Since April, employers have been carefully tracking their obligations for providing emergency paid leave under the Families First Coronavirus Response Act (FFCRA), as well as the changing and expanding regulations and guidance from the U.S. Department of Labor (DOL). On Aug. 3, a federal court in New York invalidated four portions of the DOL’s regulations, leaving employers nationwide with unanswered questions about how and whether to apply this ruling.

On Sept. 11, the DOL issued revised FFCRA regulations in response to the federal court’s decision and to provide further clarification about FFCRA eligibility. While the DOL stood behind its original regulations regarding intermittent leave and the work availability requirement, it did narrow the health care provider exemption and modified the timing of when documentation could be required, so employers should be aware of these updates and may need to consider adjustments to policies and practices.

Employees may provide FFCRA documentation as soon as practicable

Employers should consider the timing of requiring FFCRA documentation from employees. The initial regulation required employees to provide documentation before taking FFCRA leave. However, the revised regulation states that an employee must provide the required information and documentation “as soon as practicable.” Therefore, employers should modify their policies or practices if they previously required documentation as a condition of and prior to taking FFCRA leave.

The health care provider exemption now depends on the employee’s duties

The DOL narrowed its definition of “health care provider,” limiting the type of employees exempted from FFCRA leave. Previously, the definition of “health care provider” was so broad that the federal court noted that it included “an English professor, librarian, or cafeteria manager at a university with a medical school.” In revising its definition of “health care provider,” the DOL focused on the roles and duties of employees rather than the role of the employer. Accordingly, the revised definition of “health care provider” includes only those employees who directly “provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.” Employers that were previously relying on the broad definition of “health care provider” to exempt all of their employees from FFCRA leave may need to reconsider whether employees are actually eligible for emergency paid leave based on each employee’s duties.

Other challenged provisions remain unchanged

Despite the challenge in federal court, the DOL reaffirmed its position with respect to the work unavailability requirement and the requirement for employer consent before taking intermittent leave. If employers relied on the federal court decision to make any changes to their policies and practices, this may require adjustment again.

Specifically, the DOL’s revised regulations confirm that FFCRA leave is only available to employees who are unable to work or telework due to a qualifying event. Employees are precluded from FFCRA leave if the employer did not have work for the employee or the employee was otherwise unscheduled to work, regardless of whether the employee also happens to have a qualifying event.

In addition, employer consent is still required before employees are entitled to FFCRA intermittent leave. However, employers should keep in mind that intermittent leave is still only appropriate for qualifying events under FFCRA that do not present a public health risk, such as when an employee needs to care for a child whose school or place of care has been closed or is unavailable (or other qualifying reasons when the employee is working remotely and not reporting to the work site). In such an event, employers are entitled and obligated to give consent before providing FFCRA intermittent leave. Note, however, if schools are operating on alternate day schedules or other hybrid attendance, the DOL does not consider this to be intermittent leave and employer consent cannot be required as a condition of providing the leave to an eligible employee.

The revised regulations provide more guidance on FFCRA leave and apply nationwide, and this is another reminder of the constantly evolving landscape. Employers should seek advice from counsel to ensure compliance with all FFCRA regulations, as well as consider potential overlap with other state laws for sick or other protected leave.

Heather Fossity is an attorney with Barran Liebman LLP. She represents employers in a variety of employment matters. Contact her at 503-276-2151 or hfossity@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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It is the peak of ski season, and it seems like everyone is talking about his or her weekends spent on the mountain. In light of this, if an employee reports a work-related knee injury, what should an employer do? What many employers may not realize is the answer may be the same whether you believe the injury occurred on the slopes or you saw it happen at the worksite.

Also, keep in mind that fraudulent workers’ compensation claims are likely less common than many employers believe. In the event of a reported workplace injury, employers should take the following steps to minimize the risk of discrimination, retaliation and other employment claims.

1. Report the injury

Once an employee reports a workplace injury, the employer is required to report the claim to its insurer within five days. Note, it is not the employer’s job to evaluate the legitimacy of a claim. Instead, if there is reason to question the claim, provide this information to the insurer. Employers report workers’ compensation claims on Form 801, and then the insurer will determine whether to accept or deny the claim. The insurer may work with the employer to investigate the circumstances surrounding the injury and make an informed decision about whether to accept or deny the claim.

2. Provide modified duty if suitable and available

If the insurer accepts the claim, the employer’s next steps will depend on the employee’s medical restrictions, as determined by the employee’s attending physician. The attending physician will complete a work release indicating if the employee can return to work and specifying any restrictions that apply. Employers are required to provide modified duty if suitable and available. This means employers should provide work within employees’ work restrictions, but employers are not required to create new positions or new work assignments if they do not exist. Further, if the employer does have suitable modified duty work available, the employer should offer the modified duty position to the employee in writing, as this may impact the employee’s reinstatement rights.

3. Consider the employee’s rights

The insurer will monitor the employee’s treatment and recovery to process the claim to closure or settle the claim with the employee. In some circumstances, insurers may settle claims on a global basis, which would include an employment release. Otherwise, employers should consider employees’ re-employment and reinstatement rights.

An employer with six or more employees may be required to re-employ an injured employee once he or she is released to work by the attending physician. This means an employee who has sustained a compensable injury and is disabled from performing the duties of the worker’s former regular employment is generally entitled to be reemployed by the employer for other work that is available and suitable.

Similarly, employees who work for employers with more than 20 employees may be entitled to reinstatement if released to their pre-injury job by their attending physicians. An employee can return to his or her former position of employment upon demand for reinstatement, regardless of whether the employer filled the position with a replacement while the employee was out.

An employee’s right to re-employment or reinstatement terminates in certain circumstances. For example, if the attending physician determines the employee cannot return to the former position (or any position with the employer for re-employment), the employee is no longer entitled to re-employment or reinstatement. The employee also loses re-employment and reinstatement rights if the employee is eligible and participates in vocational assistance, accepts suitable employment with another employer after becoming medically stationary, refuses a bona fide offer from the employer of light duty or modified employment that is suitable prior to becoming medically stationary, fails to request re-employment or reinstatement within seven days of being notified by the insurer or self-insured employer by certified mail that the attending physician or nurse practitioner authorized to provide compensable medical services has released the employee for employment, or three years have elapsed since the date of injury.

4. Assess the risk of employment claims

Employers should be cautious about terminating employees shortly after they have filed workers’ compensation claims, particularly if the nondiscriminatory reason for the termination is not abundantly clear. Oregon law prohibits discrimination against a worker with respect to hire, tenure, or any other terms of employment because the worker has applied for benefits or invoked the workers’ compensation system. Note, the employee could bring a discrimination/retaliation claim even if the workers’ compensation claim was denied.

Further, employers should consider the potential overlap with the Americans with Disabilities Act (ADA), the Oregon Family Leave Act (OFLA), and the federal Family and Medical Leave Act (FMLA). A disabling compensable injury may also be considered a “serious health condition” under OFLA and FMLA or may be considered a “disability” under the ADA. Employers may need to take additional steps to ensure compliance. For example, if the injury results in a disability under the ADA, the employer must engage in the interactive process and provide reasonable accommodations unless it would impose an undue hardship.

Each situation is unique, and an employer evaluating how to move forward after a workplace injury should reach out to counsel for assistance with compliance and performance of a thorough risk analysis.

Heather Fossity is an attorney at Barran Liebman LLP. She defends employers and management in a variety of employment matters, while serving as proactive counsel. Contact her at 503-276-2151 or hfossity@barran.com.

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Last summer, the Oregon Legislature passed Senate Bill 828 – the first state predictive scheduling law. Similar ordinances are in place in select cities – including San Francisco, Seattle and New York – and are currently under consideration in Chicago. There seems to be a growing trend to increase employee protection in industries such as food and beverage, where schedule predictability has historically been an issue. Since the majority of the Oregon law takes effect July 1, 2018, and the Oregon Bureau of Labor and Industries last month issued proposed rules implementing the law, now is a particularly important time to revisit this topic.

The Fair Work Week Act applies to employers with 500 or more employees worldwide in retail, hospitality or food services (“covered employers”). This also includes separate entities that form an integrated enterprise, based on interrelation of operations, shared common management, centralized control of labor relations, and common ownership or financial control. The Fair Work Week Act applies to the covered employers’ nonexempt employees.

Under the Fair Work Week Act, covered employers must provide employees advance notice of their work schedule or the employer will face penalties. As of July 1, 2018, covered employers must give employees a written work schedule at least seven calendar days in advance (and 14 calendar days in advance beginning July 1, 2020). Further, at the time of hire, covered employers must provide a good faith estimate of employees’ work schedules, including the median number of hours expected to work in an average month and information about voluntary standby and on-call shifts.

With this change, covered employers should exercise particular caution when modifying employees’ work schedules. Under the Fair Work Week Act, employees are entitled to additional compensation for work schedule changes without advance notice. For example, in addition to the wages earned, the employer must pay the equivalent of one hour of the employee’s regular rate of pay if the employer adds more than 30 minutes of work to the employee’s shift, changes the date or start or end time of the employee’s shift without a loss of hours, or schedules the employee for an additional work shift or on-call shift.

The covered employer is also responsible for additional compensation in the amount of one half times the employee’s regular rate of pay for scheduled hours the employee does not work if the employer subtracts hours from the employee’s shift, changes the date or start or end time of the shift resulting in a loss of hours, cancels the employee’s work shift, or does not ask the employee to perform work when the employee is scheduled for an on-call shift.

As some relief, covered employers are not responsible for additional compensation when employees mutually agree upon shift swaps, the schedule is modified by fewer than 30 minutes, the employee requests the changes, there are documented disciplinary reasons for changes to the schedule, and in circumstances involving threats to employees or property, failed public utilities, natural disasters and ticketed event cancellation.

Although these procedures may undermine necessary flexibility, the Fair Work Week Act does provide a voluntary standby list as a mechanism to address unanticipated needs. To comply with the law, employees must request or agree in writing to be a part of the standby list, and employers must provide written notification that the list is voluntary, how the employer will notify employees of additional hours, that the employee is not required to accept the additional hours offered, and that the employee is not entitled to additional compensation due to the change.

The Fair Work Week Act also allows employees to express schedule preferences, although employers are not required to honor the requests. Employers can ask for reasonable verification of the need for the request, but when requesting medical verification, the employer must pay reasonable costs including lost wages if the costs are not paid under a health benefit plan. Further, employers cannot retaliate against an employee for expressing scheduling preferences.

The Fair Work Week Act will also impact scheduling the same employee for closing and subsequent opening shifts as it requires hourly employees have 10 hours of rest in between shifts. Otherwise, if the employee works during this rest period, the employer must compensate the employee at one and one half times the employee’s regular rate of pay.

Although the Fair Work Week Act imposes new burdens on covered employers, there may be some benefits as well. For example, predictable schedules also mean predictable wages, and idealistically, a happy and healthy workforce is an asset to any company.

As major provisions of this law take effect this summer, we highly encourage employers to reach out to counsel to finalize any updates to policies, procedures and training, and to clarify any remaining questions.

Heather Fossity is an attorney at Barran Liebman LLP. She defends employers and management in a variety of employment matters, while serving as proactive counsel. Contact her at 503-276-2151 or hfossity@barran.com.

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