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.

The Basics

 

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.

Recordkeeping: The Often Overlooked Element of FMLA Compliance

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.

 

EEOC Issues Final Regulations for RFOA Defense Under ADEA

 

Last week, we reported that several senators had introduced new amendments to the Age Discrimination in Employment Act ("ADEA") to make it easier for plaintiffs in age discrimination cases to prove their claims.  U.S. Senators aren't the only ones busy refining federal age discrimination laws - on March 30, 2012, the Equal Employment Opportunity Commission (EEOC) published its final rule on the “reasonable factors other than age” (RFOA) defense under the ADEA.  Acting in response to two U.S. Supreme Court cases, Smith v. City of Jackson in 2005 and Meacham v. Knolls Atomic Power Laboratories in 2008, the rule bring the EEOC regulations in line with Supreme Court precedent and clarifies the scope of the RFOA defense

In Smith, the Supreme Court held that disparate impact claims are cognizable under the ADEA.  The Court further held that a practice having a disparate impact on older workers need only be justified by “reasonable” factors other than age; an employer need not satisfy the more rigorous “business necessity” defense applicable to Title VII claims.  In Meacham, the Court held that the employer bears the burden of production and persuasion on the RFOA defense.   

The regulation points out that the EEOC believes that “reasonable” factors other than age reflects a higher standard than a simple “rational basis” standard.  According to the EEOC, equating the RFOA defense with a rational-basis standard would improperly conflate ADEA disparate-treatment and disparate-impact standards of proof: “If an employer attempting to establish the RFOA defense were only required to show that it had acted rationally, then the employer would merely be required to show that it had not engaged in intentional age discrimination.”

The rule provides a non-exhaustive list of factors to be considered in determining whether an employment practice is based on RFOA:

  • The extent to which the factor is related to the employer’s stated business purpose;
  • The extent to which the employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training bout how to apply the factor and avoid discrimination;
  • The extent to which the employer limited supervisors’ discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes;
  • The extent to which the employer assessed the adverse impact of its employment practice on older workers; and
  • The degree of the harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps.

The final rule makes clear that the EEOC will take a very dim view of an employer’s RFOA defense where supervisors are given broad discretion to make subjective decisions.  Accordingly, prudent employers will take steps to ensure that decisions are made consistent with business purpose, that supervisors are properly trained, and that supervisors exercise their discretion in a way that does not violate the ADEA.

For more information, visit EEOC’s Questions and Answers page.  The rule will take effect on April 30, 2012.

 

GINA Compliance?

As Stoel Rives World of Employment has previously reported, Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers from discriminating against employees and applicants based on their genetic information and regulates employers’ acquisition and use of genetic information.   

GINA applies to private employers with 15 or more employees, employment agencies, labor unions, and some other entities. Laws in 34 states also prohibit employment discrimination on the basis of genetic information and some of them may apply to employers with fewer than 15 employees.  On November 9, 2010, the Equal Employment Opportunity Commission (EEOC) issued final regulations to Title II of GINA.  

While many employers don’t think they collect genetic information covered by the law, its definition of “genetic information” is quite broad and includes family medical history.  “Genetic tests” which come under the law are becoming more common, such as tests which detect the gene thought responsible for a predisposition to breast cancer.  (The regulations helpfully specify that some tests, like a cholesterol test or a drug and alcohol test, are not “genetic tests.”)  The regulations broadly prohibit an employer’s efforts to obtain an applicant’s or employee’s genetic information, but do provide a safe harbor for “inadvertent acquisition.”  This safe harbor will protect an employer, for example, who gains genetic information by innocently inquiring about an employee’s well-being. 

But employers commonly make requests for medical information such as when asking an employee to provide a medical certification for a FMLA leave or as part of the ADA interactive process.  The regulations specify that employers must tell employees – using specific language – to not disclose protected genetic information when the employer requests medical information.  Not surprisingly, the regulations require employers to maintain any genetic information obtained in a separate confidential medical file. Genetic information may be kept in the same file as other medical information.

 

The EEOC’s helpful FAQs on GINA are here.  (Question 17 contains the suggested safe harbor language.) 

 

What should employers do?

 

  • Revise the EEO statement to include a prohibition on discrimination based on genetic information or ensure that the EEO statement includes broad language like “and as provided by law.”
  • Check to ensure that application forms or on-boarding forms don’t seek family medical history information.
  • Update template communications to employees when requesting medical information to include the approved safe harbor language.  

 

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. 

GINA Requires Employers to Post Notice, Review Policies and Procedures

The Genetic Information Nondiscrimination Act (GINA) takes effect November 21, 2009.  Is your workplace ready?  Employers will soon be required to post a notice stating that they do not discriminate on the basis of genetic information, under proposed regulations interpreting GINA.

If you don't already have one, click here to download the full "EEO is the Law" poster, which describes all of the Federal laws prohibiting job discrimination based on race, color, sex, national origin, religion, age, equal pay, disability and genetic information.  If you already have a copy of "EEO is the Law," then you can download and print the "EEO is the Law Supplement," which contains GINA information.  (If you don't want to print it yourself, or if you need the poster in Arabic, Chinese or Spanish, click here to order a copy from the EEOC.)

What else should employers do to prepare for GINA?  Here's a short, non-exhaustive list of things you can do to get ready:

  • Add appropriate language to your EEO and anti-discrimination policies stating that you do not discriminate on the basis of genetic information;
  • Review your employment applications and employee questionnaires to make sure you are not intentionally or inadvertently requesting information about an applicant’s/employee’s family medical history;
  • If you need to get information about a family member’s illness for purposes of determining whether a request for leave qualifies for Family and Medical Leave Act or state law leave coverage, make sure it is limited to only what you need to know to make the determination;
  • Determine whether incoming medical information you receive on an employee contains genetic information (defined as: genetic tests of an individual or his/her family members; the manifestation of a disease or disorder in family members of an individual, genetic services and participation in genetic research by an individual or his/her family member) and if so, maintain and treat the information as you would a confidential medical record for ADA purposes – i.e., maintained in a separate confidential medical file with proper limitations on disclosure.
  • Make sure appropriate policies and procedures are in place to prevent inadvertent disclosure of genetic information when responding to a litigation discovery request, like a subpoena. If you require a court order compelling disclosure before releasing the information, this should protect you.
  • If you are a self-insured entity, make sure that you do not request or require or use purchased genetic testing or information for purposes of underwriting or to determine an individual’s contribution/premium amounts. Note that you can use genetic test results for purposes of making a determination regarding payment, though.
  • Also note that genetic information is included as “protected health information” for HIPAA purposes and should be treated accordingly.

Oregon's BOLI Proposes New Employee Leave Regulations

Last week the Oregon Bureau of Labor and Industries (BOLI) filed with the Secretary of State a Notice of Proposed Rulemaking on new regulations pertaining to certain employee leave laws.  The proposed regulations are intended to reflect some recent amendments to federal Family and Medical Leave Act (FMLA) regulations and to clarify, edit and make housekeeping changes.  The proposed rules would impact three Oregon leave statutes: 

  1. The Oregon Family Leave Act (OFLA)
  2. The Oregon Military Family Leave Act  (OMFLA)
  3. The Oregon Victims of Certain Crimes Leave Act (OVCCLA)

Click here to download the full text of the rules, or click here to download the Statement of Need and Fiscal Impact (both in Word format). 

The public (that's you!) is invited to comment on the proposed rules no later than November 13, 2009.  Send comments via email to plebaneks@state.or.us.  Comments via regular mail should be directed to:  Stef Plebanek c/o BOLI CRD, 800 NE Oregon St. #1045, Portland OR 97232. 

Once the regulations are finalized, the Stoel Rives World of Employment will provide coverage of any significant rule changes. 

Oregon BOLI: No Changes to OFLA Regulations (yet...)

As previously reported here at the Stoel Rives World of Employment, new federal Family and Medical Leave Act (FMLA) regulations went into effect on January 16, 2009.  Oregon has its own analog to FMLA, the Oregon Family Leave Act (OFLA), with its own regulations.  FMLA applies to employers with 50 or more employees, while OFLA applies to employers with with 25 or more employees; Oregon employers with 50 or more employees are required to follow both laws.

Historically, OFLA and its regulations have tracked federal law (with a few notable exceptions that are more generous to employees).  However, following implementation of the new FMLA regulations, there is now a disconnect between the two laws.   The Oregon Bureau of Labor and Industries (BOLI) announced recently that even though there are new discrepencies between the two laws, it will not immediately update the OFLA regulations to match the new FMLA rules. (Click here to read BOLI's press release on its decision.)  Instead, BOLI will conduct informational hearings in February 2009 to determine whether updates to the OFLA regulations are warranted.  In the meantime, BOLI issued this brief on implementing OFLA under the new FMLA rules, which provides an overview of the new differences between OFLA and FMLA and how employers can safely navigate the two laws. 

Where does that leave Oregon employers that are covered by both OFLA and FMLA?  The rule of thumb is to apply both sets of laws, and then follow the one most generous to employees.  The Stoel Rives World of Employment will follow the hearings on the OFLA regulations and provide updates to let you know when and if there are any changes. 

Reminder: New FMLA and Military Leave Regulations Take Effect Today

In case you haven’t heard, new Family and Medical Leave Act (FMLA) regulations take effect today, Friday, January 16. Some highlights of the new regulations include:

  • Regulations covering the recently instituted military family leave laws
  • Expanded FMLA general notification requirements
  • New individual eligibility notification and leave designation requirements
  • New forms for eligibility notification, leave designation, and health care provider and military family leave certifications
  • New fitness-for-duty certification requirements
  • New leave tracking and notification requirements
  • New certification and recertification requirements and procedures

There are too many changes to explain in detail in this email message, but we have you covered: Follow this link to download our detailed memorandum on the new regulations. Follow this link to download the new FMLA forms and poster.  Or if you're really into reading lengthy goverment regulations (and who isn't, really?) you can download the new FMLA regulations here

Oregon Issues New Rest Break Regulations

The Oregon Bureau of Labor and Industries (BOLI) issued a revised regulation earlier this week on employees’ meal breaks which will be of interest to many smaller employers. 

The revised regulation, which is effective as of January 12, 2009, retains the basic requirement that employees normally be provided with a 30-minute, unpaid meal period in which they are relieved of all duties (for shifts longer than 6 hours).  However, it adds additional options for employers who do not provide the full 30-minute meal period and/or relieve an employee completely from duty (such as when the employee remains on-call).

Under the new regulation, an employer is not required to provide an employee with a 30-minute meal period in which the employee is relieved of all duties if the employer can demonstrate that:

  1.  failure to provide a meal period was caused by unforeseeable equipment failures, acts of nature or other exceptional and unanticipated circumstances that only rarely and temporarily preclude the provision of a meal period;
  2. industry practice or custom has established a paid meal period of less than 30 minutes (but no less than 20 minutes) during which employees are relieved of all duties; or
  3. providing a 30-minute, unpaid meal period where the employee is relieved of all duties would impose an “undue hardship” on the operation of the employer’s business (the regulations also provide guidance on what is an “undue hardship”). 

An employer that does not provide meal periods under the “undue hardship” exception must comply with two additional requirements: (a) the employer must also provide the employee adequate periods in which to rest, consume a meal, and use the restroom without deduction from the employee’s pay; and (b) the employer must first provide to each employee a notice provided by BOLI regarding rest and meal periods in the language used by the employer to communicate with the employee.  BOLI will make such notices available by March 16, 2009.

 

Want more information?  Click here to download BOLI's  press release explaining the new regulations. Or click here to download the full text of the new regulation, including the definition of undue hardship.  Or, click here if you want BOLI's full run-down of the law on rest and meal breaks in general. 

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