Oregon OSHA Proposes Final, Permanent COVID-19 Safety Rules for Oregon Employers

As many of you know, effective November 16, 2020, the Oregon Occupational Safety and Health Administration (“OR OSHA”) adopted a comprehensive set of workplace safety rules designed to address the COVID-19 pandemic.  (More information about the rules is available here, here and here). These temporary rules remain in effect until May 4, 2021. Late last week, OR OSHA published its final draft of proposed permanent COVID-19 safety rules, which, as of May 4, 2021, will replace the temporary rules.

The proposed final rules are very similar to the temporary rules. Key provisions of the proposed final rules are:

COVID-19 Vaccines. This is the most significant difference between the temporary rules and the permanent rules, as the vaccine was not available at the time OR OSHA published the temporary rules. Under the draft permanent rules:

  • The employer must make its employees and adequate space available whenever a local public health agency or the Oregon Health Authority determines that it is necessary to administer the vaccine in the workplace.
  • If the employer mandates the vaccine, it must cover costs associated with the vaccine and pay employees for time associated with receiving it. Otherwise, the cost belongs to the employees and the employees need not be paid for the time.
  • Unless a local public health agency or the Oregon Health Authority directs otherwise, employers are not required to mandate the vaccine. The proposed rules state that if the employees decline the vaccine, the employer must document the declination. It is unclear whether this obligation applies when the vaccine is mandated by the employer only, and not by a local public health agency or the Oregon Health Authority.

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Comment Period For Round Two of Proposed Paid Family and Medical Leave Rules Closes Friday

The Oregon Employment Department (“OED”) has posted its second set of proposed administrative rules implementing the Oregon Paid Family and Medical Leave Act (“PFMLA”). A link to the proposed rules is here and our blog about the first set of proposed rules is here.  The second set of proposed rules covers such critical topics as how to determine whether the employer meets the 25-employee threshold for PFMLA coverage, the definition of a “serious health condition” that will entitle the employee to use paid leave, and details about how employers can apply to have their existing paid leave programs qualify as “equivalent” alternative plans by the OED.  If you are interested in commenting on the proposed rules, you can do so on the OED’s website.  Comments must be submitted by this Friday, January 29.  The final rules will be published in September 2021, and there may be additional opportunities to comment on the rules before they become final.

Out with the Old, in with the New: Employers Should Expect Changes Under a Biden Administration

In case you missed it (did anyone miss it?), President Joe Biden was sworn into office yesterday.  Although workplace issues are hardly the only pressing item on the new President’s agenda, employers should be prepared for the rollout of additional employee protections under the Biden administration.

Priorities That President Biden Has Already Announced

Extending and Expanding FFCRA Leave

The paid time off provisions of the Families First Coronavirus Response Act (“FFCRA”), which required most employers to provide employees with protected leave for COVID-19-related reasons, expired on December 31, 2020.  (Tax credits have been extended through March 31, 2021, however, for employers who opt to continue providing the leave.)  President Biden has already announced that he will ask Congress to reinstate the FFCRA’s paid leave provisions through September 30, 2021.  The Biden plan further contemplates that nearly all employers – including businesses with fewer than 50 or more than 500 employees, along with the federal government – will be required to provide FFCRA leave, and that healthcare workers and first responders will be entitled to FFCRA leave going forward.  Finally, both the amount and the potential duration of FFCRA benefits would increase under President Biden’s plan – up to $1,400 per week for “over 14 weeks” of leave.

Expanding and Supplementing Unemployment Continue Reading

DOL Publishes Final Independent Contractor Rule to Take Effect in March

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

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

*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). . . .

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

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.

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

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?

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

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