labor lawAdivision of labor law center

The 2008 NDAA (National Defense Authorization Act) went into effect January 28, 2008.

As a result, the U. S. Department of Labor is requiring all employers to post the new Military Family Leave poster immediately. The poster should be displayed in a permanent spot that is accessible for all employees. The Wage and Hour Division enforces this law, and companies that do not comply will be subject to penalties.

This applies to every employer in Maine and across the nation.

The 2008 NDAA (HR 4986) contains a provision to expand FMLA (Family and Medical Leave Act) for families of military personnel. Under this new law, when National Guard, Reserve and active military are injured, the families of these military personnel are eligible to take up to 26 weeks of FMLA to care for them.

Treatments eligible under the 2008 NDAA include caring for personnel on temporary disability from illness or injury. Personnel undergoing outpatient treatments and mental or physical therapy are also eligible.

In addition to the extension of FMLA from 12 to 26 weeks in some cases, the NDAA has also extended the definition of family. Previously, “family” meant parent, spouse or child, but with the 2008 NDAA, aunts, uncles, and cousins may be entitled to leave as the soldier’s “next-of-kin.”

Another provision of the extended FMLA provides family members leave to act as a substitute caregiver for anyone under that person’s care.

The effective date of the new FMLA was the same date as President George W. W. Bush signed it into law, January 28, 2008. This means military families have been eligible to take the extended FMLA leave since that date. Unfortunately, the finalized regulations for NDAA have not been published yet, so employers are without guidelines. Until the Secretary of Labor issues the final regulations, companies are asked to grant leave to eligible families as an “act of good faith”.

More Maine Military Family Leave Notice

The National Defense Authorization Act (NDAA) of 2008 will expand FMLA leave for the first time since the FMLA (Family and Medical Leave Act) was signed in 1993. Exactly how the FMLA leave will change is not yet known, but the U. S. Department of Labor hopes to publish finalized regulations soon.

On February 11, 2008, two changes were published regarding how much time a company has to inform workers of their FMLA rights, and regarding the medical certification process.

The major change, however, pertained to how FMLA absences are reported. Prior to these changes, an employee could take FMLA with notifying the employer in advance. Now, the worker will be required to follow the employer’s standard reporting procedure. Normally, that mean the worker will have to report an absence prior to the beginning of his or her shift.

Prior to the enactment of FMLA in 1993, any worker who fell ill, or required surgery and missed a lot of work could lose his or her job. Companies often just fired someone who had been gone more than a couple of weeks. Each case was handled individually, and there was no set policy for companies to follow. Each employer usually set its own terms.

The FMLA broke new ground in not only allowing a worker to take up to 12 weeks of unpaid leave for a serious illness, but also guaranteeing that worker’s job.

Employees who had worked at least 1,250 hours over the past previous 12 months for the same company could take time off to care for their own illness or for an illness of a child, parent or spouse. In addition, FMLA leave could be taken to care for a newly adopted child, a newly fostered child (under the age of 18) or to care or a newborn.

For a company to be eligible to grant FMLA leave, however, it must have 50 or more workers within a 75 mile radius.

New FMLA regulations proposed by the U.S. Labor Department would change the rules under which Maine employers can require workers to provide a medical recertification.

The new planned changes to FMLA, among other things, would permit the employer to “request” recertification of an ongoing health condition every 6 months concurrent with an absence.

Although the work “request” is used, an employer may deny FMLA leave if a worker fails to comply with the “request.”

Employers may require a new medical certification annually in the case of serious ongoing health problems. If an employee must take periodic unscheduled days off through FMLA for a migraine headache condition, for example, employers are permitted to require that the condition be recertified every year.

Employees may take as much as 12 weeks of unpaid and job protected FMLA leave yearly to attend to their own “serious health condition” or that of a member of their immediate family. Employers, in turn, have the right to require medical certification of the condition.

Under the old regulations, there were some ambiguities regarding recertification. Employers may request it after 30 days but only if the employee is currently absent under FMLA.

In addition, recertification may be required under the old rules if the worker’s healthcare provider specified a time limit on a previous recertification. If the original certificate allowed an employee to take 6 weeks of leave for a condition like carpal tunnel syndrome, then after 6 weeks the employer could require recertification if the employee has not returned to work.

However, if a doctor, for example, said a worker’s condition was “lifetime” or its duration “unknown,” problems arose because, technically, employers would not then have the legal right to require recertification.

While employers are permitted under the new rules to contact a healthcare provider for clarification of a medical certification, both the provider and the employer must stick to HIPAA medical privacy regulations. The new rules forbid employers from asking for information not already on the certification form. A diagnosis need not be provided on the optional Labor Department form WH-380, which has been updated.

More Maine FMLA Changes

April 11, 2008 is the cutoff date for Maine employers and others to comment on proposed revisions and changes to the Family and Medical Leave Act (FMLA) released by the U.S. Department of Labor.

After that, the changes become law when they are published in the National Register. The changes will affect employers across the U.S.

The changes address many aspects of the FMLA, and two significant changes apply to what is called the “fitness-for-duty” certificate.

Employees may, under the current FMLA rules, require a worker returning from FMLA leave to provide a certification from a health care professional showing that he or she is capable of assuming the tasks of the job once again. If a worker takes leave for his or her own serious health condition, the employer may require the certificate. If the employee takes the leave to care for a newly adopted child, however, the employer may choose not to require the certificate.

One of the proposed changes to the “fitness-for-duty” certification procedure applies to those employees who must take their FMLA leave on an intermittent basis. If a safety concern exists, employers would be able to require a certificate every time the employee proposes to return to the job. If truck driver “Carl,” for example, suffers migraine headaches that interfere with his vision, his employer is allowed to require “fitness-for-duty” certification each time Carl returns to the driver’s seat.

If no reasonable safety issue exists, however, the employer may not require a certificate. If “Maria” suffers morning sickness as a result of pregnancy, and she must take intermittent leave, her employer cannot require the certificate because safety issues will not arise.

The other change would allow employers to require that a certification specifically speak to an employee’s ability to resume the functions of his or her usual job. A warehouse employee, for example, would need to supply a certificate showing that he or she could lift heavy objects again.

As with other employment practices, requiring a “fitness-for-duty” certificate is something an employer must apply fairly and uniformly to all workers in similar situations.

Unlike in New York, where the future of the family and medical leave law is uncertain, in Maine, the law seems to be on the verge of being extended. The reason that the Maine law makers are looking to change their family and medical leave laws is to make it possible for workers to access them to care for a domestic partner should he or she become ill and need care.

Maine’s current version of the law allows workers to take off time from work in order to care for a sick loved one such as a spouse, a child or a parent if have a serious enough medical condition to warrant it. But the bill that was working its way through the Maine legislature last week would allow that bill to include those so called domestic partners.

This would mean folks in those situations could take advantage of the Maine Family Medical Leave law and its 10 weeks off per year to care for family members, to care for oneself if they are sick themselves. The way it works in Maine is that workers will be able to choose if they want to take this family and medical leave time as paid or unpaid.

The issue does not necessarily have to deal just with same sex couples. Heterosexual couples can also be considered domestic partners in Maine if they are registered as such. The term just means that the two people live together in a serious committed relationship but are not married. Under the Maine law, these folks would also be able to stay home from work to care for their domestic partner too. Will this mean that Maine employers will need a new state family and medical leave act poster, or FMLA poster? I will need to look into it and get back to you on that one.

United States Secretary of Labor Elaine L. Chao says, “The WIRED Initiative recognizes that local economies often do not neatly conform to geographic boundaries.” She continued, “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 21st century worldwide economy.”

WIRED is a program called the Workforce Innovation in Regional Economic Development Initiative.  It began in 2006 early in the year as a competition for states and territories to submit grant proposals of up to $5 million dollars to help their regional economy.  In the first running of the WIRED grant program, 13 regions were selected.

A Maine Unemployment Grant was issued during the second run of the WIRED Initiative.  The United States Department of Labor’s WIRED grants make a significant contribution to regional economies and help lower the unemployment rates in places that would otherwise have high unemployment numbers.  The northern part of Maine was one of the areas that greatly benefited from the program, as it has been a region with higher than average unemployment numbers.
Secretary Chao has recently announced the third running of the WIRED grants competition. 

Governors from every state and territory are welcome to apply.  Secretary Chao informed each governor about the details of the competition through a letter.  Every region is permitted to send in two proposals.  It is also required that other sources of funds should be identified as an aid to the grant they would receive.

The unemployment rate in the U.S. for highly skilled workers and college graduates is near 1.9%.  Overall, the national unemployment average is near 4%.  This seems to be a pretty low rate.  Some economists consider even such a low rate as this to be a labor shortage.  Many regions do have higher than average unemployment rates, and that is what the WIRED Initiative is all about.

U.S. Labor Secretary Elaine. Chao recently addressed the National Association of Women in Construction in Augusta, Maine. The Secretary spoke at the organization’s annual trade show. She emphasized the administration’s opposition to pending federal legislation (H.R. 800 and S. 1041, the “Employee Free Choice Act”) that would substitute signature cards for private balloting in unionization elections.

“A worker’s right to a private ballot election is fundamental in our democracy and should not be legislated away by special interest groups,” said Secretary Chao. “Congress is on the verge of passing a bill that effectively takes away a worker’s ability to vote on unionization in a private ballot election.”

Under the current law, which has been in existence since 1947, if 30 percent of a workplace expresses interest in union representation, then the National Labor Relations Board supervises an election and the determination is made by the majority of workers, having cast their votes privately.

The private balloting process was enacted 60 years ago in part to protect workers from coercion and harassment in unionization elections, according to Chao. “This administration is fighting to protect workers’ access to private ballot elections,” Secretary Chao added.

“A union would automatically be recognized if union organizers were able to gather the signatures of 50 percent plus one worker in a workplace,” said Secretary Chao. “It is possible that nearly half the workers would not even be aware that a union organizing campaign was going on.”

Under the proposed bills, no private ballot election would occur and a union would automatically be recognized if the union’s organizers were able to gather the signatures of 50 percent plus one worker in a workplace. Under H.R. 800 and S. 1041, decertification of a union would continue to require a private ballot election. The bills also increase employer penalties and change collective bargaining laws.

“Equally troubling is the mandatory binding arbitration provision that takes freedom out of ‘free’ collective bargaining in newly unionized workplaces,” said Secretary Chao. “If a labor contract was not agreed to within the congressionally-dictated, 120-day timetable, the federal government would force a two-year labor contract on workers and employers. Workers would not have any right to ratify, or not ratify, the contract.”