labor lawAdivision of labor law center

The Family and Medical Leave Act (FMLA) will undergo several changes on or about April 11, 2008 that concern all Arizona employers. These changes were proposed on February 11, 2008, by the U. S. Department of Labor. During the interim, employers can review the changes and make comments on them.

The U. S. Department of Labor is accepting comments online until April. All comments posted on the website are viewable to the public, so employers need to be aware of the content of their post.

To add a comment, click this link and type in “Family and Medical Leave Act”. Be sure to put quotes around the keywords.

The new FMLA will amend how paid leave is used while on FMLA leave in Arizona. The term “substitution of paid leave” refers to an employee using paid time off as past of FMLA leave. Currently, employees can use their paid sick leave. Under the new regulations, workers will also be able to use accrued personal leave and accrued vacation time.

For example, Betty has developed a long term illness and needs to take time off. Currently she has 2 weeks of sick leave, 3 weeks of personal leave and 5 weeks of vacation time for a total of 10 weeks of PTO. When the new FMLA goes into effect, she can use all ten weeks of PTO and only two weeks of FMLA will be unpaid leave.

Until the new regulations go into effect, however, Betty could only use her two weeks of sick time toward FMLA. The rest – 10 weeks of FMLA — would be unpaid.

The new regulations will also require FMLA leave to be counted toward an employee’s absences. Prior to the changes, employees on FMLA weren’t considered “absent”. This policy meant that even when an employee took off 12 weeks for FMLA, he or she was still eligible for “perfect attendance” bonuses and awards. Coworkers and supervisors complained that the policy was unfair to other workers.

One change to the regulations corrects what many saw as an injustice under the old plan. Although workers on FMLA leave continue to accrue seniority, they will no longer be eligible for “perfect attendance” rewards.

The FMLA (Family and Medical Leave Act) provides workers with up to 12 weeks of job-protected, unpaid leave to care for themselves or a family member (child, spouse or parent) with a “serious medical condition.”

Recently the U. S. Department of Labor proposed changes to the FMLA, several of which focused on the definition of “serious medical condition” and the process of obtaining its certification.

The FMLA regulations include several ways to classify a “serious medical condition”. The new regulations will keep six of the definitions and clarify a couple of terms. One definition requires the employee to be incapacitated for three consecutive days and visit the healthcare provider two times. “Two times,” however was not defined as any specific time period. Under the new regulations, the U. S. Department of Labor will define “two visits to a healthcare provider” as two times within 30 days of the incapacitation.

Certification of the “serious medical condition” by a healthcare provider is usually required. The U. S. Department of Labor permits employers to do this to deter abuse of the leave. The employer can also require a second or even third opinion, but is responsible for paying for those visits.

In addition to “serious medical condition” the new regulations include changes regarding the employee’s right to settle FMLA suits out of court, the certification process of “fitness-for-duty” and the substitution of paid leave for qualified employees.

Victoria Lipnic of the U. S. Department of Labor made the following statement. “This proposal is the result of a thoughtful, careful process that included a Request for Information with 15,000 public comments in 2006, many conversations with stakeholders, and the department’s experience in administering and enforcing the law.”

Though the regulations were proposed on February 11, 2008, they do not go into effect until April 11, 2008. Until that time, employers have the opportunity to review the changes and post comments on them.

Once the new regulations are published, they become law, and all employers are required to comply.

Recently, tornados in the south have spurred new OSHA warnings about the hazards that utility workers, emergency responders and others face in cold weather in Arizona.

OSHA (Occupational Safety and Health Administration) is warning all businesses, including those in Arizona, that cold, wet or windy weather conditions can be dangerous for employees.

Even if the temperature is a mild 50 degrees, an employee can suffer from cold related injuries and illnesses. The body can get too cold, become unable to warm itself and suffer cold stress, frostbite and hypothermia.

Employees who work outdoors are at a particularly high risk, but any worker can be susceptible to these illnesses during the winter months.

Cold stress is a less severe form of hypothermia, but in severe cases it can be fatal. Cold stress occurs when a person is exposed to cold and has difficulty getting warm. The colder the temperature, the harder the body works to generate heat. The internal organs are the first priority for the body’s heat generator, which means more and more blood is drawn from the extremities. Ears, the nose, hands, feet, arms and legs lose a great deal of warmth and become extremely susceptible to frostbite.

Some workers may be at a higher risk for cold stress due to age and/or medications. Older bodies warm themselves less efficiently. Medications such as antidepressants, sedatives and tranquilizers can affect body warming as well. These employees need to be aware of these factors and act accordingly.

The hazards of cold weather can be reduced by simply following a few safety procedures. First, all employees should wear appropriate clothing for the weather conditions. Dress in layers to adjust to changes in temperature. Avoid getting wet, especially when it’s windy.

Second, drink warm beverages like broth, but avoid caffeinated or alcoholic drinks. Caffeine and alcohol impair the body’s warming capabilities. Meals that are warm and rich in carbohydrates are also recommended.

Third: employees should take frequent breaks from the cold and go indoors, into a heated vehicle, or somewhere out of the wind.

Arizona Cold OSHA Warning

The Occupational Safety and Health Administration (OSHA) reminds employers to establish safety protocols for working in cold temperatures. Employees who work in freezers and those who work outdoors are particularly susceptible to cold weather hazards such as hypothermia and Trench Foot.

While working in cold temperatures, employees will need frequent breaks out of the cold in a warm vehicle or heated shelter. Workers should always keep dry clothes in a warm area as well, in case their work clothes get wet.

Dressing for the job is the most important safety measure. Three layers are recommended by OSHA, with cotton as the innermost to provide ventilation. Wool or down should be worn as the middle layer. The outer layer should be nylon or Gortex.

The type of fabric is extremely important. Nylon and Gortex reduce the effects of wind on the body. Wool maintains its ability to insulate even when entirely wet. As a middle layer it provides warmth while absorbing sweat. Cotton doesn’t insulate when it’s wet, so wearing it close to the body allows ventilation.

Proper clothing includes proper footwear and headgear. Boots are a good choice and if working in wet conditions, the boots should be waterproof. Hats should always be worn. An uncovered head can lose as much as 40 degrees of body heat.

Employers should encourage all employees to drink plenty of fluids, as dehydration is possible even in extreme cold. Alcohol and caffeine should be avoided as they interfere with the body’s heating system. Workers should also be encouraged to eat warm food, like pasta, that is high in calories.

Employees need to be aware of how they react to the cold, plus that smoking cigarettes and some prescription medicines can impair how they handle cold weather. Employees should also work in pairs to watch each other for signs of cold stress, including irrational behavior, confusion and disorientation.

All employees, including supervisors and managers, should be trained to recognize these symptoms, and to get the affected worker to a warm area, or to emergency medical help, whichever is needed.

On January 1, 2008 the Arizona minimum wage will increase by 15 cents from $6.75 to $6.90 per hour. This is an annual cost-of-living increase under the Arizona statute.

In accordance with Arizona’s new Minimum Wage Initiative, the Industrial Commission of Arizona is required to adjust the state’s minimum wage annually. The specific language of the initiative found in A.R.S. §23-363 (B) says, “The minimum wage shall be increased on January 1, 2008 and on January 1 of successive years by the increase in the cost of living.” The increase is based on the percent increase of the Consumer Price Index (CPI) of All Urban Consumers for the 12 months ending in August of the previous year. So, the 2008 increase is based on the CPI inflation index for August 2007.

The CPI for the 12 months ending August 2007 was 2%, which would result in an increase of 13.5 cents in the state minimum wage. The law requires that the rate be adjusted to the nearest 5 cents, so the new rate is $6.90 rather than $6.885.

In addition, the state recently issued a Policy Statement regarding the interpretation of “hours worked” under the Arizona Minimum Wage Act. In that ruling, the Industrial Commission of Arizona states that an employee who works a shift of less than 24 hours is considered “working” the entire time, even if he or she is permitted to sleep or engage in other personal activities when not occupied. For example, a switchboard operator who was allowed to sleep when not busy answering calls, would still be considered “working” for minimum wage purposes while asleep. The fact that the employer furnished sleeping facilities doesn’t change the employer’s obligation to pay her at least the state minimum wage.

For workers such as firefighters who may work a shift longer than 24 hours, the employee and employer can agree on bona fide meal periods and a bona fide sleep period, provided that they do not constitute more than 8 hours of a 24 hour period. Also, this provision applies only if the employee is normally able to enjoy the sleep period undisturbed.
The federal minimum wage is $5.85 per hour. Many states simply echo the federal law and require employers to pay employees $5.85 per hour, too. Other states have enacted state minimum wages with different rates, plus some interesting exceptions to the law.

Several states will increase the minimum wage in 2008, in addition to Arizona.

For instance, employers in Missouri in seasonal amusement or recreation do not have to pay overtime to workers until they’ve worked 52 hours in a week. All other employers in the state are required to pay overtime after 40 hours.

Montana companies who bring in $110,000 or less a year in revenue are legally allowed to pay workers only $4.00 per hour. The state minimum wage is $6.15 per hour and will increase January 1, 2008 to $6.25 per hour.

The highest state minimum wage will be Washington’s $8.07 beginning New Year’s Day, 2008.

In 2008, Massachusetts will join the top five with a state minimum wage bump from $7.50 to $8.00 per hour. Yet, agricultural employees earn only $1.60 per hour. Workers in professions that earn tips are legally guaranteed $2.63 per hour.

For a new worker in a new industry, some states allow employers to pay a lower wage for the first 90 days. Some states apply the 90 day provision to younger workers, too. Other states established laws where businesses can pay a worker who’s under the age of 18 at a lower rate, but only until they reach legal age.

Kansas has a state minimum wage of $2.65 per hour. Kansas employers covered by both federal and state law, though, are required to pay their employees the federal rate of $5.85. When both federal and state laws cover a business, the law that gives the worker the best deal is the one that applies. In Kansas, federal minimum wage provides greater benefit.

In Washington, the state minimum wage of $8.07 would apply, because it provides more benefit to the employee than the federal wage of $5.85 per hour.

As 2008 approaches, employers need to check their labor law posters to make sure the information is up to date.

The 2008 Arizona labor law posters have gone through several changes and companies need to take appropriate action. As a result of the Fair Minimum Wage Act of 2007, the federal minimum wage rose for the first time in about 10 years from $5.15 per hour to $5.85 per hour. Several states raised their minimum wages at the same time.

During 2007, many other states, including Texas, Maine, Utah, and North Carolina established higher state minimum wages, too.

Other changes occurred to labor laws in 2007 that required companies to modernize their posters. For example, a new tough ban on smoking at work was established in Ohio. Businesses there had to post no-smoking signs at every entrance.

The 2008 Arizona labor law posters that every employer must display are:

• Workers’ Compensation
• Unemployment Insurance
• Arizona Discrimination Notice
• Work Exposure to Bodily Fluids
• Constructive Discharge Notice
• OSHA - Health and Safety Protection

In addition, under federal law, every Arizona employer must display the following posters that cover U.S. labor law:

• USERRA - Uniformed Services Employment and Reemployment Rights Act
• Equal Employment Opportunity is the Law
• Federal Minimum Wage
• Employee Polygraph Protection Act
• Family and Medical Leave Act
• OSHA-Job Safety & Health Protection

In other changes to labor law in 2007, Illinois also enacted a tough law regarding smoking. Almost every work environment, even restaurants bars and casinos are now non-smoking. Labor law posters will need to be updated as a result of these changes.

Until October, teens in Alaska could be employed by a gas station or convenience store that sold cigarettes. And though it was already illegal in Alaska for anyone under the age of 19 to buy cigarettes, people were concerned that these teens could be selling cigarettes to friends who might be underage. The Child Labor Laws, therefore, were amended to prohibit anyone under the age of 19 from selling cigarettes.

In addition to the changes in 2007, more changes are scheduled to occur in 2008.

On January 1 and July 1, 2008, over 20 states will increase their state minimum wage.

On July 24, 2008, the federal minimum wage will go up again time from $5.85 to $6.55 per hour. Again, the states that bump their minimum wage when the federal rate rises, will increase their minimum wage rates on that day.

More than a dozen states will increase their minimum wages on January 1, 2008. These include Delaware, Oregon, Washington, California, Florida, Iowa, New Mexico, Massachusetts, Vermont, Colorado, Arizona, Missouri, Montanan and Ohio. The lowest rate to be increased is in Montana, where the state minimum wage will increase from $6.15 per hour to $6.26. In Missouri and New Mexico, the state rate will go to $6.50.

One of the major changes during 2007 related to minimum wage. The federal minimum wage, as a result of the Fair Minimum Wage Act of 2007, went from $5.15 to $5.85 per hour. Nearly a dozen states increased their minimum wage on the same day.

Also, during the 2007, several other states, including Utah, Washington, Oregon, and West Virginia increased their state minimum wage.

Both state and federal law require that every employer prominently display the posters in an area where they can been seen by every employee. Popular locations are a bulletin board, near the time clock or in the break room.

The most common reason for employers to update posters includes statute changes, especially to minimum wage laws. In just the past few months, employers in New Hampshire, Nevada and Maine have updated their labor law posters as the state minimum wages changed. The most recent increase was on October 1, 2007 when the New Hampshire minimum wage increased to $6.50 per hour.

Thousands of accidents, errors, illnesses and injuries happen among workers in the United States every year, according to officials at the Dept. of Labor.  Many of these accidents can be prevented and the total number of accidents can be reduced.  The use of illegal drugs and the abuse of alcohol are often to blame for these unfortunate, and sometimes fatal, accidents.

The Arizona Drug Free Workplace Alliance is one of the major efforts towards making the work environment a safer place.  Unions, contractors, and employees across the state are working together to improve worker health and safety.  There is a five part plan to reducing the effects of drugs and alcohol on the workplace environment.  They are:

• Policy
• Supervisor training
• Employee education
• Employee assistance
• Drug testing

As with any employer plan or program, privacy rights must be respected.  Drug testing should be done within reason.  Employers have the power to influence the work environment.  Any efforts to eliminate the presence of drug or alcohol abuse are steps towards a healthier and safe environment for all involved.  If a worker does have a problem with substance abuse, they should be encouraged to seek help.

Avoidable errors and accidents are also costly for employers, and those involved.  Missed days of work, medical bills, and certain mistakes can run an employee or an employer some high bills.  If a serious accident occurs, no only may the worker be entitled to paid time off, but the other workers may have to pick up overtime hours, or more hired help will be needed.  Overtime can get expensive for employers sometimes.

Alcohol and drugs impair the mind.  Often, people with these problems have a lack of motivation to do their work.  The physical affects of these substances can slow progress.  If a person is not working at full potential it can cause work to be done at a pace that is not acceptable.  That is another reason why it is important to ensure a drug-free workplace.