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.

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. 

Spring with its seasonal power-outage causing storms can be a dangerous time of year for workers in Missouri if plans aren’t put into place to help protect their safety during these power outages. This is especially true for businesses that are unable to shut down during an outage, and must remain open.

As a way to protect Missouri worker safety, employers and their employees should implement and follow a worker safety plan. The ideal worker safety plan should cover all aspects of worker safety including what to do in case of a power outage.

Equipment often used to heat and run businesses and homes during a spring power outage can pose all sorts of dangers for workers. It’s important to make sure all generators and heating devices are used correctly and properly installed.

A generator, for example, if improperly installed can create electrocution risks for utility line workers and others. An improperly connected generator can cause an unsafe back feed of electricity to flow through normal distribution wiring, which puts workers lives in danger and increases fire risks.

Wood-burning stoves and fireplaces can also create a risk to Missouri spring worker safety if proper installation procedures are not followed, or if there is a lack of adequate ventilation.

This also holds true for fuel heaters like gas and propane heaters. Adequate ventilation is especially important when using fuel heaters because spring storms, especially those involving ice, can damage propane or natural gas equipment. This damage is not always immediately visible. The smell of gas or the sound of blowing gas is often a sign that damage has been done to the fuel heaters. Contact your gas supplier immediately if this or unnaturally high flames happen, or if appliance cease to work.

Outdoor propane heaters, ovens, gas ranges, and charcoal grills become hazardous if used indoors. It’s also hazardous to worker safety to store or place propane cylinders indoors, especially in closed areas like basements and garages.

Install working smoke and carbon monoxide alarms in businesses and homes. Use a battery-operated radio to get spring storm updates.

OSHA recently fined a Pevely, Missouri nearly $2.4 million for repeated, willful violations of Missouri workers safety regulations.

According to OSHA, the contractor committed 8 serious violations of job safety and health standards that resulted in 2 fatal accidents within 60 days. Both of the fatalities occurred on the same project, a bridge painting job in Kansas City. In addition, the same suspended scaffold was involved in both accidents. In one incident, a worker plunged to his death through a hole in the scaffold platform. In another, an employee suffered a fatal fall while trying to dismantle the scaffold. 

We’ve recently learned that these two fatalities come in the wake of another worker’s death at the same company, in similar circumstances at another job site.

According to an OSHA official, “Not only did two workers suffer fatal falls while working in Kansas City, but another employee of this company suffered a fatal fall in a similar accident earlier in the year in the St. Louis area,” said Edwin G. Foulke Jr. Foulke is Assistant Secretary of Labor for Occupational Safety and Health, or OSHA.  “Three fatalities in five months show gross plain indifference to employee safety. Employers must ensure that their workers are protected from unsafe working conditions.”

The instance-by-instance willful violations indicate a lack of fall protection and training for employees, according to the OSHA findings. This is especially apparent in the failure to use fall protection or to safety dismantle the scaffold. The willful citations cite the lack of safe scaffold access, that a qualified person did not design the scaffold, and that there were no competent persons to supervise the work.

Additional serious OSHA citation address more issues. These include the employer’s unsafe practices in permitting debris on the platform, which presents a fall hazard. The platform also had large holes. In addition, OSHA found that the personnel lift was overloaded.