Vermont Legislature SmartTranscripts:

[Sophie Zdatny (Legislative Counsel)]: Good life.

[Sen. Alison Clarkson (Chair)]: Welcome, everybody. We are here in Senate Economic Development, Housing and General Affairs, And we are it's third day, so it's Labor Day in this committee. And we're gonna begin by addressing and hopefully getting to a place where we might even be able to vote on it or at least be able to identify one or two issues that are still not perfect. We are going I'm hoping that we might be able to get to a point on s one seventy three that we can vote it out, And I'll explain why with f two thirty when we get to it, we may not be able to technically vote it out because of a glitch in our transferring of bills from senate ed to senate economic development, which hopefully will happen today on

[Sen. David Weeks (Clerk)]: the floor. So

[Sen. Alison Clarkson (Chair)]: without further ado, we welcome back our legislative council, Stephanie Zadatnik, to walk us through what is now a different version of one seventy three.

[Sophie Zdatny (Legislative Counsel)]: So go ahead, Patricia, to share my screen. The chair had requested just a summary for the bills that were outside. We're just gonna pass this around. Already Much appreciated.

[Sen. Alison Clarkson (Chair)]: I'm sure every Yes. Excuse me. Oh, I think I've got one. Thanks. Okay. I printed that. You sent it to us last night.

[Sophie Zdatny (Legislative Counsel)]: I did send it, but I made

[Sen. Alison Clarkson (Chair)]: Which I really appreciate it. Thanks.

[Sophie Zdatny (Legislative Counsel)]: So, just to be clear, this is an amendment that's just it's not a Strypel amendment, so I just want to emphasise this still keeps what's in the original bill, which was the vocational rehabilitation changes to workers' compensation. So those wouldn't, there were no changes to those, so section one continues as is in S 173. And then this is includes some instances of changes. So it strikes out the mediator position in the Vermont Labor Relations Board, because originally the bill had vocational rehabilitation and then adding the position.

[Sen. Alison Clarkson (Chair)]: A separate issue altogether.

[Sophie Zdatny (Legislative Counsel)]: Right, and

[Sen. Alison Clarkson (Chair)]: that's- And that's being addressed in the House.

[Sophie Zdatny (Legislative Counsel)]: So that will come to us. It cost general and housing and it's in appropriations, so I- It will come to us. If it it makes it out of appropriations and and then we'll be hearing So this would this amendment would strike out the existing section two and existing section three, which dealt with appropriations. And then this would create a vocational rehabilitation working group. There's still a couple of gaps on this, but this was based on the discussion in front of the committee last time around that there needs to be sort of a revisit of how vocational rehabilitation is working for workers compensation. So this would create a group. The group would basically need to meet by August 15 through December 15, prepare a written report with any findings and recommendations for legislative action. It would be composed of seven members. So, it would have the Director of Workers' Compensation and Safety and the Department of Labour or their designee, and then two representatives on behalf of workers compensation claimants, and we need to the committee needs to decide who would be appointing these. Two representatives on behalf of employers and workers compensation insurance carriers, and two vocational rehabilitation counsellors currently certified in Vermont who also need to be appointed by somebody. So there'll be seven folks on the working group, and then the goal is that this working group would meet over the summer and fall to discuss and develop recommendations on how to improve the virus, vocational rehabilitation systems, and prepare recommendations for the general assembly. And then there were specific questions for the working group to consider, And so there are seven of them. What mechanisms could better identify which payments are likely to require vocational rehabilitation services? Right now there's initial screening and that's what the current language in the bill is looking to take away, that initial screening provision. Two, could utilisation of vocational services be improved by enabling claimants access to vocational rehabilitation benefits while receiving wage replacement benefits? Again, was a concern that by the time somebody's been in a position start receiving vocational rehabilitation, they've already exhausted their wage replacement benefits, so then they're not in a position to actually use the vocational rehabilitation services to which they're entitled. Could the workers compensation system take into account the diminished earning capacity of those claimants who are unable to earn a pre injury wage but are not eligible to receive permanent total disability benefits? Should the average weekly wage be indexed in cost of living for vocational rehabilitation purposes? What improvements could be made to ensure that vocational rehabilitation providers who provide services to workers' compensation claimants are familiar with Vermont's workers' compensation system? Again, there was some concern that the folks currently doing the initial screening are not that familiar with the workers' compensation system. Are some of the current requirements for providing vocational rehabilitation services to onerous that it mentioned would be unnecessary? And then how could the Department of Labor's oversight of vocational rehabilitation be improved? So those would be the seven topics. Again, as I mentioned, the meetings would start August 14, would have assistance from the Department of Labor, and then a report would be due by December 15 ahead of the next legislative session with the report coming to this committee and then to the House Committee on Commerce and Economic Development. And then the working group would cease to exist once the report was submitted. And then currently it provides that compensation and reimbursement of expenses would be for up to five meetings and would be made out of monies appropriated to the Department of Labor. So the remainder of this provides that striking out section three again in the bill, originally section three with the appropriations for the mediator position.

[Sen. Alison Clarkson (Chair)]: Right.

[Sophie Zdatny (Legislative Counsel)]: And then includes those that after the bill, if it passes, it should be renamed as an app related to vocational rehabilitation, just to be clear on what what what the bill would actually do in a current form. Before we begin discussion of this, I

[Sen. Alison Clarkson (Chair)]: just really wanna thank the Department of Labor and Kelly Masakoff for coming together and and whoever else was involved in the in the offer and the acceptance of really working on this instead of just picking one or two issues that we make a decision on in this committee that we really look at it holistically and looking at it holistically. Thank you, Kesha. I really so thank you, Department of Labor. Thank you, Kelly, for coming together to really look at at workers' comp. These the vocational rehabilitation issue much more broadly and in-depth and coming to us with a recommendation for action for next year. So grateful to you for that work, and thank you for this. And what are people thinking?

[Sen. David Weeks (Clerk)]: David Thomas? Yeah. I'm I'm inclined to support it. I'm just curious if the Department of Labor has an opinion based on the changes, the post recent changes. It's a number of staff.

[Sen. Alison Clarkson (Chair)]: And we'll have her come and do that. I think for discussion, what we need to do is decide who's doing the appointing, and I think it probably has to be the governor for at least one of them, and then, you know, maybe the the governor or the speaker or the pro tem. I mean, are the three of I think that we're able to ask to appoint people.

[Sophie Zdatny (Legislative Counsel)]: Yeah. And the committee on committees for the Yeah. The committee on committees. So I don't know if you can I mean, you could maybe have recommendations come from Oh, that would happen?

[Sen. Alison Clarkson (Chair)]: And I think people would at least within the house and the senate, we get to if we are following an issue, we get to say to the pro tem or the speaker, I would be really keen on serving on this. This is January.

[Unidentified Committee Member]: No. Just the both rehab working group Yeah. With people.

[Sen. Alison Clarkson (Chair)]: And I was just when you came in thanking Kelly and the department, the department offered to help convene this conversation and really do it much more fully and holistically than we were deal addressing here. And I think

[Sophie Zdatny (Legislative Counsel)]: As it's two two two, I mean, could be that

[Sen. Alison Clarkson (Chair)]: The governor do one and the speaker do one and the

[Sophie Zdatny (Legislative Counsel)]: Well, but there's two from each group, so I was thinking maybe the speaker does one vocational rehabilitation person, and the committee says one, rather than the government. I don't know if the government has to do one.

[Sen. Alison Clarkson (Chair)]: Let's do that. That makes some sense.

[Sophie Zdatny (Legislative Counsel)]: And I can make that change.

[Sen. Alison Clarkson (Chair)]: Great. Yes. So,

[Sen. Thomas Chittenden (Member)]: this keeps entirely section one, which would eliminate the screening process.

[Sophie Zdatny (Legislative Counsel)]: Yes, so there were no changes.

[Sen. Alison Clarkson (Chair)]: So, actually, Sophie, as we go forward on this, I think I'd rather do a strike all so that it isn't I think a strike all's just easier for everyone to see and understand.

[Sophie Zdatny (Legislative Counsel)]: I know. We've been encouraged just so, you know, been encouraged to not.

[Sen. Alison Clarkson (Chair)]: I was gonna say, I

[Charlie Glosstowin (Policy Director, Vermont Network Against Domestic & Sexual Violence)]: think Don't forget to enter the stray halls.

[Sen. Alison Clarkson (Chair)]: But, really, they're much easier for us to Well appreciate.

[Sophie Zdatny (Legislative Counsel)]: The the secretary perhaps has a different viewpoint on Well,

[Sen. Alison Clarkson (Chair)]: he may, but he's not us.

[Dirk Anderson (Director of Workers’ Compensation, Vermont Department of Labor)]: So

[Sophie Zdatny (Legislative Counsel)]: But I'm happy to do that. Do you want me to I can pull up the that would be helpful.

[Sen. Thomas Chittenden (Member)]: I just I had I remember some pause on the screening, completely removing it because I just don't know what value there is. I I feel like there might be some value in adding that set that existing set where somebody has to at least look at before it goes to the next more costly step. But maybe I just need to go through my notes to review what the estimates are and how many times these things do get referred.

[Sen. Alison Clarkson (Chair)]: Yeah. And maybe Kelly can can help us with that too.

[Sen. Thomas Chittenden (Member)]: Is it a 100% of the time that this preparedness goes, but it just takes longer? Is that what it is? Or are there still some times where the screen hair filters out, requests for both patient rehabilitation when they generally just weren't worked?

[Sen. Randy Brock (Vice Chair)]: That's been over the call.

[Sen. Alison Clarkson (Chair)]: I'm I'm gonna let Kelly answer that. Are you who should answer that? Dirk. Go ahead.

[Dirk Anderson (Director of Workers’ Compensation, Vermont Department of Labor)]: Thank you, Madam Chair. Dirk Anderson, Department of Labor, Director of Workers' Compensation. My numbers are very rough,

[Megan Sullivan (Vermont Chamber of Commerce)]: but the initial,

[Dirk Anderson (Director of Workers’ Compensation, Vermont Department of Labor)]: you want me to?

[Sen. Alison Clarkson (Chair)]: Sure, absolutely. So I believe

[Dirk Anderson (Director of Workers’ Compensation, Vermont Department of Labor)]: the last time I was here, I said that there were annually, voc rehab brings about, 150 claimants for voc rehab eligibility. Approximately forty percent of those are not approved for voc rehab. The reasons for that are varied, but a lot of the times it's because the injured worker has not yet had a surgery that they're scheduled for or they're recovering from the surgery and they're still sort of in a place of flux where it's not really clear exactly what level of recovery they're going to be able to achieve.

[Sen. Thomas Chittenden (Member)]: That's really helpful. So if this field were to go into effect, that forty percent would not be, they would just directly go to Voc Rehab?

[Dirk Anderson (Director of Workers’ Compensation, Vermont Department of Labor)]: They Direct that accounts? In ninety days they would be Correct. If I'm wrong, in ninety days they would be referred or they should be referred to a Voc Rehab counselor who would then have to perform an entitlement assessment.

[Kelly Masacott (Vermont Association for Justice)]: Right, what would you call it? Theory, yes. Sorry, Kelly Masacott with the Moffittenden Association for Justice. In theory, at ninety days, they would be referred to a VR counselor who would inquire the person. Many people say, I'm not interested, to tell the truth, because they don't understand the benefit. And then it stops there. The VR counselor, if the person expresses interest, would meet with them. And I honestly think the screening in the statute is just a formalized step of what many of the VR counselors do, which is do a quick first blush, obviously entitled, obviously not entitled, whole. That really is the first step. And whether it's done at the screening level by a different state VR person who doesn't know comp and is not a good judge of those three categories, that's what we're trying to get rid of, Or a VR person in comp who does know those three categories and can make a better judgment. Obviously entitled, obviously not entitled, hold, right? Because of where they are in the medical process. So we're trying to get rid of this, what's kind of a formalized screening process with the state VR people, Weber and Dale, because it's not worked well. And so the VR people are doing the same kind of thing, they just know the requirements under comp a lot better. That's how I would phrase what's happening there. It sounds.

[Sen. Thomas Chittenden (Member)]: So the 40%, Mr. Director, they aren't approved, do you have a sense of how many of them never get Voc Rehab versus it's just a matter of a long period of time that they get the Voc Rehab?

[Dirk Anderson (Director of Workers’ Compensation, Vermont Department of Labor)]: That I don't know. I do know that sometimes the screener will say, Okay, you've got surgery coming up, or you've still recovering from surgery, let's look at this again. Two months or whatever. How many of those people fall off before they actually see a voc rehab I don't really know, but it would be some percentage stuff. I can say that, again, based on last year's statistics that I just displayed, there are annual evoked rehab counselors perform over 200 entitlement screenings, which is more than the screenings performed by the initial screeners. So some people are finding their way to voc rehab. And all But not everybody is either a challenge. Everybody goes through the initial screening process, people go directly to voc rehab when it's, to a counselor, when it's clear to both the claimant and the carrier that these people would be good candidates for both rehab. It

[Kelly Masacott (Vermont Association for Justice)]: does happen, but it's kind of rare. I see carriers use the stall tactic, frankly, of, Oh, gotta do the screening, And it just puts off what is sometimes inevitable. It does happen, Dirk. I'm not saying it doesn't happen, but I've definitely had cases where I was pulling teeth because the official process is the screening.

[Sen. Thomas Chittenden (Member)]: To your point there, Madam Chair, just my question is, is it a safe assumption to assume everybody should get Voc Rehab? If so, then sure, get rid of the screening, but if there are circumstances where Voc Rehab is not necessary, I just worry about putting more costs into a system and that's where insurance companies, it's hard to defend insurance companies because they get a bad rap. They do provide some utility in controlling costs both in the healthcare sphere and this.

[Sen. Alison Clarkson (Chair)]: Given that we're looking at the rest of these issues in this working group, would it make some sense just to add this, whether or not to keep the first screening in as one of the issues you discussed or not? Should we make that decision here?

[Dirk Anderson (Director of Workers’ Compensation, Vermont Department of Labor)]: In my opinion, I mean, if we go in, if you do a strike all and roll everything into the summer study, we're gonna be back here next year

[Sen. Alison Clarkson (Chair)]: simply where we are now. Yeah, we'll have much better recommendations from people who are all the stakeholders who are gonna actually recommend specific action.

[Dirk Anderson (Director of Workers’ Compensation, Vermont Department of Labor)]: Yes, But as currently drafted, the bill must take action. It makes something happen. And I think, you you've heard the testimony, and I tend to agree with it, that the initial screening is not really all that effective and that the latest treatment, and I think the folks, Dale and higher ability to be able to agree with that. That

[Sen. Alison Clarkson (Chair)]: was my understanding from your testimony is that you agreed that the first screening could be dispensed, but that was what my note says.

[Dirk Anderson (Director of Workers’ Compensation, Vermont Department of Labor)]: That was my testimony. If Minnie wants to roll it into the study, we're gonna have to do it anyway, so I mean, we can do it that way as well. Happy to.

[Jamie Phanon (American Property Casualty Insurance Association)]: Jamie Phanon of the American Property Casualty Insurance Association. As the voice of the insurers would certainly support rolling this issue into an overall study. I think the conversation you're having this morning are a lot of the questions that could be asked. You know, what is driving 40% number? What sort of questions are being asked at the screening process that either are on point or not? I think we're, you know, perhaps making some policy decisions in the vacuum without that information that you can

[Dirk Anderson (Director of Workers’ Compensation, Vermont Department of Labor)]: get through the study, think it

[Sen. David Weeks (Clerk)]: will all be better if you want.

[Kelly Masacott (Vermont Association for Justice)]: Ellen? I just want to repeat what I said in my earlier testimony, is a voc rehab counselor from the comp system meeting or talking to an injured worker is not them getting voc rehab benefits. It's just them doing the screening instead of that Dale or Weber person. And yes, it may be a little bit more expensive per person. It's much better use of the carrier's dollars overall, I promise you, than the delay that results from the screening being done by Weber and Dale overall. Because the people who are really entitled to these benefits, and substantial benefits perhaps are delayed greatly as Karina Dunnigan, the earlier VR counselor who testified and gave that example of that gentleman, that's a real case, it was in my firm. Those people who were due those benefits and not identified early, those cases can be substantial, not just to the amount of benefits due to them in the VR system, but to society and to the state of Vermont overall, because she testified, that guy pressured his doctor to release him early to go back to work on his feet when it's not medically indicated because he had no other choice. That's another comp claim waiting to happen for another one of Jamie's clients. So the system overall is paying for that. That person should have been identified a lot earlier. And if the screening, we'll call it screening, was done by somebody who actually knows the Voc Rehab System comp system, which Dale and Weber people don't, they could have identified and said, get this guy into better training, education. He was dying to get back to work. And he could have gotten off GTD benefits, the wage replacement benefits earlier. And if he could have been identified by somebody who knows the comp system and VR rules,

[Sen. Alison Clarkson (Chair)]: he would have

[Kelly Masacott (Vermont Association for Justice)]: been much better off, all of us would have been much better off, Jamie's clients would be much better off. So to me, this is a no brainer to get rid of the screening flow thing. There's a lot of other things that can be improved, but this is a first step that makes all the sense

[Sen. Alison Clarkson (Chair)]: in the world. It actually sounds, oh, Tom?

[Sen. Thomas Chittenden (Member)]: My last question, comment is on I'd love to know how other states do it if we're getting out ahead of others where they don't have screening done by insurance companies. If this is uncommon for us to have this screening.

[Sen. Alison Clarkson (Chair)]: Well the screening isn't We're not getting rid of

[Kelly Masacott (Vermont Association for Justice)]: screening, sorry to talk out of turn. It's just not farming it out to people who don't know the rules about comp.

[Sen. Alison Clarkson (Chair)]: Right, right. That's part of the problem. And I don't know what other states do. Nor do I. And I'm not sure it, I'm not, in my mind, thinking that that matters as much to me as the fact that it sounds like it's more efficient, saves time, and as people are screened first time by people who actually know the system, know how to save the insurer's money, know how to effectively get people back to work better, get better counseling. And with the Department of Labor recommending this, I actually am inclined to accept the bill as written. And we can always revisit it if it's not working. But if it's saving everybody money and time, that seems like a good choice to me. We're trying to make government more efficient and save all of us money, including insurance companies, and get people back to work. The whole objective of this is to get people the treatment they need, get back to work, get the training they need if they can't get back to work. That's what this and so if this is more efficient, Department of Labor supports it, I I I tend to think we I I support the redraft of one seventy three common. Randy and David, Kesha, how

[Sen. David Weeks (Clerk)]: are you feeling? I'm I'm just waiting for the next the final NAW at corporate labor representative to see if he agrees with everything just or Chittenden.

[Dirk Anderson (Director of Workers’ Compensation, Vermont Department of Labor)]: I would agree with that. From my perspective, I think it's beneficial to move ahead with removal of the initial screening and then, study the rest of the process.

[Sen. Alison Clarkson (Chair)]: Terrific. And I would hope that in the course of that work that you have all graciously agreed to take on, if something else arose around this, that you would bring it back to us on this. Yes, I would. Right, terrific. And this is, yep.

[Dirk Anderson (Director of Workers’ Compensation, Vermont Department of Labor)]: Well, I'm sure. Yeah, sir? One clarifying question.

[Sen. Alison Clarkson (Chair)]: Yeah. Sorry.

[Dirk Anderson (Director of Workers’ Compensation, Vermont Department of Labor)]: This may be a question for Sophie. The additional language about the study. Oh yes, final, line, subsection F, line 19, eighteen and nineteen on page three and four. I just want to clarify. It says, These payments shall be made from monies appropriated to the Department of Labor. I assume those are monies that the appropriated to the Department

[Megan Sullivan (Vermont Chamber of Commerce)]: of Labor that we need now. So that

[Dirk Anderson (Director of Workers’ Compensation, Vermont Department of Labor)]: Bind as opposed to an additional provision. That would, of course, No, send it to the monthly

[Sen. Alison Clarkson (Chair)]: this is current. Right, that's what it Yeah, I think that the expectation is from

[Sophie Zdatny (Legislative Counsel)]: the Department of the Funded Money, again, if you wanted to include it in appropriation and that Now this has no legislators on it.

[Sen. Alison Clarkson (Chair)]: And so it unless somebody is appointed, but it's highly unlikely unless we have a expert in this area. But it I'm hoping it'll be stakeholders like Jamie and Kelly and Dirk and the people who live in Dale and the people who live and work

[Dirk Anderson (Director of Workers’ Compensation, Vermont Department of Labor)]: in this system. It does have travel or fixed expenses. That's not a lot of money, I'm sure.

[Sen. Alison Clarkson (Chair)]: No. It's pretty modest. My guess is people may not even put in for those. I mean, that's always the case. Depends on the people, obviously. It's like experience. But to go to who should do the appointing, the two representatives on behalf of the workers' comp claimants, should we do that is the we have three different sets of recommendations. Should we make them all three, because there are two in each one, all appointed by the speaker and the pro or the committee on committees and the pro and the speaker, and they would then each get one each. Can we clarify that? That's what I understood you. Yeah. I think that makes that makes sense. That is why. Great. Terrific. Thank you. So, Kesha. Madam Chair. Yes. Rank. James?

[Sen. Randy Brock (Vice Chair)]: If I may, sorry. Last minute. I just saw the language this morning. And then looking at the powers of the committee or the group, would this committee consider adding some power charge to at least look at the costs to the system that would be looked at as well?

[Sen. David Weeks (Clerk)]: Absolutely. Don't see anything in here that looks at that.

[Sen. Alison Clarkson (Chair)]: Jamie, I think that's a good ask because we're, at least I'm assuming in my vote that that this is gonna be a more efficient way of using our precious resources. So and yours. And yours are ours. Employers. Employers. So how would we like to have Sophie add that?

[Kelly Masacott (Vermont Association for Justice)]: Yes, Kelly? Is it not already contemplated in the charge? Sorry, let me bring up the language. Which right at the beginning talks about not just timely but costs? I thought it did talk about costs.

[Sen. Alison Clarkson (Chair)]: No, but

[Sophie Zdatny (Legislative Counsel)]: it doesn't It have that in right now.

[Kelly Masacott (Vermont Association for Justice)]: Oh, I'm sorry.

[Sen. Alison Clarkson (Chair)]: Just think about other About other monies, not that, what it might save the system, because I think that's an important question.

[Kelly Masacott (Vermont Association for Justice)]: Line 14 on page one, in a timely and cost efficient or cost effective manner.

[Sen. Alison Clarkson (Chair)]: The needs of the eligible Oh, on page one. Sorry, am I not

[Kelly Masacott (Vermont Association for Justice)]: on the right? No, no, no. Hang on. I may be on the wrong. Am I on the earlier Well,

[Sen. Alison Clarkson (Chair)]: that would work there. The creation, yeah. Sorry, line 14. Yes, page one.

[Kelly Masacott (Vermont Association for Justice)]: Line 14, needs of eligible injured workers in a timely and cost effective, because that's looking at the overall system, the benefits, the purpose of those benefits, and whether what the system is delivering.

[Jamie Phanon (American Property Casualty Insurance Association)]: I'm not going to split hairs over this. I'd rather be a power charge. We all know when we get in these groups that they look at what they're directly charged by the legislatures.

[Sen. Alison Clarkson (Chair)]: I would suggest we do both ad on line 14, add and cost effective because that's what we're all hoping for. And then add a number eight chart. We could add another one that referenced the how this would save how this would be more cost efficient to the whole system or or say I don't know what you're the drafting queen. That's a good cat rag. Drafting queen. We're always having to think about these things.

[Kelly Masacott (Vermont Association for Justice)]: Something about the insurance carrier employer's doll, I mean, I'm using. Sophie will use the right language, but their dollars being better spent to actually get the services injured workers are entitled to be better put to use. Because I do feel like there is a lot of administrative, the burden administratively that these VR counselors About

[Sen. Alison Clarkson (Chair)]: reviewing the cost to the entire system.

[Kelly Masacott (Vermont Association for Justice)]: Yes. Yeah, something about And

[Sen. Alison Clarkson (Chair)]: that's what you already got and we're only sitting three sheet apart. Right.

[Sophie Zdatny (Legislative Counsel)]: And it does include in six about looking at whether the current requirements are two owners and administered with the other. Right. I think exactly what you asked about. Well, would just do it as a separate aid, but I did want to just flag that if there are ways to make it administratively simpler and more cost effective. Right. I will do a with these changes that I'm adding in section one so it's a. Is that okay with the committee? Does that work?

[Sen. Alison Clarkson (Chair)]: Mhmm. Okay. Having lost my agenda, a keeper of our time. What is what

[Sophie Zdatny (Legislative Counsel)]: 945. +1 0945.

[Sen. Alison Clarkson (Chair)]: So I I would suggest that we go right in if if people are okay with this David, Tom, are you okay with this?

[Sen. Thomas Chittenden (Member)]: Yeah. I I have paused to know what I'm guessing the house can pick it up further, but I I just wanna validate a statement. I think I heard that this will save money to the system. I I worry that the screening, removing it actually might not be that. But if all of these people end up with voc rehab, sure. Take it out of stat. But if there are valid reasons to screen them away from a more costly rehab service, that's legitimate. And I do have those hesitations, But it's early enough in the system. I expect my colleagues in the house to take Yeah.

[Sen. Alison Clarkson (Chair)]: And I think

[Sen. Thomas Chittenden (Member)]: we on such a thing.

[Sen. Alison Clarkson (Chair)]: We can raise that with the committee chair that that is a concern for us to look at. I would if we're all okay with that, we would like then ask Sophie to come and talk to us about 02:30 s 02:30. And then if we can be efficient, speaking about being efficient about that discussion, perhaps you would be able to redraft so that we could maybe report while actually vote up on seven acres. The week before 10:30. Oh, before 10PM. Yeah. We have an hour. So so sorry. I

[Sophie Zdatny (Legislative Counsel)]: I just just said, anyway. Did you say less than an hour?

[Sen. Alison Clarkson (Chair)]: I said nothing too outrageous.

[Charlie Glosstowin (Policy Director, Vermont Network Against Domestic & Sexual Violence)]: No, no, but we just made less

[Sen. Alison Clarkson (Chair)]: than an hour. Yes, I realized. So maybe we will just return in both of this on this either tomorrow or the next phase or on to both. Right. So let's shift to s 02:30, which has sort of become our labor our miscellaneous labor bill. Thank you, Dirk, so much, and thank you for your offer. That was good. Much appreciated.

[Sophie Zdatny (Legislative Counsel)]: I had a summary on this one as well. I don't know

[Megan Sullivan (Vermont Chamber of Commerce)]: if anybody printed it out.

[Sen. Alison Clarkson (Chair)]: 02:30. Yep. You sent it last night, and we have it printed for you, I think, at your place. I do not have a Oh, S two 30?

[Kelly Masacott (Vermont Association for Justice)]: We're here. So if you wanna talk to him.

[Sen. Alison Clarkson (Chair)]: Yeah. Here Here we go. Okay. Great. Okay. So let's shift to s two thirty, which is to So

[Sophie Zdatny (Legislative Counsel)]: this is a strychol, and this would Yes. And the other one would also like I would, yes, I would do that. So, this removes what originally was in the bill, which was to do with the flexible work arrangement, so it deletes that language that would have required employees to grant requests for flexible work arrangements that are not inconsistent with business operations.

[Sen. Alison Clarkson (Chair)]: Right. And may I just say, I emailed the committee last night about this. I think I hope you all saw that. But I would say that we're taking this up in senate government operations with the VSEA on the VSEA issue prospectively, using flexible work arrangements as a piece as a bargain, that they would be able to use it in their bargaining.

[Sophie Zdatny (Legislative Counsel)]: Yeah. It would be a mandatory subject for bargaining. It would be

[Sen. Alison Clarkson (Chair)]: a mandatory thing. But it would be perspective. So we wouldn't be and my sense so it wouldn't be interfering with the current contract, but it's prospective for future contract. I heard around this committee, and correct me if I'm wrong, was that with one or two exceptions that were the majority of the committee was not interested in moving ahead on mandating flexible work time for all employers at this moment. In travel, private Right. So that was my sense about the majority. And so that is why we're gonna let, I just thought maybe more efficient use of our time to give that to come ups for the moment. And then when we have more time consider flexible work arrangements for all employers in some less mandatory way, but perhaps with a carrot, that would take us a little quicker. Is that fair, committee? I just feel like I'm going to talk to Peggy. Yes, ma'am. Thank you. Thomas.

[Sen. Thomas Chittenden (Member)]: Yes. That's good.

[Sophie Zdatny (Legislative Counsel)]: Patient. Mhmm. Yeah, okay. Okay, on that, prevost. So we already have previously walked through section one and section two, but section one, this is adding in the full time teachers for their coverage under the Friendly and Family Act in Vermont by referencing the federal definition under the Family and Medical Leave Act, and this was, again, an underlined CDAP, the airline flight crew. They were added last year that federal regulations, the teachers have asked to have the same language added for them. There was a question around how many other of these special groups there are, these are the ones. I didn't find any other subspecial categories. So I don't think you're gonna have a flood of other folks coming in

[Sen. Alison Clarkson (Chair)]: Sure. On Yes, Tom.

[Sen. Thomas Chittenden (Member)]: So I'll just preface this question by saying I'm not a volunteer to present this on the floor. I would say it's a good question that I think we should be able to answer before this goes. My understanding is this would not have any measurable way to add on the head fund because this is unpaid family thing.

[Sen. Alison Clarkson (Chair)]: Right. And yes maybe we might ask Thank

[Sen. Thomas Chittenden (Member)]: you for calling. No. Okay.

[Sen. Alison Clarkson (Chair)]: Happily we explored, there were no other special prep categories, so we're not gonna Right. Guess.

[Sophie Zdatny (Legislative Counsel)]: Okay, great. Section two, this was adding so under Act 32, last session, safe leave, the definition of survivors of domestic violence, assault, sexual assault, stalking, was added to the Parental Family Leave Act, and so this was a request to add them to the definition of crime victim under the Fair Employment Practices Act, which is a sort of discrimination act. And so, this is, again, we went through this last time, there was testimony on this, and then there were questions around the attestation part, the documentation part, and again, this is essentially a cut and paste from what was passed in Act 32 under the Parental Family Leave Act. So this is now in here, and then, again, definitions to the existing code provisions. And then what's new to this committee that you haven't seen before is section three, and this was language that was in a bill that passed out of the passed out House and is currently in Senate Education.

[Sen. Alison Clarkson (Chair)]: And what this does is it's just Sorry, for those of you who were on the floor yesterday, this is when I stood up because Seth wasn't there during the announcement, so it didn't get moved. And education was gonna talk about it yesterday,

[Sophie Zdatny (Legislative Counsel)]: and I'm hoping they agreed with Seth and me that they're gonna move it today at at 01:00. It's essentially an issue under the Fair Employment Proust Act. It's really not an education issue. What it is is just cleaning up some language that's been unlawful for thirty plus years. So under the age discrimination, it's It's 1994. So in 1986, at the Congress basically said you could no longer have mandatory retirement or university professors effective 01/01/1994, so there was quite a big gap there to sort of see if anyone came back and said it was that idea. No one did, so it went into effect 01/01/1994. So since then, colleges and universities cannot force tenured faculty to retire by the age of 70, but we still have this provision in our Fair Employment Practices Act, and so it looks like it's still good law because it's on the books, and then even more troubling is that it's gotten sort of updated as technical corrections are made, you know, him, her. No, we keep investing in it. Right. Well, it just keeps getting those sort of things, so it looks like it's still in effect. And so it just seemed like maybe it was time to just take it off the books because it's been illegal for thirty plus years. So all this would do is simply repeal that particular section of the Fair Employment Practices Act.

[Sen. Alison Clarkson (Chair)]: For those of us who do the technical corrections bill every year, this would be great to not have any technical corrections.

[Sophie Zdatny (Legislative Counsel)]: Well, it's a subset, you know, it's substantive enough. It's not a comma or in a semicolon or a, you know, string word. It's, it's substantive enough that it needed to be

[Sen. Alison Clarkson (Chair)]: long go. We're comfortable that

[Sen. Randy Brock (Vice Chair)]: no institution of higher education has been using this

[Sen. Alison Clarkson (Chair)]: For thirty years, years.

[Sen. Randy Brock (Vice Chair)]: Right, yeah. So, it's not, there's no likelihood of there being any practical problem that's surfacing by virtue.

[Sophie Zdatny (Legislative Counsel)]: The challenge, if you do a legal search, will come up, you know, if you do an AI search or a legal search, it will come up as this is Vermont Law, but it's illegal at its petrol level, so, yeah. Right. And so, our own, Mahali is the

[Sen. Alison Clarkson (Chair)]: one who put this bill in and out to clean it up as the former dean of the law. Yeah.

[Sophie Zdatny (Legislative Counsel)]: And it passed the house, and they just got sent over to Senate Education. And I know they've got a lot of things on that plate. So

[Sen. Thomas Chittenden (Member)]: I know my husband teaches at UVM,

[Sophie Zdatny (Legislative Counsel)]: so he was to keep them working. Is this see that? Do you see that? That? No. Got interviewed by by a he's ardent about it because I think he figured he was the oldest person on campus, so we went and talked to him. And it did land up being a digger article

[Sen. Thomas Chittenden (Member)]: I didn't see that.

[Sophie Zdatny (Legislative Counsel)]: About it. Yeah. So it was pretty funny.

[Sen. Thomas Chittenden (Member)]: But this is a new trend for keeping working.

[Sen. Alison Clarkson (Chair)]: No, I think this is cleanup, and it sort of fits into the labor bill, so we thought it might be a good addition. So

[Sophie Zdatny (Legislative Counsel)]: Oh, and then it also, I just took it down, but it would also propose just changing the name of the bill if it passes because right now it's about flexible work arrangements and it would just change it to an ad related to their employment practices because that would

[Sen. Alison Clarkson (Chair)]: cover That is the umbrella under which all three of these pieces fit. Great. So, committee, thoughts.

[Sen. David Weeks (Clerk)]: All leads. I'm okay with the bill with the exception of the assault attestation. I didn't I didn't, like the idea back when we were talking last year. We were talking about the parental and family leave act. Otherwise, I'm okay with it.

[Sen. Alison Clarkson (Chair)]: So, we have Charlie has joined us in the room. And who how can we Charlie, you I think I'm just gonna call because I think there are a couple of people that have that concern that's ongoing. I it's it's somehow, don't know why it doesn't bother me as much, but I I appreciate that it bothers you. So, Charlie, would you be kind enough to join us and address that? Because often this I don't know if it happens with other crimes. So, would you be kind enough to share your thoughts on this?

[Charlie Glosstowin (Policy Director, Vermont Network Against Domestic & Sexual Violence)]: Absolutely. I'm Charlie Glostowin. I'm the policy director at the Vermont Network Against Domestic and Sexual Violence. As far as the self attestation piece, I would note that there are many areas in Vermont law and just across the country in these labor law situations where self attestation is used as a form of documentation for survivors. The law in unpaid job protected family and medical leave was amended last year to include that. So it's already have not in statutes. It's already in our statutes for job protected unpaid leave. This is simply aligning the documentation standards. We have not heard any concerns since that law was implemented about the self attestation piece, and that's something that we have really tried to keep an eye on. I would also note that I the this language was brought forward by the civil rights unit in the attorney general's office. I connected with them this morning to see if they had any numbers or anecdotal data about how status as a victim of crime is used in fair employment practices. Just because of the time, I haven't been able to hear back quite yet, but my understanding is that that protection is not used that often. It is these very, very dire circumstances where an employer and an employee have a disagreement. Of course, you know, that can still move forward with a lawsuit. And if that is the case, then a survivor or otherwise, you know, an employee would have to justify that. Good day. In part. And so, I think those are the checks that we see to ensure that this documentation is used appropriately. That's, you know, what I would say.

[Sen. David Weeks (Clerk)]: All this should be hedged with filing the pollution worker. The other whatever wherever they reported it into the the initial system for their own protection. So that gestation is is kind of like different coming into coming into school with a with a absentee slip that the kid themselves saw. It's just it just kinda it's just got the wrong route to them. Yep. And and just because it's pressing from something we did last year, didn't agree with it last year.

[Charlie Glosstowin (Policy Director, Vermont Network Against Domestic & Sexual Violence)]: The vast majority of survivors do not file a police report after they experience abuse, and so that type of documentation is not going to be available to them. You know, sometimes, as we noted in testimony previously, the need to seek relief can be quite timely. Even if they do eventually file a police report, maybe they get to a point where they feel safe doing that, it might be too late for them, and they might need relief earlier. You know, these are adults, right? And so I think that there's a real difference in, you know, a child signing their own excuse from school, an employee attesting that they are a victim of a crime.

[Sen. David Weeks (Clerk)]: Yeah, but then on page three, line four, section triple I.

[Sen. Alison Clarkson (Chair)]: There's

[Sen. David Weeks (Clerk)]: a very easy out, very simple method to depose yourself at a gestation is to have legal, clerical, medical or other professional for whom the person has received counseling, etcetera, etcetera, that's pretty wide open too. You know, I'm okay with that because they've at least had some validation. Again, I'm just trying to articulate a hesitation.

[Charlie Glosstowin (Policy Director, Vermont Network Against Domestic & Sexual Violence)]: And I appreciate you sharing your thoughts on that. You know, what I noted in my testimony last time was that what we are most afraid of is survivors falling through the crack between the documentation standards for job protected unpaid leave and protections under the Fair Employment Practices Act. So, you know, as it stands in law right now, a survivor could access unpaid leave and face repercussions. They could be fired, by taking that leave because they don't have this kind of protection. And that would just be really, it would be really unfortunate for a survivor to experience the economic instability that would come with that and fall through those cracks.

[Sen. David Weeks (Clerk)]: So you don't believe that this paragraph, triple I, is not protection for the employee that has suffered in this way, that triple I, the triple I here is just, yeah, it's pretty wide open, it's pretty liberal for at least somebody's validated that something happened. Isn't that a good compromise?

[Charlie Glosstowin (Policy Director, Vermont Network Against Domestic & Sexual Violence)]: This is not the language that was passed in the unpaid job protected leave statute, and I think it's very important to align the documentation standards in those two statutes. I think it's very important that survivors decide what kinds of support they access. I think putting a survivor in a place where they would have to seek legal assistance or medical assistance or counseling, when that might not be what they want to do, would be a disservice to them.

[Sen. Alison Clarkson (Chair)]: However, I mean, to build just to because we can have the AG come and just and discuss why they, why they brought this forward and why they want this included. Is it after a real after a sexual crime of this degree, would not somebody naturally have talked to a nurse or or they've been to an ER or I mean, know some don't. I know that a vast majority don't have police reports. Mhmm. But this net of professionals contact in the course of experiencing something as horrific as a rape, would they not? One assumes that they would have a touch base with unprofessional self writing. No. This is a potential compromise. What if you took the self attestation and just inserted the words under oath? There you go. That's question.

[Charlie Glosstowin (Policy Director, Vermont Network Against Domestic & Sexual Violence)]: Don't know I mean, if Megan's here, I you know, I don't know how many, like, employers we've talked to about the sensitive nature of this stuff, but That's great. I mean, I've employed people. I think if you have experience mentoring and or employing people, you really want them to feel they trust coming to you with very sensitive details about a crisis that they're going through.

[Sen. Alison Clarkson (Chair)]: Unless you're the perpetrator of the crisis.

[Charlie Glosstowin (Policy Director, Vermont Network Against Domestic & Sexual Violence)]: Well, right. And that gets to the, like, a note from the parent or something. Like, this is all kind of a little bit out of step with reality, I think. In fact, I mean, Charlie, maybe sometimes to a disappointment, has certainly say, and Jane Kitchell say, like, the more we ask people to prove, the harder it is to use this, but also the more expensive it is to administer. Like, most people don't want you to have to run your court paperwork up through HR and have, like, three people approve it. You know? They they wanna be able to support you through one of the most difficult things you might experience in your life without needing to pull out documentation. Like rape, which is probably one of the most underreported things. You you want people to feel like, you know, they don't have to bear the the details of their life and their soul

[Sen. David Weeks (Clerk)]: They're to get they're providing a document that says everything that's happening. You're you're not

[Charlie Glosstowin (Policy Director, Vermont Network Against Domestic & Sexual Violence)]: certain that Your self attestation could be a little bit more of what you're comfortable saying than, you know, someone having to see some specific details in order to give you that lead. Most people are not making this up.

[Sen. Randy Brock (Vice Chair)]: Says so very good.

[Charlie Glosstowin (Policy Director, Vermont Network Against Domestic & Sexual Violence)]: I'd rather people both know than try and make us Wanna try.

[Megan Sullivan (Vermont Chamber of Commerce)]: Ask for proof from

[Charlie Glosstowin (Policy Director, Vermont Network Against Domestic & Sexual Violence)]: people that is that has the potential to re traumatize and revictimize people. Like, this is this is a best practice. I don't even think schools ask for, permission slips necessarily anymore because who's verifying that? I mean, really, you just wanna know the child and you wanna know that they're safe. You don't really wanna look to punish them or not. So This just feels really out of step with reality where we're going. So Randy,

[Sen. Alison Clarkson (Chair)]: you had a thought too.

[Sen. Randy Brock (Vice Chair)]: Well, said under, oh, but as Just based on what we've been discussing a second ago, isn't that describing what happened? It says here, describing the circumstances supporting the person's status. Yep. That means that that person is telling somebody

[Charlie Glosstowin (Policy Director, Vermont Network Against Domestic & Sexual Violence)]: Wouldn't want them to put their hand on a bible. Well, no,

[Sen. Alison Clarkson (Chair)]: you saying it implied that they're sharing this information with others? They are, they're sharing

[Charlie Glosstowin (Policy Director, Vermont Network Against Domestic & Sexual Violence)]: it with other Right, but they're sharing it in their own way. And I don't know what under oath does for that.

[Sen. Randy Brock (Vice Chair)]: Under oath simply means a notarized document.

[Sen. Alison Clarkson (Chair)]: Thomas. So I hear

[Sen. Thomas Chittenden (Member)]: where everything's coming from. Maybe under oath, as opposed to that, could this be interpreted, I'm maybe I'm looking at the lawyer here, as a verbal self attestation, which could be quite, I don't know, worrisome, meaning that you couldn't go over and refer back to it, like at bare minimum, or is the self attestation having something in writing for the employers to lean on and to just hold in their HR files as to the rationale for justifying those leads? Like, does this infer or imply that it would be a written self attestation under oath or otherwise?

[Sophie Zdatny (Legislative Counsel)]: It it does provide that it would be written because e at the bottom of page four, it says a person is a survivor of domestic violence, sexual assault, or stalking in person supporting documentation from any one of the following sources, and then it gets to the self attestation Sorry. We don't. Page four, missed this.

[Sen. Thomas Chittenden (Member)]: I don't know if it's in writing. It's a document that could be used in any

[Sen. Alison Clarkson (Chair)]: I don't

[Sen. Thomas Chittenden (Member)]: know if we need to go to a bible and under oath, but if it's gonna be in writing, that's something to hate the employers to open.

[Sophie Zdatny (Legislative Counsel)]: This is generally around discrimination claim. Someone would be claiming they were incriminated against because of their status as a victim of sexual assault, domestic violence or stalking. And that

[Sen. Alison Clarkson (Chair)]: they weren't given, remember it all goes back to unpaid safe leave. So what, right? Well, this is, what this

[Sophie Zdatny (Legislative Counsel)]: is doing is adding it to the Fair Employment Act, which is the discrimination provision. So essentially this is putting the employer on notice, right? Because if the employer doesn't know you're a victim of stuff, then any action the employer takes, whether that's adverse to the employee, it can't be based on their status as a crime victim. Again So they can't be discriminated against as a crime scene participant. Right. But again, so if someone has low absences because they're dealing with

[Sen. Alison Clarkson (Chair)]: the aftermath of others. Right. Could be docked. Right.

[Sophie Zdatny (Legislative Counsel)]: But if they tell the employer, this is the reason why I'm having these absences and this is the documentation to support it, and then there's adverse employment actions taken against them, then they could have a claim, discrimination claim that they would just take against on the basis of their status as a victim.

[Sen. Randy Brock (Vice Chair)]: Yeah, just from a clarity standpoint, supporting documentation, does that mean that there is something in writing that supports the person's claim under the self attestation paragraph? Right. Which would suggest that something's writing that. Does that something's writing mean that is the recording by the person to whom it's disclosed, documenting the disclosure, or does it mean something from the employee who's making a claim by providing something invited.

[Sophie Zdatny (Legislative Counsel)]: I interpreted the self attestation being the employee of the parenting document that was then given to the employer.

[Sen. Thomas Chittenden (Member)]: From my experience with employers I've had is there are very delicate private proceedings and hearings where HR will talk with supervisors and the written document is something where if there was a concern that somebody was maybe using this, I think that might be where you're coming from. This might be too easy for somebody to just say this in order to get this benefit. They could still press on the facts outlined in the self attestation of aspirational clarity. Does it give you any

[Sen. David Weeks (Clerk)]: more thought No. That's self attestation theory. That's sufficient. Well, sure it can be a challenge, but the employee challenges back and say, Hey, look, it's here in writing this. That cessation is completely appropriate. Nothing else is required. And that's

[Sen. Alison Clarkson (Chair)]: the end of that.

[Charlie Glosstowin (Policy Director, Vermont Network Against Domestic & Sexual Violence)]: I think the cases in which that would be challenged is when there's reason to believe that that self attestation is not valid for some reason. And, you know, I think at the end of the line there, an employee would be in a position where they would have to defend that court, it would be up to the court to decide. Received note from a friend who just shared that since 2018, the civil rights unit of the AGO is aware of 20 to 30 matters involving crime victim status as protected. So, over the last eight years, 20 to 30 cases. And so, these are protections that are very important for a very small number of people, and ensuring that it's successful for that very small number of people is critical.

[Sen. David Weeks (Clerk)]: No, no, no, no argument. Yeah, that's not a point. The point is, what the, from the employer's perspective, what's sufficient to warrant the absentee? That's all. And so very clearly, I think you've got, you know, paragraph I is pretty heavy. That's, you know, the formal law enforcement validation. Double I is similar, but a little kind of a little lower in in severity as far as requirements. Three or triple I is, you know, it's pretty wide open. I mean, that's a pretty but four, IV, paragraph IV, it's just I think a little too look. That's all. Do you guys could disagree? Thomas.

[Sen. Thomas Chittenden (Member)]: So I think I heard you say, and this is where I want to validate that the employer could challenge this. They could also challenge three, right?

[Dirk Anderson (Director of Workers’ Compensation, Vermont Department of Labor)]: Triple

[Charlie Glosstowin (Policy Director, Vermont Network Against Domestic & Sexual Violence)]: I? Yep. They could challenge anything.

[Sen. Alison Clarkson (Chair)]: The employer could challenge the whole thing because we don't.

[Sen. Thomas Chittenden (Member)]: So I'll say as a faculty member, this is not comparable in any ways, but, I've had students that have provided documentation for missing clients before from other professionals where I've said, you know, this is a career counselor that, doesn't have an official post somewhere. It's just because of that road you know. So that's I don't mean to make light of the the context of this, but all of these are contestable by the employer to validate those things.

[Charlie Glosstowin (Policy Director, Vermont Network Against Domestic & Sexual Violence)]: Yes. That's absolutely right. And I I do think that if there are questions about this piece that maybe it would be clarifying to hear from the Civil Rights Unit of the Attorney General's Office who really has a more in-depth knowledge of these cases, but that's absolutely correct.

[Sen. Thomas Chittenden (Member)]: The employer is questioning the validity of any of the legal, clerical, medical, or other professional documentation or the self attestation, they still have within their rights their internal processes to collect more information, to hear from the employees, to press on any absence of fact or absence of clarity. That'd be a fair statement. This doesn't prohibit the employers

[Sen. Alison Clarkson (Chair)]: from pursuing. So we have somebody who represents employers, behind Charlie who they may not don't you know, we don't wanna put you on the spot, but you're quick on your feet, so I figured that we could at least act behind you. Megan Sullivan for the chamber, would you be interested in weighing in or do you have anything to add to this conversation?

[Megan Sullivan (Vermont Chamber of Commerce)]: Megan Sullivan, Vermont Chamber of Commerce. I will admit that I am looking at this language, newly, and I was expecting to be coming here looking at flexible work arrangement language. So I'm I'm jumping in here with everyone else. I think, as I'm looking at this language, you know, I I hear the certain concerns, about self attestation, and I think we have, would be able to talk to members who, are I can't think of anyone under membership who does not wanna support their employees through incredibly challenging times. I can also think of a lot of members who've had, challenges with abuses of leave and and how that works. I think, you know, one question that has come to my mind here is, is this just a requirement of survivors, or could the roommate who is also allowed to take time self attest?

[Sen. Alison Clarkson (Chair)]: Right? So if if if

[Sen. Thomas Chittenden (Member)]: all

[Megan Sullivan (Vermont Chamber of Commerce)]: the people who are allowed to take time to support a survivor, which is a pretty broad list of people,

[Sophie Zdatny (Legislative Counsel)]: This is just to clarify. I would appreciate That's not the difference with our family.

[Sen. Alison Clarkson (Chair)]: I think we already did that.

[Megan Sullivan (Vermont Chamber of Commerce)]: Right. So methadone fat testation is not applied to wide range. Think I probably need a little bit more time to take this to members, but I very much see the concern of a self attestation and how, you know, how that gets viewed and what the if if a self attestation is allowed in law, what is the recourse? It's it's already what you came in at. Right.

[Sen. Alison Clarkson (Chair)]: Did already. No. Let don't be sorry. It's already in statute Right. Under the work we do. I remember that from last year. That was Right. And so this aligns aligns with statute already. That's the request from the AGs that move this forward and align our statutes. Well, at the request of the AG and the network.

[Megan Sullivan (Vermont Chamber of Commerce)]: Right. I'm not yep. Sorry. I'm not sure I can speak really well this point without having done more digging in, but I appreciate the concerns that are raised in

[Dirk Anderson (Director of Workers’ Compensation, Vermont Department of Labor)]: the going conversation.

[Sen. Alison Clarkson (Chair)]: Find out if you actually have had any employers where this was actually an issue, that would be helpful. I mean, because if if it's current law, it it's already a possibility of an issue that people have used a self attestation. But as Charlie said, probably I think after you arrived, there are only since 2018, there have only been 20 or 30 cases that have involved this, and self attestation.

[Sophie Zdatny (Legislative Counsel)]: Just to be clear, when you say crime victim status, it wouldn't be, it's not that we call Called crime status. That would, that's, this is adding victims of sexual assault, stalking, and domestic violence to the definition of crime status. So is I mean, so, again, maybe some of those were sexual assault victims, but crime victim on page two, like, those are all the current folks that are covered by crime victim status under the fact that perhaps is at. So, wouldn't, it's not, that number of cases is not limited to sexual violence. Oh, okay. I misunderstood that.

[Charlie Glosstowin (Policy Director, Vermont Network Against Domestic & Sexual Violence)]: Yeah, so any victim of crime in Vermont who has claimed that status as a protected status in an employment matter, 20 to 30 cases over the last eight years.

[Sen. Alison Clarkson (Chair)]: Sorry, my brain had gone elsewhere. Could you say

[Charlie Glosstowin (Policy Director, Vermont Network Against Domestic & Sexual Violence)]: that one again? What's the qualifier since '20 Since 2018, there have been 20 to 30 cases of a victim of crime claiming that protected status in a fair employment matter. So, looking at the current law here, that could be a survivor of domestic violence, sexual violence, or stalking, who had the documentation currently in the statute. It could be any other crime victim that is identified in an affidavit filed by law enforcement. And so, that is a much larger group of people than just survivors of domestic violence, sexual violence, and stalking, who are currently still, right now they are eligible for crime victim status. It is just aligning the documentation requirements.

[Sen. Alison Clarkson (Chair)]: Thomas, Okay. Do you have any further thoughts? I think

[Sen. Thomas Chittenden (Member)]: I've been waiting in but on on page if we go to page two of chapter number 2.1 that on the qualifier and E at the end line 17 through 19 might add to some of your concerns, Senator Weeks, which I think are quite valid. This could be exploited if it's too wide open. I don't think anybody's going to but regardless, what if it was a a person who was a survivor of domestic violence, sexual assault, or stalking, and who has provided supporting documentation for review from any one of the following sources for the poor review. That's not saying yay nay, but just make it clear that the employer will review these documents and with any other HR policies that they need to go through to make sure all the Ts are crossed and then Pfizer dotted to find out they are qualified made on.

[Sen. David Weeks (Clerk)]: Well it's a good compromise but that's not really the intent of it. Goal is to provide the necessary protections for folks that have suffered it. That's good question.

[Dirk Anderson (Director of Workers’ Compensation, Vermont Department of Labor)]: Also, it's very passive.

[Sen. David Weeks (Clerk)]: Mean, Giving it for review, get it, I get what you're coming across, I guess. She doesn't provide that, it's too much. John, take it.

[Charlie Glosstowin (Policy Director, Vermont Network Against Domestic & Sexual Violence)]: Just one thing that I wanted to note in case it is helpful reference, was just kind of pulling up the full Employment Practices Act statute here. And there are other categories within the Fair Employment Practices Act where you can use self attestation as evidence. Which are those? Religion and sexual orientation. So, recognizing that there haven't been challenges with that documentation requirement for those statuses, perhaps that would be helpful for the committee to consider.

[Sen. Alison Clarkson (Chair)]: So the additional self attestation allowances in the Fair Employment Practices Act is we one can self attest in with religious discrimination and with sexual orientation discrimination. And we don't again, we'd have to ask the AG, but, like, I don't know. I I I doubt we see too much abuse of that.

[Charlie Glosstowin (Policy Director, Vermont Network Against Domestic & Sexual Violence)]: I think it would be a great question for them. Yeah.

[Sen. Alison Clarkson (Chair)]: Thank you, Todd, for listening. The AG's office has had their ears on our committee, and we is she available now? I believe so. I believe she can come. Could we Zoom her in, Todd? Get you know, this is, like, so It's incredible. That I can ask the full box to see if we could Zoom in. So it looks like the AJ may be available now. Emily Adams is the assistant attorney general in the civil rights unit, and she could if she could zoom in now, that would be great. Thank you, Todd. I mean, it's always easy to wonder who's watching, who's listening. Does this make

[Sen. Thomas Chittenden (Member)]: the legislature more productive now that we have Zoom? Like, is this getting things to move faster?

[Sen. Alison Clarkson (Chair)]: I think it's it's particular if if she's actually available, that will be sort of amazing. Assuming that that's

[Sen. Randy Brock (Vice Chair)]: her or is answering the phone. Well,

[Sen. Alison Clarkson (Chair)]: that's true. She'd have to self attest to the fact that she is, in fact, Emily Adams. But then we're about to see her appear hopefully.

[Sen. Thomas Chittenden (Member)]: In the olden days, probably the liner up. Okay.

[Sen. Alison Clarkson (Chair)]: She we've sent the Zoom to Todd and it we it it would be great if she if Emily was available. That would be great. Well, that's helpful to see that self attestation is used elsewhere. I think that's helpful. So we shall see. And if not, we if it would help, David, if Emily's not available right now, we could make some time for it next Thursday morning and try and vote it out after that. Either way? Either way. Okay. Great. So we're gonna give

[Sen. David Weeks (Clerk)]: it a

[Sen. Alison Clarkson (Chair)]: beat. And any other thoughts? Are there is everybody okay with the first two sections? The the teachers and the the teachers and then the the teachers and And the repeal. And the repeal. Where is the repeal? Oh, the repeal section three. Alright. Is everybody okay with sections one zero three? David?

[Sen. David Weeks (Clerk)]: Fundamentally, I'm okay with it. I didn't you know, I fully understand why airline flight crews are more mentioned specifically. Teachers on the other hand, I don't really understand why it's a call out, but I'm not gonna update it. I guess you guys have I mean

[Sen. Alison Clarkson (Chair)]: I'm fine. They're the other

[Sen. David Weeks (Clerk)]: two up and get their name put into the parish office. Yeah.

[Sen. Alison Clarkson (Chair)]: They're the other two special categories that are called out in.

[Sen. David Weeks (Clerk)]: I just wanna understand. Again, I'm not gonna push against a federal issue. I don't understand why they're called out uniquely either time management.

[Megan Sullivan (Vermont Chamber of Commerce)]: Any

[Sophie Zdatny (Legislative Counsel)]: said yeah said she will

[Sen. Alison Clarkson (Chair)]: be trying shortly oh great yep so she's got the zoom link great we're gonna this is Tom I definitely this is does make us more efficient we have fifteen more minutes to

[Sen. Thomas Chittenden (Member)]: We quantify that if we got more legislative session passed since we've introduced Zoom. So it might be Well,

[Sen. Alison Clarkson (Chair)]: we've been able to have

[Sen. Thomas Chittenden (Member)]: Thank goodness.

[Sen. Alison Clarkson (Chair)]: We've been able to have forums when we couldn't have forums before. We have been able to hear testimony from people all over the world, which has been incredible, which we could not have had before. Right? We've had some on some of our conversations, we've had people from the West Coast to different kind you know, we've had witnesses from all over the place. Emily Adams, welcome.

[Emily Adams (Assistant Attorney General, Civil Rights Unit)]: Good morning. Thank you. Emily Adams, Vermont Attorney General's Office, Civil Rights Unit. You hear Thank me

[Sen. Alison Clarkson (Chair)]: you very much for joining us. I assume Todd has filled you in on the subject that we're discussing.

[Emily Adams (Assistant Attorney General, Civil Rights Unit)]: Yes, he has, and I've been listening in myself. So thank you. Would you like me to just start talking? Do you have specific questions?

[Sen. Alison Clarkson (Chair)]: I think David Weeks can probably share his concern, and and that is the concern we're trying to address. And we understand there are two other categories that are allowed to self at to self attest, one being religious discrimination and the other being sexual orientation, and we would be adding this crime victim as a third. David really wants could frame his concern. Well, I think she's so If you've been listening, you know what David's concerned.

[Emily Adams (Assistant Attorney General, Civil Rights Unit)]: I've been listening. Yes. Thank you. And so I think where I would like to start with this is just to clarify the reason for an interest in having this definitional alignment. So back in 2018, crime victim was added to the Vermont Fair Employment Practices Act as a protected category. What that simply means is that an employer cannot take an adverse action, fire or discipline someone because of their crime victim status, so because of that reason. But the definition of crime victim in 2018 was limited in a very, narrow way, and some of you may have been on this committee at that time. I think Kara Cookson was a large advocate for that definition, and that involved only statutory references to essentially being in a police affidavit or a court document saying you were a victim. Since 2018 and prior to the leave bill last year, the only protections in Vermont employment discrimination laws were that not taking an adverse action against an employer if they were a crime victim in a particular court document or police record. Investigate allegations of employment discrimination and we operated using that existing definition. Last year, two years ago, forgive me, I don't remember exactly which it was, the changes to the leave law were passed. Those changes expanded leave for victims of crime, including victims of intimate partner violence and domestic violence, and the definition which you see in front of you was placed in those leave laws. That is a different law than the employment discrimination protections. That is a law providing job protected leave. And so because of that, I'm not going to pass judgment on that definition that was placed in the leave laws. But the reason for seeking this alignment of definitions is we now have a structure where two laws within our enforcement that several of individuals may seek to utilize the protections of have two different definitions. An employee who is a victim of domestic partner sexual violence may be able to take leave under the existing leave law structure for the reasons set forth in that bill, to seek housing, to go

[Sen. Alison Clarkson (Chair)]: to court

[Emily Adams (Assistant Attorney General, Civil Rights Unit)]: appearances, etcetera, to seek mental health treatment. But they are not if they have not gone to law enforcement, if they are not indicated in a law enforcement document essentially, they are not necessarily protected under that crime victim definition, under the Vermont Fair Employment Practices Act. Where we have seen this arise is in cases where perhaps someone, and this is anecdotal, but we have had folks calling our office with scenarios like this, where someone goes to the employer and says, I don't need anything from you right now, but I wanna let you know that my spouse and I are separating. I've been the victim of domestic violence. I'm working to get out of the house and get my children out of the situation. And then they and then perhaps the employer fires them for whatever reason may be related to that. Sometimes it's because the spouse also works for the employer and they don't want that drama in the workplace. We've heard that anecdotally. But if that person hasn't gone to law enforcement, they don't have recourse under the law for simply the firing, but they are currently protected under the leave laws. It's been this funky definitional disparity that we thought since we already have this definition in the leave laws, it would make sense to bring it into the Fair Employment Practices Act for protections. Because we do know anecdotally that many of these individuals, and Charlie can speak I think probably better to this, do not access law enforcement for a variety of reasons specific to their scenario in a domestic violence or intimate partner violence situation. So that's point one in terms of aligning the definitions. Point two, I'd like to address your comment on self attestation and other protective categories. I would frame that a little differently. I would just say that the Fair Employment Practices Act has a variety of protected categories set forth. That's race, color, religion, national origin, sex, sexual orientation, gender identity, ancestry, place of birth, age, crime victim status, or physical or mental condition, which is more commonly known as disability. Under the law, someone can still have a claim for discrimination, say based on their religion or their sexual orientation. They're not required to have shown proof of that to the employer prior to their claim being brought. Right? So if someone wants to say, hey, my employer fired me because I'm gay, There's nothing in the law that requires them to have previously attested to that. So it's not that the law has self attestation in its existing form. It's just that it's not required. Of course, in the course of any investigation, any court case under these laws, there would be discussion about whether the employer had knowledge and whether that knowledge was the basis for their adverse employment decision because that's how you would prove a discrimination claim. But the concept of self attestation, I think is a little bit of a red herring here in terms of the discrimination laws as they currently exist.

[Sen. Alison Clarkson (Chair)]: Charles. That was very helpful. Thank you.

[Sen. Thomas Chittenden (Member)]: So in the conversation I think you said you might have been listening to, I'm kind of curious with these four ways to qualify for lack of a better term, the employer still has some obligation or right to review the documents and to hold internal delicate HR proceedings where they could look at the attestation if there was concerns that it might not necessarily be as legitimate as that's I know it's a loaded word, but if they had concerns that they were somehow exploiting the opening for self attestation to protect their work employment, they still do have the right to review and overlay any claims in the self attestation with what they understand about overall work performance? Or do they just have to accept outright, they self attested so I can't do this?

[Emily Adams (Assistant Attorney General, Civil Rights Unit)]: So again, we're in the context of the Fair Employment Practices Act, which is about discrimination. So I can't do this isn't really coming into the equation. The analysis is if someone is bringing a claim later on that they were subjected to discrimination or harassment in the workplace because they are a crime victim. It's about whether the employer had knowledge of that. And so right now in the current framework, an employer could fire someone who is a victim of domestic violence lawfully if that person doesn't have proof that they went to law enforcement to show that. This change would simply be that if an employer still makes that decision based on their victim status, that employee, the victim may have recourse even if they didn't go to law enforcement. But in terms of, and of course the evidence of whether someone made a good faith is actually like any sort of investigation or court hearing would look at all the evidence in front of them and look at what the employer truly based their decision on. If there is a, I think you referenced performance issues and the employer says, I didn't fire them because they were a crime victim, I fired them because of their ongoing performance issues, That is part of the legal analysis that comes into either any investigation by our office or any judicial proceeding on a court case that may come into play in this type of scenario.

[Sen. Thomas Chittenden (Member)]: Victoria, we still have the right to still terminate even with that self attestation. They just run the risk of losing in court if they can't stand on the facts on their reasoning for why they terminated.

[Emily Adams (Assistant Attorney General, Civil Rights Unit)]: Correct. They would have to prove their own lawful reason for any termination.

[Sen. Thomas Chittenden (Member)]: Thank you.

[Sen. Randy Brock (Vice Chair)]: Well, if the termination was on the basis of the person lying about a reason, in this case alleging that there was a sexual assault or something of that nature, and the employer believes that that is a lie and has a basis for believing that, I'm assuming the employer could then discharge, is that correct?

[Emily Adams (Assistant Attorney General, Civil Rights Unit)]: So again, that would be kind of an evidentiary issue that would arise down the road. I would encourage that employer to consult with their counsel about their decision making and their proof of the lie, but that scenario, I think, again, if it's a lawful reason, not based on the status, but based on the actions of lying or fabricating could be considered lawful. Yes.

[Sen. Thomas Chittenden (Member)]: If the self attestation, sorry, was very vague, it just quite simply had like one sentence that doesn't necessarily bode well for the employee if the employer still chooses to override that. The employer could still weigh on its merits, self attestation. If it lacks specificity or detail, can they ask for more detail as to justify the?

[Emily Adams (Assistant Attorney General, Civil Rights Unit)]: So again, I guess I'm confused in the context we're talking about where this would come into play. So I'm going to use a different example again in terms of perhaps mean, so the cases we're talking about again are cases where an employee is fired, for instance, and then they say, think my employer did that because I told them or I was a crime victim in some way or because of concerns around me being a crime victim. If an employer is getting into the weeds on the validity of a self attestation, I guess I'm not really understanding where that scenario is going to come up in the discrimination context. I do understand in the leave context, which is not the issue on the table, where you may need to get further specifics on what the employee needs and what the status is for the purposes of leave. We aren't in that context right now, though. So I still am not sure I'm understanding the question as it aligns with the current statutory framework.

[Sen. Alison Clarkson (Chair)]: So, Randy, and then we have to wind up in three minutes. So, Randy.

[Sen. Randy Brock (Vice Chair)]: Let's say you're talking about working conditions and the employees says that I need to work remotely. I need to work at home as opposed coming into the office because I've been a victim of sexual harassment and stalking and so on, and I do not feel safe coming into the office. Now that would be something that would fall, I would think, within the confines of what we're talking about and it's simply the self attestation that the employee, for example, how does the employer know or have any idea whether or not the employees are telling the truth?

[Emily Adams (Assistant Attorney General, Civil Rights Unit)]: So that actually is not directly within the FIBA statute. Again, victim is a protected category. If we're talking, certainly knowledge of someone being in a protected category is one thing, but if we're talking about what they're requesting in terms of a flexible working arrangement or accommodations, those fall under different protections and statutes. Is a flexible working arrangement law that is potentially the parental and family leave act statute, which this definition has already been changing that does have intermittent leave in some circumstances. And then disability law has accommodations requirements in it, reasonable accommodations requirements. Those require proof that an employer has a disability in order to accommodate them. Nothing in simply adding this as a protected category.

[Sen. Alison Clarkson (Chair)]: It's already a protected category.

[Emily Adams (Assistant Attorney General, Civil Rights Unit)]: CECA would per se say that you then have to accommodate that employer. Again, it's about shall not, and I can pull up the statutory language, but it is

[Sen. Alison Clarkson (Chair)]: You know what, Emily? I think we're gonna have to return to this because we're due on the floor in six minutes. So we're actually going on the floor in like two minutes. Thank you so much for making yourself available. Okay. We'll have committee discussion about whether we and we'll be taking it up again probably next Thursday with the hope to vote it out. But I think if David still has additional questions, we will we'll we may ask you back in next Thursday morning. So we Well, thank you very much

[Emily Adams (Assistant Attorney General, Civil Rights Unit)]: for having me on short notice.

[Sen. Alison Clarkson (Chair)]: Well, we are so grateful to you for being available on short notice, and thank you, Todd. So with that, I'm gonna go off. We'll see you all tomorrow. And