DOL Publishes Final Independent Contractor Rule to Take Effect in March

By John Dudrey, Adam Belzberg, Ryan Kunkel and Chris Wall on January 12, 2021 Posted in Department of Labor, FLSA, Updates

The U.S. Department of Labor (“DOL”) published a final rule addressing independent contractor status under the Fair Labor Standards Act (“FLSA”). Independent contractor status is a critical question under the FLSA because eligible employees are entitled to the law’s protections (for example, minimum wage and overtime for non-exempt employees) but independent contractors are not. Incorrectly classifying workers is a common cause of expensive class action lawsuits and can lead to payment of back wages and substantial penalties. The final rule seeks to clarify the test that courts use to determine a worker’s employment status, which should facilitate predictability for employers.

The final rule is scheduled to become effective on March 8, 2021 (60 days after its publication in the Federal Register). Here are the most critical aspects of the new rule:

Economic Realities Test Codified. The DOL has long used the multi-factor “economic realities” test to determine whether an individual is an employee or an independent contractor. Generally, the economic realities test considers whether the individual is dependent on a particular business or organization for work (and is therefore an employee) or instead is in business for themselves (and is therefore an independent contractor). The DOL has historically relied on the economic realities test as a matter of administrative practice; the new rule represents the first time that it has been formalized in a rule. Per the DOL, it chose to codify the economic realities test in a rule because courts and enforcement agencies have long applied it inconsistently, leading to confusion for employers trying to predict whether a worker is an employee or independent contractor under the FLSA. Continue Reading

Department of Labor Publishes Final Rule Regarding Tip Pools and Tip Credits

By John Dudrey and Karen O'Connor on December 28, 2020 Posted in Department of Labor, employer policies, FLSA, Updates

After a lengthy and contentious rulemaking process, the Department of Labor (“DOL”) published its final rule revising its tipped-employee regulations under the Fair Labor Standards Act (“FLSA”) last week. The new rules take effect 60 days from their publication in the Federal Register, which will occur shortly. Here is a summary of the new rules’ most critical provisions:

Tip Credit Provisions. Several provisions of the new rules address the FLSA’s tip credit provision, which allows employers to pay employees a base wage that is less than the federal minimum so long as the sum of employees’ cash wages and retained tips exceed the required threshold. For example, the rules state that employers that take the FLSA tip credit may not include back-of-the-house employees in their tip pools and address the common scenario in which an employee works in dual jobs (one tip-qualifying, the other non-tip-qualifying) for the same employer. Oregon and Washington do not allow a tip credit against employers’ minimum wage obligations, so these aspects of the new rules are of limited use for Oregon and Washington employers. Continue Reading

EEOC Publishes Guidance Regarding COVID-19 Vaccines

By John Dudrey, Caroline Sundbaum, Dexter Pearce and Brenda Baumgart on December 17, 2020 Posted in ADA, COVID-19, Gov't Agencies, Updates

*This article was originally published as a Legal Alert on December 17, 2020.

With the COVID-19 vaccine becoming available to some and just around the corner for others, the question on many employers’ (and employees’) minds is whether they can (or should) mandate employees be vaccinated as a condition of employment. The Equal Employment Opportunity Commission (“EEOC”) published important new guidance yesterday concerning an employer’s right to require employees to receive a COVID-19 vaccine once it becomes available. The new guidance is available on the EEOC’s website under the heading “Vaccinations.” While the guidance arguably changes little in the state of the law, it does provide some clarification on several key points:

Employers Can Require COVID-19 Vaccines in Most Instances. Although the EEOC stops just short of saying so explicitly, the strong implication from its guidance is that employers generally can require employees to receive a COVID-19 vaccine, though this is not an unfettered right. Here is what the EEOC has to say, which of course addresses potential disability and religious exceptions:

K.5. If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a disability? (12/16/20)

The [Americans with Disabilities Act (“ADA”)] allows an employer to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” However, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. 1630.2(r). . . .

. . . . Continue Reading

Oregon Employment Department Posts First Draft of Proposed Paid Family Medical Leave Rules

By John Dudrey and Karen O'Connor on December 9, 2020 Posted in Oregon

As we’ve blogged about previously here, here, and here, in 2019, the Oregon legislature passed a paid family and medical leave (“PFML”) law which provides Oregon employees with up to 12 weeks of paid leave for a covered purpose through a payroll tax; Oregon employers with at least 25 employees are covered by the new program. Employer contributions do not begin until 2022, and benefits are not available to employees until 2023. However, the Oregon Employment Department (“Department”) has begun drafting administrative rules to govern the program. The Department released its first set of draft rules on an “informal” basis late last week. The Department will conduct “formal” rulemaking next year.

The draft rules primarily address the definition of “wages” for purposes of determining both the employer and employee contribution to the PFML program. The draft rules address the following specific topics:

Dividends: dividends paid to corporate officers and shareholders are treated as wages to the extent they are considered compensation for services performed for the corporation.

Employee Incidental Expenses: meal and travel reimbursements are not considered wages. The draft rules caution, however, that employers should follow the Internal Revenue Service’s (“IRS”) rules regarding documentation of expenses in order to justify excluding these amounts from the wage calculation.

Oregon OSHA Issues Sample Materials for Required Employee Training and Releases Delayed Enforcement Memorandum

By John Dudrey, Karen O'Connor and Caroline Sundbaum on December 8, 2020 Posted in COVID-19, employer policies, Oregon, Updates

Oregon OSHA has just released a series of materials, including sample training materials, to help employers comply with OR-OSHA’s temporary workplace safety rules related to COVID-19. We previously discussed the OR-OSHA rules here and here. The new materials are summarized below.

Sample Training Materials

Employers must provide employees with COVID-19 information and training by December 21, 2020. For most employers, the training can be provided remotely (for example, by having employees review a PowerPoint). Exceptional-risk employers must conduct more detailed training, which must be “live” but not necessarily in-person (it can be conducted by video conference, for example).

OR-OSHA’s sample training materials cover the following topics:

The characteristics and methods of transmission of COVID-19;
The symptoms of COVID-19;
The ability of presymptomatic and asymptomatic COVID-19 persons to transmit the virus; and
Safe and healthy work practices and control measures, including but not limited to physical distancing, sanitation and disinfection practices.

Although the sample materials are helpful, there are still six topics that training must cover for which OR-OSHA has not provided sample materials: Continue Reading

The COVID-19 Vaccine Is Coming: Can Employers Require Employees to Get Vaccinated?

By John Dudrey, Dexter Pearce and Laura Rosenbaum on December 7, 2020 Posted in COVID-19, Oregon

With FDA approval of a COVID-19 vaccine possibly coming this week, employers are wondering whether they can require their employees to get vaccinated as a condition of employment. For many employers, the answer is yes, subject to a few exceptions.

As a general matter, employers are free to set the terms and conditions of employment, including requiring employees to be vaccinated against contagious illnesses. However, employers cannot require employees who qualify for medical or religious exemptions to get vaccinated as a condition of employment. The Americans with Disabilities Act requires employers to make reasonable accommodations to employees with disabilities. If an employee claims to have a disability that prevents vaccination, the employer typically should engage in the interactive process to determine whether a reasonable accommodation is possible or there is an undue hardship. In addition, employers should be aware that the Occupational Safety and Health Administration has stated with respect to other vaccines that “an employee who refuses vaccination because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death (such as serious reaction to the vaccine) may be protected under Section 11(c) of the Occupational Safety and Health Act of 1970 pertaining to whistle blower rights.” Put simply, if an employee objects to vaccination due to a medical condition or disability, the employer should address that objection individually with the employee.

In addition, Title VII of the Civil Rights Act requires that employers accommodate their employees’ religious beliefs, including beliefs about vaccines. The “religious belief”—defined to include non-religious beliefs about morality and ethics—must be sincerely held but is unlikely to include mere personal objections to vaccines. If an employer has reason to doubt the employee’s belief, it is advisable to consult counsel. The EEOC encourages employers to give employees the benefit of the doubt when a religious belief is asserted.

If an employee qualifies for a medical or religious exemption, the next step is to explore possible reasonable accommodations, such as continued use of face masks, remote working, or reassignment to a position with less customer or co-worker interaction.

Oregon Healthcare Employers

Somewhat counterintuitively, Oregon law prohibits healthcare employers and nursing homes from requiring that their employees get vaccinated. Due to a quirky, 30-year-old law, while these employers must make vaccinations available to their employees, they cannot make vaccinations a condition of employment, “unless such immunization is otherwise required by federal or state law, rule or regulation.” While we are not aware of any current federal vaccination requirements, it is possible that the arrival of a potential COVID-19 vaccine could shake things up.

What About COVID-19? Continue Reading

California Imposes More Stringent Requirements on Employers Relating to COVID-19

By Bryan Hawkins on December 2, 2020 Posted in California, coronavirus, COVID-19, employer policies

On November 20, 2020, the California Occupational Safety and Health Standard Board adopted temporary regulations regarding measures that employers must undertake in order to prevent the spread of COVID-19 in the workplace. On November 30, those regulations went into effect and are set to be in place for at least 180 days. California employers must now take immediate steps to ensure compliance with these new and in some ways extraordinary regulations.

Critically, these new regulations require most California employers to create a written COVID-19 Prevention Plan addressing the following categories: Continue Reading

Oregon Issues New COVID-19 Guidance for Employers, Including Updated Face Covering Requirements

By Laura Rosenbaum and Caroline Sundbaum on November 19, 2020 Posted in coronavirus, COVID-19, employer policies, Oregon

On the same day that Oregon’s statewide “freeze” went into effect, which we blogged about here, the Oregon Health Authority (OHA) issued new face covering guidance and new guidance for employers. That guidance is available here (face coverings) and here (employers).

Face Covering Guidance

Under the new face covering guidance, employees working in cubicles or similar settings must wear face coverings at all times except when eating or drinking, even if the individual workstations are more than six feet apart. While an employee in a “private individual workspace” need not wear a face covering, the new guidance limits “private individual workspace” to a space that is used by one individual at a time and is enclosed on all sides with floor-to-ceiling walls and a closed door (in other words, a traditional, private office). This is a departure from prior guidance, where “private individual workspace” was not so strictly defined.

Employer Guidance

The general employer guidance largely reiterates existing guidance, including that Oregon employers must comply with the new OR-OSHA rules, which we blogged about here. The guidance also includes the following: Continue Reading

Oregon Orders a Statewide “Freeze” Due to COVID-19 Surge, Closing Some Businesses, Restricting Bars and Restaurants to Takeout, and Further Limiting Social Gatherings

By Karen O'Connor and Caroline Sundbaum on November 13, 2020 Posted in coronavirus, COVID-19, News, Oregon, Updates

On November 13, 2020, after concluding that the previously proposed two-week “pause” did not go far enough, Governor Kate Brown announced a two-week statewide “freeze” aimed at slowing the rapid spread of COVID-19. The statewide freeze starts on Wednesday, November 18 and runs through December 2, 2020, meaning that the freeze will be in place during the Thanksgiving holiday. The freeze will be longer in some counties, including Multnomah County, where the freeze is expected to last four weeks.

The freeze imposes the following restrictions:

Businesses must allow employees to work from home to the greatest extent possible.
Bars and restaurants are limited to takeout only.
Gyms, indoor recreational and entertainment facilities, and sports courts and pools are closed.
Zoos, gardens, and outdoor entertainment facilities are closed.
Retail stores, grocery stores, and pharmacies are limited to 75% capacity and should encourage curbside pickup.
Indoor and outdoor gatherings are limited to no more than six people from two different households.
Limit faith-based organizations to no more than 25 people indoors or 50 people outdoors.
No indoor visitation at long-term care facilities.

Governor Brown has also joined Washington Governor Jay Inslee and California Governor Gavin Newsom in strongly urging residents to avoid unnecessary travel and asking those who move between states to quarantine for 14 days after arrival.

If you have any questions about Oregon’s response to the COVID-19 pandemic or how it affects your workplace, please contact us.

OR-OSHA Publishes Model Infection Control Policy Required by New COVID- 19 Rules

By John Dudrey, Lou Ferreira, Karen O'Connor and Willa Perlmutter on November 13, 2020 Posted in coronavirus, COVID-19, employer policies, Oregon, OSHA

On November 6, 2020, the Oregon Occupational Health and Safety Administration (“OR-OSHA”) published final temporary rules for workplace safety protections specific to COVID-19. Our alert about the new rules is available here.

Among other requirements, the new rules require employers to adopt a COVID-19 Infection Notification policy for notifying exposed and affected employees of possible exposure within 24 hours of learning that an infected individual was in the workplace. OR-OSHA yesterday published on its website a model Infection Notification policy, which you can review here. Employers must adopt a policy (whether their own or the OR-OSHA model) by Monday, November 16, 2020.

Please join us on November 19, 2020, at 11 a.m. for a webinar to discuss the new OR-OSHA rules. Registration information is available here.