Ninth Circuit Rules That a Temporary Impairment Can Qualify as a “Disability” Under the ADA

The U.S. Court of Appeals for the Ninth Circuit, the federal appellate court with jurisdiction over much of the western United States (including Washington, Oregon, California and Idaho), ruled last week that an employee’s temporary impairment can qualify as a disability under the Americans with Disabilities Act (“ADA”). The Ninth Circuit’s decision resolves an important question under federal disability law and could signal a significant change in how employers are required to address employees’ short-term medical limitations.

In Shields v. Credit One Bank N.A., plaintiff Shields was employed by Credit One Bank (“Bank”) as a human resources generalist. Shields underwent biopsy surgery. The biopsy revealed that Shields did not have cancer, but she had a number of post-surgery limitations (e.g., unable to use her right arm to lift, pull, push, type, write, tie her own shoes or use a hair dryer), and these limitations indisputably precluded Shields from performing the essential functions of her position. The Bank put Shields on a short-term leave of absence, but when she was not ready to return to work after two months the Bank terminated her employment. Shields’ lawsuit alleges the Bank violated the ADA by terminating her rather than offering her a reasonable accommodation, specifically, extending her leave of absence to allow her additional recuperation time. Continue Reading

Spring Cleaning for your Oregon Leave Law Policies

By Caroline Sundbaum and Laura Rosenbaum on April 25, 2022 Posted in BOLI, COVID-19, employee handbooks, employer policies, Oregon

As Oregon’s April 2022 snowstorm becomes a distant memory, it’s time for some spring cleaning of employer leave policies. There are two recent changes that may require updates to your employee handbook.

Oregon Paid Sick Leave—Expanded to Account for Evacuation Orders, Poor Air Quality, and Heat.

BOLI recently adopted, effective April 1, 2022, a rule that makes permanent a temporary rule allowing employees to use paid sick leave due to dangers posed by the weather. Under the permanent rule, employees (other than first responders) may use Oregon paid sick leave in the case of either:

A level 2 (“SET”) or 3 (“GO”) emergency evacuation order—for example, in the case of a wildfire—that applies to either (1) the employer’s place of business, or (2) the employee’s home address; or
An authorized determination that the air quality or heat index is at a level at which exposure would jeopardize the health of the employee.

California Court of Appeal Removes Another Arrow from The Quiver of Employers

By Bryan Hawkins and Robert Sarkisian on April 11, 2022 Posted in California, News, Updates

On March 23, 2022, in Estrada v. Royalty Carpet Mills, Inc., the California Court of Appeal for the Fourth District created a split in authority when they held that wage-and-hour lawsuits brought under California’s Private Attorneys General Act cannot be dismissed on manageability grounds. This decision directly contradicted the holding in Wesson v. Staples the Office Superstore, LLC^[1], which felt like a breath of fresh air for employers, if not for a brief moment.

Primer on Manageability in California

On September 9, 2021, the California Court of Appeal for the Second District analyzed the Private Attorneys General Act (“PAGA”), a popular tool used by employees when bringing lawsuits alleging wage and hour violations. The court addressed the requirements plaintiffs need to satisfy in order to successfully bring a PAGA action on behalf of all aggrieved employees. Under PAGA, an “aggrieved employee” is permitted to bring a representative action on behalf of all other “aggrieved employees” to recover civil penalties for alleged California Labor Code violations. In Wesson, the PAGA claim involved over 300 store managers who argued Staples had improperly classified them as exempt from overtime requirements under the executive exemption. Staples moved to strike the PAGA claim on the grounds that adjudicating the claims of these 300 store managers would necessarily involve individual “mini-trials,” and that each aggrieved employees’ individualized situation would vary too greatly, which effectively rendered the PAGA claim unmanageable. Continue Reading

NLRB GC Asks Board To Revisit Standard For Analyzing Employee Handbooks

By John Dudrey and Adam Belzberg on March 9, 2022 Posted in Biden Board, Cases, Labor, News, NLRB, Trump Board

Since August 2021, three of the five members of the National Labor Relations Board (“NLRB” or “Board”) have been appointed by Democratic presidents, including two members appointed by President Biden. Earlier this year, the Democratic majority announced in Stericyle, Inc., 371 NLRB No. 48 (Jan. 6, 2022), that it was requesting briefing on whether to overturn one of several employer-friendly decisions issued by the NLRB during the Trump administration: The Boeing Co., 365 NLRB No. 154 (Dec. 14, 2017). In Boeing, the Board adopted a new approach for assessing whether facially neutral employer policies (e.g., generally applicable employee conduct policies) unlawfully interfere with employees’ right to engage in “concerted activities for . . . mutual aid or protection” under Section 7 of the National Labor Relations Act (“NLRA”), even if they do not expressly mention such rights. 365 NLRB No. 154, slip op. at 23 (internal quotation marks and citation omitted).

In a brief filed earlier this week, NLRB General Counsel Jennifer Abruzzo officially joined the fray. Not surprisingly, the General Counsel formally asked the NLRB to overrule Boeing and return to a more employee-friendly standard of review. Below, we provide some background about Boeing and summarize the General Counsel’s position. Continue Reading

California Provides Employees with Another Bucket of COVID-19 Supplemental Paid Leave

By Bryan Hawkins and Robert Sarkisian on February 22, 2022 Posted in California, coronavirus, COVID-19, News

California Provides Employees with Another Bucket of COVID-19 Supplemental Paid Leave

On February 9, 2022, California Governor Gavin Newsom approved Senate Bill 114 (“SB 114”), which entitles most California employees to a new bucket of COVID-19 supplemental paid sick leave. The law will go into effect on February 19, 2022.

California’s prior law entitling workers to COVID-19 supplemental paid sick leave expired on September 30, 2021. Calls to provide additional leave were made during the recent surge of the “Omicron” variant during the winter of 2021. While that surge has seemingly receded in the last few weeks, the California legislature moved forward and passed SB 114 on February 7, 2022, and Governor Newsom signed it on February 9. Continue Reading

Oregon Health Authority Announces Sunset Date for Indoor Mask Requirements

By John Dudrey and Todd Hanchett on February 7, 2022 Posted in coronavirus, COVID-19, Oregon

On February 7, 2022, the Oregon Health Authority (“OHA”) announced that it would lift the general state-wide indoor mask requirement no later than March 31, 2022. Per the OHA, the mask requirement for schools will also lifted by March 31, in coordination with the Oregon Department of Education (“ODE”).

The OHA is basing its decision on what it anticipates will be a sharp decrease in hospitalization rates for COVID-19 patients by the end of March. For now, however, the OHA will maintain the indoor mask requirement as COVID-19 hospitalizations reach their peak and Oregon’s health care system continues to feel the strain of the ongoing pandemic.

Although the OHA’s update provides helpful information about the fate of the mask requirement, several questions remain unanswered. These include:

Whether the OHA will wait until March 31 to withdraw the indoor mask mandate, or will do so earlier;
Whether mask requirements will continue in effect in locations that present a higher risk of COVID-19 transmissions, for example, in nursing homes or in health care or transportation-related facilities;
Whether local governments like cities, counties and school districts will continue to require masks even after the OHA no longer requires them.

The OHA specifically noted that once the indoor mask requirement is lifted, employers and businesses may maintain their own mask requirements.

We will continue to monitor the situation and keep you apprised about what the law requires. In the meantime, please feel free to reach out to any of our L&E attorneys with questions.

COVID-19 Vaccine and Mask Mandates – Comparison of Select States

By Emily Atmore, John Dudrey, Matt Durham, Bryan Hawkins, Karin Jones and Karen O'Connor on February 2, 2022 Posted in California, COVID-19, Minnesota, Oregon, Utah, Washington

On January 13, 2022, the United States Supreme Court issued a stay of the Occupational Safety and Health Administration’s (“OSHA”) COVID vaccine-or-test rule for large employers. Although the OSHA rule is effectively off the table, there are still a host of COVID rules that employers must comply with.

Stoel Rives has created an interactive map designed to provide a high-level summary of the approximate breakdown of COVID rules that employers must comply with in the states in which we are located. Click here to view the map and overviews for these states.

California Supreme Court Provides Clarity on Which Standard to Use for Retaliation Cases

By Robert Sarkisian on February 2, 2022 Posted in California, Cases

On January 27, 2022, the California Supreme Court in Lawson v. PPG Architectural Finishes, Inc., No. S266001, 2022 WL 244731 (Cal. Jan. 27, 2022), addressed the issue of which standard courts must use when analyzing retaliation claims brought under California Labor Code section 1102.5.

In requesting that the California Supreme Court answer this question, the Ninth Circuit Court of Appeals recognized that California courts have taken a scattered approach in adjudicating 1102.5 retaliation claims. Most courts use the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (McDonnell-Douglas test), whereas others have taken more convoluted approaches. Nevertheless, the Ninth Circuit determined that the outcome of the plaintiff in Lawson’s appeal depended on which was the correct approach, so it was necessary that the California Supreme Court resolve this issue before the appeal could proceed.

Ultimately, the California Supreme Court held that moving forward, California courts must use the standard set forth in Labor Code section 1102.6 to adjudicate a section 1102.5 whistleblower claim, once again making it more difficult for employers to defend against employment claims brought by former employees.

In this article, we summarize the facts and holding of the Lawson decision and discuss the practical effect this decision has on employers in California. Continue Reading

2021 Brought More Regulations for California Employers

By Bryan Hawkins on January 14, 2022 Posted in California, employer policies

2021 was another important year for California employers. From decisions by the California Supreme Court regarding employees’ rights to premium pay for missed meal and rest breaks, to legislation expanding the scope of protected leave for California employees, to new laws dealing with the ongoing pandemic, 2021 had something to offer for everyone. This blog discusses some of the new laws and challenges to being an employer in the Golden State. Continue Reading

Supreme Court Blocks OSHA’s Vaccine-or-Test Mandate but Allows CMS Vaccination Mandate for Most Health Care Workers

By John Dudrey, Ryan Kunkel, Tim O'Connell and Jim Shore on January 13, 2022 Posted in coronavirus, COVID-19, OSHA

Today, the Supreme Court blocked the Biden Administration’s vaccine-or-test mandate for large employers, known as the Emergency Temporary Standard (“ETS”), which we wrote about here. The Court held that the federal agency that issued the ETS, the Occupational Safety and Health Administration (“OSHA”), has authority to regulate workplace safety issues, but not to regulate public health more broadly. A 6-3 majority of the Court ruled that the vaccine-or-test mandate ventured into the latter and thus exceeded OSHA’s authority. At the same time, the Court ruled that regulations applicable to recipients of Medicare and Medicaid funds – most health care providers – were within the agency’s authority, and could lawfully require vaccination of those providers’ employees.

The Court’s ruling does not put the final nail in the coffin for OSHA’s ETS, but it does increase the likelihood that it will one day be buried for good. For now, the Court’s ruling means that non-health care employers with 100 or more employees need not implement a vaccine-or-test policy that complies with the ETS. However, some states have implemented vaccine requirements for certain employees (for example, health care workers in Oregon and Washington), and private employers – of any size – may, of course, choose to adopt such a policy. But they are no longer required to do so by the federal government.

Recipients of Medicare and Medicaid funds must comply with the federal regulations requiring vaccination of employees, without a testing alternative (with some exceptions for employees with disabilities or religious beliefs that preclude vaccination). We recommend that any employer considering a mandatory vaccine policy consult with employment counsel.

At this moment, state governments – such as Oregon and Washington – have not finalized broad vaccine mandates for private employers other than the targeted requirements that had already been issued such as for health care workers. While the state agencies may still issue more far-reaching vaccination mandates, the Supreme Court’s decision today may take some wind out of those sails.

Finally, the Supreme Court’s decision raises questions about the Biden Administration’s requirement that federal contractors adopt a vaccine-or-test mandate similar to the ETS, which is still being litigated. Stay tuned for updates.