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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.

Concern about Colorado worker safety and the safety of all workers in oil refineries prompted OSHA to make some changes to its policies. Residents of Colorado, and other states where oil refineries employ workers, will find these changes to be good news.

OSHA recently ended their investigation into an explosion at an oil refinery that BP owned and operated. This refinery was located near Houston, and in early 2005, it was the site of a tragedy. There was an explosion, which caused flames to soar into the sky and debris to litter the area near the refinery. Sadly, 100 workers were injured in this explosion, and 15 workers died.

The safety of oil refinery workers became a major focus for OSHA. When a recent hearing was held concerning the Chemical Safety and Hazard Board (CSB) report on the explosion near Houston, it became even clearer that OSHA is committed to protecting workers. Moreover, when an inspection of another BP refinery six months after the Houston explosion uncovered the same violations, OSHA decided it needed to protect oil refinery workers since the oil companies would not.

To accomplish this mission, OSHA is inspecting all oil refineries that fall within its jurisdiction under the National Emphasis Program, which is new. OSHA has increased the number of inspectors it has to accomplish this mission. So far, they have trained over 160 inspectors who are able to conduct a Process Safety Management (PSM) inspection. The total of PSM-trained inspectors will be 280 by August of 2007.

Not only did the Texas explosion injure and kill employees, it also shut down crude oil processing at the refinery. The Texas BP oil refinery handled about 3% of the total amount of crude oil processed in the United States each day. This amounted to around 433,000 barrels each day. When the oil refinery exploded, the nation lost this production, and the result was higher prices for gasoline the following summer.

A recent Colorado worker safety alert highlights the risks some workers face while working with asbestos. The alert focuses on the presence of asbestos in the brakes and clutches of older models of trucks and cars, and the daily risks this present to some mechanics and other workers in the industry.

Many people think that asbestos-related hazards in the work place do not exist any more. But the statistics on deaths due to asbestos-related diseases tell a different story. Over 10,000 people die each year in the United States from such asbestos-related diseases such as asbestosis, gastrointestinal cancer, lung cancer and mesothelioma.

There are ways of controlling asbestos in the workplace and it is the responsibility of the employer to make sure that their workers know what they are. It is also their responsibility to put safety procedures in writing, and ensure that employees carry out the right procedures when working with asbestos.

One way of controlling asbestos is by wetting the asbestos, so that it cannot become airborne should it break up. Another is to seal it in a bag.

Workers need to be aware that if they are not careful when working with this material, they may put others at risk. This is because asbestos becomes airborne by breaking into thousands of tiny particles when it is broken or disturbed.  It is not possible to see these fragments with the eye, but they can travel through the air and are inhaled by people in the workshop. This can cause lasting health damage. Therefore, it may only take one worker to disregard the established safety procedures to expose the whole workshop to the hazards.

Because it is so easy to disturb the asbestos, and that there is no foolproof way of knowing whether a vehicle contains the material in their brake or clutch, then every work should assume that it is present and proceed accordingly. 

There are a half-million abandoned mines out there.

Mining sites, both active and abandoned, can be a threat to Colorado worker safety. Many are also a danger to children and people in casual outdoor activities. Since 1999, more than 200 have been killed in accidents on mining property.

Richard Stickler, the Assistant Secretary of Labor for Mine Safety and Health, says that besides the 500,000 abandoned mines there another 14,000 active ones in the U.S. “Many of them,” he adds, “contain hidden hazards and, for those not trained to work in mines, the outcome can be deadly.” That’s why, he says, workers, bikers, hikers, climbers, and swimmers are being urged to “Stay Out – Stay Alive.”

“Stay Out – Stay Alive,” the Labor Department’s new safety campaign, is designed to warn workers, children, and outdoors enthusiasts about the many hazards of mine sites. Some of the tools being used by the campaign are public service announcements and visits by mine safety and health experts to scouting groups or schools to warn children about the risks involved in trespassing and playing on mine property.

What are some of the hidden dangers? Hidden mineshafts pose a serious risk Workers in fields not directly related to mining may be injured when they fall into mineshafts. Often these shafts are hidden by a deceptive layer of boards, which may actually be decaying or rotten, giving way under very little weight. Explosives are a hazard. Misfired or unused explosives such as blasting caps can be set off by small disturbances or a mere touch. Tunnels may collapse. Inside those tunnels there may be deep water. Snakes and insects may be nesting inside. Sometimes poisonous gases are trapped inside the shafts.

Some of the more than 200 deaths in mining accidents since 1999 have included recreational users and children. 

There’s a new and disturbing trend in the workplace.

ATVs, or All-Terrain Vehicles, are increasingly a part of fatalities or accidents on the job.

A Colorado Worker Safety Alert shows that the All-Terrain Vehicle, usually associated with sport and weekend recreation, is growing in use in the workplace. With that has come greater numbers of accidents.

What causes these problems?  The ATV is actually tricky to drive, thanks to its combination of handlebars, motorization, and fat, low-pressure tires. It does not handle like a car, or even like a bicycle. It will flip in sharp turns or when going up steep hills or other inclines. And it may easily be overloaded, because it is not designed for heavy loads. Such loads increase their instability. The ATV is designed for use by a driver and no passengers. It is provided with a small front or rear storage rack that carries small amounts of equipment.

Follow the manufacturer’s operation guide to weight limits and allowable passengers when you drive an ATV. Wear a helmet. Train to operate the device. Even if you’re licensed to drive a car or truck, you may find operating the ATV tricky.

Keep in mind that the Colorado Worker Safety Alert has a set of guidelines for these vehicles. They apply to any motorized off-road machine using handlebars, a straddled seat, and low-pressure tires.

Since 1992, according to OSHA, the death rate by ATV in the workplace has gone up regularly. There were 113 such deaths in 9 years. During those same 9 years there were 1,625 ATV workplace injuries altogether.  Some workers were injured severely enough to require that they miss a day or more of work.

Deaths during recreational use still exceed those of workplace deaths. From 1982 to 2004, the death rate increased from 29 to 470 yearly. Injuries totaled 136,100. The number of accidents in the workplace may exceed those for recreational use.

The ATV is being used with increasing frequency in construction, facilities management, police work, and farming.