labor lawAdivision of labor law center

The US Department of Labor recently awarded $250,000 to develop strategic economic growth plans for Kentucky and Tennessee. Most of the area affected is in the extreme western tip of Kentucky.

“This $250,000 grant to the West Kentucky Workforce Investment Board will boost efforts to expand the region’s economy and increase job opportunities for Kentucky workers,” said U.S. Secretary of Labor Elaine L. Chao.

The primary focus of the grant is the (more…)

Two community colleges in Tennessee have won worker training grants from the US Department of Labor totaling more than $3.7 million.

Jackson State Community College was awarded $1,997,683 to establish and enhance programs to train highly skilled workers for the healthcare industry. With locations in Lexington, Savannah and Humboldt, as well as Jackson, the school offers distance learning and continuing education as well as daytime classes in a number of allied health specialties.

Northeast State Technical Community College won a grant of $1,946,563 to train workers for the Advanced Manufacturing field. The school is located in Blountville, Tennessee. The school offers associate degrees, apprenticeships and continuing education in the technical field through The Institute for Business and Industry Services.

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Workplace violence in Tennessee and across the U.S. is one of OSHA’s (Occupational Safety and Health Administration) primary concerns. Unfortunately, homicides are a large component of violence on the job. The Bureau of Labor Statistics reported that in 2006, 94 murders occurred in the workplace. The number has decreased from over 200 homicides in the early 1990s, but murder is still a major factor.

Over 2 million Americans are victims of violence in the workplace every year. OSHA suggests several ways to help prevent this violence, which OSHA defines as threats, verbal abuse, assaults, physical abuse and homicide. These recommendations include installing security systems, extra lights and video surveillance cameras.

In addition to installing safety equipment, companies should install an antiviolence program into the safety plan. Employers should also provide training for workers on how to understand the program and how to react in violent situations. Putting the program details in writing in the employee handbook is a good way to ensure all workers receive the information.

Employers should also be aware that certain occupations are at higher risk for workplace violence. All workers who deal with the public, especially regarding money, and in high crime areas, and alone late at night, are at increased risk. Healthcare workers and other employees who provide social services also experience a higher risk of violence on the job. Statistics show that nurses are assaulted on the job as often as police officers. Most of the attacks occur in hospitals, but can also happen on home visits.

People who work away from an office can be faced with workplace violence, too. To help ensure their safety, these employees, such as outside salespeople, cable TV installers and utility workers, should be required to file a daily schedule with their employer, and to check in with home base on a regular basis.

When violent incidents do occur, employees should report it immediately. Companies should also investigate and remedy the problem immediately.

Streaming videos and downloads on preventing workplace violence are available from the NIOSH (National Institute for Occupational Safety and Health).

OSHA Tennessee Worker Safety

Every worker in Tennessee and across the U.S. needs to be informed about potentially violent situations in the workplace, and to be trained on how to avoid and or diffuse these situations.

Workplace violence is a major concern to OSHA (Occupational Safety and Health Administration) which recommends that each employee take steps to help protect against violence and to help prevent violence in the workplace.

First, an employee needs to be aware of his or her surroundings. When working out in the public, a worker shouldn’t carry a lot of cash or wear expensive or flashy jewelry. Also when out in public, an employee should never enter an unfamiliar situation or location late at night, particularly when alone. Traveling to new places should also be scheduled for daylight hours.

Employees also need to know exactly how to report incidents of violence. Their employers should establish an antiviolence program among their safety procedures. These procedures need to train each worker in the proper process to handling threats of violence on the job and should be practiced just like any other safety drill.

All threats of violence and acts of violence should be reported immediately. Even incidents that don’t seem particularly serious need to be made known to supervisors or managers. Persons who escalate to violent acts often give early warning signs, such as verbal abuse and rage. Therefore, no incident should be considered trivial.

Threats of violence can include maintenance issues. Problems such as a secure door that no longer locks, a broken window, or a missing security camera can negatively affect the workplace, particularly in the area of security. These issues should be reported to a supervisor immediately.

The General Duty Clause of OSHA requires employers to provide a safe and healthy work environment. Employers must keep a record of every threat and act of violence, sorted by type. The threats need to be investigated immediately and remedied immediately. Failure of any company to follow these procedures regarding hazards in the workplace can open that company to severe penalties from OSHA.

Employers can look for changes to the FMLA leave certification procedures in the Family and Medical Leave Act’s new regulations.

The updates permit employers in Tennessee and nationwide to seek recertification of an illness that is ongoing, and that recertification may be sought every 6 months – provided it is in connection with an absence. The new rules also address issues of medical privacy regarding the certification process.

While the U.S. Labor Department specifies that employers may “request” recertification, the new regulation is tougher than that. Employers may deny FMLA leave to a worker who refuses to comply with the “request.”

FMLA guarantees that workers may take as much as 12 weeks yearly of unpaid, job-protected leave to tend to their own serious illness or that of an immediate family member. Employers may for their part require that a medical professional provide certification of the employee’s condition.

The old regulations allow employers to seek recertification after 30 days, provided the employee is absent on FMLA leave at the time. If John must take more than 30 days for surgery, his employer may request recertification after 30 days as long as John is still absent from work. They also allow recertification if the original certificate specified a time limit. If Mary’s health provider certified that her carpal tunnel syndrome requires she be off 6 weeks, her employer may seek recertification after that time, provided Mary has not come back to work yet.

This resulted in problems for both employers and courts. Healthcare professionals frequently specify a condition as “lifetime” or its duration “unknown,” effectively making it impossible for employers to require recertification.

Another FMLA change would allow employers to seek clarification of a medical certification from a healthcare professional. But neither the employer nor the provider must violate HIPAA rules on medical privacy.

Employers may not, under the new rules, ask providers for any information not on the certification form. The Labor Department’s WH-380 form has been updated, but remains optional. The form allows for a diagnosis, but healthcare professionals are not required to include such a diagnosis if they do not wish to do so.

More Tennessee FMLA Changes

New proposed changes to the Family and Medical Leave Act (FMLA) rules would revise the “fitness-for-duty” certification process in ways that may give employers more control of the procedure.

The current FMLA regulations permit employers to require their employees to present a “fitness-for-duty” certificate from a healthcare provider showing he or she is capable of resuming work after a leave.

One proposed change is aimed at correcting abuses of FMLA leave by employees who take the leave intermittently. Under the change an employer may require a “fitness-for-duty” certificate every time an employee uses the leave and wishes to return to work. But it may be required only if a valid safety concern exists.

If truck driver Carl suffers from migraine headaches that interfere with his vision and takes FMLA leave intermittently, for example, his employer may require a certificate because a truck driver with impaired vision would be a legitimate safety concern.

However, if employee Maria suffers from serious morning sickness as a result of pregnancy and takes intermittent leave, her employer could not require a certificate. Her condition would not raise a safety issue.

The changes would also allow an employer to require that a certification specifically address a worker’s ability to do all the major aspects of his or her work when returning from leave. A warehouse worker whose job largely consists of moving heavy containers could be required to present a certificate of fitness to lift heavy objects.

The U.S. Labor Department issued the proposed changes recently. They will affect employers throughout the U.S. The regulations will be published in the National Register after April 11, 2008. Until that date, employers and others may submit comments on the proposed changes.

A company policy on “fitness-for-duty” certification must be applied consistently to employees who are in similar situations. Every worker who takes FMLA leave for a serious illness could be required to present a certificate when returning. At the same time, the employer may choose not to require certificates from those returning after caring for a newly adopted child.

A widespread workplace smoking ban went into effect in Tennessee on October 1, 2007. The href="http://blog.laborlawcenter.com/tag/tennessee/" class="st_tag internal_tag" rel="tag nofollow" title="Posts tagged with Tennessee">Tennessee Non-Smoker Protection Act, also known as Public Chapter 410, was signed into law by Governor Bredesen on June 11, 2007.

Under the new law, smoking is prohibited in all enclosed public places including restaurants, retail stores and shopping malls.  There is no smoking in sports arenas, or in the enclosed public areas of outdoor arenas. Common areas of apartment buildings and other multiple-unit residential facilities such as condos must be smoke free, along with their lobbies, restrooms and reception areas.

All public and private schools must be smoke free under the new law.

A number of areas are exempt from the new Tennessee non-smoking law. These include private homes, and private motor vehicles. However, no smoking is allowed in any home that is a childcare or adult day care facility, or in any vehicle used by such businesses.

Smoking is permitted on open patios, porches and decks. It is also permitted in any enclosed workplace with “garage-type” doors, as long as all the doors are open.  Smoking is permitted under awnings, or in tents with removable sides or vents, as long as all the sides or vents are removed or open. However, smoke in any of these places must not infiltrate areas where smoking is prohibited.

Smoking is also permitted in any venue that restricts access at all times to people who are at least 21 years old.

Private businesses with up to 3 employees may permit smoking only in an enclosed room that is not accessible to the public, as long as that smoke does not infiltrate other areas of the workplace.

Smoking is never permitted in the lobbies and hallways of hotel or motels. These establishments may designate up to 25% of the rooms as smoking rooms.

Tobacco importers, wholesalers and manufactures can permit smoking in the workplace. So can retail tobacco stores that prohibit minors from entering. Smoking is also permitted in private clubs.

Nursing homes and long-term care facilities may permit smoking, at their discretion. Smoking is permitted in commercial vehicles when the vehicle is occupied only by the driver.

In order to comply with the new Tennessee smoking ban, employers must post “no smoking” signs such as the ones available at www. Laborlawcenter.com at every entrance to every workplace where smoking is prohibited. In addition, every employee and applicant must be informed that smoking is prohibited.

All employers, managers, owners, operators and employees must enforce the non-smoking ordinance.

Any person who smokes in a non-smoking area is subject to a civil penalty of $50. Any business that knowingly fails to comply is subject to a written warning from the Department of Health or the Department of Labor and Workforce Development for the first offense. The fine for a second violation is $100. Third and subsequent violations in a 12-month period will result in fines of $500 each. The Tennessee Department of Health and the Tennessee Department of Labor and Workforce Development enforce this law.

Currently more than half of the U.S. states have some type of smoking ban in effect statewide.  Two states, Idaho and Georgia, ban smoking in restaurants but permit it in other workplaces. Only one state, New Hampshire, bans smoking in all restaurants and bars but permits it in other workplaces.

According to Americans for Non-smokers Rights (ANR) at www.no-smoke.org, twenty-five states currently have no comprehensive smoking ban covering restaurants, bars and workplaces, on the state level. Many of these states do have smoking bans, but they exclude a key area. These states are: Alaska, Texas, Oregon, West Virginia, Nebraska, Kansas, Oklahoma, Arkansas, Missouri, Iowa, Wisconsin, Michigan, Indiana, Kentucky, Tennessee, Mississippi, Alabama, Georgia, North Carolina, South Carolina, Virginia, Maryland, West Virginia and Pennsylvania. Illinois currently belongs in that group, although a tough new smoking ban goes into effect on January 1, 2008.

Eleven states have what the ANR labels as a 100% smoking ban in place prohibiting smoking in restaurants, bars and the workplace. These states are Washington, California, Minnesota, Arizona, New York, New Jersey, Delaware, Massachusetts, Rhode Island, Ohio and Hawaii. The term “100% smoking ban” here is a little misleading, since there are significant exceptions to the anti-smoking laws in each of these states.

The remaining states have a statewide smoking law but permit smoking in bars, or in restaurants, or in the workplace. These states include Nevada, Idaho, Utah, Montana, North Dakota, South Dakota, Colorado, New Mexico, Louisiana, Florida, Maine, New Hampshire, Vermont and Connecticut.

By far the most common exceptions to this smoking ban are bars and casinos. Many states also permit smoking in designated sections of restaurants. A number of states outlaw smoking in all workplaces, and within 15 to 25 feet of the entrance to any workplace or public building.