurred.

1926.1124(d)(5) Methods of sample analysis. The employer must ensure that all air monitoring samples used to satisfy the monitoring requirements of paragraph (d) of this standard are evaluated by a laboratory that can measure beryllium to an accuracy of plus or minus 25 percent within a statistical confidence level of 95 percent for airborne concentrations at or above the action level.

1926.1124(d)(6) Employee notification of assessment results.

1926.1124(d)(6)(i) Within 15 working days after completing an exposure assessment in accordance with paragraph (d) of this standard, the employer must notify each employee whose airborne exposure is represented by the assessment of the results of that assessment individually in writing or post the results in an appropriate location that is accessible to each of these employees.

1926.1124(d)(6)(ii) Whenever an exposure assessment indicates that airborne exposure is above the TWA PEL or STEL, the employer must describe in the written notification the corrective action being taken to reduce airborne exposure to or below the exposure limit(s) exceeded where feasible corrective action exists but had not been implemented when the monitoring was conducted.

1926.1124(d)(7) Observation of monitoring.

1926.1124(d)(7)(i) The employer must provide an opportunity to observe any exposure monitoring required by this standard to each employee whose airborne exposure is measured or represented by the monitoring and each employee's representative(s).

1926.1124(d)(7)(ii) When observation of monitoring requires entry into an area where the use of personal protective clothing or equipment (which may include respirators) is required, the employer must provide each observer with appropriate personal protective clothing and equipment at no cost to the observer.

1926.1124(d)(7)(iii) The employer must ensure that each observer follows all other applicable safety and health procedures.

1926.1124(e) Competent person. Wherever employees are, or can reasonably be expected to be, exposed to airborne beryllium at levels above the TWA PEL or STEL, the employer must designate a competent person to.

1926.1124(e)(1) Make frequent and regular inspections of job sites, materials, and equipment;

1926.1124(e)(2) Implement the written exposure control plan under paragraph (f) of this standard;

1926.1124(e)(3) Ensure that all employees use respiratory protection in accordance with paragraph (g) of this standard; and

1926.1124(e)(4) Ensure that all employees use personal protective clothing and equipment in accordance with paragraph (h) of this standard.

1926.1124(f) Methods of compliance --

1926.1124(f)(1) Written exposure control plan.

1926.1124(f)(1)(i) The employer must establish, implement, and maintain a written exposure control plan, which must contain:

1926.1124(f)(1)(i)(A) A list of operations and job titles reasonably expected to involve airborne exposure to or dermal contact with beryllium;

1926.1124(f)(1)(i)(B) A list of engineering controls, work practices, and respiratory protection required by paragraph (f)(2) of this standard;

1926.1124(f)(1)(i)(C) A list of personal protective clothing and equipment required by paragraph (h) of this standard;

1926.1124(f)(1)(i)(D) Procedures used to restrict access to work areas when airborne exposures are, or can reasonably be expected to be, above the TWA PEL or STEL, to minimize the number of employees exposed to airborne beryllium and their level of exposure, including exposures generated by other employers or sole proprietors;

1926.1124(f)(1)(i)(E) Procedures used to ensure the integrity of each containment used to minimize exposures to Employees outside the containment; and

1926.1124(f)(1)(i)(F) Procedures for removing, cleaning, and maintaining personal protective clothing and equipment in accordance with paragraph (h) of this standard.

1926.1124(f)(1)(ii) The employer must review and evaluate the effectiveness of each written exposure control plan at least annually and update it, as necessary, when:

1926.1124(f)(1)(ii)(A) Any change in production processes, materials, equipment, personnel, work practices, or control methods results, or can reasonably be expected to result, in new or additional airborne exposure to beryllium;

1926.1124(f)(1)(ii)(B) The employer is notified that an employee is eligible for medical removal in accordance with paragraph (l)(1) of this standard, referred for evaluation at a CBD diagnostic center, or shows signs or symptoms associated with exposure to beryllium; or

1926.1124(f)(1)(ii)(C) The employer has any reason to believe that new or additional airborne exposure is occurring or will occur.

1926.1124(f)(1)(iii) The employer must make a copy of the written exposure control plan accessible to each employee who is, or can reasonably be expected to be, exposed to airborne beryllium in accordance with OSHA's Access to Employee Exposure and Medical Records (Records Access) standard (29 CFR 1910.1020(e)).

1926.1124(f)(2) Engineering and work practice controls.

The employer must use engineering and work practice controls to reduce and maintain employee airborne exposure to beryllium to or below the TWA PEL and STEL, unless the employer can demonstrate that such controls are not feasible. Wherever the employer demonstrates that it is not feasible to reduce airborne exposure to or below the PELs with engineering and work practice controls, the employer must implement and maintain engineering and work practice controls to reduce airborne exposure to the lowest levels feasible and supplement these controls by using respiratory protection in accordance with paragraph (g) of this standard.

1926.1124(f)(3) Prohibition of rotation. The employer must not rotate employees to different jobs to achieve compliance with the PELs.

1926.1124(g) Respiratory protection--

1926.1124(g)(1) General. The employer must provide respiratory protection at no cost to the employee and ensure that each employee uses respiratory protection:

1926.1124(g)(1)(i) During periods necessary to install or implement feasible engineering and work practice controls where airborne exposure exceeds, or can reasonably be expected to exceed, the TWA PEL or STEL;

1926.1124(g)(1)(ii) During operations, including maintenance and repair activities and non-routine tasks, when engineering and work practice controls are not feasible and airborne exposure exceeds, or can reasonably be expected to exceed, the TWA PEL or STEL;

1926.1124(g)(1)(iii) During operations for which an employer has implemented all feasible engineering and work practice controls when such controls are not sufficient to reduce airborne exposure to or below the TWA PEL or STEL; and

1926.1124(g)(1)(iv) When an employee who is eligible for medical removal under paragraph (l)(1) chooses to remain in a job with airborne exposure at or above the action level, as permitted by paragraph (l)(2)(ii) of this standard.

1926.1124(g)(2) Respiratory protection program. Where this standard requires an employer to provide respiratory protection, the selection and use of such respiratory protection must be in accordance with the Respiratory Protection standard (29 CFR 1910.134).

1926.1124(g)(3) The employer must provide at no cost to the employee a powered airpurifying respirator (PAPR) instead of a negative pressure respirator when

1926.1124(g)(3)(i) Respiratory protection is required by this standard;

1926.1124(g)(3)(ii) An employee entitled to such respiratory protection requests a PAPR; and

1926.1124(g)(3)(iii) The PAPR provides adequate protection to the employee in accordance with paragraph (g)(2) of this standard.

1926.1124(h) Personal protective clothing and equipment--

1926.1124(h)(1) Provision and use. Where airborne exposure exceeds, or can reasonably be expected to exceed, the TWA PEL or STEL, the employer must provide at no cost, and ensure that each employee uses, appropriate personal protective clothing and equipment in accordance with the written exposure control plan required under paragraph (f)(1) of this standard and OSHA's Personal Protective and Life Saving Equipment standards for construction (subpart E of this part).

1926.1124(h)(2) Removal of personal protective clothing and equipment.

1926.1124(h)(2)(i) The employer must ensure that each employee removes all personal protective clothing and equipment required by this standard at the end of the work shift or at the completion of all tasks involving beryllium, whichever comes first.

1926.1124(h)(2)(ii) The employer must ensure that personal protective clothing and equipment required by this standard is not removed in a manner that disperses beryllium into the air, and is removed as specified in the written exposure control plan required by paragraph (f)(1) of this standard.

1926.1124(h)(2)(iii) The employer must ensure that no employee with reasonably expected exposure above the TWA PEL or STEL removes personal protective clothing and equipment required by this standard from the workplace unless it has been cleaned in accordance with paragraph (h)(3)(ii) of this standard.

1926.1124(h)(3) Cleaning and replacement.

1926.1124(h)(3)(i) The employer must ensure that all reusable personal protective clothing and equipment required by this standard is cleaned, laundered, repaired, and replaced as needed to maintain its effectiveness.

1926.1124(h)(3)(ii) The employer must ensure that beryllium is not removed from personal protective clothing and equipment required by this standard by blowing, shaking, or any other means that disperses beryllium into the air.

1926.1124(i) Reserved

1926.1124(j) Housekeeping --

1926.1124(j)(1) When cleaning up dust resulting from operations that cause, or can reasonably be expected to cause, airborne exposure above the TWA PEL or STEL, the employer must ensure the use of methods that minimize the likelihood and level of airborne exposure.

1926.1124(j)(2) The employer must not allow dry sweeping or brushing for cleaning up dust resulting from operations that cause, or can reasonably be expected to cause, airborne exposure above the TWA PEL or STEL unless methods that minimize the likelihood and level of airborne exposure are not safe or effective.

1926.1124(j)(3) The employer must not allow the use of compressed air for cleaning where the use of compressed air causes, or can reasonably be expected to cause, airborne exposure above the TWA PEL or STEL.

1926.1124(j)(4) Where employees use dry sweeping, brushing, or compressed air to clean, the employer must provide, and ensure that each employee uses, respiratory protection and personal protective clothing and equipment in accordance with paragraphs (g) and (h) of this standard.

1926.1124(j)(5) The employer must ensure that cleaning equipment is handled and maintained in a manner that minimizes the likelihood and level of airborne exposure and the re-entrainment of airborne beryllium in the workplace.

1926.1124(k) Medical surveillance--

1926.1124(k)(1) General.

1926.1124(k)(1)(i) The employer must make medical surveillance required by this paragraph available at no cost to the employee, and at a reasonable time and place, to each employee:

1926.1124(k)(1)(i)(A) Who is or is reasonably expected to be exposed at or above the action level for more than 30 days per year;

1926.1124(k)(1)(i)(B) Who shows signs or symptoms of CBD or other beryllium-related health effects; or

1926.1124(k)(1)(i)(C) Whose most recent written medical opinion required by paragraph (k)(6) or (k)(7) recommends periodic medical surveillance.

1926.1124(k)(1)(ii) The employer must ensure that all medical examinations and procedures required by this standard are performed by, or under the direction of, a licensed physician.

1926.1124(k)(2) Frequency. The employer must provide a medical examination:

1926.1124(k)(2)(i) Within 30 days after determining that:

1926.1124(k)(2)(i)(A) An employee meets the criteria of paragraph (k)(1)(i)(A), unless the employee has received a medical examination, provided in accordance with this standard, within the last two years; or

1926.1124(k)(2)(i)(B) An employee meets the criteria of paragraph (k)(1)(i)(B) of this standard.

1926.1124(k)(2)(ii) At least every two years thereafter for each employee who continues to meet the criteria of paragraph (k)(1)(i) (A), (B), or (C) of this standard.

1926.1124(k)(2)(iii) At the termination of employment for each employee who meets any of the criteria of paragraph (k)(1)(i) of this standard at the time the employee's employment terminates, unless an examination has been provided in accordance with this standard during the six months prior to the date of termination.

1926.1124(k)(3) Contents of examination.

1926.1124(k)(3)(i) The employer must ensure that the PLHCP conducting the examination advises the employee of the risks and benefits of participating in the medical surveillance program and the employee's right to opt out of any or all parts of the medical examination.

1926.1124(k)(3)(ii) The employer must ensure that the employee is offered a medical examination that includes:

1926.1124(k)(3)(ii)(A) A medical and work history, with emphasis on past and present exposure to beryllium, smoking history, and any history of respiratory system dysfunction;

1926.1124(k)(3)(ii)(B) A physical examination with emphasis on the respiratory system;

1926.1124(k)(3)(ii)(C) A physical examination for skin rashes;

1926.1124(k)(3)(ii)(D) Pulmonary function tests, performed in accordance with the guidelines established by the American Thoracic Society including forced vital capacity (FVC) and forced expiratory volume in one second (FEV1);

1926.1124(k)(3)(ii)(E) A standardized BeLPT or equivalent test, upon the first examination and at least every two years thereafter, unless the employee is confirmed positive. If the results of the BeLPT are other than normal, a followup BeLPT must be offered within 30 days, unless the employee has been confirmed positive. Samples must be analyzed in a laboratory certified under the College of American Pathologists/Clinical Laboratory Improvement Amendments (CLIA) guidelines to perform the BeLPT.

1926.1124(k)(3)(ii)(F) A low dose computed tomography (LDCT) scan, when recommended by the PLHCP after considering the employee's history of exposure to beryllium along with other risk factors, such as smoking history, family medical history, sex, age, and presence of existing lung disease; and

1926.1124(k)(3)(ii)(G) Any other test deemed appropriate by the PLHCP.

1926.1124(k)(4) Information provided to the PLHCP. The employer must ensure that the examining PLHCP (and the agreed upon CBD diagnostic center, if an evaluation is required under paragraph (k)(7) of this standard) has a copy of this standard and must provide the following information, if known:

1926.1124(k)(4)(i) A description of the employee's former and current duties that relate to the employee's exposure to beryllium;

1926.1124(k)(4)(ii) The employee's former and current levels of airborne exposure;

1926.1124(k)(4)(iii) A description of any personal protective clothing and equipment, including respirators, used by the employee, including when and for how long the employee has used that personal protective clothing and equipment; and

1926.1124(k)(4)(iv) Information from records of employment-related medical examinations previously provided to the employee, currently within the control of the employer, after obtaining written consent from the employee.

1926.1124(k)(5) Licensed physician's written medical report for the employee. The employer must ensure that the employee receives a written medical report from the licensed physician within 45 days of the examination (including any follow-up BeLPT required under paragraph (k)(3)(ii)(E) of this standard) and that the PLHCP explains the results of the examination to the employee. The written medical report must contain:

1926.1124(k)(5)(i) A statement indicating the results of the medical examination, including the licensed physician's opinion as to whether the employee has

1926.1124(k)(5)(i)(A) Any detected medical condition, such as CBD or beryllium sensitization (i.e., the employee is confirmed positive, as defined in paragraph (b) of this standard), that may place the employee at increased risk from further airborne exposure, and

1926.1124(k)(5)(i)(B) Any medical conditions related to airborne exposure that require further evaluation or treatment.

1926.1124(k)(5)(ii) Any recommendations on:

1926.1124(k)(5)(ii)(A) The employee's use of respirators, protective clothing, or equipment; or

1926.1124(k)(5)(ii)(B) Limitations on the employee's airborne exposure to beryllium.

1926.1124(k)(5)(iii) If the employee is confirmed positive or diagnosed with CBD or if the licensed physician otherwise deems it appropriate, the written report must also contain a referral for an evaluation at a CBD diagnostic center.

1926.1124(k)(5)(iv) If the employee is confirmed positive or diagnosed with CBD the written report must also contain a recommendation for continued periodic medical surveillance.

1926.1124(k)(5)(v) If the employee is confirmed positive or diagnosed with CBD the written report must also contain a recommendation for medical removal from airborne exposure to beryllium, as described in paragraph (l).

1926.1124(k)(6) Licensed physician's written medical opinion for the employer.

1926.1124(k)(6)(i) The employer must obtain a written medical opinion from the licensed physician within 45 days of the medical examination (including any follow-up BeLPT required under paragraph (k)(3)(ii)(E) of this standard). The written medical opinion must contain only the following:

1926.1124(k)(6)(i)(A) The date of the examination;

1926.1124(k)(6)(i)(B) A statement that the examination has met the requirements of this standard;

1926.1124(k)(6)(i)(C) Any recommended limitations on the employee's use of respirators, protective clothing, or equipment; and

1926.1124(k)(6)(i)(D) A statement that the PLHCP has explained the results of the medical examination to the employee, including any tests conducted, any medical conditions related to airborne exposure that require further evaluation or treatment, and any special provisions for use of personal protective clothing or equipment;

1926.1124(k)(6)(ii) If the employee provides written authorization, the written opinion must also contain any recommended limitations on the employee's airborne exposure to beryllium.

1926.1124(k)(6)(iii) If the employee is confirmed positive or diagnosed with CBD or if the licensed physician otherwise deems it appropriate, and the employee provides written authorization, the written opinion must also contain a referral for an evaluation at a CBD diagnostic center.

1926.1124(k)(6)(iv) If the employee is confirmed positive or diagnosed with CBD and the employee provides written authorization, the written opinion must also contain a recommendation for continued periodic medical surveillance.

1926.1124(k)(6)(v) If the employee is confirmed positive or diagnosed with CBD and the employee provides written authorization, the written opinion must also contain a recommendation for medical removal from airborne exposure to beryllium, as described in paragraph (l).

1926.1124(k)(6)(vi) The employer must ensure that each employee receives a copy of the written medical opinion described in paragraph (k)(6) of this standard within 45 days of any medical examination (including any follow-up BeLPT required under paragraph (k)(3)(ii)(E) of this standard) performed for that employee.

1926.1124(k)(7) CBD diagnostic center.

1926.1124(k)(7)(i) The employer must provide an evaluation at no cost to the employee at a CBD diagnostic center that is mutually agreed upon by the employer and the employee. The evaluation at the CBD diagnostic center must be scheduled within 30 days, and must occur within a reasonable time, of:

1926.1124(k)(7)(i)(A) The employer's receipt of a physician's written medical opinion to the employer that recommends referral to a CBD diagnostic center; or

1926.1124(k)(7)(i)(B) The employee presenting to the employer a physician's written medical report indicating that the employee has been confirmed positive or diagnosed with CBD, or recommending referral to a CBD diagnostic center.

1926.1124(k)(7)(ii) The employer must ensure that, as part of the evaluation, the employee is offered any tests deemed appropriate by the examining physician at the CBD diagnostic center, such as pulmonary function testing (as outlined by the American Thoracic Society criteria), bronchoalveolar lavage (BAL), and transbronchial biopsy. If any of the tests deemed appropriate by the examining physician are not available at the CBD diagnostic center, they may be performed at another location that is mutually agreed upon by the employer and the employee.

1926.1124(k)(7)(iii) The employer must ensure that the employee receives a written medical report from the CBD diagnostic center that contains all the information required in paragraphs (k)(5)(i), (ii), (iv), and (v) of this standard and that the PLHCP explains the results of the examination to the employee within 30 days of the examination.

1926.1124(k)(7)(iv) The employer must obtain a written medical opinion from the CBD diagnostic center within 30 days of the medical examination. The written medical opinion must contain only the information in paragraph (k)(6)(i) of this standard, as applicable, unless the employee provides written authorization to release additional information. If the employee provides written authorization, the written opinion must also contain the information from paragraphs (k)(6)(ii), (iv), and (v), if applicable.

1926.1124(k)(7)(v) The employer must ensure that each employee receives a copy of the written medical opinion from the CBD diagnostic center described in paragraph (k)(7) of this standard within 30 days of any medical examination performed for that employee.

1926.1124(k)(7)(vi) After an employee has received the initial clinical evaluation at a CBD diagnostic center described in paragraph (k)(7)(i) of this standard, the employee may choose to have any subsequent medical examinations for which the employee is eligible under paragraph (k) of this standard performed at a CBD diagnostic center mutually agreed upon by the employer and the employee, and the employer must provide such examinations at no cost to the employee.

1926.1124(l) Medical removal.

1926.1124(l)(1) An employee is eligible for medical removal, if the employee works in a job with airborne exposure at or above the action level and either:

1926.1124(l)(1)(i) The employee provides the employer with:

1926.1124(l)(1)(i)(A) A written medical report indicating a confirmed positive finding or CBD diagnosis; or

1926.1124(l)(1)(i)(B) A written medical report recommending removal from airborne exposure to beryllium in accordance with paragraph (k)(5)(v) or (k)(7)(ii) of this standard; or

1926.1124(l)(1)(ii) The employer receives a written medical opinion recommending removal from airborne exposure to beryllium in accordance with paragraph (k)(6)(v) or (k)(7)(iii) of this standard.

1926.1124(l)(2) If an employee is eligible for medical removal, the employer must provide the employee with the employee's choice of:

1926.1124(l)(2)(i) Removal as described in paragraph (l)(3) of this standard; or

1926.1124(l)(2)(ii) Remaining in a job with airborne exposure at or above the action level, provided that the employer provides, and ensures that the employee uses, respiratory protection that complies with paragraph (g) of this standard whenever airborne exposures are at or above the action level.

1926.1124(l)(3) If the employee chooses removal:

1926.1124(l)(3)(i) If a comparable job is available where airborne exposures to beryllium are below the action level, and the employee is qualified for that job or can be trained within one month, the employer must remove the employee to that job. The employer must maintain for six months from the time of removal the employee's base earnings, seniority, and other rights and benefits that existed at the time of removal.

1926.1124(l)(3)(ii) If comparable work is not available, the employer must maintain the employee's base earnings, seniority, and other rights and benefits that existed at the time of removal for six months or until such time that comparable work described in paragraph (l)(3)(i) becomes available, whichever comes first.

1926.1124(l)(4) The employer's obligation to provide medical removal protection benefits to a removed employee shall be reduced to the extent that the employee receives compensation for earnings lost during the period of removal from a publicly or employer-funded compensation program, or receives income from another employer made possible by virtue of the employee's removal.

1926.1124(m) Communication of hazards--

1926.1124(m)(1) General.

1926.1124(m)(1)(i) Chemical manufacturers, importers, distributors, and employers must comply with all requirements of the HCS (29 CFR 1910.1200) for beryllium.

1926.1124(m)(1)(ii) Employers must include beryllium in the hazard communication program established to comply with the HCS. Employers must ensure that each employee has access to labels on containers of beryllium and to safety data sheets, and is trained in accordance with the requirements of the HCS (29 CFR 1910.1200) and paragraph (m)(4) of this standard.

1926.1124(m)(2) Employee information and training.

1926.1124(m)(2)(i) For each employee who has, or can reasonably be expected to have, airborne exposure to beryllium:

1926.1124(m)(2)(i)(A) The employer must provide information and training in accordance with the HCS (29 CFR 1910.1200(h));

1926.1124(m)(2)(i)(B) The employer must provide initial training to each employee by the time of initial assignment; and

1926.1124(m)(2)(i)(C) The employer must repeat the training required under this standard annually for each employee.

1926.1124(m)(2)(ii) The employer must ensure that each employee who is, or can reasonably be expected to be, exposed to airborne beryllium can demonstrate knowledge and understanding of the following:

1926.1124(m)(2)(ii)(A) The health hazards associated with exposure to beryllium, including the signs and symptoms of CBD;

1926.1124(m)(2)(ii)(B) The written exposure control plan, with emphasis on the specific nature of operations that could result in airborne exposure, especially airborne exposure above the TWA PEL or STEL;

1926.1124(m)(2)(ii)(C) The purpose, proper selection, fitting, proper use, and limitations of personal protective clothing and equipment, including respirators;

1926.1124(m)(2)(ii)(D) Measures employees can take to protect themselves from exposure to beryllium;

1926.1124(m)(2)(ii)(E) The purpose and a description of the medical surveillance program required by paragraph (k) of this standard including risks and benefits of each test to be offered;

1926.1124(m)(2)(ii)(F) The purpose and a description of the medical removal protection provided under paragraph (l) of this standard;

1926.1124(m)(2)(ii)(G) The contents of the standard; and

1926.1124(m)(2)(ii)(H) The employee's right of access to records under the Records Access standard (29 CFR 1910.1020).

1926.1124(m)(2)(iii) When a workplace change (such as modification of equipment, tasks, or procedures) results in new or increased airborne exposure that exceeds, or can reasonably be expected to exceed, either the TWA PEL or the STEL, the employer must provide additional training to those employees affected by the change in airborne exposure.

1926.1124(m)(2)(iv) Employee information.

The employer must make a copy of this standard and its appendices readily available at no cost to each employee and designated employee representative(s).

1926.1124(n) Recordkeeping --

1926.1124(n)(1) Air monitoring data.

1926.1124(n)(1)(i) The employer must make and maintain a record of all exposure measurements taken to assess airborne exposure as prescribed in paragraph (d) of this standard.

1926.1124(n)(1)(ii) This record must include at least the following information:

1926.1124(n)(1)(ii)(A) The date of measurement for each sample taken;

1926.1124(n)(1)(ii)(B) The task that is being monitored;

1926.1124(n)(1)(ii)(C) The sampling and analytical methods used and evidence of their accuracy;

1926.1124(n)(1)(ii)(D) The number, duration, and results of samples taken;

1926.1124(n)(1)(ii)(E) The type of personal protective clothing and equipment, including respirators, worn by monitored employees at the time of monitoring; and

1926.1124(n)(1)(ii)(F) The name and job classification of each employee represented by the monitoring, indicating which employees were actually monitored.

1926.1124(n)(1)(iii) The employer must ensure that exposure records are maintained and made available in accordance with the Records Access standard (29 CFR 1910.1020).

1926.1124(n)(2) Objective data.

1926.1124(n)(2)(i) Where an employer uses objective data to satisfy the exposure assessment requirements under paragraph (d)(2) of this standard, the employer must make and maintain a record of the objective data relied upon.

1926.1124(n)(2)(ii) This record must include at least the following information:

1926.1124(n)(2)(ii)(A) The data relied upon;

1926.1124(n)(2)(ii)(B) The beryllium-containing material in question;

1926.1124(n)(2)(ii)(C) The source of the objective data;

1926.1124(n)(2)(ii)(D) A description of the process, task, or activity on which the objective data were based; and

1926.1124(n)(2)(ii)(E) Other data relevant to the process, task, activity, material, or airborne exposure on which the objective data were based.

1926.1124(n)(2)(iii) The employer must ensure that objective data are maintained and made available in accordance with the Records Access standard (29 CFR 1910.1020).

1926.1124(n)(3) Medical surveillance.

1926.1124(n)(3)(i) The employer must make and maintain a record for each employee covered by medical surveillance under paragraph (k) of this standard.

1926.1124(n)(3)(ii) The record must include the following information about each employee:

1926.1124(n)(3)(ii)(A) Name and job classification;

1926.1124(n)(3)(ii)(B) A copy of all licensed physicians' written medical opinions for each employee; and

1926.1124(n)(3)(ii)(C) A copy of the information provided to the PLHCP as required by paragraph (k)(4) of this standard.

1926.1124(n)(3)(iii) The employer must ensure that medical records are maintained and made available in accordance with the Records Access standard (29 CFR 1910.1020).

1926.1124(n)(4) Training.

1926.1124(n)(4)(i) At the completion of any training required by this standard, the employer must prepare a record that indicates the name and job classification of each employee trained, the date the training was completed, and the topic of the training.

1926.1124(n)(4)(ii) This record must be maintained for three years after the completion of training.

1926.1124(n)(5) Access to records. Upon request, the employer must make all records maintained as a requirement of this standard available for examination and copying to the Assistant Secretary, the Director, each employee, and each employee's designated representative(s) in accordance the Records Access standard (29 CFR 1910.1020).

1926.1124(n)(6) Transfer of records. The employer must comply with the requirements involving transfer of records set forth in the Records Access standard (29 CFR 1910.1020).

1926.1124(o) Dates --

1926.1124(o)(1) Effective date. This standard shall become effective March 10, 2017.

1926.1124(o)(2) Compliance dates.

1926.1124(o)(2)(i) All obligations contained in paragraph (c) of this standard commence and become enforceable on March 12, 2018; and

1926.1124(o)(2)(ii) All other obligations of this standard commence and become enforceable on September 30, 2020.

[82 FR 2751-2757, Jan. 9, 2017; 84 FR 51400, September 30, 2019]

1915.1024 Beryllium in Shipyard Employment.

1915.1024(a) Scope and application.

1915.1024(a)(1) This standard applies to occupational exposure to beryllium in all forms, compounds, and mixtures in shipyards, except those articles and materials exempted by paragraphs (a)(2) and (a)(3) of this standard.

1915.1024(a)(2) This standard does not apply to articles, as defined in the Hazard Communication standard (HCS) (29 CFR 1910.1200(c)), that contain beryllium and that the employer does not process.

1915.1024(a)(3) This standard does not apply to materials containing less than 0.1% beryllium by weight where the employer has objective data demonstrating that employee exposure to beryllium will remain below the action level as an 8-hour TWA under any foreseeable conditions.

1915.1024(b) Definitions. As used in this standard:

Action level means a concentration of airborne beryllium of 0.1 micrograms per cubic meter of air ([mu]g/m3) calculated as an 8-hour time-weighted average (TWA).

Airborne exposure and airborne exposure to beryllium mean the exposure to airborne beryllium that would occur if the employee were not using a respirator.

Assistant Secretary means the Assistant Secretary of Labor for Occupational Safety and Health, United States Department of Labor, or designee.

Beryllium lymphocyte proliferation test (BeLPT) means the measurement of blood lymphocyte proliferation in a laboratory test when lymphocytes are challenged with a soluble beryllium salt.

Beryllium sensitization means a response in the immune system of a specific individual who has been exposed to beryllium. There are no associated physical or clinical symptoms and no illness or disability with beryllium sensitization alone, but the response that occurs through beryllium sensitization can enable the immune system to recognize and react to beryllium. While not every beryllium sensitized person will develop chronic beryllium disease (CBD), beryllium sensitization is essential for development of CBD.

CBD diagnostic center means a medical diagnostic center that has a pulmonologist or pulmonary specialist on staff and on-site facilities to perform a clinical evaluation for the presence of chronic beryllium disease (CBD). The CBD diagnostic center must have the capacity to perform pulmonary function testing (as outlined by the American Thoracic Society criteria), bronchoalveolar lavage (BAL), and transbronchial biopsy. The CBD diagnostic center must also have the capacity to transfer BAL samples to a laboratory for appropriate diagnostic testing within 24 hours. The pulmonologist or pulmonary specialist must be able to interpret the biopsy pathology and the BAL diagnostic test results.

Chronic beryllium disease (CBD) means a chronic granulomatous lung disease caused by inhalation of airborne beryllium by an individual who is beryllium-sensitized.

Confirmed positive means the person tested has had two abnormal BeLPT test results, an abnormal and a borderline test result, or three borderline test results from tests conducted within a 3- year period. It also means the result of a more reliable and accurate test indicating a person has been identified as having beryllium sensitization.

Director means the Director of the National Institute for Occupational Safety and Health (NIOSH), U.S. Department of Health and Human Services, or designee.

Objective data means information, such as air monitoring data from industry-wide surveys or calculations based on the composition of a substance, demonstrating airborne exposure to beryllium associated with a particular product or material or a specific process, task, or activity. The data must reflect workplace conditions closely resembling or with a higher airborne exposure potential than the processes, types of material, control methods, work practices, and environmental conditions in the employer's current operations.

Physician or other licensed health care professional (PLHCP) means an individual whose legally permitted scope of practice (i.e., license, registration, or certification) allows the individual to independently provide or be delegated the responsibility to provide some or all of the health care services required by paragraph (k) of this standard.

Regulated area means an area, including temporary work areas where maintenance or non-routine tasks are performed, where an employee's airborne exposure exceeds, or can reasonably be expected to exceed, either the time-weighted average (TWA) permissible exposure limit (PEL) or short term exposure limit (STEL).

This standard means this beryllium standard, 29 CFR 1915.1024.

1915.1024(c) Permissible Exposure Limits (PELs)--

1915.1024(c)(1) Time-weighted average (TWA) PEL. The employer must ensure that no employee is exposed to an airborne concentration of beryllium in excess of 0.2 [mu]g/m3 calculated as an 8-hour TWA.

1915.1024(c)(2) Short-term exposure limit (STEL). The employer must ensure that no employee is exposed to an airborne concentration of beryllium in excess of 2.0 [mu]g/m3 as determined over a sampling period of 15 minutes.

1915.1024(d) Exposure assessment --

1915.1024(d)(1) General. The employer must assess the airborne exposure of each employee who is or may reasonably be expected to be exposed to airborne beryllium in accordance with either the performance option in paragraph (d)(2) or the scheduled monitoring option in paragraph (d)(3) of this standard.

1915.1024(d)(2) Performance option. The employer must assess the 8-hour TWA exposure and the 15-minute short- term exposure for each employee on the basis of any combination of air monitoring data and objective data sufficient to accurately characterize airborne exposure to beryllium.

1915.1024(d)(3) Scheduled monitoring option.

1915.1024(d)(3)(i) The employer must perform initial monitoring to assess the 8-hour TWA exposure for each employee on the basis of one or more personal breathing zone air samples that reflect the airborne exposure of employees on each shift, for each job classification, and in each work area.

1915.1024(d)(3)(ii) The employer must perform initial monitoring to assess the short-term exposure from 15-minute personal breathing zone air samples measured in operations that are likely to produce airborne exposure above the STEL for each work shift, for each job classification, and in each work area.

1915.1024(d)(3)(iii) Where several employees perform the same tasks on the same shift and in the same work area, the employer may sample a representative fraction of these employees in order to meet the requirements of paragraph (d)(3) of this standard. In representative sampling, the employer must sample the employee(s) expected to have the highest airborne exposure to beryllium.

1915.1024(d)(3)(iv) If initial monitoring indicates that airborne exposure is below the action level and at or below the STEL, the employer may discontinue monitoring for those employees whose airborne exposure is represented by such monitoring.

1915.1024(d)(3)(v) Where the most recent exposure monitoring indicates that airborne exposure is at or above the action level but at or below the TWA PEL, the employer must repeat such monitoring within six months of the most recent monitoring.

1915.1024(d)(3)(vi) Where the most recent exposure monitoring indicates that airborne exposure is above the TWA PEL, the employer must repeat such monitoring within three months of the most recent 8-hour TWA exposure monitoring.

1915.1024(d)(3)(vii) Where the most recent (noninitial) exposure monitoring indicates that airborne exposure is below the action level, the employer must repeat such monitoring within six months of the most recent monitoring until two consecutive measurements, taken 7 or more days apart, are below the action level, at which time the employer may discontinue 8-hour TWA exposure monitoring for those employees whose exposure is represented by such monitoring, except as otherwise provided in paragraph (d)(4) of this standard.

1915.1024(d)(3)(viii) Where the most recent exposure monitoring indicates that airborne exposure is above the STEL, the employer must repeat such monitoring within three months of the most recent short-term exposure monitoring until two consecutive measurements, taken 7 or more days apart, are below the STEL, at which time the employer may discontinue shortterm exposure monitoring for those employees whose exposure is represented by such monitoring, except as otherwise provided in paragraph (d)(4) of this standard.

1915.1024(d)(4) Reassessment of exposure. The employer must reassess airborne exposure whenever a change in the production, process, control equipment, personnel, or work practices may reasonably be expected to result in new or additional airborne exposure at or above the action level or STEL, or when the employer has any reason to believe that new or additional airborne exposure at or above the action level or STEL has occurred.

1915.1024(d)(5) Methods of sample analysis. The employer must ensure that all air monitoring samples used to satisfy the monitoring requirements of paragraph (d) of this standard are evaluated by a laboratory that can measure beryllium to an accuracy of plus or minus 25 percent within a statistical confidence level of 95 percent for airborne concentrations at or above the action level.

1915.1024(d)(6) Employee notification of assessment results.

1915.1024(d)(6)(i) Within 15 working days after completing an exposure assessment in accordance with paragraph (d) of this standard, the employer must notify each employee whose airborne exposure is represented by the assessment of the results of that assessment individually in writing or post the results in an appropriate location that is accessible to each of these employees.

1915.1024(d)(6)(ii) Whenever an exposure assessment indicates that airborne exposure is above the TWA PEL or STEL, the employer must describe in the written notification the corrective action being taken to reduce airborne exposure to or below the exposure limit(s) exceeded where feasible corrective action exists but had not been implemented when the monitoring was conducted.

1915.1024(d)(7) Observation of monitoring.

1915.1024(d)(7)(i) The employer must provide an opportunity to observe any exposure monitoring required by this standard to each employee whose airborne exposure is measured or represented by the monitoring and each employee's representative(s).

1915.1024(d)(7)(ii) When observation of monitoring requires entry into an area where the use of personal protective clothing or equipment (which may include respirators) is required, the employer must provide each observer with appropriate personal protective clothing and equipment at no cost to the observer and must ensure that each observer uses such clothing and equipment.

1915.1024(d)(7)(iii) The employer must ensure that each observer follows all other applicable safety and health procedures.

1915.1024(e) Regulated areas --

1915.1024(e)(1) Establishment. The employer must establish and maintain a regulated area wherever employees are, or can reasonably be expected to be, exposed to airborne beryllium at levels above the TWA PEL or STEL.

1915.1024(e)(2) Demarcation. The employer must identify each regulated area in accordance with paragraph (m)(2) of this standard.

1915.1024(e)(3) Access. The employer must limit access to regulated areas to:

1915.1024(e)(3)(i) Persons the employer authorizes or requires to be in a regulated area to perform work duties;

1915.1024(e)(3)(ii) Persons entering a regulated area as designated representatives of employees for the purpose of exercising the right to observe exposure monitoring procedures under paragraph (d)(7) of this standard; and

1915.1024(e)(3)(iii) Persons authorized by law to be in a regulated area.

1915.1024(e)(4) Provision of personal protective clothing and equipment, including respirators. The employer must provide and ensure that each employee entering a regulated area uses:

1915.1024(e)(4)(i) Respiratory protection in accordance with paragraph (g) of this standard; and

1915.1024(e)(4)(ii) Personal protective clothing and equipment in accordance with paragraph (h) of this standard.

1915.1024(f) Methods of compliance--

1915.1024(f)(1) Written exposure control plan.

1915.1024(f)(1)(i) The employer must establish, implement, and maintain a written exposure control plan, which must contain:

1915.1024(f)(1)(i)(A) A list of operations and job titles reasonably expected to involve exposure to beryllium;

1915.1024(f)(1)(i)(B) A list of engineering controls, work practices, and respiratory protection required by paragraph (f)(2) of this standard;

1915.1024(f)(1)(i)(C) A list of personal protective clothing and equipment required by paragraph (h) of this standard;

1915.1024(f)(1)(i)(D) Procedures used to ensure the integrity of each containment used to minimize exposures to employees outside of the containment; and

1915.1024(f)(1)(i)(E) Procedures for removing, cleaning, and maintaining personal protective clothing and equipment in accordance with paragraph (h) of this standard.

1915.1024(f)(1)(ii) The employer must review and evaluate the effectiveness of each written exposure control plan at least annually and update it, as necessary, when:

1915.1024(f)(1)(ii)(A) Any change in production processes, materials, equipment, personnel, work practices, or control methods results, or can reasonably be expected to result, in new or additional airborne exposure to beryllium;

1915.1024(f)(1)(ii)(B) The employer is notified that an employee is eligible for medical removal in accordance with paragraph (l)(1) of this standard, referred for evaluation at a CBD diagnostic center, or shows signs or symptoms associated with exposure to beryllium; or

1915.1024(f)(1)(ii)(C) The employer has any reason to believe that new or additional airborne exposure is occurring or will occur.

1915.1024(f)(1)(iii) The employer must make a copy of the written exposure control plan accessible to each employee who is, or can reasonably be expected to be, exposed to airborne beryllium in accordance with OSHA's Access to Employee Exposure and Medical Records (Records Access) standard (29 CFR 1910.1020(e)).

1915.1024(f)(2) Engineering and work practice controls. The employer must use engineering and work practice controls to reduce and maintain employee airborne exposure to beryllium to or below the TWA PEL and STEL, unless the employer can demonstrate that such controls are not feasible. Wherever the employer demonstrates that it is not feasible to reduce airborne exposure to or below the PELs with engineering and work practice controls, the employer must implement and maintain engineering and work practice controls to reduce airborne exposure to the lowest levels feasible and supplement these controls by using respiratory protection in accordance with paragraph (g) of this standard.

1915.1024(f)(3) Prohibition of rotation. The employer must not rotate employees to different jobs to achieve compliance with the PELs.

1915.1024(g) Respiratory protection --

1915.1024(g)(1) General. The employer must provide respiratory protection at no cost to the employee and ensure that each employee uses respiratory protection:

1915.1024(g)(1)(i) During periods necessary to install or implement feasible engineering and work practice controls where airborne exposure exceeds, or can reasonably be expected to exceed, the TWA PEL or STEL;

1915.1024(g)(1)(ii) During operations, including maintenance and repair activities and non-routine tasks, when engineering and work practice controls are not feasible and airborne exposure exceeds, or can reasonably be expected to exceed, the TWA PEL or STEL;

1915.1024(g)(1)(iii) During operations for which an employer has implemented all feasible engineering and work practice controls when such controls are not sufficient to reduce airborne exposure to or below the TWA PEL or STEL; and

1915.1024(g)(1)(iv) When an employee who is eligible for medical removal under paragraph (l)(1) chooses to remain in a job with airborne exposure at or above the action level, as permitted by paragraph (l)(2)(ii).

1915.1024(g)(2) Respiratory protection program. Where this standard requires an employer to provide respiratory protection, the selection and use of such respiratory protection must be in accordance with the Respiratory Protection standard (29 CFR 1910.134).

1915.1024(g)(3) The employer must provide at no cost to the employee a powered airpurifying respirator (PAPR) instead of a negative pressure respirator when

1915.1024(g)(3)(i) Respiratory protection is required by this standard;

1915.1024(g)(3)(ii) An employee entitled to such respiratory protection requests a PAPR; and

1915.1024(g)(3)(iii) The PAPR provides adequate protection to the employee in accordance with paragraph (g)(2) of this standard.

1915.1024(h) Personal protective clothing and equipment --

1915.1024(h)(1) Provision and use. Where airborne exposure exceeds, or can reasonably be expected to exceed, the TWA PEL or STEL, the employer must provide at no cost, and ensure that each employee uses, appropriate personal protective clothing and equipment in accordance with the written exposure control plan required under paragraph (f)(1) of this standard and OSHA's Personal Protective Equipment standards for shipyards (subpart I of this part).

1915.1024(h)(2) Removal and storage.

1915.1024(h)(2)(i) The employer must ensure that each employee removes all personal protective clothing and equipment required by this standard at the end of the work shift or at the completion of all tasks involving beryllium, whichever comes first.

1915.1024(h)(2)(ii) The employer must ensure that personal protective clothing and equipment required by this standard is not removed in a manner that disperses beryllium into the air, and is removed as specified in the written exposure control plan required by paragraph (f)(1) of this standard.

1915.1024(h)(2)(iii) The employer must ensure that no employee with reasonably expected exposure above the TWA PEL or STEL removes personal protective clothing and equipment required by this standard from the workplace unless it has been cleaned in accordance with paragraph (h)(3)(ii) of this standard.

1915.1024(h)(3) Cleaning and replacement.

1915.1024(h)(3)(i) The employer must ensure that all reusable personal protective clothing and equipment required by this standard is cleaned, laundered, repaired, and replaced as needed to maintain its effectiveness.

1915.1024(h)(3)(ii) The employer must ensure that beryllium is not removed from personal protective clothing and equipment required by this standard by blowing, shaking, or any other means that disperses beryllium into the air.

1915.1024(i) Reserved

1915.1024(j) Housekeeping --

1915.1024(j)(1) General. When cleaning dust resulting from operations that cause, or can reasonably be expected to cause, airborne exposure above the TWA PEL or STEL, the employer must ensure the use of methods that minimize the likelihood and level of airborne exposure.

1915.1024(j)(2) Cleaning methods. The employer must not allow dry sweeping or brushing for cleaning up dust resulting from operations that cause, or can reasonably be expected to cause, airborne exposure above the TWA PEL or STEL unless methods that minimize the likelihood and level of airborne exposure are not safe or effective.

1915.1024(j)(3) The employer must not allow the use of compressed air for cleaning where the use of compressed air causes, or can reasonably be expected to cause, airborne exposure above the TWA PEL or STEL.

1915.1024(j)(4) Where employees use dry sweeping, brushing, or compressed air to clean, the employer must provide, and ensure that each employee uses, respiratory protection and personal protective clothing and equipment in accordance with paragraphs (g) and (h) of this standard.

1915.1024(j)(5) The employer must ensure that cleaning equipment is handled and maintained in a manner that minimizes the likelihood and level of airborne exposure and the re-entrainment of airborne beryllium in the workplace.

1915.1024(k) Medical surveillance--

1915.1024(k)(1) General.

1915.1024(k)(1)(i) The employer must make medical surveillance required by this paragraph available at no cost to the employee, and at a reasonable time and place, to each employee:

1915.1024(k)(1)(i)(A) Who is or is reasonably expected to be exposed at or above the action level for more than 30 days per year;

1915.1024(k)(1)(i)(B) Who shows signs or symptoms of CBD or other beryllium-related health effects; or

1915.1024(k)(1)(i)(C) Whose most recent written medical opinion required by paragraph (k)(6) or (k)(7) recommends periodic medical surveillance.

1915.1024(k)(1)(ii) The employer must ensure that all medical examinations and procedures required by this standard are performed by, or under the direction of, a licensed physician.

1915.1024(k)(2) Frequency. The employer must provide a medical examination:

1915.1024(k)(2)(i) Within 30 days after determining that:

1915.1024(k)(2)(i)(A) An employee meets the criteria of paragraph (k)(1)(i)(A) of this standard, unless the employee has received a medical examination, provided in accordance with this standard, within the last two years; or

1915.1024(k)(2)(i)(B) An employee meets the criteria of paragraph (k)(1)(i)(B) of this standard.

1915.1024(k)(2)(ii) At least every two years thereafter for each employee who continues to meet the criteria of paragraph (k)(1)(i) (A), (B), or (C) of this standard.

1915.1024(k)(2)(iii) At the termination of employment for each employee who meets any of the criteria of paragraph (k)(1)(i) of this standard at the time the employee's employment terminates, unless an examination has been provided in accordance with this standard during the six months prior to the date of termination.

1915.1024(k)(3) Contents of examination.

1915.1024(k)(3)(i) The employer must ensure that the PLHCP conducting the examination advises the employee of the risks and benefits of participating in the medical surveillance program and the employee's right to opt out of any or all parts of the medical examination.

1915.1024(k)(3)(ii) The employer must ensure that the employee is offered a medical examination that includes:

1915.1024(k)(3)(ii)(A) A medical and work history, with emphasis on past and present exposure to beryllium, smoking history, and any history of respiratory system dysfunction;

1915.1024(k)(3)(ii)(B) A physical examination with emphasis on the respiratory system;

1915.1024(k)(3)(ii)(C) A physical examination for skin rashes;

1915.1024(k)(3)(ii)(D) Pulmonary function tests, performed in accordance with the guidelines established by the American Thoracic Society including forced vital capacity (FVC) and forced expiratory volume in one second (FEV1);

1915.1024(k)(3)(ii)(E) A standardized BeLPT or equivalent test, upon the first examination and at least every two years thereafter, unless the employee is confirmed positive. If the results of the BeLPT are other than normal, a followup BeLPT must be offered within 30 days, unless the employee has been confirmed positive. Samples must be analyzed in a laboratory certified under the College of American Pathologists/Clinical Laboratory Improvement Amendments (CLIA) guidelines to perform the BeLPT.

1915.1024(k)(3)(ii)(F) A low dose computed tomography (LDCT) scan, when recommended by the PLHCP after considering the employee's history of exposure to beryllium along with other risk factors, such as smoking history, family medical history, sex, age, and presence of existing lung disease; and

1915.1024(k)(3)(ii)(G) Any other test deemed appropriate by the PLHCP.

1915.1024(k)(4) Information provided to the PLHCP. The employer must ensure that the examining PLHCP (and the agreed upon CBD diagnostic center, if an evaluation is required under paragraph (k)(7) of this standard) has a copy of this standard and must provide the following information, if known:

1915.1024(k)(4)(i) A description of the employee's former and current duties that relate to the employee's exposure to beryllium;

1915.1024(k)(4)(ii) The employee's former and current levels of airborne exposure;

1915.1024(k)(4)(iii) A description of any personal protective clothing and equipment, including respirators, used by the employee, including when and for how long the employee has used that personal protective clothing and equipment; and

1915.1024(k)(4)(iv) Information from records of employment-related medical examinations previously provided to the employee, currently within the control of the employer, after obtaining written consent from the employee.

1915.1024(k)(5) Licensed physician's written medical report for the employee. The employer must ensure that the employee receives a written medical report from the licensed physician within 45 days of the examination (including any follow-up BeLPT required under paragraph (k)(3)(ii)(E) of this standard) and that the PLHCP explains the results of the examination to the employee. The written medical report must contain:

1915.1024(k)(5)(i) A statement indicating the results of the medical examination, including the licensed physician's opinion as to whether the employee has

1915.1024(k)(5)(i)(A) Any detected medical condition, such as CBD or beryllium sensitization (i.e., the employee is confirmed positive, as defined in paragraph (b) of this standard), that may place the employee at increased risk from further airborne exposure, and

1915.1024(k)(5)(i)(B) Any medical conditions related to airborne exposure that require further evaluation or treatment.

1915.1024(k)(5)(ii) Any recommendations on:

1915.1024(k)(5)(ii)(A) The employee's use of respirators, protective clothing, or equipment; or

1915.1024(k)(5)(ii)(B) Limitations on the employee's airborne exposure to beryllium.

1915.1024(k)(5)(iii) If the employee is confirmed positive or diagnosed with CBD or if the licensed physician otherwise deems it appropriate, the written report must also contain a referral for an evaluation at a CBD diagnostic center.

1915.1024(k)(5)(iv) If the employee is confirmed positive or diagnosed with CBD the written report must also contain a recommendation for continued periodic medical surveillance.

1915.1024(k)(5)(v) If the employee is confirmed positive or diagnosed with CBD the written report must also contain a recommendation for medical removal from airborne exposure to beryllium, as described in paragraph (l).

1915.1024(k)(6) Licensed physician's written medical opinion for the employer.

1915.1024(k)(6)(i) The employer must obtain a written medical opinion from the licensed physician within 45 days of the medical examination (including any follow-up BeLPT required under paragraph (k)(3)(ii)(E) of this standard). The written medical opinion must contain only the following:

1915.1024(k)(6)(i)(A) The date of the examination;

1915.1024(k)(6)(i)(B) A statement that the examination has met the requirements of this standard;

1915.1024(k)(6)(i)(C) Any recommended limitations on the employee's use of respirators, protective clothing, or equipment; and

1915.1024(k)(6)(i)(D) A statement that the PLHCP has explained the results of the medical examination to the employee, including any tests conducted, any medical conditions related to airborne exposure that require further evaluation or treatment, and any special provisions for use of personal protective clothing or equipment;

1915.1024(k)(6)(ii) If the employee provides written authorization, the written opinion must also contain any recommended limitations on the employee's airborne exposure to beryllium.

1915.1024(k)(6)(iii) If the employee is confirmed positive or diagnosed with CBD or if the licensed physician otherwise deems it appropriate, and the employee provides written authorization, the written opinion must also contain a referral for an evaluation at a CBD diagnostic center.

1915.1024(k)(6)(iv) If the employee is confirmed positive or diagnosed with CBD and the employee provides written authorization, the written opinion must also contain a recommendation for continued periodic medical surveillance.

1915.1024(k)(6)(v) If the employee is confirmed positive or diagnosed with CBD and the employee provides written authorization, the written opinion must also contain a recommendation for medical removal from airborne exposure to beryllium, as described in paragraph (l).

1915.1024(k)(6)(vi) The employer must ensure that each employee receives a copy of the written medical opinion described in paragraph (k)(6) of this standard within 45 days of any medical examination (including any follow-up BeLPT required under paragraph (k)(3)(ii)(E) of this standard) performed for that employee.

1915.1024(k)(7) CBD diagnostic center.

1915.1024(k)(7)(i) The employer must provide an evaluation at no cost to the employee at a CBD diagnostic center that is mutually agreed upon by the employer and the employee. The evaluation at the CBD diagnostic center must be scheduled within 30 days, and must occur within a reasonable time, of:

1915.1024(k)(7)(i)(A) The employer's receipt of a physician's written medical opinion to the employer that recommends referral to a CBD diagnostic center; or

1915.1024(k)(7)(i)(B) The employee presenting to the employer a physician's written medical report indicating that the employee has been confirmed positive or diagnosed with CBD, or recommending referral to a CBD diagnostic center.

1915.1024(k)(7)(ii) The employer must ensure that, as part of the evaluation, the employee is offered any tests deemed appropriate by the examining physician at the CBD diagnostic center, such as pulmonary function testing (as outlined by the American Thoracic Society criteria), bronchoalveolar lavage (BAL), and transbronchial biopsy. If any of the tests deemed appropriate by the examining physician are not available at the CBD diagnostic center, they may be performed at another location that is mutually agreed upon by the employer and the employee.

1915.1024(k)(7)(iii) The employer must ensure that the employee receives a written medical report from the CBD diagnostic center that contains all the information required in paragraph (k)(5)(i), (ii), (iv), and (v) and that the PLHCP explains the results of the examination to the employee within 30 days of the examination.

1915.1024(k)(7)(iv) The employer must obtain a written medical opinion from the CBD diagnostic center within 30 days of the medical examination. The written medical opinion must contain only the information in paragraphs (k)(6)(i), as applicable, unless the employee provides written authorization to release additional information. If the employee provides written authorization, the written opinion must also contain the information from paragraphs (k)(6)(ii), (iv), and (v), if applicable.

1915.1024(k)(7)(v) The employer must ensure that each employee receives a copy of the written medical opinion from the CBD diagnostic center described in paragraph (k)(7) of this standard within 30 days of any medical examination performed for that employee.

1915.1024(k)(7)(vi) After an employee has received the initial clinical evaluation at a CBD diagnostic center described in paragraph (k)(7)(i) of this standard, the employee may choose to have any subsequent medical examinations for which the employee is eligible under paragraph (k) of this standard performed at a CBD diagnostic center mutually agreed upon by the employer and the employee, and the employer must provide such examinations at no cost to the employee.

1915.1024(l) Medical removal.

1915.1024(l)(1) An employee is eligible for medical removal, if the employee works in a job with airborne exposure at or above the action level and either:

1915.1024(l)(1)(i) The employee provides the employer with:

1915.1024(l)(1)(i)(A) A written medical report indicating a confirmed positive finding or CBD diagnosis; or

1915.1024(l)(1)(i)(B) A written medical report recommending removal from airborne exposure to beryllium in accordance with paragraph (k)(5)(v) or (k)(7)(ii) of this standard; or

1915.1024(l)(1)(ii) The employer receives a written medical opinion recommending removal from airborne exposure to beryllium in accordance with paragraph (k)(6)(v) or (k)(7)(iii) of this standard.

1915.1024(l)(2) If an employee is eligible for medical removal, the employer must provide the employee with the employee's choice of:

1915.1024(l)(2)(i) Removal as described in paragraph (l)(3) of this standard; or

1915.1024(l)(2)(ii) Remaining in a job with airborne exposure at or above the action level, provided that the employer provides, and ensures that the employee uses, respiratory protection that complies with paragraph (g) of this standard whenever airborne exposures are at or above the action level.

1915.1024(l)(3) If the employee chooses removal:

1915.1024(l)(3)(i) If a comparable job is available where airborne exposures to beryllium are below the action level, and the employee is qualified for that job or can be trained within one month, the employer must remove the employee to that job. The employer must maintain for six months from the time of removal the employee's base earnings, seniority, and other rights and benefits that existed at the time of removal.

1915.1024(l)(3)(ii) If comparable work is not available, the employer must maintain the employee's base earnings, seniority, and other rights and benefits that existed at the time of removal for six months or until such time that comparable work described in paragraph (l)(3)(i) becomes available, whichever comes first.

1915.1024(l)(4) The employer's obligation to provide medical removal protection benefits to a removed employee shall be reduced to the extent that the employee receives compensation for earnings lost during the period of removal from a publicly or employer-funded compensation program, or receives income from another employer made possible by virtue of the employee's removal.

1915.1024(m) Communication of hazards--

1915.1024(m)(1) General.

1915.1024(m)(1)(i) Chemical manufacturers, importers, distributors, and employers must comply with all requirements of the HCS (29 CFR 1910.1200) for beryllium.

1915.1024(m)(1)(ii) Employers must include beryllium in the hazard communication program established to comply with the HCS. Employers must ensure that each employee has access to labels on containers of beryllium and to safety data sheets, and is trained in accordance with the requirements of the HCS (29 CFR 1910.1200) and paragraph (m)(3) of this standard.

1915.1024(m)(2) Warning signs.

1915.1024(m)(2)(i) Posting. The employer must provide and display warning signs at each approach to a regulated area so that each employee is able to read and understand the signs and take necessary protective steps before entering the area.

1915.1024(m)(2)(ii) Sign specification.

1915.1024(m)(2)(ii)(A) The employer must ensure that the warning signs required by paragraph (m)(2)(i) of this standard are legible and readily visible.

1915.1024(m)(2)(ii)(B) The employer must ensure each warning sign required by paragraph (m)(2)(i) of this standard bears the following legend:

DANGER REGULATED AREA BERYLLIUM

MAY CAUSE CANCER CAUSES DAMAGE TO LUNGS

AUTHORIZED PERSONNEL ONLY

WEAR RESPIRATORY PROTECTION AND

PERSONAL PROTECTIVE CLOTHING AND EQUIPMENT IN THIS AREA

1915.1024(m)(3) Employee information and training.

1915.1024(m)(3)(i) For each employee who has, or can reasonably be expected to have, airborne exposure to beryllium:

1915.1024(m)(3)(i)(A) The employer must provide information and training in accordance with the HCS (29 CFR 1910.1200(h));

1915.1024(m)(3)(i)(B) The employer must provide initial training to each employee by the time of initial assignment; and

1915.1024(m)(3)(i)(C) The employer must repeat the training required under this standard annually for each employee

1915.1024(m)(3)(ii) The employer must ensure that each employee who is, or can reasonably be expected to be, exposed to airborne beryllium can demonstrate knowledge and understanding of the following:

1915.1024(m)(3)(ii)(A) The health hazards associated with exposure to beryllium, including the signs and symptoms of CBD;

1915.1024(m)(3)(ii)(B) The written exposure control plan, with emphasis on the location(s) of any regulated areas, and the specific nature of operations that could result in airborne exposure, especially airborne exposure above the TWA PEL or STEL;

1915.1024(m)(3)(ii)(C) The purpose, proper selection, fitting, proper use, and limitations of personal protective clothing and equipment, including respirators;

1915.1024(m)(3)(ii)(D) Measures employees can take to protect themselves from exposure to beryllium;

1915.1024(m)(3)(ii)(E) The purpose and a description of the medical surveillance program required by paragraph (k) of this standard including risks and benefits of each test to be offered;

1915.1024(m)(3)(ii)(F) The purpose and a description of the medical removal protection provided under paragraph (l) of this standard;

1915.1024(m)(3)(ii)(G) The contents of the standard; and 1915.1024(m)(3)(ii)(H)

The employee's right of access to records under the Records Access standard (29 CFR 1910.1020).

1915.1024(m)(3)(iii) When a workplace change (such as modification of equipment, tasks, or procedures) results in new or increased airborne exposure that exceeds, or can reasonably be expected to exceed, either the TWA PEL or the STEL, the employer must provide additional training to those employees affected by the change in airborne exposure.

1915.1024(m)(3)(iv) The employer must make a copy of this standard and its appendices readily available at no cost to each employee and designated employee representative(s).

1915.1024(n) Recordkeeping --

1915.1024(n)(1) Air monitoring data.

1915.1024(n)(1)(i) The employer must make and maintain a record of all exposure measurements taken to assess airborne exposure as prescribed in paragraph (d) of this standard.

1915.1024(n)(1)(ii) This record must include at least the following information:

1915.1024(n)(1)(ii)(A) The date of measurement for each sample taken;

1915.1024(n)(1)(ii)(B) The task that is being monitored;

1915.1024(n)(1)(ii)(C) The sampling and analytical methods used and evidence of their accuracy;

1915.1024(n)(1)(ii)(D) The number, duration, and results of samples taken;

1915.1024(n)(1)(ii)(E) The type of personal protective clothing and equipment, including respirators, worn by monitored employees at the time of monitoring; and

1915.1024(n)(1)(ii)(F) The name and job classification of each employee represented by the monitoring, indicating which employees were actually monitored.

1915.1024(n)(1)(iii) The employer must ensure that exposure records are maintained and made available in accordance with the Records Access standard (29 CFR 1910.1020).

1915.1024(n)(2) Objective data.

1915.1024(n)(2)(i) Where an employer uses objective data to satisfy the exposure assessment requirements under paragraph (d)(2) of this standard, the employer must make and maintain a record of the objective data relied upon.

1915.1024(n)(2)(ii) This record must include at least the following information:

1915.1024(n)(2)(ii)(A) The data relied upon;

1915.1024(n)(2)(ii)(B) The beryllium-containing material in question;

1915.1024(n)(2)(ii)(C) The source of the objective data;

1915.1024(n)(2)(ii)(D) A description of the process, task, or activity on which the objective data were based; and

1915.1024(n)(2)(ii)(E) Other data relevant to the process, task, activity, material, or airborne exposure on which the objective data were based.

1915.1024(n)(2)(iii) The employer must ensure that objective data are maintained and made available in accordance with the Records Access standard (29 CFR 1910.1020).

1915.1024(n)(3) Medical surveillance.

1915.1024(n)(3)(i) The employer must make and maintain a record for each employee covered by medical surveillance under paragraph (k) of this standard.

1915.1024(n)(3)(ii) The record must include the following information about each employee:

1915.1024(n)(3)(ii)(A) Name and job classification;

1915.1024(n)(3)(ii)(B) A copy of all licensed physicians' written medical opinions for each employee; and

1915.1024(n)(3)(ii)(C) A copy of the information provided to the PLHCP as required by paragraph (k)(4) of this standard.

1915.1024(n)(3)(iii) The employer must ensure that medical records are maintained and made available in accordance with the Records Access standard (29 CFR 1910.1020).

1915.1024(n)(4) Training.

1915.1024(n)(4)(i) At the completion of any training required by this standard, the employer must prepare a record that indicates the name and job classification of each employee trained, the date the training was completed, and the topic of the training.

1915.1024(n)(4)(ii) This record must be maintained for three years after the completion of training.

1915.1024(n)(5) Access to records. Upon request, the employer must make all records maintained as a requirement of this standard available for examination and copying to the Assistant Secretary, the Director, each employee, and each employee's designated representative(s) in accordance the Records Access standard (29 CFR 1910.1020).

1915.1024(n)(6) Transfer of records. The employer must comply with the requirements involving transfer of records set forth in the Records Access standard (29 CFR 1910.1020).

1915.1024(o) Dates --

1915.1024(o)(1) Effective date. This standard shall become effective March 10, 2017.

1915.1024(o)(2) Compliance dates.

1915.1024(o)(2)(i) All obligations contained in paragraph (c) of this standard commence and become enforceable on March 12, 2018; and

1915.1024(o)(2)(ii) All other obligations of this standard commence and become enforceable on September 30, 2020.

History

• EFFECTIVE DATE:
• November 28, 2018 Secretary of State Rule Log #18-044
• AMENDED:
• January 9, 2022 Secretary of State Rule Log # 21-033, 10/13/2022 Secretary of State Rule Log # 22-026
• STATUTORY AUTHORITY: 21 V.S.A. §§ 204, 224

Chapter 041 BLOODBORNE PATHOGENS (29 CFR 1910.1030 INCORPORATED BY REFERENCE)

24-041 Code Vt. R. 24-050-041-X BLOODBORNE PATHOGENS (29 CFR 1910.1030 INCORPORATED BY REFERENCE)

Part Number: 1910

Part Number Title: Occupational Safety and Health Standards

Standard Number: 1910.1030

Title: Bloodborne pathogens.

Appendix: A

History

• EFFECTIVE DATE:
• Jun 4, 1992 Secretary of State Rule Log #92-022
• AMENDED:
• March 22, 2002 Secretary of State Rule Log #02-11; February 2019 [Renumbered from 13 140 042]
• STATUTORY AUTHORITY: 18 V.S.A. § 1417(2); 21 V.S.A. § 224(b)

Chapter 042 OCCUPATIONAL EXPOSURE TO HAZARDOUS CHEMICALS IN LABORATORIES (29 CFR 1910.1450 INCORPORATED BY REFERENCE)

24-042 Code Vt. R. 24-050-042-X OCCUPATIONAL EXPOSURE TO HAZARDOUS CHEMICALS IN LABORATORIES (29 CFR 1910.1450 INCORPORATED BY REFERENCE)

Part Number: 1910

Part Number Title: Occupational Safety and Health Standards

Subpart: 1910 Subpart Z

Subpart Title: Toxic and Hazardous Substances Standard Number: 1910.1450

Title: Occupational exposure to hazardous chemicals in laboratories.

Appendix: AB

History

• EFFECTIVE DATE:
• July 25, 1992 Secretary of State Rule Log #92-037 entitled "VOSHA Rule 1910.1450 'Occupational Exposure to Hazardous Chemical in Laboratories
• AMENDED:
• February 2019 [Renumbered from 13 140 043]
• STATUTORY AUTHORITY: 18 V.S.A. § 1417(2); 21 V.S.A. § 224(b)

Chapter 043 AIR CONTAMINANTS (29 CFR 1910.1000 INCORPORATED BY REFERENCE)

24-043 Code Vt. R. 24-050-043-X AIR CONTAMINANTS (29 CFR 1910.1000 INCORPORATED BY REFERENCE)

Part Number: 1910

Part Number Title: Occupational Safety and Health Standards

Subpart: 1910 Subpart Z

Subpart Title: Toxic and Hazardous Substances

Standard Number: 1910.1000

Title: Air contaminants.

History

• EFFECTIVE DATE:
• November 6, 1991 Secretary of State Rule Log #90-051
• AMENDED:
• July 25, 1992 Secretary of State Rule Log #92-038; February 2019 [Renumbered from 13 140 044]
• STATUTORY AUTHORITY: 18 V.S.A. § 1417(2); 21 V.S.A. § 224(b)

Chapter 044 ACCESS TO EMPLOYEE EXPOSURE AND MEDICAL RECORDS (29 CFR 1910.1020 INCORPORATED BY REFERENCE)

24-044 Code Vt. R. 24-050-044-X ACCESS TO EMPLOYEE EXPOSURE AND MEDICAL RECORDS (29 CFR 1910.1020 INCORPORATED BY REFERENCE)

Part Number: 1910

Part Title: Occupational Safety and Health Standards

Subpart: Z

Subpart Title: Toxic and Hazardous Substances

Standard Number: 1910.1020

Title: Access to employee exposure and medical records.

Appendix: A , B

History

• EFFECTIVE DATE:
• July 25, 1992 Secretary of State Rule Log #92-039
• AMENDED:
• February 2019 [Renumbered from 13 140 045]
• STATUTORY AUTHORITY: 18 V.S.A. § 1417(2); 21 V.S.A. § 224(b)

Chapter 045 OCCUPATIONAL EXPOSURE TO ASBESTOS (29 CFR 1910.1001; 1915.1001; 1926.58 INCORPORATED BY REFERENCE)

24-045 Code Vt. R. 24-050-045-X OCCUPATIONAL EXPOSURE TO ASBESTOS (29 CFR 1910.1001; 1915.1001; 1926.58 INCORPORATED BY REFERENCE)

Part Number: 1910

Part Number Title: Occupational Safety and Health Standards

Subpart: 1910 Subpart Z

Subpart Title: Toxic and Hazardous Substances

Standard Number: 1910.1001

Title: Asbestos.

Appendix: ABCDEFGHIJ

Part Number: 1915

Part Number Title: Occup. Safety and Health Standards for Shipyard Employment

Subpart: 1915 Subpart Z

Subpart Title: Toxic and Hazardous Substances

Standard Number: 1915.1001

Title: Asbestos

Part Number: 1926

Part Number Title: Safety and Health Regulations for Construction

Subpart: 1926 Subpart Z

Subpart Title: Toxic and Hazardous Substances

Standard Number: 1926.1101 (formerly 1926.58)

Title: Asbestos

Appendix: ABCDEFGHIJK

History

• EFFECTIVE DATE:
• July 15, 1987 Secretary of State Rule Log #87-031
• AMENDED:
• July 25, 1992 Secretary of State Rule Log #92-040; December 31, 1992 Secretary of State Rule Log #92-067; July 10, 1995 Secretary of State Rule Log #95-036; February 19, 1996 Secretary of State Rule Log #96-010; June 23, 1997 Secretary of State Rule Log #97-023; April 18, 2000 Secretary of State Rule Log #00-023; February 2019 [Renumbered from 13 140 046 and 13 140 056]
• STATUTORY AUTHORITY: 18 V.S.A. § 1417(2); 21 V.S.A. § 224(b)

Chapter 046 FORMALDEHYDE (29 CFR 1910.1048 INCORPORATED BY REFERENCE)

24-046 Code Vt. R. 24-050-046-X FORMALDEHYDE (29 CFR 1910.1048 INCORPORATED BY REFERENCE)

Part Number: 1910

Part Number Title: Occupational Safety and Health Standards

Subpart: 1910 Subpart Z

Subpart Title: Toxic and Hazardous Substances

Standard Number: 1910.1048

Title: Formaldehyde.

Appendix: ABCDE

History

• EFFECTIVE DATE:
• November 1, 1989 Secretary of State Rule Log #89-049
• AMENDED:
• December 31, 1992 Secretary of State Rule Log #92-068; February 2019 [Renumbered from 13 140 047]
• STATUTORY AUTHORITY: 18 V.S.A. § 1417(2); 21 V.S.A. § 224(b)

Chapter 048 METHYLENEDIANILINE (MDA) (29 CFR 1910.1050; 1926.60 INCORPORATED BY REFERENCE)

24-048 Code Vt. R. 24-050-048-X METHYLENEDIANILINE (MDA) (29 CFR 1910.1050; 1926.60 INCORPORATED BY REFERENCE)

Part Number: 1910

Part Number Title: Occupational Safety and Health Standards

Subpart: 1910 Subpart Z

Subpart Title: Toxic and Hazardous Substances

Standard Number: 1910.1050

Title: Methylenedianiline

Appendix: ABCDE

Part Number: 1926

Part Number Title: Safety and Health Regulations for Construction

Standard Number: 1926.60

Title: Methylenedianiline.

History

• EFFECTIVE DATE:
• March 26, 1993 Secretary of State Rule Log #93-018
• AMENDED:
• February 2019 [Renumbered from 13 140 050]
• STATUTORY AUTHORITY: 18 V.S.A. § 1417(2); 21 V.S.A. § 224(b)

Chapter 049 LEAD (29 CFR 1926.62 INCORPORATED BY REFERENCE)

24-049 Code Vt. R. 24-050-049-X LEAD (29 CFR 1926.62 INCORPORATED BY REFERENCE)

Part Number: 1926

Part Number Title: Safety and Health Regulations for Construction

Standard Number: 1926.62

Title: Lead

History

• EFFECTIVE DATE:
• November 19, 1993 Secretary of State Rule Log #93-081
• AMENDED:
• February 2019 [Renumbered from 13 140 051]
• STATUTORY AUTHORITY: 18 V.S.A. § 1417(2); 21 V.S.A. § 224(b)

Chapter 050 OCCUPATIONAL EXPOSURE TO 1,3-BUTADIENE (29 CFR 1910; 1915; 1926 INCORPORATED BY REFERENCE)

24-050 Code Vt. R. 24-050-050-X OCCUPATIONAL EXPOSURE TO 1,3-BUTADIENE (29 CFR 1910; 1915; 1926 INCORPORATED BY REFERENCE)

Part Number: 1910

Part Number Title: Occupational Safety and Health Standards

Subpart: 1910 Subpart Z

Subpart Title: Toxic and Hazardous Substances

Standard Number: 1910.1051

Title: 1,3-Butadiene.

Appendix: ABCDEF

History

• EFFECTIVE DATE:
• June 23, 1997 Secretary of State Rule Log #97-022
• AMENDED:
• February 2019 [Renumbered from 13 140 058]
• STATUTORY AUTHORITY: 18 V.S.A. § 1417(2); 21 V.S.A. § 224(b)

Chapter 051 METHYLENE CHLORIDE (29 CFR PARTS 1910; 1915; 1926 INCORPORATED BY REFERENCE)

24-051 Code Vt. R. 24-050-051-X METHYLENE CHLORIDE (29 CFR PARTS 1910; 1915; 1926 INCORPORATED BY REFERENCE)

Part Number: 1910

Part Number Title: Occupational Safety and Health Standards

Subpart: 1910 Subpart Z

Subpart Title: Toxic and Hazardous Substances

Standard Number: 1910.1052

Title: Methylene Chloride.

Appendix: ABC

Part Number: 1915

Part Number Title: Occup. Safety and Health Standards for Shipyard Employment

Subpart: 1915 Subpart Z

Subpart Title: Toxic and Hazardous Substances

Standard Number: 1915.1052

Title: Methylene Chloride.

Part Number: 1926

Part Number Title: Safety and Health Regulations for Construction

Subpart: 1926 Subpart Z

Subpart Title: Toxic and Hazardous Substances

Standard Number: 1926.1152

Title: Methylene Chloride.

History

• EFFECTIVE DATE:
• November 15, 1997 Secretary of State Rule Log #97-054
• AMENDED:
• August 6, 1999 Secretary of State Rule Log #99-036; February 2019 [Renumbered from 13 140 059]
• STATUTORY AUTHORITY: 18 V.S.A. § 1417(2); 21 V.S.A. § 224(b)