labor lawAdivision of labor law center

Recent incidents of workplace violence in Illinois, Washington, Florida and New York just underscore the fact that every employer needs a plan in place to address this issue.

In the early 1990s, over 200 people were murdered in the workplace. According to the Bureau of Labor Statistics, that number dropped to 94 in 2006. Violence in the workplace in Delaware and across the nation is a concern for Occupational Safety and Health Administration (OSHA), particularly homicides. Though the number of people killed has dropped over the years, it is still a major factor.

OSHA urges all employers to establish a policy of zero tolerance toward violence on the job. Safety programs and violence prevention programs should be set up and provided in writing to all employees. Workers should also understand how to prevent violence, and how to react in violent scenarios.

The National Institute for Occupational Safety and Health (NIOSH) provides videos and downloads on preventing workplace violence.

The statistics regarding workplace violence are staggering. Over 2 million Americans are victimized every year. All occupations and social levels are included. Blue collar workers and professionals are each as likely to be involved.

To help prevent workplace violence, OSHA recommends that all companies install video surveillance, alarm systems and extra lighting. All workers should be issued an I. D. badge to limit access, along with cell phones and hand-held alarms. For those workers handling a lot of cash, especially at night, companies should provide a drop safe.

Several occupations, simply due to the nature of the job, are at an increased risk for workplace violence. Included in this group are workers with extensive public contact, such as employees dealing with the public regarding money, or healthcare or social services. Workers who deliver packages, goods and services are at higher risk. Utility workers (i.e. phone, gas, water and cable), cab drivers, postal carriers, cab drivers psychiatric evaluators and visiting nurses are also at greater risk.

For their safety, all employees who work away from an office should provide their employer with their work plan, and check in during the day. Plus, companies should have a policy where a worker clearly facing a dangerous situation can refuse that situation.

OSHA Delaware Worker Safety

According to the Occupational Safety and Health Administration’s (OSHA) General Duty Clause, all Delaware employers (and employers across the country) are required to provide a workplace that is safe and healthy. While it isn’t possible to prevent all accidents, there are several steps employees and employers can take to abate the risk to workers.

First, the employer needs to establish a procedure for handling any incidents of violence related to the job. All workers should be informed of this procedure in writing (usually via the employee handbook) and should be required to practice it, just as they would practice any other safety drill.

One of the goals of this procedure is to train employees how to recognize, avoid or diffuse potentially violent situations. Another goal is to explain the process for reporting these incidents. In many cases of violence, incidents have occurred previously that serve at warnings, such as verbal abuse, destroying property, threats to other workers and minor assaults.

Employees on travel or away from the office can take preventative steps as well.
A worker out in public should carry required identification and only minimal amounts of cash. Employees traveling alone to a new location or scenario should never do so in the middle of the night. All workers out in the community should refrain from wearing expensive items, particularly jewelry.

Safety from violence doesn’t just include behaviors, but also the security of the physical workplace. Simple things like a door with a broken lock, or a cracked window are just as important to report to a supervisor as a coworker behaving suspiciously.

Employers are required to keep track of all violent incidents by type and to immediately correct them. When a violent incident occurs, workers should report the offense immediately, get the victim first aid and medical treatment, advise the police of the incident, inform victims of the right to prosecute, offer counseling to all workers, and discuss how to prevent similar attacks.

Failure of an employer to address hazards in the workplace can result in severe penalties from OSHA.

Changes are coming to the Family and Medical Leave Act (FMLA) rules that apply to the process of medical certification. Among other things, the streamlined regulations will permit employers to “request” recertification of ongoing conditions every 6 months, provided it is in combination with an absence.

The term “request” as used by the U.S. Labor Department actually has more force than it sounds. If an employee does not comply with a “request,” the employer may legally deny him or her an FMLA leave.

In addition, the new regulations have a formal stipulation that employers are permitted to require a new medical certification yearly if an employee has an ongoing health condition. If a worker had migraine headaches requiring periodic days off under FMLA, the employer could require recertification of the condition annually.

FMLA guarantees workers up to 12 weeks of unpaid, job-protected leave every year for their serious health condition or that of a member of their immediate families. Employers have had the right traditionally to require that a healthcare professional certify the condition. Second or third opinions about the condition may be required, provided the employer pay for them.

Current regulations allow employers to request recertification in two cases.

In one, recertification may be requested after 30 days but only in connection with an absence. Employee John, for example, has surgery and takes more than one month of FMLA. His employer may request recertification after 30 days, provided John is still absent from work.

In the other, employers may seek recertification if a healthcare professional specified a time limit on a certification. If employee Mary’s provider, for example, says she must be absent 6 weeks because of carpal tunnel syndrome, Mary’s employer may seek a recertification after 6 weeks – if she is still absent. However, problems arose when providers described a condition as “lifetime” or of “unknown” duration. Employers were left without the ability to seek recertification.

Another change permits employers to clarify a certification form with a healthcare provider, as long as neither party violates HIPAA medical privacy regulations. No information beyond the medical form may be sought.

More Delaware FMLA Changes

Revisions of the “fitness-for-duty” certification process are included in the proposed new changes to the FMLA regulations.

The changes and updates, which affect employers across the U.S., were recently released by the U.S. Department of Labor. Employers (and others who may be interested) may comment on the changes until April 11, 2008, when they are published in the National Register. At that time, they become law.

The current regulations allow an employer to require that before workers on FMLA leave return to the job they must provide a healthcare professional’s certificate that they are capable of returning to work.

The new changes refine the certification process.

One change is aimed at eliminating abuse by employees, and addresses those workers who take intermittent FMLA leave. If there is a reasonable job safety concern, the employer may require the “fitness-for-duty” certificate each time the employee wishes to return from FMLA leave. If truck driver Carl, for example, has vision problems caused by migraine headaches, his employer can require a certificate each time he comes back. This is obviously because a driver who cannot see properly would be a valid safety issue. If a safety issue does not exist, say for a pregnancy resulting in morning sickness, the employer cannot seek a certification.

Another change would permit employers to require that the “fitness-for-duty” certificate specifically speak to the issue of an employee’s ability to conduct essential parts of his or her work. A warehouse worker, for example, who lifts heavy containers regularly would have to show that he or she is again capable of lifting heavy objects.

Employers must always apply policies like the “fitness-for-duty” certificate consistently and uniformly to situations that are similar. All employees who take FMLA leave, then, may be required to present a certificate, but the same employer may choose not to demand such a certificate from someone returning from leave after caring for an adopted child.

Title VII of the Civil Rights Act of 1964 makes it illegal to use this or any policy to discriminate based on race, religion, color, sex, or national origin.

Many employers have questions about the federal and Delaware USERRA regulations. A recent new release from the US Dept. of Labor answers many of those questions, especially regarding the use of FMLA, or family leave, under the USERRA.

The question on many employer’s minds is, “If my employee is a member of the National Guard who is on active duty for 8 months, do I have to count that time towards her eligibility for leave under the federal FMLA?” The answer is a resounding YES!

At first it might seem unfair that an employee would be away from work for many months, and then take an unpaid leave shortly after they return. But, keep in mind that under the USERRA, employees on active duty are entitled to the same benefits that they would have received if they were still at work.

In addition, the USERRA requires that workers on leave for military service are entitled to the same benefits that the company grants workers on other types of leave. If your company provides free insurance or partial pay for employees on maternity leave or short-term disability, you must extend those benefits to employers on military leave, as well.

For employees on military leave, their time spent in active duty, plus their actual time on the job, both count in determining their eligibility for FMLA leave.

Under ordinary circumstances, a worker becomes eligible for leave under the FMLA after working for a covered employer for at least 12 months, during which he or she completed at least 1,250 hours of work. This recent memorandum reminds employers they should count the months and hours that reservists or National Guards would have worked if they had not been called up for military service towards FMLA eligibility. This first became an issue shortly after the terrorist attacks of September 11 2001, when a number of National Guard units were called to help with cleanup. 

Less than 6 months ago, the Delaware Economic Development Office, or DEDO, launched a forward-thinking new program to spur the state’s economy and support Delaware employment. The Delaware Emerging Technology Center, or ETC, provides services to help Delaware’s technology-based entrepreneurs and start-up companies.

In just a few months, the center has already made several significant advances. The latest is the introduction of a new pharmaceutical equipment company in New Castle.

The ETC is part of Governor Ruth Ann Minner’s New Economy Initiative. It represents an innovative approach to stimulate and support new and existing technology-focused businesses. The ultimate goal of this program is to create jobs.

One of DEDO’s efforts is to stimulate growth in the technology-based economy by encouraging more people to start their own businesses. Through entrepreneurship, the DEDO hopes to increase employment and foster a strong economy for the 21^st century.

One of the ETC’s missions is to link the state’s entrepreneurs with research institutions, identifying funding for commercialization activities. It also aims to foster the growth of the region’s most promising companies.

“The launch of the Delaware Emerging Technology Center will promote our entrepreneurial climate, create business opportunities and high-paying jobs and represent a key investment in our state’s future,” said Governor Minner at a recent meeting.

The goal of the ETC is to help technology-based and early stage businesses find funding and the support they need to succeed. These include traditional seed capital, alternative funding, a skilled workforce, commercialization assistance, intellectual capital and other entrepreneurial resources.

Another goal of the ETC is to build on Delaware’s existing resources and assets, to empower technology-based entrepreneurs and companies to realize the potential of their business ideas.

Noureddine Melikechi, Director of the Applied Optics Center at Delaware State University and a member of the ETC Advisory Board said, “The Emerging Technology Center will become a leading asset for the state of Delaware and assist our college and universities in retaining our talented graduates.”

Delaware Governor Ruth Ann Minner recently welcomed a new company, Scientific Products and Systems, Inc. or SP&S. The Governor issued the welcome during a ribbon-cutting ceremony at the company’s new corporate headquarters in New Castle.

The Delaware Economic Development Office, or DEDO, provided SP&S with a convertible loan for $1 million to assist the company in relocating its corporate headquarters and expanding its operations in Delaware. The SP&S investment is expected to create 23 new jobs and add an estimated $3.8 million the Delaware economy over the next five years.

Delaware is currently home to more than 400 life science firms. They range from single consultants and small start-ups to multinational pharmaceutical giants. SP&S relocated its headquarters from the University of Maryland’s Tech Center Incubator to the 3,000 square foot New Castle facility. The new facility will feature a large production area and a fully equipped demonstration lab.

The SP&S loan represents the first long-term equity, pre-venture capital investment for the state of Delaware. This initiative was created by Governor Minner to foster high-wage, fast-growing start-up businesses in technology fields such as biotechnology, advanced materials, clean energy, information technology, and new chemical applications.

“As part of my New Economy Initiative, I have made ongoing investments to technology-based small businesses a priority,” said Governor Minner. “Small businesses in technology fields are an engine of economic growth and family-sustaining jobs in Delaware.”

“We are very excited that SP&S has decided to expand its operations and relocate its corporate headquarters to Delaware,” said Judy McKinney-Cherry, Director of the Delaware Economic Development Office. “The decision reaffirms the fact that companies continue to recognize Delaware’s many pro-business strengths. SP&S is an early stage technology company and the expansion will bring additional strength to our ever growing base of research and development activities.”

David Bach, SP&S founder and CEO, was also full of praise for the New Economy Initiative. “We are looking forward to expanding our operations here in Delaware,” Bach said. He added that the financial assistance from the state represents a solid endorsement for the SP&S business plan and management team. “It will allow us to capitalize on the success of our innovative precision ‘one-pump’ liquid handling systems, hire additional key people, and develop next-generation technologies,” Bach added.