John Dudrey is a partner in the firm’s Labor & Employment group. His practice focuses on wage and hour compliance, representation of employers with unionized workforces, and complex advice and counsel matters, in addition to general labor and employment practice.

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In a recent decision titled Buero v. Services, Inc.­­, 370 Or. 502 (2022),  the Oregon Supreme Court ruled that Oregon’s wage and hour law uses the same definition of “work time” as the federal Fair Labor Standards Act (“FLSA”).  The Buero decision resolves what had been a hotly contested legal issue for many years and clarifies that Oregon employers (most of which are subject to Oregon law and the FLSA) satisfy their legal obligation to calculate employees’ compensable time using the same legal standard for both sets of laws.  

Continue Reading Oregon Supreme Court Rules That Oregon Law Follows Federal Definition of “Work Time.”

Oregon employers that require arbitration for employment-related disputes recently received some good news from the Oregon Supreme Court.  In Gist v. ZoAn Management, Inc., the Court rejected the plaintiff’s argument that his arbitration agreement was unenforceable because it limited the arbitrator’s authority to award him relief.  Instead, the Court ruled that the arbitration clause was fully enforceable.

The facts of the case are straightforward.  ZoAn Management is a delivery service that hired Gist as a driver and classified him as an independent contractor rather than as an employee.  Gist filed a putative class action lawsuit against ZoAn, claiming that he had been misclassified as an independent contractor and thus did not receive the wages he was entitled to under Oregon law as an employee.  ZoAn filed a motion to compel arbitration pursuant to the Driver Services Agreement (“DSA”) that Gist signed at the outset of his engagement.  The DSA contained a clause requiring that “any dispute, claim or controversy” arising from the DSA be resolved through mandatory arbitration.  Gist argued that the DSA’s arbitration clause was “unconscionable,” a legal doctrine that allows a court to strike a contract provision if it deems the provision so fundamentally unfair that it should not be enforced.  Specifically, Gist pointed to language stating that the arbitrator could not “alter, amend or modify” the terms of the DSA, which Gist argued would prevent the arbitrator from concluding that he was in fact an employee rather than an independent contractor and was therefore entitled to damages. 

The Supreme Court rejected Gist’s argument.  The Court pointed to the language in the DSA granting the arbitrator the authority to resolve “any dispute, claim or controversy” as well as language allowing the arbitrator to strike specific portions of the DSA that were unenforceable while preserving the agreement as a whole.  Read together, these clauses meant that the agreement could not be plausibly read to prevent the arbitrator from deciding the merits of Gist’s claims and awarding him damages or other relief if he prevailed.  ZoAn conceded as much in its arguments to the Court, which likely helped the Court reach its conclusion that the arbitration clause was enforceable.

There are a few “lessons learned” from Gist decision.  First, Oregon courts remain willing to enforce arbitration agreements, even those involving individuals who assert claims under employee-protection laws like Oregon’s wage and hour statutes.  Second, courts will apply a “common sense” reading to the language in an arbitration agreement as a whole instead of focusing narrowly on a particular provision.  Finally, the decision serves as a good reminder that arbitration agreements address how a dispute will be resolved but don’t necessarily change the outcome of the dispute: ZoAn will face the same substantive claim from Gist that it misclassified him as an independent contractor, with the only difference being that the dispute will play out in arbitration rather than in court.

If you have questions about the Court’s ruling, or about requiring employees to resolve disputes through arbitration, please feel free to reach out to any of our labor and employment attorneys.

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.

The Bank defended on the grounds that Shields did not have a disability under the ADA because her post-surgery limitations, while significant, were not sufficiently “permanent or long-term” to meet the law’s requirements. The District Court agreed and dismissed Shields’ claim.

The Ninth Circuit reversed. Under the ADA, a disability is defined in relevant part as “a physical or mental impairment that substantially limits one or more major life activities,” without any reference to how long the “substantial[] limit[]” might last. However, the Equal Employment Opportunity Commission’s (“EEOC”) regulations interpretating the ADA clarify that “the effects of an impairment lasting or expected to last fewer than six months can be substantially limiting.” The EEOC has advised similarly in its guidance materials, for example, opining that if an “individual has a back impairment that results in a 20-pound lifting restriction that lasts for several months, he is substantially limited in the major life activity of lifting.” Based on this guidance, the Ninth Circuit had little trouble concluding that the District Court was wrong when it ruled categorically that the short-term nature of Shields’ limitations meant she could not establish that she suffered from a disability.

It is clear from the Ninth Circuit’s opinion that employers cannot reflexively dismiss an employee’s request for an accommodation simply because the impairment is temporary. However, many more questions about employers’ obligations remain unanswered:

  • Is there any minimum duration an impairment must last in order to qualify as a disability? For example, if Shields had only been incapacitated for two weeks would she have met the definition?
  • The Ninth Circuit found that Shields suffered an “impairment” under the ADA by virtue of the surgery itself. It is quite common for a surgical procedure to incapacitate the patient for a period of time. Under what circumstances will such limitations not qualify as a disability?
  • Does the nature of the employer’s obligation to provide a reasonable accommodation differ based on the temporary or short-term nature of the impairment? For example, would an employer have the same obligation to modify an employee’s non-essential job duties for a short-term impairment that it would for a longer-term impairment?

It will be up to future courts to decide these questions, and no doubt many more. Practically speaking, in most instances the best advice for employers is to focus more attention on the nature of the employee’s requested accommodation and less attention on whether the employee’s impairment technically qualifies as a disability. This is true not only because of the outcome in Shields, but because state disability laws may require employers to accommodate short-term disabilities separate and apart from what is required by the ADA under federal law. For example, Washington’s state disability law expressly includes “temporary” impairments.

In the meantime, please feel free to reach out to any of our labor and employment attorneys if you have questions about the Ninth Circuit’s decision or about your obligations to provide employees—including those with temporary impairments—with reasonable accommodations for their disabilities.

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.


In the period immediately preceding Boeing, the Board’s approach to assessing the lawfulness of neutral employer policies was to ask whether employees would “reasonably construe” the policy language as limiting their Section 7 rights. Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). Employer groups criticized the Lutheran Heritage standard on several grounds, including that it gave employers little guidance about when their policies might violate the law and that it produced a tidal wave of litigation before the NLRB about the vagaries of employer policies. As one Republican-appointed Board member cheekily remarked, Lutheran Heritage turned the NLRB into “the federal employee-handbook police.” Stericyle, 371 NLRB No. 48, slip op. at 3 (Members Kaplan and Ring, dissenting).

Boeing sought to simplify the Lutheran Heritage standard in two principal respects that were beneficial to employers. First, Boeing directed that in assessing the lawfulness of employer policies, the Board would balance the nature and extent of the policy’s effect on Section 7 rights against the employer’s legitimate justifications for adopting the policy. Second, Boeing adopted a three-part rubric that sought to clarify what kinds of employers would and would not run afoul of the NLRA. Per the Board:

Category 1 will include rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule. * * *

Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule, when reasonably interpreted, would prohibit or interfere with the exercise of NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.

Category 3 will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule. An example would be a rule that prohibits employees from discussing wages or benefits with one another.”

365 NLRB No. 154, slip op. at 15 (emphases in original). Applying Boeing, the Trump Board and the General Counsel subsequently placed a number of common employer policies (for example, employee conduct policies, non-disparagement policies, and media-contact policies) in Category 1, which largely insulated them from the argument that they violated the NLRA.

The General Counsel’s Position

The General Counsel’s attack on Boeing consists of three primary arguments. First, the General Counsel criticized Boeing as being unduly protective of employees’ rights because it failed to recognize the coercive power an employer’s directions to employees might carry and because it was too solicitous of the employer’s asserted justifications for its work rules. Indeed, the General Counsel urged the NLRB to adopt a rule that assumed employees would be inclined to read handbook policies as potentially limiting their Section 7 rights and that would find a policy unlawful if a “reasonable employee” could read it to limit Section 7 rights. Second, the General Counsel sought to rehabilitate Lutheran Heritage as a workable standard, emphasizing that (contrary to its criticism in Boeing) it took into account an employer’s interests in effective personnel policies.

Finally, and surely in response to critics of Lutheran Heritage who argued that employees would not reasonably read restrictions of their Section 7 rights into facially neutral policies, the General Counsel offers a solution: that employers include in their handbooks an NLRB-approved “prophylactic statement of rights, which affirmatively and specifically sets out employee statutory rights and explains that no rule should be interpreted as restricting those rights,” which if included by employers would entitle them to a rebuttable presumption that no reasonable employee could view the various policies as limiting Section 7 rights.

Although the NLRB has now received the General Counsel’s brief and those of numerous other interested parties, we are probably still several months away from a decision about the fate of Boeing and whether Lutheran Heritage will reemerge from the ashes. We will keep you posted.

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.

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.

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.

In a decision released late in the day on Friday, the United States Court of Appeals for the Sixth Circuit lifted a stay against the Occupational Safety and Health Administration’s (“OSHA”) rule requiring employers with 100+ employees either to require their employees to be vaccinated against COVID-19 or to submit to weekly COVID-19 testing and to wear facemasks in the workplace.  The Sixth Circuit’s ruling paves the way for OSHA’s rule, which was at a standstill due to an injunction issued by a different court, to go into effect.  Indeed, following the ruling, OSHA promptly announced that it expects employers to comply with the rule by January 10, 2022, but that it would not issue citations against non-complying employers until February 9, 2022. Employers that operate in states with their own occupational health and safety laws (including Alaska, California, Oregon, Utah, and Washington), will not be required to comply until the respective state agency formally adopts its version of the OSHA requirements.

The OSHA rule (29 C.F.R. 1910, subpart U), available here, generally requires employers with 100 or more employees to adopt one of two types of policies to combat the spread of COVID-19: either (1) a requirement that all employees be fully vaccinated, except to the extent that they are entitled to a reasonable accommodation on the basis of disability or religion; or (2) a requirement that employees who are not fully vaccinated against COVID-19 submit to weekly testing and wear masks in the workplace.  Among other requirements, the rule also requires employers to provide employees with up to four hours of paid time off for time spent receiving COVID-19 vaccinations, in addition to whatever paid time off employees already have available. To assist with implementation, OSHA has published a summary of the rule, a lengthy FAQ document, and template mandatory-vaccination and vaccination-or-testing policies.

Although the Sixth Circuit’s order provides some clarity about the way forward, there is still significant uncertainty about the rule’s status.  First, several organizations that challenged the rule in the lower court have already requested that the U.S. Supreme Court accept the case for review. If the Supreme Court accepts the case, it is possible (and perhaps even likely) that it will issue a stay against the rule going into effect while it considers the merits of the parties’ arguments.  Second, in states that have their own state-sponsored occupational health laws, the state occupational health agency must formally adopt a rule that is at least as protective as OSHA’s rule.  Although we expect that most states with their own approved plans will adopt some version of the vaccine-or-test mandate relatively soon, it is not clear when this will occur.  For states without a state occupational health law (including, for example, Idaho), OSHA’s January 10/February 9 timeline will apply unless the U.S Supreme Court says otherwise or OSHA chooses to extend the deadlines.

Please feel free to contact any of the attorneys in our Labor and Employment group with questions.

Last week, Governor Kate Brown announced that the State of Oregon would require that all health care workers be fully vaccinated against COVID-19 unless they could prove they were entitled to a religious or medical exception.  The Oregon Health Authority (“OHA”) just released its administrative rule implementing the Governor’s announcement: effective October 18, 2021, health care workers and staff working in a health care setting must present documentation that they are fully vaccinated or that they are entitled to an exception.  Medical and religious exemptions must be documented on specific forms prescribed by the OHA, available here.  After that date, health care entities may not employ, contract with, or accept the volunteer services of an individual who cannot present such documentation.  Below is a summary of additional details about the rule’s requirements.

Broad Applicability.  The mandatory vaccine rule applies to all individuals, “paid or unpaid, working, learning, studying, assisting, observing or volunteering in a healthcare setting.”  “Healthcare setting” is broadly defined to include “any place where health care, including physical or behavioral health care is delivered.”  In addition to traditional medical facilities, the definition also includes providers of “alternative medicine such as acupuncture, homeopathy, [and] naturopathy” services.

Proof of Fully Vaccinated Status.  As with prior OHA and Oregon Occupational Health and Safety rules, “fully vaccinated” means that at least 14 days have passed since the individual received the second dose of a two-dose vaccine (Pfizer/Moderna) or the first dose of a single-dose vaccine (Johnson & Johnson).  Likewise, “proof of vaccination” means documentation issued by a government entity or health care provider that includes the worker’s name, date of birth, type of vaccine, date(s) the vaccine was given, and the name or location of the site where the vaccine was administered.  A COVID-19 vaccination card or digital photo or printout from the OHA’s immunization registry satisfies the rule’s requirements.

Religious and Medical Exceptions.  The rule recognizes exceptions to the mandatory vaccine requirement on religious or medical grounds.  Health care workers who seek a religious exception must corroborate the request on a form prescribed by the OHA that is signed by the worker and that includes “a statement describing the way in which the vaccination requirement conflicts with the religious observance, practice, or belief of the individual.”

Similarly, health care workers who seek a medical exception must submit an OHA-approved form that is “signed by a medical provider, who is not the individual seeking the exception” and that “certif[ies] that the individual has a physical or mental impairment that limits the individual’s ability to receive a COVID-19 vaccination based on a specified medical diagnosis, and that specifies whether the impairment is temporary in nature or permanent.”  Copies of the forms are available on the OHA’s website.

The rule provides little guidance about the status of individuals who establish that they are entitled to an exception.  It simply states that health care entities “must take reasonable steps to ensure that unvaccinated healthcare providers and healthcare staff are protected from contracting and spreading COVID-19.”  Realistically, this may mean that employees who can establish entitlement to a religious or medical exception cannot work in direct patient-care roles and must be reassigned or placed on leave.

Recordkeeping Requirements.  Health care entities must maintain documentation of workers’ fully vaccinated status and/or their documentation regarding religious and medical exceptions for at least two years, and must provide such documentation to the OHA upon request.

Additional Employer-Imposed Requirements.  The rule makes clear that employers are free to impose additional rules regarding COVID 19 vaccine requirements, including requiring compliance prior to October 18, 2021, and requiring additional or booster doses of the vaccine.

Separately, the Oregon Employment Department just announced that employees who are terminated for failure to comply with a vaccine mandate may not be able to collect unemployment benefits.

If you have questions about the new rule, or anything else regarding the ever-shifting COVID 19 landscape in the workplace, please feel free to contact any of our labor and employment attorneys.

On August 19, 2021, just two weeks after announcing that all Oregon health care workers must either be fully vaccinated or test weekly for COVID-19, which we blogged about here, Governor Brown announced that vaccinations will be mandatory for health care workers starting October 18, 2021, assuming the vaccines have full FDA approval by then.  There will not be a testing alternative.  Employers may, however, need to make accommodations for employees with disabilities or sincerely-held religious beliefs that prevent them from receiving the vaccine.

Prior to October 18 and full FDA approval, the Oregon Health Authority rules requiring health care workers to either show proof of vaccination or test weekly remain in effect.

If you have any questions about workplace vaccination policies or exemptions, please contact us.