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As expected, the U.S. Department of Labor (DOL) has repealed the Trump-era rule regarding classification of independent contractors.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.

Do Employees Still Have to Wear a Mask?

Please note: The information below is based on what we know today, and that rules and regulations are literally changing daily. Employers need to be nimble and flexible – check your local rules on a daily basis.

As more and more people receive the COVID-19 vaccine, employees are starting to ask questions about mask requirements.  Mask requirements currently vary widely (and are changing frequently) depending on the state in which the employee works:

California

All Californians are still required to wear masks whenever they are in public except when they are:

  • alone in their car or only with those within their households;
  • working alone in a private office or room;
  • outdoors and staying six feet away from others not in their households;
  • eating or drinking, as long as they are distanced from others;
  • undergoing a service that involves nose or face, such as a dental procedure;
  • working and are required to wear respiratory protection; or
  • specifically exempted from wearing face coverings by other guidance.

Children younger than two years old are exempt, along with people with a disability, medical condition or mental health condition that prevents them from wearing a face covering, people who are hearing impaired or are communicating with someone who is hearing impaired, and people for whom wearing a face covering would create a risk related to their work, as determined by local, state, or federal regulators or workplace safety guidelines.  There are currently no exemptions for individuals who are fully vaccinated.

California’s current guidelines regarding masks and face coverings are available here:    https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/guidance-for-face-coverings.aspx.

Idaho

Idaho never had a statewide mask mandate.  Rather, mask requirements were defined by local health districts and municipalities.  Boise currently still requires mask usage in “public places,” which means any place open to all members of the public without specific invitation, including retail businesses; government offices; medical, educational, arts, and recreational institutions; public transportation, including ridesharing vehicles; and outdoor public areas.  Several other Idaho cities have similar requirements.

The Idaho legislature has made several efforts to initiate legislation banning mask mandates.  None have yet become law although that remains a possibility in the remaining days of this year’s session as there have been efforts on several fronts to place restrictions on the pandemic response.  Nothing in the proposed legislation would specifically bar an employer from requiring employees to wear a mask. Continue Reading

Governor Newsom Signs New COVID-19 Relief Measure

On March 19, 2021, California Governor Gavin Newsom approved Senate Bill 95 (“SB 95”) which entitles most California employees to a new bank of COVID-19 supplemental paid sick leave.  The law will go into effect on March 29, 2021.

California’s prior law entitling workers to COVID-19 supplemental paid sick leave expired on December 31, 2020, with the expiration of the mandatory requirements of the Families First Coronavirus Response Act (“FFCRA”).  Since then, a handful of California cities and counties have passed local ordinances entitling employees within their jurisdiction to a continued right to paid sick leave for reasons related to COVID-19.  With the passage of SB 95, the vast majority of California employees will soon be entitled to those same rights.

The new law requires California employers with more than 25 employees to provide up to 80 hours of paid sick leave to employees who are unable to work or telework for any of the following reasons:

  • The employee is subject to a quarantine or isolation period related to COVID-19.
  • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  • The employee is attending an appointment to receive a vaccine for protection against contracting COVID-19.
  • The employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework.
  • The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  • The employee is caring for a family member who is subject to a quarantine or isolation order or who has been advised to self-quarantine by their doctor.
  • The employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

Continue Reading

DOL Announces Plans To Rescind FLSA Joint Employment Rule, Withdraw FLSA Independent Contractor Rule

Late last week, the U.S. Department of Labor (“DOL”) announced that it plans to rescind the Trump DOL rule that tightened the standards by which two or more companies could be deemed a joint employer for purposes of the Fair Labor Standards Act (“FLSA”).  The same day, the DOL announced its plans to withdraw the Trump DOL rule that loosened the standards by which an individual could be deemed an independent contractor rather than an employee under the FLSA.  (The joint employment rule is being “rescinded” because it actually went into effect on March 16, 2020, at least in part; the independent contractor rule is being “withdrawn” because the DOL is taking action before its effective date.)

Neither move is unexpected, because as we wrote about here and here the Biden DOL had signaled several times that it intended to revisit numerous policy decisions by its predecessors.  In addition, the joint employment rule never fully went into effect because of a federal court order striking the rule’s provisions regarding “vertical joint employment,” which refers to the scenario in which an employee is hired through a staffing agency but assigned to perform services on behalf of a different organization.  The order was the result of a lawsuit filed against the Trump DOL by 17 states and the District of Columbia that challenged the merits of the rule. Continue Reading

U.S. House of Representatives Passes Union “Wish List” Bill

Last week, the U.S. House of Representatives narrowly passed the Protecting the Right to Organize (“PRO”) Act, which would make sweeping union-friendly changes to the three primary federal laws that govern private-sector labor relations: the National Labor Relations Act (“NLRA”), the Labor Management Relations Act, and the Labor-Management Reporting and Disclosure Act of 1959.  The bill will now head to the Senate for a vote and, if it becomes law (which is highly unlikely to happen, as explained below), would drastically alter the landscape of traditional labor law.  For example, the PRO Act would:

  • Expand the definition of “employees” who are eligible to join unions to include individuals who would otherwise be considered independent contractors (for example, gig economy workers).
  • Give the National Labor Relations Board (the “Board”) the right to award liquidated and consequential damages against employers in retaliatory discharge cases, in addition to assessing civil penalties. (Under current law, employees may only recover back pay.)
  • Give employees the right to sue the employer in court for violations of their rights under the NLRA if the Board does not proceed with the case. Under current law, an employee’s only recourse is to file an administrative charge with the Board; if the Board decides not to pursue the case, the employee cannot do so on his or her own.
  • Make it easier for unions to win elections, including by:
    • Formalizing the “quickie” election rules that the Board previously implemented under the Obama administration, under which union elections occur as little as 13 days after a petition is filed;
    • Prohibiting employers from requiring employees to attend meetings to discuss the pros and cons of union membership;
    • Permitting unions to petition for representation of small groups of employees or “micro-units,” who may have been selected for their pro-union views; and
    • Removing employers as “parties” in Board representation proceedings, such that they do not have input into whether the sought-after bargaining unit is appropriate, and where or how the election is conducted.
  • Expand joint employer liability, making an employer jointly liable for another employer’s unfair labor practices merely because the joint employer had indirect control over the employees, or reserved the right to exercise such control. (In other words, employers could be liable for violations they did not actually commit.)
  • Eliminate “right-to-work” laws that are currently in effect in 27 states (but not in Oregon, Washington, or California). Right-to-work laws prohibit the requirement that employees pay union dues as a condition of their employment.

The PRO Act  already passed the House once in early 2020, but was never taken up by the then Republican-controlled Senate.  The Senate is now split 50-50, with Democrats holding a one-vote majority in the Senate by virtue of Vice President Harris’ ability to break any ties.  Nonetheless, even if all Senate Democrats vote for the bill, the PRO Act is unlikely to become law unless it is supported by 60 members of the Senate, which is doubtful at best. (To pass the PRO Act with a 51-50 majority, Senate Democrats would either need to eliminate the filibuster rule or persuade the Senate parliamentarian that the PRO Act could pass through the so-called “reconciliation” process, which applies to legislation tied closely to the federal budget.  Neither is likely.)  Nevertheless, we will continue to monitor the PRO Act and keep you up to date on any new developments.

FFCRA Update: What the March 2021 Federal Stimulus Bill Means for COVID-19-Related Leave

On March 10, 2021, Congress passed its landmark $1.9 trillion COVID-19 relief bill, and President Biden signed the bill into law on March 11.  The bill does not require employers to continue offering Families First Coronavirus Response Act (“FFCRA”) leave, but it extends the FFCRA’s payroll tax credit provisions for employers who choose to offer such leave through September 30, 2021.  The bill also expands the qualifying reasons for FFCRA leave for employers who choose to offer it.

Here are the key FFCRA-related provisions in the March 2021 stimulus bill for employers to be aware of:

  • The requirement that employers provide emergency paid sick leave or expanded family medical leave under the FFCRA expired on December 31, 2020. The new law does not change that; providing FFCRA leave is now optional.
  • The new law expands the types of leave for which a payroll tax credit can be claimed to include leave taken when an employee is (1) obtaining a COVID-19 vaccine; (2) recovering from any illness or condition related to the COVID-19 vaccine; or (3) seeking or awaiting the results of a COVID-19 diagnosis or test if either the employee has been exposed to COVID-19 or the employer requested the test or diagnosis.
  • The COVID-19-related Tax Relief Act of 2020 had extended through March 31, 2021 the tax credit to reimburse employers for the cost of providing paid FFCRA leave. The new law continues that payroll tax credit through September 30, 2021 for employers who voluntarily decide to provide employees with FFCRA leave.
  • The new law resets the 10-day limit for emergency paid sick leave under FFCRA, starting April 1, 2021. If an employer decides to continue to voluntarily provide emergency paid sick leave under FFCRA, the employer can claim a payroll tax credit to offset up to 10 days of wages paid as qualified emergency paid sick leave from April 1 to September 30, 2021, even if employees previously exhausted their emergency paid sick leave entitlement.

Unpaid leave remains a requirement for child care-related reasons in Oregon.

Note that under the Oregon Family Leave Act, Oregon employers are still required to provide up to 12 weeks of unpaid leave to eligible employees who need time off to care for a child whose school or childcare provider has been closed in conjunction with a public health emergency, including COVID-19.  We previously blogged about those requirements here.

If you have any questions, please contact us.

LexBlog