Amendments to the Washington Paid Family and Medical Leave Act (“WPFMLA”) that went into effect June 11, 2020 include a new private right of action for employees. Under the WPFMLA, employers are prohibited from interfering with, discriminating against, or retaliating against employees exercising their rights under the Act. Previously, any claims of interference, discrimination, or…

Today the United States Supreme Court answered the question of whether Title VII, the federal law that prohibits workplace discrimination “on the basis of sex,” protects LGBT employees with a resounding “Yes.”  In a 6-3 decision, the Court held that: “The answer is clear. An employer who fires an individual for being homosexual or transgender…

Governor Brown’s latest Executive Order, 20-27, issued June 5, 2020 provides comprehensive guidance for Oregon employers as the majority of the state enters Phase II of Oregon’s reopening plan.  In addition to outlining the sector-specific requirements for Phase II, which we recently blogged about here, the Executive Order provides further instructions regarding office…

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