Publications
Waivers as Catalysts for Rural Health Innovation
Healthcare innovation is powered by flexibility and collaboration. As an accountable care organization (ACO) responsible for healthcare cost and quality outcomes, OneCare Vermont benefits from special permissions—known as “waivers”—granted by the Centers for Medicare & Medicaid Services (CMS) and the Department of Vermont Health Access. These waivers ease certain federal requirements, such as those governing referrals and payments, when arrangements advance value-based care goals.
Far beyond regulatory relief, waivers serve as strategic enablers of innovation. They allow providers to work together more effectively, reduce duplication, and deliver coordinated, patient-centered care. OneCare Vermont pairs these waivers with targeted funding to launch pilots that address critical needs across the state–helping to avoid unnecessary emergency department visits and hospital readmissions, expand access to care including mental health services, facilitate timely hospital discharges, and improve health outcomes for chronic conditions such as high blood pressure and diabetes.
This article highlights some of the value-based innovations OneCare facilitated by using regulatory flexibility and funding to enhance Vermont’s care delivery model.
Reducing Emergency Department Utilization and Hospital Readmissions
Chronic wounds, such as diabetic foot ulcers, pressure ulcers, and venous stasis ulcers, are increasingly recognized as leading causes of frequent hospitalization, prolonged hospital stays, and emergency room visits. To improve the approach to wound care treatment, the Coordinated Wound Care Nurse Program Collaborative was developed in partnership with Addison County Home Health and Hospice, Porter Medical Center, and Helen Porter Rehabilitation and Nursing. This initiative, made possible by waivers, enables specialized care to patients who often bounce back and forth between acute care locations and long-term home settings in a pattern that is largely avoidable.
The funding from OneCare for this initiative supported care coordination and non-reimbursable services, including the deployment of a wound-certified clinician to the patient, rather than the patient’s setting. This specialist provides continuity of care across settings, improving outcomes, and reducing costly complications such as emergency department visits and hospital readmissions. The role of the wound care nurse is critical in overseeing wound healing, coordinating care between multidisciplinary teams, and ensuring that patients receive timely interventions to prevent unnecessary transitions to higher levels of care. In addition to this direct patient care role, the wound care nurse provides education to nursing homes and hospital staff.
The program has demonstrated significant impact in reducing hospital readmissions, enhancing wound healing rates, and improving the overall quality of care for patients. In 2024, the wound care nurse made hospital visits and provided guidance on wounds for 44 unique patients. Of those, seven patients were readmitted for additional wound care, resulting in a 16% readmission rate. Data from January 2025 through August 2025 showed that 38 unique patients were provided wound care guidance, and none of those patients returned to the hospital from the long-term care facility for wound care, demonstrating a significant improvement in readmission rate and an estimated cost savings of $325,500 over the course of the program from the previous year. And importantly, patients were able to stay in their home environment with family and friends while receiving continuity of care.
Another innovative program facilitated using waivers and funding is the Mobile Integrated Health (MIH) program launched by Brattleboro Memorial Hospital (BMH) in partnership with Rescue, Inc., a local EMS program. Supported by a OneCare waiver and special funding in 2024 and 2025, the program delivers in-home care to patients with Chronic Obstructive Pulmonary Disease (COPD) and Congestive Heart Failure (CHF) – two populations at high risk for emergency department (ED) visits and hospital readmissions. Through personalized action plans and in-home care, the program ensures safe transitions from hospital to home, reduces unnecessary visits, and improves health outcomes.
When Gus was discharged from the hospital, he was met by an EMT from Rescue Inc. on the same day as part of the MIH program. The EMT spent time with Gus and explained the MIH Program in detail. “It’s an amazing program,” said Gus. “They are very well trained, polite, courteous, and non-judgmental. They set up a program for me where they come to my house automatically every three months. But if I have a problem between visits, I have a special number to call, and they will come to see me that day. I called once when I was feeling sick, and they came within two hours. They spoke directly with my PCP and were able to confirm the medications I needed to start taking.” This proactive approach prevented confusion and stabilized Gus’ condition, avoiding an unnecessary trip back to the emergency department.
The MIH program has produced measurable reductions in hospital readmissions and ED visits, yielding significant cost savings. As of 11/30/2025, 74 patients with either COPD or CHF have benefited from this program.
Expanding Access to Care, Including Mental Health Services
In rural Vermont, it is well known that access to psychiatric care is lacking, particularly for children. For mental health crises, families often utilize the emergency department to meet their needs. With the assistance of OneCare’s waiver flexibilities and funding, a Chittenden County pediatric practice has been able to integrate a consulting psychiatrist into their practice for up to 25 hours per month for psychiatric care consultation. This additional resource allows for greater collaboration amongst providers, reduces costs of emergency department visits, and provides faster access to psychiatric services for children. As a result of this program, wait times for mental health services have been reduced from six months to one month or less. Additionally, pediatricians can receive consultation to provide more proactive support for children presenting with complex psychiatric needs.
Responding to increased wait times and access issues in Vermont emergency departments (EDs) due, in part, to the significant increase in patients experiencing mental health crises visiting local EDs, hospitals and policy makers were looking for creative solutions. “As the pandemic began to ease, we often had open beds, and patients in EDs who needed them, but had no way to get here,” says Elizabeth Wohl, Chief Legal Officer at the Brattleboro Retreat. The Brattleboro Retreat, whose mission is to provide comprehensive mental health services, stepped up to provide an innovative solution by leveraging OneCare’s waiver flexibility. The Brattleboro Retreat joined forces with Rescue, Inc, where a capacity fee is provided to make available a dedicated ambulance and a specially trained crew to transport patients seeking inpatient psychiatric care from emergency departments to the Retreat. Access to this transportation shortened ED wait-times and improved access to care at the correct setting. This waiver facilitated personalized treatment in a supportive environment where healing begins and hope is restored, supporting patients in their journey to recovery. In 2024, a total of 321 completed transports to the Brattleboro Retreat were made.
Facilitating Hospital Discharge
One of the primary barriers to safe and timely discharge of patients from the acute hospital setting is the inability to obtain adaptive equipment and mobility assistance devices for patients that are otherwise medically ready to leave the hospital. There are many reasons for these delays which could include lack of insurance coverage as well as procurement issues. OneCare was able to provide waiver support and funding to the University of Vermont Medical Center Acute Rehabilitation Therapies Department in the amount of $36,500 to help provide the purchase of adaptive equipment and mobility devices that facilitate safe and functional independence to patients in their home. As of 9/5/2025, 38 patients have received equipment, amounting to $16,180 in expenditures, to facilitate their discharge and to ensure their safety. Examples include grabbers, shower chairs, dressing sticks, commodes, and tub transfer benches. Assuming a hospital day, estimated to cost approximately $3,000, was saved by facilitating timely discharge for these patients, the program provides an enormous opportunity in healthcare cost savings.
Another highly successful waiver granted by the Centers for Medicare and Medicaid Services (CMS) available for OneCare’s use is the 3-Day Skilled Nursing Facility (SNF) Rule waiver. This waiver allows providers to bypass the traditional Medicare requirement that a patient must have a three-day hospital stay before being admitted to a SNF for a subacute or rehabilitation stay. This flexibility means patients can transition more quickly to the appropriate level of care—improving outcomes and freeing up hospital capacity for those who truly need it. In 2024, 299 patients benefited from the waiver. Of these, 126 patients were admitted directly from the emergency department to a SNF, bypassing the need for a three-day hospital stay. This direct transfer model not only improved patient experience but also generated significant cost savings—approximately $3,000 per patient per day and has saved conservatively at least $2 million in hospital expenses in 2024. Between January and September 2025, 228 beneficiaries utilized the waiver, with 80—approximately 35%, originating from observation status. Most diagnoses were linked to non-surgical orthopedic admissions, including fractures, musculoskeletal conditions, falls, and rehabilitation needs.
“SNFs provide personalized and attentive care, allowing patients to recover in a potentially more comfortable and less intensive environment than the hospital setting,” remarks Dr. Carrie Weigand, OneCare’s Chief Medical Officer. “Early and seamless transfer to a skilled nursing facility allows for timely rehabilitation and recovery, continuous and coordinated treatment, and potentially reduces complications while improving overall health outcomes and patient experience.”
Improving Health Outcomes for Chronic Conditions
At the University of Vermont Health Care Management program, one area of focus is on controlling high blood pressure. Through an inter-disciplinary team that includes RN care managers, health and wellness coaches, primary care providers and pharmacists, patient lists are reviewed for outreach, and a patient-centered plan is created for those with diagnosed and documented uncontrolled hypertension.
To support their work, OneCare provided waiver support and funding to purchase validated blood pressure cuffs to those who could benefit clinically from using the equipment. One primary care practice indicated, “We have even had a couple of patients whose hypertensive medication regimen was adjusted without having to come in for visits to the office. They provide us with 12-14 readings over two weeks, and we average them to see if they are above/at/below their blood pressure goal. This process has enabled providers to safely change blood pressure medications with home blood pressure readings and order follow-up labs. Being able to give patients’ blood pressure cuffs to take home with them seems to help motivate patients and provide more education surrounding their blood pressure. It is fun to see patients reach their goals.” One RN care manager continues to work with a patient with hypertension who was provided with equipment and trained to use it. She has successfully taken her medications to control high blood pressure, provided readings to her primary care provider and was recently told that she could go down to checking her blood pressure and reporting it to a schedule of once/month. The patient reports that she feels she is “graduating” and is feeling less apprehensive about potential complications from uncontrolled high blood pressure.
Separately, Thomas Chittenden Health Center focused on improving diabetes control by facilitating access to continuous glucose monitors (CGM) for those who do not meet qualifications for insurance coverage (most require patients to be on once daily insulin injections). Access to the CGMs was made possible through OneCare’s waiver and incentive funding and has been critical to the success of this program. The targeted population of patients with type 2 diabetes, on one or no medication, worked closely with a registered dietitian/certified diabetes care and education specialist over 12 weeks in three one-on-one appointments. They were able to clearly see the effects of dietary and activity choices on their glucose control, make desired changes, set a personal SMART goal and see the outcome in a post HbA1c reading (HbA1c is a measure of glucose control with a lower number representing better control). Thomas Chittenden saw improvements in overall diabetes control in their population and as of August 31, 2025, those completing the three-month program had an average reduction of HbA1c from 7.1% to 6.4%. A secondary finding was weight loss for most patients. All patients expressed how useful a tool, like CGM, was in helping make informed decisions about their diabetes.
One patient remarked, “I love having this information because it is not what I expected. I would wear one of these forever if I could.”
With the support of OneCare’s waiver and incentive funding, The University of Vermont Medical Center was able to provide Medical Nutrition Therapy (MNT) for a broader range of medical conditions beyond traditional diabetes and chronic kidney disease, the only approved indications covered by CMS. The waiver has extended nutrition therapy to individuals managing chronic conditions such as cardiovascular disease, hypertension, gastrointestinal disorders, cancer treatment and recovery, obesity, metabolic syndrome amongst other nutrition-related health concerns. This allowed delivery of more comprehensive, evidence-based care and ensured more patients could benefit from therapeutic nutrition services when needed. Nutrition plays a critical role in nearly every chronic condition, yet many patients do not receive support until their illness is well advanced. Use of OneCare’s waiver allowed clinicians to refer patients for MNT at the earliest sign of risk. Registered dietitians provided individualized education that helped patients understand their condition, make informed food choices, develop realistic and culturally appropriate eating plans, and build confidence in managing their health. This patient-centered approach supported sustainable behavior change and long-lasting improvements in well-being. Since the waiver’s implementation in 2023, outpatient dietitians have provided care to 1,330 Medicare patients who may not have otherwise been able to access MNT to help improve their health.
Through these initiatives, OneCare demonstrates how waiver-driven flexibility can spark innovative solutions that improve quality, lower costs, and strengthen health equity for rural and underserved communities. By responsibly and transparently leveraging fraud and abuse waivers and benefit enhancement waivers, OneCare demonstrates how care enhancements can be accelerated within an accountable care framework while maintaining compliance and accountability.
Jess Phelps Publishes Second Article, Defining the Role of Agriculture in Agricultural Conservation Easements, in Ecology Law Quarterly
Jess Phelps of Dinse’s Real Estate and Environmental practice groups recently published a second article, Defining the Role of Agriculture in Agricultural Conservation Easements, in Ecology Law Quarterly, the environmental law review published by the University of California- Berkeley. This article builds upon his earlier article, Defining the Role of Conservation in Agricultural Conservation Easements, recent winner of the American Agricultural Law Association’s 2017 professional scholarship award, also published by ELQ. This article specifically discusses the unique challenges that the tax code presents for securing working lands through conservation easements (which require careful balancing of the conservation and agricultural characteristics of these properties). This article is available for download, here.
Audio of discussion regarding OCR Proposed Title IX Regulations Available for Download
On November 16, 2018, the U.S. Department of Education Office for Civil Rights’ (“OCR”) posted on its web site proposed Title IX regulations. The proposed regulations are available here: https://www2.ed.gov/about/offices/list/ocr/docs/title-ix-nprm.pdf. The proposed regulations, if adopted as proposed, would include many potential changes in how OCR will enforce Title IX, including changes to the definition of sexual harassment, the scope of institutional obligations to address sexual harassment, how institutions should respond to sexual harassment, and dramatically different procedural requirements for Title IX-related investigations and adjudications.
On November 19, 2018, Jeffrey J. Nolan, Chair of Dinse’s Education Practice Group, presented a webinar regarding the proposed regulations. The discussion included:
- A brief summary of the major differences between OCR’s currently-applicable guidance and regulatory approach and the approach outlined in the proposed regulations;Significant differences between the proposed regulations and the draft regulations that were “leaked” in August, 2018;
- Very significant substantive and procedural changes that colleges and universities would have to consider and/or make if the regulations are finalized in the form proposed;
- Preliminary thoughts on how colleges and universities could effectively navigate the new proposed regulatory landscape; and
- Next steps in the regulatory notice and comment process (and how members of the public and colleges and universities can participate in that process).
A recording of that webinar is available here: Part 1; Part 2; Part 3. A .pdf of the PowerPoint referred to during the webinar is available here.
Please contact Jeff Nolan at jnolan@dinse.com if you have any follow-up questions. Thank you.
Don’t forget immigration issues when making employment changes
Immigration
by Leigh Cole
Employment-based immigration status generally is specific to the employer and the position. When employees are terminated or promoted or their job description changes, you should expect their employment-based immigration status to be affected. Tensions can run high when an employee’s personal and family immigration status is put at risk, regardless of whether the change is a termination, a voluntary departure, or even a promotion. Employers should identify employees’ immigration status as an issue with an employment change as early as possible.
Record immigration status in personnel files
When an employment relationship isn’t going well or is in transition, it’s important to identify immigration issues as early as possible as you consider how to proceed. Poor performance, termination, job changes, layoffs, and even promotions can be particularly stressful for employees whose permission to live and work in the United States is based on their employment. Also, it’s possible that an employee’s spouse could lose his right to work in the United States if the employee’s job changes or ends. Employers are not required to base employment decisions on immigration considerations or continue employment because of immigration sponsorship. Even so, the dynamic should be brought into the discussion at the outset so the employer isn’t caught off guard by the employee’s questions and concerns regarding job changes and his immigration status.
It’s not unusual for a manager or supervisor who is dealing with changes or HR issues not to know or to forget that an employee’s immigration status is sponsored by the employer. It’s easy to lose track of the immigration element if there’s no mention of it in an employee’s personnel file. I-9s and other immigration records, such as public access files for H-1B cases, should be kept entirely separate from personnel files so they can be readily shared in accordance with lawful requests from government officials (for I-9s) or inquiring members of the public (for public access files). Personnel files should contain copies of the employer’s immigration applications for the employee, including I-129 petitions for nonimmigrant status, Program Electronic Review Management (PERM) applications for labor certification, I-140 petitions for immigrant status (green card), and TN letters of support. If adding copies of immigration applications to personnel files isn’t feasible or practical considering your record-keeping practices, a reasonable alternative is to at least mention in an employee’s personnel file that he has an employment-based immigration case.
Best practice: Keep files for I-9s and public access files for H-1B cases separate from personnel files. Place copies of immigration applications in the employee’s personnel file for future reference.
Ensure counsel is aware of immigration angle
Be sure to bring the employee’s immigration status to the attention of employment counsel advising you on the situation. Employment lawyers aren’t always given the full personnel file for review, and they won’t necessarily know that you sponsored the employee for immigration status. Even if the same law firm handles your immigration and employment matters, employment counsel initially will focus on the facts you share with them and may not identify immigration status as a key issue for preliminary analysis unless you share it. Employees may react differently to employment actions if they believe their immigration status may be in jeopardy. Employment and immigration are related but separate areas, so employment counsel may need to consult with immigration attorneys about the immigration consequences of an employment action.
Best practice: When consulting with employment counsel about job changes, tell your attorneys if an affected employee has employer-sponsored immigration status at the outset.
Consider whether the job change is ‘material’
For all employment-based immigration categories, a material change in employment will likely require an amendment to the employee’s immigration approval. That general principle applies to all employment-based nonimmigrant categories, including E-1 treaty investor, E-2 treaty trader, E-3 specialty occupation worker from Australia, L-1 multinational transferee, O-1 extraordinary ability, P-1 performer/athlete, TN professional under the North American Free Trade Agreement (NAFTA), and others. It also can apply to permanent residency cases, depending on the facts and the status of the application process. Any job change for sponsored employees must be considered in this light.
Under U.S. Citizenship and Immigration Services (USCIS) guidance issued in May 2015 in light of the Simeio decision, employers are required to file an amended H-1B petition if there is a “material change” in employment (see “DHS clarifies ‘material change’ in work location for H-1B employees” on pg. 3 of our June 2015 newsletter). Filing an H-1B amendment triggers a new prevailing wage analysis (and potentially a higher prevailing wage), a new worksite posting regarding the H-1B sponsorship, and the expense and administrative burden of preparing and filing a new petition. An amended H-1B petition must be filed before the employee moves to a different work location outside the area of intended employment covered by the existing H-1B approval. Filing an H-1B amendment after the location of employment changes is not sufficient. So, to maintain H-1B compliance, employers must be vigilant about even seemingly minor changes in the location of employment.
If there is a permanent residency case in process, ultimate approval of the case may be jeopardized if the position changes in material ways and no longer matches the position described in the labor certification or I-140 immigrant petition. For successful approval, the qualifying offer of employment must continue until the employee’s I-485 adjustment application is approved (after labor certification approval, if required, and I-140 approval) or until the I-485 adjustment application has been pending at USCIS for at least six months. The timing of termination or a job change has direct consequences on a pending permanent residency case and should be carefully considered when taking employment actions. Losing the benefit of a permanent residency case in process can have drastic effects for both the employee and the employer, which will have devoted significant time and resources to a case that is no longer viable.
Best practice: Consider potential immigration consequences of any job change for a sponsored employee, and determine whether it’s a material change that will have immigration consequences.
Early termination of H-1B employment has consequences
When H-1B employment ends before H-1B approval expires, the employee’s H-1B status and the H-4 dependent status of her derivative family members are terminated. The employer’s duty to pay the wages set forth in the approved H-1B petition continues until H-1B approval expires or the employer notifies USCIS of the early termination and withdraws the labor condition application approved by the U.S. Department of Labor (DOL). Employers have been held liable for back pay to former H-1B workers for periods beginning with early termination and lasting until the mandated notifications are provided to USCIS and the DOL. Also, if an employer terminates an H-1B employee before her H-1B approval expires, it must offer to pay the costs of return transportation to the worker’s home country and pay the costs if she actually returns to her home country.
Best practice: Identify early H-1B terminations as soon as possible so your required compliance steps can be completed on a timely basis.
USCIS adjudication times for employment authorization
As a general rule, once an employment authorization document (EAD) expires, the person can’t work until a new EAD from USCIS arrives in the mail. On December 31, 2015, USCIS proposed eliminating the requirement that it issue an interim EAD if it takes more than 90 days to approve the I-765 application for employment authorization. For years, employers and employees have been able to count on receiving EADs within 90 days or, if not, obtaining an interim EAD promptly from a local USCIS office.
USCIS hasn’t issued the final rule yet, but employers should expect it soon. I-765 applications for employment authorization should now be filed 120, not 90, days in advance. The change is most relevant to employees who are permanent residency applicants with pending I-485 applications for adjustment of status and beneficiaries of Deferred Action for Childhood Arrivals (DACA). If you have employees who renew their EADs each year, please share this information with them so they will know to apply earlier going forward.
The author can be reached at lcole@dinse.com or 802-859-7035.
Supervisors, beware: VT court allows minefield of claims to proceed
Wage and Hour Law
Many employers struggle with determining whether certain activities constitute hours worked for which employees should be paid. If an employer gets it wrong, it can be a costly mistake. Therefore, employers must pay careful attention to the issue. Luckily, the U.S. Court of Appeals for the 2nd Circuit (whose rulings apply to all Vermont employers) recently issued a decision that provides helpful guidance in answering the perpetual “to pay or not to pay” question.
Facts
Assistant urban park rangers (AUPRs) are employed by New York City to perform a range of public services in its parks, including providing directions and other information to individuals using the parks; helping individuals involved in accidents or victims of unlawful activity; investigating accidents and illegal activity; implementing crowd control procedures at special events; providing safety and educational information to the public; and issuing summonses to and making arrests of persons suspected of unlawful conduct. AUPRs are required to wear uniforms and carry specific equipment. The city requires them to wear an “olive drab” jacket and matching pants, a “Smokey Bear”-style hat, and various park department insignia. As for their equipment, AUPRs wear a bulletproof vest and a utility belt equipped with handcuffs, gloves, a radio, a flashlight, a baton, a can of mace, a summons book, and a tape recorder.
A group of AUPRs brought a collective action against the city arguing they were inadequately compensated under the Fair Labor Standards Act (FLSA). In particular, the AUPRs argued that the city improperly failed to pay them for compensable work activities performed immediately before and after their regularly scheduled shifts—namely, the time they spent putting on and taking off their uniforms and equipment (otherwise known as “donning” and “doffing”). The AUPRs estimated that the time needed to don and doff their uniforms each day ranged from approximately five to 30 minutes.
The city asked the court to dismiss the AUPRs’ FLSA claim, maintaining, in part, that the time they spent changing into and out of their uniforms was not integral and indispensable to their principal activities during their shifts and was therefore noncompensable. The court agreed with the city, concluded that the AUPRs’ donning and doffing of uniforms were not compensable activities, and ordered the case closed. The AUPRs appealed the court’s decision to the 2nd Circuit.
Legal framework The FLSA regulates the manner in which employees must be paid and requires payment of wages for the principal activities that employees are employed to perform, including tasks that are an integral and indispensable part of their principal activities, even if those tasks are completed outside regularly scheduled shifts. Conversely, the FLSA does not require payment for time spent on activities that are preliminary or postliminary to employees’ principal activities.
For an activity to be integral, it must be intrinsically connected to a principal activity that employees were hired to perform. An activity is indispensable if it is necessary to the performance of a principal activity. Combining the two requirements, an activity is integral and indispensable—and therefore compensable—if it is an intrinsic element of employees’ principal activities and one the employee cannot do away with if he is to perform his job.
2nd Circuit’s decision
On appeal, the 2nd Circuit began its analysis of the AUPRs’ claim by noting that a robust, fact-dependent inquiry is required before reaching a conclusion on whether performing a specific activity qualifies as an integral and indispensable job duty or whether the activity is more appropriately described as a noncompensable preliminary or postliminary task. The court explained that several factors are evaluated in determining whether an activity is an integral and indispensable part of employees’ principal activities, including:
- Is the activity undertaken for the employer’s benefit?
- Does the employer require the employees to perform the activity?
- Are the employees required to perform the activity at the workplace?
- Can the activity be characterized as a legitimate effort to protect against heightened workplace dangers that transcend ordinary risks?
The court explained that affirmative responses to those questions indicate that, more likely than not, the activity will be viewed as integral and indispensable to employees’ work duties and therefore will be deemed work time for which they should be compensated.
The court then carefully evaluated each of the relevant factors in light of the facts pertinent to the donning and doffing of the AUPRs’ uniforms and equipment. In doing so, the court noted that the AUPRs wear the uniforms for the city’s benefit and lack any choice in the matter. Indeed, the city prescribed the components of the uniform in detail, and the AUPRs could be disciplined for noncompliance. The court also observed that the city required the AUPRs to don and doff their uniforms at the workplace rather than allowing them to report to work already dressed.
Even more significant, the court noted that the uniform seemed vital to the primary goal of the AUPRs’ work. The court elaborated by stating that the AUPRs’ utility belts held items used to perform their essential law enforcement duties, such as a summons book, a baton, mace, and handcuffs. Likewise, the court remarked that the AUPRs’ flashlights and radios could provide crucial help in tracking suspects and coordinating with other municipal employees. The 2nd Circuit classified the utility belt equipment as tools of the AUPRs’ trade, drawing an analogy to a butcher’s knife, a K-9 officer’s dog, and a radiologic technician’s X-ray machine.
The court also focused on the AUPRs’ bulletproof vests, stating that although they closely resemble other necessary protective equipment such as helmets, safety glasses, and metal mesh, the vests truly function solely to protect against risks unique to law enforcement (i.e., sustaining gunfire). Therefore, the act of putting on and taking off the vests was clearly collateral to the AUPRs’ principal activities.
Finally, the court observed that the professional clothing required by the city also appeared to be essential to the AUPRs’ work. The uniforms serve to identify AUPRs to the public, an objective that is fundamentally intertwined with the purpose of the AUPRs’ employment. The court stated that the clothing, “with its recognizable color scheme and insignias, not only attracts citizens in need of assistance but also establishes an AUPR’s authority to investigate violations, issue summonses, make arrests, and otherwise intervene in emergency situations.” The court focused on the fact that the AUPRs’ uniforms served as a visible signal of authority that effectuated their efforts to instruct the public and enforce park rules.
After considering the pertinent facts, the 2nd Circuit ultimately concluded that the donning and doffing of uniforms and equipment constituted activities that were integral and indispensable to the principal job functions of the AUPRs. The court noted that the uniforms and equipment were essentially tools of the trade for the AUPRs to use in the performance of their workrelated tasks. Thus, the 2nd Circuit threw out the opinion of the lower court and sent the case back for further proceedings.
Significance for Vermont employers
While each situation depends on the unique set of facts presented, this case serves as a useful guide for employers that have employees who spend time putting on or taking off uniforms or protective equipment before or after their scheduled shifts. The key for employers is closely and carefully examining the uniform or gear at issue, employees’ specific principal activities, and the relationship between them.
Amy McLaughlin can be reached at amclaughlin@dinse.com or 802-859-7031.
Nolan Book Chapter Available for Download
In August, 2015, Thomson Reuters/Aspatore published Emerging Issues in College and University Campus Security. Jeff Nolan of Dinse’s Higher Education Practice Group wrote a chapter of the book, titled: “Addressing Intimate Partner Violence and Stalking on Campus: Going Beyond Legal Compliance to Enhance Campus Safety.” The 50-page chapter outlines the legal obligations of colleges and universities to address dating violence, domestic violence, sexual assault and stalking given the VAWA amendments to the Clery Act, then explains how institutions can go beyond compliance to enhance safety by engaging their campus threat assessment teams where appropriate to assess and manage related threats. Click here to view or download this chapter, free of charge.