labor lawAdivision of labor law center

Michigan employers need to be aware of changes to the federal FMLA regulations.

As of April 11, 2008, Michigan 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, under the new Department of Labor regulations.

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 Michigan 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 new regulations issued 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.

Labor laws saw a lot of changes during 2007. As the New Year approaches, businesses should take the time to ensure that their labor law posters reflect these changes.

Michigan employers need to understand that many of the changes apply to them as well, and that their posters need to be updated.

The updated list of 2008 Michigan labor law posters is:

• OSHA- Health and Safety Protection
• Wage Deviation
• Michigan Discrimination Notice
• Unemployment Insurance
• Overtime Compensation Rules
• Michigan Minimum Wage (parts 1 – 3)
• Michigan Child Labor
• Workers’ Compensation
• Whistleblowers’ Protection Act
• Right-to-Know/MSDS

These posters must be displayed by every employer in the state of Michigan. In addition, federal law requires that employers display a number of posters related to nationwide statutes.

The 2008 labor law posters required by federal law are:

• 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

The year 2007 saw more changes to labor laws than most years do. Some of the changes during 2007 had to do with smoking and the sale of cigarettes.

In Alaska, Child Labor Laws prohibit anyone under the age of 19 from buying cigarettes. Until October, though, a teen could work where cigarettes were sold, such as convenience stores and gas stations. Concern was expressed that teens working in these places could be selling cigarettes to their underage buddies. The Child Labor Laws were therefore amended to also ban anyone under the age of 19 from selling cigarettes.

Two states enacted strict bans on smoking in the workplace. In Illinois, almost every employment venue, including restaurants, bars and casinos went non-smoking. Ohio, too, banned smoking and posted no-smoking signs at all entrances at all workplaces.

The other changes during 2007 had to do with increases in the minimum wage. The federal minimum wage went up from $5.15 to $5.85 per hour in 2007 as a result of the Fair Minimum Wage Act of 2007. Several states across the country also raised their minimum wage at the same time.

At other times in 2007, many other states enacted raises for their minimum wage, too. West Virginia, Maine, Washington, Oregon and Oklahoma did so, along with a number of other states.

The minimum wage is scheduled to go up again in 2008. On July 24, the federal minimum wage will increase from $5.85 to $6.55 per hour. As with the increase in 2007, several other states will bump up their minimum wage, too, as a result of the federal minimum going up.

Employers are required by law to ensure that all labor law posters for 2008 are up to date. Failure to comply with the law can result in a fine for the business.

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 $5.58 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.

Employers may have questions about how new changes in OSHA polices will impact Michigan worker safety.

Why is OSHA making changes?
OSHA is making policy changes as a result of an investigation into the explosion in 2005 at an oil refinery that BP owned and operated near Houston. When this refinery exploded, 100 employees were injured. Tragically, 15 workers died. OSHA is focusing on the dangers that face employees working in oil refineries.

What sort of changes is OSHA making?
OSHA is hiring and training more inspectors because it does not believe that the owners of oil refineries will voluntarily make corrections to protect the safety of workers.

Has OSHA held any inspections so far?
Yes. Along with state partners, OSHA held over 100 inspections of oil refineries last year. In 2007, OSHA has inspected 50 more refineries.

How is OSHA managing to inspect so many refineries?
So far, OSHA has added 160 additional inspectors, who have received training on how to conduct a Process Safety Management (PSM) inspection at an oil refinery. That number will grow to 280 inspectors who are trained in conducting PSM inspections. With these new inspectors, all oil refineries that fall within the jurisdiction of OSHA will be inspected.

Have the inspections found any problems?
Yes. For instance, at a BP-owned refinery in Ohio, OSHA discovered the same violations that caused the explosion near Houston. Because of this find, OSHA decided that even though employees were hurt and killed in the 2005 explosion, BP had not learned a lesson. For that reason, OSHA placed emphasis on inspecting the oil refineries to protect the safety of workers.

Did the 2005 explosion impact crude oil processing in the US?
Yes. The BP refinery near Houston had 1,800 employees who each day processed 433,000 barrels of crude oil. When this refinery was closed, the US lost 3% of the country’s daily processing capacity, which in turn resulted in higher gasoline prices.

Michigan worker safety is always a concern, and the US Department of Labor wants to warn workers about a hazard they may not recognize. Many workers outside of the mining industry are injured or killed each year on mine property. That’s why the Mine Safety and Health Administration, part of the Department of Labor, has a new campaign entitled “Stay Out — Stay Alive.”

Outdoor and recreational enthusiasts, along with workers, need to be cautious around mine property. Since 1999, over 200 people have died in accidents on mine property.  Sadly, those accidents sometimes involved children who trespass onto mine property, thinking it will be a fun place to play.

Workers from industries other than mining also are sometimes hurt or killed on mine property. They may fall into shafts or have other accidents on the property.

Richard E. Stickler, Assistant Secretary of Labor for Mine Safety and Health, explains, “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.’”

What many people don’t realize is that abandoned mines hide many dangers. Workers who aren’t paying attention or recreational enthusiasts may wander into underground mines. These mines sometimes have shafts that are obscured by leaves and debris, and if the explorer is inattentive, he or she may fall several hundred feet down a shaft. In addition, these mines may contain other dangers, such as sections that are flooded, poisonous snakes and insects, and lethal gases.

The best way to avoid getting hurt on mine property is to not trespass. This year’s safety program will use public service announcements, along with visits to schools and with scouting groups and other organizations, to warn the public.

A flu pandemic. It could mean worldwide economic disaster, social chaos, and enormous numbers of deaths.

That may be the worst-case scenario. But an influenza pandemic is a very real possibility, according to a recent Michigan worker safety alert.

Usually we consider the flu little more than an annual workplace irritant. Every fall and winter it shows up – under the name of seasonal flu – and causes its typically unpleasant symptoms. Most of us quickly develop, or already have, immunity to the common seasonal flu, although for infants, people with fragile immune systems, and the elderly it can be a fatal disease.

A new Michigan worker safety alert warns of the dangers of a pandemic, however. A pandemic begins when a new strain of flu appears on the scene, one to which no one is immune. It spreads rapidly from person to person around the world during the months that scientists are rushing to develop a new vaccine.

The Spanish Flu pandemic of 1918 killed 25 million people in 25 weeks, compared to the AIDS virus, which has killed 25 million people in 25 years. Altogether, during the Spanish Flu pandemic 20% of the population came down with the disease and 2.5% to 5% of the human race died, sometimes within hours of contracting it. A 1957 epidemic killed 1 million people worldwide before being contained relatively quickly.

The latest concern is avian influenza. Also called bird flu, it comes in different strains, some more serious than others. It starts in wild birds but can migrate to domestic flocks of chickens, turkeys, and the like. There have been a few cases where it has spread from bird to human, but so far it has not been transmitted from person to person. If a variety developed that did so, a pandemic would be a strong possibility.

There is no pandemic currently, and no new variety of influenza. But the Occupational Safety and Health Administration believes both workers and employers should be prepared if an outbreak should occur.