labor lawAdivision of labor law center

New FMLA (Family and Medical Leave Act) regulations that will affect every Missouri employer were proposed by the U. S. Department of Labor on February 11, 2008. The new regulations go into effect on April 11, 2008, which gives employers several weeks to review the changes.

After they review the new regulations, employers can post comments on a website. Simply click this link and type in “Family and Medical Leave Act” in quotes. All comments posted to this site are viewable by the public.

On of the major changes is the policy regarding using paid time off while on FMLA leave.

Currently, Missouri employees can utilize accrued sick time while on FMLA leave. The new regulations will allow employees to not only use accrued sick time, but personal leave and vacation leave, too. To use paid time off (PTO), though, the worker must meet all requirements for taking leave. The term for this is “substitution of paid leave”.

Consider Mary, who will be taking FMLA after the birth of her baby. She currently has 2 weeks of sick leave, 5 weeks of vacation time and 3 weeks of personal leave. Under the new regulations FMLA, Mary will be able to utilize all 10 weeks of her PTO. Once that leave is exhausted, she is still eligible for 2 weeks of unpaid leave. Under this plan, Mary has substituted PTO for a portion of unpaid FMLA.

Under the previous policy, Mary would only have been able to use the 2 weeks of sick leave, requiring 10 additional weeks of unpaid leave.

Another change to the FMLA, though minor, stands to make a lot of employers and workers happy. Previously, FMLA was not counted toward an employee’s absences. Supervisors and coworkers alike considered this unfair as some of these employees gained “perfect attendance” awards and bonuses–even after being away from work for 12 weeks.

Under the new policies, FMLA leave will count toward a worker’s absences just like any other leave, thereby disqualifying those workers from perfect attendance” accolades.

More Missouri FMLA Changes

On or about April 11, 2008, several changes to the FMLA (Family and Medical Leave Act) will go into effect. The U. S. Department of Labor proposed these changes on February 11, 2008 and is providing the interim weeks as an opportunity for employers to comment on the changes.

Victoria Lipnic of the U. S. Department of Labor stated “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.”

The issues being amended include the “Ragsdale” decision on employer penalties, the substitution of paid leave if the worker meets requirements and adjustment of the process for “fitness-for-duty” certification.

Ms. Lipnic further stated, “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.”

The concept of “serious health condition” for an employee is a main focus of the new FMLA regulations.

The purpose of FMLA is to provide employees with up to 12 weeks of unpaid leave for their own “serious medical condition” or for that of a child, parent or spouse. To obtain that leave, companies normally require medical certification of the “serious medical condition” by a healthcare provider. The U. S. Department of Labor permits this practice to help prevent abuse of the leave.

The rules regarding FMLA leave provide several different acceptable definitions of “serious medical condition”. For example, one definition states “two visits to a health care provider” and 3 consecutive calendar days of incapacity, qualifies as “serious medical condition”.

The new regulations retain six definitions, plus provide a clarification of the rather vague “two visits to a health care provider”. Before the proposed amendments, no time frame was given for these two visits. One court, (the Tenth Circuit Court) ruled that the visits had to occur within the incapacitation period.

With the new regulations, the U. S. Department of Labor will set the time frame as within 30 days of the period of incapacity.

With so many changes to labor laws in 2007 and 2008, it’s imperative that employers update their labor law posters.

The state of Missouri requires that employers display a number of labor law posters.

The required 2008 Missouri labor law posters include:

• Missouri Unemployment Insurance
• Workers’ Compensation
• Missouri Discrimination Notice
• Discrimination in Public Accommodations

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 labor law posters required by federal law 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

Even with updated posters, there are many changes on the way, especially relating to minimum wage. During 2008, most of the states in the country will be increasing their state minimum wage.

On January 1, 2008, Vermont, Arizona, Iowa, New Mexico, Washington and nine other states will institute their increase.

The state minimum wage for Illinois and for West Virginia will both get bumps on July 1, 2008. West Virginia’s wage will jump from $6.55 to $7.25 per hour. The state minimum wage in Illinois will go up 25 cents per hour, from $7.50 to $7.75.

Many of the remainder of the states will increase their state minimum wage on July 24, 2008, which is the date a new federal minimum wage of $6.55 per hour will be introduced. Several states tie their minimum wage increase to the federal minimum wage. An example of this is Washington, D. C. itself, which sets its minimum wage at $1.00 above the federal wage. So, in July, employees in D.C. will get a bump in minimum wage to $7.55 per hour.

Other states like Missouri, Montana and Delaware have laws which provide a cost of living raise to the state minimum wage. The Consumer Price Index for clerical and urban workers, either regional or nationwide, is often the index used to compute these increases. As of January 1, 2008, Florida will apply it’s first such “cost of living” increase, raising its state minimum wage from $6.65 per hour to $6.79 per hour.

Probably the most amazing aspect of state minimum wage is the huge difference among the states. Massachusetts, California, Oregon and Washington take top honors, with state minimum wages around $8.00 per hour. Kansas, on the other hand has a state minimum wage of $2.65 per hour, and that wage has been in effect since the 1980s.

Tennessee, South Carolina, Alabama, Mississippi and Louisiana have no state minimum wage. In these five states, if a company is not covered by the federal minimum wage, that company can legally set any wage it wants. An employer could pay 10 cents an hour if it wished, provided anyone would consent to work for that wage.

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.

Employers need to verify that their poster explaining how the federal and Missouri USERRA operates is up-to-date. Some recent changes will impact workers in Missouri. For instance, a change made recently to USERRA, which is the 1994 Uniformed Services Employment and Reemployment Rights Act, means that federal government employees can now file claims with VETS, the Veterans’ Employment and Training Service.

USERRA helps to protect the civilian jobs of members of the Navy, Army, and Air Force Reserve, and members of the National Guard when they are called to active duty. In some circumstances, it also applies to emergency workers, such as those who assisted in recovery operations in New York after the September 11 terrorist attacks. In addition, USERRA protects the civilian jobs of veterans. This protection lasts up to 5 years, which is a cumulative total. If a soldier serves three years and later serves an additional two years, his or her 5 year limit is reached.

Disabled veterans also are protected by USERRA. Employers have to provide the disabled veteran with reasonable job accommodations. In addition, when soldiers have been injured, even if the injuries took place during training, then they have two additional years before they have to return to their civilian jobs.

Health insurance is an important matter addressed by the new regulations for USERRA. Under the new regulations, the soldier and his or her family must retain their employer’s health insurance for the first 30 days. After that time, if soldiers are still on active military duty, they are entitled to military health care. Their family is also entitled to military health care.

The regulations were recently updated to reflect the fact that many soldiers – and their families – prefer to retain their employer’s group health insurance. Under the new regulations, if the soldier would rather continue health coverage through his or her civilian employer, it is allowed for up to two years. During this time the soldier must pay 100% of the health care premium, including any portion usually paid by the employer. In addition, a small processing fee may apply. These health care arrangements are similar to the COBRA law, which permits unemployed people to retain health care coverage.

It is essential that employers take the time to remind workers of how important safety is and instruct them in safety precautions they should take on the job.  Education is an important part of a safety plan for any business.  The OSHA (Occupational Safety and Health Administration) Workplace Safety Pack contains a few very good tools that employers can use to help keep their work environment safe.  It has the following four items:

• Workstation Safety Tips Poster
• Slips, Trips, and Falls poster
• The Workplace Ergonomics
• Lifting Safely Poster

All of these things have simple tips on various aspects of workplace safety.

According to the most recent workplace safety statistics more than 4.2 million work related accidents occurred in the U.S. in 2005.  Unfortunately, just over 5,000 of those people in accidents on the job died.  These surprisingly high numbers of incidents do not include firefighters, cops, paramedics or government and non-profit employees.  Only those employees in private businesses were counted. 

The OSHA, who oversees workplace safety for the state, Missouri has worker safety figures may be a revelation for you.  In 2005, a total of 503,530 workers suffered from tears, strains, or sprains.  The count of painful back injuries for 2005 that were job-related was 270,890.  There were a total of 255,750 people that fell at their job location, which resulted in the deaths of 732 people.  Work-related driving accidents were the causes of over 1,200 deaths.

Accidents result in time off work, lost wages and expensive medical bills, and lawsuits, not to mention the employee’s pain.  In 2005, accidents accounted for 1,234,700 lost workdays. Some workers may have sick pay, but those who had to take off extended periods of time from work may not be covered.  In addition to that, someone else will have to cover the work that the injured employee can’t do for a while. 

Forklifts are such a common piece of equipment, found on so many jobsites, that workers are prone to become lax in operating them.  These relaxed standards are the main source of accidents on the job and can even lead to injury, or even to the death, of the operator or coworker who happens to be nearby.

The Missouri worker safety office, OSHA, has reiterated the importance of safe operations of these machines in a recent article issued by the state’s safety magazine.  There are federal and state guidelines that must be maintained at all times when these machines are on the job.  Sometimes these machines are known by other names, such as fork trucks or powered industrial trucks (PITs) but the safety issues are the same no matter which name is used.

Forklifts are manufactured by a number of companies but the operations are basically the same.  All manufacturers list the forklift’s maximum load capacity on a data plate prominently affixed to the machine.  Maximum capacity per load varies, of course, with the size of the machine.

The center of gravity for the machine varies with size, too, and it’s this factor that is the most crucial to safe operations of the machine.  Smaller machines have a center of gravity that is no more than 24” higher than the forks.  For proper weight distribution, the load should be no further away than 24” from the base of the forks, too.

Larger forklifts have a 36” or 48” load center.  The center of gravity for these larger machines is determined by the same height and distance factors as the smaller ones, with 36” and 48” being the crucial measures.

Exceeding the weight limit of the forklift severely diminishes the safety of the equipment but smaller loads cause problems, too.  Any time a forklift is loaded in an off-center or unbalanced way, the machine becomes a risk to worker safety, regardless of the weight of the load.

When forklifts are improperly loaded and the center of gravity is off balance, the machine is at risk for tipping over or dropping its load.  Either of these incidents can cause severe injury to the operator and to anyone working or passing through the work area.