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Employment and Labor Law for Contractors

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Employment and Labor Law for Contractors

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    1. Employment and Labor Law for Contractors

    2. Family & Medical Leave Act (FMLA) Sally Griffith Cimini, Esq.

    3. Family & Medical Leave 50 or more employees At one location or Cumulatively for locations w/n 75 mile radius Employees must have Completed one year of employment and 1,250 hours of employment

    4. Family & Medical Leave Eligible employees receive: Up to 12 weeks of unpaid leave / benefits continuation during any 12-month period

    5. Family & Medical Leave FMLA leave is for: Care of Newborn/adopted/foster child Care of spouse, child, parent who is suffering from a serious health condition Employee’s own serious health condition which prevents employee from performing job

    6. Family & Medical Leave Serious health condition includes: Any period of incapacity/treatment connected with inpatient (i.e. overnight stay) in hospital;

    7. Family & Medical Leave Serious health condition includes: Continuing treatment by health care provider that includes any period of incapacity due to: Health condition lasting three consecutive days or more

    8. Family & Medical Leave Serious health condition includes: Continuing treatment by health care provider that includes any period of incapacity due to: any subsequent treatment for condition being treated by a health care provider two or more times or with continuing regimen of treatment

    9. Family & Medical Leave Serious health condition includes: Pregnancy or prenatal care Chronic serious health condition which continues over an extended period of time (e.g., asthma, diabetes) Permanent or long-term condition for which treatment may not be effective (e.g., stroke, terminal cancer) Absence to receive multiple treatments (e.g., chemotherapy, radiation)

    10. Family & Medical Leave FMLA also provides for: Reduced work schedule leave or Intermittent leave Intermittent leave is not available under FMLA for care of newborn, adopted or foster child Employer can require employee requesting intermittent leave to transfer temporarily to alternative position with equivalent pay and benefits

    11. Family & Medical Leave Notice requirements: Can require 30 days advance notice when possible (e.g., birth, adoption, foster care) Where advance notice not possible, still have to provide time off

    12. Family and Medical Leave Coordination with other policies: Can require employees to use all other paid time off benefits concurrently (e.g., STD, PTO, vacation, personal leave, sick days, etc.) Can’t count FMLA leave against a no-fault absenteeism policy

    13. Family & Medical Leave Can require employees to provide: Medical certification supporting leave Periodic recertification (in most cases) Second or third medical opinions (at the employer’s expense) Periodic reports during leave regarding employee’s status and intent to return to work

    14. Family & Medical Leave At the conclusion of the 12 weeks: Job restoration to position when leave commenced or Restoration to equivalent position with equivalent pay, benefits, terms and conditions Only exception is where job wouldn’t have been there to return to for other reason (e.g., business shut-down, layoff, etc.)

    15. Family & Medical Leave FMLA Poster Written policy required Detailed policy to cover all bases Include in collective bargaining agreement

    16. Questions

    17. Who Invited OSHA? What to do when the OSHA inspector shows up John McCreary, Jr.

    18. Who is Covered? Not based on volume of business (unlike most federal regulatory statutes). Any employer affecting interstate commerce with one or more employee is subject to OSHA. 29 U.S.C. § 653; 29 C.F.R. § 1975.4(a).

    19. Employer with “control” over employees is responsible for safety compliance. IMPORTANT: This means that on a multi-employer site, such as a construction site, you could be responsible for the safety compliance of your subcontractors if there is joint supervision or control! See, Lina Electric Corp., 5 OSHC (BNA) 1890 (Review Commission, 1977); Schnabel Associates, Inc., 10 OSHC (BNA) 2109 (Review Commission, 1982). Who is Covered? continued

    20. Who is Covered? continued OSHA Field Operations Manual sets forth the enforcement policy “The FOM states that, on multi-employer worksites, citations shall be issued to employers whose employees are exposed to hazards, unless such an employer meets all of the conditions for a legitimate defense. If an employer meets all the conditions for a legitimate defense, he or she will not be cited. In addition, if employees of more than one employer are exposed, citations will normally be issued to each of those employers, the employers responsible for correcting or ensuring the correction of the conditions, and/or the employer causing the conditions. If all employers on a worksite with employees exposed to a hazard meet the conditions for a legitimate defense, then the citation shall be issued to only the employers who are responsible for creating the hazard and/or who are in the best position to correct the hazard or to ensure its correction. In such circumstances the controlling employer and/or hazard-creating employer shall be cited even though no employees of those employers are exposed to the hazard. The only exception is when the General Duty Clause is used to support a violation. In such cases, only employer(s) whose own employees are exposed to the hazard may be cited.” Source: OSHA Standard Interpretation, Construction Multi-employer Work Sites, 8/31/90.

    21. Contract documents should spell out responsibilities for safety and contain appropriate indemnity arrangements. See, e.g., 29 C.F.R. § 1926.16(a): “Thus, for example, the prime contractor and his subcontractors may wish to make an express agreement that the prime contractor or one of the subcontractors will provide all required first-aid or toilet facilities, thus relieving the subcontractors from the actual, but not any legal, responsibility ….” Who is Covered? continued

    22. What is Covered? The General Duty Clause -- All employers are subject to the general duty to furnish “employment and place of employment … free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654. This is the catch-all obligation, used when no specific standard exists. A “recognized hazard” is one that the employer knows or should know exists, based on actual knowledge or on the standard of knowledge in the relevant industry (what does the “reasonable contractor” recognize as a hazard?). Safety measures to abate the hazard must be “feasible.” Feasibility is not necessarily determined by industry standard approaches to safety, but can be based on the opinion of safety or health experts familiar with the relevant industry (opportunity for a “moving target” of safety compliance).

    23. Duty to Comply with Occupational Safety and Health Standards Secretary of Labor promulgates standards, giving notice and opportunity for comment by interested parties. Construction Industry Standards are found at 29 C.F.R. § 1926. Other, permanent standards, e.g., Asbestos, 29 C.F.R. § 1910.1001; Confined Space Entry, id. § 1910.146; Explosives and Blasting Agents, id. § 1910.109, may also be applicable, depending on the circumstances. What is Covered? continued

    24. Recordkeeping Who? 10 or fewer employees “at all times during the last calendar year” – no need to keep OSHA injury and illness records, except reports of “any workplace incident that results in a fatality or the hospitalization of three or more employees.” 29 C.F.R. § 1904.1(a). More than 10 employees “at any time during the last calendar year” – required to keep OSHA injury and illness records. 29 C.F.R. § 1904.1(b). Note that all employees – temporary, seasonal, project -- are counted in determining employment level: “To determine if you are exempt because of size, you need to determine your company’s peak employment during the last calendar year.” 29 C.F.R. § 1904.1(c). What is Covered? continued

    25. What? Fatalities, injuries and illnesses that are Work related, and Are new cases that Meet the general or specific recording criteria. General recording criteria: death, days away from work (lost time), restricted work or transfer to another job, medical treatment beyond first-aid, or loss of consciousness. 29 C.F.R. § 1904.7(a). Specific recording criteria address needlestick and sharps injuries (primarily in medical professions), 29 C.F.R. § 1904.8; medical removal under OSHA standards (such as the lead standard), id. § 1904.9; occupational hearing loss under § 1904.10; and work-related tuberculosis cases, § 1904.11. What is Covered? continued

    26. How? All fatalities MUST be reported to OSHA within 8 hours of death. 29 C.F.R. § 1904.39. Each work location must maintain required records. Use OSHA Form 300 to record injuries: What is Covered? continued

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