labor lawAdivision of labor law center

Colorado employers, and those across the nation, have 60 days to comment on proposed changes to the federal FMLA law.

As of April 11, 2008, employers will face several changes in the Family and Medical Leave Act (FMLA). These changes were proposed in the new FMLA regulations on February 11, 2008, by the U. S. Department of Labor. The intervening weeks between proposal and effect allow employers to review the changes and to post their comments.

To post comments, click this link and type in “Family and Medical Leave Act”, and include the quotes around the keywords. All posts will be viewable by the public.

Changes in the FMLA include adjustments in how paid time off (PTO) is used when an employee is on FMLA leave. Employers are not required to pay for FMLA leave, but they can permit workers to utilize accrued sick time along with the FMLA leave. Effective, April 11, 2008, workers will also be able to use accrued vacation time and accrued personal leave while on FMLA leave.

Rene is an example. She has a total of ten weeks of PTO, but only two weeks of them are sick leave. Under current regulations, she could only charge those two weeks to FMLA. The other 10 weeks would be unpaid. Under the new regulations, Rene will be able to use all of her PTO, including the 3 weeks of personal leave and the 5 weeks of vacation time. In effect, Rene will substitute 10 weeks of PTO for her FMLA leave. Using PTO in this way is referred to as “substitution of paid leave”.

A minor amendment to the FMLA deals with FMLA leave and absences. The old FMLA didn’t charge FMLA to a worker’s absences, so some of these employees were eligible and earned rewards for “perfect attendance”, which often included monetary bonuses. Supervisors and coworkers felt it unfair to grant “perfect attendance” to someone who had taken 12 weeks of leave.

The new FMLA regulations will count FMLA toward an employee’s absences in the same manner any other leave would be counted. Workers who take FMLA leave, then, will not be eligible for “perfect attendance” accolades.

More Colorado FMLA Changes

The definition and certification of “serious medical condition” under the FMLA (Family and Medical Leave Act) will see some changes on April 11, 2008, under regulations proposed by the U.S. Department of Labor.

Currently, the regulations list several definitions of “serious medical condition” and how certification should be obtained. On February 11, 2008, the U.S. Department of Labor proposed changes to the FMLA many of which address these definitions and the certification process.

The new regulations will keep six of the definitions and clarify a couple of terms. For example, “serious medical condition” can be defined as incapacitation of the employee for 3 consecutive days and “two visits to the healthcare provider”. Unfortunately, the “two visits” are not defined within a certain time frame. According to the new regulations, the U. S. Department of Labor will define the “two visits to a healthcare provider” as occurring within 30 days of the period of incapacitation.

Companies normally require that a healthcare provider certify the “serious medical condition” before granting FMLA leave. This practice is allowed by the U.S. Department of Labor as a method to prevent abuse of the leave. Second and even third opinions can be required, too, but the employer must pay for these additional opinions.

Other topics will be addressed in the new regulations, including the “Ragsdale decision on employer penalties, Light Duty and FMLA and permission for employers to deny “Perfect Attendance Awards” to workers on FMLA leave.

Regarding the FMLA regulations and the proposed changes, Victoria Lipnic of the U. S. Department of Labor said, “It’s time to update these regulations — to reflect court decisions, clear up ambiguities and address issues that weren’t contemplated when the regulations were first issued in 1995.”

Ms. Lipnic continued to say, “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.”

Employers will have from now until April 11, 2008, to review and comment on the new regulations. On that date, the regulations will be published and become law.

Colorado employers need to be aware of the hazards of cold stress in the workplace. Cold temperatures, wet conditions, and wind chill can combine to make a dangerous mixture of winter weather hazards in the workplace.

Cold stress can be treated relatively easily if it is a mild case. An important step is to move to a warm, dry area and remain active. Remove all damp clothes and drink a warm liquid. But avoid alcohol and any caffeinated beverages such as tea, cocoa, or coffee, because they will slow down the body’s warming process.

If the case is severe, however, it may lead to hypothermia. Call an ambulance right away. Medical professionals will know what to do to deal with serious cold stress.

A Colorado alert by the Occupational Safety and Health Administration, otherwise known as OSHA, has been issued. It specifies the safety hazards of cold, damp weather, and lists some of the dangers as cold stress and trench foot.

To prevent cold stress, it is important to dress in layers of warm, dry clothes. The head and extremities should be covered. Headgear will assist the body in staying warm. Frequent breaks in warm places are important. Try to avoid getting wet because coming into contact with cold water will make it more difficult for the body to stay warm. In both extreme cold and extreme heat, employees should work in pairs in a “buddy system.” That way each can keep an eye on the other for signs of weather-related problems.

Trench foot received its name during World War I, when it was first described. During that war, soldiers sat in trenches for long periods of time, their feet soaking in cold water. The result was trench foot, which causes burning, blisters and itching. It is much like, but not as severe as, frostbite.

Wind child, simply described, is a combination of air temperature and wind speed. As the wind speed increases, the wind chill temperature goes down. A day that seems deceptively moderate based on thermometer temperature, can become a risky environment. The skin reacts to wind chill temperatures, not the thermometer temperature alone.

Safe work practices and appropriate clothing are the key elements in protecting employees from the dangers of outdoor work in cold temperatures.

OSHA has developed a series of common-sense recommendations covering both of these approaches to cold weather work safety.

Proper clothing is a vital element. Employers will often provide cold weather clothes to employees who work in the cold for an extended period, whether outdoors or in a freezer.

Keep in mind that the type of fabric chosen is crucial because cotton loses its ability to insulate when it is wet. Wool, however, works as an insulator even when soaked.

OSHA makes the following clothing recommendations:

• Wear loose clothes for better insulation and ventilation.
• Wear insulated footwear. In wet conditions it should be waterproof.
• Keep spare dry clothes in a warm location.
• Wear a hat. 40 degrees of body heat can be lost otherwise.

OSHA also recommends 3 layers of clothes. The outer layer should be nylon or Gortex as a windbreaker. The next layer should be down or wool to absorb sweat and provide insulation. The innermost layer may be synthetics or cotton for ventilation.

Train workers and supervisors to spot the signs of cold stress, such as irrational behavior, disorientation, and confusion. Employees should work in pairs so each can spot signs of cold stress in the other. Urge employees to drink lots of liquids (dehydration is a problem in cold weather) but avoid caffeine or alcohol, because they reduce the body’s ability to stay warm. Cigarette smoking and certain prescription drugs have the same effect.

Schedule extra breaks, in a warm building or vehicle. Workers should eat warm foods that are high in calories, like pasta. Provide radiant heaters in work areas. Temporary shelters cut drafts and wind. Cover metal handles with insulation, particularly when temperatures go below 30 degrees.

Supervisors should let workers take an extra break, or interrupt their work, if they feel exceptionally uncomfortable.

These steps are important because cold stress results in frostbite, hypothermia, and trench foot.

The Occupational Safety and Health Administration requires all Colorado employers to display an OSHA 300 form from February 1, 2008 to April 30, 2008.

The purpose of the OSHA 300 form s to provide a recap of all work-related illnesses or accidents that occurred in 2007.  The form also lists the cause of the illnesses or accidents.  Once the forms have been completed, they must be posted in areas that are readily accessible to employees.  Some of the more popular locations include the time clock or the employee break room.

No current regulations require that the Colorado OSHA 300 form be placed in a public area.

According to OSHA sources, “Employers are responsible for providing a safe and healthful workplace for their employees.  OSHA’s role is to assure the safety and health of America’s workers by setting and enforcing standards; providing training, outreach, and education; establishing partnerships; and encouraging continual improvement in workplace safety and health.”

A part of each employer’s responsibility is to display not only the OSHA 300 log, but the OSHA-It’s the Law Poster.

The Occupational Safety and Health Administration is responsible for regulating and maintaining safety in the workplace.  Though OSHA regulates most of this country’s private businesses and non-profits, there are a few industries that have their own worker safety organizations.

The mining industry is regulated by the Mining Safety and Health Agency, or MSHA.  This is primarily because the safety standards within this industry are very different from those in other businesses.  The Department of Transportation heavily regulates the transportation and railroad industries.

Accidents from the previous year are displayed on the OSHA 300 form.  The point in doing this is to prevent any future problems from happening.  If a company is able to keep track of the different types of accidents that occur most frequently, they will be better able to focus their efforts on preventing the same accidents from happening in the next year.

The Occupational Safety and Health Administration in Colorado has the major goal of preventing and reducing workplace accidents.  Employers are expected to contribute their part by ensuring that employees follow all safety precautions.  It is also necessary for companies to remind workers about the importance of health and safety.

State worker safety agencies do exist in many states, as opposed to OSHA, but they still require their own version of the OSHA 300 form.  The state government of Washington requires each employer to post a Washington OSHA form so that they can keep track of all work-related injuries and illnesses.  The form has to be posted beginning February 1, and remain posted through April 30 of each year.  The form essentially recaps all work-related illnesses and injuries so that employees will be better able to gauge the safety record of their company for the preceding year.

Every state has the option of having its own OSHA organization.  Those policies, however, must be approved by the federal government before any state can start using it.

If a state wants to obtain their own OSHA plan approved by the federal government, they must first develop a plan to make sure that the state has the funds to operate its own OSHA.  The process ends in certification.  States can obtain certification by assuring the federal OSHA that they will be able to effectively run their own OSHA within three years.

More than half of the states with their own OSHA program follow a set of regulations that have been set down by the federal government.  These regulations involve job safety and health standards.  There are 22 states that have chosen to opt out of the federal OSHA program.  Every state’s OSHA plan, according to the federal government, has to be at least as effective as the federal OSHA program.

Washington, for example, has its own OSHA program.  Therefore, the Washington Occupational Safety and Health Administration conducts their own safety inspections, rather than the federal government. 

Now is the time for every employer to update his or her 2008 Colorado labor law posters.

The past year was a hectic one in the field of Human Resources, with a number of important changes to labor law. These include a new I-9 form to be used by all employers effective December 26, 2008. Employers who fail to use the new I-9 form, or display the updated posters, face hefty fines and penalties.

In addition, the Colorado minimum wage will increase on January 1, 2008 to $7.02, requiring every employer in the state to update their posters.

The updated list of 2008 Colorado labor law posters is:

• Workers’ Compensation Part 1 & Part 2
• Discrimination Notice
• PayDay Notice
• Unemployment Insurance
• Minimum Wage Poster

Every employer in the state is required by law to display these posters where applicants and employees can see them.

In addition, each employer in Colorado must display the following federal labor law posters:

• 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

Under both federal and state law, these posters must be updated each time there is a change in legislation.

A change in the federal minimum wage on July 24, 2007 required that the Federal Minimum Wage posters be updated. On that date, the federal minimum wage increased for the first time in more than a decade. The rate went from $5.15 per hour to $5.85 per hour, an increase of 70 cents. 

Labor law poster serve as a handy reminder for supervisors and employees alike.

They provide important information on the minimum wage, worker safety, medical leave and child labor laws.

It seems as if no two states in the U.S. are alike when it comes to overtime laws or the minimum wage for tipped employees. That’s why the states require different state labor law posters, in addition to the federal posters.

In both cases, some have no laws, and follow federal law. Some are more generous. On rare occasions, they are less so.

Federal law requires workers be paid an overtime rate of 1.5 times their normal hourly wage for any hour over 40. Florida, Georgia, Arizona, Delaware, and Idaho have no overtime laws. Federal law is operable.

Nebraska mirrors the 40-hour federal rule, but extends it to all businesses with 4 or more workers. Others mirroring the 40-hour guide are Massachusetts, Michigan, and Illinois.

Overtime does not kick in until after 46 hours in Kansas, or 48 hours in Minnesota.

In Kentucky, workers get overtime after 40 hours and on the 7^th consecutive workday regardless of the number of hours put in on that day. Colorado employees receive overtime after a 40-hour week or a 12-hour day.

California workers can get overtime for more than 8 hours in a day, 40 hours in a week, or the 7^th day of 7 consecutive days.

The federal minimum wage rate for tipped workers is now $2.13 an hour. Some states follow the federal rate. Among them are Kentucky, Indiana, and Nebraska, which also set the rate at $2.13.

Other states offer just a little more than the federal rate. For example, Wisconsin is $2.33 an hour, North Carolina is $2.43, Michigan is $2.65 and Massachusetts is $2.63.

Kansas, on the other hand, is lower than the federal rate. Its minimum wage for tipped workers is only $1.59 an hour.

Essentially, employers are getting “tip credits,” or the right to offer a lower than normal minimum wage because the workers in these fields receive tips which are supposed to compensate.

Under Colorado Minimum Wage Order 24, the state minimum wage increases by 17 cents from $6.85 to $7.02 per hour on January 1, 2008. Tipped employees must be paid at least $4.00 per hour, under the new law.

The Colorado minimum wage law is must more limited than similar laws in other states. The rate covers only retail and service industries including commercial support, food and beverage, and the health and medical industries.

Under the Colorado law, workers in those same industries are entitled to overtime after working 12 hours in a single day, or 40 hours in a week. The overtime rate is 1.5 times the usual hourly rate.

The previous Colorado minimum wage law has been in effect since January 1, 2007.

This is just the most recent in a series of changes to the Colorado employment laws. On January 1, 2007 Colorado Statute 8-2-122 went into effect. This was a tough new immigration law that requires every employer to make copies of the employee’s identification documents for the federal I-9 form, and keep them on file for the entire term of employment. In addition, every employer is required to complete a state affirmation within 20 days of hiring a new employee. The affirmation states that the employer did not knowingly hire an illegal alien, and that the employer has examined the worker’s documentation without altering it.

State laws governing overtime and the minimum wage for employees who receive tips differ greatly across the nation.

According to federal law any time worked over 40 hours per week is payable at one and a half times the worker’s normal hourly rate. This “overtime” covers the majority of workers in the country. Several states don’t have a state level statute, however, to cover overtime pay. In those states, if the employees aren’t covered by the federal law, they are probably not entitled to any overtime.

Nebraska, Illinois and a number of other states utilize the federal law and require employers to pay overtime for more than 40 hours of work per week. In Minnesota, state law considers anything over 48 hours to be overtime. Kansas overtime cut-off point is anything over 46 hours per week.

A few states also have laws in effect for the number of consecutive days worked. For example, in Kentucky any employee who works seven days in a row gets overtime pay for that seventh day–no matter how many hours have already been worked. Connecticut has a similar law, but it only applies to workers in hotels and restaurants.

California takes it a step further, guaranteeing overtime on the seventh day and after 8 hours on the seventh day requires employers to pay double the hourly salary, or double time.

For employees who receive tips as a part of their job, the federal law mandates an hourly rate of $2.13 per hour. Indiana and Kentucky mirror the federal law. Massachusetts law mandates a rate of $2.63 and North Carolina’s is $2.43 per hour.

In several states employers get only a little tip credit when paying tipped employees. Colorado’s minimum will increase to $4.08 in 2008. Hawaii allows businesses to pay $7.00 instead of the state minimum of $7.25 per hour, allowing a 25 cent tip credit.

Washington, however, gives no tip credit at all. State law in Washington requires companies to pay tipped employees the same as non-tipped employees. In 2008, that minimum wage will rise to $8.07 per hour.

Colorado employees are entitled to a 30-minute unpaid meal break free from all work duties on any shift of 5 hours or more. If the work situation makes this impossible, employees are entitled to eat a meal while on duty, and must be paid for this time. Employees are also entitled to a 10-minute paid break on each shift of 4 hours “or a major fraction thereof.”

Every employer must display a Colorado minimum wage poster prominently in an area frequented by all employees. A complete list of the state’s required labor law posters is at www.laborlawcenter.com.