labor lawAdivision of labor law center

The U.S. Department of Labor recently announced widespread changes to the federal FMLA regulations, that affect employers in Kansas and nationwide.

When an employee has a serious medical condition, or needs to take care of a family member who is seriously ill, that employee can take up to 12 weeks of unpaid, job-protected leave called FMLA leave under the Family and Medical Leave Act. Usually, the employer requires medical certification from the worker’s physician.

Once certification is received and leave is granted, an employer currently only has two avenues to request recertification. If a worker takes more than 30 days of FMLA and remains absent from work, the company can require recertification of the condition. The second avenue pertains to physician-imposed limits on the time off. If Jake’s physician says he needs 4 weeks off to recovery from pneumonia and Jake remains absent after 4 weeks, the employer can required the condition be recertified.

Under the old regulations, when medical certification classified the duration as “unknown” or as “lifetime” employers had no procedure for requesting recertification.

Fortunately for employers, several changes have been proposed to the FMLA regulations, and one of them includes streamlining the medical certification process.

Under the new FMLA regulations, employers will be permitted to request recertification of an ongoing “serious medical condition” at least once every 6 months. Not that the regulations use the word “request”, but if the employee doesn’t comply, he or she can legally be denied the FMLA leave.

The new regulations will also include a provision for employers to obtain a new medical certification each year for an ongoing “serious medical condition”. To illustrate, consider Mary, who suffers from migraine headaches. As a result, Mary periodically has to take unscheduled FMLA leave. Mary’s company is perfectly within their rights to ask that she have her physician provide a new medical certification every year.

Under the new regulations, employers can contact a physician to clarify a medical condition, but can not ask the healthcare provider about anything that isn’t listed on the original medical certification. Whenever employers discuss medical information with health professionals, both must comply with HIPAA regulations regarding medical privacy regulations.

More Kansas FMLA Changes

Recent changes to the FMLA (Family and Medical Leave Act) regulations do not go into effect until April 11, 2008. Employers nationwide will be affected and are encouraged to review and comment on the regulations.

These changes were proposed by the U. S. Department of Labor and include two updates to the process for “fitness-for-duty” certification for employees returning from FMLA leave.

According to existing FMLA rules, an employer may require a “fitness-for-duty” certification from the employee’s healthcare provider confirming the worker is able to return to the job. This policy must be uniformly applied to employees in similar situations.

Title VII of the Civil Rights Act of 1964 and other federal laws protect workers from being discriminated against based on religion, age (over 40), sex, disability, race, national origin, pregnancy or color. So, if one worker on FMLA leave for a “serious health condition” is required provide a fitness certification then all workers with a “serious health condition” must provide certification. If a company doesn’t ask for certification from an employee on FMLA leave to adopt a child, then certification can not be required from any other worker who takes leave to adopt a child.

The new regulations will contain two changes to the “fitness-for-duty” certification process. The first pertains to workers who take intermittent leave. The updated FMLA will allow businesses to demand certification each time the worker returns from FMLA leave. Consider Justin, who drives a delivery truck. He often takes leave for migraines which affect his vision. Because a driver’s vision is a safety concern, the employer can require a “fitness-for-duty” certification each time Justin returns from leave.

The other change to the “fitness-for-duty” process permits companies to ask that the employee’s certification specifically report on the worker’s job functions. To illustrate, Harry strains his back while working on the loading dock and takes FMLA leave. His job involves picking up and carrying heavy objects, so the company can request medical certification that Harry is able to perform those tasks before allowing him to return to the job.

Every Kansas 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.

Another increase will occur on July 24, 2008, raising the federal minimum wage from $5.85 to $6.55 per hour. Again, the states that tie their minimum wage to the federal rate will bump their state minimum wages, too.

The 2008 Kansas labor law posters required by state law are:

• Discrimination Notice
• Unemployment Insurance
• Kansas Child Labor
• Workers’ Compensation

In addition, federal law requires every employer in the nation to display a number of posters. These include:

• Employee Polygraph Protection Act
• Family and Medical Leave Act
• OSHA-Job Safety & Health Protection
• USERRA – Uniformed Services Employment and Reemployment Rights Act
• Equal Employment Opportunity is the Law
• Federal Minimum Wage

2007 also saw other changes that required employers to update their labor law posters. Employers in Ohio had to post new no-smoking signs at all entrances as a result of the establishment of tough new ban on smoking in the workplace.

Washington, Oregon, Texas and several other states raised their state minimum wages in 2007.

A change was enacted in Alaska to the state Child Labor Laws regarding the selling of cigarettes. It was already illegal for anyone under the age of 19 to buy cigarettes. This change in the law also made it illegal for anyone under the age of 19 to sell cigarettes. The change resulted from the fear that teens working in gas stations or convenience stores were selling cigarettes to their underage friends.

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.

More than a dozen states will increase their minimum wages on January 1, 2008. These include Delaware, Oregon, Washington, California, Florida, Iowa, New Mexico, Massachusetts, Vermont, Colorado, Arizona, Missouri, Montanan and Ohio. The lowest rate to be increased is in Montana, where the state minimum wage will increase from $6.15 per hour to $6.26. In Missouri and New Mexico, the state rate will go to $6.50.

One of the major changes during 2007 related to minimum wage. The federal minimum wage, as a result of the Fair Minimum Wage Act of 2007, went from $5.15 to $5.85 per hour. Nearly a dozen states increased their minimum wage on the same day.

Also, during the 2007, several other states, including Utah, Washington, Oregon, and West Virginia increased their state minimum wage. Both state and federal law require that every employer prominently display the posters in an area where they can been seen by every employee. Popular locations are a bulletin board, near the time clock or in the break room.

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.

The US Department of Labor’s Mine Safety and Health Administration, also known as MSHA, is concerned about Kansas worker safety and the safety of the public. To try to protect workers and recreational enthusiasts, a new campaign has been launch entitled “Stay Out — Stay Alive.” This public service campaign warns against the dangers people may encounter when they trespass on working or abandoned mine property.

Since 1999, over 200 people have been killed in accidents involving mines. Tragically, many of these fatalities involved children or outdoor enthusiasts. Sometimes, children will play on mine property and get injured. In other cases, workers from industries other than mining will have accidents on property belonging to working or abandoned mines.

According to Richard E. Stickler, Assistant Secretary of Labor for Mine Safety and Health, “There are about 500,000 abandoned mines and another 14,000 active operations throughout the United States. Many of them contain hidden hazards and, for those not trained to work in mines, the outcome can be deadly. That’s why we urge workers, hikers, bikers, rock hounds and swimmers to ‘Stay Out — Stay Alive.’”

To try to prevent accidents, state and federal agencies have become partners with individuals, private organizations, and businesses to take part in the “Stay Out — Stay Alive” campaign. The need for this campaign is clear. In 2006, 30 people who were from age 17 to age 51 died due to injuries they suffered on the property of either a surface or an underground mine.

To get the word out to the public about the dangers they may encounter if they trespass on mine property, the program will make public service announcements. In addition, professionals from the federal mine safety agency will visit scouting groups and schools, along with other organizations. Talking to young people is important since they need to be aware of the hazards that can be encountered if they trespass onto mine property.

Education is the key to developing a solid workplace safety plan. And a workplace safety plan can be a matter of life and death.

The U.S.  Bureau of labor Statistics has figures showing that the Occupational Safety and Health Administration, or OSHA, investigates millions of workplace related injuries every year nationwide and in Kansas.

Kansas worker safety numbers show that more than a half-million employees – 503,350, to be precise – suffered from tears, sprains and strains. Painful back injuries accounted for 278,890 injuries. And 255,750 people fell while on the job. OSHA is in charge of overseeing the safety of Kansas workplaces.

Nationwide, the statistics are dramatic. Take 2005, the last year for which complete safety statistics are available. Nationwide, that year, more than 4.2 million accidents occurred on the job. The accidents resulted in more than 1.2 million lost days of work. And 5,702 employees died on the job – a tragic and unnecessary toll.

As the Kansas statistics demonstrate, falls on the job account for a large number of accidents. In fact, slips, trips, and falls – often thought of as a mere annoyance – are a very common cause of workplace deaths. They represent the second most deadly form of accidents on the job, following only driving accidents. Falls took 732 lives in 2005, more than half the number of driving deaths, which accounted for 1,258 fatalities.

According to OSHA, workers should be reminded of how important safety measures are, and should be taught the right safety precautions to take. It has developed something to make that job easier. It’s called the OSHA Workplace Safety Pack, and includes three posters and The Workplace Ergonomics. The information is presented in a readily understandable manner.

Posters include the Workstation Safety Tips; Lifting Safely; and Slips, Trips, and Falls posters.

The chilling workplace statistics represent only the private sector. They do not include numbers for jobs in the non-profit arena, or in public jobs, including high-risk professions like firefighting, law enforcement, and paramedical work.

Many people don’t realize that influenza, or the flu, could be a life-threatening ailment for even healthy, vibrant adults. Most think of the flu as a seasonal, annoying ailment that quickly clears up. A large percentage of people believe that the flu can only be dangerous to small children, the elderly, and those with compromised immune systems.

These perceptions are mostly true of the types of flu viruses that are common. These flu viruses cause the seasonal flu that most of us have developed some immunity to.

But an influenza pandemic is something different, explains a recent Kansas worker safety alert. During a pandemic, a new strain develops that no one has developed an immunity to. This new virus spreads from person to person across the world.

If a worldwide influenza pandemic were to occur, the OSHA alert says that employers should include an emergency plan to deal with it. The Occupational Safety and Health Administration says that a pandemic could disrupt the global economy more than a single terrorist attack, and employers need to be prepared.

A few things businesses could do include the following:

• Reduce contact between co-workers
• Schedule conference calls instead of face-to-face meetings
• Allow employees to work from home when practical
• Create barriers between employees and the public such as drive-thru windows

Keeping yourself healthy during a pandemic involves the same precautions you’d take when protecting yourself against the seasonal flu.

• Cover your mouth when coughing.
• Wash hands frequently or use hand sanitizer
• Stay home if you’re sick
• Stay at least 6 feet away from infected people

The last major influenza outbreak occurred between 1918 and 1920 and killed more than 50 million people, many of who were healthy young adults. This pandemic was called the Spanish Flu because it received so much coverage in the Spanish press.

The OSHA says that people should be prepared, but need not worry about a pandemic anytime soon. The seasonal flu that happens every year is not a major threat. Currently no new influenza virus strain has emerged and there is no risk of a pandemic.