labor lawAdivision of labor law center

On February 11, 2008, the U. S. Department of Labor proposed new FMLA (Family and Medical Leave Act) regulations.

Theses regulations include many changes for employers in Oklahoma and throughout the nation. Until April 11, 2008, when the regulations go into effect, employers have the option to make comments on them.

To make comments, employers can click this link. Once on the site, enter the words “Family and Medical Leave Act” encased in quotes. Before adding comments, employers need to be aware that this site is public.

“Substitution of paid leave” is one of the changes in the new regulations. The law doesn’t require employers to pay workers who are on FMLA leave, but it does allow employees to take FMLA and any accrued sick leave at the same time. This substitution of paid leave includes all PTO (paid time off); including vacation time and personal leave. To take PTO, however, the worker must meet all the company’s requirements regarding leave usage.

To illustrate, consider James who has a total of 10 weeks paid time off. Two weeks are sick time, three are personal and the remaining five are vacation. Before the implementation of the new FMLA, James would only be able to use the two weeks of sick time while on FMLA leave. When the new regulations go into effect, James can utilize all 10 weeks of accrued leave.

Once his PTO is used, James will then be entitled to 2 weeks of unpaid FMLA leave. Thus, James has effectively substituted PTO for part of his FMLA leave.

Under the new FMLA regulations, the employer is permitted to require workers to use up all PTO before charging time to FMLA leave.

Another change in the new FMLA regulations changes a policy regarding employee attendance. Previously, FMLA time did not count toward a worker’s absence, which meant an employee who took 12 weeks of FMLA could still qualify for a “perfect attendance” award, often earning bonuses, too. With the new regulations, FMLA absences will be considered the same as any non-FMLA absences for award purposes, so workers will no longer be eligible for perfect attendance awards.

In other changes proposed on February 11, 2008, employers will have close to two months to comment on these changes. On April 11, 2008, the regulations will be in effect and in force.

The U. S. Department of Labor’s Victoria Lipnic made the following statement. “It’s time to update these regulations — to reflect court decisions, clear up ambiguities and address issues that weren’t contemplated when the regulations were first issued in 1995.”

A majority of the new regulations address the definition and medical certification of the worker’s “serious health condition”.

When a worker has a “serious medical condition”, FMLA allows him or her to take up to 12 weeks of unpaid leave per 12 month period. In addition to using FMLA for him or herself, the leave can be taken to care for a family member with a “serious health condition.” According to FMLA, family member is defined as a parent, spouse or child.

To be eligible for FMLA leave, employers usually require that a healthcare practitioner certify the “serious medical condition.” The U. S. Department of Labor supports this practice to avoid employee’s abusing the leave.

Even when certification is provided, employers can, in some cases, request a second or third opinion. These visits must be paid for by the employer.

The new rules retain six of the definition for a “serious medical condition” and provide additional clarification of 2 terms. One of these six definitions requires that the “serious medical condition” involve greater than 3 days of incapacitation, and “two visits to a health provider”.

The Tenth Circuit court ruled that the visits must occur during the incapacitation period. U. S. Department of Labor, however, will amend the rule such that the two visits are required within 30 days of the incapacity.

Working members of a soldier’s family now have access to more than 6 months of unpaid, job protected leave through an amendment to the Family and Medical Leave Act, or FMLA.

The amendment was signed into law by the President on January 28, 2008, and went into effect immediately. Employers are obligated to give the leave time now, and in the absence of detailed information about the regulations, they are expected by the U.S. Labor Department to make a “good faith” effort to comply with the law.

As an amendment to the FMLA, the Labor department is saying that employers should use existing procedures for the unpaid leave - medical certification and substitution of paid leave, for example.

The law also expands the FMLA beyond members of the “immediate family” (spouses, children, and parents) to “next of kin.” That means aunts, uncles, cousins, and in-laws are likely to be eligible for the expanded leave.

The amendment is part of the National Defense Authorization Act (NDAA), or HR 4986. It guarantees as much as 26 weeks of FMLA leave for relatives and spouses of Reserve and National guard people who are either called to duty, or face imminent deployment.

That’s an expansion from the 26 weeks of FMLA leave traditionally offered, and which will continue to be available to those not covered by the amendment.

The new law allows a family member to take up to the maximum of 26 weeks to be a caregiver to a member of the National Guard, Reserve, or armed forces who is undergoing medical treatment.

The medical treatment would include physical and mental therapy. It also involves outpatient treatment and recuperation. Finally, it can be used to give care to a soldier who is on the temporary disability retired list for a severe injury or illness.

The NDAA guarantees that an employee can receive up to 26 weeks of the unpaid, job protected leave for “any qualifying exigency” when a spouse, parent, or child goes on active duty or is about to be called up. That may include care of children because of deployment.

The Family and Medical Leave Act (FMLA) was passed in 1993. It was not until the National Defense Authorization Act of 2008, however, that any major changes to the FMLA were made.

The new NDAA expands coverage for relatives of injured soldiers and soldiers on active duty.

The U.S. Department of Labor is busy developing regulations based on the new legislation. Details are sketchy yet, so it is not known yet whether all the FMLA’s rules will continue to apply.

The FMLA is the groundbreaking legislation that provided up to 12 weeks annually of job protected, unpaid leave.

The time may be used if the worker is seriously ill or must care for a member of the “immediate family” who is ill. “Immediate family” is defined as a spouse, child, or parent.

The law also allows workers to take the leave to care for and bond with a newborn child, a newly adopted child, or a new foster child under age 18. In that capacity it is a common maternity or paternity leave.

The FMLA requires that a worker be reinstated to his or her original job at the end of the leave. If the original job is not available, the employee must receive a job that is similar in pay, working conditions, benefits, and duties. In most cases, employees are reinstated to their original positions.

The Act applies only to firms with 50 or more employees within a 75-mile radius. There are 11 states, however, which have expanded that to include smaller companies.

No state or federal law says workers must be paid during FMLA or NDAA leave. But employers may count paid leave time, such as sick time or PTO (Paid Time Off) against the 12 weeks of FMLA leave. That can only be done if the company notifies the employee in writing before the leave begins.

The U.S. Department of Labor recently awarded worker grants totaling $26.3 million to train workers in Alaska, Oklahoma, and Louisiana. The grants will benefit arctic construction workers in Alaska, provide distance-learning opportunities for a Native American community in Oklahoma, and job experience for youngsters in New Orleans.

Secretary of Labor Elaine Chao recently announced the award of $7.5 million to Alaska to train 2,250 workers for pipeline maintenance and construction. Alaska has a number of current and ongoing pipeline propjets that are in process.

“This $7.5 million grant will provide several thousand Alaskans with training to qualify for good jobs on natural gas and oil pipelines,” said Secretary Chao. “Workers will learn skills and gain job experience that can lead to rewarding careers in the high-growth energy sector.”

The grant will fund skill-based training that will be phased in over 5 years. Skilled construction workers will be involved in modernization of existing pipelines. Construction workers will be trained for a new natural gas pipeline to be constructed during the icy months of November through March, to minimize negative impact on the environment. These workers will earn certification in arctic weather construction techniques. In order to earn  the coveted certification, workers will participate in intensive, hands-on team training. Some of the classes will be offered by distance education, because of the unique geographical challenges of the Alaskan terrain. Workers will serve in apprenticeship programs and train as pipe welders, heavy equipment operators, surveyors and truck drivers.

“Seed money provided today will help Alaska use various partnerships to address a looming shortage of qualified pipeline workers,” said Assistant Secretary of Labor for Employment and Training Emily Stover DeRocco. “This grant will help provide a roadmap for attracting and training skilled workers as pipeline activity in Alaska ramps up over the next several years.”

A $3.8 million grant will go to the Muscogee (Creek) Nation in Oklahoma. The funds will be used for technology-driven regional training and also for regional economic development.

“This $3.8 million grant to the Muscogee Nation will allow geographically isolated students, workers and businesses to interact verbally and visually with teachers, employers and customers worldwide via real-time virtual connections to access educational and training opportunities to foster entrepreneurial success,” said Secretary Chao.

The Muscogee Nation of Oklahoma will collaborate with the Global Trade and Technology Corp., or GT2, a non-profit agency,  to improve education and career opportunities within its 11-county region. GT2 is providing the Muscogee Nation with its “e-Innovate” model, which combines worker training, economic development, and other high-technology capabilities for use by small- and mid-size businesses. The effort will utilize technology to allow geographically isolated students, workers and businesses to interact verbally and visually with teachers, employers and customers throughout the world via real-time connections.

“The programs and infrastructure funded through this grant will connect workers with educational and training opportunities that once were literally out of reach,” said Assistant Secretary of Labor for Employment and Training Emily Stover DeRocco. “Communications technology will link tribal businesses and workers to global markets and will help create new opportunities within and outside of the Muscogee Nation.”

The third grant of $15 million will benefit New Orleans youth through  temporary jobs and training opportunities. The grant is part of an ongoing effort at hurricane recovery in the troubled Mississippi Delta city and throughout Louisiana.

“This $15 million grant will help at risk young people in New Orleans with valuable skills training, educational opportunities and job experience while at the same time participate in the recovery of their communities from Hurricane Katrina,” said Secretary of Labor Elaine L. Chao.

The grant, is awarded to the Louisiana Department of Labor’s Office of Workforce Development, to provide about 1,200 temporary jobs to young people without previous job experience. Activities will offer youth the chance to receive occupational skills training, and the opportunity to earn a high school diploma and receive post-secondary education through area community colleges.

The project will be targeted at the following parishes within the Greater New Orleans area including the parishes of  Orleans, Jefferson, Plaquemines, St. Bernard, St. Charles, St. James, St. John and St. Tammany.

Two recent grants will help civilian workers adjust to base closures in North Carolina and Oklahoma. The U.S. Department of Labor recently announced the award of two grants totaling $500 million for displaced workers affected by the Base Realignment and Closure program, also referred to by the acronym BRAC.

“This $5 million grant will help workers from Fort Bragg and Pope Air Force Base transition to rewarding careers in high-growth, high-tech industries,” said Secretary of Labor Elaine L. Chao.

The demonstration grant was awarded to the BRAC Regional Taskforce, a coalition of several North Carolina workforce development boards, universities, community colleges, school districts and economic development commissions. The funds will be used to plan for regional transformation and ensure that workers are prepared for high-tech jobs in support of national military preparedness and homeland security.

The BRAC Regional Taskforce is responsible for:

• Leveraging workforce, economic, and educational resources to support emerging industries
• Connecting the region’s workforce with education and career opportunities
• Connecting military, business and industry representatives with workforce development activities

“Programs funded by this award will lead workers in this North Carolina regional economy to higher-paying, high-tech careers,” said Assistant Secretary of Labor for Employment and Training Emily Stover DeRocco. “This pilot project will not only help North Carolina weather economic changes, but also provide the region the opportunity to develop a pool of skilled workers who are prepared to succeed in today’s competitive global economy.”

The second grant awarded a $2.5 million demonstration grant to aid civilian workers in Oklahoma. Grant funds will also be sued to assist military spouses and service members who are transitioning from the military sector to private industry. 

“This $2.5 million grant will help civilian workers, military spouses and service members affected by military base closures and relocations transition to new careers in high-growth industries,” said Secretary of Labor Elaine L. Chao.

In this case, the grant was awarded to the Southwest Oklahoma Impact Coalition, or SOIC. The SOIC is a collaborative effort between businesses, economic and workforce development and education partners. Funds will be used to support activities that will create employment opportunities and improve the overall quality of life for area workers. SOIC will focus on activities including attracting and recruiting qualified workers for employment in regional industries. The group will also expand the education and workforce development infrastructure to support industry-specific education and training programs. In addition, SOIC will assist current workers in obtaining credentials and licensures for other professions. 

“As a result of today’s funding, Oklahoma will be modeling innovative approaches to regional BRAC-related economic transformation,” said Assistant Secretary of Labor for Employment and Training Emily Stover DeRocco. “Providing workers with in-demand education and skills not only will have the immediate effect of meeting employment needs, but also will lay the groundwork for long-term talent development and regional economic growth.”

These most recent grants come in the wake of more than $20 million in grants to assist several states with planning and implementation of project related to workers dislocated under the BRAC program. Projects in several states will help connect these individuals with job opportunities in the civilian economy.

“These $20 million in grants will help workers affected by military base closures and relocations,” said Secretary of Labor Elaine L. Chao. “Civilian workers at those bases will be provided employment services to help them find new jobs in high-growth industries.”

An Oklahoma unemployment grant through the WIRED program would bring new life to static economic regions in the state. Those regions could join others like northern Alabama, the Delaware Valley, northern Indiana, northern California, and the Mississippi/Arkansas Delta area.

The WIRED grant is designed to improve a region’s chances of becoming relevant and insuring job skills are up to date in the global marketplace. It supports innovative techniques to enhance the workforce and improve economic develop. Thus the acronym for WIRED – Workforce Innovation Regional Economic Development.

The third generation of these grants has been announced by the U.S. Department of Labor. They’re highly competitive. First, regional proposals must make it across a state governor’s desk (every governor has gotten a letter from Labor Secretary Elaine Chao announcing the competition). Then, each governor may submit two proposals. Each one may be for a total of $5 million each. The regions submitting proposals must also detail their other funding sources – whether state, private, or regional – so that the Labor Department may plan complementary funding.

Investing in area workforces through the collaborative approach, said Secretary Chao during announcement of the earlier, second round of grants, “will boost entire regions’ economic vitality.” The WIRED program operates through the Employment and Training Administration, a part of the Labor Department. Secretary Chao added that the regional economic development plan “transcends political boundaries to better leverage a region’s assets to help workers succeed in the 21st century worldwide economy.”

As the name suggests, its goal is to support non-traditional ways of attempting to answer the challenge of bringing jobs to regions that have been stuck in economic stagnation. It has encouraged cross-agency work between 10 different federal agencies to bring more jobs to regions of high unemployment. In the past, 26 regions around the U.S. have received a total of $260 million in funding for that purpose.