labor lawAdivision of labor law center

Employers should be granting a newly expanded FMLA leave now to relatives and spouses of active duty Reserve and National Guard members.

A new law, the National Defense Authorization Act of 2008 (NDAA), went into effect on January 28, 2008, and became effective immediately. The President signed the bill to amend the FMLA leave from 12 weeks to 26 weeks for military families.

The U.S. Labor Department is completing regulations for the expanded FMLA coverage, but in the meantime employers are expected to act in good faith to comply with the legislation.

The NDAA essentially amends the Family and Medical Leave Act. So the U.S. Labor Department is urging employers to use the existing FMLA procedural guidelines for unpaid leave. That includes medical certification and paid leave substitution.

It also appears that the NDAA allows workers to take the maximum of 26 weeks for what is called “any qualifying exigency” if a spouse, parent, son or daughter of an employee is called to active duty. Time off to care for children, when a family member is on active duty, is likely to be part of the plan.

However, information at this point is somewhat contradictory. On the one hand the provision does not become effective, at least technically, until the U.S. Labor Secretary releases the final regulations. They should describe what is included in the term “qualifying exigency.” On the other hand, the Labor Department is “encouraging” employers to make a good-faith effort to provide the leave immediately.

The NDAA enlarges FMLA to include “next of kin” as a person entitled to NDAA leave when the soldier is injured. . Aunts, uncles, cousins and in-laws of the soldier could qualify for the 26 weeks of leave.

The law guarantees 26 weeks of the unpaid FMLA leave so a spouse, child, parent or next of kin may take care of a member of the military services who is getting medical treatment. That would include mental and physical therapy, outpatient treatment, recuperation, or caring for someone on the temporary disability retired list for a severe injury or illness.

Until 1993, employers in Nevada and elsewhere in the U.S. were under no obligation to provide workers with job protected, unpaid leave for an illness. If a worker got a heart attack or had to undergo chemotherapy or major surgery, he or she could be fired for taking 2 or 3 weeks of work off.

That all changed with the Family and Medical Leave Act, or FMLA. With the passage of the Act, workers could take as much as 12 weeks of unpaid but job protected leave during any 12-month period if there is a serious illness.

“Job protected” means the employee was now guaranteed his or her job back at the end of the leave. If it was impossible to provide the same job, then one with very similar duties, pay, benefits and conditions must be offered.

FMLA allows workers to take leave also to care for a seriously ill member of the “immediate family,” namely spouses, children, or parents. Some states have expanded that. Hawaii, for example, allows workers to take leave to care for grandparents or in-laws with serious illnesses.

FMLA is also a maternity/paternity leave. It allows workers to take the time to bond with a newborn child, a newly adopted child, or a new foster child under age 18.

The FMLA only covers companies with 50 or more workers within 75 miles, although 11 states in the U.S. have extended the law to cover smaller firms.

Employers are allowed to count paid leave, such as sick time or PTO (Paid Time Off) against the 12 weeks of FMLA. However, the employee must be notified of that intention in writing before his or her leave begins.

“Job protected” means the employee is entitled to the same or similar work when he or she returns. If the same job cannot be provided then the employer must provide one with similar pay, duties, working conditions, and benefits.

While the FMLA limits leave to care for “immediate family,” some states have expanded that. Hawaii, for example, allows workers to take job protected unpaid leave to care for grandparents or in-laws.

Before the passage of the FMLA, employers were under no obligation to keep an employee who had to take time because of serious illness, even if the worker underwent chemotherapy or major surgery.

OSHA has issued a warning about the dangers of Cold Stress for workers, even in moderate climates, just in time for the spring thunderstorm season in Georgia.

On Tuesday, a line of severe thunderstorms hit the Atlanta metro area, causing damage and widespread power outages. CNN reports that several homes were demolished on Smithfield Road near Georgia Highway 100, in Carroll County. The residents were away, so there was no loss of life, according to law enforcement officials.

Two lanes of I-75 south, near Delk Road, were blocked by a downed tree during rush hour, causing extensive delays. The lanes were cleared just after 8 am but the traffic problems continued into mid-day.

According to a Georgia Power spokesperson, nearly 100,000 customers were without power by 8 am. An additional 3,500 in the western part of the state lost power.

Gusts of wind up to 60 mph were reported at Dobbins Air Base.

The weather system moved through the area quickly and by daybreak the worst was over.

OSHA warns that utility workers and emergency responders are particularly vulnerable to Cold Stress during the aftermath of a major storm. They are often working in less than ideal conditions during the clean-up operations.

Many employers do not realize that Cold Stress and even life-threatening hypothermia can occur at temperatures as high as 50 degrees. The dangers of Cold Stress are greatly magnified when working outdoors in wet, windy conditions. Every employer should be aware of this hazard to those who work outdoors, in any occupation.

Workers in a number of industries are prone to Cold Stress, including those who work in agriculture, construction and who resurface roads.

The Occupational Safety and Health Administration (OSHA) urges employers to be aware of the hazards of working in cold weather and take appropriate precautions. Employees who work outside or in freezers for extended periods are susceptible to Trench Foot, frostbite, cold stress and hypothermia. Every employer is responsible for establishing cold weather protocols for safety in the workplace.

To aid companies in ensuring safety of their workers, OSHA recommends several common-sense measures.

Proper clothing is of the utmost importance. OSHA standards suggest workers wear at least three layers of clothing. The fabric used in these layers is particularly important. Different fabrics contain different insulating properties and react differently to moisture.

For instance, when cotton gets wet, it loses its ability to insulate. Wool, on the other hand is a good insulator even when completely soaked. Therefore, cotton should be worn as the innermost layer to provide ventilation. Wool, or down, as the next layer will absorb sweat and keep the body warm. The third or outer layer needs to be a material like nylon or Gortex that will keep out the wind.

Proper clothing includes the entire body. Employees should always wear a hat. An exposed head can lose up to 40 degrees of body heat. Feet need to be kept warm, too. Workers should wear boots or insulated footwear, and if they work in wet conditions, the footwear should be waterproof.

While working outside, or inside a freezer, workers should avoid drinking alcohol and caffeine. These substances impede the body’s ability to keep warm. Prescription drugs and smoking cigarettes can also affect the body’s heating system. Workers need to be aware of these effects and dress and behave accordingly.

When employees are working in the cold, they should work in pairs and watch each other for signs of cold stress. Symptoms include confusion, disorientation and irrational behavior. To help avoid cold stress, workers should take frequent breaks in a warm area, such as a heated shelter or warm vehicle. Managers, supervisors and coworkers should all receive training to recognize these signs.

Thanks to recent federal legislation, relatives of soldiers who are going away to active duty may now take more than 6 months of unpaid leave to help with family duties.

The time may be taken either to care for an injured soldier or to care for a child or sick member of the family.

The legislation is the NDAA, or National Defense Authorization Act of 2008. It passed January 28, 2008, and is effective immediately. The U.S. Department of Labor is making an effort to complete regulations stemming from this bill, and information will be released as it becomes available.

In the meantime, the Labor Department expects employers to make what it calls a “good faith effort” to comply.

The new Act essentially extends the time available through the Family and Medical Leave Act (FMLA) to this qualifying group of employees to 26 weeks, rather than the usual 12 weeks. Unpaid leave under the FMLA is job-protected.

The expanded leave is largely for spouses, parents, sons or daughters of soldiers. Under some conditions however, even aunts, uncles and cousins may qualify to take the extended leave. That’s because the law permits a wounded soldier’s “next of kin” to take time off to care for him. Presumably, that is true even if the “next of kin” is a second or third cousin.

Spouses, daughters, parents, and sons may take up to 26 weeks if a family member is called up to active duty or will be deployed shortly. The expanded leave is likely to be used most by spouses of members of the Reserve or National Guard.

Under regular FMLA guidelines, qualifying workers can take the leave time to care for a sick child, parent, or spouse, or to help with a newborn, a newly adopted child, or a newly added foster child. The new regulations allow employees to take time to care for healthy children who would otherwise be cared for by the soldier who has been called up for active duty. It may still be used to care for a sick parent or child.

Families of injured soldiers were allowed to start taking the leave on January 28, 2008.

The regulations as they now stand allow employers to count paid leave as part of the 13 weeks of FMLA leave. Presumably, this rule will be the same for the 26 weeks of leave for military families.

The Family and Medical Leave Act of 1993 (FMLA) was a major change for workers. For the first time, the law required employers to provide an employee with leave when he or she suffered from serious health problems. FMLA leave is unpaid, but job protected, meaning the worker is guaranteed the same or a similar job when he or she returns.

The only expansion of the law since its original passage is the National Defense Authorization Act (NDAA) of 2008, which, among other things, increases leave time for relatives of military personnel on active duty. The U.S. Department of Labor is scrambling to complete regulations based on the NDAA, and few details are available yet.

The FMLA provides workers with a guaranteed 12 weeks of unpaid, job protected leave yearly. The time can be used if the employee is seriously ill. Workers can also use it to care for a member of the immediate family with an illness. By “immediate family” the law refers to spouses, children or parents, but not grandparents, in-laws, or siblings.

The law is meant to allow employees to care for a newborn child, a new foster child under 18 or a newly adopted child, thus its common designation as “maternity leave” or “paternity leave.”

Because the leave is job protected, workers must be given the same or a similar job when they return to work. If it is impossible to reinstate the worker in the original job, then it must be one with similar pay, conditions, duties, and benefits.

Employers are permitted, under some conditions, to count paid leave time — sick time or Paid Time Off (PTO) — against the 12 weeks of FMLA leave. But the employee must be notified in writing before the leave time begins.

The FMLA law applies to any company with 50 or more employees within a 75-mile radius. Some states have expanded that to include smaller firms. And some states have enlarged the coverage to include care for other relatives besides members of the immediate family. It remains to be seen if these same states will adopt NDAA for smaller companies.

OSHA warns employers of the dangers associated with Cold Stress and hypothermia in the wake of a tragic tornado in Prattville, Alabama last week.

The tornado severely damaged or destroyed 200 homes and businesses in the small town outside Montgomery. According to Mayor Jim Byard, crews were searching for survivors in the wreckage the next morning.

Two people were critically injured in the incident. A 35-bed mobile hospital was set up in a Kmart parking lot to handle victims with minor to moderate injuries. This enabled hospitals and emergency rooms to focus on those with more critical injuries.

OSHA warns that in the wake of such natural disaster, employers need to take special precautions to protect workers from cold stress and hypothermia. Emergency workers and utility workers, are particularly at risk. However, cold stress can strike any worker at temperatures up to 50 degrees, especially in windy or wet conditions.

Severe weather seems to be the rule in the past few weeks. Tornados were blamed for the destruction of four homes in Escambia County Florida. About 60 homes were damaged. In nearby Escambia County, Alabama two houses were destroyed in the town of Dixie, according to the National Weather Service. The storm also damaged some structures in Covington County, Alabama and toppled trees.

The National Weather Service warned of additional damage in Georgia.

Meanwhile, the Midwest was reeling from another major snowstorm that snarled travel for days. Freezing rain and snow fell across two-thirds of Wisconsin, causing a traveler’s advisory with authorities urging people to stay off the roads. The National Weather Service issued a blizzard warning for the area.

Few employers realize that in cases like this, the weather in Alabama can be just as deadly as the weather in Wisconsin. Cold Stress and even potentially fatal hypothermia can occur at temperatures as high as 50 degrees.

During the aftermath of severe weather, utility workers and emergency responders are especially at risk. But, any employer should make sure that outdoor workers take precautions.

Outdoor workers, and those who spend a lot of time in freezers, are especially susceptible to cold stress, frostbite and hypothermia. OSHA (Occupational Safety and Health Administration) reminds employers to prepare for cold weather and to encourage employees to follow safety protocols.

Possibly the most obvious, and the most important, measure is for the employee to wear proper clothing. OSHA recommends at least three layers of clothing, with cotton on the innermost layer, followed by wool or down, completed by an outer layer of nylon.

The fabric is just as important as the layers. Cotton insulates until it gets wet. Wool, on the other hand insulates even when completely wet. Using wool as a second layer will absorb the sweat and still provide warmth. Nylon or Gortex is good as a wind break, thereby reducing the effects of wind chill.

Employees should avoid getting wet if at all possible. They should also keep a change of clothing in a warm, dry area to replace any work clothes that get soaked. Temporary shelters around the work site can help reduce the effects of wind, and if the shelters are heated, they can provide a warm area for the workers to take a break.

While working in cold temperatures, employees should take frequent breaks, drink plenty of fluids and eat warm food that is high in calories. Breaks should be taken out of the cold in a warm vehicle or a heated shelter. Employees should also work in pairs to watch for symptoms of cold weather exposure such as cold stress. Signs include disorientation, irrational behavior and confusion.

Training should be provided to all coworkers, managers and supervisors, so they are able recognize the signs of cold stress. If an employee begins to exhibit symptoms, or begins to feel uncomfortable, he or she must stop working and seek a warm area.

OSHA warns employers to take steps to prevent violence in the workplace.

In a frightening incident this month, an armed man terrorized employees at a Kmart store in Whatcom County, Washington. The man stole a gun from the retailer, then ran through the store screaming and knocking over employees on February 14. The man is described as a white male in his mid-twenties.

The man held a knife to the store manager’s throat before smashing a display case to steal a gun an ammo.

Outside the store, the man confronted a police officer, but stopped short of aiming the gun at anyone. The man threatened to kill himself if apprehended.

While there is no conclusive evidence yet, it appears that the man may have been under the influence of drugs, alcohol or both.

People who witnessed the incident are asked to contact the Bellingham Police Department. Police are concerned that an accomplice in the incident may still be at large.

When employers think of the potential for violence in the workplace, they usually focus on late-night robberies of convenience stores, not mid-morning robberies of suburban discount stores.

But, as this incident proves, every employer needs to be prepared for violence in the workplace.

Workplace violence in Washington and across the U.S. is one of OSHA’s (Occupational Safety and Health Administration) primary concerns. Unfortunately, homicides are a large component of violence on the job. The Bureau of Labor Statistics reported that in 2006, 94 murders occurred in the workplace. The number has decreased from over 200 homicides in the early 1990s, but murder is still a major factor.

Over 2 million Americans are victims of violence in the workplace every year. OSHA suggests several ways to help prevent this violence, which OSHA defines as threats, verbal abuse, assaults, physical abuse and homicide. These recommendations include installing security systems, extra lights and video surveillance cameras.

In addition to installing safety equipment, companies should install an antiviolence program into the safety plan. Employers should also provide training for workers on how to understand the program and how to react in violent situations. Putting the program details in writing in the employee handbook is a good way to ensure all workers receive the information.

Employers should also be aware that certain occupations are at higher risk for workplace violence. All workers who deal with the public, especially regarding money, and in high crime areas, and alone late at night, are at increased risk. Healthcare workers and other employees who provide social services also experience a higher risk of violence on the job. Statistics show that nurses are assaulted on the job as often as police officers. Most of the attacks occur in hospitals, but can also happen on home visits.

People who work away from an office can be faced with workplace violence, too. To help ensure their safety, these employees, such as outside salespeople, cable TV installers and utility workers, should be required to file a daily schedule with their employer, and to check in with home base on a regular basis.

When violent incidents do occur, employees should report it immediately. Companies should also investigate and remedy the problem immediately.

Streaming videos and downloads on preventing workplace violence are available from the NIOSH (National Institute for Occupational Safety and Health).

Already this year there have been several incidents of violence in the workplace. In February a gunman killed one employee and four customers at a Lane Bryant store in Tinley Park, Illinois. Another employee was in critical condition, but able to assist the police in the investigation. The gunman herded all the women into the back room of the store and bound them with rope and duct tape. He proceeded to rob the store. When the store manager surreptitiously dialed 911, the gunman overheard the conversation and opened fire on the defenseless women.