The Oregon Bureau of Labor and Industries (BOLI) adopted several substantive changes to their administrative rules effective May 17, 2002. The changes primarily affect employee protections under the Workers’ Compensation law, the Oregon Family Leave Act (OFLA) and disability discrimination. BOLI also incorporated successors-in-interest obligations in discrimination, injured worker reinstatement/reemployment and OFLA regulations. A summary of the more significant changes follow:

Added obligations as successors-in-interest when purchasing an established operation: A company that is a successor-in-interest to a prior company will be required to assume the liabilities of the prior company with respect to alleged acts of discrimination, the obligations to reinstate or re-employ an injured worker upon medical release, and the prior employer’s obligations under OFLA. BOLI adopted a nine-factor test to determine whether a party is a successor-in-interest, although an employer does not have to meet all of these elements to be considered a successor-in-interest. OAR 839-005-0050; OAR 839-006-0130(11); 839-006-0135(11); 839-009-0320(1).

No prior rule addressed successor liability. The test, however, is derived from one applied by federal courts to impose successor liability under Title VII of the 1964 Civil Rights Act.

Created Per Se Disabilities: BOLI seems to have increased the level of protection for “progressive impairments” including cancer, Hodgkin’s disease, multiple sclerosis and HIV. the new language may be interpreted to protect these employees from discrimination regardless of whether their condition “substantially limits the individual in any major life activity.” OAR 839-006-0240(2).

The prior rule recognized that some of these “progressive impairments” may be disabling for particular persons and noted that certain factors may be considered, including the stage of the disorder or presence of other impairments that combine to make the impairment disabling.

Expanded anti-retaliation protection beyond that provided by statutory provisions: In cases alleging injured worker discrimination or workers’ compensation discrimination, BOLI has extended anti-retaliation protection beyond the specific protections provided in the statute to those workers who have “given testimony, are about to give testimony, or who are perceived to have given testimony”. BOLI also added prohibitions against “aiding, abetting, inciting, compelling or coercing” an individual to perform any acts prohibited by the injured workers anti-discrimination laws. This addition will allow recovery of compensatory and punitive damages for violations. In addition, those who have “filed a complaint, testified or assisted in any proceeding in connection with” OFLA are protected from retaliation. OAR 839-006-0115(1); OAR 839-006-0117; OAR 839-009-0320(4).
The prior rules lacked such expansive language.

Changed OFLA leave deduction method for partial days off for salaried exempt personnel: BOLI regulations dictate that an exempt employee be allowed to use OFLA leave in partial day increments with no deduction or docking of pay. Otherwise, the employee’s exempt status could be jeopardized. This new provision applies to leave covered by OFLA only and not to leave also covered by the federal Family Medical Leave Act (that is, the employer has 25 to 49 employees, or the leave taken is for a sick child, for serious health condition of a parent-in-law, serious health condition of a same-sex domestic partner, or the serious health condition of a same-sex domestic partner’s parent). OAR 839-009-0240(10).

Under the superseded rule, where OFLA leave was not also covered by FMLA leave, the employer was required to allow an exempt employee with accrued paid leave to take OFLA leave in one-hour blocks or less than a full day. The employer could require an employee without accrued paid leave to take intermittent leave in blocks of at least one day if to do otherwise would result in the loss of exemption under state or federal law.

Increased restrictions on obtaining medical certification under OFLA: An employer may not request additional information from the employee’s health care provider if the employee submits a medical verification. A health care provider representing the employer may request additional clarifying or supplemental information provided the employee has given consent. Employers may not request additional medical verifications more often than every 30 days, and only in connection with a significant change in circumstances or if the employer receives information casting doubt upon the employee’s stated reasons for needing the leave. OAR 839-009-0260(5)–(6).

No prior rule addressed this situation.

Our recommendations:

All Oregon employers should review and revise their current policies and practices to ensure compliance with these new BOLI regulations.

The new successor-in-interest regulations make it more critical to assess the potential liabilities inherent in any business being purchased. It is possible to negotiate indemnification for the potential claims or to adjust the purchase price for the estimated value of the claims.

Because BOLI seems to think certain progressive diseases are per se disabilities, employers should be wary when working with employees with these diseases.

The change in the method of paying for OFLA partial day absences for exempt employees is one area that could prove to be expensive if not handled properly. Employer record-keeping on the amount and type of family leave (FMLA v. OFLA) should be verified to make sure that deductions for partial-day absences are not made for leave covered only by OFLA.

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