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.

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.

Very often, when we’re driving on an interstate or another highway and we see the “construction zone” signs or the orange caution cones, we’re annoyed. We expect delays. Some drivers speed right through the construction zones at the usual highway speed limits, or faster.

But the signs, cones and slowdowns are there for a reason. Highway construction work can be deadly.

Florida highway worker safety numbers tell the story. More than 100 highway crew members yearly are killed on work sites. Another 20,000 suffer injuries. Highway construction work is called “one of the most dangerous occupations in the United States,” by OSHA’s Assistant Secretary of Labor Edwin G. Foulke Jr.

To combat the hazards, OSHA – the Occupational Safety and Health Administration – and the Roadway Work Zone Safety and Health Partners Alliance – are promoting awareness of the highway work zones. They’re urging drivers to be alert to roadside warnings, to slow down, and to watch for highway workers.

Every year, OSHA marks National Work Zone Awareness Week in the first week of April. This year, the emphasis is on safety for highway work zone employees. OSHA kicked off the campaign, “Signs for Change,” at a construction zone on Interstate 495 in Alexandria, Virginia, on April 3.

“Employees who work in highway zones have one of the most dangerous occupations in the United States,” said Assistant Secretary Foulke, “and these employees need not only OSHA’s support, but the support of everyone who gets behind the wheel on a daily basis.”

He said there were almost 1,100 deaths in work zones last year, “a tragedy. I am hopeful that campaigns like this will help reduce those numbers.”

The Centers for Disease Control (CDC) is joining the effort. NIOSH (the National Institute for Occupational Safety and Health) has prepared a report urging that drivers watch for the warning signs and slow down.

“Every day, when orange traffic cones prompt us to slow down and drive carefully near work zones,” said CDC Director Jeffrey P. Koplan, M.D., M.P.H., “we are reminded that highway and street construction is hard and potentially hazardous work.”

Asbestos becomes a health hazard when it breaks into minuscule particles that can be inhaled by humans. Individuals who breathe in particles of asbestos are at risk of developing serious diseases, including lung cancer, gastrointestinal cancer, or asbestosis. Each year, about 10,000 deaths occur in the United States due to asbestos exposure.  The majority of that exposure occurs in the workplace.

That’s why a recent Florida worker safety alert details the hazards of asbestos in the workplace. Many older vehicles have asbestos in the brakes and clutches. Auto mechanics and other workers in the industry may be exposed to asbestos daily when completing repairs on these vehicles. It’s important for employers to establish safe procedures for handling asbestos, and to make sure that employees follow them. One employee who doesn’t follow the proper procedures can expose everyone in the shop to dangerous levels of asbestos.

Newer cars and trucks pose no risk, since their brakes and clutches are free of asbestos. However, with older vehicles, it’s very difficult to determine which have parts that include asbestos, and which do not. For this reason, OSHA recommends that mechanics handle all brakes and clutches as if they contain asbestos. In this area, the old maxim “better safe than sorry” applies.

Most people believe that asbestos has been removed from the workplace, but they are mistaken. Many workers in the auto repair industry are exposed to this potentially toxic chemical daily. Employers must establish written rules for safely handling asbestos, and train all employees in those procedures.

OSHA recommends a number of systems to handle asbestos safely, including wetting the asbestos and storing parts such as clutches and brakes in sealed, labeled bags.

The negative pressure enclosure/HEPA vacuum system method is one of the methods to control asbestos in auto repair shops that OSHA recommends.  Another recommended procedure is the low pressure/wet cleaning method. These two methods are the most effective in controlling asbestos particles. OSHA accepts two alternate methods only in shops that perform less than 5 brake and clutch jobs per week. The two alternate methods are the wet method and the spray can/solvent method.