It has become an annual New Year’s tradition in California -- employers getting up to speed on a host of new employment laws that will affect them in the coming year. The California Legislature was busy in 2013 imposing new burdens on employers for 2014 and beyond. We previously blogged about an increase in the state minimum wage and a statutory clarification of the definition of sexual harassment, but those new laws are only the tip of the iceberg. Here’s our annual summary of the most important new laws affecting California employers.
- Expanded Whistleblower Protection (SB 496): California law already prohibits employers from retaliating against employees who report the employer’s violation of state or federal law to a government or law enforcement agency. SB 496 expands whistleblower protection in several ways. First, it prohibits retaliation against internal whistleblowers, so an employee who reports suspected violations within the company is entitled to whistleblower protection to the same extent as an employee who reports violations to a government agency or law enforcement. Second, SB 496 provides whistleblower protection for reports of violations of local ordinances and regulations, as well as state and federal statutes. Third, SB 496 provides whistleblower protection to employees whose duties include the disclosure of legal compliance issues, which overturns case law excluding such employees from whistleblower protection.
- Immigration-Related Practices (AB 263/SB 666): AB 263 and SB 666 create a variety of new anti-retaliation provisions, most (but not all) of which relate to immigration-related practices. These bills provide:
- It is unlawful for an employer to engage in “unfair immigration-related” practices against an employee in retaliation for exercising a legal right. “Unfair immigration-related practices” include requesting more or different documents than are required under federal immigration law or refusing to honor documents that, on their face, reasonably appear to be genuine; using E-Verify to check the employment authorization status of a person at a time or in a manner not required under federal law; and threatening to file or filing a false police report or threatening to contact or contacting immigration authorities. An employee’s protected activity under the new law includes filing a complaint or informing any person of an employer’s violation of the Labor Code, seeking information regarding whether an employer is in compliance with the Labor Code, and informing a person of his or her potential rights under the Labor Code or assisting another person in asserting those rights. The new law creates a rebuttable presumption that an adverse action taken within 90 days of the employee exercising a protected right is retaliatory. Violation of the law can result in an injunction against the employer, damages, penalties and attorneys’ fees, and the suspension or revocation of business licenses held by the employer.
- Employers are prohibited from taking adverse action against employees for updating their personal information, unless the updates are directly related to the job. It appears that this part of the new law is intended to prohibit the termination of an employee who provided a false social security number or other information at the time of hire, but who later receives a valid work permit or social security card.
- It is unlawful for an employer to retaliate against an employee for complaining that the employee is owed unpaid wages. Violation of this provision carries a civil penalty of up to $10,000 per occurrence.
- It is not necessary for employees to exhaust administrative remedies through the Labor Commissioner in order to sue the employer for violation of any law over which the Labor Commissioner has jurisdiction.
- Discrimination Based on Military or Veteran Status (AB 556): AB 556 adds “military and veteran status” to the list of categories protected from employment discrimination under the California Fair Employment and Housing Act. The bill defines “military and veteran status” to include members or veterans of the U.S. Armed Forces, U.S. Armed Forces Reserve, U.S. National Guard and California National Guard.
- Recovery Periods for Outdoor Workers (SB 435): State law imposes a penalty of one hour’s pay for each day that an employee is required to work during a meal or rest period. SB 435 expands this penalty to situations in which an employer fails to provide a “recovery period” that is otherwise required by law. A “recovery period” is defined as a cool down period afforded an employee to prevent heat illness. Employers with outdoor employees should confirm they are in compliance with CalOSHA regulations regarding heat illness prevention, including providing access to shade and allowing employees to take a cool down period of at least five minutes when the temperature exceeds 85 degrees Fahrenheit.
- Victims of Domestic Violation, Sexual Assault and Stalking (SB 400): Under existing law, employers are prohibited from taking adverse action against employees who are victims of domestic violence or sexual assault who need time off in connection with court proceedings or to seek medical attention as a result of these crimes. SB 400 extends these protections to employees who are victims of stalking. The new law also requires employers to provide reasonable accommodations for such victims. These requirements are the same reasonable accommodation requirements and procedures that exist under California’s disability discrimination laws.
- Limitation of Employer’s Recovery of Attorneys’ Fees in Wage Cases (SB 462): Attorneys’ fees can be recovered by the prevailing party when an employee brings an action for non-payment of wages. SB 462 provides that employers who prevail in these cases can only recover attorneys’ fees only if the court finds that the employee brought the action in bad faith. SB 462 does not define “bad faith” and makes recovery of attorneys’ fees much more difficult for employers.
- San Francisco Employers - Flexible Work Schedules: A new San Francisco ordinance requires employers of 20 or more employees to consider an employee’s request for flexible work arrangements to accommodate caregiver responsibilities. When an employee makes a written request for a flexible work arrangement, the employer must meet with the employee within 21 days of the request, and within 21 days after the meeting the employer must provide a written response confirming or denying the request. If the employer denies the request, it must provide a bona fide business reason for the denial. An employee whose request was denied can file a complaint with the San Francisco Office of Labor Standards Enforcement, which has the authority to investigate whether the employer complied with the ordinance’s procedural requirements.
Top 25 FAQs Employers May Have About Implementing the New Portland Paid Sick Leave Ordinance in 2014
In March 2013, the Portland City Council passed the new Portland Paid Sick Leave Ordinance requiring all but the smallest employers to provide paid sick leave (“PSL”) for employees who work within city limits. On November 1, the city released final regulations interpreting the Ordinance and fleshing out some of the requirements in more detail. Also, the original Ordinance was amended in early October while the regulations were being finalized. The law becomes effective January 1, 2014, so employers with employees in Portland need to review relevant policies to confirm they comply with the new ordinance.
Many of the Ordinance’s requirements will look familiar to employers used to dealing with other leave laws, particularly the Oregon Family Leave Act (“OFLA”). But this Ordinance has its own twists, many of which result from the fact that it’s not a state-wide law like OFLA but instead only applies to employees within Portland. This list of 25 frequently asked questions (“FAQ”) covers many of the the questions employers might have as they work through understanding the Ordinance and update their policies to ensure compliance. Yes, there are really 25 of them.
1. What does the Ordinance require in 20 words or less?
Employers with six or more employees must allow employees in Portland at least 40 hours of PSL per year. That’s 19 words! But of course, there’s a lot more to it than that, so read on.
The “Which," "What," and "Who” – Which Employers Are Covered and What PSL Do Employees Get?
2. Which employers are covered by the Ordinance?
The short answer is that all employers are "covered" by the Ordinance. Employers with six or more employees are required to provide PSL (i.e., paid sick leave) to its Portland employees. Smaller employers with less than six employees are also covered, but must only provide unpaid sick leave. Note that for the purposes of counting whether the employer meets the six employee minimum required for PSL, all of the company's employees are counted, including employees not located in Portland, even though only employees in Portland are entitled to leave.
This FAQ doesn’t address separate requirements for those smaller employers further—let us know if you’re one of them and have a question about it.
3. Does that include non-profit or government employers?
Yes and no. The U.S. government and state of Oregon are specifically exempted from the Ordinance. But there’s no exception for non-profits—they’re covered and are required to provide PSL.
4. How much PSL must covered employers provide?
All employees must accrue at least one hour of PSL for every 30 hours of work performed within the city of Portland, up to a maximum of 40 hours per year. PSL is only accrued for hours actually worked (including overtime hours), but not for time spent on employer-approved leave or other non-work time. Note that it is the location of where the employee works that is important, not where the employer is located. If an employer is based in Portland but also has employees outside the city, it is only required to provide PSL for its Portland employees, not those who work outside of Portland.
5. Are exempt salaried employees also entitled to PSL?
Yes. All employees are entitled to leave and accrue PSL at the same rate. Full-time exempt salaried employees are presumed to work 40 hours per week for accrual purposes; salaried employees working less than full time accrue based on their regularly scheduled workweek.
6. Are part-time or temporary employees also required to accrue PSL?
Yes! Again, all employees must accrue PSL at the required rate of one hour of PSL per 30 hours of work, and the Ordinance and regulations specifically state that includes temporary and part-time workers. Temps placed with an employer through a staffing agency are considered employees of the staffing agency for purposes of the Ordinance, and the staffing agency will be responsible for providing required PSL.
Employers should watch out for this one! In many companies part-time employees working less than a specific number of hours (e.g., 20 hours per week or less) are often excluded from some benefits including paid leave or vacation plans. Those employees will need to accrue PSL under the Ordinance.
7. My company already provides paid sick leave or paid time off (“PTO”)—do we need to provide more PSL now?
Not necessarily. Employers with preexisting paid sick leave or PTO policies at least as generous as what the Ordinance requires are considered to already comply with the Ordinance and are not required to provide additional paid leave. Watch out for hidden gotchas, though! To fall within this carve-out, the employer’s current paid sick leave or PTO policy should be at least as generous as the Ordinance in every respect—e.g., same rate of accrual, available to all employees (including part time and temporary), can be used for the same purposes, etc.
8. I want to provide more PSL than what the Ordinance requires. Is that OK?
Of course. Like OFLA and most other laws regulating leave, employers may always provide paid leave more generous than what the Ordinance requires. For example, to save yourself the administrative hassle of trying to track accrual and eligibility issues under the Ordinance, you may wish to just give all employees 40 hours of PSL each year--you can do that. But only the 40 hours under the Ordinance and accrued at the required rate will be considered “protected” PSL under the law.
9. Can employees carry over unused but accrued PSL from year to year?
Yes, up to 40 hours. Carrying over PSL does not increase the total amount of PSL an employee may use in a year, however. The maximum an employer is required to allow an employee to use is 40 hours per year, regardless of how much is carried over from the previous year.
10. Does the employer need to pay out employees for accrued unused sick leave if they’re terminated?
No, but you can if you want to. The general rule in Oregon is that employers must pay out accrued unused paid time off (sick leave, vacation, PTO, etc.) if its policies state that it will do so, but it’s not required. The Ordinance operates in the same way.
11. My current employees have already accrued PSL or equivalent PTO—is that automatically converted to PSL protected under the Ordinance?
No. Employees only begin to accrue PSL starting on January 1, 2014, so any already-accrued PSL is not considered “protected” PSL required by the Ordinance.
12. Do new employees start accruing leave from day one?
Yes. While employees only become “eligible” to use PSL later on during employment (see # 16, below), all Portland employees begin accruing PSL immediately when they start working.
13. I have employees who move around the Portland area and its suburbs and only work sometimes within the city of Portland. Do those employees also accrue PSL?
Yes, but only for work actually performed within the Portland city limits. This will be straightforward for most employees, who usually work primarily at one location and will accrue PSL for all the hours they work. But other employers with employees who work both in and out of Portland may want to track work time in Portland separately from work time in other locations for the purposes of PSL accrual.
This may be one of the most administratively difficult aspects of complying with the Ordinance for employers that (1) don’t already provide equivalent PSL and (2) have employees who occasionally move from location to location. Those types of employees could include delivery truck drivers who cover both the City and surrounding areas, construction workers who move to different job sites throughout the year, retail workers who may work one day at a store in Portland but the next day at a store in Beaverton, or office workers from a suburban worksite who travel to a Portland office occasionally for meetings. Only those hours spent working in Portland count toward accrual of PST.
14. My company is located outside of Portland, but I have employees who live in Portland and telecommute to work. Do they get PSL under the Ordinance?
Yes. Again, the physical location of the employee is what is important for accrual purposes, and any employee accrues PSL for hours worked within the city limits of Portland. That includes anyone who telecommutes from a location in Portland (i.e., their home) for an employer located outside the city. On the other hand, if an employee who lives in the suburbs and commutes to work in Portland chooses to work from home one day, those hours working from home are not within the Portland city limits and therefore probably don't count towards PSL accrual.
15. My employees’ sick leave is governed by a collective bargaining agreement (“CBA”) between the company and their union—what should I do?
Unlike similar Ordinances enacted recently in Seattle and San Francisco, the Portland Ordinance and related regulations don’t address or provide a carve-out for CBAs. This means that even unionized employers must comply. Provided that the leave provision in the CBA is at least as generous as what the Ordinance requires, you need not do anything since employers that already provide equivalent PSL are already in compliance (see #7 above). If it’s not, however, you may need to make sure employees get the required PSL. Note that before implementing those changes you should plan to discuss them with the union, as leave policies are usually considered a “mandatory subject of bargaining.” Also, CBAs often don’t cover all employees (such as administrative or managerial employees), so make sure those other employees not covered by the CBA are also provided PSL as required by the Ordinance.
The “When” and “How”: When Can Employees Use Accrued PSL?
16. Can employees begin using PSL immediately as soon as they accrue it?
No, at least at the beginning of employment. While employees begin accruing PSL immediately when they begin working (after January 1, 2014), they aren’t immediately “eligible” to use it. Employees become “eligible” to use accrued PSL only after they have worked at least 240 hours (six weeks at full-time work) within the city of Portland after January 1, 2014, and have been employed for at least 90 days. (Note that if you allow employees to take leave during this initial 240 hour / 90-day period, it likely will not count against the employee's PSL accrual under the Ordinance.) After the 240-hour and 90-day thresholds are reached, however, employees can use accrued PSL as soon as they accrue it.
Similar to OFLA / FMLA, companies can define which type of “year” to use for the purposes of tracking both eligibility and accrual. A year can be any twelve month period that is normally used for calculating wages and benefits, including calendar years, fiscal years, or the year running from the employee’s start date. While the Ordinance does not specifically allow for “rolling” leave years based on when employees actually use PSL (similar to OFLA / FMLA), that would probably also be allowed.
17. Can employees who only sometimes work in Portland use PSL for any absence?
No. Somewhat confusingly, use of PSL is tied to work performed in Portland, just like accrual is. This means that employees can only use PSL for shifts or days when they are scheduled to work in Portland. While this will often be straightforward since most employees work in a single location, this could be difficult to track in the case of employees who work sometimes in Portland but not always, such as delivery drivers or retail workers (see #13 above). Similarly, part-time or temporary employees can only use PSL on days they are normally scheduled to work. For example, a part-time employee who only works two days a week cannot take a full week (five consecutive days) of PSL; he or she must only use PSL for the two days in the week he or she would otherwise actually be working.
As with the note in #16 above regarding providing PSL within the 240-hour / 90-day initial period, note that if you allow employees to take PSL to employees for time they would not be working in Portland, that PSL probably will not count against the employee's bank of accrued PSL under the Ordinance.
18. For what purposes can employees take leave?
A lot more than you might think from the term “sick” leave. The Ordinance of course allows employees to take PSL when they have an illness such as a cold or the flu. But it also covers absences due to mental illness, injury, or a “health condition,” defined as “including, but not limited to, pregnancy, childbirth, post-partum care and preventative medical care.” The regulations state that routine doctor visits and check-ups, such as pre-natal checkups and dental visits, are covered absences. Moreover, the Ordinance covers domestic violence or stalking leave allowed under ORS 659A.272.
Employees may also take PSL to care for any “family member” who is dealing with any of those conditions or situations. The Ordinance adopts the definition of “family member” from OFLA, ORS 659A.150(4), which includes the employee’s biological, adopted, or foster child, spouse, same-sex domestic partner, parent, parent-in-law, grandparent, grandchild, or any person for whom the employee acts “in loco parentis” (as a parent). Finally, the Ordinance allows employees to take PSL for certain public health reasons, including when (1) the employee’s worksite or child’s school is closed due to a “public health emergency,” or (2) public health authorities determine the employee’s or one of his or her “family member’s” presence in the community jeopardizes the health of others.
19. How much PSL can employees take at one time?
Employees can take PSL in increments of one hour (or less if allowed by the employer), such as for routine doctor visits or similar partial day absences. Or, the employee can use all his or her accrued PSL in one block up to the maximum of 40 hours.
20. Can I require employees to provide advance notice?
Yes, up to a point. The Ordinance states employers can require employees to follow its standard written procedures for notification in the event of absences (note that if you don’t have a written policy for how employees should provide notification of a PSL absence, the regulations specifically require that you adopt one). Generally, employees can be required to provide advance notice per the employer’s policy for planned PSL absences, and at the beginning of a shift or as soon as “practicable” for unplanned absences. While employers may deny PSL to employees who don’t follow proper notification procedures, it may be risky as the employee is only required to make a “reasonable effort” to schedule leave in a manner that doesn’t “unduly disrupt” the employer’s operations.
21. Can employees be required to submit a doctor’s note or other documentation to substantiate the need for PSL?
Most of the time, no. Employers may only require documentation of the absence, such as a doctor’s note, if the employee takes PSL for more than three consecutive work days. There is a narrow exception if an employer suspects “sick time abuse,” but generally this means that employees cannot be asked for documentation for most absences, including the usual single sick day or partial day absences for routine doctor visits.
Note that consecutive work days means consecutive calendar days that the employee is normally scheduled to work. The regulation provides an example that if an employee is normally scheduled to work Monday, Wednesday, and Friday and takes PSL for those three days, those are consecutive work days and the employer may request reasonable documentation if the employee needs PSL on the next scheduled work day (remember, it’s for absences of more than three consecutive days). Note also that it does not mean full calendar days—employees who miss consecutive days, no matter how much or little they were scheduled to work on those days, can be required to submit documentation of the absence.
22. Great, one more leave law to track. If someone is taking OFLA or FMLA leave is that also counted as PSL and vice versa?
Maybe, but not necessarily. The Ordinance doesn’t specifically address this issue. But FMLA and especially OFLA (on which the Ordinance is modeled, in part) cover some of the same types of leave also covered by the Ordinance. For example, almost any illness qualifying as a “serious health condition” under OFLA/FMLA would probably also qualify as “sick time” under the Ordinance, and the Ordinance adopts OFLA’s definition of “family member.” The Ordinance and OFLA also both cover leave related to pregnancy or pre-natal visits, or taking “sniffly kid” leave to care for sick children home from school. When PSL is used for a purpose also protected by OFLA/FMLA, the employee will be drawing down his or her bank of both accrued PSL and also OFLA/FMLA leave. For those employers that already offer paid sick or PTO leave, this would be no different than allowing (or requiring) employees to use accrued paid time off concurrently with OFLA/FMLA leave.
But the Ordinance and OFLA/FMLA also cover different types of leave. For example, the Ordinance covers the employee’s (or employee’s family member’s) routine doctor or dental visits, employee sick days for common cold, or leave under Oregon’s stalker leave law. OFLA/FMLA do not cover those types of leave. In those cases, the employee would only draw down his or her bank of PSL, but his or her bank of OFLA/FMLA leave would remain untouched and could still be used for any OFLA/FMLA qualifying purpose.
The Other Stuff You Need to Do and Watch Out For
23. What if I think an employee is abusing PSL or it causes problems with the company attendance policy?
Protected PSL absences cannot be counted against an employee for the purposes of a company attendance policy. Also, while employers are expressly allowed to discipline or terminate employees who misuse or abuse PSL, be very careful about doing so and be sure to thoroughly document the misuse. “Retaliation” claims of all types are becoming ever more common, and the Ordinance specifically prohibits retaliation for taking or requesting PSL. It can also be difficult to show that an adverse employment action was because of PSL misuse or abuse, and not motivated by the fact an employee took protected leave.
24. Do I have to update my written policies, put up a poster, and otherwise inform employees about the Ordinance?
Yes, yes, and yes. Employers must provide written notice to employees of the rights under the Ordinance by doing all of the following: (1) disseminating a written notice to all employees (can be email, a statement mailed with paychecks, a supplement to the employee handbook, or a posting on the company intranet), (2) posting a poster at each worksite, and (3) notifying each employee at least once per quarter of how much available PSL they have. Regarding the last requirement, pay stub summaries of accrued leave—which many employers already do—would probably be enough.
25. Can employees file a lawsuit to enforce the Ordinance?
Yes, an employee can either file a complaint with the Oregon Bureau of Labor and Industries (“BOLI”) or file a lawsuit in court, to remedy either an unlawful denial of PSL or retaliation for having requested or used PSL. Employees filing such complaints can recover damages, civil penalties, and attorney fees.
Note that BOLI has issued a statement stating it will not begin enforcing the Ordinance against employers who commit unintentional violations until July 31, 2014, to allow employers extra time to adjust and revise policies as needed. However, because aggrieved employees can file a lawsuit without first filing with BOLI, that grace period may not help employers much. So employers should not delay in reviewing and updating their leave policies to ensure they are in compliance with the Ordinance before 2014 starts.
Stay Tuned For Further Developments and Updates
Whew. That covers most of the key points employers will need to know regarding what the new Ordinance and its regulations require and how company policies may need to be revised to comply. But believe it or not, there are even more nuances and details that we couldn’t cover here. If you have questions about any of those more arcane requirements, or any of the provisions discussed in this FAQ, you should contact your labor and employment lawyer for advice.
After more than 20 years under the ADA and FMLA, and 18 years since the passage of the Oregon Family Leave Act (“OFLA”), most employers are familiar with the basics of these laws. Many employee leave situations can be handled in a basic and straightforward manner. Unfortunately, others involve an obscure application of a particular law, or the thorny challenges presented by the interplay of all three laws. (Unlike FMLA and OFLA, the ADA was not specifically enacted for the purpose of providing leave per se. In fact, EEOC Commissioner Chai Feldblum has referred to the ADA as “an inadvertent leave law.”)
This post gives an overview of specific practical tips to address some of the stickier leave situations that can arise. (Shameless self-promotional plug: these and other topics were covered in depth at a Stoel Rives Breakfast Briefing Seminar. For details on other Stoel Rives seminars and breakfast briefings, click here.)
Situation No. 1. Intermittent leave - taken by employee in separate intervals for particular qualifying long-term or recurrent health issue
How to handle?
- Always require the certification of the health care provider (“CHCP”) for FMLA/OFLA intermittent leave; where the need for leave is not obvious, also require medical info for ADA accommodation leave
- The CHCP can be an employer’s most effective tool for ensuring proper compliance with OFLA and FMLA. The employer needs to carefully scrutinize the CHCP and monitor it for:
- Timely return (employee has 15 days to return)
- Completeness/need for follow-up or clarification (employer must notify employee in writing of deficiency, and employee has seven days to cure after notice of deficiency)
- The need to obtain 2nd or 3rd opinion if the employer disagrees with the HCP's determination
- Duration/expiration and the right to obtain an updated certification (employer has right to require new certification upon expiration of the existing CHCP or upon change of circumstances)
- The employer should ensure the employee’s absence pattern is consistent with CHCP or ADA medical certification
Consider temporary transfer of employee to a position that is more suited to the employee’s intermittent leaves (requires the employee’s agreement under Oregon law)
Situation No. 2. Retroactive leave designation – occurs when past absence(s) should have been designated as protected OFLA/FMLA leave, but was not
- Why designate retroactively?
- Benefit to employer: reduces available leave bank and prevents “hoarding”
- Benefit to employee: absences are protected
- How to accomplish?
- Going forward, make sure managers are trained to recognize potential OFLA/FMLA-covered absences/tardies
- Retroactive designation allowed upon agreement by employee (29 CFR §825.301(d))
- Give employee notice of eligibility, rights, responsibilities; obtain CHCP
- After employee returns CHCP, go through dates of employee’s absences and determine which are serious health conditions (“SHCs”) (see SHCs described in 29 CFR §§825.113, 114 and 115) based on what employee reported to you as reason for absence compared to CHCP info
Situation No. 3. Job preservation obligations – employee is off work for extended time and employer wants to fill position
How to handle?
- Under OFLA – employee’s job protected through duration of OFLA leave; upon return, employee must be restored to same position if it exists or to available equivalent position if it does not
- Under FMLA – employee’s job protected through duration of leave; employee must be restored to same or equivalent position (with exception for “key employee” only if leave not also covered by OFLA; not likely to apply in vast majority of situations in Oregon)
- Under ADA – must hold employee’s job, unless doing so presents “undue hardship”; even with undue hardship, must still consider employee for equivalent position, then lesser position
- In Ninth Circuit, even “indefinite leave” may still be reasonable accommodation, despite EEOC’s position to contrary and new employer-friendly Ninth Circuit case law
- Therefore, if OFLA/FMLA leave is exhausted and employee is still not ready to return to work, before replacing employee the employer should conduct a basic ADA analysis to determine whether ADA applies, and whether extended leave is a reasonable accommodation or whether it presents employer with undue hardship
Situation No. 4. Employee’s medical condition is “debatable” – occurs when employer questions whether a condition is either a SHC or a disability under ADA
How to handle?
- For FMLA/OFLA, must do SHC analysis (see SHC described in 29 CFR §§825.113, 114 and 115); if no SHC is present, then no FMLA/OFLA leave is required
- If employee’s health care provider appears to “rubber stamp” employee’s purported condition, require second opinion (at employer’s expense)
Situation No. 5. Employee has worked only short time – employee is not eligible for OFLA/FMLA because too new, but has reported medical condition and requests leave
How to handle?
- Simple (and critical) – do basic ADA analysis to determine whether employee is entitled to leave as an accommodation under the ADA
Situation No. 6. Untimely notice by employee – employee does not notify of need for leave within statutory time periods
How to handle?
- If OFLA only applies, and employee did not give 30 days’ or as much advance notice as possible of foreseeable leave, or notice within three days of returning to work of unforeseeable leave, employer can reduce employee’s leave by the number of days (up to three weeks) employee failed to provide timely notice (OAR 839-009-0250(4)(a))
- If FMLA only applies, employer may delay or deny leave due to improper notice (29 CFR §825.304)
- If both OFLA and FMLA apply, employer may discipline employee under uniformly applied policies, but cannot delay or deny the leave
- There is no statutory time period involved for requesting leave as an ADA accommodation, although an employer may deny leave to employee who has not provided requested adequate medical supporting documentation when the need for leave is not obvious
Although the six situations outlined above require a “beyond the basics” individual approach and analysis, in each of them the employer should: 1) Always maintain open and timely communication with the employee; and 2) Follow a process that considers both the requirements of the family and medical leave laws and the ADA, when applicable.
Governor Kitzhaber last week signed House Bill 2950 ("HB 2950"), which expands the Oregon Family Leave Act ("OFLA") to include bereavement leave. The change will become effective on January 1, 2014.
Under the new law, an OFLA-eligible employee (who works for OFLA-covered employer) may take up to two weeks of leave for three death-related purposes: attending the funeral or alternative to a funeral of a family member; making arrangements necessitated by the death of the family member; or grieving the death of the family member. The law incorporates the existing definition of “family member,” meaning that an employee make take the leave for the death of a spouse, same sex domestic partner, parent, parents-in-law (including the parents of same-sex domestic partners), grandparent, grandchild, child, stepchild, or child of the employee’s same sex domestic partner.
The eligible employee must provide notice of the leave, but unlike other kinds of OFLA leave, the employer may not reduce the 2-week leave entitlement for failure to timely provide notice. The leave must be completed within 60 days of the date on which the employee receives notice of the death.
There are a couple of additional quirks in the new law. An employer may not require the eligible employee to take multiple periods of leave concurrently if more than one family member dies during the one-year leave period. In other words, if an employee has the misfortune to lose two family members in rapid succession, the employer cannot require that the employee take bereavement leave for multiple deaths concurrently. In addition, the general prohibitions against family members who work for the same employer taking concurrent leave does not apply to bereavement leave; spouses or same sex domestic partners who work for the same employer may take concurrent bereavement leave.
Employers should start preparing now by reviewing and updating their handbooks and leave policies to be ready to comply with the new law when it becomes effective in January.
Most employers grapple with the better-known aspects of the Family and Medical Leave Act (FMLA), such as determining whether an employee’s illness constitutes a serious medical condition, obtaining required certification or providing adequate coverage for workers on intermittent leave. All too often employers focus on the leave itself and breathe a sigh of relief when notice is provided confirming the dates of leave or when the employee has resumed his or her usual schedule. But an employer’s compliance with federal law includes the obligation to maintain adequate records related to the leave. Failure to do so can have significant consequences.
What Records Must You Keep?
FMLA recordkeeping requirements can be found in a single regulation, 29 C.F.R. § 825.500. That regulation requires employers to keep and preserve records in accordance with the recordkeeping requirements of the Fair Labor Standards Act (FLSA). Records must be retained for no less than three years. Although no particular order or form is required, the records must be capable of being reviewed or copied.
Covered employers with eligible employees must also maintain records that include basic payroll and data identifying the employee’s compensation. Failure to maintain accurate records can have significant consequences for employers, who have the burden of establishing eligibility for leave. Accuracy is important: for example, the regulations demand that records document hours of leave taken in cases of leave in increments less than a full day. Lack of suitable records documenting when leave was taken can also doom an employer’s defense to claims for leave. Special rules apply to joint employment and to employees who are not covered by or are exempt from the FLSA.
Importantly, copies of employee notices of leave furnished to the employer under FMLA, if in writing, and copies of all general and specific written notices given to employees are required under FMLA regulations. The required copies may be maintained in employee personnel files. In the event of a dispute between the employer and an eligible employee regarding designation of leave as FMLA leave, employers must present the required records, including any written statement from the employer or employee regarding the reasons for the designation and for the disagreement. All too often employers fail to audit their own personnel files to confirm that the required documentation is in place.
Documents (defined to include written and electronic records) describing employee benefits or employer policies and practices regarding the taking of paid and unpaid leaves must also be maintained, along with records of premium payments, if any, of employee benefits.
Compounding The Recordkeeping Requirement: Don't Forget About Confidentiality
Of particular consequence for employers is the requirement that records and documents relating to medical certifications, recertifications or medical histories of employees or employees’ family members, created for purposes of FMLA, shall be maintained as confidential medical records separately from the usual personnel files. In those circumstances where the Americans with Disabilities Act (ADA) also applies, employers have a duty to maintain such records in conformity with the confidentiality requirements of the ADA.
Be Proactive, Audit Your Records
Well-intentioned employers recognize that it’s never too late to conduct a compliance audit to determine whether their organization is complying with FMLA requirements. Identifying and fixing any problems with your recordkeeping processes now could save a lot of headaches down the road.
As most Seattle employers know by now and as we blogged about earlier, beginning September 1, 2012, the City of Seattle will require that all but the smallest employers provide paid sick leave to their Seattle employees. Seattle Paid Sick and Safe Time (PSST) mandates that most employers provide paid leave, which increases depending on the size of a company’s workforce. Once employees have worked 180 days or more, they must be allowed to use PSST for their own or their family members’ illnesses, as well as for certain safety-related reasons.
We are getting many questions from employers about this new leave mandate. This update will provide answers to some common questions.
Remember that you need to notify Seattle employees of their PSST rights by September 1. We are here to assist you in administering this new leave. Below are a few common questions that may come up.
Q: What general notice do we have to provide our employees?
A: Regularly Work in Seattle. As of September 1, 2012 or soon thereafter, current Seattle employees (of employers of any size) should receive notice of their PSST rights, and new employees should receive such notice at the time of hire. This can be accomplished in several ways:
- A poster displayed conspicuously and accessibly in your usual posting place,
- A notice to employees provided in employee handbooks or similar employee guidance, and/or
- A notice to employees handed out to each new employee upon hiring.
The notice can be given either electronically or on paper. The City of Seattle’s model notice and poster (in a number of languages) are available online (scroll down to “Resources” box in right column).
Occasional Seattle Employees. If your only Seattle employees are those who work in Seattle occasionally and not on a regular schedule, you do not have to provide notice to all employees, provided that notice is given to occasional-basis employees reasonably in advance of their first period of work in Seattle.
Q: What notice do we have to provide our employees regarding their PSST accruals?
A: Each time wages are paid, employees who are accruing PSST (even those who have not worked 180 days yet) must be given information (either on paper or in electronic format) about the amount of PSST they have available.
Q: What categories of employees are covered by the law, and what leave must these employees be given?
A: Regularly Work in Seattle. These are employees (regular part-time or full-time, and temporary) who regularly work at least 240 hours per year in Seattle, either at your workplace, by teleworking from a Seattle location or by traveling from another location to regularly work in Seattle. These employees begin to accrue leave on September 1, 2012, and can take it as soon as they have worked 180 days or more (even if those 180 days occurred before September 1, 2012). Leave is only required to be provided during times the employee is working in Seattle.
Occasionally Work in Seattle. These are employees (regular part-time or full-time, and temporary) who occasionally work in Seattle, not on a schedule. These employees begin to accrue leave for every hour they work in Seattle after the 240th hour in a calendar year, and can take leave on their 181st day of employment (even if some or all of those 180 days occurred before September 1, 2012). You can begin to count these employees’ Seattle hours as of September 1. You can delegate to employees the duty to track “Seattle hours” as long as you notify them of this and provide a reasonable way for them to track hours. Once an occasional employee is covered, he or she is covered for that calendar year and the following calendar year. Leave is only required to be provided during times the employee is working in Seattle.
In order to determine accruals, you must determine your Tier Size. See our past post for further information on Tier Size and accrual amounts.
Q: How do we figure out what rate of pay employees earn during leave?
A: Generally. Employees earn the rate of pay they would have earned during the time PSST is taken—but only for hours they were scheduled to work. Employees need not be paid for lost tips or commissions, but must receive at least Washington’s current minimum wage ($9.04 in 2012).
Nonexempts. Employees who would have been paid overtime during their PSST hours need only be paid their regular hourly rate of pay.
Exempts. Employees receive an hourly rate of pay by dividing the annual salary by the number of weeks worked per year, to get the weekly salary, and dividing the weekly salary by the number of hours of the employee’s normal work week.
Q: How do we coordinate PSST with other leave, including paid leave such as Short-Term Disability and other Income Replacement Policies?
A: PSST may run concurrently with other leave (such as FMLA) where both apply, and can be provided as a part of paid leave policies (such as vacation, sick and PTO) if those policies meet the eligibility, use, accrual and carryover requirements of PSST. Determining how you will do this and how to amend your policies must be done on a case-by-case basis. The language of your short-term disability leave arrangement, whether provided via insurance, policy or a plan, also requires a case-by-case review.
Please contact Keelin Curran or your Stoel Rives attorney with your questions regarding coordination of PSST with other leave benefits.
Beginning September 1, 2012, the City of Seattle will require that all but the smallest employers provide paid sick leave to their Seattle employees. Sick leave mandates under the new law increase depending on the size of a company’s workforce, and employees must be allowed to use the leave for their own or their family members’ illnesses (“Paid Sick Leave”), as well as for certain safety-related reasons (“Paid Safe Leave”).
Seattle employers should use the coming months to plan how to best structure their paid leave programs to comply with the new law. The law has posting requirements and allows complaints to the Seattle Office for Civil Rights, including recovery of damages where violations are found (but not private lawsuits). Employers have an opportunity to provide comment to the City regarding the law before rules under the law are issued (see below).
Key aspects of the comprehensive new Paid Sick Leave and Paid Safe Leave ordinance include:
- Coverage. Employers of five or more full-time equivalent (“FTE”) employees (employees working outside Seattle must be counted) are covered. Employees, including temporary and part-time employees, who work in Seattle at least 240 hours in a calendar year, must be allowed to accrue leave.
- Waiting Period. Leave accrues from date of hire, but employees cannot begin to take leave until 180 calendar days after date of hire.
- Mandated Leave and Minimum Caps. The amount of required leave increases with the number of FTE employees. Employers in the different tiers are required to allow their employees to accrue leave at the following minimum levels:
- Tier One Employers of 5-49 FTE employees must provide at least one hour of accrued paid leave time for each 40 hours worked, up to a minimum ceiling of 40 hours per year.
- Tier Two Employers of 50-249 FTE employees must provide at least one hour of accrued paid leave time for each 40 hours worked, up to a minimum ceiling of 56 hours per year.
- Tier Three Employers of 250 or more employees must provide at least one hour of accrued paid leave time for each 30 hours worked, up to a minimum ceiling of 72 hours per year.
- Basis of Accrual. Non-exempt employees accrue leave time based on hours actually worked. Exempt employees’ leave accrual is based on their regular weekly schedule, up to 40 hours maximum.
- Carryover Required; No Payout on Termination. Mandated carryover is required for up to the same amount of leave time employers are required to allow an employee to accrue in any given year. (For instance, for employers of 49 or fewer, up to 40 hours may be carried over.) Payout on termination is not required.
- Special PTO Requirement for Largest Employers. Tier Three Employers that use a “universal” paid leave program (usually referred to as “paid time off” or “PTO”), rather than dedicated sick leave, must provide more paid leave under the law than those employers with dedicated sick leave. Tier Three Employers must allow accrual of at least 108 hours of paid leave per year and allow carryover up to the same amount.
- Leave Use. Leave can be used for the following purposes:
- Sick Leave. Absence resulting from an employee’s or a qualifying family member’s illness or injury, including diagnosis, treatment and preventative care. (Qualifying family members are the same as under Washington’s Family Care Act: spouse, registered domestic partner, child, parent, parent-in-law or grandparent.)
- Safe Leave. Absence (1) related to domestic violence, stalking or sexual assault of an employee or qualifying family member (amount of leave allowed and qualifying family members are the same as under Washington’s domestic violence leave law), or (2) due to a public health-related closure of the employee’s place of business or a child’s school.
- Notice and Certification. An employee must provide at least 10 days’ notice of foreseeable leave, and must generally follow employer notice policies. Certification of leave use is limited to leaves of three or more days. Where the employer does not provide health insurance, the employer must pay at least half of medical costs associated with obtaining the certification.
- Considerations and “To-Dos.”
- Opportunity for Comment to the City. Employers have the opportunity to provide comments to and receive updates from the City of Seattle related to the implementation of the law. An FAQ is expected by the end of the year on their website, and draft rules in the spring of 2012. Write to Elliott Bronstein at the Seattle Office for Civil Rights, at email@example.com, to be included in the notification list, and with any questions or comments you have about the law.
- Collective Bargaining Agreements. The ordinance allows unions to expressly waive their members’ rights under the law. To avoid application of the law, employers should take steps to negotiate with their unions for a “clear and unambiguous” waiver and put it in writing.
- Review Sick and Related Leave Policies, Including Short-Term Disability Policies. Employers must review policies and consider whether changes are needed to meet requirements under the new law.
- Special PTO Requirements. Tier One and Tier Two Employers should make sure their PTO policies meet the requirements of the law to avoid having to provide additional paid sick and safe leave. Tier Three Employers that use a PTO program need to allow accrual and carryover of additional paid leave as described above.
Stoel Rives is here to help employers plan for the implementation of this law on September 1, 2012, and will be providing comments to the City about the law in the near future. Please contact us for assistance.
Wow, it's Festivus already, which means that in just a few short days it will be a brand new year! We have a Festivus present for Oregon employers to help you get ready: Ten things you need to know for 2010! (click on each blue hotlink for more information)
- All Oregon employers are required to post the SB 519 (Mandatory Meeting Ban) Notice to Employees.
- The H1N1 (or "swine:) flu is slowing down, but it's not gone. If you have concerns for you or your employees, Oregon has a great Flu Hotline.
- As if we needed another reason to investigate complaints of unlawful harassment, the Oregon Court of Appeals recognized a claim for negligent failure to investigate.
- Leave for Military Spouses: Employers with 25 or more employees in Oregon must provide leave to spouses of service members prior to deployment and during leave from active duty.
- In 2010, you might have a greater duty to accommodate employees' religious dress and practices.
- Domestic Violence Leave and Accommodations: Employers may not discriminate against victims of actual or threatened stalking, sexual assault or domestic violence, and must make reasonable accommodations for such employees.
- In 2010, you (and your employees!) may no longer talk on the phone while driving (unless it's with a hands-free device).
- Oregon's minimum wage will remain $8.40/hour.
- Oregon kept its disability discrimination law in tune with the federal Americans with Disabilities Act.
- Oregon has new rest and meal break regulations.
And on that note, we're off to put up our festivus pole (aluminum, high strength-to-weight ratio), air our grievances, and commit feats of strength. Happy festivus, and see you in 2010!
Earlier this week, President Obama signed the Fiscal Year 2010 National Defense Authorization Act (NDAA), a federal law that is enacted each fiscal year to specify the budget and expenditures of the United States Department of Defense. This year, the NDAA contains two expansions of the exigency and caregiver leave provisions for military families under the Family and Medical Leave Act (FMLA):
- Caregiver Leave: Employees could previously take up to 26 weeks of unpaid leave to care for a family member (spouse, child, parent or next of kin) who is an active service member currently undergoing treatment for a serious injury sustained on active duty; that leave has been expanded to allow leave to care for a veteran family member undergoing medical treatment, recuperation or therapy for a serious injury or illness that was sustained any time during the five years preceding the treatment.
- Exigency Leave: Employees could previously take up to 12 weeks of unpaid leave for qualifying exigencies relating to a reservist family member's call to active service; that leave has now been expanded to provide exigency leave benefits to the family of a member of any armed service on active duty.
These expansions became immediately effective when the law was signed.
For more information on the military leave provisions of FMLA, check out this Fact Sheet on FMLA Military Family Leave Entitlements from the Department of Labor Wage and Hour Division. While the fact sheet doesn't reflect these recent expansions, it does provide valuable information, including who is a qualifying family member and what is a qualifying exigency.
The Oregon Legislature was in session in 2009, and many labor and employment-related bills came up for consideration. A complete list of the bills that passed and the bills that failed follows below (you may have to click "continue reading."
Several passed and will become law effective January 1, 2010. Several others didn't get the support they needed to become law, but employers may want to take note as they may gain more traction in the next legislative session.
Notable winners: leave for military spouses, a ban on "captive audience" union meetings, and protections for stalking victims. Notable losers: several attempts to clarify an employer's obligation to accommodate medical marijuana use.
Up next: a federal labor and employment legislation update. Stay tuned!
The Winners: The following Oregon bills will become law January 1, 2010. Click on the bill number to read the full text of each bill.
- HB 2744 - Leave for Military Spouses. Requires employers with 25 or more employees in Oregon to provide leave to spouses of service members prior to deployment and during leave from active duty.
- HB 3256 - Protections for Service Members. Amends ORS Chapter 659A to make discrimination against an employee because of the employee’s service in a uniformed service an unlawful employment practice.
- HB 3162 - Expanded Whistleblower Protection. Amends ORS Chapter 659A to make discrimination against an employee who reports a violation of state for federal laws, rules or regulations an unlawful employment practice.
- SB 519 - Political and Union Meetings. Prohibits employer from requiring attendance in workplace meetings on political, religious or union matters.
- SB 786 - Religious Accommodations. Requires employers to reasonably accommodate religious practices with accommodations such as shift changes, vacation time for religious holidays, allowing religious jewelry or clothing.
- SB 469 - Child Businesses. Exempts children under age 17 from requirement to obtain a business license or permit for a sole proprietorship.
- SB 60 - Expanded BOLI Collections Authority. Expands the Oregon Bureau of Labor and Industries' authority to collect on judgments and orders.
- SB 373 - Deductions for Child Support. Allows either the obligee or the obligor under a support order to sue an employer who withholds support money but fails to pay.
- SB 874 - ADA Amendments Act. Conforms Oregon law with the ADA Amendments Act.
- HB 2826 - Child Labor. Increases the allowed working hours for children under 16 by one hour, two hours in the summer months.
- SB 928 - Protections for Stalking Victims. Prohibits discrimination against victims of actual or threatened stalking, sexual assault or domestic violence, and requires employers to make reasonable accommodations for such employees.
- HB 2377 - Shut Up and Drive! Prohibits the use of cell phones while operating a motor vehicle (hands-free devices allowed).
The Losers: the following bills will not become law this year, but might become law following a future legislative session.
- HB 2497; HB 3052; SB 382 - Restrictions on Medical Marijuana. Each of these bills would have allowed employers to prohibit the use of medical marijuana in the workplace.
- HB 2503 - Protections for Medical Marijuana Users. Would have prohibited discrimination based on an employee’s use of medical marijuana not on employer’s property.
- SB 427 - Drug Testing Programs. Would have allowed employers to implement broad drug-free workplace program and provide for drug and alcohol testing policies.
- HB 2821 - OFLA and Vacation Leave. Would have prevented employers from forcing employees to take accrued vacation leave when taking OFLA leave.
- HB 3053 - Paid Family Leave. Would have created an insurance program to provide benefits to those taking OFLA leave.
- HB 2692 - Revised OFLA Obligations. Would have revised OFLA so that employee returning to work from leave entitled to an available equivalent position, not the same position as before taking leave.
- HB 3053 - Minimum Wage Freeze. Would have suspended annual increase to Oregon minimum wage for years in which Oregon’s unemployment rate exceeds the national rate.
- SB 830 - Local Minimum Wages. Would have directed BOLI to calculate local minimum wages based on median income of each locality.
- HB 2692 - Punitive Damages for Whistleblowers. Would have allowed public employees to recover punitive damages in whistleblower cases.
- HB 3449 - Height/Weight Discrimination. Would have made it unlawful for employers to discriminate because of an individual’s height or weight.
- HB 2903 - Shortened Arbitration Notice. Would have reduced from two weeks to 72 hours the time that employer must give a prospective employee written notice that an arbitration agreement will be required.
- HB 2890 - Defining "Employee." Would have defined "employee" for worker classification purposes.
- SB 638 - School Activity Leave. Would have established leave for parents and guardians to attend school activities.
- SB 707 - Defamation Protections. Would have established immunity from defamation liability for employer who discloses information about employee’s job performance, unless shown to have acted in bad faith by clear and convincing evidence.
- HB 3403 - Final Paychecks. Would have given employers five days from date of termination to pay final wages to employees who are fired.
Today the Department of Labor published its Final Regulations Implementing the Family and Medical Leave Act (FMLA). They go into effect on January 16, 2009 (60 days after publication). Click here to download the final FMLA regulations. (Warning! The document is 762 pages long! However, much of that is a handy explanation of the changes and the comments the DOL received.)
The final regulations address many aspects of FMLA, the federal law that provides eligible employees the right to take unpaid leave for certain absences, such as: the birth or adoption of a child; to care for a child, spouse, or parent with a serious health condition; or because of the employee’s own serious health condition. The final regulations also address new military family leave entitlements enacted as part of the National Defense Authorization Act, which provides leave rights to employees who provide care for covered servicemembers with a serious injury or illness.
Highlights of the final regulations include:
- Incorporation of new military family leave requirements into the regulations, with specific guidance on administering military leave
- Clarification on administering intermittent leave, including an explanation of when an employee may be transferred during intermittent or reduced schedule leave
- Clarification on employee eligibility following breaks in employment such as extended leaves
- Clarification on what constitutes a "serious health condition," including revised definitions of "incapacity" and "continuing treatment"
- Clearer guidelines for administering pregnancy and childbirth leaves
- Consolidated guidelines on adoption leave
- Clarification of how to count holidays in cases where an employee takes leave in increments of less than a full workweek.
- Clarification on administering leave to care for a parent
- A new requirement that when an employee gives less than 30 days' notice of a foreseeable leave, the employee must explain the reason for failing to give 30 days' notice
- An explanation of how much information an employer can obtain in the medical certification to substantiate the existence of a serious health condition and the employee’s need for leave due to the condition
There are many more minor changes, too many to list in a single blog post. To get the full picture, download the final regulations.
A California bill to provide universal paid sick leave died in committee last week, following intensive lobbying efforts from small businesses and their lobbyists. The bill would have granted employees of small companies in California up to five days of paid sick leave each year, while workers at larger companies could take up to nine days a year. To read more, check out this article from the L.A. Times.
The bill was scuttled primarily due to the cost of implementation and enforcement in a year in which the state faces a $15 billion deficit. Even if it had passed, the bill faced a likely veto from Governor Arnold Schwarzenegger. The bill's sponsor, Fiona Ma (D-San Francisco), vowed to reintroduce a similar measure next year.
If passed, the law would have made California the first state to have a mandatory paid sick leave program. However, the program is not entirely unprecedented: employees is San Francisco already have a paid sick leave program. Further, since January 1, 2004, California has offered wage replacement benefits for employees who take time off from their jobs in order to care for a family member or child with a serious health condition. Want to learn more about the legislative process? Watch this.
The employer appealed, arguing that the jury's award amounted to an impermissible "back door" recovery of emotional distress damages under FMLA. The Ninth Circuit disagreed, holding that because FMLA allows for the recovery of "any wages ... lost ... by reason of the violation," plaintiff may recover wages lost due to emotional distress, even if he could not recover directly for the emotional injuries .
We expect to see more types of "emotional distress" claims like these in the future. While this might not qualify as a landmark ruling, be assured that plaintiff's attorneys will be following it closely and will likely be adding claims for lost wages due to emotional distress.