Oregon Has Updated Face Covering and Mask Requirements

The Oregon Health Authority has again modified the state’s requirements for masks and face coverings. The new guidance expands the face covering requirements we wrote about here and here. The new guidance can be found here.

Masks are now required in both public and private workplaces unless the employee’s job does not require interacting with the public or other employees and at least six feet of distance can be maintained from other people. Even in those circumstances, masks are “strongly recommended.” In addition, masks are required in workplace hallways, bathrooms, classrooms, elevators, lobbies, breakrooms, meeting rooms, and other common or shared spaces. Unless an employee has a “private, individual workspace” that is not shared with others, the new rules require a mask or face covering while at work. (Reasonable accommodations, of course, are required.) This guidance is a change from earlier guidance that did not require face coverings if six feet of distance could be maintained; under the new guidance, individuals in communal spaces such as break rooms and conference or meeting rooms must wear face coverings.

The guidance also clarifies that masks are preferable to face shields, as aerosols can go around the shield, and that use of a face shield without a mask is permissible only “on a very limited basis.”

To ensure compliance with this latest guidance, employers should confirm that employees are wearing masks at work unless they are in a private, individual workspace that they do not share with others. Remind employees that even in meeting rooms and conference rooms, masks must be worn and social distancing maintained. And, remind your employees who have private workspaces (their own office or cubicle) that, at a minimum, masks must be worn when moving around the workplace, and that masks are recommended at all times.

Utah Announces New COVID-19 Protocols

In the face of a significant COVID-19 surge, Utah Gov. Gary Herbert announced yesterday the implementation of a new regime for evaluating COVID-19 transmission risk and enhanced measures for mask use, social distancing, and other steps to combat transmission. Effective October 13, 2020, the state of Utah will use a three-tiered Transmission Index, placing counties in one of three transmission levels: High, Moderate, or Low. The Transmission Index identifies three public health metrics used to determine which counties are placed in which transmission level. These metrics are case rates, positivity rates, and ICU utilization. To see which metric thresholds correspond to the three transmission levels, see the Utah Health Guidance Levels here.

Public health data will be analyzed weekly. Counties can move from a lower level to a higher level. Changes from a higher level to a lower level may occur every 14 days at minimum, when thresholds of the three public health metrics are met. Currently, the following counties have been designated as High Transmission areas: Cache, Garfield, Juab, Salt Lake, Utah, and Wasatch.

Varying actions are required for the different transmission levels. In High Transmission areas, masks will be required in all indoor settings, and in outdoor settings where public distancing is not feasible. Masks are also required in all K-12 schools and all state-owned buildings, including colleges and universities. Masks are required at any establishment that allows public gathering or live events such as movie theaters, sporting events, weddings, recreational activities, or other entertainment. This mask requirement applies to all such establishments, regardless of the county or transmission level in which they are located. Performers are exempt from this requirement. Gatherings of more than 10 people are prohibited in High Transmission areas. This requirement does not apply to formal religious services or “events with organizational oversight.” Continue Reading

Oregon Employment Department Sponsors “Town Halls” to Discuss Paid Family and Medical Leave Program

As many of you know, in 2019 the Oregon Legislature passed (and Governor Brown signed) HB 2005, which creates a Paid Family and Medical Leave program for Oregon employees. Our original blog posts about the new law are here and here.

The Oregon Employment Department has launched listening sessions for employers and employees across Oregon to collect input on the implementation of the Paid Family and Medical Leave program. As a reminder, the rulemaking committees have been meeting all year and are expected to continue to meet into 2021. Premiums will start being collected for the program January 1, 2022 with employees accessing the new paid benefit January 1, 2023.

The listening sessions will be held virtually via Zoom. Each town hall will address a particular aspect of the program, like benefits or small employers. Town hall participants are invited to identify issues, offer ideas, raise concerns, or make suggestions relating to the program’s development and the administrative rules needed to implement the program. Continue Reading

Oregon OSHA Releases Near Final Draft of its COVID-19 Standard

Oregon OSHA has released its “Near Final Draft” of a COVID-19 Temporary Standard. This proposed new regulation sets forth a number of new rules for how an employer must operate in order to prevent the spread of COVID-19 and respond to any positive cases among its employees. The regulation applies to employers and building operators.

The draft of the regulation can be found here: https://osha.oregon.gov/rules/advisory/infectiousdisease/Documents/Oregon-OSHA-Draft-Temporary-COVID-19-Rule-Sept-25-2020.pdf

Oregon indicates the new regulation will be in effect by November 1, 2020.

The new regulation will require each employer to:

  1. Prepare a risk assessment consistent with the new regulation in a process that involves employee participation.
  2. Ensure that face covering requirements are met by employees and customers.
  3. Appoint a “distancing officer” to ensure the six-foot distancing rule is enforced.
  4. Conduct specified training and post information in the workplace.
  5. Clean common areas and equipment as set forth in the new regulation.
  6. Comply with ventilation requirements.
  7. Reassign employees to positions that do not involve contact with other employees or the public when a public health agency or medical provider recommends employee quarantine or isolation.
  8. Advise other employees when an employee tests positive for COVID-19.
  9. Comply with industry/activity-specific guidance set forth in an appendix to the rule.

Oregon OSHA envisions that a permanent regulation may be promulgated in spring of next year.

Handling Political Activity and Expression in the Workplace

The 2020 presidential election, coupled with nationwide civil unrest and a global pandemic, is creating a lot of conversation in employees’ personal and professional lives. In a February 2020 survey, employees reported:

  • 78% discuss politics at work;
  • 47% said the discussion of politics negatively impacted their performance;
  • 33% take in more political news at work; and
  • 36% avoid co-workers based on political ideology.

Clearly, political activity and expression is an increasingly important influence in the workplace. But what can employers do to ensure it does not create a negative work environment?  Keep reading to find out more about the key laws that affect how an employer may handle political activity or expression and some tips for addressing these tricky situations.

First Amendment Myth

Imagine a scenario in which you have a politically active employee who talks passionately about the presidential election, often wears political apparel, and displays political messages in his Zoom backgrounds. Another employee complains about this person, but when the politically active employee’s supervisor counsels him about it, he claims First Amendment protections.   Is the employee correct?

Significantly, the First Amendment applies only to government action (and thus government employers), not to private employers.  Employees of a private employer do not have First Amendment protections to engage in political expression at work, though they may have some protections under other laws, as discussed below.

Public employees do have First Amendment rights, but there are some caveats:

  • The speech must be a matter of public concern; and
  • It depends on a balance of whether the speech interferes with workplace duties, creates a conflict, or undermines public trust and confidence.

Continue Reading

California Passes Bills Expanding Rights to Both Paid and Unpaid Leave

California Assembly Bill 1867 (signed by California Governor Gavin Newsom on September 9, 2020) and Senate Bill 1383 (signed on September 17, 2020) significantly expand the rights of California employees to both paid and unpaid leave.  In addition, and especially as they relate to Senate Bill 1383, these laws will require California employers to promptly revise their policies and procedures when it comes to reviewing employee requests for unpaid leave.

Assembly Bill 1867

To recap, the Families First Coronavirus Response Act (“FFCRA”) provides that employees are entitled to up to 80 hours of paid sick leave for reasons related to COVID-19.  FFCRA, however, applies only to employers with fewer than 500 employees.  Like many ordinances adopted after the passage of FFCRA, AB 1867 attempts to fill the gap left by FFCRA by applying to employers with 500 or more employees.

AB 1867 fills this gap in two ways.  First, it creates new California Labor Code section 248, which mirrors Governor Gavin Newsom’s prior Executive Order N-51-20.  Section 248 requires entities with 500 or more employees to provide their “food sector workers” with up to 80 hours of “COVID-19 food sector supplemental paid sick leave.”  Second, it also creates new Labor Code section 248.1.  This section applies more broadly than section 248 as it requires that employers with 500 or more employees provide all employees with up to 80 hours of “COVID-19 supplemental paid sick leave.” Continue Reading

California Modifies the ABC Test – But It Doesn’t Really Help

Last year, California Governor Gavin Newsom signed Assembly Bill (“AB”) 5, which signaled a seismic shift in the way California employers classify workers as either independent contractors or employees.  On September 4, 2020, Governor Newsom signed AB 2257, which modifies (slightly) some of the rules and provisions of AB 5.

To recap, AB 5 codified the California Supreme Court’s decision in Dynamex.  In Dynamex, the Supreme Court rejected the multifactor test set forth in S.G. Borello & Songs, Inc. v. Department of Industrial Relations for classifying workers and announced a new, more objective standard for determining worker classification for the purposes of the California wage orders.  Under this new standard, the burden is on the hiring entity to establish that the worker is an independent contractor who was not intended to be included within the coverage of the California wage orders.  In order to satisfy this burden, the hiring entity must establish all of the following:  (1) that the worker is free from the control and direction of the hiring entity in connection with the performance of work, (2) that the worker performs work that is outside the usual course of the hiring entity’s business, and (3) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed. Continue Reading

Department of Labor Narrows FFCRA Exemption for Health Care Providers and Affirms Guidance Regarding Intermittent Leave

The Department of Labor (DOL) recently modified its guidance regarding leave under the Families First Coronavirus Response Act (FFCRA). These changes pertain most significantly to the applicability of FFCRA leave to employees of health care providers and the intermittent use of FFCRA. The changes – which take effect on September 16, 2020 – are a response, in part, to a recent New York federal district court opinion invalidating some of the DOL’s prior guidance. (See here.)

Here’s what you need to know about the DOL’s new guidance:

Health Care Providers. The DOL narrowed the applicability of the FFCRA exemption for health care providers.  Under the new guidance, not all employees of health care providers are exempt from FFCRA. Only the following employees may be excluded: (1) licensed doctors of medicine, nurse practitioners, chiropractors, dentists, and others permitted to issue FMLA certifications under 29 C.F.R. 825.125; and (2) employees who provide diagnostic, preventive, or treatment services, or “other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.” This exemption includes, among others, nurses, medical technicians, and laboratory technicians. We recommend that health care providers seeking to exempt some employees from FFCRA talk to their legal counsel about whether the exemption applies.

The DOL encourages health care providers to minimize use of the exemption to the extent possible in order to prevent the spread of COVID-19. Employers may choose to allow some types of FFCRA leave (e.g., leave for employees with COVID-19 symptoms) and not others (e.g., childcare leave). Continue Reading

BOLI Permanently Expands OFLA for Eligible Working Parents Impacted by COVID-19

On the day that its temporary rule was set to expire, the Oregon Bureau of Labor and Industries (“BOLI”) issued a permanent rule to allow employees to continue to avail themselves of protected “sick child leave” under the Oregon Family Leave Act (“OFLA”) to care for a child whose school or childcare provider has been closed in conjunction with a statewide public health emergency, including COVID-19. We previously blogged about BOLI’s temporary rule here.

Based on public comment received during the permanent rule-making process, as well as the fluid nature of safety protocols with respect to childcare providers and school re-openings, the agency determined that its now permanent rule would benefit from additional, immediate clarifications to other OFLA rules.  Accordingly, BOLI simultaneously issued another set of temporary rules (effective September 14, 2020 through March 12, 2021) of which employers should be aware both with respect to implementing the expanded sick child leave and to the extent they want to provide input during the public comment period.

Under the temporary amendments, BOLI broadly defines “childcare provider” to include any “place of care” or person who cares for a child. “Place of care” includes day care facilities, preschools, before and after school care programs, schools, homes, summer camps, summer enrichment programs, and respite care programs.  The physical location does not have to be solely dedicated to such care.  A person who cares for a child includes nannies, au pairs, babysitters, and individuals who regularly provide childcare at no cost, for example, grandparents, aunts, uncles, or neighbors. Continue Reading

FFCRA Update: DOL Issues New Guidance Regarding Childcare Leave

The DOL recently updated its guidance regarding when childcare leave can be taken under the Families First Coronavirus Response Act (or “FFCRA”).  FFCRA requires most employers to provide employees with up to 12 weeks of protected leave, paid at 2/3rds the employee’s regular rate of pay, up to a maximum of $200 a day (reimbursed in the form of a tax credit), if an employee is unable to work or telework because the employee’s child’s school or place of care is closed for reasons related to COVID-19.

As we start the new school year, many schools are still either partially or fully closed for in-person learning, and the DOL just issued new guidance regarding what it means to be “closed” for purposes of FFCRA leave:

  • If a school has moved to online instruction or a similar model in which children are expected to attend class and/or complete assignments at home, it is still considered “closed” for FFCRA purposes.
  • If a school is operating on an alternative day or similar hybrid basis (e.g., students alternate between days attending school in person and days participating in remote learning), it is considered “closed” for FFCRA purposes only on the days that the child is not permitted to attend school in person and must instead engage in remote learning. (Note that while intermittent FFCRA leave is at the employer’s discretion, this new guidance suggests that FFCRA leave should be made available intermittently for periods of home learning.)
  • If a school gives parents a choice between having their child attend in person or participate in a remote learning program for the fall, the school is not considered “closed” for FFCRA purposes. If parents choose to have their child remain home because, for example, they are worried about their child contracting COVID-19, they are not entitled to paid leave under FFCRA.

We previously blogged about childcare leave under FFCRA here and here.  If you have any questions, please contact us.