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New regulations on FMLA will affect nearly every employer in Illinois.

On February 11, 2008, the U. S. Department of Labor proposed new FMLA (Family and Medical Leave Act) regulations. Theses regulations include many changes for employers. Until April 11, 2008, when the regulations go into effect, employers have the option to make comments on them.

To make comments, employers can click this link. Once on the site, enter the words “Family and Medical Leave Act” encased in quotes. Before adding comments, employers need to be aware that this site is public.

“Substitution of paid leave” is one of the changes in the new regulations. The law doesn’t require employers to pay workers who are on FMLA leave, but it does allow employees to take FMLA and any accrued sick leave at the same time. This substitution of paid leave includes all PTO (paid time off); including vacation time and personal leave. To take PTO, however, the worker must meet all the company’s requirements regarding leave usage.

To illustrate, consider James who has a total of 10 weeks paid time off. Two weeks are sick time, three are personal and the remaining five are vacation. Before the implementation of the new FMLA, James would only be able to use the two weeks of sick time while on FMLA leave. When the new regulations go into effect, James can utilize all 10 weeks of accrued leave.

Once his PTO is used, James will then be entitled to 2 weeks of unpaid FMLA leave. Thus, James has effectively substituted PTO for part of his FMLA leave.

Under the new FMLA regulations, the employer is permitted to require workers to use up all PTO before charging time to FMLA leave.

Another change in the new FMLA regulations changes a policy regarding employee attendance. Previously, FMLA time did not count toward a worker’s absence, which meant an employee who took 12 weeks of FMLA could still qualify for a “perfect attendance” award, often earning bonuses, too. With the new regulations, FMLA leave will be considered the same as any non-FMLA absences, so workers will no longer be eligible for perfect attendance awards.

More Illinois FMLA Changes

On February 11, 2008, the U. S. Department of Labor proposed a number of changes to the FMLA (Family and Medical Leave Act) regulations. Employers will have close to two months to comment on these changes. On April 11, 2008, the regulations will be in effect and in force.

The U. S. Department of Labor’s Victoria Lipnic made the following statement. “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.”

A majority of the new regulations address the definition and medical certification of the worker’s “serious health condition”.

When a worker has a “serious medical condition”, FMLA allows him or her to take up to 12 weeks of unpaid leave per 12 month period. In addition to using FMLA for him or herself, the leave can be taken to care for a family member with a “serious health condition.” According to FMLA, family member is defined as a parent, spouse or child.

To be eligible for FMLA leave, employers usually require that a healthcare practitioner certify the “serious medical condition.” The U. S. Department of Labor supports this practice to avoid employee’s abusing the leave.

Even when certification is provided, employers can, in some cases, request a second or third opinion. These visits must be paid for by the employer.

The new rules retain six of the definition for a “serious medical condition” and provide additional clarification of 2 terms. One of these six definitions requires that the “serious medical condition” involve greater than 3 days of incapacitation, and “two visits to a health provider”.

The term “two visits to a health provider”, however, is without a time frame. Is it two visits a week, a month, or a year?

The Tenth Circuit court ruled that the visits must occur during the incapacitation period. U. S. Department of Labor, however, will amend the rule such that the two visits are required within 30 days of the incapacity.

OSHA, the federal Occupation Safety and Health Administration, warns Illinois employers that employees can be injured by exposure to cold weather in the workplace, even at as mild a temperature of 50 degrees.

With the recent winter storms in the Midwest which knocked out power for nearly a month, Illinois employers and those across the nation need to be aware that cold weather exposure can cause cold stress, frostbite and hypothermia.

Outdoor workers are particularly susceptible to cold weather hazards, but with winter upon the country, all employees could be at some level of risk according to OSHA.

Cold stress is a condition where the body can no longer warm itself. The colder the temperature, the more the body works to create body heat. All internal organs are given priority, which means that blood is taken away from the outer limbs. In these cases, ears, the nose, feet, hands, toes and fingers are in great risk of frostbite.

Hypothermia is a serious drop in body temperature, and can be fatal. Cold stress is a less serious form of hypothermia. In severe cases, however, cold stress can cause permanent injury and can result in death.

Certain workers need to be aware that they may be more susceptible to these cold weather related illnesses. Older employees, employees on sedatives or tranquilizers, and those on antidepressants may be at greater risk. Medications can interfere with the body’s ability to warm itself, and as people age, their bodies become less efficient at keeping warm.

A few simple safety measures can help all employees prevent these cold weather illnesses. All employees should dress for the weather. Wet and windy conditions, even at 50 degrees can cause cold stress, so workers should dress appropriately. Layers of clothing are recommended, as is having extra clothing on hand in case something gets wet.

Workers should also take lots of breaks and go inside, or to a warm area out of the wind, wet and cold. Warm drinks like broth are recommended, as are warm meals rich in carbohydrates.

Workers should avoid alcohol and all caffeine drinks. Both diminish the body’s ability to warm up.

Cold weather can expose workers to several cold-related injuries and illnesses. The federal OSHA (Occupational Safety and Health Administration) and the Illinois OSHA recently issued alerts warning of the dangers of Cold Stress and Trench Foot in the workplace.

Cold stress occurs when the body is unable to warm itself. Mild cases can be usually be treated by moving the employee to a warm, dry area. Severe cases can lead to hypothermia, however, which can be fatal.

Trench Foot is similar to frostbite, but less severe and was first named in World War I. Soldiers fighting that war often stood for long periods of time in trenches that were filled with water. This exposure to the water caused the soldiers’ feet to itch, burn and blister–similar to the conditions of frostbite. Trench Foot is a sign of cold stress and can put employees at risk for injury.

Preventing Cold Stress and Trench Foot requires the employees to take certain steps.

First, all workers must dress appropriately for the weather, especially those employees who work outside. OSHA recommends dressing in at least three layers, with the outer layer made of fabric to specifically cut the effects of wind. Second, all workers should wear hats. Third, footwear should be insulated and waterproof.

Even in milder temperatures, water and wind can significantly lower the body’s temperature. Wind chill, the combination of temperature and wind speed can make the skin feel colder than what is on the thermometer. Stronger winds mean colder wind chills, and colder body temperatures.

In addition to dressing properly, employees can watch each other for symptoms of cold stress by working in pairs. At the first signs of cold stress, the worker should move out of the cold and remove any wet clothing. Dry clothing, if available, should replace the wet ones, or the worker should be wrapped in warm blankets. Give the employee warm beverages, but nothing that contains alcohol or caffeine. Both of these substances can interfere with the body’s capability of staying warm.

A number of states have recently enacted workplace smoking bans. Illinois joined the fray just this week, with the passage of a smoking ban that goes into effect on January 1, 2008. A similar ban that prohibits smoking in most workplaces in Maryland will go into effect on February 1, 2008. 

In the past, many states prohibited smoking in public areas, but permitted it in restaurants and bars. These laws are slowly being changed, with a number of states adding restaurants, bars and even casinos to the “non-smoking” list. Minnesota already has significant bans on smoking in public areas. Effective October 1, 2007, a new law that bans smoking in restaurants and bars in Minnesota will go into effect. Montana has passed a similar law, which is slated to go into effect on October 1, 2009.

New Hampshire’s law banning smoking in restaurants and bars goes into effect on September 17, 2007. Oregon’s 100% smoke-free workplace law will become effective on January 1, 2009. That’s the same day that a Utah law banning smoking in bars will go into effect.

Opinions are divided on smoking bans in restaurants and bars. Many workers in the hospitality industry embrace such laws, pointing out that without such measures, employees are exposed to “passive smoking” every work day. Restaurant and bar owners are usually less enthusiastic. They voice fears that they will lose business as people stay home to smoke.

Most people consider workplace smoking bans a recent phenomenon, but the earliest known smoking ban dates back to September, 1590. That’s when Pope Urban VII issued a papal decree that anyone smoking inside a church, or in the porchway, would be excommunicated. The Pope’s ban included chewing tobacco and sniffing it, as well.  The ban was short-lived, however. Pope Urban VII died of malaria after just 13 days in office, one of the shortest Papal tenures in history.

Urban VII wasn’t the only historical figure opposed to smoking in the workplace, either. While Winston Churchill was often photographed chomping a cigar, Adolph Hitler banned smoking in every German university, post office, military hospital and Nazi Party office in 1941. “Der Fuhrer” also introduced widespread anti-tobacco advertisements, which continued until Germany’s World War II defeat in 1945. 

The first smoking ban in the U.S. was enacted in 1975, when the Minnesota Clean Indoor Air Act made it illegal to smoke in most public places. In its initial form the act required restaurants to have a no-smoking section, but allowed smoking in all bars.

The first complete smoking ban was in California in 1998. The bill banned smoking in bars, extending a workplace smoking ban originally passed in 1994. Today, the once-controversial bill is widely applauded. Other states such as New York quickly followed suit.

A number if cities in California and across the nation have banned smoking in public parks and on beaches. Several municipalities have passed bans making smoking illegal anywhere outside of a private home.

These laws, like all modern smoking bans, are a reaction to an increasing body of research that shows the unhealthy effects of second-hand smoke. A recent study, for example, shows that non-smokers who are married to someone who smokes have a 25% to 30% higher risk of lung cancer, emphysema and other smoking-related disorders, compared to those who are married to non-smokers.

Smoking bans are not a phenomena limited to the U.S. In 2004, Ireland and Norway passed bans on smoking in all public places.  The U.K. passed similar ban in 2007.

The American Nonsmokers’ Rights Foundation is an anti-smoking group that keeps meticulous records of smoking legislation. According to the group, there are 23 states with some form of state-wide workplace smoking ban in place. These include:

• Arizona
• California
• Colorado
• Connecticut
• Delaware
• Florida
• Hawaii
• Idaho
• Louisiana
• Maine
• Massachusetts
• Montana
• Nevada
• New Jersey
• New Mexico
• New York
• North Dakota
• Ohio
• Rhode Island
• South Dakota
• Utah
• Vermont
• Washington

In addition, there are counties and municipalities in almost every state that ban smoking in some form, from Alaska to Wyoming. One state that is notably absent from the list is North Carolina an area where tobacco is a major crop and the tobacco lobby has been especially strong in the past. At least for the present, smokers are welcome anywhere in the state.

Yesterday, Illinois Governor Rod Blagojevich signed a bill that will ban smoking in almost all workplaces throughout the state effective January 1, 2008. With the bill, Illinois joins 16 states that have already made smoking illegal in the workplace.

Non-smokers hail this as a seminal event for the health and well-being of workers, while smokers see it as a further erosion of their first amendment right to “the pursuit of happiness.” The law is aimed at preventing employees from being exposed to second-hand smoke at work.

Under current Illinois law, smoking is legal in factories, warehouses and similar places of employment that are not usually open to the public.  Smoking is currently acceptable in casinos, bars and private clubs. Also under the current regulations, a group or individual can rent a private room in a banquet hall or restaurant and permit smoking. Under the new law, all of that will change in January. The law will specifically ban smoking sections of bars and restaurants. It also closes a loop-hole that permitted smoking in private homes where a day-care center is operated.

The new law will NOT ban smoking in private, enclosed offices where all the workers smoke, even if non-smokers must visit the offices on occasion. Critics point to this as a major flaw in the law. The law also permits smoking in retail stores that derive at least 80% of their revenue from the sale of tobacco products. Smoking will still be permitted in enclosed personal spaces, such as private homes and personal vehicles, and in specifically designated hotel rooms.

Critics also argue that the penalties under the new law are too low, with fines of $100 to $250 to individuals for violations. Fines for businesses that violate the law start at $250. 

An important feature of the new law prohibits smoking within 15 feet of any entrance or exit door in the workplace. The current Illinois Clean Indoor Air Act contains no such provision. The sight of workers braving sub-zero winter temperatures to smoke outside the door of an office or shop is very common. Workers and customers must frequently walk through a cloud of smoke blanketing the entrance, to gain access to a restaurant, store or office under the current system.

Under the Illinois Clean Indoor Air Act, smoking has been banned in most public places in the state for a number of years. That includes smoking in any indoor area used by the public, or as a place of work, including hospitals, restaurants, retail stores, offices, elevators, theaters, libraries, art museums, concert halls, schools, nursing homes, auditoriums and meeting rooms. The current law provides for smokers to be fined up to $500 for a first offense. Anyone who persists may be found in contempt of court and imprisoned for a short time, as well as fined.

The current Illinois Clean Indoor Air Act does allow for smoking in areas that are specifically posted as “smoking areas” including some areas of restaurants, bars and nursing homes. The act originally made exceptions for a number of businesses, including bowling allies, and bars. All of these areas will become off limits to smokers under the new law.

A number of counties and municipalities already have laws that prohibit smoking. Cook County, the home of Chicago and 43.3% of the state’s population, bans smoking everywhere except designated rooms in hotels and nursing homes. The county does permit municipalities to “opt out” by allowing smoking in designated sections of restaurants and bars in Rosemont and a few other areas. Other Illinois cities outside Cook County, including Normal, Illinois have banned smoking in all workplaces, even restaurants and bars.

States that currently have 100% smoking bans in workplaces include Arizona, California, Delaware, Florida, Hawaii, Louisiana, Massachusetts, Montana, Nevada, New Jersey, New York, North Dakota, Ohio, Rhode Island, South Dakota, and Washington.  These states prohibit smoking in public and private workplaces regardless of size. They do not allow smoking in separately ventilated rooms in offices, factories or warehouses. The Commonwealth of Puerto Rico also has such a law. South Dakota has a similar law, but does permit smoking sections in restaurants or bars. 

In addition, at least 340 municipalities nationwide ban smoking in the workplace, from Anchorage, Alaska to Laramie, Wyoming. Some of these bans permit smoking in separate sections of restaurants and bars, while most do not.

Following its investigation into an explosion in 2005 at an oil refinery, OSHA has changed some policies that impact Illinois worker safety. OSHA made these changes in an effort to protect workers at oil refineries across the nation.

After this explosion, OSHA decided that keeping oil refinery workers safe was a major concern. Their focus on worker safety was even more evident after a hearing was held recently concerning a report by the Chemical Safety and Hazard Investigation Board (CSB),

In early 2005, an explosion occurred at an oil refinery that BP owned and operated. Debris poured down on the areas surrounding the refinery, and flames roared into the sky. This explosion near Houston injured over 100 workers. Sadly, 15 workers were killed. A total of 1,800 workers were employed at this oil refinery.

Six months later, when OSHA inspected another oil refinery that BP owned and operated in Ohio, they discovered the same violations that lead to the explosion in Texas. This finding caused OSHA to decide to take steps to protect workers since oil companies would not.

To reduce injuries and fatalities, OSHA began inspecting refineries. During 2006, OSHA inspected over 100 refineries. To date this year, OSHA has inspected 50 more refineries. Keeping the refineries safe for workers is vital, but keeping the refineries operating is also important.

When the Texas explosion happened, it shut down production. A total of 433,000 barrels of crude oil were processed daily by that refinery. Loss of this oil production caused higher gas prices the following year during the summertime.

Since OSHA intends to inspect all of the oil refineries that fall within its jurisdiction, they have added new staff.  So far, they have 160 additional people who have been trained to conduct Process Safety Management (PSM) inspections. The number of trained inspectors is expected to rise to 280 by August 2007.