labor lawAdivision of labor law center

It’s important for Nevada employers to be aware of changes to the FMLA regulations.

On April 11, 2008, employers will face several changes due to new FMLA (Family and Medical Leave Act) regulations.

The U. S. Department of Labor proposed these changes on February 11, 2008. Until the changes go into effect employers have a chance to review them and to make comments.

To post comments, employers can simply click this link and type in the keywords “Family and Medical Leave Act” (complete with quotes). Employers should understand, however, that their comments will be viewable by the public.

The use of paid time off (PTO) while on FMLA leave is one of the major changes detailed among the new regulations. FMLA leave is unpaid leave, and employers are required only to provide up to 12 weeks and protect the employee’s job. To continue receiving paychecks, a worker can currently use accrued sick time while on FMLA leave.

The new regulations will allow employees to use accrued sick time, accrued vacation time and accrued personal leave.

For instance, Bob requires heart surgery and will take 12 weeks of FMLA leave for surgery and recovery. His accrued PTO comes to 5 weeks of vacation, 3 weeks of personal and 2 weeks of sick leave. Under the new regulations, he can use all 10 weeks of his PTO while on FMLA leave. The remaining two weeks will be unpaid leave. Bob has effectively substituted paid leave for FMLA leave, which is termed “substitution of paid leave.”

Prior to the new regulations, Bob could only use the accrued sick leave, and would then be on unpaid FMLA leave for the remainder of his time off.

The new regulations will also change how FMLA leave is charged to employee absences. Currently, a worker on FMLA isn’t considered “absent”. Employers and coworkers complained about this policy, because workers who’d been gone for 12 weeks were receiving “perfect attendance” awards, including bonuses.

The new regulations state that FMLA leave will be counted toward a worker’s absences just like any other leave. Employees who take FMLA, then, will no longer be eligible for attendance awards.

More Nevada FMLA Changes

Victoria Lipnic of the U.S. Department of Labor recently commented on the proposed changes to the FMLA (Family and Medical Leave Act). “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 Labor Department proposed several changes on February 11, 2008, including the definition of how often an employee on FMLA needs to see a healthcare provider, permission for employers to disqualify employees on FMLA from “Perfect Attendance Awards” and amendments to the medical certification process.

These proposed changes are scheduled to go into effect on April 11, 2008. Until that time, employers have the opportunity to review and comment on the changes.

Ms. Lipnic described the new proposal. “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.”

In addition to the amendments listed, several changes target the issue of “serious medical condition” and how that condition is certified by medical personnel.

FMLA allows workers to take 12 weeks of unpaid leave per 12 month period to care for themselves or for a parent, child or spouse with a “serious medical condition.” To prevent abuse of the leave, the U. S. Department of Labor permits companies to require the worker’s healthcare professional to certify the “serious medical condition”.

In the new regulations, six of the definitions of “serious medical condition” have been retained. Two terms have received further clarification.

For instance, one definition of “serious medical condition” requires the worker to be incapacitated for three consecutive calendar days and visit the healthcare provider twice. Yet, no parameters were defined for those two visits. Did they need to be two visits per week, per month, or even per year?

The U.S. Department of Labor in the new regulations will amend the rule to require the two visits to occur within 30 days of the period of incapacity.

Nevada employers need to be aware that many changes in labor laws occurred during 2007, and will occur in 2008. As a result, these employers will need to update their labor law posters. The coming New Year is a good time to ensure posters are current.

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.

The complete list of 2008 Nevada labor law posters that every employer should have includes:

• Discrimination Notice
• Minimum Wage
• Lie Detector Tests
• Workers’ Compensation
• Workers Compensation Part 2
• Emergency Numbers
• OSHA - Safety and Health Protection on the Job
• Unemployment Insurance

In addition, federal law requires all employers in Nevada to display up-to-date copies of the following posters:

• 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

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.

A number of changes in 2008 will require employers to update their posters during the year.  The federal minimum wage will jump from $5.85 to $6.55 on July 24, 2008. On the same day, the states that raised their minimum with the last bump in the federal minimum wage will enact increases again.

More than a dozen states will increase their minimum wages on January 1, 2008. These include Delaware, Oregon, Washington, California, Florida, Iowa, New Mexico, Massachusetts, Vermont, Colorado, Arizona, Missouri, Montanan and Ohio. The lowest rate to be increased is in Montana, where the state minimum wage will increase from $6.15 per hour to $6.26. In Missouri and New Mexico, the state rate will go to $6.50.

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.

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.

Also, during the 2007, several other states, including Utah, Washington, Oregon, and West Virginia increased their state minimum wage.

Do you have questions about how the Nevada Drug Free Workplace Alliance can help employers in the battle against alcohol and drug abuse in the workplace? OSHA has the answers. 

What is the Nevada Drug Free Workplace Alliance? 

This alliance consists of OSHA along with union and contractor organizations. The focus is to help protect employees from the dangers of drug and alcohol abuse in the workplace. 

Is abuse a big problem in the workplace? 

Abuse problems cost American businesses in several ways. Employees may miss more work, causing a high rate of absenteeism. They also may make more errors and have more accidents. Abuse problems also may impact employee morale, which may be low. Also, workplace automobile accidents that result in fatalities are often caused by either drug or alcohol abuse. OSHA feels that abuse problems are a preventable workplace hazard. 

What does OSHA recommend that employers do to combat this problem? 

To create a comprehensive plan for creating a workforce that is drug-free, employers should take five steps. First, they should develop a policy concerning abuse issues in their workplace. Next, they need to train all supervisors on the problem and the policy. This step is followed by training and educating employees about the dangers alcohol and drug abuse pose. Employers also need to offer assistance to employees who do experience abuse problems. Finally, employers need to perform drug testing. Of course, the privacy rights of employees should be considered when employers have drug testing as part of their program. 

Do employers have to create a drug-free workplace? 

No, it is not required, but employers can improve the health and safety of their employees by doing so. Although this program is good to have in all businesses, OSHA urges workplaces that utilize machinery where impairment issues could lead to injuries to create a drug-free workplace environment. By doing so, employers can do a great deal to help protect their employees.

Veterans and members of the Army, Navy or Air Force Reserve, have the right to return to their civilian jobs. The term to come back is 5 years and is cumulative. A member that served for 3 years has 2 more years to return to her or his work. For those that need assistance with claims under the rights stated by law, they can turn to the Veterans’ Employment and Training Service (VETS), within the US Department of Labor.

New regulations were approved by the Department of Labor related to Nevada USERRA that added clarity to the enforcement of the law. USERRA means Uniformed Services Employment and Reemployment Rights Act, and is a law approved in 1994 to protect the civilian jobs of the soldiers who serve in the military. Under the new regulations, the federal government employees were included in the list of those entitled to receive help of the Department of Labor in issues related to the USERRA.

The new regulations clarify some cases related to the 5 years limit of coverage of the job. If the soldier last more than the 5-year in the service, he or she keep the rights to return to his or her civilian job. The time of training on the National Guard or Defense, is not consider under the 5-year total. If the soldier is eligible to keep his or her job protected, other criteria like frequency, duration, timing of each soldier services are secondary.

The regulations require that the employees who served in the military and return to their civilians jobs, they have the right to maintain their positions, salaries and benefits. In many circumstances, the soldiers are also eligible to adjustments to cost-of-living or annual salary increases. In a number of test cases, the time of military service of the soldiers was considered as time worked and therefore the employees received promotions. 

Workplace safety statistics do not make happy reading. In a recent report for the year 2005, there were 4,214,200 work related accidents throughout the United States. There were 5,702 fatalities and due to these accidents, 1,234,700 working days were lost.  These statistics refer to work related accidents in the private sector only.

If you are an employer or a worker, these figures should bring home to you the need to take safety in the workplace very seriously.

The Nevada worker safety statistics also make grim reading with just over half a million workers suffering from injuries in the workplace. These range from tears, sprains and strains to the 270,890 back injuries that were reported in 2005. The Occupational Safety and Health Administration, or OSHA oversees safety in the workplace in Nevada.

OSHA provide a Workplace Safety Pack, which is an excellent recourse to use in any worker safety program that you may be thinking of instigating in the workplace. Workers and employers should be reminded on a regular basis of the importance of proper safety procedures that will protect them from injury, and education is at the heart of any good safety program.

The OSHA Workplace Safety Pack provides information on the workplace ergonomics, workstation safety tips poster, a lifting safely poster and a slips trips and falls poster.

The information in the pack is presented in an easy to follow format, and will help both employers and workers to understand the hazards in the workplace.

Slips, trips and falls are one of the most common work place related accidents, and are not often afforded the seriousness that they deserve. In 2005 the number of deaths from slips, trips and falls at work was 732. This figure is second only to vehicle work place related fatalities.

If you are still not convinced that a comprehensive overhaul of your worker safety program may be due, then bear in mind that these figures do not account for accidents involving paramedics, firefighters and police or other government departments. They also do not include accidents in non-profit workplaces.