Following an increase in COVID-19 cases and hospitalizations, and in line with recent CDC guidance designed to curb the well-publicized spread of the Delta variant, the Oregon Health Authority (“OHA”) is again recommending that all individuals, including those who are fully vaccinated, wear masks in indoor public settings. The recommendation applies statewide, but it is not a mandate. It does not change the requirements for businesses and employers, who remain free to dictate their own mask rules. We will continue to monitor the OHA’s guidance, as well as guidance issued by the Oregon Occupational Safety and Health Administration, and will keep you apprised of any changes in the status quo.
The Oregon legislature recently passed HB 2818, which made several notable (and needed!) amendments to Oregon’s Equal Pay Act, including:
- Temporarily exempting hiring bonuses offered to prospective employees and retention bonuses offered to existing employees from the definition of “compensation.” This amendment is temporary and effective only until March 1, 2022.
- Permanently exempting vaccine incentives provided during a public health emergency from the definition of “compensation.” This includes both monetary and nonmonetary incentives, including additional paid time off.
Under existing Oregon law, employers must ensure that employees performing “work of comparable character” receive equal “compensation,” unless the difference can be justified by specific factors listed in the statute. (Read more about Oregon’s Equal Pay Act here.) By temporarily exempting hiring and retention bonuses and permanently exempting vaccine incentives from “compensation,” the legislature gave Oregon employers more leeway to award bonuses in today’s challenging environment.
If you have any questions about how Oregon’s Equal Pay Act affects your business, feel free to contact us.
In Ferra v. Loews Hollywood Hotel, LLC, the California Supreme Court determined that the phrases “regular rate of compensation” and “regular rate of pay” are synonymous for the purposes of California Labor Code section 226.7(c) and the California Industrial Wage Orders. With this seemingly innocuous ruling, however, the Supreme Court has handed a potentially large number of California employees a very expensive “IOU” from their current and former employers.
As everyone knows (or should know), overtime is paid at one and a half times an employee’s “regular rate of pay.” Unlike an employee’s standard hourly rate, the “regular rate of pay” includes different kinds of remuneration, such as hourly earnings, salary, piecework earnings, non-discretionary bonuses, and commissions. The question posed in Ferra concerned California law regarding meal and rest break premiums. Specifically, California law provides that employees who do not receive their required meal or rest break are owed “premium pay” consisting of an additional one hour of wages for every missed break paid at the employee’s “regular rate of compensation.” The question before the Supreme Court was whether “regular rate of compensation” refers to the employee’s standard hourly wage OR to the employee’s regular rate of pay. After a thorough discussion of the history of the adoption of section 226.7 and of certain provisions in the federal Fair Labor Standard Act of 1938, the Supreme Court determined that the two phrases were synonymous, meaning that employees owed premium pay must be paid at their regular rate of pay. Continue Reading
Yesterday, the Oregon Occupational Health and Safety Administration (“OR OSHA”) issued a temporary rule to address employees’ exposure to the hazards posed by temperatures in excess of 80 degrees.
The rule applies whenever employees are required to work in conditions in which the “heat index temperature” (which combines air temperature with relative humidity to measure what the temperature feels like to the human body) reaches 80 degrees or more. Although the rule itself is ambiguous on this point, an OR OSHA media release accompanying the rule clarifies that “[t]he temporary rule applies to any workplace – outdoors and indoors – where heat dangers are caused by the weather.” Presumably, this means that employers that operate in air-conditioned indoor spaces need not comply with the rule simply because the temperature outside exceeds the 80-degree mark.
The rule imposes two basic requirements when the heat index temperature reaches 80 degrees. First, employers must provide employees with access to shaded areas that are ventilated either naturally (e.g., an open-air tent) or mechanically (e.g., via a fan or air-conditioning unit), that are as close as practical to the worksite, and that are large enough to allow employees to sit. The shaded area also must be large enough to accommodate employee meal periods. Continue Reading
Effective today, the Oregon Occupational Safety and Health Administration (“OR-OSHA”) repealed the COVID-19 workplace safety rules that obligated most employers to require employees and visitors to wear face coverings and observe physical distancing rules in the workplace. However, most of OR-OSHAs rules remain in effect and the repeal of the face-covering and distancing requirements does not apply to all workplaces. Here is a summary of the most critical aspects of OR-OSHA’s modified rules:
Face Coverings and Physical Distancing. Employers are no longer required to mandate that employees and visitors wear face coverings or observe physical distancing rules in the workplace, regardless of the employees’ or visitors’ vaccination status. However, employers may choose to require face coverings and/or physical distancing (subject to employees’ rights to a reasonable accommodation under disability or religious discrimination laws) and must allow employees to wear face coverings if they choose to do so. (Face-covering and distancing requirements continue to apply to healthcare employers, as described below.)
Cleaning and Sanitation Requirements. Employers must continue to regularly clean or sanitize all common areas, high-touch surfaces, and shared equipment. “Regularly” means at least every 24 hours when in use, except in situations where employees are only present on a “drop-in” basis or staffing is kept to a minimal level. Employers must also continue to provide the supplies and time for employees who wish to do so to clean their workspace or hand-sanitize more frequently. Continue Reading
Many Oregon employers and employees have been eagerly awaiting the day when we can return to mask-free social interactions and in-person work. On June 25, 2021, Governor Brown issued an Executive Order stating that effective June 30, 2021, Oregon is lifting its mask mandates, capacity limits, and social distancing guidelines. Oregon employers are also bound by the COVID-19-related restrictions imposed by Oregon-OSHA, which include OSHA’s own face covering and social distancing requirements. Oregon-OSHA has signaled that it intends to adopt a temporary rule lifting those restrictions soon, hopefully on June 30. We will provide an update here as soon as Oregon-OSHA releases that temporary rule.
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
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.
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.
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