Illness may not force new shift.

Byline: On the Job by Bureau of Labor & Industries For The Register-Guard

Q: An employee at our mill notified us she has Raynaud's phenomenon, a condition that affects the blood flow to the extremities. Like many of our employees, she normally rotates between our three shifts, but she has now requested that we allow her to work straight swing shift because it's the warmest of the three shifts. The problem is that she's a relatively new employee, and our union contract gives those with greater seniority first rights to vacancies on the swing shift. Are we obligated to grant her request?

A: Probably not. The U.S. Supreme Court addressed this issue earlier this year in U.S. Airways, Inc. vs.. Barnett. The Court determined that under the federal Americans with Disabilities Act, which applies to employers of 15 or more employees, employers are not ordinarily required to make an accommodation that conflicts with an established seniority system.

The ADA requires employers to make a "reasonable accommodation" for a disabled employee to enable the employee to perform his or her job. But in the Barnett case, the Court held that employers are entitled to a rebuttable presumption that an accommodation is unreasonable when it violates a bona fide seniority system for job assignments.

The Supreme Court also indicated that in "special circumstances," it may be reasonable for an employer to grant an accommodation despite seniority rules - for example, in cases where the employer has unilaterally changed its seniority rules before, or where the seniority system already has many built-in exceptions so that one more exception wouldn't impact the system.

Raynaud's phenomenon can certainly be an ADA-qualifying disability depending on the frequency and severity of symptoms and whether the condition substantially affects your employee in one or more major life activities. It would be wise for you to talk with your employee about options for accommodation. Because you have a job-related reason here, both Oregon and federal disability laws give you the right to require an evaluation and medical certification from your employee's doctor.

There may accommodations other than the one your employee has requested that will still allow her to perform her essential job functions. For example, the doctor may tell you that the employee is able to work the graveyard shift provided she wear protective gloves and socks and layers of clothing to trap body heat.

Q: Can we require an employee to use up all paid leave before going on an unpaid leave?

A: Yes. Your policy may state that employees must exhaust their accrued sick leave, vacation, and other paid time off before you'll grant leave without pay. Oregon wage and hour laws don't provide specific rules on accrual or use of these benefits, so how you administer them is up to your policy. If your employee rules are is silent or unclear on this issue, disputes can arise.

Q: Is my employee allowed to take OFLA leave to care for sick kids if his stay-at-home wife is "too tired" to deal with it?

A: Probably. The Oregon Family Leave Act, or OFLA, applies to your company if you have 25 or more employees in Oregon. Eligible employees may take up to 12 weeks of protected OFLA leave per year, including time off to care for a child with a nonserious health condition requiring home care. The law says that this "sick child leave" need not be granted when there is a family member at home who's "willing and able" to care for the sick child. But if your employee's spouse is sick or unwilling or unable to care for the child, you're still obligated to grant the leave.

On The Job is written by attorney Dan Grinfas of the Oregon Bureau of Labor and Industries. The column answers questions about employment law. Contact BOLI at [phone], or BOLI, 800 N.E. Oregon St. No. 32, Portland, OR 97232.