We continue to track Governor Brown’s plans for Oregon’s phased reopening, and the impact on Oregon employers.  Select Oregon counties have been approved to move into Phase 2 effective June 5, 2020, with the majority of Oregon counties moving into Phase 2 by June 8.  Multnomah County, Oregon’s most populous county, remains at Baseline, but hopes to enter Phase 1 starting June 12.

Phase 2 of Oregon’s reopening plan generally allows gatherings of up to 50 people indoors and 100 people outdoors, and encourages individuals to gather outdoors when possible.  The onus is on the operators of gatherings to determine maximum occupancy of each indoor and outdoor area and maintain at least six feet physical distance between parties, and adhere to various cleaning and sanitation requirements, which are available here.  Phase 2 also has sector-specific requirements for indoor & outdoor entertainment facilities, restaurants & bars, swimming pools & sports courts, recreational sports, and venues & events that are set forth in detail below.  Given the many moving parts and that requirements differ by sector, it is prudent for employers to ensure their employees have been provided with proper written policies, protocols, training, and necessary PPE before reopening their doors to the public.
Continue Reading Oregon Issues New COVID-19 Guidance for Employers as Most Counties Enter Phase 2

On Wednesday, June 3, the Ninth Circuit Court of Appeals held in Brady v. Autozone, No. 19-35122, slip op. at 1 (9th Cir. June 3, 2020), https://cdn.ca9.uscourts.gov/datastore/opinions/2020/06/03/19-35122.pdf, that class claims become moot when “a class representative voluntarily settles only his individual claims without indicating any financial stake in the unresolved class claims.”

Michael…

At midnight on May 31, Governor Inslee’s “Stay Home – Stay Healthy” order expired, replaced by his “Safe Start – Stay Healthy” order of the same day (“Safe Start Proclamation”).  Under the Safe Start Proclamation, any county may apply to transition to Phase II of the Safe Start Washington plan if it can…

In response to recent developments displaying the difficulties in enforcing Governor Jay Inslee’s “Stay Home Stay Healthy” order (“SHSH”), the state Department of Labor & Industries has acted.  Now a violation of SHSH will be treated as a violation of Washington’s health and safety regulations, and subject employers to the full panoply of fines and other penalties available under the Washington Industrial Safety and Health Act (“WISHA”).  The text of the new rule is available here.  The new rule was adopted on an emergency basis, here without public notice or comment, and is effective immediately.

The SHSH order was issued in late March, and “non-essential” businesses were ordered closed.  As the closures have dragged on, some businesses had re-opened anyway.  The most high-visibility cases were a pair of gyms, a business not deemed “essential” under SHSH.  SHSH had no effective enforcement mechanism, however, and the Washington Attorney General was reduced to threatening litigation under the Consumer Protection Act, on the theory that the open gyms derived an unfair advantage over gyms that were observing SHSH.  See the Attorney General’s letter here.
Continue Reading Be Aware: SHSH Violations Will Be Treated As WISHA Violations

Phased Reopening

As part of his proclamation extending the Stay Home – Stay Healthy Order through May 31, Governor Inslee established a phased approach to reopening the state: Safe Start Washington.

Under the plan, the entire state began in Phase I of four planned phases, with each phase expected to last at least three weeks. The Department of Health and Governor Inslee will periodically reevaluate factors related to health care system readiness, testing capacity and availability, case investigations and contact tracing, and the ability to protect high-risk populations in determining whether Washington should move to the next phase, remain in the current phase, or move back to a more restrictive phase.

Under Phase I:

  • High-risk populations are to remain at home;
  • Some outdoor recreation (hunting, fishing, golf, boating, hiking) is allowed;
  • Social gatherings are not permitted with individuals from different households;
  • Spiritual gatherings may operate as drive-in services with one household per vehicle;
  • Travel is limited to only essential and other “Phase I permissible” activities; and
  • A select few businesses are allowed to be open if they are essential businesses, certain existing construction projects, landscaping, auto/RV/boat/off-road vehicle sales, retail (curb-side pickup only), car washes, and pet walkers.

Smaller counties may request a variance to move to Phase II before the rest of the state if they have fewer than 75,000 residents and have not identified a resident with COVID-19 for the three consecutive weeks immediately prior to requesting the variance.  Currently, Asotin, Columbia, Garfield, Lincoln, Ferry, Pend Oreille, Skamania, Stevens, Wahkiakum, and Whitman Counties have been approved to move to Phase II, while the rest of the state remains in Phase I.
Continue Reading The Status of Washington’s COVID-19 Restrictions: Phased Reopening, Contact Tracing, and Mask Requirements

On Thursday, May 7, 2020 – six weeks after Oregon Governor Brown announced a statewide “Stay Home” order – Governor Brown released details for Reopening Oregon over the coming weeks and months.  The Governor’s plan follows federal guidance and permits certain businesses to reopen in phases after specific public health prerequisites are met.

In the first phase of the plan, counties that satisfy those prerequisites may permit certain business activities starting on May 15.  Phase 1 activities include sit-down dining at restaurants and bars and personal care services.  Each phase is required to last at least 21 days to ensure that each health benchmark is met before further loosening restrictions in the next phase.

In her announcement, the Governor also issued guidance for various sectors of the state – the public, employers, outdoor recreation, restaurants & bars, retail stores, and personal services providers.  The state’s guidance for employers is summarized below; we provided more detail for many of these concepts in our own Ten Things to Consider in Getting Back to Work.

General Considerations

  • Know the signs of COVID-19 illness and have a plan for what to do if an employee develops symptoms at the workplace.
  • Follow state and federal guidelines to protect employee health and safety.
  • Promote social distancing at work.
  • Understand your obligations under state and federal leave laws.

Continue Reading Reopening Oregon: Governor Brown Releases Details and Guidance for Businesses

As restrictions are easing, employers are planning for and starting to bring people back to work.  In these extraordinary times, everyone recognizes that things will not be business as usual.  Here is our “Top 10” checklist of things to consider as we move toward the “new normal.”

  1. Reluctant Returners. Many employees are eager to return

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Just when you thought it was safe to go back in the water (or stop sheltering in place anyway), a wave of COVID-19-related employment lawsuits are being filed across the country.  At our last count, nearly 50 labor and employment-specific cases have been filed.  The first in Oregon was filed earlier this month by a former assisted living facility employee who seeks $950,000 in damages for alleged whistleblower and sick leave retaliation.  Although the types of claims being brought by employees are typical—wage/hour, whistleblower, contract, wrongful termination, protected leave and discrimination claims, WARN Act violations—employers now face a perfect storm: defending real-time decisions made to keep their businesses afloat against the backdrop of a global pandemic that has completely disrupted business operations.  (And as we all know, “You can’t just call time out and stroll on into the beach if you don’t like the way things are going.”)

As we have mentioned during several COVID-19-related client briefings, courts will now have to wade into murky waters and provide clarity on how newly enacted or amended local, state and federal leave laws such as the Family First Coronavirus Response Act (“FFCRA”) operate, especially where statutory and regulatory guidance has not always been clear.  Courts will also need to provide direction on how well-settled legal schemes, such as disability and contract law, apply in the face of a pandemic.

Of particular concern for employers right now are trends in wage and hour class actions suits, which can pose significant risk of crippling wage penalties and plaintiffs’ attorney fees, as well as leave discrimination and whistleblower retaliation claims. These kinds of claims could draw sympathy from jurors and sink a business.  Here are a few of examples of employment cases recently filed across the country, and trust us, “You’re gonna need a bigger boat.”
Continue Reading COVID-19 Litigation: The Next Wave