Employers in Wyoming need to be aware of changes to the federal FMLA law.
Under the Family and Medical Leave Act (FMLA) rules, Wyoming employees have the right to as much as 12 weeks of job protected, unpaid leave yearly to attend to their own or an immediate family member’s “serious health condition.”
Employers have the right, in turn, to require that the condition be certified by an employee’s healthcare provider.
Proposed new changes to the FMLA regulations by the U.S. Department of Labor would change some of the rules governing medical certification.
For example, the new rules would permit an employer to request recertification of an “ongoing condition” once in a 6-month period or even more often, provided the request is in conjunction with an absence on FMLA leave. Although it is referred to as a “request” for recertification, employers have the right to deny FMLA time to a worker who refuses to comply.
New changes would also streamline the process of recertification. Employers may contact healthcare providers to clarify details of a medical certification form, but both the employer and provider must abide by HIPAA laws regarding medical privacy.
Employers may not request information not already included on the form. Healthcare providers need not supply a diagnosis when filling out a medical certification. While the U.S. Labor Department’s WH-380 form for certification is being updated, it remains optional. The WH-380 form includes a place where the provider may list a diagnosis if she or he wishes to do so.
Employers under the new rules may require medical recertification annually in the case of an ongoing serious health problem. If a worker’s migraine headaches require periodic days off, unscheduled, under FMLA, it is allowable for the employer to require annual recertification.
The new regulations also clarify an existing ambiguity. Currently, employers may require recertification if a healthcare provider lists a time limit on the original certification.
A provider may specify that employee Mary requires 6 weeks of FMLA leave to attend to her carpal tunnel syndrome. But this led to problems for both courts and employers because healthcare practitioners will sometimes list a condition as “lifetime” or its duration as “unknown.” Under the old rules, that permanently blocked employers from requiring recertification. The new regulations permit employers to require periodic recertification.
More Wyoming FMLA Changes
Employers would have greater control over certain aspects of the “fitness-for-duty” certification process under some changes to the Family and Medical Leave Act (FMLA) proposed by the U.S. Labor Department.
One change would permit employers to require that a certification specifically address a worker’s ability to carry out key tasks of his or her job. A warehouse worker, for example, who lifts heavy boxes, could be required to provide certification that he or she will again be able to do so when returning from an FMLA leave that was taken to attend to a serious health condition.
Another change is designed to limit or eliminate FMLA leave abuse by workers. It addresses the employee who takes intermittent FMLA leave. If there is a safety concern, the employer is allowed to require the worker to provide certification each time he or she takes some FMLA leave and wishes to return.
“Carl” is a truck driver who suffers intermittent migraine headaches, for example. The headaches interfere with his vision. Because driving with impaired vision is a safety concern, Carl’s employer could require him to submit a “fitness-for-duty” certificate each time he takes FMLA leave and seeks to return to his job.
If there is no reasonable safety concern, however, the employer does not have the right to require a certificate.
The current regulations allow employers to require a worker taking FMLA leave to submit the certification from a healthcare provider showing that he or she is physically capable of resuming the job.
The employer must apply the certification requirement uniformly to workers who are in similar conditions. An employer may require all workers who take FMLA leave for a serious health condition to submit a certification when returning. On the other hand, the employer need not require such certification if the employee is returning from an FMLA leave that was taken to care for a newly adopted child.
The Labor Department recently announced the proposed changes. Employers and others wishing to comment have until April 11, 2008. After that, the changes are published in the National Register and become law.
The United States Department of Labor awarded a grant of more than $1 million to a community college in Casper, Wyoming. This is one of the 72 community colleges in 34 states awarded under the President’s Community-based Job Training Grants program. President George W. Bush introduced this program in his 2004 State of the Union Address. This grant, as well as the others, is to be used for the training of workers in skills related to fast growing occupations like construction, energy, advanced manufacturing, and healthcare.
Elaine Chao, U.S. Secretary of Labor, expressed, “The $125 million these 72 community college partnerships will receive under the President’s Community-Based Job Training Initiative is going to help workers succeed in careers in health care, advanced manufacturing and other growing industries.” The Wyoming employment grant was given chosen in a competition between 429 schools. Secretary Chao stated “Community colleges are vital partners in educating and preparing workers for good jobs in their local area.”
The Casper College for energy education programs received the Wyoming employment grant. The grant is for $1,015,602. The school has an extended history of successful scholarship awards.
Assistant Secretary of Labor for Employment and Training Emily Stover DeRocco states that “Community colleges are closely tied to the areas they serve, and they have proven themselves adept at responding to the regional workforce demands of numerous industries.” She also mentions that “Today’s awards recall the imperative that businesses and the workforce system team up with their region’s community colleges to ensure that workers are armed with the right skills to thrive in the 21st century economy.”
So far, over 104 awards have been made since the program’s 2005 initiation. The principle of the Wyoming Dept. of Labor grants is to improve worker skills in the area, especially in mandatory areas like energy. Our nation’s success is partially dependant on the community college’s ability to equip workers with the skills they need to help the economy.
Veterans returning to the workforce: you should know that your old job is probably protected by an act of government.
The act is called the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). When you return from duty, it entitles you to the same job, salary, and benefits you would have gotten if you had stayed with that position.
The final regulations for USERRA were released by the U.S. Labor Department recently. They cover the job rights for veterans and members of the National Guard and Reserve who are coming back from their military duty.
Employers should update their Wyoming USERRA poster now so employees can see the latest information.
Under USERRA’s latest regulations, if you’re a veteran your civilian job rights are protected for a maximum of 5 years if you’re on military duty during that time. That includes members of the Air Force, Navy, and Army Reserves. And you don’t have to have served your entire military obligation at one time. It can be cumulative. In other words, if for example you served 2 years, then later served another 3 years, you are still eligible.
The right to return to the job, benefits, and pay that you would have gotten if you had still been working is an important one. There have been several cases testing this part of USERRA. In those cases, the veterans who returned got the promotions they would have gotten based on time on the job had they not been on military duty. Sometimes the returning veterans/employees are guaranteed the yearly pay hikes or cost-of-living increases they would have received if they had been working at that job.
Anyone who wants help with claims under USERRA is urged to contact the Veterans’ Employment and Training Service, or VETS. There are some exceptions to the rule, however. For example, a veteran who served more than 5 years in the military may still have his or her job protected. And intermittent training for the National Guard or Reserve is not included in that 5-year period.
Many employers assume that all salaried employees are exempt from overtime – but they are mistaken. Depending upon the rate of pay and job duties, employees in Wyoming who are paid on a salaried basis may still be entitled to time-and-a-half for every hour they work beyond 40 hours per week.
In Wyoming, a recently settled lawsuit involving violations of federal and Wyoming minimum wage laws will cost Wal-Mart $33 million. This money is back pay and interest that Wal-Mart will pay to almost 87,000 workers. These workers reside in Wyoming and throughout the United States.
The suit was brought against Wal-Mart by the U.S. Department of Labor. It refers only to certain violations and doesn’t impact any private lawsuits against the corporate giant. Moreover, this recent settlement doesn’t impact the ability of workers to file their complaints with the U.S. Department of Labor.
To determine if federal and Wyoming minimum wage laws make a salaried employee eligible for overtime pay, consider their salary. If employees earn under $455 a week ($23,660 a year), then the guidelines created in recent years state that they are entitled to overtime compensation for hours worked above 40 per week.
In fact, an employee can earn more than $23,600 per year and still be eligible for overtime pay. The determining factor is whether the employee has the power to make significant decisions concerning a division, a department, or a store. Usually, managers who are paid a salary have the authority to hire and fire 3 or more employees.
Wal-Mart has encountered problems with their payroll system before. Private litigation isn’t impacted by this agreement, since it only addresses those violations that were outlined in the judgment.
Other companies have tried not paying overtime before. Over 20 years ago, Howard Johnson’s tired a similar approach but was unsuccessful. In a similar situation to Wal-Mart’s, Howard Johnson’s employed “assistant managers.” These employees worked in the company’s restaurants, sometimes putting in more than 80 hours a week without much pay. Like Wal-Mart, Howard Johnson’s was found guilty.
Employers should be interested in the expansion of the Wyoming Drug Free Workplace Alliance. The Occupational Safety and Health Administration, known as OHSA, makes it clear that employers should educate employees about the dangers of alcohol and drug abuse. By educating employees about these dangers, OSHA maintains that employers can protect their businesses.
One way to battle alcohol and drug abuse in the workplace is to take advantage of the Wyoming Drug Free Workplace Alliance. Random drug testing of employees is used by some businesses that belong to the alliance. Pre-employment drug screenings are another approach used by some companies to reduce abuse in the workplace.
Present at the ceremony to expand the Wyoming Drug Free Workplace Alliance was Elaine Chao, Secretary of Labor. The alliance is important to the US Department of Labor. Formed in 2004, the alliance was the first agreement the US Department of Labor made cooperatively to help prevent drug abuse in the workplace. Protecting the safety and health of workers is important. Working cooperatively with unions and contractor associations, the nation is committed to addressing this shared goal.
OSHA maintains that most drug users have jobs. These workers bring their drug problems with them to work. Consider the numbers. The number of adults who use illegal drugs is 16.7 million. Of these drug users, 12.4 million, which is approximately 74.3%, have either a full-time or part-time job.
For this reason, the price is high for businesses that have employees with alcohol and drug abuse problems, according to the US Department of Labor. OSHA has stated that most workplace auto accidents that result in fatalities involve abuse.
In addition, because of alcohol and drug abuse, businesses have a higher rate of absenteeism, along with an increase in the number of workplace accidents and errors. Moreover, these businesses may experience employee morale that is low, plus more employee illnesses. The goal of the alliance is to respond to this abuse problem in the workplace.