October 29, 2013
By Brian King, Attorney
In May 2012, federal OSHA enacted significant changes to the OSHA Hazard Communication Standard( HCS) program . The applicable regulations are found at 29 CFR 1910.1200 and require chemical manufacturers and employers to comply with the modified provisions of the new rules by June 1, 2015. The rules are designed to align the HCS program with the Globally Harmonized System of Classification and Labeling of Chemicals. The major changes to the HCS are as follows:
• The health and physical hazards associated with hazardous chemicals must be classified pursuant to specific criteria.
• Hazardous chemical labels must be prepared in a manner that includes a harmonized signal word, pictogram and hazard statement for each hazard class and category.
• Material safety data sheets will now be called “safety data sheets” and must follow a specified 16 section format.
• Employers are required to train workers by December 1, 2013 on how to read and understand the new labels and safety data sheets.
What Level Of Employee Training is Required by the December 1, 2013 Deadline
The federal OSHA website includes a section dedicated to the HCS program. The website contains a two page summary of the training that must be conducted before December 1, 2013. The website also provides useful materials that employers can use to conduct the required training including an OSHA Brief on safety data sheets and OSHA Quick Cards explaining the requirements for labeling and pictograms.
Please feel free to contact your Schwabe attorney if you have any questions regarding how to conduct the required training.
October 16, 2013
By Jean Ohman Back, Employment Attorney
The Americans with Disabilities Act (ADA) continues as a significant area of liability for employers. The EEOC received 26,379 charges in fiscal year 2012 and The Act continues to present complex requirements for employers in working with and managing employees with disabilities. We will publish a series of blog posts that address employer exposure to the ADA and provide best practices regarding how to engage in an interactive process conversation with employees, evaluate situations where the ADA overlaps with the state Workers’ Compensation Act or other leave laws, and manage those sticky situations where an employer must discipline an employee with a disability based on job performance issues.
First, we are considering the interactive process. This is the name given to the process that an employer utilizes in order to determine the appropriate reasonable accommodation that will enable an employee with a disability to perform the essential functions of the position. The requirement for the interactive process is in the appendix to the administrative rules to the Americans with Disabilities Act. See, 26 CFR part 1630 Appendix. In addition, the Ninth Circuit has made it very clear that participating in a good faith interactive process dialogue is an absolute requirement under the ADA. Employers who fail to do so will be liable for failing to provide a reasonable accommodation. See, e.g., Barnett v. U.S. Air, Inc. 228 F.3d 1105, 1112 (9th Cir 200), rev’d on other grounds, 535 U.S. 391, 122 S.Ct. 1516, 152 L.Ed. 2d 589(2002).
First, a disclaimer. This post will provide suggestions for best practices. This is not legal advice. If you have specific questions related to an ADA issue, please consider obtaining legal advice specific to the situation.
So, what must an employer do to engage in a good faith interactive process? By following the best practices outlined in the steps below and training supervisors and managers, employers will demonstrate good faith efforts to engage in the interactive process that will reduce liability in failure to accommodate claims.
Step 1 – Create a policy. Don’t hide your interactive process requirement, rather publicize it. Inform your employees that a requirement of the ADA is that both parties communicate in good faith regarding reasonable accommodations. A good idea is to include a discussion of the interactive process as part of your ADA policy. At a minimum, tell employees that if they request an accommodation, you will review their job description with them, determine the difficulties that their disability causes in their performance of the essential job functions, and brainstorm over accommodations that you can provide to assist them. When you do your next handbook review, include this on the list of updates.
Step 2 – Review your job descriptions. We will cover how to draft a good job description in a future blog post, stay tuned. For our purposes here, check that you have accurately described the essential job functions in both your job description and any advertisement or job posting for the position. The ADA regulations provide the following considerations in determining whether a job duty is essential:
- The reason that the job exists is to perform that duty;
- A large percentage of work time is spent performing the duty;
- There are no (or a limited number of) other employees available to perform the duty;
- The worker is hired for his or her expertise and the work is highly specialized;
- The employer judges the job duty to be essential to performing the job;
- Serious consequences would occur if the duty were not performed;
- The job duty is required by the terms of a collective bargaining agreement; and
- Individuals in that job in the past performed the duty.
Step 3 – Train your supervisors to recognize an accommodation request. Accommodation requests are not always obvious. There is no requirement that an employee request an accommodation in writing. A statement by an employee that he or she is having a problem performing their job because of a medical condition is likely sufficient to constitute an accommodation request. It is best practice to train your supervisors to act on this. The EEOC provides the following examples of accommodation requests:
An employee tells his supervisor, “I’m having trouble getting to work at my regularly scheduled starting time because I am undergoing medical treatments.”
A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office.
However, a simple request for a new chair, or some other request, without information that the need is related to a medical condition is probably not sufficient to be an accommodation request.
Also train your supervisors not to ask questions about the medical condition or disability at issue.
Step 4 – Arrange a personal meeting with the employee. This is the heart of the interactive process. There may not always be the necessity for a lengthy meeting. If the supervisor who is asked for an accommodation can easily provide one, then he or she should do so as soon as possible. However, to establish that you have engaged in good faith in the interactive process, best practice is to schedule a meeting with the employee, the employee’s supervisor and someone from HR. A primary goal of this meeting is to determine what problems the employee is having in performing their job tasks because of a disability. This entails soliciting ideas from the employee about what you could provide that would enable the employee to perform his or her job duties. In addition to soliciting ideas, you may also suggest solutions. The purpose of this brainstorming meeting is to come away with suggestions to enable the employee to continue working. A couple of suggestions:
- If the employee has a work-related injury, consider involving your workers’ compensation carrier to determine whether there are any monies from your state workers’ compensation division to assist you in making workplace modifications. In Oregon, such funds may be available through the employer at injury program.
- If you are not sure of an accommodation, consider calling in an expert. This can be accomplished through a phone call to the Job Accommodation Network (JAN), or you can locate a vocational rehabilitation specialist to assist.
- If you do consult an outside resource, like JAN, be careful about ensuring confidentiality. Do not disclose the employee’s name and identifying information.
- Keep an open mind.
- In choosing the accommodation, it is a good idea to understand the employee’s preference, but the employee does not get to choose the accommodation – the employer does. The law requires only that the accommodation be reasonable. Eliminating the requirement to perform an essential job function is not a reasonable accommodation. The employee must still be able to perform the essential job function with an accommodation. Examples of reasonable accommodations include:
- Job restructuring
- Equipment (i.e., sit stand desks, lifting mechanisms, carts, new chairs, modified work stations, etc…)
- Leave of absence
- Change in work schedule
- Job reassignment to an available and suitable job
- Modified workplace policies
Step 5 – Consider whether you need information from the employee’s physician. Depending on the complexity of the issue, you may want to communicate through the employee with their physician to obtain information about the restrictions caused by the medical condition and any suggested accommodations. In any such communication be sure to include the safe harbor language required by the Genetic Information Nondisclosure Act (GINA), and limit your request to information that is required as a matter of business necessity. You may consider conferring with counsel regarding the content of the letter.
Step 6 – Continue the dialogue. The interactive process does not end with the interactive process meeting. Once you have found and implemented a reasonable accommodation, best practice is to follow up with the employee on a regular basis to ensure that the accommodation is effective. It is often common that the first accommodation will not be effective and you need to try something else. Your workplace policy should inform the employee that they must inform their supervisor if the accommodation is not effective.
Document the process. Document every step throughout the interactive process. Even though documenting short conversations between the supervisor and the employee may seem trivial, when it comes to defending a claim that you did not provide a reasonable accommodation this information is crucial. Document every conversation and the entire process. Keep the documentation in the employee’s confidential medical file, not the personnel file.
To conclude, the interactive process is an important and often missed obligation within the ADA. Employers who follow these suggested steps and best practices and who document their process will be in a better position if they are subject to an administrative charge or suit for failure to accommodate. Please return to our blog for a discussion of how to develop ADA compliant job descriptions.
September 30, 2013
By Kelly Hagan, Attorney
The Patient Protection and Affordable Care Act (ACA) requires health plans, including self-insured plans with more than 50 members, to certify to the Department of Health and Human Services (DHHS) by December 31, 2013, their compliance with HIPAA Standard Transaction Rule requirements for eligibility inquiries, claims status, and electronic funds transfer and remittance advice. In support of this certification, health plans also must supply examples of compliant transactions with trading partners (such as health care providers).
Health plans that delegate these transactions to third parties must include with their certification proof that business associates providing such services are complying with applicable standards and operating rules. A Business Associate Agreement provision requiring compliance with transaction standards and rules would seem prudent in such circumstances. Health plans must ensure and document compliance by third parties with these HIPAA requirements.
DHHS has promised rulemaking in this area but none has issued to date. The ACA authorizes enforcement of certification requirements beginning in April 2014. Penalties of $1 per covered life per day may be levied, and doubled in the case of knowing provision of inaccurate or incomplete certification. These penalties are capped at $20 and $40 per life, respectively.
Documentation of compliance by the plan or its business associates with the Standard Transaction Rule, and especially the three standards identified for certification at the end of 2013, is essential to the certification requirement and should be undertaken without delay. Rulemaking by DHHS will hopefully provide more detail concerning the nature of the certification obligation.
For further information or questions regarding the HIPAA Security, Privacy, Enforcement, and Data Breach rules, please contact the Schwabe attorney with whom you work or Kelly Hagan at 503-796-2423 or email@example.com.
September 10, 2013
By Wally Miller, Attorney
Among the many nuances (and nuisances) of the Affordable Care Act is the new obligation of employers to prepare and distribute a notice to employees advising of the health insurance exchanges that will become available to individuals starting on January 1, 2014. The Department of Labor (the “Department”) has redefined the Insurance Exchanges as the “Marketplace,” and the notice as the “Marketplace Notice.”
This notice obligation is not a group health plan responsibility per se. All employers, including those that do not sponsor a group health plan, must provide a form of the notice to their employees. In addition, all employees must be provided the notice, including those who are not eligible for employer-sponsored group health plan coverage.
Key aspects of the Marketplace Notice rules are discussed below.
1. When Must the Marketplace Notice Be Delivered?
- Current Employees: Current employees must receive the notice by October 1, 2013.
- New Employees: New employees hired on or after October 1, 2013, must be provided with a copy of the Marketplace Notice within 14 days of the date of hire.
2. Who Must Receive the Marketplace Notice?
- Employees: All employees must receive the Marketplace Notice, regardless of whether they are eligible to participate in the health plan (for example, part-time employees) and regardless of whether they are enrolled in the plan.
- Dependents: Separate Marketplace Notices are not required to be sent to spouses or dependent children.
- Former Employees: Marketplace Notices are not required to be sent to former employees, regardless of whether they are still covered by or eligible for coverage under the plan (e.g., pursuant to COBRA or retiree coverage).
3. How to Deliver the Marketplace Notice
- Mail: The Marketplace Notice may sent by first-class mail.
- Electronic Delivery: The Department’s electronic delivery standards will apply to the Marketplace Notices. Therefore, the Marketplace Notices may be delivered by e-mail to those employees whose work-site access to e-mail is an integral part of the employee’s job duties.
- New Hire Package (Probably): The Department guidance does not expressly state that the Marketplace Notice must be included in a new hire package. But presumably, that would be an acceptable method of delivery for new hires.
4. Required Content of the Marketplace Notice
The Marketplace Notice can be relatively brief. By law, it need only disclose the following:
- The existence of the Marketplace;
- A description of services provided by the Marketplace;
- Contact information for the Marketplace;
- A statement that the employee may be eligible for a premium tax credit if the employee purchases a qualified health plan through the Marketplace; and
- A statement that if the employee purchases health coverage through the Marketplace, the employee may lose the contributions made by the employer (if any) toward coverage offered through the employer’s plan, and that all or a portion of the contributions may be excluded from the employee’s income for Federal income tax purposes.
5. Department of Labor Model Notice
The Department of Labor has issued a model (in the form of a partially-completed template) that may be used by employers to comply with their notice obligations. The Department actually issued two model notices: one for employers that do not offer any group health plan coverage, and a second for employers that do offer coverage to some or all of their employees.
The link to the Department of Labor webpage that provides the notice for employers that offer group health plan coverage is as follows: http://www.dol.gov/ebsa/pdf/FLSAwithplans.pdf.
The model Marketplace Notice provides for the disclosure of information that goes well beyond that required under the statute. Moreover, it provides for information that may not be uniform to all of the employees covered under a typical plan.
In this regard, employers will wish to review the model notice carefully, and make a decision as to what information should, in fact, be included or omitted.
For further information or questions regarding the new Marketplace Notice mandate, please contact the Schwabe attorney with whom you work or Wally Miller at 541-686-3299 or firstname.lastname@example.org.
IRS rules of practice require us to inform you that any federal tax advice contained in this correspondence is not intended or written to be used, and cannot be used, by the recipient or any taxpayer for the purpose of avoiding tax penalties under the Internal Revenue Code.
September 4, 2013
By Kelly Hagan, Attorney
The Omnibus HIPAA rulemaking published January 25, 2013 (”Omnibus Rule”) will become effective for most purposes on September 23, 2013. The Omnibus rule changes compliance obligations for covered entities and directly extends them to business associates. The following highlights 10 key changes:
- Notices of Privacy Practices. The Omnibus Rule creates “material changes” to a covered entity’s policies and procedures. Revised notices therefore must be published. Covered entities with Web sites must prominently display the revised notice on the site, and electronic versions of the revised notice must be made available. Revised notices also must be posted prominently and written copies made available at points of service. At a minimum, revised notices will reflect changes to policies and procedures concerning breach notification, disclosures requiring authorization, the right to opt out of fundraising activities, and the right to restrict disclosures to health plans about care paid for out of pocket.
- Breach Notification. Absent existing exceptions, unauthorized use, access to or disclosure of PHI creates a presumption that a data breach has occurred and that notification must be provided to subject individuals. This presumption may be overcome only by a documented determination of a low probability that the PHI at issue has been compromised. Harm to the individual or others is no longer required for a breach to occur or notification obligations to arise.
- Business Associates. Business associates are now directly subject to most of the HIPAA privacy rule and all of the operative sections of the security rule. The class of business associates also has grown to include entities that “maintain” PHI, such as storage facilities or cloud service providers. Business associate agreements must now exact a promise to comply with the security rule, to provide notification of a data breach, and to require a written agreement with subcontractors that receive PHI that is at least as demanding as the agreement between business associate and covered entity.
- Individual Access. Covered entities must provide access to electronic PHI in digital form either to the subject individual or to a designated third party. The covered entity must make electronic PHI available in the format requested if it is readily producible by the covered entity. If the requested format is not readily producible, then an agreed format must be negotiated. Electronic PHI must be made available within 30 days; an extension of time is not allowed.
- Restriction on Disclosure. Unless otherwise required by law, a covered entity must agree to a request not to disclose PHI to a health plan if the PHI concerns care paid for entirely out of pocket by the individual.
- Immunizations. Disclosures to schools of student immunization no longer require written authorization, although oral or written parental consent must be obtained.
- Sale of PHI. Written authorization to sell PHI must be obtained, absent an exception. A sale results either from direct or indirect remuneration in exchange for PHI, and the authorization must recite the fact of the remuneration to the covered entity.
- Marketing. Written authorization is required for marketing activity for which the covered entity receives remuneration. The authorization must recite the fact of the remuneration to the covered entity.
- Decedents. PHI may be disclosed as appropriate to friends and family who were involved in the care or payment for care of a deceased individual. Protection of a decedent’s PHI ends after 50 years.
- Fundraising. Covered entities may use and disclose individuals’ demographic information and dates of care for fundraising purposes so long as fundraising material includes information about how an individual can opt out of further fundraising communications. The requirements for opting must be simple and easy, like an e-mail or toll-free phone call. Requiring the individual to write a letter is considered too burdensome.
For further information or questions regarding HIPAA deadlines please contact the Schwabe attorney with whom you work or Kelly Hagan at 503-796-2423 or email@example.com.
August 26, 2013
By Leora Coleman-Fire, Attorney
On Thursday August 22, 2013, Commisioner Amanda Fritz’s office held a public hearing on the draft administrative rules for the Portland Sick Leave Ordinance. (For basic information on the Ordinance and draft Administrative Rules, click here and here for past articles.) In attendance were various employers, a representative from the Bureau of Labor and Industries (“BOLI”), members from the task force that worked on drafting the Ordinance, among others. There to answer questions were Commissioner Amanda Fritz, Tom Bizeau (City of Portland Chief of Staff), and other City of Portland staff. Unfortunately, the attorney from the City Attorney’s office who is working on drafting the rules was on vacation.
There were a number of comments made by the panel of people answering questions that could not be found in the Ordinance or the draft administrative rules. Therefore, while this was new information, it should not be relied upon until and unless we see these comments in writing.
For example, Commissioner Fritz stated that if an employer has a paid time off (“PTO”) policy and an employee were to use up his/her entire PTO bank on travel and then got sick, an employer would not be required to give the employee protected sick time under the Ordinance. As she put it, if you choose to waste your PTO and not save any time for an event covered by the Ordinance, then that is your problem. This would be a substantial and significant addition to the Ordinance and rules.
The panel also stated that they intended there to be a two-year statute of limitation period so that individuals who felt that they had been retaliated against for requesting or taking sick leave would only have two years to file a complaint. This statute of limitations is more generous than the one year statute for most other retaliation provisions in the Oregon statutes. We intend to bring this to Commissioner Fritz’s attention. However, including a statute of limitations in the rules, where one did not appear in the statute is an important protection for employers.
Still Unanswered, But May Be Clarified
The public hearing made clear that there are still many significant issues that have not been properly addressed or need to be clarified.
For example, no one could answer whether multiple or joint employers of a single employee would each need to provide 40 hours of sick time to that single employee or if they could share the burden. Likewise, Commissioner Fritz stated that she would clarify whether an employee begins accruing sick time when the employee crosses the City limit line or whether it starts when the employee actually arrives at his/her destination within the City. In addition, Commissioner Fritz stated that she would consider further defining “a calendar year,” which is the cycle for calculating sick time accrual, sick leave use, and carryover from one calendar year to the next. Many members of the public suggested “a calendar year” include an employer’s fiscal calendar year in order to decrease the administrative burden for employers operating on cycles that do not run from January 1 to December 31.
If nothing else, the public hearing demonstrated that there is still much work to be done to provide proper guidance on what it means to be in compliance with the Ordinance. Commissioner Fritz stated that she hopes to have the administrative rules finalized by the end of September, along with a poster and FAQ sheet by the end of the year. The Ordinance goes into effect on January 1, 2014. We will continue to keep you up to date on the Ordinance as we gather more information. In the meantime, do not hesitate to contact us with your comments, questions, and concerns.
August 22, 2013
By Leora Coleman-Fire, Attorney
Commissioner Amanda Fritz’s office published the draft administrative rules for the Portland Sick Leave Ordinance, which means further clarification on what employers need to do in order to comply (and the steep consequences if they don’t) as we approach January 1, 2014, when the Portland Sick Leave Ordinance will go into effect.
After Portland City Council passed the Portland Sick Leave Ordinance on March 13, 2013, we analyzed the Ordinance to find out what employers would need to do in order to prepare (see my last article covering the basics of the Ordinance here). Now, this article will provide (1) where to find all the relevant published information you need and how to have your voice heard on the draft rules, (2) what employers should do before January 1, 2014, and (3) a brief overview of significant issues the rules clarified.
TOOLBOX FOR WHERE TO FIND THE ORDINANCE, RULES, AND OPPORTUNITY TO COMMENT
1. Find the Ordinance here.
2. Find the Draft Rules here.
3. On or before September 6, 2013, you can have your voice heard on the draft rules via written comment or in-person.
- You may attend the public meeting, scheduled for this Thursday, August 22 from 6:30 p.m. to 8 p.m. in the Portland Building, Room C, 1120 SW 5th Avenue, 2nd Floor. I will be there, so feel free to introduce yourself, and, if you can’t make it, I will draft a third article on this topic to report what happened.
- You may send written comments using the comment form available online here or by mailing your comments to the City Attorney’s Office at the below address. Comments must be received by September 6, 2013.
City Attorney’s Office
Attn: SLAR Comments
1211 SW 4th Avenue, Ste. 430
Portland, OR 97204
EMPLOYER CHECKLIST TO PREPARE FOR COMPLIANCE
1. Properly Classify Workers. Ensure that your workers are properly classified as “independent contractors” versus “employees.” Independent contractors are not covered by the Ordinance, which means avoiding the Portland Sick Leave Ordinance’s recordkeeping requirements, sick leave accrual calculations, and sick time use for these workers. Proper classifications require careful legal analysis and you should consult with our employer lawyers for assistance.
2. Revise Your Employee Handbook by January 1, 2014. The Administrative Rules for Portland’s Sick Leave Ordinance leave open a few options for employers on whether or not to offer certain benefits or require certain procedures. Whatever decision you make for your business, revise your employee handbook to clearly explain your new policies. Below are the significant issues you should decide how to proceed on and then consult with our employment attorneys to draft policies to reflect your decision that are tailored to fit your business operations.
- Cashing Out. You are not required to allow an employee to cash out accrued and unused sick time at termination of employment or at the end of the calendar year.
- Shift Trading. You may allow shift trading where, if an appropriate shift is available, an employee may work additional hours or shifts during the same workweek without using available protected sick time for the missed hours or shifts. Note that you may not place conditions (such as finding a replacement or working an alternate shift) on an employee requesting to take protected sick time leave.
- Employee Notice. You may require employees to provide reasonable notice of an absence for protected sick time leave. If you do create a policy for providing reasonable notice, you must also create a written policy for how an employee gives reasonable notice (such as calling a designated phone number). You should also provide for an explanation of what is reasonable notice based on whether the reason for the leave is foreseeable or unforeseeable.
- Revise Your Recordkeeping and Notification System.
1. Revise Your Recordkeeping System. Your recordkeeping will need to include the following information for each employee for a period of at least two years (even if the employee transfers to a job outside the City of Portland):
a. name, address, and occupation;
b. the actual hours worked each week and each pay period; and
c. sick time accrued and used.
2. Provide General and Employee-Specific Notice . You must provide the following written notice to all employees who work in the City of Portland (and greater area where the City has jurisdiction):
a. General notice of (1) an employee’s entitlement to sick leave, (2) the amount of sick time and the terms of its use guaranteed under the Ordinance, (3) the prohibition against retaliation, and (4) an employee’s right to file a complaint if protected sick time is denied or if the employee is retaliated against for requesting or taking leave.
b. Quarterly notice to each employee of the amount of accrued and unused sick time available for that employee.
- Train Managers/Human Resources Staff. Managers and HR staff should receive specific training on how to respond to employee requests for leave, absences, and record requests. Some of the important points to make follow:
1. Managers and HR staff should not require an employee to give an explanation of the illness or other reason for the absence, unless the absence is for a purpose covered by a federal, state, or other local law, such as family medical leave or reasons related to domestic violence, harassment, sexual assault, or stalking. Consider creating a checklist of reasons the employee cannot be at work that day and ask the employee which one applies without asking for a detailed explanation.
2. Train managers and HR staff to keep all records regarding use of sick time for purposes related to domestic violence, harassment, sexual assault, or stalking confidential and do not release these records without the express permission of the employee, unless otherwise required by law.
3. Emphasize that retaliatory conduct (such as threatening to terminate an employee who requests leave) will be strictly prohibited.
FILLING IN THE BLANKS: WHAT THE DRAFT RULES CLARIFIED
This section provides a brief overview of new information that the draft administrative rules clarified. For a basic review of the Portland Sick Leave Ordinance, click here.
1. Eligible Employee = 240 Hours + 89 Calendar Days Worked. Employees start to accrue sick time on January 1, 2014 (or at the commencement of employment if an employee is hired after January 1, 2014), but cannot use their sick time until they have worked 240 hours in a calendar year and 89 days have passed since the commencement of their employment. Thus, if the employee has worked 240 hours in a calendar year (which could be the prior year), then on the 90th calendar day of employment, the employee may use accrued sick time.
2. Forty Hours Max Really Is Forty Hours Max. Employees may accrue and use a maximum of 40 hours of sick time in a calendar year, regardless of how many hours of accrued and unused sick time carried over from the previous calendar year. For example, if an employee accrues and then uses forty hours of sick time in a calendar year, the employee may then continue to accrue up to 40 hours of sick time, but this sick time cannot be used during that calendar year. Instead, the accrued and unused sick time will transfer to the next calendar year when the employee can again start using up to 40 hours of sick time.
3. Traveling-Through Does Not Count. Employees who travel through the City, but do not stop in the City for their work (incidental stops, such as filling up their gas tank, don’t count), are not covered by the Ordinance.
4. Calculating Your Number of Employees. The Ordinance requires employers with 5 or less employees to provide unpaid sick leave, while employers with 6 or more employees must provide paid sick leave. If you are a smaller employee or have a sudden fluctuation in your workforce, pay especially careful attention: (1) all employees (regardless of whether they are full-time, part-time, temporary, or work outside of the State of Oregon) must be counted toward the total number; (2) On January 1, April 1, July 1, and October 1, employers must calculate their total number of employees. For example, if on January 1 an employer has 5 total employees, then for that quarter, eligible employees will earn unpaid sick time. If on April 1, the employer grew to 6 employees, employees will now earn paid sick time for the second quarter. Even if the employer then dips back down to 5 employees, the employer must allow employees to use accrued and unused paid sick time from the previous quarter.
5. Required Use. Eligible employees must use accrued sick time hours on the first day and each subsequent day of absence for a qualifying absence until all accrued time has been used.
Portland’s Sick Leave Ordinance raises novel and complex issues, which we are ready to help you navigate. We will continue to keep you updated on the latest information as it becomes available. Please feel free to contact us with your questions and concerns.
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June 6, 2013
By Bruce F. Howell, J.D., M.S., Health Care Attorney and Shareholder
On May 16, 2013, the Equal Employment Opportunity Commission (”EEOC”) filed a complaint against Founders Pavilion, Inc., a New York nursing home for violating the Genetic Information Nondiscrimination Act of 2008 (”GINA”). The violation was allegedly for having asked for genetic information in a hiring interview.
This suit is the second action filed by the EEOC under GINA, the previous one being against Fabricut, Inc. which was settled earlier this month.
Genetic information is protected by different statutes in the federal and state context. As the post-genome era develops, genetic information may be difficult to discern from health information, and a careful analysis of the differences should be undertaken in the hiring process to avoid liability. For example, a family history may contain genetic information and, thus, be subject to GINA. Violations of GINA include monetary penalties and corrective action and, in some private cases, punitive damages.
A link to the complaint in this case can be found here.
For further information or questions regarding this alert, please contact the Schwabe attorney with whom you work or Bruce Howell at 503-796-2997 or firstname.lastname@example.org, Kelly Hagan at 503-796-2423 or email@example.com, or Elizabeth Schleuning at 503-796-2865 or firstname.lastname@example.org.