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Employment Law News from Vigilant: 03/04/2010
03-05-2010 |
COBRA subsidy extended (again!)
On March 2, 2010, President Obama signed into law the Temporary Extension Act of 2010 (HR 4691) (TEA), extending the COBRA subsidy, yet again. The TEA extends eligibility for the subsidy to involuntary terminations occurring through March 31, 2010, and redefines “assistance eligible individuals” (AEIs) to include COBRA qualified beneficiaries that experience a reduction in hours on or after September 1, 2008, followed by an involuntary termination that occurs on or after March 2, 2010. The plan administrator must provide notice of the TEA provisions to this new type of AEI within 60 days after the termination of employment occurs. Vigilant anticipates that the Department of Labor will issue a model notice in the coming weeks.
For those AEIs who did not elect COBRA following the reduction in hours, or who elected, but subsequently dropped the coverage, the involuntary termination of employment is treated as a second qualifying event, which gives them a new chance to elect COBRA and receive the subsidy. The maximum duration of COBRA coverage in this situation, however, is measured from the date of the original reduction in hours. An AEI in this situation has no obligation to pay retroactive premiums (and presumably doesn’t receive coverage) for the period in between the two qualifying events.
Finally, the TEA also includes a provision that gives deference to an employer’s determination of whether an involuntary termination has occurred, as long as the determination is based on a reasonable interpretation of the law, and the employer maintains appropriate supporting documentation, including an attestation by the employer. For employers who participate in the Vigilant Group Benefits Trust, Vigilant will take care of this new notice requirement for you. Questions? Call Vigilant or check out our Legal Guide, “COBRA Provisions of the American Recovery and Reinvestment Act of 2009” (6015).
EEOC issues religious accommodation guidance
How would you handle a situation in which a male Muslim employee refused, on religious grounds, to shake hands with women? A recently released informal discussion letter from the federal Equal Employment Opportunity Commission (EEOC) addresses exactly that situation and gives employers guidance on their religious accommodation obligations (EEOC Informal Discussion Letter, “Title VII: Religious Discrimination – Religious Accommodation – Sex Discrimination” November 20, 2009). According to the EEOC, the focus should be on whether it would be an undue hardship for the employer to accommodate the employee’s religious practice of not shaking hands with women. Employers should not make assumptions about how the employee’s religious practice will affect the workplace (for example, its impact on coworkers and customers). Instead, it should make a fact-specific inquiry into the employee’s religious practice to see if it will actually infringe on the rights of coworkers or cause disruption at work. Under federal law, anything more than a minimal disruption is considered to be an undue hardship on the employer and therefore not a reasonable accommodation. (State law may be different, though—for example, Oregon defines undue hardship as significant difficulty or expense.) Need help with a religious accommodation issue? Check out our Legal Guide, “Religious Accommodation in the Workplace” (1147) or contact your Vigilant staff representative.
Clarifying mental health parity regulations issued
Regulations implementing the Mental Health Parity and Addiction Equity Act of 2008 (“the Act”) were recently released by the Departments of Labor, Treasury and Health and Human Services (75 Fed Reg 5410, February 2, 2010). While the Act went into effect on January 1, 2010 for calendar year health plans, these regulations help clarify what the Act requires. They also grant employers and insurers a good faith compliance period—the first plan year beginning on or after July 1, 2010—in which to come into compliance. Requirements include treatment limits that are not more restrictive than medical or surgical limits, a ban on a separate deductible for mental health or substance abuse benefits and parity requirements within certain benefit classifications. For those employers who participate in the Vigilant Group Benefits Trust, Vigilant and its insurance carriers will make sure your Vigilant plans are in compliance.
Daylight Saving Time begins March 14
Daylight Saving Time begins Sunday, March 14 at 2 a.m., when we set our clocks forward one hour to 3 a.m. Employees who normally work an eight-hour shift at night may work seven hours on March 14 at regular wage (e.g., from 10 p.m. Standard Time to 6 a.m. Daylight Saving Time). You may voluntarily pay for eight hours, but cannot offset the extra hour of pay in March against the extra hour worked when Standard Time begins again on November 7, 2010.
CALIFORNIA: No right to paid kin care when sick leave is uncapped
Employees aren’t entitled to use half their paid sick leave to care for ill family members under California’s “kin care” law when their employer doesn’t put a cap on sick leave, ruled the California Supreme Court. Pacific Telesis Group allowed up to five days of paid sick leave at a time, but if an employee returned to work even for part of a day, the employee could take up to another five days of paid sick leave. The generous sick leave policy made it impossible to tell how much sick leave an employee might take during a year. Reversing a lower court decision, the California Supreme Court ruled that the state’s kin care law is “limited to employers that provide a measurable, banked amount of sick leave” (McCarther v. Pacific Telesis Group, Cal, Feb. 2010).
Tips: If you grant a specific amount of paid sick leave each year, then California’s kin care law requires you to allow employees to use up to half that amount to care for an ill child, parent, spouse or domestic partner (Cal Lab Code 233). Also, you cannot count such time caring for an ill family member as a negative factor under your attendance policies.
CALIFORNIA: New leave for members of civil air patrol
California employers have another category of protected leave to contend with pursuant to the recently enacted Civil Air Patrol Employment Protection Act. Effective January 1, 2010, employers with fifteen or more employees must grant up to ten days of unpaid leave per year to eligible employees needing time off to respond to an emergency operational mission of the California Civil Air Patrol. Employees are eligible to take the leave if they’ve been employed for at least ninety days. Leave is limited to three days on any one occasion, unless the employer agrees to an extension that’s been authorized by the appropriate government entity (AB 485, 2009 Cal Stat Ch 242). For more information about this new leave law, call your Vigilant staff representative.
IDAHO: State Department of Labor releases fringe benefit survey
Interested in knowing if your benefits package is on par with other Idaho employers? Check out the 2009 Idaho Fringe Benefit Survey, conducted by the Idaho Department of Labor. The survey breaks out benefit offerings by employer size, industry type and private versus government employers, and offers data on paid leave and retirement plans as well. Some key findings: Only 56 percent of Idaho employers now offer individual medical coverage to their employees, down from 63 percent in 2007; and more than ninety percent of employers with 100 to 250 workers offered employee health coverage, while only 40 percent of businesses with fewer than ten employees offered coverage. Have questions about your fringe benefit offerings? Call Vigilant—we’re here to help you!
OREGON: Federal court shoots down state arbitration law
The Oregon federal district court recently struck down an Oregon law that required employers to follow certain steps before asking an employee to sign an arbitration agreement. The Oregon law states that an arbitration agreement between an employer and employee is only enforceable if: (1) the employer provided written notice of the arbitration requirement at least two weeks prior to the employee’s first day of work; or (2) the agreement was entered into upon an employee’s subsequent bona fide advancement. But the federal court said the law is preempted by the Federal Arbitration Act (FAA), which promotes the use of arbitration agreements as a means for settling disputes. The court said Oregon was not authorized to impose additional requirements beyond the FAA (Bettencourt v. Brookdale Senior Living Communities, Inc., D Or, Jan. 2010).
Tips: This court’s ruling does not completely invalidate Oregon’s arbitration law (a state court could adopt a different interpretation), but it certainly calls the law’s validity into question. Vigilant will keep you posted on any new developments. In the meantime, we recommend that you follow the law as it’s currently written to ensure enforceability of your arbitration agreements. Check out our Legal Guide, “Mandatory Arbitration Agreements” (1310) if you have questions or call your Vigilant staff representative.
OREGON: New OFLA rules published
Newly updated regulations under the Oregon Family Leave Act (OFLA) have been published and are effective immediately. The Oregon Bureau of Labor and Industries (BOLI) solicited comments last year on whether to update the rules in light of recent changes to the federal Family and Medical Leave Act (FMLA) regulations. Below are some of the highlights (OAR 839-009-0200 to -0320). For more information, see our Legal Guide, “Federal, Oregon and Washington Leave Comparison Chart” (1183).
The good news:
• Calling in sick is not sufficient notice of the need for OFLA leave.
The bad news:
• No changes to the definition of “serious health condition” (doesn’t incorporate new FMLA provisions).
• Within five business days of learning of the need for OFLA leave, you must tell the employee whether he or she is eligible and qualifies for OFLA leave. The notice must be in writing only if the employee is not entitled to leave. Vigilant has developed a new Model Form, “OFLA: Eligibility Notice” (6267) to assist you.
• To clarify or authenticate a medical certification, the only person who may contact the health care provider is a health care provider representing the employer (doesn’t incorporate new FMLA rules allowing others to make this contact).
• When a medical certification is in a language other than English, you may request, but not require, an employee to provide a translation, as long as you allow the employee access to translation resources that are available to you, such as bilingual personnel or computer programs (unlike FMLA rules which allow you to simply require such translation).
• For leaves covered by both OFLA and FMLA, no clarification of which regulations are more beneficial in specific circumstances (BOLI requires employers to apply whatever rule is most beneficial to the employee, but sometimes it is unclear which rule is the right one to apply).
• No change to BOLI’s position that employers cannot count OFLA leave against an employee when determining eligibility for bonuses.
OREGON: A flurry of new regulations
The Oregon Bureau of Labor and Industries recently published new or updated regulations on a number of subjects, effective immediately.
Victims of domestic violence, sexual assault of stalking: Updated rules strengthen prohibitions against retaliation or discrimination, and expand protections to include those who are threatened with abuse, sexual assault or stalking. In addition to granting reasonable leave, covered employers must make reasonable safety accommodations upon request, unless it would cause an undue hardship (OAR 839-005-0160 to -0170 and 839-009-0325 to -0365).
Oregon Military Family Leave Act (OMFLA): New rules implement HB 2744 which took effect June 25, 2009, and grants up to 14 days of leave when a spouse or registered domestic partner is called to active duty or is on leave from active duty. The new rules clarify that an employee may take 14 days off per deployment. Also, OMFLA leave cannot be counted against an employee when determining eligibility for an attendance bonus (OAR 839-009-0370 to -0460).
Disability discrimination: Updated rules incorporate an expanded definition of disability as required by SB 874 which amended Oregon’s disability law effective January 1, 2010. BOLI will take a very broad view of protected disabilities, similar to the recently expanded federal Americans with Disabilities Act (OAR 839-006-0200 to -0265).
Child support discrimination: New rules prohibit discrimination against workers who have child support obligations (OAR 839-005-0138).
Religious accommodation: New rules implement SB 786, which (effective January 1, 2010) requires employers to reasonably accommodate an employee’s religious observance or practice unless the accommodation causes significant difficulty or expense. It is therefore more difficult under Oregon law than under federal law to show that an accommodation would be an undue hardship on the employer (OAR 839-005-0140).
WASHINGTON: Pending union legislation raises concern
In a disturbing twist on union organizing in Washington state, a bill that has passed the House and is being considered by the Senate could impose union representation on behalf of both employees and management at private child care centers. A union could request an election upon showing at least 30 percent support among the child care center directors and workers in a specified region. This includes all employees who work onsite at the centers, as well as owners of child care centers who work onsite. Once the union is in, it wouldn’t have to deal with time-consuming labor negotiations between employees and management; instead, its only requirement would be to negotiate with the governor over the subsidies the state pays for low-income children to attend the private centers. The union would get a cut of the subsidies, paid directly from the state to the union (Substitute HB 1329). Serious concerns with this legislation include the potential for unconnected workplaces to be pulled into bargaining arrangements against their consent and the forced “representation” of management together with employees (completely contrary to federal law under the National Labor Relations Act). We encourage you to ask your state legislators to vote against this bill.
WASHINGTON: Workplace homicides and suicides on the rise
Alarmingly, nearly one-third of all workplace fatalities in Washington last year were the result of either a homicide or suicide. Out of sixty-two workplace deaths in 2009, thirteen were the result of homicide and seven from suicide, according to a report recently released by the Washington Department of Labor and Industries.
Tips: Keep your eyes and ears open for employees who appear to be struggling with personal problems. Although you don’t want to pry into an employee’s personal life, offering assistance could make a big difference when an employee feels hopeless about his or her situation. Also consider offering access to professionals through an employee assistance program (EAP). See our Model Policy, “Employee Assistance Program” (3767) and talk to your Vigilant representative about receiving a member discount rate on EAP services through EASE.
Can You Believe It!
An employee on leave for a workers’ comp injury left a voice mail for the HR director with an update on his status and then forgot to hang up the phone. When the HR director picked up the voice mail, it contained a recording of the employee negotiating the sale of prescription drug pills to his buddy Donny. The employee denied that the voice on the recording belonged to him, but the company fired him anyway and he lost his bid for unemployment benefits (Stankiewicz v. NAPA Auto Parts, Iowa Unempl. Ins. Appeals ALJ, Feb. 2010).
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Vigilant warmly welcomes our newest members:
Bestco, Inc. is a plastic injection/die cast mold manufacturer in Hillsboro, Oregon. Egon Steinborn is the owner and Kevin Backous is the primary contact.
Fountainhead Wealth, Inc., based in Sacramento, California, provides wealth management advice. Co-founders Garrett Morgan and Sid Norton are the primary contacts.
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UPCOMING EVENTS, TRAINING CLASSES AND WEBINARS:
Explore our new online catalog, where you can register for events, open training classes, on-demand webinars and online courses. In order to see member pricing, you'll need to log in. To browse without logging in, click the "Online Training Catalog" button in the upper left corner. If you have any questions, contact Nicole Forward at n.forward@vigilantcounsel.org or call 1-800-733-8620.
Events:
2010 Vigilant Washington Safety & Workers’ Comp Conference
May 13, Everett, WA
Join us for a full day of fresh and exciting ideas to help you manage your safety and workers’ comp program, as well as new ways to prevent injuries and reduce costs.
Training:
Don't see classes in your area? Contact Nicole Forward at n.forward@vigilantcounsel.org to request classes in your community.
Communications Skills 101: Interpersonal Communications
March 11, Vancouver, WA
Customer Service Skills
March 18, Bellingham, WA
Investigating Accidents
March 31, Tigard, OR
Project Management
April 1, Everett, WA
Preventing Discrimination and Harassment
April 15, Vancouver, WA
Active Safety Leadership: Part 1 – Building a Positive Safety Culture
April 28, Tigard, OR
Conflict Resolution
May 13, Vancouver, WA
Active Safety Leadership: Part 2 – Enhancing Your Leadership Ability
May 26, Tigard, OR
Meaningful Meetings and Time Management: Getting the Most from Each Minute
June 10, Vancouver, WA
On-demand webinars:
Recent webinars are available as on-demand recordings that you can watch and listen to on your computer. Available titles range from $99 to $159.
Online courses:
Over 3000 online courses are available on a variety of topics through a partnership with the Business Training Library (BTL). Employees’ completion of each course can be verified by HR.
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Vigilant Counsel is a publication of Vigilant, 6825 S.W. Sandburg St., Tigard, OR 97223, telephone 503-620-1710. © 2010 Vigilant. This publication presents general information in nontechnical language. Before applying this information to specific management decisions, consult legal counsel, or consult Vigilant staff in the following offices:
Everett, WA—425-349-4477
Spokane, WA—509-276-2277
Tigard, OR—503-620-1710
Eugene, OR—541-485-7296
Redding, CA—530-222-3500
Writers This Issue: Kristine Cienfuegos, Diane Weisheit, Karen Davis
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