labor lawAdivision of labor law center

 The US Department of Labor recently announced a grant of more than $17 million to Iowa to aid workers in areas affected by flooding and tornadoes.

“Our hearts go out to Iowans who are suffering from the ongoing flooding and who were victims of the recent tornadoes, including last week’s tragic loss of life at a Boy Scout camp,” said US Secretary of Labor Elaine L. Chao.  “This $17 million grant will pay for temporary jobs to aid in the cleanup and recovery from these natural disasters and will provide humanitarian assistance to Iowans in need.” 

As of June 16, nearly one-third of the state was under water, and flooding continued. A June 11 tornado touched down in a Boy Scout camp, killing 4 and injuring many others. The severe thunderstorms affected many areas of the Midwest, causing flooding in the Missouri, Upper Mississippi, and Ohio River Basins.

  (more…)

New changes to the Family and Medical Leave Act (FMLA) would, among other things, alter the process involving the medical certification of a worker’s health condition.

The new regulations are important changes for employers in Iowa.

They are important changes because employees may take as much as 12 weeks of job protected and unpaid leave under FMLA every 12 months, provided they or their immediate family members have a “serious health condition.” Employers are allowed to require that a healthcare provider certify the condition, and may even ask for a second or third opinion, provided they, the employers, pick up the costs of those additional opinions.

The new U.S. Department of Labor regulations allow an employer to contact a healthcare provider for clarification of a specific medical certification form, as long as both the employer and the provider abide by HIPAA medical privacy regulations. Employers, under the new rules, are not allowed to ask for information that is not on the medical certification form already. There is an optional U.S. Labor Department form, WH-380, that has been updated but is still optional. Providers may name both diagnosis and serious health condition, but supplying the diagnosis is strictly voluntary on the provider’s part.

The new rules would also permit an employer to request recertification of what is called an “ongoing condition” at least one per 6-month period in connection with an employee’s absence. Although the word “request” is used, employers have the right to deny an FMLA leave request if the employee does not comply.

Employers may require a new medical certification each year in the event of an ongoing serious health condition. If the worker, for example, must take a day off periodically under FMLA because of migraine headaches, the employer may require yearly recertification.

Under the old rules, there are two situations under which an employer may request recertification.

First, recertification may be requested after 30 days, provided that the worker is currently absent under FMLA.

Second, recertification may be requested if a healthcare provider named a time limit on a previous medical certification.

However, some providers list a condition as “lifetime” or its duration “unknown,” which effectively blocked recertification.

More Iowa FMLA Changes

Family and Medical Leave Act (FMLA) regulations permit employers to require many workers taking FMLA leave to present a “fitness-for-duty” certificate from a healthcare professional when the employee wishes to resume work.

Proposed changes to the FMLA rules would revise the “fitness-for-duty” regulations in two significant ways.

First, employers would be permitted to require that every certification specifically refer to the employee’s ability to perform the major tasks of his or her job. In other words, a warehouse worker whose job normally includes lifting heavy boxes could be required to provide a certificate showing he or she is capable once again of lifting heavy objects.

A second change is designed to eliminate abuse of FMLA regulations by some workers. The change applies to those employees who take intermittent leave. If what is called a “reasonable safety concern” exists, then the employer has the right to require a “fitness-for-duty” certificate each time the employee uses FMLA leave and proposes to return to work. “Carl,” for example, is a truck driver with intermittent migraine headaches that interfere with his vision. Because a driver with poor vision is a reasonable safety concern, his employer may require Carl to supply a certificate every time he plans to return to the job.

If there is no valid safety concern, then an employer does not have the right to require recertification in intermittent situations. For example, “Maria” is pregnant and must take intermittent time off for serious morning sickness. Because her health condition does not pose a health risk, her employer may not require a “fitness-for-duty” certificate each time she takes a few hours or a day of FMLA leave and proposes to return to work.

These and other proposed changes announced by the U.S. Labor Department would affect employers throughout the nation. Employers and others may comment on the changes until April 11, 2008. Then the regulations will be published in the National Register and officially become law.

Requiring a “fitness-for-duty” certificate is something an employer must apply fairly and uniformly to all workers in similar situations.

The U.S. Department of Labor on February 21, 2008 announced a $250,000 Regional Innovation Grant to the state of Iowa to assist the Cedar Valley region in expanding its economic development efforts.

“Local leaders in the Cedar Valley region will use this $250,000 grant to work together on plans for preparing the area’s workforce for 21st century jobs,” said Deputy Assistant Secretary for Employment and Training Douglas F. Small.

The grant comes in the wake of long-term downsizing at John Deere & Co. plants in the area. The funding will be used to develop strategies that incorporate the region’s assets and create economic advantages. State officials hope that these strategies will attract employers and competitive employment opportunities for Iowa workers.

The grant, awarded to Iowa’s Office of Workforce Development, will support efforts to re-examine the Cedar Valley region’s economic development approach and break down political boundaries among local leaders. Activities to be conducted include asset mapping studies, the establishment of new economic and talent development strategies, and strengthening educational efforts in science, technology, engineering and math.

In the mid 1980s, John Deere & Co. employed approximately 16,000 workers in the Cedar Valley region of Iowa. Over time, the company has cut its local workforce to approximately 8,000 jobs.

The Cedar Valley region includes the northeast Iowa counties of Black Hawk, Bremer, Buchanan, Butler, Grundy and Chickasaw.

Regional Innovation Grants are drawn from National Emergency Grant funds to assist state workforce agencies and local workforce investment boards, as well as their key partners, in the design and development of comprehensive and strategic regional plans focused on talent development that is aligned with the demands of the 21st century economy.

When a community suffers from “significant dislocation events”, that state can apply for a National Emergency Grant (NEG). The grant will provide time-limited monies to improve state and local service levels when the “event” creates a need greater than the community can handle.

NEGs are awarded by the U. S. Department of Labor through the discretion of the Labor Secretary. During the past couple of years, Labor Secretary Elaine L. Chao has awarded several emergency grants. A grant of $250,000 was awarded to SI WORKS a new program to help economic development and employee opportunities in twenty counties in southern Illinois.

In 2007, Secretary Chao awarded an NEG to the displaced workers of Lamar, Missouri, when the O’Sullivan Industries Plant closed its doors.

When a plant closes or is forced to lay off several workers requiring resources beyond the state’s capability, the state can apply for an Emergency Grant. As part of the grant application process, the state’s discretionary funds must be included as part of the state’s resources.

The U. S. Department of Labor awards different grants for different situations.

When employees are in danger of losing their healthcare insurance, a Trade-Health Coverage Infrastructure grant may be awarded. This grant assists workers eligible for TRA (Trade Realignment Assistance) or TAA (Trade Adjustment Assistance.

If an area suffers layoffs of more than 50 workers and is affected by federal trade policies, a Trade-WIA Dual Enrollment grants may be awarded.

Communities struck by natural disasters such as hurricanes, floods, wildfires, etc. are eligible for Disaster grants.

Regional Innovation grants serve partnerships between non-profit and government agencies and business, often to train laid-off workers for jobs in a new industry.

Regular NEGs apply to layoffs of over 50 workers. When a layoff of fewer than 50 severely affects a small or rural community, or if layoffs are industry-wide in a region, a Regular NEG may be awarded.

Information on the grant application process and the policies regarding NEGs can be obtained from local and state employment agencies. Communities are urged to being the application process quickly, to ensure funds are available.

Mobile worksites in the construction industry finally have their own voluntary safety program, and part of its mission is to reduce the problem of job site accidents related to drug use.

It is called the Voluntary Protection Program. It was started in late 2006 to recognize companies with mobile construction sites that have made an “outstanding” effort to promote health and safety.

The Iowa drug free workplace program has incorporated the VPP Mobile Workforce Demonstration for Construction. A drug free workplace is an essential part of safety, according to OHSA, the developer of the VPP. The programs both aid morale and reduce costs.

A drug free workplace is just part of the VPP package. The program offers a system that enables employers with mobile construction sites to get recognition for their efforts on behalf of health and safety. Entirely voluntary, the program goes into action when a contractor invites a team of OSHA health and safety professionals onto a site. With that comes rigorous scrutiny of the health and safety practices of the site under a set of criteria specific to a VPP. When companies pass the “test,” they are recognized as businesses “that should be held up as models of safety and health for the rest of the industry,” according to Edwin Foulke, Assistant Secretary of Labor for Occupational Safety and Health.

Assistant Secretary Foulke also pointed out that mobile site VPPs offer “construction employers with mobile construction workforces and short-term projects the same opportunity for recognition that fixed-site employers receive.” The mobile site VPPs were launched in late 2006 but VPPs in general have been around since 1982. Their purpose is to foster cooperation between management, unions, federal agencies, and employees in the effort to improve health and safety.

All VPP programs in the construction industry encourage eliminating onsite dangers and using safe trenching methods, along with safety training for employees that is aimed specifically at the construction industry.

US Secretary of Labor, Elaine L. Chao recently announced a competition for the third generation of WIRED grants recently. Speaking about WIRED grants she said, “The WIRED initiative recognizes that local economies often do not neatly conform to geographic boundaries.”

The national unemployment figures are low at present. For highly skilled workers the rate is around 1.9%, these include those with a college education. The general national figure is around 4% nationwide. However there are area throughout the Unites States that traditionally suffer from regions of high unemployment, and it is hoped that the WIRED grants will help these areas to transform their regional economies.

For some residents, an Iowa unemployment grant would be great news. Some areas of the state suffer from higher than average unemployment.

WIRED stands for the Workforce Innovation in Regional Economic Development Initiative.

There is fierce competition for these grants, and each governor was sent a letter from the Dept of Labor outlining the correct submission procedures. Each governor can submit two proposals of up to $5 million each. Each region that is competing for a WIRED grant must show that they can match the Department of Labors investment through private, regional or state funding.

Competition for WIRED grants is high, but the rewards are great. Secretary Chao pointed out that “WIRED brings together universities, businesses, community colleges, foundations and economic development organizations to help equip regional workforces with the skills needed to succeed in the 21^st century worldwide economy.”

The purpose of WIRED grants is to stimulate regional economies that have been traditionally known to have areas of high unemployment. It is hoped that these grants can be instrumental in brining down the unemployment figures in these areas. In 2006 (February) WIRED was launched through a competitive grant process by the Department of Labor. Thirteen regions were successful in being chosen, and had the opportunity of transforming their economy.