labor lawAdivision of labor law center

A new law will permit the relatives of soldiers to take up to 26 weeks of unpaid leave under FMLA to care for their family members.

On January 28, 2008, President Bush passed the National Defense Authorization Act, an expansion of FMLA (Family and Medical Leave Act) leave.

The new NDAA (National Defense Authorization Act) of 2008 went into effect immediately, permitting eligible persons to take leave as of January 28, 2008.

Eligible persons are defined as sons, daughter, parents and spouses of an injured soldier. This soldier can be National Guard or Reserve who is on deployment, or active military.

The expanded FMLA allows these family members to take up to 26 weeks (6 months) of unpaid leave to care for that soldier. This Act includes “next of kin” which may also permit aunts, uncles or cousins to take the expanded leave.

Virginia FMLA Expansion

The FMLA, Family Medical and Leave Act provides up to 12 weeks of unpaid, job-protected leave for employees to care for a sick child or ill parent. It is possible that later in 2008, the FMLA will be expanded to provide up to 6 months of this type of leave to relatives and spouses of military called to active duty.

The effect of enacting the extended leave would expand FMLA coverage all over the country, including Virginia.

As the Act stands now, an employee can not take FMLA to care for healthy children, except when newly born, newly fostered or newly adopted. So, if a mother of three is called to active duty, her non-military husband can not take FMLA to care for their healthy children.

Bill HR 1585 included the expanded FMLA, allowing up to 26 weeks of this type of leave. Included in this expansion was the right for relatives of members of the National Guard or Reserve to take FMLA to step into the domestic role the soldier was leaving behind, whether it is to care for an ill parent, or to watch over healthy children.

Bill HR 1585 was vetoed by President George W. Bush on December 28, 2007, but not because of the FMLA. This bill was included in the National Defense Authorization Act and, according to the White House 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.”

Persons in favor of the extended leave criticized President Bush’s veto. They argue that the extended terms of service in Iraq for National Guard and Reserve are putting undue burden on the families of these military personnel.

Others approved of President Bush vetoing the bill. They countermand that longer FMLA leave will put a burden on the nation’s employers. They also suggest that if the government wants to provide military families with more leave, that the government should foot the bill.

This statement allowed the FMLA expansion to be attached to another bill and to be passed into law.

Traditionally, FMLA leave is capped at 12 weeks, and applies to caring for a newborn, a newly adopted child, a newly fostered child, or a sick family member (defined as parent, spouse or child).

This new NDAA increases the amount of leave to 26 weeks, but also permits parents, spouses, sons and daughters to take unpaid FMLA leave when a family member is called to active duty. This provision allows family member’s to take responsibility for whoever was in that soldier’s charge. A parent, spouse, son or daughter could take FMLA leave to care for someone who is ill, or to take over the care of healthy children.

The U. S. Department of Labor will publish the details of the new NDAA as soon as the regulations are finalized. Until that time, it expects employers to comply with the new leave law to the best of their ability.

Virginia employers need to be aware of the hazards that weather presents to outdoor workers. Cold stress and trench foot pose problems to the outdoor workplace in winter weather. They are not as serious as hypothermia and frostbite, but can lead to those more hazardous conditions.

Winter weather is likely to be cold and damp, a breeding ground for trench foot. The condition causes burning, itching, and blisters, much like, but not as serious as, frostbite.

Trench foot was noted and named during World War I, and many workers may never have heard of it. It got its name from the trenches of that war, when soldiers would huddle in trenches for days at a time, their feet soaking in cold water.

Both trench foot and cold stress are named as hazards in a new Virginia alert issued by the Occupational Safety and Health Administration, or OSHA.

Cold stress is, simply, the body’s failure to stay warm. It is important that employees dress in warm, dry clothing to avoid the hazard. The clothes should include layers, the inner ones fitting closely to the body. A hat should be worn, and extremities covered.

Staying dry is a key factor because if the body comes into contact with cold water, it becomes harder for it to maintain its normal warm temperature. Frequent breaks in warm, dry locations are essential. It is best if workers team up on the job. In that way, each worker can monitor the other for signs of cold stress or other cold-related hazards.

In cases of mild forms of cold stress, treatment is relatively easy. Move the victim to a warm place and keep him or her active. Remove any damp clothing and give them warm liquids. Avoid caffeine beverages, including tea, coffee, and cocoa. Caffeine will interfere with the body’s warming process. So will alcohol, which should also be avoided.

More severe cases can lead to hypothermia. Call an ambulance promptly.

Wind chill can turn a moderate thermometer temperature into a dangerous one. Wind chill is the combination of air temperature and wind speed, and the greater the wind speed, the colder the wind chill. Skin reacts to wind chill.

Virginia Cold OSHA

When cold temperatures arrive on the outdoor worksite, employers should be prepared with a plan to cope with the hazards.

Those hazards include trench foot, hypothermia, and frost bite.

OSHA suggests procedures that can be taken to lessen the possibility of these kinds of problems on the job.

The measures address both safe work practices and appropriate clothing. Protective clothes are essential to fighting clothes, and numerous employers will provide workers with cold-weather gear, particularly if they work outside or in freezers for long periods of time.

When it comes to safe practices, awareness is a key element. Supervisors and employees should be trained to spot the signs of cold stress, like disorientation, confusion, and irrational behavior. Workers should be paired, so they can act in a “buddy system” to spot the signs in each other.

Avoidance of caffeine and alcohol is important, because both reduce the body’s ability to fight the cold, as do cigarette smoking and taking certain prescription medications. However, workers should be encouraged to drink plenty of liquids. Dehydration is common during cold weather.

Scheduling can help prevent problems. Employers might schedule work for the warmer parts of the day if possible. It is essential to schedule more breaks during the day as well, in a warm vehicle or shelter, with access to warm, high-calorie foods like pasta.

Heat work areas with radiant heaters to avoid excessive cold, whenever possible. A temporary shelter around a worksite will stop both drafts and wind. Metal handles on equipment should be wrapped in insulating material.

OSHA recommends that clothing be in 3 layers. The innermost can be cotton or a synthetic for ventilation. The middle should be wool or down to absorb sweat and provide insulation, even when it is wet. The outside layer should be Gortex or nylon to act as a windbreaker.

Wear insulated boots or footwear, waterproofed when working in wet conditions. Wear a hat. As much as 40 degrees of body heat is lost when the head is not covered. Insure that clothing is loose to provide better insulation and ventilation, and keep dry clothing ready in a warm place.

According to the assistant secretary for the Employment Standards Administration, a new set of proposed changes to the FMLA regulations proposed by the U.S. Department of Labor would foster “better communication in the workplace.”

Assistant Secretary Victoria A. Lipnic also said the proposed changes preserve workers’ family and medical leave rights. In addition the changes, she said, implement a law that President Bush signed recently extending family and medical leave “to families of America’s soldiers who are suffering serious illness or injury.”

Most of the proposals take effect on April 11, 2008.

The expansion for some military families under the National Defense Authorization Act (NDAA) of 2008, however, became effective on January 28, 2008. The U.S. Department of Labor published the proposed updates on February 11, 2008.

Besides the military extension, some of the major changes to FMLA include employer and employee notice obligations in Virginia.

Employees would no longer wait two full business days after an absence to let an employer know that the absence was under the FMLA leave. That procedure was allowed under the old regulations, and employers complained that it resulted in major disruptions to their operations. There are some exceptions for “unusual circumstances.” If an employee were to suffer a heart attack while driving to work, for example, that would be an “unusual circumstance.”

If an employee’s medical certificate is filled out inaccurately or incompletely, employers must now notify the worker in writing. The worker in turn has seven days to correct the errors. The Labor Department says this will prevent employees from losing FMLA leave as the result of a technicality.

All employer notice requirements are consolidated in the new rules, which are designed to insure workers understand their FMLA rights. Employers would have five rather than two business days to send designation and eligibility notices to employees.

The FMLA, or Family and Medical Leave Act of 1993, guarantees unpaid, job-protected leave to workers in the event of his or her serious illness, or the illness of a member of the immediate family. It also provides leave to care for or bond with a new child.

More Virginia FMLA Changes

Can paid leave be counted against unpaid FMLA leave? Does “light duty” count toward FMLA time? May employees waive their FMLA rights?

These are some of the questions addressed by proposed changes to the Family and Medical Leave Act (FMLA). The changes were published by the U.S. Labor Department on February 11, 2008, and the department is seeking comments until April 11, 2008. Around that time, new rules should go into effect.

The Labor Department said the changes would improve communications between employers, workers, and the healthcare system. They also take into consideration recent Supreme Court and lower court rulings.

In Ragsdale vs. Wolverine World Wide, Inc., the U.S. Supreme Court determined that in some cases, workers who have previously taken more than 12 weeks of paid leave may not necessarily be guaranteed their unpaid FMLA leave. An employee had been denied unpaid leave after using 30 weeks of paid leave. The Court determined that a worker who his already had 12 or more weeks of paid or unpaid leave does not necessarily have the right to penalties.

The tentative changes to the FMLA rules also affirm that when an employee is on “light duty,” that time does not count toward FMLA leave. A worker may have 10 weeks of “light duty,” for example, and still have the right to all FMLA leave time. Reinstatement rights are also unaffected by “light duty.” For example, a warehouse worker assigned to “light duty” in the parts department would be guaranteed reinstatement to the warehouse, not the parts department position. These proposed changes reverse court trends.

Another change proposed by the Labor Department strengthens its stand that employees may settle FMLA claims out of court, provided they waive their FMLA rights retroactively. They may not waive their rights in advance, however. A Fourth Circuit Court ruled recently that the existing rules prevented workers from waiving rights either retroactively or in advance.

The Labor Department’s Wage and Hour Division enforces the FMLA laws.

Post comments at http://www.regulations.gov under keywords “Family and Medical Leave Act” (include quotes). Complete comments will be published.

Federal government workers are now entitled to receive assistance from the US Dept. of Labor to present claims under the Uniformed Services Employment and Reemployment Rights Act, or USERRA. This reflects the most recent changes to the USERRA regulations.

This is a great time for every employer to update their Virginia USERRA poster. Employers must prominently display a USERRA poster, even if they have no employees entitled to coverage under that law.

The Veterans’ Employment and Training Service (VETS) provides help to everyone who needs to make a claim under the USERRA. VETS is a division of the Department of Labor. Veterans from any branch of service and members and of the Army, Navy or Air Force Reserve have a period of protection of 5 years of their civilian jobs. The 5-year period is cumulative, so an employee who has served 2.5 years (30 months) on active duty can serve another 2.5 years at a different time, and still have his or her job protected.

Recently, the Department of Labor released the final regulations regarding the federal and Virginia USERRA. The new rules clarify the enforcement of the law and add protection for service members. Approved in 1994, USERRA covers the civilian jobs of veterans and members of the reserve and National Guard.

Under USERRA, when the soldiers return from active military service, they have the right to return to the same jobs, with the same salaries and benefits that they would have had if they never left. In almost every case, time served in the military is counted as time worked. This includes receiving promotions based on seniority, annual salary increases and cost-of-living increases.  

The 5 year limit, in the latest USERRA rules, has some important exceptions. A member of the military, whose initial enrollment is for a period of five years, is protected, regardless of the length of service. The 5 year limit also does not include weeks of training for the Reserve or National Guard.

On April 1 to 7, 2007 the state celebrated  the National Work Zone Awareness Week, a Virginia highway worker safety program. The kickoff event for this year’s program is scheduled for April 3 at a highway construction site on Interstate 495 in Alexandria, Virginia.

“Employees who work in highway zones have one of the most dangerous occupations in the United States and these employees need not only OSHA’s support, but the support of everyone who gets behind the wheel on a daily basis,” said Assistant Secretary of Labor for OSHA Edwin G. Foulke Jr. “There were nearly 1,100 work zone fatalities in 2005 — that is a tragedy. I am hopeful that campaigns like this will help reduce those numbers.”

Each year, about 100 highway workers are killed and 20,000 more are injured during highway and street construction, according to OSHA highway safety awareness info. That’s why OSHA has declared  this week National Work Zone Awareness Week. This year’s campaign highlights safety awareness for employees in highway work zones. The campaign’s theme, “Signs for Change” reminds drivers to slow down and be aware of highway worker safety zones.

OSHA has a variety of resources that focus on highway worker safety.  In an alliance between OSHA and the Roadway Work Zone Safety and Health Partners alliance, both organizations will promote awareness of highway worker safety zones. They’ll also highlight other health issues faced by highway workers.

Surprisingly, up to half of all injuries occur when a worker is struck by a truck or piece of construction equipment used within the work zone. Acute trauma at work remains a leading cause of death and disability among U.S. workers, especially highway workers. Trauma is defined as “an injury or wound to a living body caused by the application of external force or violence.” Acute trauma can occur with a sudden, one-time application of force or violence that causes immediate damage to a living body. This often happens when a highway worker is struck by a car.

That’s why OSHA and other safety agencies now strongly recommend that every highway construction worker wear a high-visibility, reflective vest.