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| Weingarten Rule |
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Weingarten Rights
THE WEINGARTEN RULE
An employee's right to representation
WEINGARTEN RIGHTS
An employee may be represented by the union at an investigatory interview with his or her supervisor when the employee reasonably believes that the interview may lead to a disciplinary action.
U.S. Supreme Court ruling:
The rights of employees to the presence of union representatives during investigatory interviews was announced by the U.S. Supreme Court in 1975 in NLRB v. J. Weingarten, Inc. Since that case involved a clerk being investigated by the Weingarten Company, these rights have become known as Weingarten Rights.
What is an investigatory interview?
Employees have Weingarten rights only during investigatory interviews. An investigatory interview occurs when a supervisor questions an employee to obtain information which could be used as a basis for discipline or asks an employee to defend his or her conduct. If an employee has a reasonable belief that discipline or other adverse consequences may result from what he or she says, the employee has a right to request union representation. Investigatory interviews usually relate to subjects such as:
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absenteeism
drinking
fighting
poor attitude
violation of safety rules
accidents
drugs
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insubordination
sabotage
work performance
damage to state property
falsification of records
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lateness
theft
violation of work procedures
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Weingarten rules:
Under the Supreme Court's Weingarten decision, when an investigatory interview occurs, the following rules apply:
RULE 1
The employee must make a clear request for union representation before or during the interview. The employee cannot be punished for making this request.
RULE 2
After the employee makes the request, the employer must choose from among three options. The employer must:
Grant the request and delay questioning until the union representative arrives and has
a chance to consult privately with the employee; or Deny the request and end the
interview immediately; or Give the employee a choice of: (1) having the interview
without representation or (2) ending the interview.
RULE 3
If the supervisor denies the request for union representation and continues to ask questions, he or she commits an unfair labor practice and the employee has the right to refuse to answer. The supervisor cannot discipline the employee for such a refusal.
Rights of Labor Representatives
Supervisors often assert that the only role of a Labor Representatives at an investigatory interview is to observe the discussion, i.e., to be a silent witness. The Supreme Court, however, clearly acknowledged a Labor Representatives's right to assist and counsel workers during the interview. Decided cases establish the following procedures:
1. When the steward arrives, the supervisor must inform the steward of the subject matter of the interview; i.e., the type of conduct for which discipline is being considered (theft, lateness, drugs, etc.).
2. The steward must be allowed to take the worker aside for a private pre-interview conference before questioning begins.
3. The steward must be allowed to speak during the interview. The steward, however, does not have the right to bargain over the purpose of the interview.
4. The steward can request that the supervisor clarify a question so the worker can understand what is being asked.
5. After a question is asked, the steward can give advice on how to answer.
6. When the questioning ends, the steward can provide information to the supervisor.
It must be emphasized that if the Weingarten rights are complied with, Labor Representatives have no right to tell workers not to answer questions or to give false answers
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| Garrity Rights |
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Garrity Rights
FIFTH AMENDMENT APPLIES TO INTERROGATIONS OF PUBLIC EMPLOYEES
Public employees have certain constitutional rights that apply in their employment that may not apply to private employees. For example, in Garrity v. New Jersey , the Supreme Court held that statements obtained in the course of an investigatory interview under threat of termination from public employment couldn’t be used as evidence against the employee in subsequent criminal proceedings. If, however, you refuse to answer questions after you have been assured that your statements cannot be used against you in a subsequent criminal proceeding, the refusal to answer questions thereafter may lead to the imposition of discipline for insubordination. Further, while the statements you make may not be used against you in a subsequent criminal proceeding, they can still form the basis for discipline on the underlying work-related charge.
To ensure that your Garrity rights are protected, you should ask the following questions:
1) If I refuse to talk, can I be disciplined for the refusal?
2) Can that discipline include termination from employment?
3) Are my answers for internal and administrative purposes only and are not to be used for criminal prosecution?
If you are asked to provide a written statement regarding the subject of the interview, the following statement should be included in your report:
“It is my understanding that this report is made for internal administrative purposes only. This report is made by me after being ordered to do so by my supervisor. It is my understanding that refusing to provide this report could result in my being disciplined for insubordination up to and including termination of employment. This report is made pursuant to that order and the potential discipline that could result for failing to provide this report.”
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| Loudermill Rights |
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Loudermill Rights
A U.S. Supreme Court decision somewhat similar to Weingarten occurred in 1985, with the case of Cleveland Board of Education v. Loudermill. This decision established what have come to be called "Loudermill Rights" for public employees.
Loudermill Rights apply to incidents of involuntary termination.
Prior to being terminated, "the . . . tenured public employee is entitled to oral or written notice of the charges against him (or her), an explanation of the employer’s evidence, and an opportunity to present his (or her) side of the story."
Unlike Weingarten, the employer has an obligation to inform the employee of his/her Loudermill Rights.
The employee has the right to speak or not to speak at the Loudermill (or "pre-disciplinary") hearing. Also, the employee has a right to union representation, and the union representative may speak on behalf of the employee.
If the employee chooses not to attend the Loudermill (or "pre-disciplinary") hearing, the employer may proceed with termination
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| Age Discrimination |
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Age Discrimination in Employment Act (ADEA)
PUBLIC SAFETY EXEMPTION
The federal Age Discrimination in Employment Act (ADEA) permanently exempts fire fighters, emergency medical personnel, and police officers from the federal ban on age limits and employment. The new law authorizes state and local governments to establish mandatory retirement ages of at least 55, as well as maximum hiring ages. It is also retroactive to January 1, 1994, to cover municipalities whose age limits became illegal when the ADEA took affect for
public safety personnel.
Application of the ADEA to Public Safety Agencies
Any state or local government may have a maximum entry age limit for public safety officers. Any state or local government that did not have a mandatory retirement age during the previous ADEA Public Safety Exemption (1986-93) may establish one—except that the retirement age may not be lower than 55 (which is the federal government’s mandatory retirement age for fire fighters).
Any state or local government that did have a mandatory retirement age during the previous exemption may continue to use that age limit—regardless of whether or not it is below age 55. If such a jurisdiction wants to change their retirement age, the new retirement age could not be lower than 55.
Effective Date
Provisions of the act affecting public safety agencies that utilized age limits during the previous exemption are effective retroactive to January 1, 1994. All other provisions are effective on the date of enactment.
Development of Wellness Guidelines and Job Performance Tests
As part of the legislation, Congress authorized the National Institute for Occupational Safety and Health (NIOSH) to address job fitness tests and fire department wellness/fitness programs.
• Two years after the date of enactment, NIOSH will issue guidelines on the use of wellness programs.
• Three years after the date of enactment, NIOSH will publish the results of a study into job performance fitness tests. The study will examine whether such tests are valid, safe and in full compliance with civil rights laws.
• Four years after the date of enactment, NIOSH will issue guidelines on the use of job performance fitness tests.
However, Congress never appropriated any funds to initiate and complete these programs and the timeframes were never met.
Exception to the Exemption Test
As part of the legislation, Congress authorized the National Institute for Occupational Safety and Health (NIOSH) to identify a valid job performance test that individuals could use to seek exemption to the mandatory retirement age.
• Following publication of the guidelines on the use of job performance fitness tests, NIOSH shall identify one or more job performance fitness tests that meet the criteria described in their study.
• Following such NIOSH identification of valid, job performance tests, any public safety agency that wishes to utilize a mandatory retirement age must provide public safety officers who attain the retirement age the opportunity to demonstrate their fitness to continue performing their duties by passing the NIOSH-approved test. The test will be given on an annual basis to any public safety officer above the mandatory retirement age.
Again, Congress never appropriated funds to address the job performance exemption issue. Therefore, tests have not been developed that would allow individuals to seek exemption to their jurisdiction’s mandatory retirement age.
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| PSOB Death Benefits |
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PSOB/PSOEA Fact Sheets
IAFF Department of Occupational Health and Safety Summary of the Federal (U.S.) Benefits for Public Safety Officers PSOB and PSOEA Programs
I. Summary of the PSOB Law
The Public Safety Officers Benefits Act, (42 USC 3796, Public Law 94-430) became law on September 29, 1976. The legislation provided for a $50,000 death benefit for fire fighters (paid and volunteer) and law enforcement officers that died in the line-of-duty (emergency or non-emergency) from a traumatic injury. On December 15, 2003 the Act was amended to cover deaths from heart attack and stroke occurring in the line-of-duty. The Act does not cover deaths resulting from occupational illness or pulmonary disease unless a traumatic injury is a substantial factor to the death.
On November 11, 1988, the benefit was increased from $50,000.00 to $100,000.00 and made retroactive to June 1, 1988. The dependency test for parent(s) was eliminated. Additionally, it provided that on October 1, 1988 and every year thereafter, the benefit would be increased to reflect any increase in the consumer price index. On October 26, 2001, as part of the Patriot Act of 2001, the benefit was increased to $250,000 and made retroactive to January 1, 2001. The following summarizes the benefit payout since the enactment of the Act:
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10/01/17 to 9/30/18 (Fiscal Year 2018)
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$350,079.00
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10/01/16 to 9/30/17 (Fiscal Year 2017)
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$343,589.00
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10/01/15 to 9/30/16 (Fiscal Year 2016)
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$339,881.00
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10/01/14 to 9/30/15 (Fiscal Year 2015)
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$339,310.00
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10/01/13 to 9/30/14 (Fiscal Year 2014)
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$333,604.68
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10/01/12 to 9/30/13 (Fiscal Year 2013)
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$328,612.73
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10/01/11 to 9/30/12 (Fiscal Year 2012)
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$323,035.75
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10/01/10 to 9/30/11 (Fiscal Year 2011)
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$318,111.64
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10/01/09 to 9/30/10 (Fiscal Year 2010)
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$311,810
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10/01/08 to 9/30/09 (Fiscal Year 2009)
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$315,746
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10/01/07 to 9/30/08 (Fiscal Year 2008)
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$303,064
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10/01/06 to 9/30/07 (Fiscal Year 2007)
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$295,194
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10/01/05 to 9/30/06 (Fiscal Year 2006)
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$283,385
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10/01/04 to 9/30/05 (Fiscal Year 2005)
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$275,658
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10/01/03 to 9/30/04 (Fiscal Year 2004)
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$267,494
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10/01/02 to 9/30/03 (Fiscal Year 2003)
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$262,100
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10/01/01 to 9/30/02 (Fiscal Year 2002)
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$259,038
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1/01/01 to 9/30/01 (Part Fiscal Year 2001)
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$250,000
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10/01/00 to 12/31/00 (Part Fiscal Year 2001)
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$151,635
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10/01/99 to 9/30/00 (Fiscal Year 2000)
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$146,949
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10/01/98 to 9/30/99 (Fiscal Year 1999)
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$143.943
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10/01/97 to 9/30/98 (Fiscal Year 1998)
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$141,556
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10/01/96 to 9/30/97 (Fiscal Year 1997)
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$138,461
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10/01/95 to 9/30/96 (Fiscal Year 1996)
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$134,571
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10/01/94 to 9/30/95 (Fiscal Year 1995)
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$130,416
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10/01/93 to 9/30/94 (Fiscal Year 1994)
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$127,499
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10/01/92 to 9/30/93 (Fiscal Year 1993)
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$123,520
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10/01/91 to 9/30/92 (Fiscal Year 1992)
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$119,894
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10/01/90 to 9/30/91 (Fiscal Year 1991)
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$114,235
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The Act did exclude federal fire fighters; however on October 12, 1984 the Act was amended to correct this exclusion. Likewise, on October 15, 1986 public sector EMS personnel were also amended into the coverage of the Act. On June 25, 2002 the Act was amended by the enactment of the Mychal Judge Police and Fire Chaplains Safety Officers Benefit Act, which now allows coverage of fire chaplains under the Act and authorizes all beneficiaries of fallen fire fighters, not just parents, spouses or children to receive the federal compensation. The legislation, named after the FDNY Chaplain Father Judge, was proposed after it was discovered that ten public safety officers who gave their lives on Sept. 11 would not be eligible for death benefits because they did not have any surviving immediate family. The beneficiary hierarchy resulting from this Amendment is as follows:
- If the public safety officer (PSO) is survived by a spouse but no eligible children (as defined above), the spouse will receive 100% of the program benefit.
- If the PSO is survived by a spouse and eligible children, the spouse will receive 50% of the program benefit and the children will receive equal shares of the remaining 50%.
- If the PSO is survived by eligible children but no spouse, the children will receive equal shares of 100% of the program benefit.
- If the PSO is survived by neither a spouse nor eligible children the program benefit shall be paid to "the individual designated by such officer under such officer's most recently executed life insurance policy, provided that such individual survived such officer."
- If the PSO is survived by neither a spouse not eligible children and dies not have a life insurance policy, then the benefit will be made payable to the surviving parents in equal shares.
II. Summary of the Heart/Stoke Amendment
The Hometown Heroes Survivors Benefits Act of 2003 (HHA) amends the PSOB Act and was signed into Law on December 15, 2003. If a public safety officer dies as a direct and proximate result of a heart attack or stroke, that officer shall be presumed to have died as the direct and proximate result of a personal injury sustained in the line of duty unless such presumption is not overcome by competent medical evidence to the contrary.
The law requires that the officer, while on duty engaged in a situation, and such engagement involved non-routine stressful or strenuous physical law enforcement, fire suppression, rescue, hazardous material response, emergency medical services, prison security, disaster relief, or other emergency response activity or participated in a training exercise, and such participation involved non-routine stressful or strenuous physical activity. Any claim for non-routine stressful or strenuous physical activities will be excluded if such actions are of a clerical, administrative, or non-manual nature.
Further, the law requires that the officer died as a result of a heart attack or stroke suffered:
- while engaging or participating in such activity as described above,
- while still on that duty after so engaging or participating in such an activity, or
- not later than 24 hours after so engaging or participating in such an activity.
The HHA provision only covers deaths occurring on or after December 15, 2003. The HHA is not retroactive, and therefore it does not apply to deaths occurring before the aforementioned date.
III. Summary of the Disability Amendment
On November 29, 1990, Congress again amended the PSOB benefits program to include permanent and total disability. The amendment was tightly drawn, sharply limited in scope, and intended to cover only those public safety officers permanently unable to perform any gainful employment.
The PSOB disability amendment recognizes that state, local and agency benefit programs are primarily responsible for the hundreds, perhaps thousands, of public safety officer disability pensions awarded each year. The PSOB Act is clear that benefits awarded are supplementary in nature and by law are not to offset any worker compensation payment or disability pension benefit.
Even where an officer is disabled by a severe, catastrophic injury received in the line of duty, PSOB benefits do not come into play unless the injuries are so disabling as to permanently prevent any gainful employment. This standard recognizes that in all but rare cases a disabled public safety officer will have the capacity to supplement a state or local disability pension with employment earnings of varying degrees.
It is clear that Congress intended the PSOB disability for the rare occasion where a public safety officer miraculously survives line of duty injuries that, except for modern medical technology, would have resulted in death. Such a survivor, however, is so severely handicapped with permanent disabilities that any type of gainful employment is simply not possible. The following example illustrates the kind of line of duty injuries and permanent disability that will merit a PSOB finding of permanent and total disability and award of the program's disability benefit.
A Spokane, Washington fire medic, in a scheduled training exercise, was rappelling from a training tower. The supporting anchor point failed, plunging the fire fighter almost 40 feet to the pavement. He sustained extensive blunt force trauma, with severe head injuries and residual mental impairment. Subsequently, attending physicians diagnosed the fire fighter as permanently paraplegic and permanently unable to perform any gainful employment. The PSOB Program's medical experts confirmed the medical findings, especially noting craniocerebral head injuries with residual mental impairments, the existence of permanent spinal cord damage and resultant permanent motor and sensory functional loss of lower limbs, bladder and bowel control. These medical reviews also affirmed that the fire fighter would remain a paraplegic, permanently and totally disabled. Moreover, the PSOB Program's medical reviews and findings confirmed that this public safety officer would be permanently prevented from performing any gainful work.
IV. Summary of the PSOEA Law
The Police, Fire and Emergency Officers Educational Assistance Act was signed into law in October 1998. The law was created to provide financial assistance for higher education to the dependants of federal, state, and local public safety officers who are killed or permanently and totally disabled as a result of traumatic injury sustained in the line of duty and were eligible for the U.S. PSOB death or disability benefit. This is the only federally funded program that provides educational benefits for the spouse and children of fire fighters killed in the line of duty.
The U.S. Department of Justice’s Bureau of Justice Assistance - Office of Special Programs, the same office that administers the Public Safety Officer Benefit (PSOB) Program, administers the Public Safety Officers Educational Assistance (PSOEA) Program.
This assistance is only available after the PSOB death or disability claim process has been completed and benefits have been awarded. Further, the PSOEA applicant must have received at least a portion of the PSOB benefits and be defined as the officer’s spouse or child under the PSOB Act and regulations. In January 2000, the law further extended the retroactive eligibility date for financial assistance. Accordingly, the law is retroactive and will apply to the spouses or children of public safety officers whose deaths or permanent and total disabilities are covered by the PSOB Program on or after January 1, 1978. Public safety officers’ children will no longer be eligible after their 27th birthday, absent a finding by the Attorney General of extraordinary circumstances. The PSOEA Program will provide an educational assistance allowance, which may be used solely to defray educational expenses, including tuition, room and board, books, supplies, and education-related fees/costs.
As of October 1, 2004 the maximum award for a full-time student is $803.00 per month of class attendance. All PSOEA awards must, by law, be reduced by the amount of other governmental assistance that a student is eligible to receive.
There are two additional provisions of the law that the Bureau of Justice Assistance - Office of Special Programs must clarify before administering the benefit. The law requires the Attorney General to issue regulations regarding the use of a sliding scale to be used to ensure that the most financially needy dependants receive funding priority. Furthermore, the law calls for the “offset” of the educational benefit by any other federal, state, or local government funds provided as an educational benefit. For example, if the student receives $2,000 from the local government for education, then this amount would be deducted from the amount that the child would be eligible to receive from the Federal government. The Bureau of Justice Assistance will establish the administrative policies in the upcoming months.
The IAFF Division of Occupational Health, Safety and Medicine will provide our affiliates and the member’s family with assistance in filing for PSOB and PSOEA benefits.
V. Summary of Legislation
- Public Safety Officers' Benefits Act of 1976, Part J. Original act detailing the provision of death benefits. Introduced to the 94th Congress, September 29, 1976.
- Federal Register, May 6, 1977, Part II. The rules adopted by the Law Enforcement Assistance Administration for implementation of the PSOB Act are written.
- Federal Register, Vol. 43, No. 180 - September 15, 1978. Results of meeting detailing the contribution of carbon monoxide and heart disease in the deaths of public safety officers.
- Federal Register, Vol. 45, No. 51 - March 13, 1980. Amendments to the hearing and appeal provisions of the regulations.
- Federal Register, Vol. 50, No. 128, July 3, 1985. An amendment to the PSOB Act which transfers the administration of the Act from the LEAA to the Bureau of Justice Assistance. In addition, federal public safety officers are now covered under the act and "gross negligence" and "intoxication" standards are defined within this amendment.
- Federal Register, Vol. 53, No. 50, March 15, 1988. Amendment to the PSOB Act which includes provision of death benefit coverage to members of public rescue squads or ambulance crews. Also an explanation of EMS coverage in correspondence from the U.S. Department of Justice.
- Federal Register, Vol. 57, No. 113, June 11, 1992. Amendment to the PSOB Act to include coverage for disability benefits. Such disability is defined as permanent and total as a direct result of a catastrophic personal injury sustained in the line of duty which will prevent an individual from performing any gainful work.
- Public Law 107-37 - September 18, 2001, [115 STAT. 219]. Amendment to the PSOB Act to provide for the expedited payment of PSOB benefits for a public safety officer who was killed or suffered a catastrophic injury producing permanent and total disability as a direct and proximate result of a personal injury sustained in the line of duty in connection with the terrorist attacks of September 11, 2001.
- Public Law 107-56 - October 26, 2001, [115 STAT. 369]. Amendment to the PSOB Act to provide for the expedited payment of PSOB benefits for a public safety officer who was killed or suffered a catastrophic injury producing permanent and total disability as a direct and proximate result of a personal injury sustained in the line of duty in connection with prevention, investigation, rescue, or recovery efforts related to any terrorist attack. Increases the PSOB program benefit payment to $250,000 retroactive to January 1, 2001.
- Public Law 107-196 - June 24, 2002, [116 STAT. 719]. Amendment to the PSOB Act to include coverage of fire chaplains and allows all beneficiaries of fallen fire fighters, not just parents, spouses or children to receive the federal compensation.
- Public Law No: 108-182 December 15, 2003 [117 Stat. 2649]. Amendment to the PSOB Act to ensure that a public safety officer who suffers a fatal heart attack or stroke while on duty shall be presumed to have died in the line of duty for purposes of public safety officer survivor benefits.
VI. PSOB Government Contact and Information
Contact:
United States Department of Justice
Public Safety Officers' Benefits Program Bureau of Justice Assistance
810 Seventh Street, NW
Washington, DC 20531
Tel: 202-307-0635; Toll free: 888-744-6513; Fax: 202-514-5956
Internet: http://www.ojp.usdoj.gov/BJA/
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| Family Medical Leave Act (FMLA) |
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Family Medical Leave Act (FMLA)
The U.S. Department of Labor's Employment Standards Administration, Wage and Hour Division, administers and enforces the Family and Medical Leave Act (FMLA) for all private, state and local government employees, and some federal employees. Most Federal and certain congressional employees are also covered by the law and are subject to the jurisdiction of the U.S. Office of Personnel Management or the Congress.
FMLA became effective on August 5, 1993, for most employers. If a collective bargaining agreement (CBA) was in effect on that date, FMLA became effective on the expiration date of the CBA or February 5, 1994, whichever was earlier. FMLA entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons. The employer may elect to use the calendar year, a fixed 12-month leave or fiscal year, or a 12-month period prior to or after the commencement of leave as the 12-month period.
The law contains provisions on employer coverage; employee eligibility for the law's benefits; entitlement to leave, maintenance of health benefits during leave, and job restoration after leave; notice and certification of the need for FMLA leave; and, protection for employees who request or take FMLA leave. The law also requires employers to keep certain records.
FMLA applies to all:
public agencies, including state, local and federal employers, local education agencies (schools), and
private-sector employers who employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year and who are engaged in commerce or in any industry or activity affecting commerce — including joint employers and successors of covered employers.
EMPLOYEE ELIGIBILITY
To be eligible for FMLA benefits, an employee must:
work for a covered employer;
have worked for the employer for a total of 12 months;
have worked at least 1,250 hours over the previous 12 months; and
work at a location in the United States or in any territory or possession of the United States where at least 50 employees are employed by the employer within 75 miles.
LEAVE ENTITLEMENT
A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons:
for the birth and care of the newborn child of the employee;
for placement with the employee of a son or daughter for adoption or foster care;
to care for an immediate family member (spouse, child, or parent) with a serious health condition; or
to take medical leave when the employee is unable to work because of a serious health condition.
Spouses employed by the same employer are jointly entitled to a combined total of 12 work-weeks of family leave for the birth and care of the newborn child, for placement of a child for adoption or foster care, and to care for a parent who has a serious health condition. Leave for birth and care, or placement for adoption or foster care must conclude within 12 months of the birth or placement.
Under some circumstances, employees may take FMLA leave intermittently — which means taking leave in blocks of time, or by reducing their normal weekly or daily work schedule.
If FMLA leave is for birth and care or placement for adoption or foster care, use of intermittent leave is subject to the employer's approval.
FMLA leave may be taken intermittently whenever medically necessary to care for a seriously ill family member, or because the employee is seriously ill and unable to work.
Also, subject to certain conditions, employees or employers may choose to use accrued paid leave (such as sick or vacation leave) to cover some or all of the FMLA leave.
The employer is responsible for designating if an employee's use of paid leave counts as FMLA leave, based on information from the employee.
"Serious health condition" means an illness, injury, impairment, or physical or mental condition that involves either:
any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical-care facility, and any period of incapacity or subsequent treatment in connection with such inpatient care; or
Continuing treatment by a health care provider which includes any period of incapacity (i.e., inability to work, attend school or perform other regular daily activities) due to:
(1) A health condition (including treatment therefor, or recovery therefrom) lasting more than three consecutive days, and any subsequent treatment or period of incapacity relating to the same condition, that also includes:
treatment two or more times by or under the supervision of a health care provider; or
one treatment by a health care provider with a continuing regimen of treatment; or
(2) Pregnancy or prenatal care. A visit to the health care provider is not necessary for each absence; or
(3) A chronic serious health condition which continues over an extended period of time, requires periodic visits to a health care provider, and may involve occasional episodes of incapacity (e.g., asthma, diabetes). A visit to a health care provider is not necessary for each absence; or
(4) A permanent or long-term condition for which treatment may not be effective (e.g., Alzheimer's, a severe stroke, terminal cancer). Only supervision by a health care provider is required, rather than active treatment; or
(5) Any absences to receive multiple treatments for restorative surgery or for a condition which would likely result in a period of incapacity of more than three days if not treated (e.g., chemotherapy or radiation treatments for cancer).
"Health care provider" means:
doctors of medicine or osteopathy authorized to practice medicine or surgery by the state in which the doctors practice; or
podiatrists, dentists, clinical psychologists, optometrists and chiropractors (limited to manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice, and performing within the scope of their practice, under state law; or
nurse practitioners, nurse-midwives and clinical social workers authorized to practice, and performing within the scope of their practice, as defined under state law; or
Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts; or
Any health care provider recognized by the employer or the employer's group health plan benefits manager.
A covered employer is required to maintain group health insurance coverage for an employee on FMLA leave whenever such insurance was provided before the leave was taken and on the same terms as if the employee had continued to work. If applicable, arrangements will need to be made for employees to pay their share of health insurance premiums while on leave.
In some instances, the employer may recover premiums it paid to maintain health coverage for an employee who fails to return to work from FMLA leave.
JOB RESTORATION
Upon return from FMLA leave, an employee must be restored to the employee's original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.
In addition, an employee's use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave, nor be counted against the employee under a "no fault" attendance policy.
Under specified and limited circumstances where restoration to employment will cause substantial and grievous economic injury to its operations, an employer may refuse to reinstate certain highly-paid "key" employees after using FMLA leave during which health coverage was maintained. In order to do so, the employer must:
notify the employee of his/her status as a "key" employee in response to the employee's notice of intent to take FMLA leave;
notify the employee as soon as the employer decides it will deny job restoration, and explain the reasons for this decision;
offer the employee a reasonable opportunity to return to work from FMLA leave after giving this notice; and
make a final determination as to whether reinstatement will be denied at the end of the leave period if the employee then requests restoration.
A "key" employee is a salaried "eligible" employee who is among the highest paid ten percent of employees within 75 miles of the work site.
NOTICE AND CERTIFICATION
Employees seeking to use FMLA leave are required to provide 30-day advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable.
Employers may also require employees to provide:
medical certification supporting the need for leave due to a serious health condition affecting the employee or an immediate family member;
second or third medical opinions (at the employer's expense) and periodic recertification; and
periodic reports during FMLA leave regarding the employee's status and intent to return to work.
When intermittent leave is needed to care for an immediate family member or the employee's own illness, and is for planned medical treatment, the employee must try to schedule treatment so as not to unduly disrupt the employer's operation.
Covered employers must post a notice approved by the Secretary of Labor explaining rights and responsibilities under FMLA. An employer that willfully violates this posting requirement may be subject to a fine of up to $100 for each separate offense.
Also, covered employers must inform employees of their rights and responsibilities under FMLA, including giving specific written information on what is required of the employee and what might happen in certain circumstances, such as if the employee fails to return to work after FMLA leave.
UNLAWFUL ACTS
It is unlawful for any employer to interfere with, restrain, or deny the exercise of any right provided by FMLA. It is also unlawful for an employer to discharge or discriminate against any individual for opposing any practice, or because of involvement in any proceeding, related to FMLA.
ENFORCEMENT
The Wage and Hour Division investigates complaints. If violations cannot be satisfactorily resolved, the U.S. Department of Labor may bring action in court to compel compliance. Individuals may also bring a private civil action against an employer for violations.
OTHER PROVISIONS
Special rules apply to employees of local education agencies. Generally, these rules provide for FMLA leave to be taken in blocks of time when intermittent leave is needed or the leave is required near the end of a school term.
Salaried executive, administrative, and professional employees of covered employers who meet the Fair Labor Standards Act (FLSA) criteria for exemption from minimum wage and overtime under Regulations, 29 CFR Part 541, do not lose their FLSA-exempt status by using any unpaid FMLA leave. This special exception to the "salary basis" requirements for FLSA's exemption extends only to "eligible" employees' use of leave required by FMLA.
The FMLA does not affect any other federal or state law which prohibits discrimination, nor supersede any state or local law which provides greater family or medical leave protection. Nor does it affect an employer's obligation to provide greater leave rights under a collective bargaining agreement or employment benefit plan. The FMLA also encourages employers to provide more generous leave rights.
FURTHER INFORMATION
The final rule implementing FMLA is contained in the January 6, 1995, Federal Register. For more information, please contact the nearest office of the Wage and Hour Division, listed in most telephone directories under U.S. Government, Department of Labor.
MAINTENANCE OF HEALTH BENEFITS
EMPLOYER COVERAGE
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| Medical Records Confidentiality |
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Medical Records Confidentiality and Fire Fighters
Introduction
A critical aspect of the development and operation of an occupational medicine program is the confidentiality of medical information. The unauthorized release of personal details which may be recorded as part of a medical evaluation could cause legal and personal problems, either for the employee or for the employer and/or employer’s physician.
Examples of such important information are sexual practices, sexually transmitted diseases, a history of other contagious diseases such as tuberculosis, and personal habits.
Release of information such as HIV positivity can result in the loss of insurance benefits or employment for the employee. Such an event may in turn be grounds for a lawsuit against the employer and the employer’s physician. The Occupational Safety and Health Act (OSH Act), the Americans with Disabilities Act (ADA) and NFPA 1582 all address medical confidentiality and give guidance to employers and employees.
Federal Regulations
OSHA guidance is contained in 29 CFR 1910.20. The intent of this document is centered more on ensuring employee access to their own medical and exposure records, protecting the employer from release of confidential product information, and specifying how OSHA may gain access to medical records than on protecting the employee from unauthorized access by the employer. The main section relevant to a discussion of medical confidentiality is 1910.20 (e)(1)(i)and (ii): (i) Whenever an employee or designated representative requests access to a record, the employer shall assure that access is provided in a reasonable time (either apprise the employee of the record status or provide a record within 15 working days of the request), place, and manner... (ii) The employer may require of the requester only such information as should be readily known to the requester and which may be necessary to locate or identify the records being requested (e.g. dates and locations where the employee worked during the time period in question.)
The ADA addresses the issue of confidentiality more directly. It states that all information obtained as a result of medical evaluations be considered confidential and that employers may have access only to information regarding fitness for duty, necessary work restrictions, and appropriate accommodations. The only listed exceptions to this policy are that first aid and safety personnel should be informed of any conditions that may require emergency treatment, and that government officials investigating a complaint about medical examinations may have access to records. The ADA further states that all medical information must be maintained in separate files from other personnel information.
NFPA Guidance
NFPA 1582, while not a federal law with penalty provisions, does provide guidance to fire fighters’ physicians on confidentiality in section 2-6. Based in part on the provisions of the ADA, the section states that all information gathered as part of a medical evaluation is considered confidential, and that its release requires written consent from the employee. In addition, section 2-6.3 states: The fire department physician shall inform the fire department only as to whether or not the candidate or current fire fighter is medically certified to perform as a fire fighter. The specific written consent of the candidate or current fire fighter shall be required to release confidential medical information to the fire department.
Confidentiality and Data Storage
Ensuring medical confidentiality often requires more than just a mention of it in a written program; it requires careful, up-front planning of how data will be stored. Medical files are often stored at the physician’s office or in a department’s health and safety office. Physicians are required by their ethical codes to restrict access to all medical records. If the records location is physically separate from the fire department, a statement in the contractual arrangement stating that only employees or their authorized representatives may have access to records should be sufficient. When medical records are stored within a fire department, as in a health and safety office, care must be taken that all medical records are separated from any other personnel files and kept in a separate, locked cabinet. Only medical personnel (physicians, physician’s assistants or nurses) should have access to the cabinet. Care must be taken that only statements of ability to perform job duties are entered into personnel files. The use of computers to record and analyze health databases introduces additional opportunities for breaches of confidentiality. Care must be taken to remove personal identifiers such as name, ID numbers, birth dates, height and weights, or identifying marks or characteristics from such databases. Access to the database can also be limited by the use of passwords or locked computer disks. In cases where the computer is used for both individual and group records, care must be taken to prevent the linkage of the two databases.
Special Issues
Disclosure of HIV status and treatment for drug dependency in a federally sponsored program can only be released with special written consent. A written consent is usually required each time the information is disclosed and is limited to the party named on the disclosure. Likewise, the general waiver provided by worker’s compensation statutes may not apply to a patient’s HIV status. Physicians may be required to provide special written consent from a patient to release this information. Physicians should be aware of the specific legal stipulations regarding disclosure of HIV status and involvement in drug treatment.
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| Ryan White Exposure Act |
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Ryan White Comprehensive AIDS Resources Emergency (CARE) Act of 1990, Subtitle-B Emergency Response Employee Notification
Summary
The Ryan White CARE Act, Subtitle B contains provisions for the notification of emergency response personnel exposed to infectious diseases while attending, treating, assisting, or transporting a victim. The law provides for emergency response employee notification following a documented exposure to blood or body fluids, verified by the receiving hospital. It also provides for automatic notification of the emergency response employee if the transported patient is found to have infectious tuberculosis. This notification by the medical facility must be made to the designated officer in writing as soon as possible, but within a period not exceeding 48 hours after the receipt of the request by the designated officer. The designated officer will then inform the employee or employees involved of the determination. The guidelines include the infectious diseases covered and their mode of transmission. These diseases are only those which are life-threatening by carrying a substantial risk of death if acquired by a healthy, susceptible host, and the disease can be transmitted from person to person.
The diseases covered by the exposure notification guidelines as listed in Part II are:
The guidelines detail the manner in which medical facilities must determine whether emergency personnel were exposed to an infectious disease. If an emergency response employee believes he or she was exposed to blood or blood products of a patient during the performance of normal job duties, the designated officer must investigate the incident. If the designated officer determines through investigation an exposure was sustained then a signed written request can be submitted to the receiving hospital for notification of the patient’s infectious status. This must be performed within 48 hours. The designated officer must provide all collected information regarding the exposure to the medical facility. It is ultimately the receiving medical facility’s responsibility to verify and establish the possibility of an exposure to the emergency response employee. If the medical facility has found insufficient evidence exists to determine an exposure, they must notify the designated officer in writing within 48 hours. The designated officer may further pursue the determination of an exposure through a request of the public health officer in the community. If warranted, the public health officer may resubmit the request to the medical facility. This act does not authorize or require a medical facility to test any such victim for any infectious disease, nor can this act be construed to authorize any emergency response employee to fail to respond, or to deny services, to any victim of an emergency. States that already have notification laws that are at least as comprehensive as the federal notification law must apply for a waiver from the federal government. If the state does not apply for a waiver, the federal notification law will be used in place of the state notification law. Subtitle B of the Ryan White CARE Act applies to all emergency response employees (fire fighters, paramedics, and EMTs) throughout the United States. The geographic location of an exposed ERE (such as within an OSHA state plan state) does not affect the applicability of this law.
Action Items
• Each employer of emergency response employees in the state must have selected one designated officer responsible for coordinating requests for and responses of notification, investigating exposure incidents to obtain sufficient information, and who is bound to rules of confidentiality regarding the infectious status of the emergency responder and the victim. In other words, each department, as employer, must have a designated officer. The local should take an active role in recommending to the fire department a suitable individual for this position.
• The receiving medical facilities must have in place procedures for responding to written requests from designated officers regarding the determination of exposure to the diseases covered under this Act.
• The receiving medical facilities must have in place procedures for automatically notifying the designated officer of any emergency responders who have transported a victim found to have infectious pulmonary tuberculosis. This notification must be provided within 48 hours of determining the victim’s tuberculosis status.
• Your department must have in place procedures by which you, as an emergency response employee, can make requests to the designated officer regarding a suspected exposure incident. In addition, procedures must be in place by which the designated officer can properly handle all such requests regarding exposure.
• Your local public health agency must also have in place procedures for handling requests for exposure incident evaluation from designated officers.
• Your state public health officer should have received the list of potentially life-threatening diseases and the exposure guidelines for such diseases from the Secretary of Health and Human Services.
• Your local is entitled to the list of potentially life-threatening diseases and exposure guidelines.
• Your state or municipality must be aware of the procedures adopted by the Secretary of Health and Human Services for handling allegations of violations of the exposure notification process.
Infectious pulmonary tuberculosis
Hemorrhagic fevers
Hepatitis B
Meningococcal disease
HIV, including AIDS
Plague
Diphtheria
Rabies
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Page Last Updated: Mar 27, 2010 (16:42:31)
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