OR-OSHA Publishes Model Infection Control Policy Required by New COVID- 19 Rules

On November 6, 2020, the Oregon Occupational Health and Safety Administration (“OR-OSHA”) published final temporary rules for workplace safety protections specific to COVID-19. Our alert about the new rules is available here.

Among other requirements, the new rules require employers to adopt a COVID-19 Infection Notification policy for notifying exposed and affected employees of possible exposure within 24 hours of learning that an infected individual was in the workplace. OR-OSHA yesterday published on its website a model Infection Notification policy, which you can review here.  Employers must adopt a policy (whether their own or the OR-OSHA model) by Monday, November 16, 2020.

Please join us on November 19, 2020, at 11 a.m. for a webinar to discuss the new OR-OSHA rules.  Registration information is available here.

Take Action to Comply with OR-OSHA’s Final Temporary COVID-19 Safety Rules

On November 6, 2020, the Oregon Occupational Health and Safety Administration (“OR-OSHA”) published final temporary rules for workplace safety protections specific to COVID-19. The text of the final rules is available on OR-OSHA’s website.

The effective date for the new rules is November 16, 2020, although the timeline for different requirements under the rules varies. In addition, OR-OSHA is currently drafting various sample documents for use in implementing the new rules and requirements. Where the sample documents are available, we have posted a link. Others are not yet available, and we will post those links as soon as they are released. Finally, the new rules include COVID-19-related safety requirements specific to particular industries, including schools (public and private), restaurants, retail outlets, and construction sites.

Key new requirements include:

  • By November 16, 2020
    • Post (and/or distribute electronically) a “COVID-19 Hazards Poster” available here.
    • Adopt a COVID-19 Infection Notification Process to notify exposed and affected employees of possible exposure within 24 hours of learning that an infected individual was in the workplace. OR-OSHA plans to publish a model procedure prior to November 16 but has not yet done so.
  • By December 7, 2020
    • Conduct an Exposure Risk Assessment, which contains information about telework, physical distancing, face-covering requirements, infection notification, and other information, and which incorporates employee feedback. OR-OSHA’s sample form is available here.
    • Implement an Infection Control Plan (OR-OSHA sample Plan forthcoming) which includes a list of jobs that require specific PPE, plans for ensuring an adequate supply of PPE, hazard protection measures, and a communication plan.
  • By December 21, 2020, conduct Employee Training regarding the Infection Control Plan and COVID-19. “optimize” air circulation in the workplace and ensure that the indoor air quality index at least “good” or “moderate.”

Following is more detail of the rules’ most critical provisions and when they go into effect. Continue Reading

New Requirements on Employers After Utah Declares State of Emergency Due to COVID-19

Utah residents were advised Sunday night of a state of emergency arising from the COVID-19 pandemic. In response to a significant spike in cases and attendant strain on Utah hospital facilities and health care providers, Governor Gary Herbert issued Executive Order 2020-73 (the “Executive Order”), imposing new restrictions to curb the transmission of the COVID-19 virus. Effective November 9, Utah is under a mask mandate requiring all individuals (with some exceptions) to wear a mask when indoors in public, or when outdoors and within six feet of another person. Utah employers are required to ensure that all employees and patrons wear a mask and maintain social distance of six feet between members of different households. The Executive Order also requires business signage advising employees and customers of the mask mandate and physical distancing requirements, among other information.

The Executive Order has certain exceptions for face coverings. For example, an employee or customer who is the sole occupant of a “room, cubicle, or similar enclosure” is not required to wear a face mask. There are also exceptions for eating, drinking, or when obtaining or providing services that require the temporary removal of a mask, like dental services or confirming identity at a bank. There are also exceptions related to health and safety and other limited circumstances. Some exceptions are relevant in the context of providing disability related accommodations to employees or customers, such as communicating with a deaf person, or when an individual has a medical or mental health condition that prevents him or her from wearing a mask. In addition to the mask mandate, the Executive Order also contains restrictions regarding social gatherings and extra-curricular school activities.

You can find a flyer about the Executive Order here, and a FAQ about the Executive Order provided by the state of Utah here. If you have any questions about compliance with the new Executive Order or other workplace issues, contact your Stoel Rives employment lawyer.

Right To Recall Laws Continue To Proliferate Throughout California

The public health crisis caused by COVID-19 has caused lawmakers up and down California to consider new and previously unheard of ways to protect employees.  While most of these methods have involved protections for existing employees, many jurisdictions are considering ways to protect employees who have lost work for reasons related to COVID-19.  One of the methods gaining the most traction is granting laid-off employees rights to recall.

In most situations, separation represents the end of the employee/employer relationship and the termination of any further duties.  Laws providing employees with “recall rights” change that analysis.  Under these laws, employers looking to hire for positions must first offer these positions to any recently separated employees.

Earlier this year, the California legislature passed Assembly  Bill (“AB”) 3216. This law applied to employers operating in the hospitality, janitorial, and airport industries and would have required employers in those industries to offer new jobs to former employees they laid off due to the COVID-19 crisis.  While California Governor Newsom ultimately vetoed AB 3216, similar laws are in place in many local jurisdictions. Continue Reading

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