COVID-19 Guidance for Implementation of Your Leave Policy

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The Local Government Law Group

From our 2020 Special Edition e-newsletter

Below we provide you some general guidance regarding leave issues and COVID-19.   Since many leave issues are dependent on the facts of your individual situation, we cannot provide legal advice on these issues through this article.  Please do call us if you have questions about your individual leave policies and practices.

  • Know your policies.  Review your leave policies.  You’d be surprised how much guidance and information is already in your policies.  Don’t forget to review and reconcile your collective bargaining agreements or police and fire SOPs, which can sometimes provide different standards than your personnel policies.  After your review, if you believe that some of your policies or practices may conflict with each other or if they don’t provide clear guidance, call us and we can work through the ambiguities with you.
  • Know which leave laws your government must follow.  Call us if you would like more information regarding this matter.  Generally speaking, here is a simple breakdown:
  1. FMLA provides up to 12 weeks of unpaid, protected leave and only applies if your government has 50 or more employees within 75 miles of your worksite.
  2. OFLA provides up to 12 weeks of unpaid, protected leave and applies to employers with 25 or more employees in Oregon.
  3. Oregon Sick Leave Law provides 40 hours of unpaid, protected leave and applies to all employers who do not already have a comparable or better sick leave program.
  4. Oregon Sick Leave Law provides 40 hours of paid, protected leave and applies to employers who do not already have a comparable or better sick leave program who employ at least 10 employees (6 in Portland).

Once you have determined which laws apply to your government, then you must apply them.  Applying the above laws can be tricky.  Please call us or an HR professional for assistance if you need help.  All employees must meet the individual laws’ eligibility requirements to qualify for the leave benefits, which generally include working for a defined period of time and certifying that the employee or a qualifying family member has a serious health condition.  Generally speaking, OFLA and FMLA offer 12 weeks of unpaid protected leave for qualified employees, but under certain conditions the protected leave can be extended for up to 36 weeks.  Remember also that Oregon’s Sick Leave Law allows a qualified employee to take sick leave to care for well children whose schools have been closed by this emergency.

  • Consider the Details in Advance. After reviewing your policies and determining which laws apply to you, discuss the following questions with your leadership team, which should include an employment lawyer or HR professional to help guide you:o  Who are your critical employees and how will they continue to provide critical services?

    o  If an employee needs time off because they are sick/exposed or need to care for sick children or a spouse and they have no accumulated paid sick leave, can they use vacation or other leave?  In what order?  Do they need special permission to proceed out of order?

    o  Do you have any employees who have banked excessive sick or vacation leave?  Is now a good time to require them to burn it?

    o Will you allow some or all employees to go “in the hole” regarding their leave accounts?  If so, how much and under what conditions?  If you make a distinction between employees, what are the criteria you are using?

    o  If you are making any changes to your policies or practices, do you need to bargain them with your union?

    o  If our office closes, will employee time away from work be paid or unpaid?

    o  If I come in to work and am told to leave, will my time away from work be paid or unpaid?

    o  If I’m not sick and my family is not sick, but I need time off because my kids’ school is closed, can I take it?  Will it be paid or unpaid?

    o  How will you apply your leave donation policies during this time?

    o  What are our telecommuting policies?  Do they apply to all employees?  Do I need to call in or track my time while telecommuting? What are the job expectations for telecommuting?  What technology assistance do I need to telecommute?  What confidentiality concerns may arise with some telecommuting employees.

Again, when in doubt, call your HR professional or employment attorney.  These issues can be complex, but once you know your policies and laws, you can craft a reasonable, helpful leave program that supports your organization and employees during this temporary crisis. 

Public Meetings Update in the Face of COVID-19

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The Local Government Law Group

From our 2020 Special Edition e-newsletter

During the COVID-19 emergency and social distancing, we’ve received questions on how Oregon governments can continue to comply with the public meetings laws over the next several weeks.  This article provides some generic advice and does not take into account particular council or board rules or charter provisions.  Please contact us to work together on your specific issues.

Public Meetings:  Public Access vs. Participation.  We have now seen emergency declarations take shape at all levels of government.  These declarations sometimes suspend certain regulations and help speed governmental responses.  However, remember that even in these unusual times, local governments must still operate within the confines of Oregon’s public meeting laws.  The general rule is that the public meetings law requires “open” meetings.  This “open meeting” requirement pertains to the public’s right to attend and observe your meetings.  Generally speaking, there is no general public right to participate in a meeting–or to provide comments or speak directly to the Council.

This is true for most public meetings, but it is not true for a specific subset of public meetings where the Council is dealing with “quasi-judicial” matters (such as an employment action appeal or a land use hearing), budgetary matters, or has otherwise promised the public a right to participate.  If you have one of these types of meetings and you are trying to promote social distancing, you should contact your legal counsel to discuss the best way to proceed during the COVID-19 emergency.

Virtual Meetings:  Some Considerations.  Remote, virtual, or phone-in meetings remain a good option for your governing body, so long as you take into account these types of meetings where the public is entitled to participate and address how the public will provide comments and participate.  Remember also that if anyone requests any ADA accommodations (such as a request to have a sign language interpreter be on screen during a video meeting or a request for closed captioning), you must be prepared to provide a reasonable accommodation.

Here are some options your Council or Board should consider:

  1. Determine whether you need to have the meeting at all.  You can always cancel or reschedule a meeting.
  2. If you have business that is required, you can trim down the agenda to just the essential business.
  3. If you must have a meeting, consider social distancing requirements for everyone (including the governing body).  Some or all policy-makers can call-in to the meeting and participate via phone so that the dais is not full.
  4. If a meeting needs to take place, institute social distancing measures for the audience as well – essentially capping the number of attendees.  You can also direct others to the live stream, or to another area within City hall where you can set up a phone or video link.
  5. Institute a written public comment procedure for your public comment agenda item.
  6. If you do have a public hearing agenda item, you can institute a procedure where folks are required to give notice of their intent to participate and the meeting location is adjusted to allow those folks access to the live meeting.  In other words, you might shuffle folks between the remote location that is using the conference line and the meeting room (to maintain social distancing).  Or you could set up a public computer that allows participation with the governing body via skype or Zoom.
  7. Provide adequate notice to the public regarding any of the above meeting mechanisms you decide to use.  The agenda can be amended and annotated to note the special procedures being used.  Posting a sign at the meeting room with these mechanisms is also a good idea.
  8. Any agenda and meeting notice should contain a provision that requests anyone with cold or COVID-19 symptoms to please stay out of the meeting.
  9. Providing/distributing agendas and meeting packets with greater lead-time will be more important under these meeting mechanisms.

Telecommunications/Cable Franchise Update

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Christy K. Monson

From our Winter 2019 e-newsletter

A while back some of you may have received an email from the League of Oregon Cities explaining that the Federal Communications Commission was in the process of taking testimony about how cities and other local governments collect fees from cable and telecom companies for the use municipal right of way (ROW). Specifically, the LOC (along with many government advocates around the nation) is concerned that the FCC may try to undo federal law protection of a municipality’s right to charge reasonable ROW fees. In filings before the FCC, some cable and telecom companies have alleged that cities throughout the nation, including those in Oregon, were being unfair or obstructionist in the way they granted permission to use the ROW.

To provide a fair response to these corporate allegations and to protect all cities’ rights to manage ROWs, the City of Independence asked us to file responsive comments at the FCC, which we did. In doing so, we worked closely with the National Association of Telecommunications Officers and Advisors. Our comments focused on five primary arguments:

  • Small cities are business-friendly and are dedicated to providing ready-access to the ROW on a non-discriminatory basis. It’s untrue that rural or small cities somehow slow down or serve as a barrier to expansion of the internet. Fast internet, reliable cable, VOIP, and video-streaming are crucial lifelines for small or rural cities. No one understands this better than a small city.
  • Cities cannot be responsible stewards of our public resources and grant private companies unregulated, free access to the ROW. Reasonable, fair municipal regulations require companies to follow a simple application process and pay fair ROW fees, which the federal law says may be based on the types of services they provide.
  • Cities are dedicated to treating all ROW users fairly and non-discriminatorily. This is true whether a company is providing only cable or whether a company is providing cable, internet, and/or VOIP. All we ask is that these companies follow our ROW rules and pay a fair fee for such use.
  • If municipalities showed favoritism and allowed those cable companies who also provide internet and VOIP to pay less than other providers, it would create an uneven playing field. This lack of competition would likely artificially increase cable and internet services in rural America.
  • The FCC must honor municipal franchise agreements which have been negotiated in good faith. The FCC should not take any act which retroactively amends or penalizes municipalities for responsibly managing their ROW in compliance with existing law and for the good of our communities.

 

How Should We Be Paying DPSST Trainees?

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Mark Wolf

From our Winter 2019 e-newsletter

Late last year the Bureau of Labor and Industries (BOLI) issued a report detailing violations of wage and hour laws by the Ashland Police Department regarding trainees at the DPSST Academy. In November of last year, BOLI sent a letter to all law enforcement agencies alerting them of these violations as BOLI’s findings were likely to affect all police agencies in the state that send trainees to DPSST.

This article outlines BOLI’s findings and what they mean to your Police (and Fire) Departments. BOLI focused solely on law enforcement agencies, but its order also affects Fire Departments or Districts that send trainees to DPSST.

The DPSST police academy is a 16-week course. Generally, trainees are in classes from 8:00 am to 5:00 p.m. with an hour lunch and ten-minute breaks. In addition to the class time, trainees are typically required to (1) attend the Colors ceremony; (2) complete writing assignments; and (3) complete a community policing project. Often these extra assignments take place outside of the normal 8:00 a.m. to 5:00 p.m. class time. Traditionally, trainees only reported 40 hours per week on their timecards.

Based on this information BOLI concluded the following:

  • Time spent on projects and activities outside of the normal 8:00 a.m. to 5:00 p.m. class time is “time worked” and should be paid.BOLI based this finding on various federal and state laws. 29 CFR Section 785.11 states that “work not requested by suffered or permitted is work time” and must be paid. ORS 653.010(11) defines “work time” to be “both time worked and time of authorized attendance.” Finally, OAR 839-020-0004(19) defines “hour worked” to be “all time the employee is suffered or permitted to work.” Trainees typically work more than 40 hours in a work week and BOLI “strongly recommends” that trainees be paid for all time worked while at the academy. Although BOLI only specifically analyzed law enforcement agencies, these rules apply equally to police and fire agencies.
  • Overtime pay may not be required unless your CBA mandates it.Generally, employees are entitled to the overtime rate of time-and-one-half for hours worked in excess of 40 hours per week. However, ORS 653.269(3) creates an exception for employees engaged in “law enforcement activities,” which includes time spent attending basic training. OAR 839-020-0250. However, as BOLI correctly pointed out, you must review your Collective Bargaining Agreement, as that agreement may require overtime be paid at lower thresholds than required by state law. Again, this statute and administrative rule also apply to those employed in “fire protection activities.”
  • Employers should require all trainees to maintain accurate records of actual hours worked.ORS 653.045 requires employers to maintain records showing “actual hours worked” each week or pay period and OAR 839-020-0080(1) requires employers to maintain records showing the “hours worked each workday and total hours worked each workweek.” Thus, it is important for all trainees, whether police or fire, to accurately record all time worked while at the academy.

What this means to your Police and Fire Departments:

  • Require that employees accurately record their time. To help facilitate this, employers should review the academy daily schedules (see link below) and have a policy, rule, or practice which outlines what hours are “work time” and what hours are not.
  • Pay your trainees for all time worked.
  • Check your CBA and personnel policies. BOLI did not order that overtime must be paid for all hours over 40 in a workweek, but your CBA or personnel policies might have different overtime requirements or obligations.
  • If you rely on the FLSA 7(k) exemption to avoid paying overtime after 40 hours, call us to discuss if this exemption should be used while at DPSST.
  • If you offer conditional offers of employment rather than hiring trainees, call us so we can discuss the pros and cons of this approach.

DPSST Class Schedules: https://www.oregon.gov/dpsst/Pages/default.aspx