News

WORKPLACE PROTECTIONS FOR VICTIMS OF DOMESTIC VIOLENCE

October 14, 2014

October is National Domestic Violence Awareness Month. The latest figures from the US Department of Justice estimate that 960,000 incidents of domestic violence occur each year, and 4 deaths occur each day due to domestic violence. According to these statistics, domestic violence costs the nation an estimated $7.5 billion per year; some of those costs can be attributed to time missed from work, and lost productivity. It is not uncommon for an abuser to cause problems at the victim’s place of employment, interfering with the victim’s self-sufficiency, and even jeopardizing her or his safety. Oregon has attempted to address these serious issues in part by creating statutory job protections for victims of domestic violence.

Employers of six or more employees are required to provide “reasonable leave” for victims of “domestic violence, harassment, sexual assault or stalking” to attend to specified matters connected to the abuse, namely, seeking medical care, counseling or victim services, addressing certain legal matters, or relocating (or securing an existing residence). ORS 659A.270(1); 659A.272. An employer may limit the leave if the leave constitutes an “undue hardship” on the business. ORS 659A.275.

If requested, an employee must provide certification that she or he has been a victim. ORS 659A.280(2)-(4). Records relating to the employee’s leave must be kept confidential. ORS 659A.280(5). The leave is unpaid except as specifically provided in the statute. ORS 659A.285. For example, public employees are entitled to a certain amount of paid leave. ORS 659A.283. Initially, the statute required that the employee must have worked a certain length of time for the employer, and must have averaged a certain number of hours; however, that requirement has been eliminated.

All employers are prohibited from discriminating against a current or prospective employee because she or he has been a victim of domestic violence, harassment, sexual assault or stalking. ORS 659A.290(2)(a)-(b). Additionally, all employers are required to provide reasonable safety accommodations to employees who are victims. ORS 659A.290(2)(c). The statute provides a nonexclusive list of measures that may be reasonable safety accommodations under the circumstances, for example, leave, reassignment, or schedule modifications. 659A.290(2)(a). As with the leave provision, the employer may require certification, and must keep the employee’s information confidential. ORS 659A.290(3)-(4).

These protections are not without limitation. Still, an employer’s determination what is “reasonable” as to leave or a safety accommodation, or what constitutes “undue hardship,” may be subject to second-guessing by a court or agency. Speaking with an attorney, preferably early on, can help provide guidance based on the particular circumstances.

Other laws may come into play when an employee has been a victim of domestic violence. If the abuse results in a disabling condition, the ADA and its Oregon counterpart may apply, potentially creating both nondiscrimination and accommodation obligations. If the abuse gives rise to a serious health condition, the Family Medical Leave Act (FMLA) and/or the Oregon Family Leave Act (OFLA) may be implicated. For Portland employers, the new City sick time ordinance applies to leave necessitated by domestic violence, harassment, stalking, and sexual assault. Title VII and its Oregon counterpart may be implicated if gender discrimination is an issue. Oregon also has specific statutory employment protections for attendance at criminal proceedings, and for initiating or aiding in criminal or civil proceedings. Employers and employees should also be aware that Oregon’s unemployment compensation laws provide certain protections to victims of domestic violence, stalking, or sexual assault.

 

PREGNANCY IN THE WORKPLACE: KEY ISSUES AND RECENT DEVELOPMENTS FOR OREGON EMPLOYERS AND EMPLOYEES

August 12, 2014

Pregnancy seems to pose a particular challenge to employers and employees navigating their respective legal rights and duties. Citing the “persistence” of pregnancy discrimination and an increase in pregnancy-related complaints, the Equal Employment Opportunity Commission (EEOC) recently issued updated guidelines on the subject. Below is a brief summary of some highlights, along with a general review of laws relating to pregnancy discrimination and accommodation of pregnancy-related conditions.

Updated EEOC enforcement guidance on pregnancy discrimination and related issues

On July 14, 2014, the EEOC issued updated guidelines regarding pregnancy in the workplace, the first update since 1983. These guidelines help clarify the application of both the Americans with Disabilities Act (ADA) and Pregnancy Discrimination Act (PDA). Both of these federal statutes apply to businesses of 15 or more employees.

Under the PDA, the issue has always been whether pregnancy or pregnancy-related conditions are treated the same as other similarly limiting conditions. One of the highlights of the new guidelines is to clarify that forced leave based on pregnancy is generally impermissible. On the other hand, the Act does require employers to provide leave for pregnancy-related conditions on similar terms to those on which leave is provided to employees who are not pregnant. For example, that could mean permitting a pregnant employee with severe nausea the same scheduling flexibility provided to an employee with cancer who is also experiencing severe nausea.

The new guidelines were issued shortly after the United States Supreme Court agreed to hear the appeal of Young v. United States Parcel Service, Inc. In Young, the Fourth Circuit Court of Appeals upheld the federal district court, which had declined to find a violation of the PDA based on the application of a workplace policy. That policy awarded light duty only to those injured on the job or who had demonstrated an actual disability under the ADA, but not for other injuries or conditions. The appeal will not be decided for many months.

The EEOC guidelines are not necessarily binding on a court (and arguably, they may not answer the question before the US Supreme Court in Young – but that’s another article). However, the guidelines may well be considered as persuasive authority by a court hearing a discrimination lawsuit. In any event, they provide a much clearer roadmap as to how the EEOC will address administrative claims before it.

As to the ADA, the new guidelines underscore that 2008 amendments to the Act generally made it easier for employees to show that a pregnancy-related condition is disabling (pregnancy itself is not a disability). Prior to the updated guidelines, a number of courts held that even a pregnancy-related condition could not be a disability in and of itself.

Coming back to nausea or “morning sickness,” the guidelines make only passing reference, citing a couple of unfavorable cases predating the guidelines (favorable ones exist, as well). Although the guidelines do not include severe morning sickness in the list of examples of potentially disabling pregnancy-related conditions, they suggest that the EEOC will be more inclined to find this condition disabling under the proper circumstances.

Once the ADA is triggered, the Act’s nondiscrimination and reasonable accommodation requirements come into play. A reasonable accommodation may include such measures as modification of a schedule, or allowance of temporary light duty. Without getting too detailed here, note that the Young case discussed above did not address a claim of an actual pregnancy-related disability under the ADA. Rather, the plaintiff claimed that she was “regarded as” disabled by her employer (again, a topic for another article).

Other employment laws relating to pregnancy in Oregon  

In addition to the ADA and PDA, other employment laws relating to pregnancy that may apply in Oregon are briefly reviewed below. In addition to the nondiscrimination, accommodation and/or leave rights that may be available under these laws, all of the laws discussed in this article have provisions prohibiting retaliation against an employee for exercising her rights.

  • State discrimination statutes

The ADA and PDA have Oregon counterparts. However, more employers have to worry about these statutes: the Oregon employment disability discrimination/accommodation statute applies to an employer of six or more employees, and the Oregon statute governing pregnancy and other forms of sex discrimination applies to an employer of any size. By and large, the basic principles under the Oregon counterparts to the ADA and PDA are similar to those under the federal statutes.

  • FMLA/OFLA

Most people are at least somewhat familiar with the federal Family and Medical Leave Act (FMLA), and/or its broader Oregon counterpart, the Oregon Family Leave Act (OFLA). However, there is a lot of confusion about what each law does and does not do. To begin with, both FMLA and OFLA apply only to larger employers: 50 or more employees for FMLA, and 25 or more for OFLA. Both FMLA and OFLA have eligibility requirements governing how long the employee must have worked for the employer. There are a lot of sticky issues raised by FMLA and OFLA (especially where they overlap with one another and/or another source of law, such as the ADA). Talking to an attorney is advisable, preferably before a situation arises or escalates.

If both the employer and employee fit within the statute, both FMLA and OFLA provide for up to 12 weeks of leave for a pregnancy-related condition. The statutes guarantee only unpaid leave. However, an employee can use her paid leave if certain requirements are met; in fact, the employer may even be able to require an employee to do so. Whereas the ADA and its Oregon counterpart are triggered by an impairment that substantially limits a major life activity, FMLA and OFLA are triggered by a “serious health condition.” There is an entire set of rules governing whether the condition qualifies and, if so, what happens next. Both OFLA and FMLA also have family leave provisions, and OFLA further provides for “sick child” leave (which does not require a serious health condition). Under OFLA, different aspects of the birth of a child may result in multiple leave periods for the same employee.

A pregnancy-related condition can be a serious health condition under FMLA and OFLA. Again, morning sickness seems to come up a lot. One thing it is important to know about FMLA and OFLA is that they expressly provide for intermittent leave, if certain requirements are met. An employee does not have a free pass to come in late to work simply because she is pregnant. However, employers should be careful how they respond in these situations.

  • City of Portland sick leave ordinance

A new sick leave ordinance governing Portland employers took effect in January of 2014. This law may bear on a pregnant employee’s rights. As with FMLA and OFLA, the employee has to have worked a certain number of hours. However, all subject employers have to provide leave, and employers of 6 or more employees must provide paid leave. There are various requirements governing accrual, use, and payouts. One highlight is that an employee does not have to show a disability or serious health condition. In fact, an employee does not even have to provide documentation until a certain point. The leave may be taken in very small increments, as low as 1 hour. The employer is charged with tracking. Again, the example of a pregnant employee with morning sickness comes to mind. To a point, a qualifying employee will have to be allowed sick leave, even for a partial day.

 

BREASTFEEDING EMPLOYEES: TIME AND PLACE FOR PUMPING, AND OTHER ISSUES FOR OREGON EMPLOYERS AND EMPLOYEES

August 12, 2014

August is National Breastfeeding Awareness Month. As pressure from groups supporting the ability to breastfeed and express milk has increased, the law relating to women employees who are breastfeeding has continued to develop. Since 2007, Oregon has required employers of 25 or more employees to provide unpaid break time and a reasonable, private location for breastfeeding employees to express milk. Since 2010, federal law has imposed a similar requirement on employers who are subject to the Fair Labor Standards Act (FLSA). The reach of the FLSA is determined by the company’s involvement in interstate commerce, as well as either the type of business or its revenue; therefore, it is not always immediately clear whether the FLSA applies to a particular employer. Under both the federal and state statutes, there is an exception for undue hardship, if the proper showing is made.

Perhaps the biggest difference between the Oregon statute and the FLSA is that the former does not carve out an exception for employees who are exempt for overtime purposes. Administrative, executive, or professional employees have the same rights under the Oregon statute as non-exempt employees.

Although neither the federal nor the state statute provides for a private right of action by an individual, both have administrative enforcement provisions. Additionally, taking action against an employee for asserting her rights under the statutes may give rise to a retaliation/whistleblower claim.

Also, the new EEOC guidelines relating to pregnancy (see article of this same date) explicitly provide that lactation is a pregnancy-related condition under the Pregnancy Discrimination Act (PDA). Therefore, an employer may not discriminate against an employee with regard to expressing milk. The question is whether other similarly situated employees are treated the same. For example, is a male employee allowed to flex his schedule to go get a mole checked out at the dermatologist? Then flexibility for a breastfeeding employee to pump will likely also be required. Otherwise, she would be treated less favorably based on the specific reason that she requires flexibility (which is related to pregnancy).

The EEOC guidelines are not binding in a lawsuit under the PDA or its Oregon counterpart, but they may well be considered. That means all Oregon employers should avoid less favorable treatment of breastfeeding or pumping in comparison to other types of employee needs. Also, both the PDA and its Oregon counterpart have anti-retaliation provisions, protecting an employee’s assertion of her rights under the statute.