2009: No Longer Business As Usual

Dear OR-PRIMA Members and Friends,

I'm having a hard time believing we're already three months into the new year and what a year it's shaping up to be.   In fact, in some respects, it will be an historic year for public sector risk management, but more on that later.

First, I'd like to welcome to the Board two new members who began their terms in January - Debora Leopold-Hutchins and Dan Davenport.  

Debora manages TriMet's owner controlled insurance program which entails purchasing insurance, managing the enrollment of over 250 contractors, managing all claims and coordinating safety and loss control services.   She has been with TriMet for three years.

Also joining the Board is Dan Davenport.   Dan has been with Beaverton Public Schools for eight years as their Loss Control Specialist.  

I mentioned this being an historic year for public sector risk management.   I say this because the current legal and economic environment is unprecedented in my 22 year career.

As I'm sure you all know, the Legislature will be considering a proposal to increase the caps on liability for State and local government.   The caps have provided financial protection and stability to Oregon public entities with few modifications over the past 40 plus years.   We've all developed our insurance and risk management programs around the guarantees of the caps.   However, in December 2007, the Supreme Court landed a heavy blow to our sense of security with its decision in Clarke vs. OHSU which allows for the possibility that on an “as applied” basis there are cases for which awards will be allowed against Oregon public entities in excess of the tort limits.

The proposed legislation is in two tiers which would increase the limits for local government to $500,000 per claimant and for OHSU and State government to $1.5 million.   Limits on property damage would also increase.   Yet, despite these new, higher caps, government entities may still face the possibility of even higher judgments.   Gone are the days when we could rely on the certainty once provided by the Oregon tort claim limits.

In addition, there is a work group that is continuing to analyze questions related to liability in contracts between local governments and the State and the liability of public entities for negligence of their agents.   This could result in further legislative proposals.    Bill Blair, Sr. Ast. County Counsel for Washington County and a member of the task force to develop tort reform legislation, will share the latest developments at our Spring Meeting.

While tort reform is perhaps the most significant of the possible legislative changes, it is certainly not the only one with the potential to impact public entities.   There are also proposed bills on the subjects of expanded firefighter presumptions for workers compensation, “medical” marijuana in the workplace and mandated workers compensation coverage for search and rescue volunteers.  

These changes to the legislative landscape come at a time when our economy is at its worst in 30 years.   The impact of this on our insurance costs and available markets is sure to be felt by all.   For some, the economic impact will even go as deep as their own personal livelihood.

While we can't predict with certainty what the future will hold, one thing we can be sure of is that managing public sector risk will no longer be “business as usual” in the coming months and years.   All of these factors will combine to test our flexibility and creativity in ways that are unprecedented.  

But, I'm a glass-half-full girl.   On the bright side, it's times like these that give us the perfect opportunity to demonstrate the value of a strong risk management program to our entities You can continue to count on your Oregon chapter PRIMA to provide the support, networking and training resources you need to not only survive, but succeed against each new challenge.

See you at the Spring Meeting!

Sara Stevenson, ARM-P

OR-PRIMA President

A Drug Free Workplace is a Safe Workplace

Colleen Wienhoff, CEO Bio-Med Testing Services, Inc.

The majority of individuals who abuse alcohol and other drugs are employed, creating significant but avoidable safety and health hazards in the workplace.

Small employers in particular have big disadvantages when it comes to drug abuse. Because they are less likely than larger employers to have programs in place to combat it, it may be more difficult for small employers to identify and handle drug abuse issues—and the cost of just one accident caused by an impaired employee can devastate a small employer.

The good news is that small employers can protect themselves and help reduce drug abuse in their communities by implementing workplace prevention programs that educate employees about its dangers and encouraging individuals with related problems to seek help.

Though not required, drug-free workplace programs are natural complements to other initiatives that help ensure safe and healthy workplaces and add value to our   employers and communities. Such programs help reduce injuries and illnesses and send a clear signal that employers care about their employees.

A drug-free workplace program should include five components: a written policy, supervisor training, employee education, employee assistance and drug testing. You may choose not to include all five at your employer, but it is helpful to explore all of them when developing a program.

What does it take to create a Drug Free Workplace?

Drug Testing
Some employers decide to drug test for a variety of reasons, such as deterring and detecting drug use, as well as providing concrete evidence for intervention, referral to treatment and/or disciplinary action. Before deciding to test, you must consider certain factors, such as who will be tested, which drugs will be tested for and when and how tests will be conducted. You must also be familiar with any state and federal laws (such as DOT, Department of Transportation regulations) or collective bargaining agreements that may impact when, where and how testing is performed.  

Supervisor Training
After developing a policy, train the individuals closest to the workforce: supervisors. Training should ensure that supervisors understand the drug-free workplace policy, ways to recognize and confront employees who have performance problems that may be related to drug abuse and how to refer employees to available assistance or for drug testing as needed.

Supervisors' responsibilities should include monitoring performance, staying alert to and documenting performance problems and enforcing the policy. Supervisors should not, however, diagnose drug-abuse problems or provide counseling to employees who may have them. Supervisors who are responsible for making referrals for drug testing based on reasonable suspicion, must be specifically trained on how to make that determination.

Employee Education
A drug- and alcohol-education program provides employees with information they need to cooperate with and benefit from a drug-free workplace program. Effective programs provide employer-specific information, such as the details of your policy, as well as general information about the nature of addiction; its impact on work performance, health and personal life; and help available for related problems. All employees need to participate, and the message should be delivered on an ongoing basis through a variety of means, such as   displays, in services, guest speakers and sessions at new employee orientation.

Employee Assistance Programs (EAP's)

A critical part of a drug-free workplace is providing assistance to employees who have problems with drugs or alcohol. EAP's have effective tools for addressing poor performance that may stem from an employee's personal problems, including drug abuse.

EAP's benefit employees and clearly demonstrate employers' respect for their staff. They also offer an alternative to dismissal and minimize employers' legal vulnerability by demonstrating efforts to support employees.

At a minimum, employers should have a file where employees can access information about community-based resources, treatment programs and help lines.

For further information please contact Bio-Med Testing at

503-585-6654 or yvonne@bio-medtesting.com

Final Regulations – The Family and Medical Leave Act

Regulatory Compliance Resources, LLC

David L. Uyemura, JD, MBA

2829 SW Brixton Avenue

Gresham, OR 97080

(503) 705 1149

dluyemura@gmail.com

On November 17, 2008 the US Department of Labor issued final regulations for the Family and Medical Leave Act that became effective January 16, 2009.

Employers with 50 or more employees within 75 miles of a worksite are subject to FMLA and have less than 60 days to comply with the new regulations.   This will require revising employee handbooks and notices, adopting new notice distribution procedures and generally revising your FMLA administration.

The regulations are 201 pages long, so it is impossible to fully explain in this article what will be required.   However, these are some of the major provisions (“employees” refers to eligible employees):

Military Family Leave

Military family leave rules differ somewhat from the rules pertaining to non-military FMLA leaves.

Military Caregiver Leave

Employees will be entitled to up to 26 weeks of leave in a single 12-month period to care for a family member with a serious injury or illness incurred in the line of active duty.   Family members are a spouse, child, parent or “next of kin”.

A “next of kin” is a blood relative designated by the servicemember or, if no designation, blood relatives of the same level, all of whom are entitled to FMLA leave, either consecutively or simultaneously.

Special rules will apply for issues such as serious health conditions, multiple leaves when more than one family member is injured or ill, medical recertifications, second and third medical opinions and interaction with traditional FMLA leaves.

Qualifying Exigencies for Families of National Guard and Reserves

Employees with family members on active duty in the National Guard and Reserves will be entitled to 12 weeks of leave for (1) short-notice deployment, (2) military events and related activities, (3) childcare and school activities, (4) financial and legal arrangements, (5) counseling, (6) rest and recuperation, (7) post-deployment activities, and (8) other events arising out of active duty or a call to active duty agreed to by the employer and employee as to timing and duration. 

Highlights of the Final FMLA Regulations

While much of FMLA has not changed, these are some of the most important changes and clarifications that stand out in the final regulations:

Employers must provide four notices

•  General Notice of FMLA Rights :   Employers must post a FMLA notice, include an explanation of FMLA rights in employee handbooks or written materials describing benefits and provide a notice to new employees when hired.

Notices must be in a foreign language when a significant portion of employees are not literate in English.   A definition of “significant” is not provided by the regulations.

Electronic-only postings will be permitted only where all employees have access to company computers.

•  Specific employee FMLA Eligibility Notice :   When employees request a FMLA leave or the employer receives information indicating the need for a FMLA leave, the employer must notify employees of their eligibility to take a FMLA leave within 5 days (formerly 2 days).

•  Rights and Responsibilities Notice :   If an employee is eligible for a FMLA leave, a Rights and Responsibilities Notice must be given with the Eligibility Notice to explain employee obligations and any consequences for failing to meet their obligations.

Note:   The DOL has provided two optional forms employers may use to satisfy the Eligibility Notice and Rights and Responsibilities Notice requirements and which may be combined into one notice.

•  Specific employee FMLA Designation Notice : Once an employer has received sufficient information to determine whether a FMLA leave is owed, the employer must provide a Designation Notice within 5 days (formerly 2 days) if there are no extenuating circumstances to justify a delay.   Some rules for this notice are:

•  only one notice per FMLA leave in a leave year is required whether for a single period or intermittent leaves;

•  if the amount of leave is known, the notice must include the amount of leave that will be charged against the employee's entitlement; and

•  if the amount of leave is NOT known, the employer must notify the employee of chargeable leave only upon request and not more frequently than every 30 days.   This information may be provided verbally if noted on a subsequent pay stub (for the next payday which is more than one week away).

Employers who wish to require a fitness-for-duty certification upon return to work that addresses the employee's ability to perform essential job functions must give prior notice of this requirement in the Designation notice by stating that the fitness-for-duty certification will be required and listing the employee's essential job functions.

Retroactive designations

Employers who fail to give timely notices will be permitted to retroactively designate a leave as FMLA leave so long as the employee is not harmed or injured by the delay.   This is an important change from the prior rule.

Penalties for Failure to Give Notices

Employers could be liable for the harm suffered by employees, such as lost compensation and benefits, other monetary losses, and appropriate equitable or other relief, including employment, reinstatement, or promotion.

Employee notices

Employees must give 30 days prior notice of the need for a FMLA leave, but if that is not   possible, notice must be given “as soon as practicable”, which means:

•  for a foreseeable leave, on the same or next business day after learning of the need for the leave or

•  for an unforeseeable leave, prior to the start of the employee's shift except for “extraordinary circumstances.”

The employee's notice need not mention FMLA but must give “sufficient information” of the need for a FMLA leave which is:

•  inability to perform job functions (or the family member's inability to perform regular daily activities);

•  expected duration of the leave, and

•  whether the employee or family member intends to see a health care provider or is under a health care provider's continuing care.

Accounting for intermittent FMLA leave time

Employers may not charge off intermittent leave in increments greater than one hour; they are required to use smaller increments, such as 6 minutes or 15 minutes, only if that is the increment used for non-FMLA leaves.

Also, holidays occurring during an intermittent leave of less than one week are not charged as FMLA leave unless the employee would have been required to work on the holiday.   Holidays occurring during an intermittent leave of a full week or longer are chargeable as FMLA leave.

Call-in requirement

The final regulations clarify that if an employee does not comply with an employer's call-in procedure for absences, the employer may delay or deny the FMLA request and discipline the employee under its unexcused absence rules.

Medical information from administration of ADA, paid leave and workers' compensation

Employers will be able to consider medical information it has received for its other employment procedures to make FMLA determinations.   For instance, employers will be permitted to review and rely on workers' compensation reports or reports regarding a request for an accommodation under the Americans with Disabilities Act to determine if the employee has a serious health condition.

Medical Certifications

•  Employee's or family member's serious medical condition

The regulations recognize that a serious health condition for a family member needing care differs from an employee's own serious medical condition which also considers the employee's ability to perform the essential functions of a job.   The regulations provide optional, model forms for each certification.

•  More time to request medical certifications

Employers will have 5 days instead of 2 after employees give notice of the need for a leave to request medical certifications.   In the event of an unforeseeable leave, the 5 day period will start on the date the leave begins.

•  Notice of certification deficiencies

Employers will be required to notify employees in writing of additional information required to make its FMLA determination and allow 7 days for employees to provide the information.   If employees fail to submit the additional information without reasonable justification, the FMLA leave may be denied.   There are also new definitions of what constitutes incomplete or inadequate certifications.

  Frequency of medical recertification

Employers will be permitted to require new medical certifications:

•  every new leave year if a serious health condition continues into a new leave year;

•  every 6 months for ongoing conditions of unspecified duration; and

•  more frequently due to changed circumstances or if the employer receives information that creates reasonable doubt or suspicion on the validity of the medical certification.

•  Clarification of medical report

Employer must obtain a HIPAA Privacy-compliant authorization from the employee before contacting the medical provider to obtain a “clarification” of a medical report.   Clarification means to understand handwriting or the meaning of a report and not to request additional information.   The FMLA leave may be denied if the employee refuses to provide a written HIPAA authorization and the employer is unable to understand a medical report.

•  Second and third opinions

Employers who doubt the validity of a medical certification may require the employee to provide a second or third opinion from a medical provider of the employer's choice and at the employer's expense.   Second and third opinions are only permitted for new certifications and annual recertifications.   Third opinions are permitted when the first and second opinions do not agree.

•  Military caregiver medical certifications

Recertifications and second and third opinions are not permitted for purposes of military caregiver leave.

Fitness-for-Duty (return-to-work) Certifications

If an employer has listed the essential functions of the employee's job in the Designation notice, the employer may require that a fitness-for-duty certification what specifically addresses the employee's ability to perform the essential functions of the employee's job.   Also:

•  employers are prohibited from requiring second or third opinions of fitness-for-duty certifications and

•  employers may now require fitness-for-duty certifications for intermittent reduced schedule leaves if it has reasonable belief of a significant risk of harm.

If the employee fails to provide a fitness-for-duty certification at the time the FMLA leave ends, the employee may be terminated.   Before taking this drastic action, it is recommended that the employer allow the employee a reasonable amount of time to provide the certification.

Inability to work mandatory overtime

Employees may use FMLA leave for mandatory overtime if:

•  the employee would have been chosen to work overtime on a non-discriminatory basis and

•  the medical certification specifies that the employee is unable to work more than 40 hours per week.

Attendance and production bonuses

Employers may deny perfect attendance or production bonuses to employees who take a FMLA leave, as follows:

•  employees who have satisfied all requirements for the bonus prior to the FMLA leave are entitled to the bonus, but

•  if the bonus is not fully earned prior to the leave, the bonus may be denied if employees on non-FMLA leaves would lose the bonus.

FMLA disputes and mutual agreement to settle claims

Employers and employees will be able to settle FMLA disputes without approval from the Department of Labor or the Courts.

Model notices and forms

The regulations include the following optional forms which employers may use:

•  FMLA Poster

•  Form WH 380-E:   Certification of Employee' Serious Medical Condition

•  Form WH 380-F:   Certification of Family Member's Serious Medical Condition

•  Form WH 381:   Combined Notice of Eligibility and Rights and Responsibilities

•  Form WH 382:   Designation Notice

•  Form WH 384:   Leave for Military Qualifying Exigencies

•  Form WH 385:   Military Leave Serious Condition