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COMPLIANCE CORNER

So maybe we don’t feel the exact sentiments of Johnny Nash when he sings, “I can see all obstacles in my way,” but that’s why The Partners Group is here—to help with the “dark clouds that had me blind.”

Hello again, warriors, we’ve made it to Q3 of 2021 . . . which strangely feels a lot like Q3 of 2020 (hello masks, and goodbye events). Many of you are now navigating the challenges of vaccination mandates, increases in COVID-related leaves, and accommodation requests. On the bright side, you aren’t living in a van down by the river eating a steady diet of government cheese (Matt Foley motivation, anyone?).

The menu of this edition includes an appetizer platter of state updates, a light ADA entrée, and a service dog sundae. As always, we are thrilled to be your partner during these tough times, so please continue to reach out to your Account Manager with any questions or concerns.

FEDERAL UPDATES

As a shock to no one, federal health agencies released guidance for employers about the long-term health effects of COVID-19 in the workplace. Health professionals have identified “long COVID” as a new medical condition that afflicts people for many months after infection. The guidance states that “long COVID” is considered a disability under Section 504 of the Americans with Disabilities Act (“ADA”) if it substantially limits a major life activity.

“Long COVID” is a physiological condition that will affect one or more of the body systems. Because of the range of symptoms, long COVID can be both a mental and physical impairment under disability law. Here are a few examples:

  • Lung damage may result in shortness of breath, fatigue, and related effects.
  • Gastrointestinal damage may include intestinal pain, vomiting, and nausea.
  • Neurological effects such as memory lapses and “brain fog” that impacts brain function, concentration, or thinking.

The new guidance is directed only at employers who receive federal financial assistance, but it identifies long COVID as a disability under the same ADA analysis that applies to private employers. Therefore, if you have an employee requesting accommodations due to long COVID you should conduct an interactive process to determine whether the individual has a condition that meets the definition of disability, and then identify what reasonable accommodation(s) would enable the individual to perform the essential functions of their position.

STATE UPDATES

Maine

On June 14, 2021, Governor Mills signed into law an Act to Include Grandparents Under Maine’s Family Medical Leave Laws. The law amends the Maine Family Medical Leave Act to allow an employee to take unpaid leave to care for a grandchild or a domestic partner’s grandchild. Previously, the law limited leave to care for another individual’s serious health condition to children, domestic partners’ children, parents, domestic partners, siblings, or spouses.

Nevada

Under Senate Bill 209, private employers with at least 50 employees must provide paid leave to employees for the purposes of receiving a COVID-19 vaccination until December 31, 2023. If an employee requires one dose of the vaccination, the employer must provide two consecutive hours of paid leave. For a two-shot vaccination, the employer must provide two consecutive hours per absence, for a total of four hours. Employees must give their employers advance notice of at least 12 hours to take the leave.

These requirements do not apply to employers that offer an onsite clinic, where an employee may receive the vaccination during regular work hours or to new employers within the first two years of operation.

New Hampshire

New Hampshire (sort-of) jumped on the paid family and medical leave bandwagon by passing legislation for a paid leave program. What’s this “sort-of” business we reference? The program is voluntary for private employers (with at least 50 employees) and required for state employees. Private employers can opt in and take advantage of tax credits if they elect to do so. Coverage is available January 1, 2023. Our friends at Jackson Lewis did a wonderful write-up, linked here.

Oregon

Sick Time Usage

Oregon’s Bureau of Labor and Industries (BOLI) has issued a temporary rule clarifying that employees may use sick time accrued under Oregon’s Sick Time law for official evacuations and public health emergencies relating to air quality and extreme heat events.

The temporary rule clarifies that when an authorized public official orders emergency evacuation or determines that air quality and heat index exposure jeopardize the health of an employee, the employee can use their accrued sick time.

The temporary rule expressly states that employees may use accrued sick time in the event of a public health emergency, including but not limited to:

  • an emergency evacuation order of level 2 (SET) or level 3 (GO) if the area subject to the order includes EITHER the employer’s place of business OR the employee’s home address; and
  • a determination that the air quality or heat index are at a level where continued exposure to such levels would jeopardize the health of the employee.

The temporary rule is effective July 22, 2021, through January 17, 2022.

Oregon Family Leave Act Amendments

On June 8, Governor Brown signed into law House Bill (HB) 2474, amending the Oregon Family Leave Act (OFLA) to update and expand the law’s eligibility and leave provisions. The amendments give eligibility to employees reemployed after a separation or returning after a temporary work cessation within 180 days and expand eligibility and leave entitlements during public health emergencies. These changes, outlined below, take effect January 1, 2022.

  • Allow employees who have a break in service due to termination, temporary furlough, or layoff of 180 days or less to retain their OFLA eligibility and count time prior to break in service.
  • Expands eligibility during a public health emergency to employees working at least 30 days immediately prior to taking leave (reduced from 180 days) and an average of 25 hours or more per week during those 30 days.
  • Expands the definition of sick child leave to include providing home care to the employee’s child due to the closure of the child’s school or childcare provider because of a public health emergency and allows for certain employer verification.
  • Clarifies that pregnancy disability leave may be taken by “an eligible employee” rather than “a female eligible employee.”

What does this mean for you? Well, I can’t say the State had the complexities of managing variable eligibility in mind when they wrote these amendments. It kind of makes me feel like they worked on the amendments 24/7 all day yesterday. During times of a Public Health Emergency, it is important Oregon employers are mindful of the expansion. The definition of Public Health Emergency is more than COVID, it includes natural disasters, bioterrorism, and epidemics. We will be partnering with software and outsourced vendors to determine their strategies for managing the changes in the new year.

Oregon Paid Family and Medical Leave Insurance

“If I’m not back in 5 minutes, just wait longer.” – Ace Ventura, Ace Ventura: Pet Detective

As we reported in April . . . and again July, it’s now official – Governor Brown has signed off on the amendment to push out the effective dates of both contributions and benefits as follows:

Contributions effective 1/1/23 (delay of 12 months)
Benefits effective 9/1/23 (delay of 8 months)

Virginia

The Virginia Office of Civil Rights has issued its new poster for employers regarding reasonable accommodations for employees with disabilities. Starting July 1, 2021, covered Virginia employers must post this poster in a conspicuous location and provide a copy to any employee who discloses they have a disability, within 10 days of that disclosure.

The law applies to employers with more than five employees for a 20-week period in the current or preceding year. The law took effect July 1.

Washington

Washington has amended its rules regarding paid family and medical leave benefits. Under the law, an applicant may backdate a claim for good cause or the convenience of the Employment Security Department. The amended rule clarifies that good cause means factors that are beyond the applicant’s control that reasonably prevented them from applying for benefits at the time they needed the paid leave. An employee must prove that good cause exists and provide information and documentation that shows why they did not apply for benefits at the time of the qualifying event.

CASE LAW

Union Pacific may be wishing they had read up on the protections that come with service animals before they were handed this ruling.

Employee Perry Hopman filed suit after company officials refused his 2015 request that his service dog be allowed to accompany him to work at the railyard where he works as an engineer traveling on overnight runs.

Hopman, an Army veteran and a former flight medic, was diagnosed in 2008 with post-traumatic stress disorder following an 18-month deployment to Iraq. He’s also a survivor of a subsequent traumatic brain injury that occurred during a 2010 deployment to Kosovo with the National Guard, worsening his PTSD.

The dog, a Rottweiler named Atlas, is a trained service dog who can sense Hopman’s anxiety levels and “ground” him by sitting on his feet, as a weighted blanket can calm an autistic child. He is trained to remind Hopman to take his medicine, keep crowds away, block anyone approaching from behind, notify his owner when a migraine is coming, find the closest exit in a building, pick up and retrieve items, wake Hopman from nightmares, and even force him out of the house when he is being too reclusive.

Union Pacific denied Hopman’s request, saying it was unclear how a dog would react to dangerous conditions at the railyard such as moving cars and locomotives; that there was no infrastructure to support a dog on a train or on overnight trips the job sometimes required; and that the dog could pose a risk to other employees.

However, the dog’s training was designed, among other things, to keep him focused on his service duties in varied environments, and even to go without a potty break for 14 hours, if necessary.

After Union Pacific officials again denied his request, Hopman filed the lawsuit alleging that the railroad was subjecting him to disability discrimination.

According to a complaint filed in 2018, Union Pacific officials never met with Hopman in person to discuss his disabilities, never asked for any information regarding PTSD or service dogs, and never conducted an individual assessment of his accommodation request.

The only accommodation the railroad offered was to move him to a lower-paying position.

Ultimately, the federal jury awarded Hopman $250,000 after finding the company violated disability bias law by failing to let him bring his service dog to work to help him cope with his post-traumatic stress disorder.

While the request for service dogs is typically infrequent, I find them to be one of the more challenging accommodations to navigate. To be clear, service animals are trained to perform tasks for a person with a disability. Service animals are not emotional support, therapy, comfort, or companion animals. Emotional Support Animals (ESAs) provide companionship, relieve loneliness, and sometimes help with depression, anxiety, and certain phobias, but do not have special training to perform tasks that assist people with disabilities such as a guide dog for someone with visual impairments, sensory signal dogs to assist a person with autism, or a seizure response dog. While a few states have laws for the inclusion of ESAs, only service animals are included under the ADA.

One of the more common reasons an employer may want to exclude a service dog is due to allergies or fear from other staff. These are not valid reasons for denying access to the use of service animals. When a person who is allergic to dog dander and a person who uses a service animal must spend time in the same room or facility, they both should be accommodated by assigning them, if possible, to different locations within the room or facility.

Askjan.org has a wonderful compliance guide and the ADA has published a helpful FAQ on the topic as well.

UPCOMING EVENTS

The Partners Group is proud to be offering an educational session on Oregon Paid Family and Medical Leave Insurance (OR PFMLI) on Thurs., October 14, from 10 a.m.–11:30 a.m. PST.

This monumental program starts 1/1/23 and Oregon employers are required to participate in OR PFMLI, the nation’s most generous paid leave program. Join us for a detailed breakdown of how the Paid Leave Program will work and for best-practice recommendations from our subject matter experts on how to take an analytical approach to determining how to integrate OR PFMLI into your existing Leave of Absence and Time Off programs.

Be sure to watch your inbox for additional details!

DID YOU KNOW

The Partners Group is proud to offer a comprehensive Vaccine Resource Bundle to our clients at no cost. The bundle was created in collaboration with recognized leaders in employment law at Littler and includes the necessary tools to deploy a mandatory vaccine program. The bundle includes essential elements such as a policy, medical certification form for employees seeking an exemption, approval/ denial forms for accommodation requests, and much more, plus pertinent federal, state, and local legislative updates. Please click here to learn more.

It’s not over ‘til it's over! Visit our COVID-19 Resource Hub for the latest in mandates, tools, and more.
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