Oregon BOLI Files Multiple Proposed Rule Changes

The Oregon Bureau of Labor and Industries has filed several proposed rules pertaining to labor and employment law, and is inviting public comment.  Click on the title of each to read the proposed rule:

  • Religious worship, child support obligors, physical accommodations for eligible disabilities.  The proposed rules would implement statutes:
    • requiring employers to reasonably accommodate wearing of religious clothing and leave for religious practices (SB 786)
    • making discrimination by employers against child support obligors an unlawful employment practice (ORS 25.424(3))
    • requiring places of public accommodation to provide access to employee toilets for customers with eligible medical conditions (SB 277)
    • requiring transient lodging of 175 or more units to provide lifts for individuals with disabilities (HB 3256). 
  • Compliance with the ADAAA, preferences for veterans, and discrimination on the basis of uniformed service.  The proposed rules and amendments would implement:
    • amendments to statutes providing for employment preference for veterans.
      (HB 2510)
    • amendments to disability discrimination statutes to conform them to the
      federal Americans with Disabilities Act Amendments Act of 2008 (ADAAA) (SB 874)
    • statutes prohibiting discrimination in employment on the basis of uniformed
      service (HB 3256).
  • Home Health Agencies, Wage Security Fund.  The proposed rule amendment would:
    • implement HB 2595, enacted in 2009, which prohibits home health agencies and hospice programs from paying nurses providing home health or hospice services on a per-visit basis
    • clarify conditions to be met in qualifying for payments from the Wage Security Fund and delete obsolete references in the agency’s insurance cancellation notification rules.
  • Employment of Minors.  The proposed rule amendment would:
    • implement House Bill (HB) 2826 enacted in 2009, which removes the requirement that employers obtain a special permit before employing a minor under 16 years of age until 7 p.m. (9 p.m. between June 1 and Labor Day).
    • conform current language in the rules to the provisions of HB 2826, which shifts authority for the issuance of agricultural overtime permits from the Wage and Hour Commission to the Commissioner of the Bureau of Labor and Industries
    • clarify that minors may not be employed to operate or assist in the operation of power-driven farm machinery unless the employer has obtained an employment certificate as required and the minor has received required training in the operation of such machinery.
  • Rest and meal periods.  The proposed rule amendment would address the provision of rest and meal periods to employees, including factors to be considered in determining when an employee is prevented from receiving regularly scheduled meal and rest periods.
  • Prevailing Wage.  The proposed rule amendments would make permanent the temporary rules currently in place regarding prevaling wage rates. 

Click here for more information on BOLI's proposed rule changes, including information on how to make public comment and the deadlines for doing so. 

New Website for Disability Information

The Department of Labor's Office of Disability Employment Policy today launched a new website that may be of use to employers seeking information on how to accommodate a disabled worker.  At www.disability.gov an employer can research the applicable law and regulations, get ideas for appropriate reasonable accommodations, and locate additional resources.  For example, clicking here will take you to information about accommodating deaf and hearing impaired workers.   And here is useful information about tax incentives for complying with the ADA.  The new site offers a myriad of social networking capabilities including a Twitter feed, RSS feeds and a blog.   The site also includes a handy multi-state guide which employers could find very useful as they work to comply with all applicable federal and state disability laws.  

Another Circuit Court Agrees: ADA Amendments Act is Not Retroactive

Congress did not intend for the ADA Amendments Act (ADAAA) to be retroactive, the Court of Appeals for the District of Columbia ruled yesterday, and applied pre-ADAAA law to dismiss an employment discrimination claim.  Click here to read the court's decision in Lytes v. DC Water and Sewer Authority

Congress passed the ADAAA in 2008 and the new law became effective January 1, 2009.  The ADAAA significantly expanded the definition of "disabled" under the Americans with Disabilities Act (ADA).  The Lytes court reviewed the legislative history of the ADAAA, and could not find in that history any indication that Congress intended the law to apply retroactively.  The court also noted that Congress signaled its intend that the law not apply retroactively when it gave the ADAAA a specific effective date. 

The DC Circuit joins the Fifth Circuit Court of Appeals, which also ruled in EEOC v. Agro Distribution, LLC that the ADAAA is not retroactive.  Notably, the Department of Labor has also taken the position that the law should not apply retroactively.  And, at least for now, it appears that the Equal Employment Opportunity Commission agrees

Lytes and Agro Distribution are important cases for employers defending ADA claims; they make clear that for claims arising before January 1, 2009, pre-ADAAA standards of what constitutes a "disability" are likely to apply.  For more information on the ADAAA, click here for the Stoel Rives World of Employment's ADAAA coverage

Bus Driver's "Shy Bladder Syndrome" a Disability

A school bus driver who was demoted after his "shy bladder syndrome" left him unable to comply with his employer's drug testing procedures may proceed with claims under the Americans with Disabilites Act (ADA) according to a recent ruling from a Tennessee federal court.  Click here to read the full opinion in Melman v. Metropolitan Government of Nashville.

In Melman, the plaintiff was required to submit to random drug tests.  During two tests he could not provide an "adequate" urine sample, and explained that he could not because of a "shy bladder."  A urologist diagnosed the plaintiff with paruresis (aka shy bladder syndrome) and offered to perform the urine sampling via catheterization.  The employer  declined that offer.  Instead, it placed the plaintiff on unpaid leave, required him to attend a drug rehabilitation program at his own expense, and demoted him to a position as a bus monitor.  (Notably, the plaintiff ultimately did provide a negative sample obtained via catheter.)  The court denied the employer's motion to dismiss, holding that shy bladder syndrome substantially limited the plantiff's major life function of eliminating bodily waste.

Employers with drug testing programs should take note:  employees who are unable to comply with standard drug testing procedures may have a qualifying disability, especially given the more liberal standards under the ADA Amendments Act.  Employers should not shy away (okay, bad pun) from engaging in the interactive process with the employee to find ways that the employee can comply with the procedures - such as providing a sample through catheterization.  The International Paruresis Association also provides suggestions for accommodating shy bladder syndrome. 

Oregon Moves to Keep Its Disability Law in Tune With the ADA

The Oregon Legislature is taking steps to keep Oregon's disability discrimination laws consistent with the federal Americans with Disabilities Amendments Act (ADA).  Last week, Senate Bill 874 passed out of the Senate Judiciary Committee on a 4-1 vote.  SB 874 will amend existing Oregon disability law to adopt the changes made to the ADA in 2008 through the ADA Amendments Act (ADAAA).

SB 874 contains four key changes to make Oregon law consistent with federal law:

  1. prohibiting discrimination against individuals “regarded as” disabled whether or not their perceived impairment is perceived to limit a major life activity;
  2. construing the term "disability" in favor of broad coverage;
  3. considering an impairment that is episodic or in remission to be a disability if it would substantially limit a major life activity when active; and  
  4. determining whether an impairment substantially limits a major life activity without regard to the effects of mitigating measures except ordinary eyeglasses.

Oregon has, with a few exceptions, consistently kept its disability discrimination laws consistent with the ADA.  Because of that, we expect SB 874 (or something very similar) to become law.  The Stoel Rives World of Employment will continue to keep you updated.

EEOC Deadlocks Over ADA Amendments Act Rules

The Equal Employment Opportunity Commission (EEOC) split yesterday over whether to approve a notice of proposed rulemaking on the ADA Amendments Act (ADAAA).  The commissioners voted 2-2 on whether to approve a set of proposed rules that had been drafted by EEOC's Office of Legal Counsel.  Under the EEOC's rules, a tie vote is the same as a "no," meaning the proposed rules will not be presented to the public for comment.  (For those of you suspecting political motives, you could be right:  the two Republican Commissioners voted in favor of releasing the rules, and the two Democrats voted no.) 

What does this mean?  The ADAAA will go into effect January 1, 2009 without any interpretive regulations to help us navigate the new law.  The ADAAA requires the EEOC to create new regulations, but does not set any deadlines.  When the EEOC does make new regulations, it will publish them and allow public comment for 60 days before the regulations may take effect.  And if the Commissioners remain deadlocked, it make take an appointment from President-Elect Obama to break the tie. 

For more information on the ADAAA, check out the Stoel Rives World of Employment's ADAAA Archives

Stoel Rives Offers ADA Amendments Act Seminars in Boise, Portland and Seattle

The ADA Amendments Act (ADAAA) will become law on January 1, 2009, substantially expanding the Americans with Disabilities Act, and increasing employers' obligations to accommodate disabled employees.  To help you get ready to comply with this important new law, Stoel Rives is offering free ADAAA seminars in its Seattle, Portland and Boise offices on December 2, 2008.  To register, see the links below:

For more information on the ADAAA from the comfort of your desk (or easy chair, or beach if you have an Iphone), check out the Stoel Rives World of Employment's ADAAA coverage here

President Bush to Sign ADA Amendments Act

The White House yesterday confirmed that President Bush will sign the ADA Amendments Act ("ADAAA") into law.  The White House issued the following statement, which can be accessed here:

"The Americans with Disabilities Act of 1990 is instrumental in allowing individuals with disabilities to fully participate in our economy and society, and the Administration supports efforts to enhance its protections. The Administration believes that the ADA Amendments Act of 2008, which has just passed Congress, is a step in that direction, and is encouraged by the improvements made to the bill during the legislative process. The President looks forward to signing the ADAAA into law."

To read the final version of the law, click here.

The law will go into effect January 1, 2008.  The House of Representatives yesterday passed the version of the bill previously approved by the Senate, which included some employer-friendly revisions designed to reach a compromise.  For example, the new version removed a list of "per se" disabilities, and consistent with current law places the burden of proving a disability on the employee.  However, the new law will overturn the U.S. Supreme Court's decision in Sutton v. United Airlines that mitigating measures must be considered in determining whether an individual is disabled, and the Court's decision in Toyota v. Williams, which takes a restrictive view of what constitutes a substantial limitation in the major life activity of working. 

The ADAAA will make it much more difficult for employers to take the position that an individual is not "substantially limited in a major life activity" and therefore not disabled under the ADA.  More requests for accommodation (and more lawsuits) are expected to follow.  Watch the Stoel Rives World of Employment for continuing updates as the law goes into effect. 

ADA Amendments Act Passes House - Next Stop White House

The ADA Amendments Act ("ADAAA") was passed by the U.S. House of Representatives earlier today.  For more information, read the House's Press Release.  As reported previously by the Stoel Rives World of Employment, the same version of the bill was recently approved by the U.S. Senate. 

The next stop for the ADAAA is the White House.  President Bush previously indicated he has some misgivings about the ADAAA, but given the broad bipartisan support that carried the bill through Congress, he is expected to sign it into law.  (Keep in mind, it was George H.W. Bush that signed the original ADA.) 

Assuming it becomes law, the ADAAA will greatly broaden the scope of the ADA.  Some highlights of the ADAAA:

  • Reverses several Supreme Court decisions that have seemingly narrowed the coverage of the ADA, restoring what the drafters perceive to be the original Congressional intent
  • Broadens the definition of disability, including what it means to be “substantially limited in a major life activity
  • Clarifies that accommodations are not be required if an individual is merely "regarded as” having a disability
  • Prohibits the consideration of mitigating measures such as medication, prosthetics, and assistive technology, in determining whether an individual has a disability
  • Provides coverage to people who experience discrimination based on a perception of impairment regardless of whether the individual experiences disability

The Stoel Rives World of Employment will let you know as soon as we receive word on what the White House intends to do.  Stay tuned!

ADAAA Update: Senate Approves ADA Amendments Act

The U.S. Senate yesterday approved the ADA Amendments Act (ADAAA) by unanimous consent, making enactment of the ADAAA likely.  As the Stoel Rives World of Employment previously reported, the ADAAA would overturn several U.S. Supreme Court decisions that many critics claim have too narrowly interpreted the Americans with Disabilities Act's coverage.  To read the Senate version of the ADAAA, click here

The ADAAA passed the House of Representatives in June by a 402-17 vote.  There are minor differences between the House and Senate versions of the bill, and the House is expected to adopt the Senate version on September 17.  After that, it's on to President Bush to sign the bill, which he is expected to do.  Keep watching the Stoel Rives World of Employment for further updates. 

Major Changes to ADA Coming

Here's something to be watching:  a bill currently winding its way through Congress is likely to bring significant changes to the Americans with Disabilities Act.  The bill, knows as the ADA Amendments Act ("ADAAA"), will greatly broaden the scope of the ADA. 

Some highlights of the ADAAA:

  • Reverses several Supreme Court decisions that have seemingly narrowed the coverage of the ADA, restoring what the drafters perceive to be the original Congressional intent
  • Broadens the definition of disability, including what it means to be “substantially limited in a major life activity
  • Creates a list of per se "major life activities"
  • Clarifies that accommodations are not be required if an individual is merely "regarded as” having a disability
  • Prohibits the consideration of mitigating measures such as medication, prosthetics, and assistive technology, in determining whether an individual has a disability
  • Provides coverage to people who experience discrimination based on a perception of impairment regardless of whether the individual experiences disability

The ADAAA passed the House of Representatives on June 25, 2008 by a vote of 402-17.  The bill was introduced to the Senate on August 1, and reports are that at least 70 Senators have vowed to support the bill.  A vote is expected when the Senate reconvenes in September.  No word yet from the White House on whether President Bush will sign the bill into law, but it seems to have a veto-proof majority. 

To read an official summary of the ADAAA, click here.  To read the full text of the current bill, click here.  Stay tuned to the Stoel Rives World of Employment for updates on this landmark legislation.