labor lawAdivision of labor law center

The U.S. Department of Labor has introduced important changes to the FMLA regulations that affect employers in Pennsylvania and nationwide.

The medical certification process for employees taking FMLA leave (Family and Medical Leave Act) has been streamlined. Under FMLA, a worker can take up to 12 weeks of unpaid, job-protected leave per year for a “serious health condition” of their own, or to care for a family member (son, daughter, parent or spouse) who’s ill.

Pennsylvania employers are legally allowed to require certification of a “serious health condition” from the employee’s healthcare provider.

Depending on the situation, the employer can request a second or third opinion, but at the employer’s expense. Plus, the employer can contact the healthcare provider for clarification of the medical certification form. Both employer and healthcare provider must adhere to the HIPAA privacy regulations.

Under the new FMLA regulations, the employer can request a recertification of an employee’s ongoing medical condition at least once every six months. Once the employer “requests” the recertification, the worker must comply or face the possibility of being legally denied FMLA leave.

The new regulations prevent companies from asking healthcare personnel from any information that is not on the U. S. Department of Labors’ WH-380 form. Though the form has recently been updated, it is still optional. Healthcare providers may use this form to specify the worker’s “serious health condition”, but are not legally required to do so.

The changes in FMLA include a formal provision for companies to request a yearly certification for employee’s with ongoing conditions. For example, if Mary suffers from migraine headaches and periodically needs to take unscheduled FMLA leave, an employer can request the condition be recertified each year.

This change provides more specific classifications for a worker’s condition. Previously a company could request recertification in only two scenarios: when a worker takes over a month of FMLA leave and is still absent, and when the physician puts a time limit on the worker’s condition. Plus, confusion often resulted from a physician classifying a worker’s condition as “lifetime” or unknown.

The updated FMLA regulations require more specific information, plus allow companies to more easily request recertification.

More Pennsylvania FMLA Changes

Recently, the U. S. Department of Labor proposed several updates to the FMLA (Family and Medical Leave Act) regulations.

The changes will go into effect on April 11, 2008. Until then, all interested parties are welcome to the comment on the changes. Once the regulations are published in the National Register, they become law.

Included among the FMLA changes are policies regarding “fitness-for-duty” certifications.

Under the current regulations, employers can require workers on FMLA leave to provide medical certification that they are able to return to work. This policy must be applied evenly to employees in similar situations. Title VII of the Civil Rights Act of 1964 prohibits discrimination against employees based on sex, color, religion, country of origin or gender. Additional federal laws protect workers from discrimination due to pregnancy, disabilities and age (over 40).

The proposed changes to the FMLA will affect the “fitness-for-duty” rules in two ways. The first update allows employers to request the fitness certification to address the employee’s specific job functions. Consider John who works in the warehouse and lifts heavy equipment. Before he returns from FMLA, the company can require him to provide certification that he is physically able to lift heavy objects.

The second change in the rules for “fitness-for-duty” pertains to employees who take FMLA leave intermittently. Under the new regulation, the company can require fitness certification each time the employee takes FMLA leave. For instance, Casey drives a truck and is prone to migraine headaches. His employer can legally ask for fitness certification each time Casey takes leave, because migraines can affect a person’s vision. A truck driver with troubled vision is a safety hazard. This change may also help to reduce abuse of FMLA leave, too.

If safety isn’t a concern, however, the employer cannot legally require a “fitness-for-duty” certification. If Amanda is pregnant and takes intermittent FMLA leave to deal with morning sickness (which has been certified by her physician), the company can not demand a fitness certification each time she takes time off. Her condition isn’t a safety-related issue.

Every Pennsylvania employer is required by law to post the 2008 Pennsylvania OSHA 300 form from February 1 to April 30, 2008. The federal Occupational Safety and Health Administration (OSHA) sets and enforces regulations for workplace safety. One of these regulations is the posting of the OSHA form 300.

The OSHA form 300 lists all work-related injuries and illnesses, and their causes, for the previous year. OSHA requires this form to be displayed in a prominent place each year. All employers should have completed 2008 OSHA 300 forms at this point.

The 2008 OSHA 300 form will list the injuries and illnesses for 2007. Workers can see how the company is doing with regard to employee safety, and employers can see which type of incidents occur most often and in which areas they occur. This information can then be used to devise a plan for correcting those problems.

OSHA states, “Employers are responsible for providing a safe and healthful workplace for their employees. OSHA’s role is to assure the safety and health of America’s workers by setting and enforcing standards; providing training, outreach, and education; establishing partnerships; and encouraging continual improvement in workplace safety and health.”

Employers must post the OSHA 300, and must keep it on display for the entire allotted time. If they don’t, they are breaking the law and OSHA does not tolerate non-compliance. Companies that do not properly display the required poster will be subject to fines.

Not every employer is covered by OSHA. Some industries such as mining and transportation have safety requirements that are quite different from most businesses. These industries, therefore, are allowed by federal law to establish their own employee safety organizations. The Department of Transportation regulates transportation and railroads, and includes many rules for safety on the job. For the mining industry, MSHA (Mining Safety and Health Agency) is in charge of setting and enforcing worker safety protocols.

OSHA wants to help companies prevent accidents in the workplace. In addition to offering training and inspections, the agency also conducts on-site evaluations of the workplace. The evaluations are free of charge and help the employer pinpoint problems areas and understand how to correct those problems.

Twenty-two states in the country have established their own agencies for employee safety and health. Those without their own state agencies are covered by the federal OSHA (Occupational Safety and Health Administration). OSHA sets and enforces regulations for workplace safety and health. One of OSHA’s major goals is preventing injuries and illnesses in the workplace and encourages employers to remind workers of the importance of working in a safe and healthy environment.

One way to maintain a safe and healthy work environment is for employees to follow safety procedures and precautions. All companies should take measures to ensure that their workers take these precautions.

Whether governed by a state agency, or by the federal OSHA, employers are required to post an OSHA 300 form. Work-related illnesses and injuries are tracked using OSHA 300, and this record provides employees a benchmark regarding the health and safety of their company. Regulations require companies to post the OSHA 300 every year from February 1 to April 30.

Washington is one of the states that established its own health and safety agency. Washington Occupational Safety and Health Administration (WOSHA) is very similar to the federal OSHA program. Establishing a state agency requires federal approval and certification. First the federal government must approve the agency’s developmental plan. For certification, the federal government must also be assured that the state agency has sufficient funds to be up and running efficiently within 3 years. Lastly, the state agency must be at least as effective as the federal program.

For these reasons, most of the twenty-two state agency programs are like Washington’s and mirror the federal OSHA. For example, WOSHA, like OSHA, conducts its own inspections, offers training programs in occupational safety and health to employers and performs on-site evaluations. As with OSHA, evaluations are provided free of charge to aid businesses in finding and fixing dangers in the workplace.

Labor laws saw a lot of changes during 2007. As the New Year approaches, businesses should take the time to ensure that their labor law posters reflect these changes.

Michigan employers need to understand that many of the changes apply to them as well, and that their posters need to be updated.

The updated list of 2008 Pennsylvania labor law posters include:

• Child Labor Law
• Workers’ Compensation Labor Law Poster
• Unemployment Insurance
• Discrimination Notice
• Right to Know
• Minimum Wage
• Employment Provisions
• Public Accommodation
• Equal Pay

These posters must be displayed by every employer in the state of Michigan. In addition, federal law requires that employers display a number of posters related to nationwide statutes.

The 2008 labor law posters required by federal law are:

•  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

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.

In Alaska, Child Labor Laws prohibit anyone under the age of 19 from buying cigarettes. Until October, though, a teen could work where cigarettes were sold, such as convenience stores and gas stations. Concern was expressed that teens working in these places could be selling cigarettes to their underage buddies. The Child Labor Laws were therefore amended to also ban anyone under the age of 19 from selling 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.

The minimum wage is scheduled to go up again in 2008. On July 24, the federal minimum wage will increase from $5.85 to $6.55 per hour. As with the increase in 2007, several other states will bump up their minimum wage, too, as a result of the federal minimum going up.

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

Employers are required by law to ensure that all labor law posters for 2008 are up to date. Failure to comply with the law can result in a fine for the business.

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.

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.

Many people may have questions about how the new mine safety campaign will impact Pennsylvania worker safety.

What is the new safety campaign?
The Mine Safety and Health Administration, part of the US Department of Labor, has started the campaign in an effort to inform the public of the potential dangers that can be encountered on working and abandoned mine property. The campaign is called “Stay Out — Stay Alive” to remind recreational enthusiasts and workers that they should stay away from mine properties.

Have a lot of people been injured on mine properties?
Since 1999, over 200 people have died as a result of accidents on mine properties. Children and outdoor enthusiasts have been among those who died. In addition, workers from industries other than mining also have been injured and died. When children trespass onto mine property to play or workers wander onto the property, they can encounter unexpected dangers.

What kind of dangers do mines pose?
In the case of an underground mine, explorers or workers may not notice a shaft if it is hidden. These shafts often drop several hundred feet. In addition, sometimes debris covers the shafts so untrained workers or explorers may not see them. Also, mine tunnels can collapse, or they may be filled with poisonous gases.

What does the Mine Safety and Health Administration hope the campaign accomplishes?
According to the Assistant Secretary of Labor for Mine Safety and Health, Richard E. Stickler,
“There are about 500,000 abandoned mines and another 14,000 active operations throughout the United States. Many of them contain hidden hazards and, for those not trained to work in mines, the outcome can be deadly. That’s why we urge workers, hikers, bikers, rock hounds and swimmers to ‘Stay Out — Stay Alive.’”

What will the “Stay Out — Stay Alive” campaign do?
Speakers will address organizations, including scouting groups and schools, to warn of the dangers young people can encounter on mine property. In addition, the campaign will use public service announcements to broadcast the message.

According to a recent Occupational Safety and Health Administration report, every employer in Pennsylvania has the muscle to defend against the harm that alcohol and drug abuse can cause in the work environment.  The might of education and encouragement can help employees to be aware of the problems that drugs and alcohol can cause, and empower them to get help if they need it.

One nutritious program for the fight against substance abuse is the Pennsylvania Drug Free Workplace Alliance.  Employers flex their muscles by unannounced drug testing and pre-hire drug screening.  This program is a reflection of America’s commitment to working with contractor groups, unions and employers to protect the work environment, and promote worker health and safety.

Illicit drug use and the misuse of alcohol is the focal point of the program.  The Department of labor stands behind the fact that companies end up paying, quite literally, for substance abuse in the workplace.  With employee absence, accidents and costly mistakes, a needless waste of money occurs.  Eliminating the problem of impairment from drugs and alcohol can improve employee morale and lower illness rates.  The Occupational Safety and health Administration reports that fatal auto accidents that are work related are mostly due to alcohol or drug abuse.

Auto accidents are not the only types of accidents that relate to substance abuse.  Just think about it, wouldn’t operating heavy machinery be a risky task to someone who is under the influence?  Yes, of course, and the Occupational Safety and Health Administration recognizes the fact.  So many needless accidents, lost lives, and missed workdays have occurred, and it is time to fight back.

The Pennsylvania Drug Free Workplace Program is not mandatory for every employer in Pennsylvania.  Why not participate anyway? You have the muscle to take on the fight against drugs and alcohol in your company.  Go for it!