labor lawAdivision of labor law center

New proposals published by the U.S. Department of Labor propose some changes to the Family and Medical Leave Act (FMLA) of 1993 that update employer and employee obligations and expand leave for some military families.

The proposals would also make some changes to FMLA that would reflect Supreme Court and lower court decisions rendered since the passage of the act.

Published February 11, 2008, the proposals take effect for the most part on April 11, 2008.

The expansion to FMLA leave under the National Defense Authorization Act (NDAA) of 2008, however, went into effect on January 28, 2008, the date the act was signed into law by President Bush.

In the past, employers complained, workers could take days off without reporting them in a timely manner. Old FMLA regulations said employees had two full business days after an absence to let the employer know it was FMLA leave. The results were serious disruptions in operations and productivity. The proposed change would require employees to follow company policy when reporting an absence, although there are exceptions for “unusual circumstances,” such as suffering a heart attack on the way to the job.

The proposals require more from Florida employers as well, guaranteeing that employees understand their rights under FMLA. If an employee submits an incorrect or incomplete medical certification, the employer must notify the worker in writing and the employee has seven days to correct the problem. The Labor Department said that would prevent employees from losing FMLA leave through a technical error. All employer notice requirements are consolidated under the new rules, and employers have five rather than two business days to send workers their designation or eligibility notices.

The FMLA guarantees unpaid, job-protected leave to an employee in the event of his own serious illness or that of a member of his immediate family. It also provides leave to care for and bond with a new child.

According to Victoria A. Lipnic, assistant secretary for the Employment Standards Administration, the proposals preserve employees’ rights to medical and family leave “while improving the administration of FMLA by fostering better communication in the workplace.”

More Florida FMLA Changes

Employers should look to new changes in the Family and Medical Leave Act (FMLA) regulations around April 11, 2008.

Until that date, employers and other interested parties may comment on the proposed rule changes. Those comments may be posted at http://www.regulations.gov under the keywords “Family and Medical Leave Act” (with quotes included). All comments will be published in their complete form, including whatever contact information is provided.

The proposed rule changes were first published by the U.S. Labor Department on February 11, 2008. According to the Labor Department, the changes should improve communications between three key stakeholders, namely employers, employees, and providers in the healthcare system.

The proposals take into account rulings relating to the FMLA by lower courts and by the U.S. Supreme Court.

One such case is the Ragsdale decision. In Ragsdale vs. Wolverine World Wide, Inc., an employee had been denied unpaid leave after taking 30 weeks of paid leave. The Labor Department sued the employer on the worker’s behalf. The Supreme Court ruled that workers do not necessarily have the right to their 12 weeks of unpaid FMLA leave even if they have already had 12 weeks or more of some other form of leave.

Another change strengthens a position by the Labor Department saying employees can settle FMLA leaves out of court, provided they waive their FMLA rights retroactively. They are still not allowed to waive rights in advance. This follows a Fourth Circuit Court ruling recently interpreting FMLA rules to say that workers may not waive those rights either in advance or retroactively.

A third change addresses “light duty” issues. It makes clear that “light duty” does not count toward FMLA leave. A worker may take 10 weeks of “light duty,” for example, and still be guaranteed the usual 12 weeks of unpaid FMLA leave. Also, a worker’s “light duty” assignment does not affect his or her reinstatement following leave taken under FMLA. A warehouse worker assigned to “light duty” in the parts department, for example, would be reinstated to the original warehouse position, not the parts department, after taking FMLA leave.

OSHA (Occupational Safety and Health Administration) requires all employers to post the OSHA 300 form from February 1 until April 30 of each year.

The OSHA 300 recounts the work-related injuries and illnesses that took place in the workplace during the previous year. The 2008 form, therefore, would detail all the incidents that occurred in 2007, plus the causes of the incidents. By keeping a record of the work-related incidents, companies can pinpoint problem areas in the workplace and then plan how it will correct those problems in the coming year.

One of OSHA’s main goals is to help Florida employers prevent workplace accidents and illnesses. The agency feels that “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.”

To assist companies even further, OSHA conducts free on-site evaluations of the workplace. The agency works with employers to find and to fix hazards.

OSHA is a federal agency and handles the workplace safety for the majority of employers in the United States, both for businesses and for non-profit agencies. A couple of industries, however, are allowed by federal law to be regulated by their own industry’s worker safety program. The mining industry is an example. The MSHA (Mining Safety and Health Agency) regulates the mining industry, because safety standards in this industry are unlike those required in most businesses. Transportation is another industry governed by other than OSHA. The Department of Transportation heavily regulates railroads and others in transportation, including rules for worker safety.

Posting of the OSHA 300 in a prominent position is required. Companies that fail to display the form at all, and those that fail to keep the post in place for the allotted time will be subject to fines.

The federal government has established a set of regulations for workplace health and safety that all Florida employers must follow. These regulations are set and enforced by the Occupational Safety and Health Administration (OSHA), a federal agency. States are allowed to establish their own agencies, but they must first be approved by the federal government.

The process to establish a state agency requires federal approval of the development plan, and certification. To get certified, the state must guarantee the federal government that it will be able to have the agency up and running efficiently within 3 years.

Federal regulations also require state agencies to be at least as effective as the federal OSHA. As a result, most state programs are nearly identical to the federal program. Currently, 22 states have their own employee safety and health agencies.

Washington Occupational Safety and Health Administration (WISHA) is an example of a state agency that mirrors the federal program. WISHA performs its own safety inspections. It also offers training classes in occupation health and safety. Like OSHA, too, WOSHA provides employers with a free on-site evaluation of their workplace. This program assists companies in detecting and repairing any hazards.

California has its own state agency, too, but took the federal guidelines one step further. Federal standards require certain workplace hazards be publicly posted. California complies, identified additional hazards and posts those as well.

All employers, whether under the jurisdiction of their state agency or the federal OSHA, must post an OSHA 300 form. This form is a record of all illnesses and injuries related to the workplace. Regulations mandate the form be posted each year from February 1 to April 30. The form allows employees to see what has occurred in their company and gauge its safety accordingly.

Preventing accidents in the workplace is a major goal of OSHA. To achieve this goal, the agency urges all employers to ensure their employees follow safety procedures and precautions. It also encourages companies to remind their workers how important it is to work in a safe and healthy environment.

As of January 28, 2008, relatives and spouses of active military, Reserve and National Guard are eligible to take up to 26 weeks of unpaid leave under FMLA. This leave can be to care for an injured soldier, or to attend to other family situations, such as caring for children.

The expansion of the FMLA is a result of President George W. Bush signing the National Defense Authorization Act of 2008, HR 4986 into law on January 28, 2008. The law went into effect immediately, allowing families of military personnel to take FMLA leave immediately. The traditional FMLA (Family Medical and Leave Act) provided job-protected, unpaid leave to eligible employees for up to 12 weeks.

In Florida and across the country, employees are allowed by the Family Medical and Leave Act of 1990 to take up to 12 weeks of unpaid, job-protected leave every 12 months.

Not all companies and workers are covered by FMLA leave. A business must have 50 or more employees in a 75 mile radius. Workers are usually required to be employed at the same company for 1,250 hours for the previous 12 months.

For eligible employers and employees, FMLA leave can be taken for a number of personal scenarios. If a family member (parent, child or spouse) is seriously ill, the worker can take FMLA to care for that person. FMLA can also be taken to care for a newborn child, a newly adopted child and a newly fostered child.

While on FMLA leave, the employer and the employee must each continue to pay its share of benefits costs.

The employer can incur other costs as well. The company will need a replacement during the worker’s FMLA leave, which can include the expense of hiring and training new personnel. When the employee returns, the company can lose productivity as the worker takes time to get back up to speed.

All workers on FMLA are guaranteed a job when they return from leave. Usually, it’s the same position, but can also be a position with similar pay, benefits and working conditions

If democratic presidential candidate Hilary Clinton is elected, the costs to employers could increase. Ms. Clinton wants to amend FMLA to allow workers to receive pay for FMLA leave.

Pay for FMLA leave isn’t new. California enacted a law at the state level that allows many employees to be paid for FMLA. Other states have enacted laws to amend and extend FMLA. Some extend the length of time off beyond 12 weeks. Others, like Hawaii, extend the definition of family member to grandparents, in-laws and domestic partners.

Amending the law at the federal level, however, would increase costs for eligible employers across the United States. How companies would manage the increased financial burden isn’t known at this time.

The NDAA provision to expand the FMLA has several purposes. One, the Act gives families of military extended leave beyond the traditional FMLA allotment of 12 weeks. Two, the Act adds “next of kin” to the list of eligible family members, which could allow in-laws, cousins and aunts and uncles to take FMLA to care for an injured or ill soldier. Three, the Act provides leave for a spouse, parent, son or daughter to stand in for military personnel called to active duty. While the soldier is away, the relative or spouse can care for whoever was in that soldier’s charge, including watching over healthy children.

The term used in the NDAA for the third provision of the expanded leave is “any qualifying exigency.” As yet, the details for this provision and for the entire NDAA have not been published. That duty falls to the U. S. Department of Labor, which is working to finalize regulations for White House approval. Once approved, the rules for FMLA will be enforced by the Wage and Hour Division of the U S. Department of Labor.

Since, technically, the NDAA isn’t in effect until the Secretary of Labor publishes the regulations, the U. S. Department of Labor requests employers “act in good faith” to grant all eligible families the expanded FMLA leave. FMLA protocols and procedures already in place, such as medical certification and substitution of paid leave, are excellent tools to manage the new leave.

Every Florida employer needs to understand that in 2007 a number of changes to the labor laws were made. In 2007, for the first time in ten years, the federal minimum wage was increased from $5.15 to $5.85 per hour as a result of the Fair Minimum Wage Act of 2007. At least ten states increased their state minimum wage on the same day.

It is crucial for every employer in the state to update their Florida labor law posters for 2008 as a result of these changes.

The Florida Labor Law Posters that every employer is required to display are:

• New Florida Minimum Wage
• Discrimination
• Anti-Fraud Notice
• Workers’ Compensation
• Unemployment Insurance
• “Equal Opportunity is the Law”
• Child Labor Laws

With the change to the Florida minimum wage on January 1, 2008, it’s particularly important that posters be updated.

In addition, employers are required to display the following posters by federal 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

Many labor law poster changes throughout the nation related to minimum wage increases this year, or next year. West Virginia and Illinois will increase their minimum wages on July 1, 2008. Illinois’s current minimum will jump from $7.50 to $7.75, and West Virginia’s will go up from $6.55 to $7.25 per hour.

On July 24, 2008, the new federal minimum wage of $6.55 will be introduced. States like Texas, Nebraska and others that tie their state minimum wage to the federal minimum wage will bump up their state minimum wage.

Several states including Washington, Oregon, New Mexico and others established laws that provide an annual cost-of-living increase for the state minimum wage. States often tie this increase to the Consumer Price Index for urban and clerical workers. Florida just recently passed such a law and will apply their first “cost of living” raise on January 1, 2008, bumping the current wage from $6.65 to $6.79 per hour.

The rank of highest state minimum wage goes to Washington at $8.07 as of January 1, 2008. California and Massachusetts aren’t far behind each with $8.00 per hour. Oregon’s wage ranks in the top five with $7.95 per hour.

There’s not much difference among the state minimum wages in the top five, but the difference across the country is amazing. The state minimum wage in Kansas hasn’t budged since the 1980s, and ranks as the lowest at $2.65.

But Kansas isn’t the real bottom of the range. That honor belongs to Mississippi, Alabama, Louisiana, Tennessee and South Carolina, which don’t have a state minimum wage at all. That means an employer not covered by the federal minimum wage can pay–by law–its workers whatever it wants, even as low as 25 cents an hour. Of course, it’s doubtful anyone would take a job at that wage, but the legal capability exists.

The New Year will bring more changes which will require employers to change labor law posters. Restaurants, bars and casinos and practically every other work environment in Illinois will enact a tough new law banning smoking.

As a result of these changes, companies need to take the time to update their labor law posters by the end of this year. Failure to update the posters with the new information can result in a fine for the employer.

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.

You may want to know why the Florida OSHA office issued a warning recently on two brands of chainsaw that are widely used in industry.  It has been reported that chainsaws have spun out of control in the hands of many workers. In some cases, the workers were injured with severe cuts and bruises, whereas in other cases, they received burns to the fingers from the hot muffler.  The plastic front handle is possibly to blame.

In the wake of these reports, the Florida worker safety alert requires every employer to be aware of the new recall which has affected the safety of U.S. workers. The major chainsaw brands which are popular in many major industries have been recalled by the manufacturers. 

The Florida worker safety agency has identified the Troy-Built and the Craftsman brand Chainsaws as the most affected chainsaws in the recall. These chainsaws are powered by a two-cycle gasoline engine with size between 46cc and 55cc and are accompanied by blades of size between 18 inch and 20 inch. In Troy-Built brand, four models of chainsaw are affected apart from the Incredi-Pull model of the Craftsman brand.

There is a strong urge to the employers to protect the workers’ health by replacing the unsafe chainsaws with properly equipped ones with safety measures. The use of safety kit along with the chainsaw avoids the risk in the use of the chainsaws. It is strongly recommended that the workers stop working on unsafe chainsaws immediately.

The manufacturers have withdrawn both the chainsaws voluntarily in order to co-operate with the U.S. Consumer Product Safety Commission (CPSC) and the OSHA. For instructions on the installation of the replacement handle with free safety kit, the employers can contact the manufacturer or the OSHA.

Under the jurisdiction of CPSC, there are over 15,000 types of such consumer products causing damage to property and life with an estimation of cost to the nation being more than $700 billions per annum.