Human Resources

Can you delay designating paid leave as FMLA leave?

The Department of Labor issued an opinion letter today regarding the FMLA and whether an employer may delay designating paid leave as FMLA leave or permit employees to expand their FMLA leave beyond the statutory 12-week entitlement (26 weeks for military caregiver leave). The answer is "NO" on both questions. An employer may not delay the designation of FMLA-qualifying leave, even if the employee would prefer that the employer delay the designation. Additionally, an employer may not designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave.

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HR Tip of the Month

Regularly audit your employee bulletin boards to ensure that all required posters are displayed.  There are both federal and state required posters that need to be displayed in your employee work areas.  OMAG can assist you with your bulletin board audit to ensure your city or town has everything posted.

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Medical Marijuana and the Hiring Process

SQ 788 (Medical Marijuana) creates broad job protections which largely prohibit Oklahoma municipalities from making hiring or other employment decisions on the basis of a person exercising certain rights granted by these new statutes. How does SQ 788 impact your ability to hire or not hire an applicant who uses marijuana?

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Medical Marijuana and Drug Testing

SQ 788 protects employees with a Medical Marijuana card from being fired for a failed drug test. It does not, however, protect employees who are high on duty. How does SQ 788 impact drug testing in the workplace?

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Medical Marijuana and Discipline

Can you still discipline employees for being high at work? SQ 788 established certain job protections, but those protections do not allow for on duty intoxication or misconduct. This bulletin will explain what you can and cannot discipline employees for related to their use of Medical Marijuana.

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Medical Marijuana, Garrity and the 5th Amendment

Medical Marijuana license holders may be questioned about marijuana use by current or prospective municipal employers. Whether they can be compelled to answer, however, depends on whether they are currently employed or just applying for a job with the municipality.

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What is a Bond, and Who Needs One?

What is a Bond: A bond is an obligation of the Surety (the company issuing the bond) to protect a person or entity (in this case your municipality or public entity) against financial loss caused by the acts of the principal (in this case your city official or employee).  

Municipal or Public Entity Positions to consider Bonding: There are essentially three types of municipal officials or employees serving the municipality or public entity:

First: the elected official who, although ultimately answerable in the political process for their performance, is a representative of those who have elected him or her and owes a duty to faithfully perform the functions assigned to them for the public good.

Second: public agents, or appointed officials, also share the responsibility of owing this special duty to their municipality or public entity. For the appointed official, the duty to faithfully perform emanates from the governmental powers reposed in the official. Power, authority and control would not exist absent the appointment to office.   

Third: the public employee, although serving for the public good, does not owe the same duty as the elected or appointed official. The public employee does not hold a special position of trust relative to the public, but instead owes a duty to his or her employer, in this case the municipality or public entity.

Bond Coverage vs. Your Municipal Liability Protection Plan (MLPP) Coverage:

Bonds serve a different purpose than coverage provided under your MLPP. Coverage under your MLPP protects the municipality or public entity from negligent acts of an elected or appointed official or public employee that could result in a third-party claim or suit. Bonds protect the municipality or public entity from a financial loss as a result of an improper or illegal act of an elected or appointed official or public employee.

What are the Types of Bonds Available:

There are numerous types of bonds available in the market. The most commonly used by a municipality or public entity are Fidelity Blanket Bonds, Fidelity Schedule Bonds, Public Official Individual Bonds, Public Official Schedule Bonds, and Public Official Blanket Bonds.

Fidelity Bonds: Statistics show a shocking increase in employee theft.  The only protections against this kind of loss are good internal control, regular outside audits and a Fidelity Bond. Fidelity Bonds are often referred to as “honesty insurance.” They cover loss due to any dishonest act of a bonded employee. The employee may steal alone or with others. The loss may be money, merchandise or any other property, real or personal. The Fidelity Bond is available in a group (blanket) or individual (schedule) form. These bonds are available in $5k, $10k, $25k, $50k, and $100k coverage amounts for periods of one and three years with the three-year bond provided at a reduced rate.

Public Official Bonds: For the public official entrusted with the handling of public funds, the primary purpose of the Public Official Bond is the protection of those funds from mismanagement and theft: Public Official Bonds guarantee taxpayers that the official will do what the law requires. A public official is expected to “faithfully perform” the duties of the office. Public Employee Bonds are also available for bonding the subordinates of the public official (those people who are not required by statute to be bonded). Those subordinates need to be bonded for dishonesty only.

Types of Public Employee Bonds and Coverages:

Individual Bond – Covers a single official for a specific amount.

Name Schedule Bond – Covers specific individuals for a stated amount in a schedule attached to the bond.

Position Schedule Bond – Covers specific positions for a stated amount in a schedule attached to the bond. 

Public Employee Blanket Bond – This bond covers all employees (except Treasurers, who are required to post individual qualifying public official bonds and cannot be covered by a blanket bond) unless specifically excluded.

Honesty Blanket Bond Coverage – Insures against loss sustained by the insured through any dishonest act committed by any of the employees. Recovery is limited to the bond penalty.

Honesty Blanket Position Bond Coverage – Insures against loss sustained by the insured through any dishonest act committed by any of the employees. The amount of coverage on each employee is the stated limit of liability.

Faithful Performance Blanket Bond Coverage – Insures against loss sustained by the insured through any dishonest act committed by any employees and failure to faithfully perform their duties or account properly for all monies to an amount not exceeding the stated limit of liability. Recovery is limited to the bond penalty.

Faithful Performance Blanket Position Bond Coverage – Insures against loss sustained by the insured through any dishonest act committed by any of the employees and failure to faithfully perform their duties.  The amount of recovery on each employee is the stated limit of liability.

Who is Required by Law to be Bonded:

Tit. 11 § 8-105. Certain officers to give bond

The municipal governing body shall require the municipal treasurer, any officer or employee designated by ordinance to sign municipal warrants or municipal checks, and any other officers or employees as the governing body may designate by ordinance, to give bond for the faithful performance of his/her duties within 10 days after his election or appointment, in such amount and form as the governing body shall prescribe. The municipality shall pay the premiums on such bonds.

Tit 11 § 1-102. Definition

“Officer or official” means any person who is elected to an office in municipal government or is appointed to fill an unexpired term to an elected office, and the clerk and the treasurer whether elected or appointed. When “officer” or “official” is modified by a term which refers to a personnel position or duty, the holder of the position or duty is not an officer or official of the municipality for any purpose.    

Tit. 11 § 27-111. Bond of clerk and judge

A.    The clerk of each municipal court shall give bond to the governing body of the municipality where the court is established. The bond shall be approved by the governing body and shall be in an amount to be fixed by the governing body. 

B.     The municipal governing body may provide that the judge, the alternate judge, and an acting judge, or any of them, shall give a bond to the governing body of the municipality where the court is established. If bond is required, it shall be in an amount to be fixed by the governing body. It shall be conditioned in the same manner as the bond that is required of the clerk of the court, and it shall be approved by the governing body.

Please contact the OMAG Underwriting Department for the appropriate application.

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Americans with Disabilities Act Amendments Act - Expanding Employee Protections and Employer Obligations

As the ADAAA does not apply retroactively, and will therefore only apply to denials of reasonable accommodation where a request was made (or an earlier request was renewed) or to other alleged discriminatory acts that occurred on or after January 1, 2009. Situations in which an employer, union, or employment agency allegedly failed to hire, terminated, or denied a reasonable accommodation to someone with a disability on or before December 31, 2008 the original ADA definition of disability would be applied even if the person did not file with the EEOC until after January 1, 2009.

Introduction

President George W. Bush signed into law the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), which went into effect January 1, 2009. The changes in the definition of disability in the ADAAA apply to all titles of the ADA, including Title I (employment practices of private employers with 15 or more employees, state and local governments, employment agencies, labor unions, agents of the employer and joint management labor committees); Title II (programs and activities of state and local government entities); and Title III (private entities that are considered places of public accommodation). It also directed the U.S. Equal Employment Opportunity Commission (EEOC) to amend its ADA regulations to reflect the changes made by the ADAAA. The final regulations were published in the Federal Register on March 25, 2011

The ADAAA made a number of significant changes to the definition of “disability.” In enacting the ADAAA, Congress made it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the statute. Congress overturned several Supreme Court decisions that Congress believed had interpreted the definition of “disability” too narrowly, resulting in a denial of protection for many individuals with impairments such as cancer, diabetes, and epilepsy. The ADAAA states that the definition of disability should be interpreted in favor of broad coverage of individuals. As a result, many more medical conditions will qualify as either an actual disability or a perceived disability for purposes of the Americans with Disabilities Act (ADA).

ADAAA: Expanding Employee Protections and Employer Obligations

Expansion of Definition of Actual Disability

The ADAAA does not change the ADA’s three prong definition of disability: that a “disability” is a (1) “physical or mental impairment” that “substantially limits” the “major life activities” of the individual; (2) a record of an impairment; or (3) being “regarded as” having an impairment. However, the regulations implement the significant changes that Congress made regarding how those terms should be interpreted.

Prong 1: “Physical or Mental Impairment”

The definition of “impairment” in the new regulations is almost identical to the definition in EEOC’s original ADA regulations, except that the immune and circulatory systems have been added to the list of body systems that may be affected by an impairment, because these systems are specifically mentioned in the ADAAA’s examples of major bodily functions.

The regulations define “physical or mental impairment” as any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin and endocrine. They also cover any mental or psychological disorder, such as intellectual disability (formerly termed mental retardation), organic brain syndrome, emotional or mental illness, and specific learning disabilities.

Prong 1: “Substantially Limits”: Congress’s mandate that the definition of disability be construed broadly.

The ADAAA states that the primary focus in ADA cases should be on whether covered employers have complied with their obligations and that the determination of whether an individual’s impairment is a disability under the ADA “should not demand extensive analysis.”

Among other things, the ADAAA references the intent of Congress to reject recent Supreme Court decisions holding that an impairment “substantially limits” a major life activity only if an individual is “prevented or severely restricted in an activity that is of central importance to most people’s daily lives.” The ADAAA essentially tells the EEOC, which had defined “substantially limited” in its regulations to mean “significantly restricted,” to devise a more liberal definition.

The ADAAA also rejects another Supreme Court holding that mitigating measures an individual uses to counteract the effects of an impairment (for example, medication) must be taken into account in determining whether an impairment “substantially limits” a major life activity. Under the ADAAA, the only mitigating measures that may be taken into account in assessing whether an individual has a disability are ordinary eyeglasses and contact lenses. The ADAAA further provides that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity.

The regulations implement Congress’s intent to set forth predictable, consistent, and workable standards by adopting “rules of construction” to use when determining if an individual is substantially limited in performing a major life activity. These rules of construction are derived directly from the statute and legislative history and include the following:

·         The term “substantially limits” requires a lower degree of functional limitation than the standard previously applied by the courts. An impairment does not need to prevent or severely or significantly restrict a major life activity to be considered “substantially limiting.” Nonetheless, not every impairment will constitute a disability.

·         The term “substantially limits” is to be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.

·         The determination of whether an impairment substantially limits a major life activity requires an individualized assessment, as was true prior to the ADAAA.

·         With one exception (“ordinary eyeglasses or contact lenses”), the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures, such as medication or hearing aids.

·         An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

·         In keeping with Congress’s direction that the primary focus of the ADA is on whether discrimination occurred, the determination of disability should not require extensive analysis.

Prong 1: “Major Life Activities”

Prior to the ADAAA, it was up to the courts to determine whether activities qualified as “major life activities,” using the regulations promulgated by the EEOC as guidance. The ADAAA removes much of the courts’ and the EEOC’s discretion by specifically designating a non-exhaustive list of examples of major life activities: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, blinking, communicating and working.

The ADAAA also designates the operation of “a major bodily function” as per se a major life activity and provides as examples: functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. As a result of the ADAAA’s recognition of major bodily functions as major life activities, it will be easier to find that individuals with certain types of impairments have a disability.

Prong 2: “Record of an Impairment”

An individual who does not currently have a substantially limiting impairment but who had one in the past meets this definition of “disability.” An individual also can meet the “record of” definition of disability if she was once misclassified as having a substantially limiting impairment (e.g., someone erroneously deemed to have had a learning disability but who did not).

All of the changes to the first definition of disability discussed in the questions above – including the expanded list of major life activities, the lower threshold for finding a substantial limitation, the clarification that episodic impairments or those in remission may be disabilities, and the requirement to disregard the positive effects of mitigating measures – will apply to evaluating whether an individual meets the “record of” definition of disability.

Prong 3: Expansion of Definition of “Regarded As” Disability

Under the third prong of the definition of disability, individuals are protected from discrimination based on “being regarded as having such an impairment.” Since the only subject in the definition that the word “such” can be read to refer to is “a physical or mental impairment that substantially limits one or more … major life activities of such individual,” courts have generally construed this provision as protecting only individuals whose employers perceive them as having an impairment that is an actual ADA disability, i.e., one that substantially limits an employee in the performance of one or more major life activities. The ADAAA provides that a person will be “regarded as” disabled if the person establishes that he was subjected to discrimination because of an actual or perceived physical or mental impairment – regardless of whether the actual or perceived impairment in fact limits a major life activity. The only qualification on this broadened definition of “regarded as” disability is that impairments that are both “transitory (meaning an actual or expected duration of six months or less) and minor” will not qualify for “regarded as” protection. Not surprisingly, the ADAAA makes clear that employers need not provide a reasonable accommodation to individuals who do not actually have a disability, but are “regarded as” having one.

The ADAAA specifically states that those covered under only the third prong (“regarded as”) are not entitled to reasonable accommodation. Thus, an individual must be covered under the first prong (“actual disability”) or second prong (“record of disability”) in order to qualify for a reasonable accommodation. The regulations clarify that it is generally not necessary to proceed under the first or second prong if an individual is not challenging an employer’s failure to provide a reasonable accommodation.

Other Provisions

The ADAAA bars the use of qualification standards, employment tests, and other selection criteria based on an individual’s uncorrected vision unless the standard, test or other selection criteria is shown to be job-related for the position in question and consistent with business necessity. The ADAAA also makes clear that no claim can be brought for reverse discrimination under the ADA; i.e., an individual who does not have an ADA disability cannot state a claim based on preferential treatment afforded an individual who does have an ADA disability.

Conclusion: Impact of the ADAAA

So what does this mean for employers? As the ADA prohibits discrimination based on an individual’s disability, now more employees may qualify as disabled under the ADA and may request reasonable accommodations to perform their jobs. Particularly with respect to the amendments related to mitigating measures and episodic impairments, requests may come from employees who were never previously known to have impairments. Since these issues are likely to arise in your municipality, now is a good time to become familiar with the requirements of the ADA, including the interactive process and reasonable accommodations.

The information in this bulletin is intended solely for general informational purposes and should not be construed as or used as a substitute for legal advice or legal opinions with respect to specific situations since such advice requires an evaluation of precise factual circumstances by an attorney. OMAG does not represent or endorse any group, site or product that may be mentioned in this article. If you have questions, please contact Suzanne Paulson, OMAG General Counsel, at spaulson@omag.org or Matt Love, Associate General Counsel & Claims Director, at mlove@omag.org.

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The Probationary Period

Facts About the Probationary Period

Did you know?

  1. Probationary periods originated in union environments. Probationary periods originated to give employers the opportunity to terminate new employees within a reasonable period of time without all the paperwork and hearings contemplated by a collective bargaining agreement.
  2. Probationary periods are not required for at-will employers. The at-will doctrine states that absent a contract, either express or implied, to the contrary, an employer can terminate an employee for any reason or no reason at all. In a non-union environment, probationary periods just aren’t necessary.
  3. Probationary periods may be construed as an implied contract. A probationary period could create an implied contract.  When you tell an employee you have 90 days to show us that you can do the job, what is the employee thinking?  “I have a permanent job for at least 90 days.”  Or, maybe, “After 90 days I have a job for life.” A written agreement clearly stating that the employment relationship is at-will is the only defense in this situation.
  4. Termination during the probationary period does not disqualify employees from receiving unemployment. The probationary period has no bearing on whether an employee is awarded unemployment benefits.
  5. Probationary periods do not protect against lawsuits.  Probationary employees have the same rights as a non-probationary employee when it comes to filing lawsuits. Probationary employees can file lawsuits alleging wrongful termination, breach of contract, discrimination, harassment, failure to train, etc.  And, there are limited situations where probationary employees can sue for due process violations.  For example, if an employee is terminated in the probationary period for alleged criminal acts that were made public by the municipality, the municipality would owe this employee a name-clearing hearing in order to protect and defend his or her good name.

Tips for Implementing a  Successful Probationary Period

  1. Be clear about at-will employment status.  Make sure employees understand the employment relationship is at-will during and after the probationary period. This is vital to the defense of any claim that the municipality created an implied contract with the employee.
  2. Be clear about your expectations. Objective goals need to be expressly stated to the employee regarding expectations.  Be sure that the employee understands (a) how long the probationary period will last, (b) what needs to be accomplished during that period, (c) how often a review will occur and (d) what standards need to be met in order to successfully complete the probationary period.
  3. Give feedback regularly. Supervisors should conduct periodic reviews with the employee to provide feedback about how the employee is progressing and what needs to be improved.  If the employee is having performance issues, offer detailed guidance and provide additional training if necessary.  Be sure that the employee assigned to provide guidance to the probationary employee is knowledgeable and experienced.
  4. Encourage supervisors to ask HR for help if there is a concern.  Explain to supervisors that HR is a resource and can help ensure employees are being treated fairly and consistently between municipal departments or with prior supervisors. Give the supervisors examples of what can go wrong when they don’t ask for help.  For example, explain the problem created if they place a struggling employee on a one-month probationary period but a former supervisor gave employees three months to improve his/her performance.  Or ask, if sued, how does the supervisor want to be perceived by a jury – as the mean supervisor who did not give the employee a second chance or the supervisor who gave the employee every opportunity (within reason) to correct the problem.
  5. Document Document Document. Remember, if it’s not written down it did not happen, but if you write it down, you own it!  If an employee can’t perform the essential functions of the position, you’ll likely want to terminate the employment relationship. For the best legal defense be sure the supervisor has documented dates, times, locations, witnesses of the employee’s performance, efforts to train, coach and manage, and so on.
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