labor lawAdivision of labor law center

Important changes are afoot regarding the federal FMLA regulations for employers nationwide, including those in Oregon.

Recently, several changes were proposed to for the Family and Medical Leave Act(FMLA) . Included in these changes are procedures to streamline the medical certification process.

The new regulations allow companies to request recertification of an employee’s “serious health condition” at least once every six months.

The FMLA allows workers to take up to 12 weeks of unpaid, job-protected leave for this “serious health condition” and the employer can require a statement from a physician certifying the condition. Before granting the leave, a company may ask for a second and even a third opinion, but must pay for these opinions.

The U. S. Department of Labor provides an optional medical certification form, WH-380. The form has been updated, and allows physicians to specify the worker’s “serious health condition”, but doesn’t legally require them to do so. The new regulations prohibit employers from asking the healthcare provider about anything that is not on this form. Also, when an employer contacts healthcare personnel, both parties must comply with HIPAA regulations regarding the patient’s privacy.

The changes to the certification process are a welcome change for employers. Currently, FMLA regulations only allow employers to request recertification for two reasons. If the “serious health condition” has a time limit on it, and the worker doesn’t return to work when that time limit is up, the employer can request recertification. Or, if the employee takes more than 30 days of FMLA leave and is still absent, the company can require recertification.

Under the updated FMLA, the employer can request recertification for ongoing conditions once a year. For instance, Keri suffers from migraine headaches and needs to take unscheduled FMLA leave periodically throughout the year. Under the new regulations, the company can request that Keri get the condition recertified by her healthcare provider on an annual basis.

This particular change helps employers clarify some of the vague terms previously used by healthcare personnel. “Lifetime” or duration “unknown” classifications of a “serious health condition” gave employers no avenue to request recertification.

More Oregon FMLA Changes

Current FMLA (Family and Medical Leave Act) regulations allow employers to require a “fitness-for-duty” certification before employees return to work. For instance, a company may require a worker with a “serious health condition” to provide a fitness certification, but may not do so for an employee returning from FMLA leave after adopting a child.

Recently, the U. S. Department of Labor proposed several changes to the FMLA regulations, including two amendments to the process for “fitness-for-duty” certification.

First, employers will be allowed to require the “fitness-for-duty” certification to specifically address the employee’s job functions. For instance, Jake operates an industrial crane and breaks his hand. His employer is completely within his or her rights to require a “fitness-for-duty” certification before Jake returns to work, to ensure he can safely perform his job.

Second, employers will be able to require medical certification each time a worker returns from intermittent FMLA leave. Molly drives a delivery van, but often suffers from migraines which blur her vision. Each time she takes FMLA, her supervisor can request certification that her vision is back to normal. The supervisor can demand this certification because Molly’s ability to see is a safety concern.

If safety on the job isn’t a valid concern, employers are not legally allowed to require “fitness-for-duty” certification. For example, Sandra is pregnant and takes intermittent FMLA leave because of severe morning sickness, which has been certified by her physician. Her condition isn’t a valid safety concern, so her employer can not demand fitness certification upon her return.

These changes go into effect on April 11, 2008. Until that time employers and all interested parties are welcome to make comments. Once the finalized regulations are published on the National Register, they become law.

These new changes, as with all company policies must be applied fairly to all workers in similar situations. Several federal laws protect employees from discrimination. Title VII of the Civil Rights Act of 1964 prohibits discrimination due to color, race, national origin, sex or religion. Additional laws protect workers from age (over 40), pregnancy and disability discrimination.

Oregon employers should be aware that the new National Defense Authorization Act (NDAA) of 2008 provides for an expansion of FMLA leave to up to 26 weeks in a year.

The new provision applies to families of military personnel, specifically to those of an injured solider in active military service, or on deployment with the National Guard or Reserve. According to the new NDAA, a parent, spouse, son or daughter can take expanded FMLA leave to care for a family member who is an injured soldier. Under this provision, aunts, uncles and cousins, may also be allowed expanded FMLA in some cases as “next of kin”.

Oregon FMLA Expansion

It was almost certain that the Family Medical and Leave Act (FMLA) would be expanded at some point in 2008.

The proposed new bill provides up to 26 weeks of unpaid, job-protected leave for family of National Guard and Reserve personnel who have been called to active duty. This leave is meant to allow spouses and relatives to take over for those active duty personnel in matters of caring for an ill parent or child and in taking care of healthy children.

A bill proposing these terms was vetoed by President George W. Bush on December 28, 2007. The expanded FMLA, however, was not the reason for the veto. Instead, the bill was attached to the National Defense Authorization Act, which President Bush felt 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.”

Proponents of the FMLA expansion were not happy. They want FMLA expanded, arguing that the extended tours of duty in Iraq for Reserve and National Guard personnel have strained the families of these soldiers.

Critics of the FMLA expansion approve the veto, explaining that enacting such a measure would strain the country’s employers. These critics suggest that if the government wishes workers to have more leave, then the government should pay for it.

The current FMLA allows up to 12 weeks of leave for an employee to care for a sick child or parent, or for a newborn baby, newly adopted child or a child that’s newly fostered. It can not be used for an employee to take care of healthy children. For example, a woman has three sons and is diagnosed with cancer. Her husband can take FMLA to care for her, but not to take charge of their sons.

Since President Bush’s reasons for vetoing the bill weren’t tied to the FMLA expansion, it’s possible it may be added to another bill later in 2008.

Currently, under traditional FMLA (Family Medical and Leave Act) leave, an employee can take unpaid, job-protected leave for up to 12 weeks per year for certain personal reasons. These reasons include caring for an ill spouse, child or parent, and for the care of a newborn child, a newly adopted child and a newly fostered child.

In addition to caring for injured military personnel, the new NDAA permits parents, spouses, sons and daughters to take expanded FMLA leave to stand in for a family member who is a solder called to active duty. This provision allows a family member to not only take care of an ill person in that soldier’s charge, but also to care for his or her healthy children, too.

The new NDAA went into effect immediately, allowing families of soldiers to start taking extended FMLA leave as of January 28, 2008.

The U.S. Department of Labor is scrambling to finalize the details of the NDAA, which could take several weeks. Interim regulations allow companies to charge paid leave to the 26 weeks of unpaid FMLA, as long as the employee is informed in advance. Until the finalized regulations are published, the U. S. Department of Labor expects companies to comply with the expanded FMLA to the best of their ability.

OSHA is concerned about the use of chainsaws in many major industries. Recently, the Oregon OSHA office issued a warning on two brands of chainsaw that are widely used in the industry.  It expects every employer to be aware of the threats posed by chainsaws in their industries. There are many reports received by OSHA about the workers losing control over the chainsaw when its handle breaks. The main reason for this is that the chainsaw has a plastic front handle which breaks on heavy usage.

Some brands of chainsaws are affected with the Oregon worker safety alert and the most popular of them are the brands of Troy-Built and Craftsman chainsaws. Four models of Troy-Built brand and one model of Craftsman are highly affected. The models have an 18-inch or a 20-inch cutting blade along with two-cycle gasoline engines to power them.

The Oregon OSHA office has strongly urged the workers to stop using these chainsaws which are prone to affect their safety. The employers must protect the health of their workers and remove these products from the working place. They should take proper measures and install additional safety kits to avoid the risks of serious injuries.

The OSHA works towards ensuring these factors along with the U.S. Consumer Product Safety Commission (CPSC). It is the CPSC which protects the public from unreasonable risks of serious injuries caused by the use of more than 15,000 consumer products. According to the estimation, the deaths, the injuries and the damage to the property caused from consumer product incidents will cost the nation around $700 billion every year. The CPSC mainly works towards protecting the people from the dangerous hazards posed by many consumer products.

In most of the places, the manufacturers of these brands have withdrawn the specified chainsaw models. The information on a free safety kit with replacement handle and installation instructions can be obtained from the manufacturer or the OSHA.

Under the new regulations released by the US Department of Labor, there are some important exceptions to the 5-year limit of job protection to soldiers under USERRA. The new rules define with clearness that if the member of the military is entitled to the protection, other factors, like duration, timing or frequency of the soldier service are not priorities. The regular training periods of the National Guard or Reserve are not part of the limit. If a soldier stay more than 5 years in service, he or she is still protect in his or her job rights.

Recently, the Department of Labor released new regulations with the purpose to improve the law enforcement of the law and enhance it clarity. The Uniformed Services Employment and Reemployment Rights Act, or USERRA, signed on 1994, defend the rights of veterans and members of the Reserve and National Guard to return to their civilian jobs.

The new rules should be display in the Oregon USERRA posters at every workplace. The employers should publish correct information for all their workers.

The USERRA rules states that those who served their country are eligible for the same work, remuneration and premiums as they remained in the job. In many occasions, they also have the right to receive remuneration increases or inflation raises as they have received if they were in the positions. In some test cases, was consider the time of military service as time worked, and the veterans do not be prejudiced in their years of seniority. The period of 5 years is cumulative. If the soldier served in the military for 2-year she or he keep up 3 more years to recover his or her job.

To everyone with claims under USERRA, they can turn to the Department of Labor, in particular to the Veterans’ Employment and Training Service (VETS).

Employers have a responsibility to establish written procedures to minimize the hazards of asbestos in the workplace. These include safe handling of brakes and clutches in auto repair shops. While asbestos has been almost entirely eliminated from building materials, it is still present in the clutches and brakes of older cars and trucks. According to the Occupational Safety and Health Administration, or OSHA, this poses a significant hazard to mechanics and others in the industry. 

Every worker must be trained in the procedures for handling parts that potentially contain asbestos, and must follow them. A single worker who does not follow the procedures is exposing everyone – workers and customers alike – to a dangerous chemical. Because it’s difficult to determine which parts contain asbestos, mechanics should follow proper asbestos-handling procedures with all parts. The employer is responsible for training workers in these procedures, and seeing that they are followed.

One method of controlling asbestos particles that is approved by OSHA includes wetting the material. This prevents microscopic particles from being dispersed in the air, where workers can breathe them in. It’s also recommended that any parts which may contain asbestos are sealed in plastic and stored with a proper label. 

The Oregon OSHA has authority over employers and employees, but it has no power to regulate individual consumers. Still, the recent Oregon OSHA alert strongly recommends that individuals not attempt brake and clutch repairs on their own.  Very few consumers are properly equipped to safely handled asbestos. This is one job that is better left to a professional auto mechanic.

For many years, asbestos has been banned as a building material. It has been removed from the majority of buildings, so many people assume that all asbestos hazards have been eliminated. The most recent OSHA alert shows that asbestos is still a problem in the auto repair industry.

Asbestos is a mineral that becomes highly dangerous when it breaks into tiny particles that may be inhaled.  The invisible particles remain in the lungs forever, causing internal damage. Serious diseases and health issues can result, even years later. The most common diseases caused by asbestos exposure include asbestosis, lung and gastrointestinal cancers. Asbestos also causes mesothelioma, a type of cancer that affects the mesothelium. Each 10,000 people die in the United States, because of illnesses related to asbestos.