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MARCH 2019

 

In This Issue:

Employment Bills to Pay Attention To

By Jenna Reed, JD, General Counsel and Director, Compliance Services
Cascade Employers Association
[email protected]

Nearly 75 bills related to employment have already been introduced in Oregon’s current legislative session. Many of the bills are minor and not likely to have a significant impact. However, there are a few that we are keeping a close eye on.

SB 379 and HB 2655: Regarding Off-Duty Use of Lawful Substances.

These bills would make it an unlawful employment practice for any employer to require, as a condition of employment, that any employee or prospective employee refrain from using a substance that is lawful to use under the laws of this state during nonworking hours, except when the restriction relates to: (a) A bona fide occupational qualification; or (b) The performance of work while impaired.

While on its face this might not sound alarming, the concern is that it would prevent employers from refusing to employ or disciplining or terminating an employee that tested positive for marijuana if lawfully used outside of work. The problem is that drug tests cannot differentiate between an employee that lawfully used marijuana outside of work and an employee that is or was impaired at work. The drug tests only detect use, but not impairment. Both of these bills have had significant opposition.

HB 3031: Regarding Paid Family and Medical Leave

This bill would provide paid family and medical leave insurance benefits to employees in Oregon through a program administered by the state. Benefits would be available to eligible employees that submit a claim for the following reasons:

“(a) Parental leave; (b) Leave to care for a family member with a serious health condition; (c) Leave for a serious health condition, including pregnancy; (d) Leave to care for a covered servicemember; (e) Leave for a purpose described in ORS 659A.093 for a family member (military family leave); (f) Leave because of a qualifying exigency for a family member; or (g) Leave for any purpose set forth in ORS 659A.159. (Any reason covered under the Oregon Family Leave Act)”

Employees may be eligible for up to 12 weeks of benefits per benefit year. This insurance program would be funded through payroll contributions split equally between the employer and employee.

SB 726: Regarding Workplace Discrimination, Harassment and Settlement Agreements

This bill would result in some significant changes including extending the statute of limitations to seven years (currently one year), allow personal liability for an owner, president, partner or corporate officer, require certain workplace policies and notices to employees, and restrict certain provisions in employee non-disclosure and separation agreements such as prohibiting non-disparagement and no-rehire clauses in settlement agreements.

It would also allow employers to void severance or separation agreements with executives if after a good faith investigation the employer found the executive to be in violation of certain sections of this bill regarding discrimination, harassment or sexual assault.

HB 2175 and SB 110: Regarding Overtime and Maximum Hours of Work

These two bills would remove the maximum hours of work restrictions currently in place in Oregon for manufacturing establishments, mills and factories.

HB 2341: Regarding Reasonable Accommodations for Pregnancy Related Conditions

This bill would make it an unlawful employment practice for an employer to deny reasonable accommodation for known limitations related to pregnancy, childbirth or related medical conditions or to take certain actions related to reasonable accommodations to known limitations related to pregnancy, childbirth or a related medical condition.

Currently, pregnancy alone is not considered a disability; this bill would treat it as such and in some respects goes beyond what is required under current state and federal disability laws. This bill would also make it unlawful to discriminate or retaliate against an applicant or employee for requesting accommodation under this law.

We will continue to monitor these bills and others that may be introduced during the session and keep you updated as to how they progress.

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Five Good Reasons to Employ People with Disabilities

Guest Article By: Kathy Schlotfeldt, Executive Director
MV Advancements and Cascade Board Member
[email protected]

MV Advancements logoWe are at a time in history where we no longer need to “create” jobs for individuals with a disability. There are business needs that already exist in our communities. And statistically, people with disabilities stay at their jobs longer and have better-than-average attendance.

  1. Did you know that all sheltered workshops in Oregon that employ people with disabilities will be closed by 2020?

    In response to a class action settlement in 2015 (Lane vs. Brown), sheltered workshops are closing around the state in order to be compliant with the terms of the lawsuit and in compliance with the Governor’s Executive Order No. 15-01, prioritizing community employment for people with disabilities. This means that individuals experiencing disabilities are now accepting jobs in our communities with many local businesses, positively impacting the business community as well as the employee.

  2. Did you know that the unemployment rate for individuals with developmental disabilities is over 70%?

    It’s a myth to think that individuals experiencing disabilities have their needs met by social services or welfare or even family members. The fact is, earning money builds independence, confidence, self-esteem, and provides opportunities for friendships so that they, too, can live a good life. What would your life be like if you never had a job? These individuals, like us, want the same things that you and I want: a home, friends, and - a job.

  3. Did you know that hiring someone with a developmental disability can increase your employee retention?

    Over the last 2 years at MV Advancements (MVA), the retention rate for supported individuals placed at jobs in the community was over 85%! A successful hire of a supported individual has a high rate of success because MVA takes care to get to know both the individual and the employer before recommending a match. MVA has over 50 individuals on its waiting list for employment in the communities within Marion, Polk and Yamhill counties, but they need more employers willing to offer opportunities. Before placing an individual in a job, MVA conducts free assessments and explores job options to meet the demand and make quality employment matches. Their supported individuals are an asset to an employer and come with job coaches to support them on the job and teach them how to engage in the workplace. This alleviates training and onboarding costs that can be a barrier to employment. This is a win-win for both the employee and the employer!

  4. Do you know the benefits of being diverse in your employment practices?

    Companies that hire supported individuals constantly tell MVA that their culture shifts, biases fade, morale improves, and their company thrives. Why is this? MVA believes that hiring a supported employee adds an essential element to the workplace that brings compassion, honesty, and equity. These individuals are held to the same standards as other employees; they are expected to be on time, polite, and productive. But let the employers speak for themselves. This is what Melisa Parrish from HR at Ushio America, a manufacturing company in Newberg, says: “Hiring employees through MV Advancements has been a great success for Ushio America. MVA has a great support staff that helps us find the right employees for the jobs we have, and with their continued job coaching support it has helped these employees and Ushio thrive.”

  5. Did you know there are organization out there that help businesses hire individuals experiencing disabilities?

    MV Advancements is committed to helping the individuals they support to live a good life as active and contributing members of their community. MVA empowers and supports over 300 individuals in Marion, Polk and Yamhill counties to live, work, and thrive. They have many opportunities for employers to help make this transformation of employment successful for individuals with disabilities seeking jobs in Oregon. MVA promises to make it easy for employers and their commitment is that it will be a real win for your business! Email their team for more information at [email protected]. For a list of other organizations in Oregon that help businesses hire individuals experiencing disabilities, contact Oregon Resource Association (ORA).

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Hot Compliance Question

By Caitlin Egeck, JD, HR and Compliance Consultant
Cascade Employers Association
[email protected]

Question: An employee of mine is on intermittent family medical leave for diabetes-related conditions and complications. This employee’s physician indicated that she would miss about 2-3 days per month. This employee is regularly scheduled to work on Fridays but she takes every other Friday off for family medical leave. Since this employee only takes Fridays off, I suspect she is abusing the leave. As an employer, is there anything I can do to address this situation?

Answer: If you receive information that is causing you to doubt the employee’s stated reason for leave or the continuing validity of the existing medical certification, you may request medical recertification for the serious health condition.

However, it is important to note that you cannot require recertification simply because you “have a feeling” that the employee is abusing the leave. If you base recertification on “just a feeling,” the employee could later claim that you interfered with her protected right to take leave. This is because the employee could have legitimate health-related reasons for taking Fridays off, such as the availability of doctor appointments or the need for 3-day weekends to manage her condition. Therefore, before requesting recertification, you should have a discussion with the employee about their unusual pattern of absences. If the employee’s explanation does not shed any light as to her reasons for needing those days off, you now have more of a basis to request recertification.

Additionally, any co-pays or out-of-pocket expenses associated with the recertification must be employer paid.

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HR Stats You Should Know

By Jenna Reed, JD, General Counsel and Director, Compliance Services
Cascade Employers Association
[email protected]

270. According to a report by Jobvite, employers need 270 visits to a job posting to get one hire. Small employers (less than 250 employees) have the longest time to hire average at 41 days.

This shouldn’t be too surprising (I mean, I’ve talked with many of you about this struggle) and it reinforces the need for employers to focus on improving the recruitment and hiring process in order to better compete for talent. For example, are you using talent optimization tactics? If not, you might want to look into it. Have you evaluated how you source your talent? Have you evaluated how you interview?

All of these things should be considered a priority as the competition for talent continues to increase. Need some help to see if you’re on track? Let’s connect.

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OFCCP Set to Publish Online Only Scheduling List

By Jenna Reed, JD, General Counsel and Director, Compliance Services
Cascade Employers Association
[email protected]

OFCCP recently announced that it will post a new, publicly available Corporate Scheduling Announcement List (CSAL) in mid-to-late March. As previously declared, OFCCP has replaced corporate scheduling announcement letters with an electronic announcement list. The March 2019 CSAL will appear only in OFCCP’s FOIA Library.

When OFCCP posts the CSAL, it will send an email to all who have subscribed to its email notices. If you would like to be on OFCCP’s email communications list to receive timely notifications, you can subscribe here.

OFCCP will now also start to include Section 503 Focused Reviews (as outlined in OFCCP’s Focused Review Directive DIR 2018-04) and compliance checks (as outlined in OFCCP’s Affirmative Action Program Verification Initiative Directive DIR 2018-07).

Scheduling letters initiating audits will be sent 45 days from publication of the CSAL list. If you have questions regarding affirmative action or would like to speak to our compliance team, please contact us.

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