labor lawAdivision of labor law center

On April 11, 2008, a new set of proposed changes to the FMLA regulations takes effect.

Under the new rules and updated regulations, both employers and employees in Montana will have new obligations regarding FMLA notifications.

There is also an expansion to the FMLA under the National Defense Authorization Act (NDAA) of 2008 that expands leave under FMLA to 26 weeks annually for some military families of soldiers who, according to Victoria A. Lipnic, assistant secretary for the Employment Standards Administration, “are suffering serious illness or injury.”

The military expansion took effect on January 28, 2008 when President Bush signed the NDAA into law.

The proposals would additionally make some changes that would reflect Supreme Court and lower court decisions handed down since the passage of the act.

The U.S. Department of Labor published the proposed updates to the FMLA law on February 11, 2008.

Assistant Secretary Lipnic also said the proposal “preserves workers’ family and medical leave rights while improving the administration of FMLA by fostering better communication in the workplace.”

Employers have long argued that the FMLA rules allow employees to take days off, unscheduled, without proper reporting. The old rules let employees take two full business days following an absence before notifying their employers, which caused major operational disruptions. The new rules require workers to follow company absence notification policy.

Employees are also protected, under a new rule that is designed to guarantee they understand their FMLA rights. When an employee hands in an incomplete or incorrect medical certification, employers are required to notify them of the error in writing. A worker has seven days to correct the problem. The new rules also allow for employers to have five rather than two business days to send notices of designation or eligibility to workers. All employer notice requirements would be consolidated.

The Family and Medical Leave Act of 1993 guarantees unpaid, job-protected leave to attend to a serious illness of one’s own or that of a member of the immediate family. Leave is also guaranteed to bond with a new child.

More Montana FMLA Changes

The U.S. Department of Labor published a series of tentative changes to the Family and Medical Leave Act (FMLA) rules on February 11, 2008. The rules are expected to go into effect April 11, 2008.

The changes, according to the Department of Labor, are written with several court rulings in mind. The rulings by the U.S. Supreme Court and lower courts all have had impacts on the FMLA laws.

The changes should also enhance communication between employers, healthcare providers, and employees, according to the Labor Department.

Changes regarding “light duty,” for example, reverse trends of court cases. The tentative rules state, first, that “light duty” must not count toward a worker’s 12 weeks of unpaid FMLA leave. A worker, in short, may be on “light duty” and may still receive FMLA time thereafter. Second, the changes affirm that being assigned a “light duty” position does not affect rights to be reinstated to one’s original position. The court cases had ruled that “light duty” assignments could be considered part of an employee’s FMLA leave.

Another change reflects the so-called Ragsdale decision by the U.S. Supreme Court. In Ragsdale vs. Wolverine World Wide, Inc., the Court ruled that employees who have taken more than 12 weeks of paid leave may not be entitled to another 12 weeks of leave through FMLA. Workers, according to the Court, who have already taken 12 or more weeks of either unpaid or paid leave, and can show no harm, are not entitled to penalties. An employee had been denied FMLA leave after taking 30 weeks of paid leave.

A third change proposed would strengthen the U.S. Labor Department’s position that workers may settle FMLA claims out of court, but must waive their FMLA rights retroactively to do so. They may not waive those rights in advance, however. A court had ruled that employees could waive rights either in advance or retroactively.

Comments may be posted until April 11, 2008 at http://www.regulations.gov under the keywords “Family and Medical Leave Act” (use quotes).

The Wage and Hour Division of the Labor Department enforces the FMLA.

As of January 28, 2008, family members of injured and or active duty soldiers may take up to 26 weeks of leave to care for that soldier and/or that soldier’s family under NDAA.

In addition to caring for an injured soldier, the NDAA allows for family members to stand in for a soldier who is called to active duty. Under this provision, sons, daughters, parents and spouses may take up to 26 weeks of unpaid FMLA to care for whoever was under that soldier’s care, including ill family members and healthy children.

The NDAA (National Defense Authorization Act) of 2008 provides leave by expanding the amount of leave allowed under FMLA (Family and Medical Leave Act). According to the NDAA of 2008, sons, daughters, parents and spouses may take unpaid FMLA to care for an injured soldier, who is active military or a member of the National Guard or Reserve on deployment. “Next of kin” are covered by the NDAA, too, which in some cases may include aunts, uncle or cousins.

Montana FMLA Expansion

The federal Family and Medical Leave Act (FMLA) is likely to see an increase in coverage sometime in 2008, in Montana and across the country.

The expanded coverage would allow relatives of National Guard and Reserve members to take up to 26 weeks (around 6 months) of FMLA to stand in for that member when he or she is called to active duty. The leave would not only allow for the care of an ill child or parent, but also to care for healthy children.

The current FMLA provides up to 12 weeks of unpaid, job-protected leave to care for ill children, or a sick parent. FMLA leave can not be taken to care for healthy children, except upon being fostered, adopted, or upon birth. For instance, a stay-at-home mom is diagnosed with cancer. Her husband, according to current FMLA, can take FMLA leave only to care for her, but FMLA can’t be charged for leave taken to watch over the healthy children.

Bill HR 1585 contained the clause to extend the FMLA to military, but it was vetoed on December 28, 2007. President George W. Bush, according to the White House, explains that the bill was part of the National Defense Authorization Act which would vetoed because it would “risk imposing financially devastating hardship on Iraq that will unacceptably interfere with the political and economic progress everyone agrees is critically important to bringing our troops home.”

Many citizens applaud President Bush’s veto. They claim that extending FMLA would put too much burden on the country’s employers.

Others argue against the veto, claiming that with the extended tours of duty for the National Guard and Reserve are weighing down the families of these military personnel.

Since President Bush’s reason for the veto weren’t connected to the expanded FMLA, a chance still exists for it to be added to another military bill in 2008. Whether the new bill would also allow employees to take the additional 12 weeks of FMLA is unknown at this time.

Details of this policy are still being finalized by the U. S. Department of Labor. Until the information is published, the Department of Labor asks employers to do their best to comply with the NDAA leave requests.

While this plan applies to the families of active military personnel, the expectation is that spouses of deployed National Guard and Reserve members will utilize it the most.

In contrast with the extended FMLA, traditional FMLA caps leave at 12 weeks. It allows employees to take this leave to care for an ill spouse, parent or child. Caring for healthy children, however, can only be charged to traditional FMLA leave upon childbirth, the adoption of a child, or when newly fostering a child. An example would be the case of a stay-at-home mother who develops a long-term illness. Under the traditional FMLA, her husband can take leave to care for her, but can not take FMLA to care for their healthy children.

Recently, a major winter storm struck the Midwest causing power outages for nearly a month. As the area began to recover, a second major storm came through.

Winter has arrived and OSHA (Occupational Safety and Health Administration) is warning all businesses, including those in Montana, that these cold weather conditions can be dangerous for employees.

Even if the temperature is a mild 50 degrees, an employee can suffer from cold related injuries and illnesses. The body can get too cold, become unable to warm itself and suffer cold stress, frostbite and hypothermia.

Employees who work outdoors in Montana are at a particularly high risk, but any worker can be susceptible to these illnesses during the winter months.

Cold stress is a less severe form of hypothermia, but in severe cases it can be fatal. Cold stress occurs when a person is exposed to cold and has difficulty getting warm. The colder the temperature, the harder the body works to generate heat. The internal organs are the first priority for the body’s heat generator, which means more and more blood is drawn from the extremities. Ears, the nose, hands, feet, arms and legs lose a great deal of warmth and become extremely susceptible to frostbite.

Some workers may be at a higher risk for cold stress due to age and/or medications. Older bodies warm themselves less efficiently. Medications such as antidepressants, sedatives and tranquilizers can affect body warming as well. These employees need to be aware of these factors and act accordingly.

The hazards of cold weather can be reduced by simply following a few safety procedures. First, all employees should wear appropriate clothing for the weather conditions. Dress in layers to adjust to changes in temperature. Avoid getting wet, especially when it’s windy.

Second, drink warm beverages like broth, but avoid caffeinated or alcoholic drinks. Caffeine and alcohol impair the body’s warming capabilities. Meals that are warm and rich in carbohydrates are also recommended.

Third: employees should take frequent breaks from the cold and go indoors, into a heated vehicle, or somewhere out of the wind.

Montana Cold Stress

In cold weather, OSHA (Occupations Safety and Health Administration) is especially concerned about worker’s safety. Both OSHA at the federal level and the state OSHA in Montana have issued alerts regarding the hazards of cold-related illnesses, including Trench Foot and Cold Stress.

Trench Foot first came to light in World War I as a result of soldiers standing in water-filled trenches for extended periods. Symptoms include itching, burning and blisters much like the symptoms of frostbite, only less severe.

Cold Stress is defined as the body’s lack of capability to warm itself. Employees who work in cold temperatures, or even in milder temperatures when wet and windy, are at increased risk for cold stress. If not treated, cold stress can lead to hypothermia, which can be fatal.

Employers can help employees prevent cold stress and Trench Foot by encouraging them to follow OSHA’s recommendations.

The most important recommendation is that workers exposed to cold temperatures and windy and wet conditions, dress appropriately for the weather. Hats are required, as are insulated shoes or boots. If the employee is working in water or in wet conditions, he or she must wear waterproof footwear.

Workers should also wear at least three layers of clothing and ensure that arms and legs are completely covered. The fabric of the clothing is important. The fabric of the inner layer should allow the body to breathe, the middle layer fabric should insulate and the outer layer should be a fabric that blocks the effects of the wind.

All employees who are exposed to extreme conditions should take frequent breaks out of the cold. They should also work in pairs, so they can keep an eye on each other for signs of cold stress.

If an employee shows signs of cold stress, he or she should immediately move or be moved to a warm, dry area. Any wet clothing should be replaced with dry clothes or with warm blankets if clothing isn’t available. If the symptoms are severe, emergency medical help should be sought immediately.

The old cars and trucks that show up in auto repair shops can be hazardous to a mechanic’s health.

The hazard is asbestos, and while the Occupational Safety and Health Administration (OSHA) says new cars and trucks do not contain the material, many older ones do. And those old vehicles often find their way into auto repair shops.

Asbestos lingers on in the brakes and clutches of the older models. There is usually no way for a mechanic to tell in advance if asbestos will be encountered, so it’s best to treat each brake or clutch as if it contains the material. A mechanic who handles asbestos unsafely puts not only himself or herself at risk, but also others in the shop.

A Montana Worker Safety advisory issued recently warns mechanics and others about the hazard, specifically the risks in the brakes and clutches of the older vehicles. Employers are required by safety regulations to train workers in safe handling of asbestos, then follow up to insure that the employees follow through on the training. The employers must also have a written safety plan in place. Asbestos should be wetted down to prevent particles from becoming airborne. The material should be stored in a tightly sealed bag with a clear label.

Estimates are that some 10,000 people nationwide die every year from diseases related to asbestos and asbestos inhalation. There are two primary forms of asbestos illness – asbestosis and cancers.

Asbestosis usually results from prolonged and heavy exposure – the kind of exposure suffered by miners and others in the mining industry. It results in acute shortness of breath and the increased likelihood of developing lung cancer.

Mesothelioma is a rare form of cancer that usually starts in the protective lining of the organs, known as the mesothelium. It is showing up more frequently in aging employees who were exposed to asbestos in the past.

Asbestos not only affects the exposed employee, but is a risk to family members, because washing contaminated clothing is a hazard.

Asbestos has been used for centuries because of its fire-retardant capabilities.