labor lawAdivision of labor law center

Recent changes were made to FMLA (Family and Medical Leave Act) regulations that include rules to streamline the medical certification process.

FMLA allows workers to take up to 12 weeks of unpaid, job-protected leave to care for their own “serious medical condition”, or to care for a seriously ill family member (FMLA defines family member as spouse, parent or child). Before granting FMLA leave, the employer can require medical certification of the worker’s need for the leave. The employer can even require a second and third opinion, but payment for these opinions is the employer’s responsibility.

Currently, Utah employers can only request recertification under two conditions. If an employee takes more than 30 days of FMLA and remains absent, or has medical certification with a specific time limit and doesn’t return to work, the employer can request a recertification.

Under the new regulations, employers will be able to request recertification of a worker’s “serious medical condition” at least once every six months. In this context, however, “request” isn’t quite the correct term. If an employer “requests” recertification, the employee must comply. Otherwise, the employer is legally within its rights to deny the FMLA leave.

The new regulations permit employers to contact healthcare providers for clarification on the certification. The U. S Department of Labor provides an optional form for medical certification, the WH-380. The physician can specify the worker’s diagnoses on this form, but isn’t legally required to do so. The employer can only inquire about information on the certification form, though, and both parties must comply with HIPAA’s medical privacy regulations.

Included in the updated FMLA is a provision for employers to request a worker to provide a new certification every year for an ongoing condition. Consider Mary, who suffers from migraines and takes unscheduled FMLA on occasion. Her employer can request a new medical certification once a year, to update the requirements for her leave.

More Utah FMLA Changes

Several updates to FMLA regulations proposed by the U. S. Department Labor will become law on April 11, 2008. Employers nationwide will be affected, and until the finalized rules are published, are welcome to comment on those changes.

Two major changes to the FMLA regulations include updates to the process for “fitness-for-duty” certification.

Currently, employers can require workers on FMLA leave to provide certification from their healthcare professional that they are able to return to work. For example, employees who take leave for a “serious health condition” will probably be asked to provide a “fitness-for-duty” certification. An employee, however, returning from FMLA after adopting a child may not be asked for certification.

The new FMLA regulations will allow employers to have the “fitness-for-duty” certification address the worker’s job functions. For instance Bob works in the warehouse and regularly lifts boxes weighing more than 50 pounds. If he injures his back and takes FMLA leave, his employer can request a fitness certification to ensure he is physically able lift heavy objects.

The second change to the “fitness-for-duty” process pertains to workers who take FMLA leave on an intermittent basis. The new regulation will permit employers to request a fitness certification each time the worker takes time off. For example, Burt drives a delivery truck and suffers from migraine headaches. Because these headaches blur his vision, his company can require a “fitness-for-duty” certification each time he takes leave. Blurred vision for a driver is a safety concern. In addition, this change may reduce or even eliminate abuse of FMLA leave by employees.

If the employee’s condition does not involve a safety concern, the company can not require a “fitness-for-duty” certification. An example is Barbara who is suffering from severe morning sickness during her pregnancy. She takes intermittent FMLA to deal with this condition, which has been certified by her physician. Her condition is not a valid safety concern, so her employer can not require a “fitness-for-duty” certification.

Utah worker safety is threatened by two major problems in winter weather. They are cold stress and trench foot.

Cold stress, simply described, is the body’s inability to stay warm. Trench foot, which many contemporary workers have probably never heard of, gets its name from World War I, when the problem was first noted. Soldiers in that war spent a great deal of time in trenches, and their feet would be soaking in cold water during much of that time. The situation resulted in burning, blisters, and itching of the feet. While it resembles frostbite, trench foot is not quite as severe.

An alert was issued by the Utah office of the Occupational Safety and Health Administration, or OSHA, warning about the dangers of both trench foot and cold stress in the workplace.

Some of the problems related to the dangers of cold can be traced to the wind chill factor. As most people know, wind chill is a phrase that describes the way wind speed affects temperature. As the speed of the wind increases, the lower the wind chill temperature will be. Human skin does not read thermometers. It reacts to the wind chill factor, regardless of what the thermometer’s temperature may say.

There are steps that can be taken to avoid cold stress. One of the most important is to dress warmly, in layers, with inner layers that fit closely. It is best to cover up the extremities, particularly the head, as well. Staying dry is a significant step, because coming in contact with cold water makes it extremely difficult for the body to hold its normal temperature. Employees should also take breaks often, in a warm area.

If mild cold stress occurs, it is relatively easy to treat. Move the sufferers to a warm place and keep them warm and active. Damp clothes should be removed. Give them warm liquids. Caffeine drinks such as coffee, tea, or cocoa, however, should be avoided because they actually slow the warming process.

If the cold stress is severe, call an ambulance promptly. Medical professionals will know what care to provide.

Utah Cold OSHA

Cold temperatures can pose dangers to outdoor workers, and OSHA has offered some common-sense steps involving appropriate clothing and safe work practices. Employers should make plans for the cold weather.

Some of the dangers of cold at outdoor worksites include frostbite, trench foot, and hypothermia.

It is wise for employers to supply cold-weather clothing to the employees who work outdoors or in freezers for long periods. Fabric is important, because cotton loses its insulating powers when it is wet. Wool, on the other hand, will insulate even when soaked.

Three layers of clothing are recommended by OSHA. Starting with the inner layer closest to the body, this should be cotton or synthetics for ventilation. The middle layer should be down or wool to offer insulation and absorb sweat even when it is wet. Finally, the outer layer should be nylon to act as a windbreaker.

Loose clothing provides better ventilation and insulation. Dry clothes should be available in a warm place in the event work clothing becomes soaked through. Insulated boots or footwear should be worn. In wet conditions, use waterproof boots. A hat is essential because as much as 40 degrees of body heat can be lost when the head is not covered.

Safe practices include training employees and supervisors to recognize the signs of cold stress. Employees should work in a “buddy system” and watch each other for those signs, which include irrational behavior, disorientation, and confusion. Urge workers to drink lots of liquids, but alcohol and caffeine should be avoided. Both limit the body’s ability to fight cold, as does smoking. Some prescription drugs have the same effect.

Schedule work for the warmest part of the day, and include more work breaks where possible. The breaks should be in a heated shelter or vehicle. Employees should eat warm food that is high in calories. Pasta is a good choice. Use radiant heaters to keep work areas worm. A temporary shelter will cut drafts and wind, lowering wind chill dangers. Use insulation to cover metal handles on equipment, particularly if temperatures go below 30 degrees.

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.

Utah 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 Utah labor law posters include:

• OSHA – Health and Safety Protection
• Unemployment Insurance
• Workers’ Compensation

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

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 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.

The past year also saw a number of significant minimum wage violations. In September, two companies agreed to pay nearly $1 million in unpaid overtime to 382 workers employed in the wake of Hurricane Katrina. The workers were employed by L&R Security Inc. of New Orleans and HKA Enterprises Inc. of Duncan, South Carolina as subcontractors for CH2M Hill of Englewood, Colorado under a FEMA contract. Employees worked as security guards at FEMA trailer sites and in debris removal, but were not paid overtime in accordance with federal law.

In August, five jointly-operated restaurants in Long Island, New York were ordered to pay almost $1 million to 191 low-wage workers. The employees had been forced to work long hours for wages less than the minimum wage, without overtime pay.  The court ordered that if the employers did not pay up, their restaurants could be sold and the proceeds used to pay the employees.

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.

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.

The tragic death of a Utah forklift operator points up the instability of forklifts and the need for training in maneuvering the machines.

A Utah OSHA report says many forklift deaths and injuries are caused by the instability of fork trucks.

That was why the forklift operator in Utah was killed. The driver – a worker for a car dealership – was helping a nearby business to unload goods from a tractor-trailer to a pickup truck on a Friday in July. The forklift driver put a large item onto the pickup’s bed, then backed the machine up quickly, at the same time sharply turning the wheel. The fork truck flipped over on its side, throwing the worker out. The forklift’s overhead protection cage came down on him, crushing him.

OSHA received a report, investigated the incident, and determined that the driver had not received forklift operation training, that the machine had no seatbelt, and that there was no other kind of driver restraint. What’s more, when the driver put the forklift in reverse, the forks were still in the “up” position. Raised forks add to instability, and it is important that drivers lower them before putting their forklifts in reverse. The “Employer’s Guide to Material Handling Safety” states that turning the machine too sharply while the forks are up can result in the fork truck’s tipping over. It can happen even while driving slowly and without a load on the forks. If the driver had received training, the tragic accident might have been avoided.

On average, 100 workers die or are seriously hurt every year in fork truck accidents, according to statistics of the U.S. Department of Labor. They were usually due to instability and many of them could have been prevented.

Forklifts appear deceptively easy to operate. Some employees expect them to operate like cars simply because they have four wheels. But that’s not the case. In fact, the rear axle is a pivot, designed to give the machine more maneuverable. Because of that, the forklift’s weight rests not on four points, but on three.

Both employers and employees should realize how important it is to protect Utah worker safety. No employee wants to be injured or killed on the job. No employer wants to have an employee injured or killed. But workplace injuries aren’t rare. Millions of workplace accidents are investigated each year by the U.S. Occupational and Health Administration.

Workplace accidents can cost employees and employers alike. Wages are lost, medical bills can be expensive, time at work is missed, and lawsuits may result. The last full year for which statistics were available is 2005. That year, 4,214,200 workplace accidents were reported nationwide. One repercussion of these accidents is that employees missed 1,234,700 workdays. Sadly, 5,702 employees died as the result of workplace accidents.

These numbers don’t portray the entire picture. The statistics do not include injuries to employees of non-profit organizations. Nor do these figures include the injuries to government employees, firefighters, paramedics, and police officers.

Utah worker safety is overseen by the Occupational Safety and Health Administration, also known as OSHA. This organization stresses the importance of employee education in reducing and preventing workplace accidents.

OSHA has a tool that can help employers promote employee safety. The OSHA Workplace Safety Pack has information that is easy-to-understand and explains ways in which employees can prevent certain injuries. Included in the OSHA Workplace Safety Pack is information about workplace ergonomics, a Slips, Trips, and Falls poster, a Lifting Safely poster, and a Workplace Safety Tips poster.

Teaching employees techniques to prevent injuries and accidents is vital. For instance, the number of tears, sprains, and strains suffered by employees totaled 503,530. Moreover, 270,890 back injuries were reported. In addition, 255,750 employees fell when they were at work.
 
Many people may not be aware that falls, slips, and trips in the workplace can result in fatalities. Only accidents that occur while employees are driving result in more deaths than trips, falls, and slips.