GET OUT THE OKLAHOMA VOTE – WHAT EMPLOYERS NEED TO KNOW

The season is upon us.  No, not the holidays.  The election season.  And this year, things seems to be happening sooner than ever.  Oklahomans who requested an absentee ballot are already voting, but voting by absentee ballot does not impact Oklahoma employers. Voting in person may.

Here is what Oklahoma employers need to know about the rights of employees to vote in person.

  • Where and when can a registered Oklahoma voter vote in person?

Early in-person absentee voting is available in the county where the voter is registered.  The dates and times for early in-person voting statewide are:

            October 29      8:00 a.m. until 6:00 p.m.

            October 30      8:00 a.m. until 6:00 p.m.

            October 31      9:00 a.m. until 2:00 p.m.

In-person voting is permitted on election day as well:

            November 3    7:00 a.m. until 7:00 p.m.

  • Does an employee have a protected right to time off work to vote?

Generally, yes, an employer is required to provide 2 hours of time off (without penalty or loss of pay) for the employee to vote “on the day of the election or on a day in which in-person absentee voting is allowed;” in other words, on any of the days mentioned above.  You may require your employee to provide “proof of voting,” but realistically what is that?  It is a low bar.  Perhaps they bring you the “I Voted” sticker.  Often, employers go on the honor system. (Employers should not press for any information as to the employee’s political leanings.)

There are lots of caveats to this general rule, so read on.

  • Will the employer ever be required to give more than 2 hours off?

Yes.  If it would require more than 2 hours to vote because the employee’s voting place is so far from work, the employer must provide “sufficient” time off to vote.

  • Must the employee request the time off?

Yes.  If an employee wants time off to vote, the employee must give 3 days’ advance notice.

  • Must the employer always grant the requested time off to vote?

No.  If the employee’s work day begins 3 hours or more after the polls open or if the employee’s work day ends 3 hours or more before the polls close, the employer does not have to grant the time off.  This is because it is presumed 3 hours will be sufficient time to allow the employee to vote.

Additionally, the law allows an employer to “change the work hours to allow such three (3) hours before the beginning of work or after the work hours” so the employee can vote without the employer granting any time off.  In other words, with that 3 days’ advance notice, you may be able to adjust an employee’s work schedule to both allow for a full work day and for 3 hours before or after that workday while the polls are open.

  • Can the employee request when they want to vote?

They can request when they want to vote, but they cannot dictate it.  The employer may “select the days and hours” when the employee is allowed to vote.  As noted in the prior section, this is because the employer has the right to adjust work schedules to allow for a full work schedule and 3 hours before or after that work schedule for the employee to vote.

This law tries to balance both the employer’s need to keep work moving and the employee’s right to cast a vote without suffering any penalty.

EEOC GUIDANCE ON OPIOID ADDICTION AND THE ADA

It is well known that the United States has an ongoing opioid addiction crisis.  The Equal Employment Opportunity Commission (EEOC) has issued two publications addressing this crisis.  These publications do not have the force of law, but they do represent a clear expression of the EEOC’s views.  While directed to employees and health care providers, we recommend employers read them as well.  The information communicated can aid employers, especially as courts continue to shine a light on the “interactive process” mandated by the Americans with Disabilities Act (ADA).

EEOC’s Assistance to Employees

Its first publication, “Use of Codeine, Oxycodone, and other Opioids: Information for Employees,” is designed to educate employees about how opioid use or addiction may be protected under the ADA.  The publication goes over some of the general rules, such as

  • An employer can fire, refuse to hire, or discipline an employee based upon the current illegal use of opioids.
  • An employer can fire, refuse to hire, or discipline an employee for current use of opioids if federal law requires this (most common example would be DOT regulations).
  • Otherwise, an employer cannot automatically disqualify an employee for current legal opioid use without considering if there is a way for the employee to safely and effectively do the job; in other words, engage in the interactive process.

Some may question that third bullet point, but it is true.  Opioids are often legally prescribed drugs, no different than any other prescribed drugs.

The EEOC also addresses additional scenarios such as a person taking opioids to treat pain, a person enrolled in a Medication-Assisted Treatment program for opioid addiction which program requires the taking of an opioid medication, and a person with a diagnosed opioid addiction (including related diagnosis such as PTSD or major depression).  It addresses and instructs on “reasonable accommodation” and the “interactive process.”

EEOC’s Assistance to Health Care Providers

Its second publication, “How Health Care Providers Can Help Current and Former Patients Who Have Used Opioids Stay Employed,” the EEOC speaks directly to the employee/patient’s health care provider as to their role in this process.  At the outset, the guidance explains that the definition of a disability under the ADA is quite different than the definition of disability used under other laws, such as the one used for Social Security disability benefits.  The guidance also briefly explains the concept of “reasonable accommodation.”

The health care provider is told – as was the employee – that the current illegal use of drugs, including opioids, is not protected by the ADA.  The health care provider is advised that a patient who was, but no longer is, addicted to opioids, but who needs treatment to avoid a relapse may be entitled to a reasonable accommodation under the ADA.

Perhaps most helpful, the health care provider is instructed as to what type of information is to be provided to the employer.  The categories include:

  • The health care provider’s professional qualifications and the nature and length of the relationship with the patient/employee
  • The nature of the patient/employee’s medical condition
  • The patent/employee’s functional limitations in the absence of treatment, with specific guidance about any impact on a major life activity  (notably, the guidance tells health care providers that it is not sufficient to simply provide an employer with routine work restrictions such as “no operating heavy machinery”)
  • The need for a reasonable accommodation
  • Suggested accommodation(s) if known

While some employers may balk at this, don’t.  In practice, employers suffer more often from the lack of information they receive from health care providers than from receiving “too much” information.  Armed with this information (sooner rather than later), the employer and employee can have a more fruitful exchange as to whether a reasonable accommodation is required.

Takeaways for Employers

The mere mention of the word “opioid” often conjures up stories on the evening news.  It shouldn’t.  As demonstrated by this guidance, when you are in the role of employer you must look past the headlines and consider each case on its own.  A person taking opioids may in fact be taking them illegally in which case you would take certain steps.  However, there are also a host of other possibilities.

As is true in all situations involving the ADA and an employee’s medical condition (be it physical, mental, or emotional), the employer must take it one step at a time, avoiding any inclination to jump to conclusions without the necessary objective facts.  This is what the law requires.  This often means several (sometimes slow and painstaking) steps.  If you need assistance in working through the interactive process, you should seek competent employment counsel.

EMPLOYERS MUST TRACK HOURS WORKED EVEN WHEN THOSE HOURS ARE “TELEWORKED”

The Department of Labor (DOL) issued guidance August 24, 2020, to remind employers of their obligation to keep accurate records of the time worked by non-exempt employees to ensure that non-exempt employees were paid for all time worked.  The DOL did so in light of the tremendous increase in employees teleworking. 

The regulations addressing this topic have remained largely unchanged for more than fifty years, but the world in which we work is dramatically different.  The three regulations forming the basis of the DOL’s guidance, and a plethora of judicial decisions, read:

Continue reading

BACK-TO-SCHOOL TIPS FOR EMPLOYERS DURING COVID-19

It’s August in Oklahoma. Families would ordinarily be buying school clothes and supplies, getting their children ready to head back to school. But there is nothing ordinary about 2020.

Oklahoma has no statewide mandate regarding schools. Across the state, school districts, charter schools, and private schools are making decisions – even as of this writing – as to whether and how to start the school year. Some schools have moved up their start date while others have pushed it back. Some schools will have in-person instruction five days a week, while others will have students in-person only on certain days, and others will have distance learning exclusively. Even for schools offering in-person instruction, many have suspended their afterschool care programs. And, of course, every parent has been told there could be changes.

While this is an extraordinary challenge and disruption for the parents and children of Oklahoma, it is likewise a challenge and disruption for Oklahoma employers. No article can address all of the scenarios Oklahoma families will face as they navigate these issues, but we wanted to touch upon the topic in hopes of preparing employers. Continue reading

WHEN COVID-19 COMES TO TOWN, YOU NEED A CRISIS RESPONSE PLAN.

Unless you are totally “off the grid,” you have heard news of the Coronavirus, more specifically COVID-19.  While one must not overreact as there is more unknown than known about the virus, as a business owner, Human Resources professional, or manager, you have a responsibility to your workforce to be appropriately prepared for this as you would any other possible disruption such as a flood or an ice storm.  This article will not provide you definitive answers.  Each of you will have different considerations.  It will provide you with a road map of things to consider.  We strongly encourage you to think about these things sooner rather than later.  While it is likely you will never need to implement a crisis response plan, it is better to have one ready than to be caught with none. Continue reading

FEDERAL CONTRACTORS SUBJECT TO NEW “BAN THE BOX” LAW, BUT YOU HAVE TIME TO PREPARE

If you are a federal contractor, you need to be aware of a new law.  If not, this serves to remind us all of the growing trend in favor of “ban the box” legislation.

In December 2019, President Trump signed into law the “National Defense Authorization Act for Fiscal Year 2020.”  Tucked into that law is the “Fair Chance to Compete for Jobs Act of 2019” otherwise known as the “Fair Chance Act.”  This law applies to federal agencies as well as to defense contractors (neither of which will be defined in this article).

Generally speaking, if you submit a bid to a federal executive agency for work, you will be required to comply with this law.  Continue reading

Drug Testing Case Involving Sudafed May Foreshadow Decisions for Medical Marijuana

Richard Turner was a crane operator for Phillips 66.  On April 24, 2017, he was selected for a random drug test under Phillips 66’s drug and alcohol testing policy.  On April 27, 2017, he was involved in a workplace accident and was tested again pursuant to the employer’s post-accident policy.

Turner’s April 24 test revealed a confirmed positive for amphetamines.  He produced a letter from his doctor that he was taking Sudafed.  He argued this explained the positive, claiming it was a false positive.  Nevertheless, he was terminated. Continue reading

Oklahoma’s Law on Workers’ Compensation Retaliation Undergoes Another Change Increasing Potential Liability for Employers

Oklahoma’s law on workers’ compensation retaliation claims has undergone several changes since the 2014 move from the Oklahoma Workers’ Compensation Act to the Oklahoma Administrative Workers’ Compensation Act (OAWCA).   Since the OAWCA was first enacted, there have been many challenges made and many questions raised.  At the end of May, the law was tweaked when the Oklahoma Legislature amended Section 7 – the part of the law that governs claims by current  or former employees against employers for retaliation.  Because of all the confusion, it might be time to run through the three major changes and explain the state of the law – at least the state of the law as it exists at this moment in time. Continue reading

Even the Appearance of Setting an Employee up for Failure can be Costly in Litigation

In lawsuits, the facts matter.  Sierra High School employed Patti Hartman as its assistant principal.  Dr. Griffen was the principal and Hartman’s direct supervisor.  On November 4, 2014, Hartman suffered some injuries requiring her to miss work intermittently in November of 2014 and January 2015.

On January 14, 2015, Dr. Griffen met with her to discuss his intent to place her on a “Growth Improvement Plan.”  She was ultimately placed on that Plan on February 9, 2015.  It was during the February 9, 2015, meeting that Hartman said she would “formally” apply for leave under the Family and Medical Leave Act, which she did.  She applied for and was granted FMLA leave from February 11 through April 9, 2015.  However, because she ran out of paid leave, she returned to work early, on March 20, 2015. Continue reading

THE IMPORTANCE OF TRAINING YOUR MANAGERS CANNOT BE OVERSTATED

Recently, the federal court in Oklahoma City denied an employer’s motion for summary judgment in an Americans with Disabilities Act case.  That’s not unusual; it happens.  What makes this case unusual is that the Judge did so finding the plaintiffs had presented “direct evidence” of discrimination.  That is unusual.  Generally, an employer moves for summary judgment under what we call the McDonnell-Douglas standard, which is a way the courts view the evidence because most of the cases involve circumstantial evidence.  What happened in this case is worth reviewing, and the lesson is clear – employers must train decisionmakers about the law!

Folmar was the plant manager of a manufacturing facility (“the Plant”). He had remained in contact with some guys from high school, Dunsworth and Shelton, both veterans. Folmar knew they were both veterans.  Folmar told them about some positions at the Plant.  Dunsworth and then Shelton made application through a temp agency and were placed for work at the Plant.  During orientation, they were asked about medication which might affect safety.  They were also told to call in and speak to a supervisor or manager if they were going to be absent or late.  At some point at work, Dunsworth informed the Plant’s safety rep that he had been prescribed a pain medication.  The safety rep expressed some concern about it, but Dunsworth said he only took it at night because it made him drowsy. Continue reading