Many employers have long-standing policies stating that an employee taking protected leave must exhaust all accrued paid time off before taking the leave as unpaid. From the employer’s perspective, this makes sense because it generally does not want an employee to return from extended leave only to take days or even weeks off for a vacation. However, each statutory leave law has different rules about whether these types of policies are permitted. Here is a quick rundown of what is permitted and what isn’t, depending on the leave law that applies to a particular employee’s leave of absence.

FMLA

The federal Family and Medical Leave Act (FMLA) provides eligible employees with unpaid, job-protected leave for certain qualifying reasons. These include but are not limited to an employee’s own serious health condition, care for a family member with a serious health condition, and parental leave. While FMLA leave is unpaid, the law permits an employee to elect, or the employer to require the employee, to use accrued paid time off concurrently during the FMLA leave period. When an employee uses accrued paid time off, the employee must follow the employer’s normal paid time off policy. So long as it is included in the employer’s policy, the employer can dictate the order in which an employee uses paid time off. For example, an employer’s policy can require an employee to exhaust all paid sick time first, then vacation time, and then any paid personal days.

OFLA

The Oregon Family Leave Act (OFLA) provides eligible employees with unpaid, job-protected time off for certain qualifying reasons. These include bereavement, pregnancy disability, and care for a child who suffers from an illness, injury or condition that requires home care. While leave under OFLA is unpaid, an employee is entitled to use accrued paid time off. Additionally, the employer may require an employee to use accrued paid time off and may determine the order in which paid leave must be used pursuant to a written policy. However, the employer must provide the employee with written notice that the accrued paid time off must be used either prior to the employee beginning OFLA leave or within five business days of the employee’s notice of unforeseeable OFLA leave.

OMFLA

Just as with OFLA, employees are entitled to use any accrued paid leave during a period covered by the Oregon Military Family Leave Act (OMFLA). However, unless the terms of an agreement between the parties provide otherwise, the employee can determine the order in which accrued paid time off is used when more than one type of paid leave is available.

Paid Leave Oregon

An employer cannot require an employee to use accrued paid time off while receiving Paid Leave Oregon (PLO) benefits. Rather, PLO allows the employee to choose whether to supplement benefits with accrued paid time off. If the employee chooses to supplement PLO benefits, the employer can designate the order in which accrued paid time off is used.

However, when an employee elects to use accrued paid time off in conjunction with PLO benefits, the employer can choose either to cap an employee’s use of paid time off at 100 percent of the person’s full wage replacement when combined with PLO benefits or it can allow the employee to use accrued paid time off in excess of the employee’s usual pay. For employers that choose to cap an employee’s use of paid time off at 100 percent of full wage replacement, the Employment Department should share the employee’s weekly benefit information so the employer can determine how much paid time off the employee can use.

ADA disability leave

Under the Americans with Disabilities Act (ADA), a leave of absence may be a reasonable disability accommodation. In these circumstances, an employer does not have to provide paid leave beyond that which is provided to similarly situated employees. However, employers should allow an employee taking leave as a reasonable accommodation to exhaust accrued paid time off first and then provide unpaid leave.

Conclusion

Navigating paid time off in conjunction with an employee’s protected leave can be tricky. To avoid making a misstep, employers should review their policies to be sure they comply with each leave law. Importantly, when more than one leave law applies, the rule most favorable to the employee will apply. When in doubt, employers should consult with employment law counsel.

Amy Angel is a partner at Barran Liebman LLP. She advises employers on a full range of employment issues, including complex leave situations and drafts of leave policies. Contact her at 503-276-2195 or aangel@barran.com.

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither the author nor the 91��Ƶ guarantees the accuracy or completeness of any information published herein.

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Employers, take note! The Oregon Family Leave Act (OFLA) has been overhauled by the Oregon Legislature, and most of the changes will take effect on July 1, 2024. Here is a summary of the key changes:

OFLA leave will be in addition to leave under Paid Leave Oregon. That is, OFLA leave may not be taken concurrently with any leave under Paid Leave Oregon.

The qualifying reasons for OFLA leave will be limited. Beginning July 1, parental leave and serious health condition leave (of the employee or a family member) will continue to be covered under Paid Leave Oregon but will no longer be covered by OFLA. However, OFLA will cover sick child leave, bereavement leave, and pregnancy disability leave. Between July 1 and Dec. 31, 2024, OFLA will cover two additional weeks of leave to facilitate the placement of a child through foster care or adoption. Beginning Jan. 1, 2025, this will become a qualifying reason for family leave under Paid Leave Oregon.

OFLA sick child leave will be expanded. Sick child leave will cover absences of an employee when their child requires home care due to an illness, injury, or condition, even if the child has a serious health condition, as well as when the child’s school or place of care has been closed due to a statewide public health emergency declared by a public health official.

OFLA leave for sick child leave and bereavement leave is capped at 12 weeks per leave year. However, employees will be limited to two weeks of bereavement leave per death of a family member and a cap of four weeks of bereavement leave per leave year.

OFLA will still allow an employee to take an additional 12 weeks of pregnancy disability leave. This is in addition to the 12 weeks allowed for sick child leave and bereavement leave.

Use of paid time off during a period of leave under Paid Leave Oregon will change. Employees will be permitted to decide whether to use any accrued paid time off in addition to Paid Leave Oregon benefits so long as the total amount does not exceed their regular pay. However, to avoid worry about calculating how much paid time off an employee may use to bring pay up to 100 percent, an employer may permit an employee to use paid time off such that the total combined amounts exceed regular pay.

In addition, the Oregon Bureau of Labor and Industries (BOLI) has updated OFLA and sick time rules (with more changes on the way):

• When determining an employee’s eligibility for OFLA leave based on days and average hours worked, an employer must count any hours of protected leave taken, including OFLA leave.
• When an employee uses OFLA or sick time to care for or to grieve the death of a family member who is related by affinity, an employer may require the employee to attest in writing using an attestation form of a significant personal bond that is like a family relationship. BOLI has published a sample form and common examples of when a relationship is like a family relationship.
• The definition of “family member” is aligned to the updated statutory definition of “domestic partner” by eliminating the requirement that a domestic partner be the same gender as the employee.
• The definitions of “serious health condition” and “pregnancy disability” include a period of disability due to fertility or infertility treatment or pregnancy termination.

Also remember that by July 1, all employers must change their OFLA leave year to the forward-looking definition used by Paid Leave Oregon so that the leave year runs for 52 weeks beginning on the Sunday before the employee’s first day of leave. Employers that are covered by the Family and Medical Leave Act (FMLA) may also adopt this same leave year for employees in Oregon but must give them 60 days’ notice of the change.

Between the legislative and regulatory changes to OFLA, employers should revise their leave policies, update their leave tracking systems, and watch for additional rule changes.

Amy Angel is a partner at Barran Liebman LLP. She advises employers on a full range of employment issues, including complex leave situations and drafts of leave policies. Contact her at 503-276-2195 or aangel@barran.com.

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither the author nor the 91��Ƶ guarantees the accuracy or completeness of any information published herein.

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With little advance warning, the U.S. Centers for Disease Control and Prevention updated its mask and physical distancing guidance for anyone who is fully vaccinated. This change left other agencies and states scrambling to respond. It also raised more questions than answers for businesses left wondering about the meaning for employees and customers.

Updated guidance

The CDC stated that fully vaccinated people in non-health care settings can resume activities without wearing masks or physically distancing, except where required by other law or workplace guidance.

An individual is fully vaccinated two weeks after receiving a second dose in a two-dose series (Pfizer or Moderna) or two weeks after receiving a single-dose vaccine (Johnson & Johnson). Anyone who does not meet these requirements, regardless of age, is NOT fully vaccinated and should continue to follow guidance for unvaccinated people; this includes wearing a mask, maintaining six feet from others outside their household, and getting vaccinated.

Regardless of vaccination status, everyone must still wear masks when traveling on public transportation (planes, buses and trains) and when visiting nursing homes and long-term care facilities.

Oregon’s response

On the same day as the CDC announcement, Gov. Kate Brown stated that Oregon would follow the CDC guidance and that fully vaccinated individuals no longer need to wear a mask or physically distance in most public spaces. Exceptions include public transportation, hospitals and health care clinics, correctional facilities, and long-term care facilities.

The governor’s announcement understandably left businesses and the public confused as Oregon OSHA’s permanent rule on COVID-19 safety measures for workers had just gone into effect the week prior. That rule specifically mandates masks and physical distancing, subject to limited exceptions, for all individuals in the workplace, including customers and patrons, and does not distinguish based on vaccination status. Fortunately, the rule specifically notes that Oregon OSHA expects mask requirements to evolve as circumstances of the pandemic change, including as more Oregonians are vaccinated, and that it will issue interpretive guidance or make changes to its rules as appropriate to provide employers with accurate and complete information about what is required.

After a weekend of confusion and conflicts, on May 18, the Oregon Health Authority updated its guidance, clarifying that all businesses and employers must continue to apply and enforce mask and physical distancing requirements UNLESS they:

• have a policy for checking for proof of vaccination status of individuals; and
• request proof of vaccination status from each individual; and
• review each individual’s proof of vaccination prior to entry or admission.

Essentially, businesses were given two choices: 1, continue to apply and enforce mask and physical distancing requirements to all individuals, regardless of vaccination status, or 2, develop a policy and request and review proof of vaccination prior to entry or admission. A business does not have the option of allowing an individual to go without a mask if he or she has not provided proof of vaccination.

Proof of vaccination includes documentation provided by a tribal, federal, state or local government, or a health care provider, that includes an individual’s name, date of birth, type of COVID-19 vaccination given, date(s) given, and the name/location of the health care provider or site where the vaccine(s) were administered. Documentation may include, but is not limited to, the COVID-19 vaccination record card or a copy or digital picture of the vaccination record card.

On May 19, Oregon OSHA issued a statement that aligned with OHA’s guidance and stated that “an employer who requests and reviews verification of vaccination may permit fully vaccinated individuals with such proof of vaccination to go without a mask, face covering or face shield, and does not need to enforce physical distancing requirements for such individuals.” The statement clarifies that, if an individual who claims to be vaccinated but refuses to provide verification of vaccination status, the employer need take no further action but must enforce physical distancing and facial covering requirements without regard to the exemption. Oregon OSHA emphasized that all other requirements of the permanent rule remain in place and are not affected by this vaccination exemption.

Best practices

• Businesses choosing to allow fully vaccinated individuals to enter their facilities without a mask or physical distancing must have a policy describing the process for verifying vaccination status.
• Businesses with such a policy should use signage and post updates on their websites to alert customers and other visitors that they will be asked to provide proof of vaccination if they want to forgo masks and physical distancing.
• Businesses do not need to keep copies of documents reviewed regarding the vaccination status of customers and visitors. If documentation is kept, it should be limited to a “yes” or “no” determination, the name of the individual verified, and who performed the verification.
• Employers should share with employees their policies for fully vaccinated employees and customers. Employers should invite employees to submit proof of vaccination if they wish to be exempt from mask and physical distancing requirements. Employers should avoid asking why an employee is not vaccinated. Employers should record who verified the employee’s vaccination status and the date on which the employee is fully vaccinated. They do not need to keep a copy of the proof of vaccination.
• Employers with workers subject to a collective bargaining agreement should evaluate any obligation to discuss with union representatives the effects of implementing a vaccine exemption for employees or customers.

Amy Angel is a partner at Barran Liebman LLP in Portland. She represents employers in a variety of matters, including those related to managing COVID-19 in the workplace. Contact her at 503-276-2195 or aangel@barran.com.

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither the author nor the 91��Ƶ guarantees the accuracy or completeness of any information published herein.

The post OP-ED: Clarifications concerning the CDC’s current mask guidance appeared first on Daily Journal of Commerce.

The Oregon Family Leave Act (OFLA) and federal Family and Medical Leave Act (FMLA) provide eligible employees who work for covered employers with up to 12 weeks (sometimes more) of protected time off work. Most employees use OFLA/FMLA in good faith. However, there are some bad apples who misuse OFLA/FMLA leave, especially in unscheduled, intermittent ways.

So, how can an employer lawfully reduce OFLA/FMLA abuse? Employers can:

Train managers and supervisors

Managers and supervisors are the eyes and ears of a company. They are the first to hear that an employee may need time off for a protected reason, so they need to be trained to recognize when an employee is off work for a protected reason rather than an unprotected reason. They also need to be trained on what they can and cannot ask when an employee is calling off work. Most importantly, managers and supervisors need to know who to go to within the company to correctly manage OFLA/FMLA issues as soon as they arise.

Ask the right questions

Many managers and supervisors are reluctant to ask questions of an employee calling off work for fear of saying the wrong thing. But asking the right questions can help prevent OFLA/FMLA abuse because employees know they can’t simply call out without providing some explanation. At a minimum, when an employee calls off work, he or she should be asked to state the general reason for the absence (sickness, car trouble, wait for a repairman, etc.) and when he or she expects to return to work. If the employee says anything that resembles a family- or medical-related issue, Human Resources should follow up to see if it is a potentially qualifying absence. If the employee has not adhered to the company’s call-in policy, he or she should provide an explanation. If the employee is already certified for FMLA leave, he or she needs to specifically reference that the reason for the absence is the qualifying FMLA condition as opposed to something else.

Require employees to submit applicable certifications

When an employee gives notice of a potentially qualifying absence, always ask him or her to submit an appropriate certification from a health care provider. The forms published by the U.S. Department of Labor can be used for either OFLA or FMLA absences and include everything an employer can ask and nothing it cannot. These forms, when sufficiently completed, provide specific information regarding the nature of the absence, the expected duration of the absence, and, for reduced schedule or intermittent leave, the estimated frequency and duration of time needed.

Carefully track absences

Once an employee is certified to take OFLA/FMLA leave, the employer should carefully track all absences to distinguish those covered by OFLA, FMLA, both or neither. Oregon’s Bureau of Labor and Industries’ Technical Assistance for Employers publishes a helpful Leave Tracking Form for this purpose. If an employer does not have enough information at the time the absence is incurred to determine whether it is covered by OFLA or FMLA, now is the time to meet with the employee to obtain additional information. It can be harder to go back weeks or months later to determine whether a particular absence is covered. Staying on top of absences by tracking them also lets employees know that their employer is paying attention.

Recertify when permitted

An employer may request recertification from an employee if the circumstances described by the previous certification have changed significantly or if the employer receives information that casts doubt upon the employee’s stated reason for the absence. For example, if a medical certification states that an employee will need leave for migraines for one to two days at a time one time per month, but the employee calls out twice in one month for four days at a time, then the increased duration and frequency of the absences might constitute a significant change in circumstances allowing the employer to request a recertification. Likewise, if an employee is on FMLA leave for four weeks due to knee surgery and recuperation, and the employee posts pictures of himself skiing during the approved FMLA leave period, such information might be sufficient to cast doubt upon the continuing validity of the certification, thus allowing the employer to request a recertification.

Meet with the employee

Once OFLA/FMLA leave is approved, especially intermittent leave, meet with the employee to go over the call-in requirements, what information he or she needs to provide when calling in, and the consequences for failing to follow the call-in policy or providing medical certifications when requested. Meet with the employee again if he or she is not following the stated expectations, if the employee is using more leave than is certified, or if there is reason to suspect abuse. Being upfront about concerns has the dual purpose of curbing abuse, but also ensuring those with a genuine need for leave receive it.

Using these tools will help any employer manage OFLA/FMLA and reduce the potential for abuse. Employers with questions about specific leave situations should seek advice from an employment law attorney who is well-versed in managing leave laws.

Amy Angel is a partner at Barran Liebman LLP in Portland. She advises employers in a variety of matters, including those involving Oregon sick leave law, the Oregon Family Leave Act, the Family Medical Leave Act and the Americans with Disabilities Act. Contact her at 503-276-2195 or aangel@barran.com.

The post OP-ED: How to legally address misuse of state and federal leave laws appeared first on Daily Journal of Commerce.

On June 1, Gov. Kate Brown signed into law Oregon’s Equal Pay Act of 2017. The act requires employers to compensate employees based on their current skill, responsibilities, knowledge and working conditions. Specifically, the act prohibits differences in pay because an employee is a woman, a minority or a member of certain other protected classes. It also seeks to disrupt the cycle of pay inequity based on past discriminatory pay practices by prohibiting employers from seeking or using past pay history as a factor in setting compensation.

Equal pay requirements

The Equal Pay Act makes it an unlawful employment practice for an Oregon employer to discriminate between employees on the basis of race, color, religion, gender, sex, sexual orientation, national origin, marital status, veteran status, disability or age in the payment of wages or other compensation for work of comparable character. Work of comparable character means work that requires substantially similar knowledge, skill, effort, responsibility and working conditions (including work environment, hours, time of day, physical surroundings and potential hazards encountered by an employee) in the performance of work, regardless of the job description or job title. Compensation includes wages, salary, bonuses, benefits, fringe benefits and equity-based compensation.

Despite these restrictions, an employer may pay employees for work of comparable character at different compensation levels if the difference in compensation is based entirely on a seniority system, a merit system, a system that measures earnings by quantity or quality of production (including piece-rate work), workplace locations, travel (if travel is necessary and regular for the employee), education, training, experience, or any combination of these factors. However, these factors must account for the entire compensation differential.

Employees who believe they have been discriminated against in violation of these equal pay restrictions will have a private right of action beginning Jan. 1, 2019. Employees may recover up to two years of back pay and may seek additional compensatory and punitive damages.

However, an employer may assert a limited affirmative defense to avoid compensatory and punitive damages. To prevail in the affirmative defense, the employer must prove that, in the three years before the employee files a lawsuit, it completed an equal pay analysis of its pay practices in good faith that was reasonable in detail and scope in light of the size of the employer, related to the protected class asserted by the plaintiff in the lawsuit, and eliminated the wage differentials for the plaintiff and has made reasonable and substantial progress toward eliminating wage differentials for the protected class asserted by the plaintiff. If the employer prevails in asserting the affirmative defense, the employee may only recover back pay for the two-year period immediately preceding the filing of the lawsuit and his or her costs and reasonable attorney fees.

Salary history restrictions

The Equal Pay Act also prohibits employers from screening job applicants based on current or past compensation, to determine compensation for a position based on current or past compensation of a prospective employee, or seek the salary history of an applicant or employee. However, an employer may consider the compensation of a current employee during a transfer, move or hire of the employee to a new position with the same employer. An employer also may confirm prior compensation after the employer makes an offer of employment to a prospective employee that includes an amount of compensation. The restriction on seeking salary history goes into effect on the 91st day after the Legislature adjourns – so by Sept. 9, 2017. BOLI will have authority to enforce this provision and issue civil fines for violations. On Jan. 1, 2024, employees will have their own private right of action if employers seek pay history information.

Both the equal pay requirements and restrictions on relying on salary history apply to all employees who perform work in whole or in part in Oregon. When work is performed by the employee only partly in Oregon, these restrictions apply if there is an employment contract entered into in Oregon or if payment is ordinarily made (or will be made) within Oregon.

Time to act

Employers should immediately cease seeking pay history from applicants so that no inquiries are made about pay history beginning Sept. 1, 2017. Because the rest of the law does not go into effect until Jan. 1, 2019, employers have time to review and adjust current pay practices to comply with the act. Employers should strongly consider performing an equal pay analysis and correcting any practices that are not in compliance with the act. Should an employer find that it needs to make adjustments in compensation for current employees to comply with the act, the employer may not reduce the compensation of a higher-paid employee but instead must increase the compensation of the lower-paid employee.

The Equal Pay Act and practical steps for employers will be specifically addressed at Barran Liebman’s breakfast seminar on July 11. Anthony Kuchulis will discuss this and other key employment laws from Oregon’s 2017 legislative session. Space is limited and people interested in attending should visit www.barran.com to learn more and register.

Amy Angel is a partner at Barran Liebman LLP in Portland. She handles employment litigation in state and federal courts, and provides employers with advice and solutions. Contact her at 503-276-2195 or aangel@barran.com.

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Effective Jan. 1, 2016, Oregon employers will be required to begin providing protected sick time to all employees. On June 12, the Oregon Legislature passed Senate Bill 454, mandating sick time to be provided by Oregon employers. While the overall requirement is pretty simple – employees are entitled to up to 40 hours of paid, protected sick time each year – the devil is in the details and employers must be sure that they are complying with all aspects of the law, including the minimum accrual rates, carryover requirements, qualifying absences, notice requirements and so on. So read on to learn the key requirements of the new law.

All employers, except the federal government, that have one or more employees working anywhere in Oregon must implement a sick leave policy that will allow an employee to earn and use up to 40 hours of sick time per year. In general, all employees are entitled to receive sick time, but the law provides a limited exception for any employee who meets all of the three following requirements: the employee’s terms and conditions of employment are covered by a collective bargaining agreement, the employee is employed through a hiring hall or similar referral system, and the employee’s employment benefits are provided by a joint multi-employee trust or benefit plan. These employees are not entitled to sick time; however, all other unionized workers who do not fall within this limited exception must be provided sick time in accordance with the new law, and employers must bargain for changes to existing collective bargaining agreements that are not in compliance.

Sick time is protected and employers must not retaliate or discriminate against an employee who inquires about, requests or uses protected time. This means that a qualifying absence for which an employee uses sick time may not be disciplined or terminated as a result of, even in part, that absence. Employers with attendance control policies may need to make changes to ensure protected absences are not held against an employee.

Sick time must accrue at a rate of at least one hour for every 30 hours worked, unless the employer elects to front-load sick time by providing 40 hours at the beginning of the year. Employees begin to earn and accrue sick time on the first day of employment.

Employees employed prior to Jan. 1, 2016, may begin using sick time immediately as it accrues. New employees hired on or after Jan. 1, 2016, may use sick time beginning their 91st day of employment. Sick time may be used for the employee’s own physical or mental illness, injury or health condition (including routine doctor or dentist appointments), as well as for the care of a family member, for absences due to domestic violence, or in the event of a public health emergency. The employee cannot be required to find a replacement worker or work an alternate shift as a condition of, or to make up for, the use of sick time.

Employers must allow employees to use sick time in hourly increments unless to do so would impose an undue hardship on the employer and the employer has a policy that allows an employee to use at least 56 hours of paid leave per year that may be taken in minimum increments of four hours.

Unless an employer front-loads sick time, an employee may carry over up to 40 hours from one year to a subsequent year, but an employer may limit an employee to accrual of no more than 80 hours of sick time or use of no more than 40 hours of sick time in a year. Employers are not required to cash out unused sick time at termination.

Many people think of the new law as paid sick time, but whether an employee is paid depends upon an employer’s number of employees. Employers with 10 or more employees must provide sick time as paid. However, the threshold number of employees for paid sick time drops to six for employers that maintain any office, store, restaurant or establishment within the city of Portland, regardless of whether the employee works in Portland or elsewhere in Oregon. Paid sick time must be paid at the employee’s regular rate of pay and without a reduction in benefits. Employers with fewer than 10 employees (or Portland employers with fewer than six) must offer unpaid sick time, but may elect to offer it as paid.

Employers are free to provide for more generous sick leave policies and may comply with the new law through vacation or paid time off policies so long as the minimum requirements of the law are met.

Employers may still require their employees to comply with their usual notice and procedural requirements for absences and requesting time off so long as those requirements do not interfere with the employees’ ability to make use of their accrued sick time. However, an employer may not require more than 10 days’ advance notice of foreseeable leave.

The good news for employers is that the Oregon law pre-empts local governments from setting any sick leave requirements. That means that as of Jan. 1, 2016, Portland’s Protected Sick Time Ordinance will no longer be in effect, leaving employers to focus just on the statewide requirements. However, employers subject to the Portland ordinance should continue to comply through the end of 2015. By then, BOLI will publish final rules clarifying the new requirements as well as a template notice that employers can use to communicate the provisions of the law to employees.

Time is running out! While this article touches on the key components of the detailed law, employers should consult with counsel regarding nuances for their workplace and update their policies to ensure full compliance by Jan. 1, 2016.

Amy Angel is a partner at Barran Liebman LLP in Portland. She handles employment litigation in state and federal courts, and provides employer advice and solutions. She also is a frequent speaker on the new Oregon sick leave law. Contact her at 503-276-2195 or aangel@barran.com.

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The Portland City Attorney’s Office has published the implementing the city’s new . It will take effect Jan. 1, 2014, and require all private-sector employers to provide up to 40 hours of sick leave per year to all employees employed at least 90 days and working at least 240 hours in a year within Portland city limits.

The final rules have several key changes and clarifications from the proposed administrative rules:

• Rather than requiring employers to use a calendar year for sick time accrual, use and carryover, the rules now permit an employer to use any consecutive 12-month period of time that is normally used for calculating wages and benefits, including a calendar year, tax year, fiscal year, contract year, or the year running from an employee’s anniversary date of employment.

• Employers are not required to provide sick time accrual during hours spent by an employee on paid or unpaid leave.

• Vacation pay accounts, such as those commonly provided by unions, which otherwise meet the minimum accrual rates and leave purposes, satisfy the ordinance.

• When calculating an employee’s time spent working in the city for purposes of leave accrual, for employees who travel through the city and who stop in the city for purpose of their work (e.g., meetings, service calls, deliveries, etc.), an employer may make a reasonable estimate of an employee’s time spent working in the city, including by relying on dispatch logs, delivery addresses and estimated travel times, or historical averages.

• Employers that provide front-loaded sick time (i.e., sick time provided at the beginning of the leave year rather than accrued over the course of the year) are not required to allow an employee to carry over accrued hours to a subsequent year.

• Rather than calculating the number of employees employed by an employer on a quarterly basis, the rules now use the same calculation method as in the Oregon Family Leave Act. That is, for established employers, the number of employees is calculated based on the number of employees who were employed each working day during each of 20 or more calendar work weeks in the calendar year in which the leave is to be taken or in the calendar year immediately preceding the year in which the leave is to be taken. For new employers who did not have any employees for at least 20 workweeks in the previous or current calendar year, the number of employees is calculated based on the average number of employees per calendar work week during the first 90 calendar days of the current calendar year.

• Employees may use sick time beginning on the 91st calendar day of employment – rather than the 90th day – so long as the employee has also worked a minimum of 240 hours for the employer within the city.

• In general, an employer may not require an employee to take off a full shift as a condition of using sick time. However, when it is physically impossible for an employee to commence or end work part way through a shift, the entire time the employee is absent may be counted as sick leave.

• For employees who are scheduled to work a shift of indeterminate length, the employer may determine payment for sick time based on hours worked by a replacement employee in the same shift or similarly situated employees who worked that same or similar shift in the past.

• Unused sick time is retained by an employee if the employer sells, transfers or otherwise assigns the business to another employer and the employee continues to work in the city.

• An employer may deny sick time to an employee if the employee fails to provide notice as required by the ordinance or if the employee fails to make a reasonable effort to schedule leave in a manner that does not unduly disrupt the operations of the employer.

• Similarly, if the employee fails to provide requested documentation of the need for sick time, the employer may deny the use of sick time until the employee provides documentation verifying that the absence was for a qualifying reason.

• If an employer requires verification from a health care provider, in all instances, the employer must pay the cost that is not covered by insurance or another benefit plan. The proposed rules provided that, in cases in which the employer suspected abuse of sick time, that the employee had to pay the cost of verification, but this is no longer permitted.

• Employers must provide written notice to all employees who work in the city of their entitlement to sick time, including the amount of sick time, terms of its use, the prohibition against retaliation, and the right to file a complaint if sick time is denied or if an employee experiences retaliation for requesting or taking sick time. The final rules mandate that employers provide this notice to employees no later than the end of the first pay period in 2014 or, for new employees, the end of the first pay period for those employees.

• Additionally, employers must display a poster – which the city is expected to publish by the end of the year – in each building and worksite in an area accessible to and regularly frequented by employees.

• Both the employer’s notice and the poster must be in English as well as any additional languages normally used to communicate with employees.

• Employers must keep specified records for two years. The final rules expand the records that employers must keep to include not only the name, address and occupation of each employee and the amount of sick time or PTO accrued and used by each employee, but also the following:

— For hourly employees, the hours actually worked in the city during each pay period by each employee,

— For salaried employees who work in the city on a regular basis, the hours of a normal work week for each employee,

— For salaried employees who work in the city on an occasional basis, the hours actually worked in the city during each pay period by each employee, or

— For employers that choose to front-load sick time or PTO, the amount of sick time or PTO front-loaded and the dates on which the sick time or PTO is available to the employee to use.

• If an employer denies an employee the use of sick time and the employee works on a day he or she would have otherwise taken sick time, BOLI may assess a civil penalty equal to three times the dollar amount of sick time the employee was refused or $250, whichever is greater, payable directly to the affected employee.

Now that the administrative rules are set, employers should carefully scrutinize any existing policies they have, including for sick leave, PTO, or attendance violations, and make any necessary changes before Jan. 1, 2014. Additionally, payroll personnel should begin now in establishing a system for tracking and retaining the required information.

Amy Angel is a partner with Barran Liebman LLP. Contact her at aangel@barran.com.

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Legal issues swirling around interns have abounded this month.

On June 11, a federal court in New York found that unpaid interns who worked during the production of Fox Searchlight Pictures’ film “Black Swan” were actually employees entitled to the wage and hour protections of state and federal law. Then on June 13, Oregon Gov. John Kitzhaber signed into law a bill that extends workplace protections to interns.

Accordingly, all employers that offer internships are advised to review and update their programs and policies.

“Black Swan” unpaid interns deemed employees

The “Black Swan” case, the first of several to consider whether unpaid interns are actually employees under wage and hour laws, showcases how critical it is for employers to properly classify interns.

The Fair Labor Standards Act (and Oregon law) includes an exception to the definition of employee for unpaid interns or trainees. Interns who do not fall within the exception are entitled to minimum wage and overtime pay as well as other workplace protections for employees. Accordingly, it is crucial for employers to understand whether an intern is truly an intern and not an employee.

Pursuant to guidance issued by the U.S. Department of Labor, to be an unpaid intern or trainee, ALL of the following criteria must be met.

1. The internship must be similar to training that would be given in a vocational school or in an educational environment.

2. The internship experience must be for the intern’s benefit.

3. The intern must not displace regular employees, but must work under the close supervision of existing staff.

4. The employer that provides the training must derive no immediate advantage from the intern’s activities and on occasion the employer’s operations may actually be impeded.

5. The intern must not be entitled to a job at the conclusion of internship.

6. The employer and the intern must understand that the intern is not entitled to wages for the time spent in the internship.

In the “Black Swan” case, the court found that the interns did not receive training similar to that in an educational environment and that they performed routine tasks that otherwise would have been performed by paid employees – not surprisingly, fetching coffee and performing other administrative tasks not educational in nature. Additionally, the “primary” beneficiary of the internships was the production company and not the interns. Although the interns understood that they would not be paid, the court pointed out that the FLSA does not allow employees to waive their entitlement to wages.

The lesson for all employers that offer internships is that careful scrutiny of the program is needed to ensure that any unpaid (or underpaid) interns meet the statutory requirements. Just because interns are receiving school credit does not mean they are interns under wage and hour law. Rather, all six criteria must be met. When in doubt, it is safer to pay the intern at least minimum wage plus overtime.

Oregon extends workplace protections to interns

Individuals who truly are unpaid interns in Oregon now enjoy certain state workplace protections previously afforded only to paid employees.

House Bill 2669 was signed into law on June 13. Effective immediately, interns are “considered to be in an employment relationship with an employer” for purposes of Oregon’s employee protections against certain unlawful employment practices including:

• sexual harassment;

• discrimination based on race, color, religion, gender, sexual orientation, national origin, marital status or age;

• discrimination based on service in the uniformed services;

• disability discrimination and impermissible medical inquiries or examinations;

• whistleblower retaliation;

• requiring Breathalyzer, polygraph, psychological stress or brain-wave test;

• obtaining or using genetic information; and

• discrimination based on tobacco use during non-work hours.

HB 2669 adopts a definition of “intern” in line with existing federal and Oregon wage and hour law.

Previously, interns did not have a legal right to bring claims of employment discrimination or retaliation. Nor did the Oregon Bureau of Labor and Industries have authority to investigate workplace complaints brought by interns. HB 2669 changes that landscape. Interns will now be entitled to have those complaints heard just as any other employee would.

HB 2669 does not, however, extend all employment protections to interns. For example, employee protections for violations of wage and hour, occupational safety and health, workers’ compensation, and unemployment insurance laws remain unchanged by the statute.

Additionally, interns are not eligible for leave pursuant to the Oregon Family Leave Act.

For employers, in theory, compliance with Oregon’s new law will simply require that they revise their existing policies against discrimination, retaliation or harassment of employees to cover interns.

However, in practice, the new law exposes employers to additional risks when hiring an intern, and companies hiring interns should review whether a discrimination lawsuit by an intern will be covered by existing employment practices liability insurance policies.

Amy Angel, a partner at Barran Liebman LLP, handles employment litigation in state and federal courts, and provides employer advice and solutions. Contact her at 503-228-0500 or at aangel@barran.com.

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More than 2 million troops – including nearly 800,000 National Guard and Reserve members – have been deployed since Sept. 11, 2001. Approximately 40,000 troops are still in Iraq, but they are scheduled to leave by the end of the year. Veterans who return to civilian life face considerable barriers in employment, especially if they have service-connected disabilities.

With an estimated 1 million service members expected to re-enter civilian life in the next five years and unemployment rates for male veterans ages 20-24 exceeding 30 percent, the issue is only expected to become more pronounced. Employers should be aware of the incentives for hiring veterans as well as legal obligations that prohibit discrimination and provide affirmative re-employment and other rights to veterans.

VOW to Hire Heroes Act

This legislation was signed into law by President Obama on Nov. 21. In addition to providing enhanced job training and transition assistance to veterans, the act will provide tax credits to employers that hire veterans on an increasing scale based on how long the veteran has been unemployed: up to $2,400 for those unemployed at least four weeks, up to $5,600 for those unemployed longer than six months and up to $9,600 for those who have service-connected disabilities and have been unemployed longer than six months.

Veterans’ Employment Preference Points

Public employers, federal and in many states, have long-standing programs that provide preference points in hiring disabled veterans and veterans who have served during certain time periods or in certain military campaigns. To qualify, an honorable or general discharge is necessary.

USERRA anti-discrimination and reemployment rights

The Uniformed Services Employment and Re-employment Rights Act prohibits all employers from discriminating against employees or applicants on the basis of military status or obligations. It also protects the re-employment rights of those who leave civilian jobs to serve in the uniformed services, including the U.S. Reserve forces and state National Guards, and makes a timely demand for re-employment. USERRA has no statute of limitations and applies to all employers of all sizes.

USERRA’s re-employment provisions require that a qualifying service member be re-employed, but not necessarily in the pre-service position. It can be an “escalator position” – one that he or she would have held had there been no break in employment. This entitles returning service members to the same seniority, status, pay and other rights and benefits, including promotions based on seniority, they would have had, with reasonable certainty, if not for their military absence.

The escalator principle also preserves seniority when determining whether a returning service member qualifies for leave under the Family Medical Leave Act or the Oregon Family Leave Act. In short, when determining leave eligibility based on length of service and hours worked, time spent on military duty is counted as employment with the pre-service employer.

Exception to at-will employment

Depending on the length of service leave, USERRA prohibits an employer from discharging an employee following re-employment except for “just cause,” even if the employee is otherwise an at-will employee. Leaves of 31-180 days require just cause for termination for a period of six months following re-employment. Leaves longer than 180 days require just cause for termination for a period of one year.

Veterans with service-connected disabilities

Both USERRA and the Americans with Disabilities Act mandate that employers provide reasonable accommodations. However, USERRA requires employers to go further than the ADA by making reasonable efforts to assist a returning veteran to become qualified for a job, including training or retraining.

Also, reasonable accommodations are available under USERRA for individuals with service-connected disabilities, even if they do not meet the ADA’s definition of “disability.” Many service members are returning with injuries – both physical (lost limbs, severe burns, hearing or vision impairments) and mental (post traumatic stress disorder and traumatic brain injuries – but are still able to work. Veterans with PTSD and/or TBI may not immediately reveal evidence of the need for an accommodation.

Just as important as the protection from discrimination against those who actually suffer from disabilities are protections that prohibit discrimination against those “regarded as” disabled. While studies show that anywhere from 15 percent to 30 percent of returning troops suffer from PTSD and/or TBI, employers should not assume all returning veterans suffer from these conditions.

Family members

The Family Medical Leave Act provides unpaid, job-protected leave to qualifying family of service members, including time to attend official ceremonies or events sponsored by the military that are related to the service member’s active duty – such as official welcome home events.

Oregon has its own Military Family Leave Act which allows a service member’s spouse to take a total of 14 days unpaid leave per deployment, to be taken before deployment and/or during leave from deployment.

Amy Angel specializes in employment litigation and advice as an attorney with Barran Liebman LLP. Contact her at 503-276-2195 or aangel@barran.com.

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Domestic violence, stalking and sexual assault can shatter the lives of employees, with implications that extend beyond the home and into the workplace. The statistics are staggering:  one in four women and one in nine men are victims of domestic violence.

The workplace is frequently the only location where an abuser can readily access, or, in some circumstances, locate an intended victim. Abusers can employ economic abuse and employment sabotage to control their victims.

A reported 74 percent of battered women who are employed are harassed at work by their abusive partners. Abusers will call their victims frequently during the work day, come to their place of work unannounced and even demand that they quit their jobs (or cause them to get fired) to prevent their victims from gaining enough independence to leave the relationship.

Domestic violence has very real costs to employers: increased absenteeism, impaired job performance, loss of valued and experienced employees, and increased health care costs. Domestic violence also can result in significant legal costs when an employer responds improperly. Domestic violence costs companies an estimated $5.4 billion annually.

Employers have specific responsibilities to employees who are victims of domestic violence. Oregon law expressly provides employment protection to victims of domestic violence, harassment, sexual assault and stalking, and makes it an unlawful employment practice to discriminate or retaliate against an individual because he or she is a victim. Employers must provide victims with reasonable leave to seek legal, medical or victims’ services assistance as well as to relocate or to secure an existing home. Employers must also provide “reasonable safety accommodations” in the workplace.

Employers that mishandle domestic violence incidents in the workplace may also find themselves facing a sex discrimination lawsuit. For example, an employer may be liable for sex-based harassment when such incidents occur at the workplace, whether perpetrated by a co-worker, supervisor or third party.

While men and women alike are victims of domestic violence, 90 to 95 percent of victims are women. Accordingly, workplace policies and practices that place victims of domestic violence at a disadvantage may have a disparate impact on women. Additionally, an employee may have a claim for sex-based disparate treatment or gender stereotyping when the victim and the abuser are involved in or accused of the same offense but are disciplined in different ways.

In addition to their obligations to victims, employers have a duty to maintain a safe working environment for their entire workforce. With this in mind, employers should follow these key principles when addressing domestic violence in the workplace:

• Listen to the victim and ask how you can help. Respect the victim’s choices and involve him or her in any decision you make or actions you take because well-intentioned help may actually place the victim in greater danger.

• While employers may offer resources to victims, do not advise the victim on personal safety issues or what to do about the relationship. Instead, encourage the victim to seek assistance from a victims’ assistance professional who can assist him or her with safety planning. Through this process the victim may identify ways that the employer may make safety accommodations.

• Assess what leave and safety accommodations can be provided. Accommodations may include changing the victim’s work phone number, direct deposits or schedule; offering to escort the victim to and from his or her car; or permitting the victim to telecommute.

• Maintain confidentiality. Oregon law has strict confidentiality requirements when an employee requests domestic violence leave or a reasonable safety accommodation. Never give out a victim’s personal contact information, even to co-workers.

• Evaluate the threat to the workplace. A victim who leaves an abuser or obtains a protective order may actually be in more danger and create a greater risk of violence at the workplace because it may be the only place the abuser knows when and where to find the victim.

When an employee comes forward about domestic violence, ask about facts that might reveal a threat to the workplace, including the abuser’s background, criminal record, mental health history and history of violence. Ask the victim to provide a photograph of the abuser and a description of the abuser’s vehicle, including a license plate number. Provide this information to security personnel and reception staff.

In the event of an incident at the workplace, treat it the same as any other incident of workplace violence and do not hold the victim responsible.

• Take prompt remedial action against any employee, customer or visitor who engages in any threatening behavior or acts of violence in the workplace or other acts that impact the workplace. Notify and involve law enforcement immediately.

• Be prepared if an employee obtains a protective order against another employee. While such situations required individualized responses, consider whether is it feasible and safe to relocate the abuser to a new location that would still comply with the protective order.

Investigate whether the abuser has violated any company policies, including committing a crime, engaging in sexual harassment, or using company time, materials or resources to abuse, harass, or stalk the victim. Evaluate whether the abuser’s work performance is suffering, including increased absenteeism or distraction caused by the focus on the victim.

Employers can require an abuser to attend a certified batterer’s intervention program or participate in other treatment as part of disciplinary action.

Amy Angel specializes in employment litigation and advice as an attorney at Barran Liebman LLP. Contact her at 503-276-2195 or at aangel@barran.com. She will be speaking on domestic violence and the workplace at Barran Liebman’s annual employment, labor and benefits law seminar on Sept. 22 at the Oregon Convention Center in Portland. To register, visit or email Traci Ray at tray@barran.com.

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