OREGON LEGISLATIVE UPDATE
The Oregon legislative session that ended in July resulted in a number of new laws that will affect Oregon employers beginning January 1, 2010. Chances are good that you have already heard about some of these new laws, like the Employer Gag Law and the Oregon Military Family Leave Act (discussed in Bullard Alerts
dated July 24, 2009 and July 28, 2009).
Additionally, there are a number of other new laws that go into effect next year and for which Oregon employers should prepare. These new laws include the Workplace Religious Freedom Act (regarding accommodation of religion), House Bill 2377 (regarding the use of cell phones while driving), and Senate Bill 928 (regarding accommodation of victims of domestic violence). In this Alert we discuss each of these new laws, using real world scenarios to provide practical context for the ways in which these changes are likely to impact Oregon employers.
Religious Accommodation. You have an employee, who, asks for multiple days off to observe a religious holiday. The employee has never mentioned her religious practices or beliefs, you have never heard of the religion or the religious holiday, and the time-off request precedes a three-day weekend. You wonder if the employee is simply trying to arrange for a long five-day weekend. How should you respond?
Before tackling the question, some background on the law regarding religious accommodation is needed. Existing Oregon and federal laws prohibit an employer from discriminating against an applicant or employee based on an employee's religion, unless
the action to be taken (e.g., a refusal to hire, a denial of time off, etc.) results from a bona fide occupational requirement reasonably necessary to the normal operation of the employer’s business. Further, existing Oregon and federal law also require an employer to reasonably accommodate its employee’s religious practices and beliefs, unless providing accommodation would result in undue hardship.
Undue hardship is not defined by the Oregon and federal statutes currently
in effect. This definitional responsibility has been left to the courts. Various courts decisions have filled that void and have held that an employer may prove undue hardship by showing that a particular practice or belief would: be contrary to business necessity; require more than ordinary administrative costs; diminish efficiency in other jobs; infringe on the job rights or benefits of other employees; impair workplace safety; require other employees to carry the accommodated employee's share of potentially hazardous or burdensome work; and/or require the employer to violate another law.
On January 1, 2010 Oregon’s new Workplace Religious Freedom Act (WFRA) goes into effect and will provide statutory guidance to Oregon employers on the meaning of undue hardship. The WFRA provides that an otherwise “reasonable accommodation imposes an undue hardship on the operation of the business of the employer for the purposes of this section if the accommodation requires significant difficulty or expense.” It also lists the factors an employer should consider when evaluating whether a particular accommodation would result in significant difficulty or expense. These factors include:
- the nature and the cost of the accommodation;
- the nature of the business operations;
- the employer’s overall financial resources;
- the employer’s financial resources at the facility where the accommodation is requested;
- the number of employees and the impact on expenses, resources and operations that the proposed accommodation would have; and
- safety and health requirements (e.g., whether there would be safety concerns related to the wearing of a particular item of clothing required by a religion).
The WRFA also expressly identifies specific actions that, in the absence of undue hardship, constitute unlawful discrimination based on religion. These actions include:
- Not allowing an employee to use vacation, or other available leave, for the purpose of engaging in a religious observance or practice (this “applies only to leave that is not restricted as to the manner in which the leave may be used”);
- Imposing an occupational requirement that has the effect of restricting the ability of an employee to take time off related to a holy day or to take time off to participate in a religious observance or practice; and/or
- Imposing an occupational requirement that has the effect of restricting the ability of an employee to wear religious clothing while working (except that public school districts may prohibit teachers from wearing religious clothing while teaching).
With this background, we are ready to analyze our question (on how to respond to a request for time off in connection with a religious holiday, where at first blush the employee’s request seems suspect). We should follow two steps: (1) confirm that the religious belief or practice in question is sincerely held and followed; and, if it is, (2) provide a reasonable accommodation unless doing so would result in an undue hardship.
On the first step it is important to note that there is a low threshold on the amount of evidence required to sufficiently prove the existence of a religion and/or that a practice is sincerely held. The courts will not closely evaluate whether a religion is bona fide or if a particular belief is sincerely held. They will, though, allow an employer to require a minimal amount of confirmation from the employee that a religion or practice is bona fide. Bear in mind that it does not take much to meet the standard. For example, an employee could meet the standard with the following: a letter or telephone call from a spiritual advisor; a book of religious tenets or pamphlet alluding to same; an employee’s diary of his/her practices; or any other form of evidence supporting the religion or religious practice. Assuming that your employee satisfies the first step, you should then move to the second step and evaluate whether the leave request is reasonable and not an undue hardship.
Hands-Free Devices while Driving. Your employee, who is non-exempt, is involved in an automobile accident during his morning commute to work. The employee explains that his supervisor sent an urgent text message to him and that he needed to respond to it while driving. How should you respond?
If you drive a motor vehicle in Oregon, you have probably encountered one or more drivers who is either talking on a cell phone or texting -- or both -- while driving; sometimes it may even be you who is so diligently “multitasking” on your way to work. These kinds of practices have safety implications and, for employers, raise numerous questions related to employees who use mobile phones and data devices for work while driving. The questions include: (1) if the employee causes an accident will the employer be responsible for the damage caused; (2) if the employee is injured in an accident, does workers’ compensation insurance cover these injuries; (3) was the employee on or off-the-clock; (4) if this is compensable time could it mean that the employee now qualifies for overtime; and (5) was the employee’s mobile phone or data device use in compliance with company policy. Although there is no bright line rule to answer these fact-specific questions, they all warrant thoughtful consideration and possible employment policy modification before they become an issue in your workplace.
Beginning January 1, 2010, there will be yet another consideration for Oregon employers to keep in mind when addressing employee use of cellular phones and other mobile communication devices, such as Blackberries and iPhones, while driving. On that date, House Bill 2377
goes into effect and makes it a Class D traffic violation for persons of any age to use hand-held mobile communication devices while driving, with certain exceptions. Washington passed a similar law in 2008 banning text messaging and the use of hand-held cellular phones while driving.
There is a hand-free exception to the law, which is both good and bad. The good news for Oregonians in general is that the new law will allow persons 18 years and older to use hands-free
mobile communication devices while driving. On the other hand, the bad news for employers is that employees can still have work-related conversations while driving, albeit on a hands-free device; in other words, employers will still have to be concerned about the five questions we listed above.
In addition to the hands-free exception, the other exceptions to the new law include, among other things, an exception for certain emergency and public safety personnel, an exception for summoning emergency assistance, an exception for certain one-way voice communication, and an exception for persons “operating a motor vehicle in the scope of the person’s employment if operation of the motor vehicle is necessary for the person’s job[.]” The “necessary for the person’s job” exception makes it clear that it is important for you to review your policies and position descriptions before this becomes an issue (e.g., before an employee is stopped by a police officer for a cell phone infraction and/o before an employee is involved in an automobile accident while talking to a vendor on a cell phone).
When evaluating compensability of and potential liability for work-related activities performed outside of work hours, an employer’s policies, procedures, past practices, and communicated/documented expectations are key. Now is a good time to make sure your policies limit and define what constitutes an acceptable use of hand-held communication devices, such as cellular phones, for work-related purposes, especially during driving. Included in your policies should be any other information necessary to ensure the appropriate and safe operation of motor vehicles for company purposes and/or while on the clock. Policies you may want to consider reviewing and revising include any cell phone/mobile data device policy, as well as any policies regarding driving during compensable time, access to work-related emails after hours and/or “off the clock” activities.
Safety Accommodation for Victims of Domestic Violence. Your employee reports that her former boyfriend is stalking her. Citing safety concerns, she asks for reassignment to a different work site. How should you respond to this request?
Effective January 1, 2010, a new Oregon law will require employers to provide reasonable accommodations to domestic violence victims. Specifically, Senate Bill 928
, signed by Governor Kulongoski on June 23, 2009, requires employers to provide a reasonable safety accommodation requested by an employee who is a victim of domestic violence, sexual assault, or stalking. The new law also makes it unlawful for an employer to discriminate or retaliate against an applicant or employee because s/he is a victim of domestic violence, sexual assault, or stalking (e.g., an employer may not to refuse to hire, discharge or threaten to discharge, demote or suspend an applicant or employee because s/he is such a victim).
The new law is consistent with other recent legislation providing additional leave protection for victims of domestic violence and certain violent crimes. Eligible employees, who are victims of domestic violence, sexual assault, or stalking, or whose children are victims of such crimes, may take time off from work to get legal help, medical treatment, counseling, or to heal from their injuries or move to safety. Eligible employees may also take time off from work to attend to related criminal proceedings if they or an immediate family member has been the victim of certain types of violent crimes. Employers are prohibited from discriminating against employees who request leave under these circumstances.
Under the new law, when responding to your employee’s request for a reassignment because her former boyfriend is stalking her, you will need to grant the request (or some other effective and reasonable accommodation), unless granting it would pose an undue hardship on your business.
To be effective, the accommodation granted should address the employee’s safety concern. You should discuss the reassignment request, the underlying safety concern, and possible solutions with the employee. In many cases, one part of this interactive process would be to request verification from the employee that s/he is a victim in need of assistance; verification can take many forms, such as a police report, legal document, or letter from the police or an attorney. The verification helps you discuss with your employee the scope of the accommodation needed and the measures that might be effective.
There are two very important things to remember about the interactive process.
- An employer does not have to provide the exact accommodation the employee requests; rather, your obligation is to provide a reasonable safety accommodation.
- Depending on circumstances and the safety concerns at issue, an employer may want to temporarily grant the accommodation requested immediately, even before the interactive process is complete; an employer can make appropriate adjustments to the accommodation after completion of the interactive process.
The measures that will constitute reasonable accommodation will vary from case to case. In some cases, simple safety precautions may be an effective (e.g., installing a lock on the office door, changing the employee’s work telephone number, and/or notifying security of a restraining order); in other cases, though, more severe or drastic measures will be needed to achieve an effective reasonable accommodation (e.g., allowing the employee to take an unpaid leave of absence to take care of legal, health, or safety issues, providing a modified work schedule, and/or, transferring the employee to a different work location where s/he may be safe from the perpetrator).
Some accommodations may be needed permanently while others may be needed only temporarily (e.g., until the employee has a chance to get resituated or until a perpetrator is incarcerated). Unfortunately, the law does not say how long an employer must accommodate an employee. In the absence of specific guidelines in the law, you should continue to provide an accommodation as long as it is reasonable (necessary and effective) and does not pose an undue hardship on the business.
If your anti-discrimination and leave policies do not already include information and protection for victims of domestic violence, sexual assault or stalking, now is a good time to review and update them.
- Jennifer L. Bouman-Steagall & Devra S. Hermosilla