Oregon OSHA Announces Plans to Sunset Portions of Its COVID-19 Safety Rules Once Vaccination Target Is Reached

Late last week, Governor Kate Brown announced that the State of Oregon would largely remove its mask and social-distancing requirements once 70 percent of adult Oregonians have received at least one dose of a COVID-19 vaccine.  Following that announcement, the Oregon Occupational Health and Safety Administration (“OR-OSHA”) published its plans to repeal at least some aspects of its COVID-19 workplace safety rules once the 70 percent target is reached.

The biggest takeaway for employers is that OR-OSHA intends to repeal its requirements related to face coverings and physical distancing.  If OR-OSHA follows through with that intention, employers will no longer be required to mandate face coverings or enforce social distancing for non-vaccinated employees or customers.  Continue Reading

Headline: EEOC Releases Updated COVID-19 Vaccine Guidance

Just before we headed off for the holiday weekend, the U.S. Equal Employment Opportunity Commission (“EEOC”) released updated guidance related to the COVID-19 vaccine.  The guidance largely tracks earlier guidance and practices that many employers had already adopted.  Here are the highlights:

  • The EEOC explicitly confirmed that federal anti-discrimination laws “do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-1,” subject to the reasonable accommodation obligations that apply for religion and disability under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (“ADA”), respectively.
  • The EEOC clarified that while asking employees to present proof that they are fully vaccinated is not a “medical examination” under the ADA, the information and documentation that employees provide is confidential medical information that must be stored separately from the employee’s personnel file and accessed only by those with a business need to know.
  • The EEOC confirmed that employers may offer incentives to employees to encourage them to get vaccinated. If the employer itself provides the vaccine (as opposed to relying on third-party health care providers whom employees select on their own), the incentive may not be “so substantial as to be coercive.”  The guidance does not define how “substantial” the incentive has to be to cross the line into prohibited coercion.

The guidance is available on the EEOC’s website (scroll down to “COVID-19 Vaccinations: EEO Overview”).

If you have questions about the EEOC’s guidance, or any other topic related to COVID-19 workplace issues, please contact one of our attorneys.

Oregon Legislature Further Limits Employee Non-Competition Agreements, Including Imposing a 12-Month Limit on Duration

Over the last several years, the Oregon Legislature has whittled away employers’ ability to enforce employee non-competition agreements (see our posts from 2007, 2015). Senate Bill 169, which Governor Brown signed into law on May 21, 2021, further limits an employer’s ability to impose non-competition obligations on employees. Effective starting January 1, 2022, the statute will require:

  • A maximum 12-month duration for agreements entered on or after January 1, 2022. Current Oregon law provides that non-competition agreements could be enforced for up to 18 months post-termination. Existing employee non-competes are not affected by the shortened restriction period.
  • The employee must receive an annual gross salary at time of termination of at least $100,533, adjusted annually for inflation.

Continue Reading

No Mask, No Problem – Washington Department of Labor & Industries Issues New Guidance for Fully Vaccinated Workers

On May 21, 2021, the Washington Department of Labor & Industries (“L&I”) published new guidance regarding fully vaccinated workers.  The new guidance will help employers adjust masking policies to meet the new Centers for Disease Control and Prevention (“CDC”) guidelines adopted by Governor Jay Inslee.

Under the new guidance, most Washington employers need not require masks or social distancing for fully vaccinated employees.  However, employers must confirm workers are fully vaccinated before ending mask and social distancing requirements for those employees.  Unvaccinated employees—or employees whose vaccination status is unknown—must continue wearing masks and social distancing. Continue Reading

Oregon Agencies Release New COVID-19 Guidance for Fully Vaccinated Individuals

On May 18, 2021, the Oregon Health Authority (“OHA”) published new COVID-19 guidance: “Interim Guidance for Fully Vaccinated Individuals” and “Statewide Reopening Guidance – Masks, Face Coverings, Face Shields.”  Today, the Oregon Occupational Safety and Health Administration (“OR-OSHA”) issued guidance for the workplace.  The new guidance from the agencies follows the Centers for Disease Control and Prevention’s (“CDC”) announcement last week that fully vaccinated individuals generally do not need to wear masks or socially distance.

Under the new OR-OSHA guidance, Oregon employers need not require masks or physical distancing for fully vaccinated employees. Employees who are not fully vaccinated (regardless of the reason) must continue to comply with face-covering and physical distancing requirements under OR-OSHA’s COVID 19 rules.

The new OHA guidance is identical for businesses: Oregon businesses need not require masks or physical distancing for fully vaccinated visitors or customers.  There are important limitations imposed on employers and businesses, however: businesses or employers who want to lift the face covering and physical distancing requirements must confirm vaccination status.  We have summarized the new guidance below. Continue Reading

CDC Issues New Mask and Social Distancing Guidance for Fully Vaccinated Individuals

Hot off the proverbial presses: The Centers for Disease Control and Prevention (“CDC”) announced today that fully vaccinated individuals can resume normal life activities without wearing masks or socially distancing.  The CDC’s guidance is available here.  Although it is certainly good news, the CDC’s guidance comes with several cautionary notes:

  • An individual is only “fully vaccinated” when two weeks have passed from either their second vaccine dose (if they received the Pfizer or Moderna vaccine) or their first vaccine dose (if they received the Johnson & Johnson vaccine). Until such time, individuals should continue to wear masks and socially distance from others.
  • Many state and local government agencies continue to impose mask and social distancing requirements. (See, for example, our write-up of Oregon OSHA’s final infection-control rules here and our write-up of mask requirements in multiple states here.)  The CDC does not have the authority to overrule these state and local requirements, which means they continue in effect.  It remains to be seen whether governments will revise their requirements in light of the CDC’s new guidance.

If you have any questions about the CDC’s guidance or any other questions about safe employment practices during the pandemic, please do not hesitate to reach out to any of our labor and employment attorneys.  We are here to help.

Minimum Wage Increase and Updated Workplace Posters

It’s that time of year to prepare for minimum wage increases and update workplace posters.  Beginning July 1, minimum wage rates throughout Oregon increase, to $14.00 for Portland Metro, $12.00 for Nonurban Counties, and $12.75 as Standard. (See here for descriptions of the areas in each category.)  BOLI’s 2021-2022 Commonly Required Postings in Oregon Poster, including the poster for Agricultural Workers, which include the new rates, are available here.

Don’t forget that Oregon OSHA still requires employers to post the COVID-19 Hazards Poster, which is available here. We recently discussed Oregon OSHA’s other COVID-19 rules, which will sunset when they are no longer necessary to address the COVID-19 pandemic.

U.S. Department of Labor Repeals Trump-Era Rule Favoring Independent Contractor Status, as Expected

As expected, the U.S. Department of Labor (DOL) has repealed the Trump-era rule regarding classification of independent contractors.  As we discussed here, the Trump-era rule codified the “economic realities test” for use when analyzing whether a worker is an employee or an independent contractor under the Fair Labor Standards Act (FLSA).

Labor advocates criticized the rule as favoring classification of workers as independent contractors as opposed to employees; only employees are protected by most employment-related laws, including the FLSA.  Under the FLSA, employees – but not independent contractors – are entitled to minimum wage, overtime pay and other protections.  Instead, independent contractors have comparatively greater flexibility over how, when and where they perform their work as compared to employees, and can work for multiple companies.

In repealing the Trump-era rule, the Biden DOL stated that it “believes that the rule is inconsistent with the FLSA’s text and purpose and would have a confusing and disruptive effect on workers and businesses alike due to its departure from longstanding judicial precedent.”

It remains to be seen whether the DOL will propose a new independent contractor rule.  If it does, the rule may look like the “ABC” test that is used in some states such as California, Illinois, Massachusetts and New Jersey, and which is generally considered to be employee-friendly and hostile to independent contractors.  In short, the ABC test comes with a presumption that a worker is an employee and puts the burden on the employer to demonstrate the worker is free from its direction and control and is in fact an independent contractor.  President Biden has expressed support for the ABC test, but there are no indications yet that the DOL will propose a rule to codify it.  We will continue to monitor these developments.

Final OR OSHA Infectious Disease Rule Is Now Effective

Effective May 4, 2021, the Oregon Occupational Safety and Health Administration (“OR OSHA”) published its final rule requiring Oregon employers to continue to implement safety measures to protect against the spread of COVID-19.  The final rule is available on OR OSHA’s website.  Here is a summary of the permanent rule’s key provisions:

No Sunset Date for Final Rule.  There is no date on which the final rule will automatically sunset.  Rather, OR OSHA simply states that because “the purpose of this rule is to address the COVID-19 pandemic in Oregon workplaces . . . [OR OSHA] will repeal the rule when it is no longer necessary to address that pandemic.”  Whenever that may be . . .

Infection-Notification Protocols Continue.  The final rule continues the temporary rule’s requirement that employers establish a process for notifying employees of potential workplace COVID-19 exposure within 24 hours.  Employers must notify “exposed employees” (those who were within six feet of an individual who tested positive for COVID-19 for a cumulative total of 15 minutes) and “affected employees” (those who worked in the same facility or well-defined portion of the facility).  Employers can still rely on the model policy that OR OSHA published under the temporary rule.

Mandatory Physical Distancing and Face Covering Requirements Continue.  The final rule retains basic requirements regarding physical distancing in the workplace and the mandatory use of face coverings, i.e., that employees generally must maintain six feet of distance from one another unless it is not “feasible” to do so and that employers mandate the use of masks, face coverings, or face shields for all employees and visitors within the workplace.  OR OSHA also continues to allow the use of face shields, but notes that it “remains in ongoing discussions with the Oregon Health Authority” about the adequacy of face shields and reserves the right to enforce a strict prohibition against them should the Oregon Health Authority so advise.

Complying Employers Need Not Re-Complete Exposure Risk Assessments, Infection Control Plans, Training, or Posting Requirements.  These requirements are identical to those that appeared in the temporary rules and that most employers have now fully complied with.  In comments accompanying the final rule, OR OSHA advised that it mirrored the temporary rules on these requirements to make it clear that “actions completed under the temporary rule would not need to be revised or repeated” so long as they “have been completed in compliance with the temporary rule.”

Quarantine Work from Home Post-Quarantine Right to Return to Work.  The final rule makes clear that employees who participate in quarantine or isolation for COVID-19 must be allowed to work at home if “suitable” work is available and the employee’s condition does not prevent it.  In addition, employees who participate in quarantine or isolation must be notified of their right to return to their job (assuming it remains available) when their quarantine or isolation period ends.  Effective June 3, 2021, the notification must be in writing.  (We will post a sample notice on our blog as the June 3 date approaches.)

“Exceptional Risk” Workplaces and Industry-Specific Guidelines Continue.  The final rule retains the complex set of requirements for so-called “exceptional risk” workplaces as well as industry-specific guidelines.

The final rule is lengthy, and particularly for employers subject to the exceptional risk or industry-specific requirements can be quite complex.  Please do not hesitate to reach out to any of our attorneys if you have questions about compliance or best practices.

Changes to Washington’s Requirements Regarding Accommodation of Employees at High Risk of Contracting COVID-19

For the past year, Washington employers have been required to accommodate those employees characterized by the CDC as being at high risk of severe illness or death from COVID-19. Required accommodations can include allowing those employees to take extended leaves of absence if alternative work assignments, telework, remote work locations, or social distancing measures are not possible. See here for our previous discussion of the details of Governor Inslee’s “High-Risk Employees – Workers’ Rights” Proclamation. While the accommodation obligation continues, the Governor’s latest iteration of his Proclamation allows employers a little more flexibility.

Previously, employers could not require high-risk employees to provide medical verification of their conditions except in narrow circumstances. That is no longer the case. Employers may now require that any employee seeking a high-risk accommodation provide certification from a medical provider that he or she is at high risk from COVID-19 and that the accommodation sought is necessary. The medical provider must take into account the employee’s condition, the particular circumstances of the employee’s position and workplace, and – significantly — the employee’s COVID-19 vaccination status. Employers who have been accommodating high-risk employees for the last year may now ask them to provide verification of the need for continued accommodation, which may no longer exist for those employees who have been fully vaccinated. Employers must provide such employees with 14 days’ advance notice of any change to their accommodations.

In addition, employers were previously required to continue high-risk employees’ health insurance benefits while they were out on leave. That, too, is no longer required. Employers must provide such employees with at least 14 days’ notice of discontinuation of benefits, but then may cancel their benefits if they are not otherwise required to provide benefits continuation under the FMLA or other law.

See here for FAQs issued by the Governor’s office regarding these changes.