labor lawAdivision of labor law center

The U.S. Department of Labor proposed updates to the regulations for the Family and Medical Leave Act of 1993 (FMLA) on February 11, 2008. The FMLA allows workers to take unpaid, job-protected leave to care for a newborn child, to care for a seriously ill family member, or to care for themselves when seriously ill.

Under the NDAA of 2008 (National Defense Authorization Act), certain military families became eligible for up to 26 weeks FMLA leave. The law went into effect immediately, providing leave for these families effective January 28, 2008.

Nebraska employers should be aware that current FMLA rules will remain in effect for non-military families until April 11, 2008.

In addition to the detailing specific procedures for taking Military Family Leave, the expanded FMLA regulations include two changes regarding employer and employee notice obligations.

Before the enactment of the changes, employees could take time off without giving notice and had two days to report the leave as FMLA. This rule caused problems for many employers, because workers taking time off without advance notification often interfered with daily operations. Under the new rule, employees must follow the company’s “usual and customary” procedure for reporting an absence.

The third major change involves the employer’s notice obligations. Instead of the current two business days, companies will now have five business days to send out eligibility and designation notices and to ensure that employees understand their FMLA leave rights. Also when an employee’s medical certification lacks information or doesn’t meet the FMLA criteria, the company must inform the employee, in writing, of what information is lacking.

Several technical changes that resulted from lower court and Supreme Court decisions over the last 15 years are included in the new FMLA changes, too.

Victoria A. Lipnic, the Assistant Secretary for the Employment Standards Administration, states, “This proposal preserves workers’ family and medical leave rights while improving the administration of FMLA by fostering better communication in the workplace. It also implements a law President Bush recently signed to extend family and medical leave to families of America’s soldiers who are suffering serious illness or injury.”

More Nebraska FMLA Changes

Several changes have been proposed to the FMLA (Family and Medical Leave Act) regulations.

The U. S. Department of Labor states that these changes, which they proposed on February 11, 2008, will help improve communication among employers, healthcare providers and employees.

The proposed changes include a clarification of the long-standing U. S. Department of Labor practice of allowing employees to settle FMLA claims out of court. Normally, this requires the employee to waive their FMLA rights, retroactively.

A Fourth Circuit Court ruling misinterpreted the law and prohibited employees from waiving FMLA rights in any way. The new FMLA rule updates the wording to be clear. Waiving FMLA rights retroactively when settling a claim is permitted, waiving FMLA rights in advance is prohibited.

Two major changes are also the result of court rulings.

The rules for “light duty” assignments have been clarified in the updated FMLA regulations. “Light duty” can not be counted as FMLA leave. If a worker is injured and put on “light duty” for 6 weeks, that worker is still eligible for 12 weeks of unpaid FMLA leave.

The new FMLA regulations with go into effect on April 11, 2008. Comments on the proposed changes are welcomed and encouraged. Employers and interested persons can visit www.regulations.gov, type in “Family and Medical Leave Act” (with the quote marks) and post a comment. Be aware, however, that all comments are viewable by the public.

FMLA regulations come under the jurisdiction of the U. S. Department of Labor’s Wage and Hour Division.

In auto shops, it is the employer’s responsibility to ensure that all employees know the safety procedures in place for working with asbestos. They should also put these procedures in writing, and ensure that their workers carry them out. This, it is hoped, will reduce the risks of asbestos in the workplace, and prevent deaths that can occur from asbestos related diseases.

A recent Nebraska worker safety alert highlights the dangers of working with asbestos. The alert concentrates on the hazards faced by mechanics and other workers in the industry due to the presence of asbestos in the brakes and clutches of older models of cars and trucks.

One result of the alert is that OSHA recommends that people do not carry out repairs on their own vehicles, if they are an older model of car or truck. They should take the truck or car to a professional workshop where a mechanic who has been instructed in how to deal with the material can make the repairs needed.

Because of the nature of asbestos it is important that people heed this recommendation, as it is possible to put not only yourself, but other people in the area at risk. Asbestos breaks into tiny pieces when it is disturbed, and although they can not be seen with the naked eye, they can become airborne and are easily inhaled.

There are ways of dealing with asbestos to reduce the risks involved. OSHA recommends negative pressure enclosure/HEPA vacuum system method, and the low pressure/wet cleaning method. Another acceptable method of dealing with asbestos is the spray can/solvent method.

Workers in the industry are told that when they work on older models of vehicles, to assume that they contain asbestos and work within the safety procedures that have been put in place by their employer.

Most people think that asbestos related risks in the work place no longer exist. But this recent alert will cause people to think again.  

Does your office have a special time set aside for an office safety review? The spring is the perfect season to take a fresh look around the office, and meet with your employees about health and safety.  You should do it every year!
People usually don’t concern themselves too much with office worker safety. At first thought, people may think, “I know a paper cut can hurt, but why should we hold a meeting about it?”  The fact of the matter is that there is much to think about when it comes to health and safety when working in an office environment.

Computers are a major concern for Nebraska office safety.  With the threat of carpal tunnel syndrome, from long hours of typing, and back strains, from moving heavy office furniture, there is plenty to discuss.  Some office positions require long hours of report typing or data entry.  Strain on the wrists can be serious. Technicians may need to get into tight areas to fix a wiring problem, and have to move furniture to do it.  Accidents can and do happen.

There are ways to position the body to avoid such hazards as these, and they should be reviewed with employees at least once a year.  If someone does hurt themselves, there should be a plan in place to get the person the help that they need as quickly as possible.  It is also a great idea to remind workers of precautions to take to avoid things like carpal tunnel and back strains.

The Occupational Safety and Health Administration, or OSHA, wants every employer to take the time to review safety, even in an office environment.  Slips, falls, bruises, and sprains happen all the time, and the office is no exception.  Health and safety in front of the computer, in the break room, and around cubicles or heavy machines like copiers or printers is an issue that needs to be addressed.  Why not order some take out food and have lunch over it?

All-Terrain Vehicles, also known as ATVs, are the topic of a recent Nebraska OSHA alert. They are being used in the workplace with increasing frequency, and it is this usage of them that the OSHA alert is concerned with.

Operating guidelines and employee training that could be put in place by employers have been recently discussed in a bulletin, to protect employees from accidents involving ATVs.

One of the issues is that many people still consider them to be a recreational vehicle, sometimes even being used by children, and it is this attitude that can put workers at risk from sometime fatal accidents.

Whereas it is true that most accidents involving ATVs occur during recreational use, with the increasing use of the vehicles in the workplace, the statistics should not be ignored.

ATV fatalities rose from 29 in 1982, to 470 in 2004. This information came from the Consumer Product Safety Commission report. The highest number of injuries is 136,100 and over 800,000 injuries have been reported during the last ten years.

With industries such as construction, facilities management, agriculture and law enforcement using these vehicles, as well as other industries, extra care needs to be taken in training employees to use ATVs.

ATVs do not handle like normal cars or motorbikes. They are smaller and sportier, and can be prone to instability if they are not operated according to the manufactures instructions. They can be particularly prone to roll over, especially when extra equipment is added to the back or front.

Employers can help to ensure the safety of their employees but comprehensive training, wearing safety helmets while operating the vehicle, and a training program to ensure that they can operate the vehicle safety.

It is also important that the machines are not modified using extra machinery attachments, laden with heavy cargo, or used to transport people other than the operator.