E-Alerts

As a special service to our clients, Barran Liebman LLP provides valuable Electronic Alerts℠ free of charge. The Electronic Alerts℠ summarize new case law and statutes that may impact your business, and suggest methods to comply with new legal requirements.

If you would like a copy of an archived E-Alert emailed to you, please contact Traci Ray by email or phone at 503-276-2115.

Jeffrey G. Robertson 3/18/21 Jeffrey G. Robertson 3/18/21

3/18/21: COVID-19 Benefits Update

March 18, 2021

By Jeff Robertson & Iris Tilley

Things are changing fast, and time is flying by as we move into the second year of the coronavirus pandemic. In fact, it’s hard to believe that some of the relief previously issued has expired and that new laws are being passed, with the American Rescue Plan Act of 2021 (ARPA) being signed into law by the President last week. Below is a highlight of what has expired and what is new.

Expired:

Coronavirus-Related Distribution from a Qualified Retirement Plan: Coronavirus-related distributions were available until December 31, 2020.

Coronavirus-Related Loan from a Qualified Retirement Plan: Coronavirus-related loans were available until September 22, 2020.

New:

Optional Provisions for Section 125 Plans: For plan years ending in 2020 or 2021, employers may lengthen the grace period or increase the carryover limit to allow employees to utilize otherwise unused 125 Plan funds. Implementing these changes requires a plan amendment.

Increase in the Limit for DCAP Benefits: For years beginning after December 31, 2020, and before January 1, 2022, employers may amend their 125 Plan to increase the limit of the amount that an employee can exclude from their income for dependent care assistance from $5,000 to $10,500 and from $2,500 to $5,250 for taxpayers who are married filing separately.

Premium Assistance for COBRA Continuation Coverage: Beginning April 1, and until September 30, 2021, there is a 100% COBRA continuation coverage subsidy for assistance eligible individuals. The term assistance eligible individual means, with respect to a period of COBRA coverage during the period beginning April 1, 2021, and ending September 20, 2021, an individual who is eligible to elect COBRA coverage for any reason other than voluntary termination of their employment and who elects to continue their group health plan coverage through COBRA.
- Employers also have the option to allow assistance eligible individuals to enroll in different employer-sponsored coverage at the time that the individual elects to continue their group health plan coverage under COBRA.
- Employers who sponsor group health plans to which this relief applies must comply with detailed notice requirements.
Assistance for Single & Multiemployer Pension Plans: There is new relief for single and multiemployer plans. For single employer plans, this includes spreading the amortization period for funding shortfalls from 7 years to 15 years. For multiemployer plans, this includes establishing a special funding assistance program for multiemployer plans in critical and declining status.

Employers who have questions about any of these changes may contact Barran Liebman benefits team members Jeff Robertson or Iris Tilley at 503-228-0500 (or jrobertson@barran.com or itilley@barran.com, respectively).

Click to access a PDF of this Electronic Alert.

Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. Alerts are not intended as legal advice, but as employment law, labor law, and employee benefits announcements. If this has been forwarded to you, and you would like to begin receiving Electronic Alerts directly, please email or call Traci Ray at 503-276-2115. Copyright ©2021 by Barran Liebman LLP.

Jeffrey G. Robertson 3/17/21 Jeffrey G. Robertson 3/17/21

3/17/21: New E-Verify Tools Expedite Employment Eligibility Confirmation

March 17, 2021

By Paula Barran

There are new, free resources available from the federal government for resolving issues with confirming employment eligibility through E-Verify. When the E-Verify system detects that an employee’s information submitted from the Form I-9 does not match government records, often referred to as a “mismatch,” the employer will receive a Department of Homeland Security Tentative Nonconfirmation (TNC).

E-Verify employers are required to take action on TNCs for their employees within 10 federal government working days of receiving the notice. The TNC is accompanied by a Further Action Notice, explaining the specific cause of the TNC and what actions must be taken by the employee to resolve the issue.

Employers’ I-9 protocols should be updated to include these two new resources for resolving TNCs:

The myUploads feature on the E-Verify portal allows employees to electronically upload images of their documentation as a JPEG, PNG, or PDF; and
Employees now have the option to call the Department of Homeland Security, instead of wait for an appointment at a Social Security field office, if the Further Action Notice indicates that a SSA “citizen mismatch” is the cause of the TNC.

Both tools are expected to help resolve TNCs more efficiently and help employers avoid keeping E-Verify cases open for significant periods of time.

Beware of the common misperceptions about TNCs when taking steps to respond. Making the assumption that the employee is undocumented might lead you to take steps or make statements that create legal liability under state and federal anti-discrimination statutes. The best practice is to privately notify the employee of the TNC and provide them with the Further Action Notice and the new free resources above to resolve the inconsistency.

For questions about the new E-Verify tools or for any other questions related to employment eligibility, contact Paula Barran at 503-228-0500 pbarran@barran.com.

Click to access a PDF of this Electronic Alert.

Jeffrey G. Robertson 3/11/21 Jeffrey G. Robertson 3/11/21

3/11/21: What Employers Need to Know About the American Rescue Plan Act of 2021

March 11, 2021

Today, President Biden signed the American Rescue Plan Act of 2021 (“ARPA”) into law. This comprehensive stimulus package contains a number of provisions aimed at supporting the supply chain of vaccinations and immunization funding and alleviating the harsh effects of the pandemic. While some key employment provisions were removed from the final bill (such as the minimum wage hike and elimination of the tip credit), here are the key provisions that are relevant to employers.

FFCRA Leave: In the ARPA, Congress has chosen not to revive the expired mandatory FFCRA leave requirements. Although new mandatory leave requirements will likely be subject to further Congressional debate, for now, the ARPA extends the tax credit for qualified wages employers voluntarily provide for up to ten days of leave for qualifying absences. These tax benefits are cumulative and allow employers who have previously taken the tax credit to use it again for wages paid for leave taken on or after April 1, 2021.

In addition to paid leave for absences originally covered by FFCRA, this tax credit will also be available for sick leave wages paid to an employee (1) seeking or waiting for the results of a COVID-19 diagnosis because of exposure to COVID-19 or an employer requested COVID-19 test, (2) receiving a vaccination for COVID-19, and (3) recovering from a medically diagnosed injury or illness resulting from vaccination for COVID-19. The daily $200 cap on qualified wages remains the same, but the overall cap on tax credits employers can claim for an individual has increased from $10,000 to $12,000.

Employers should be wary that policies that vary from FFCRA and FMLA requirements could result in the loss of the tax credit. Additionally, ARPA has adopted non-discrimination rules, so that if the employer, in determining availability of the paid leave, discriminates in favor of highly compensated employees, full-time employees, or employees on the basis of tenure, the employer may lose the tax credit.

These new provisions will be in effect starting April 1, 2021, and sunset on September 30, 2021.

Paycheck Protection Program: Congress has appropriated a relatively modest amount of $7.25 billion for the Paycheck Protection Program, and has decided not to extend the March 31, 2021, deadline to apply for assistance. In lieu of more robust PPP funding, the ARPA has substantially expanded other business assistance programs. For example, the ARPA appropriates an additional $15 billion for the Small Business Administration to assist struggling businesses, more than $25 billion specifically for the restaurant industry, and $1.25 billion for the Shuttered Venue Operators Grant.

Employee Retention Tax Credit: The Employee Retention Tax Credit that provides a refundable tax credit for up to 70% of qualified wages is extended from July 1, 2021, to December 31, 2021. Additionally, the ARPA makes additional changes effective June 30, 2021, by allowing startup businesses with gross receipts of up to $1 million to claim a tax credit limited to $50,000 each quarter. Severely financially distressed employers can claim a larger tax credit and small employers may receive an advance of their tax credit.

Unemployment Insurance: The ARPA extends the “add-on” $300 weekly federal unemployment funding and other unemployment insurance benefits set to expire on March 14, 2021. These benefits will now expire on September 6, 2021. Governmental and non-profit entities (including many higher education institutions) will also receive a more favorable reimbursement rate for unemployment insurance benefits. Between March 31, 2021, and September 6, 2021, they will receive reimbursements for 75% rather than 50% of the covered unemployment insurance benefits.

A forthcoming E-Alert will separately address COBRA assistance subsidies in greater detail, as well as other changes to benefits plans. Barran Liebman will also keep you abreast of key guidance as it is released.

For questions relating to the American Rescue Plan Act of 2021 or your policies related to COVID-19, contact the Barran Liebman team at 503-228-0500.

Click to access a PDF of this Electronic Alert.

Jeffrey G. Robertson 3/10/21 Jeffrey G. Robertson 3/10/21

3/10/21: Investigation Takeaways for Public & Private Employers

March 10, 2021

Oregon Representative Diego Hernandez’s resignation effective this month followed allegations of sexual harassment, an investigation into those claims, Committee hearings regarding the findings, and a lawsuit by Rep. Hernandez regarding the investigation and process. Of course, allegations of harassment are not confined to political offices, and the investigation and process provides important lessons for all workplaces, including those at public and private employers.

Background

In the spring of 2020, allegations of harassment came to light regarding Rep. Hernandez’s relationship with women who had business before or worked with the Oregon Legislature. The allegations prompted an investigation, conducted by experienced attorneys who acted as outside independent investigators, into potential violations of the Oregon Legislative Branch’s workplace harassment policy (Rule 27). The investigative report was submitted to the House Conduct Committee to consider whether the conduct alleged in the final report violated Rule 27. The Committee heard testimony from five anonymous subjects of the investigation and heard evidence and arguments disputing the allegations and contesting the investigative process through counsel for Rep. Hernandez. Rep. Hernandez also filed a lawsuit against the Oregon Legislature, the Oregon House of Representatives, and other named defendants alleging claims for due process and equal protection violations under the Fourteenth Amendment, a claim for First Amendment retaliation, and seeking a declaratory judgment that Rule 27 of the Oregon House of Representatives is facially unconstitutional and unconstitutional as applied to him. His motion for a temporary restraining order and emergency stay was denied on February 20, 2021.

1. Choose the proper investigator.

With respect to Rep. Hernandez, a formal complaint alleging inappropriate conduct by a legislator requires appointing an experienced attorney who is not an employee of the Legislative Assembly to act as an independent investigator and conduct the investigation into the allegations.

Similarly, public and private employers must also carefully consider the appropriate investigator for workplace investigations. In some situations, employers should work with an external investigator, while internal investigators may be appropriate in other situations. Note, Oregon employers cannot use an outside investigator unless they are a licensed attorney or licensed private investigator.

This decision to work with an external or internal investigator depends on a variety of factors, including the nature and complexity of the claim, the position held by the respondent, and the Company’s internal capacity to efficiently investigate the complaint. An experienced attorney will provide specialized experience, the ability to address complex factual and legal issues, and greater impartiality, which is especially important for particularly sensitive matters or complaints involving senior management. There are additional considerations if there is a possibility the complaint could eventually lead to litigation: work conducted by an internal Human Resources representative may become discoverable, and an in-house attorney cannot be the same attorney who conducts the investigation and represents the company in subsequent litigation.

The chosen investigator should always be neutral, well-trained, respectful, and available to conduct a thorough investigation.

2. Conduct a prompt investigation, and keep the complainant informed about delays.

Delays in investigations risk the appearance of fairness, and in some cases, may deprive the employer of the ability to impose discipline or comply with timeliness requirements in a collective bargaining agreement or policy. In his complaint, Rep. Hernandez alleged the investigation was delayed by nearly 200 days for improper reasons and that investigators did not tell him why it was being delayed. In essence, he claimed the investigation deprived him of due process. This sort of claim undermines confidence in the fairness of the process.

Regardless of the underlying facts and truth to these allegations, complaints about undue delays raise important considerations for all workplace investigations. First, workplace investigations must be prompt. This is one of the key touchstones of an effective workplace investigation as unnecessary delays could affect liability in future litigation or the ability to take disciplinary measures. In addition, the complainant should be reasonably informed about the status of the investigation, and delays or other deviations from standard investigation process should certainly be explained in the investigation report. All employees must be treated fairly throughout the investigation process, and the complainant should have confidence that the employer takes the concerns raised seriously.

3. Allow the complainant to provide a meaningful response.

In the lawsuit, Rep. Hernandez also alleges that he was not given an opportunity to rebut evidence presented by other witnesses since the investigator contacted him about a second interview, but the interview never occurred.

Again, regardless of the truth to this allegation, it raises another important consideration for investigations generally in highlighting the importance of the follow-up interview with the complainant. Generally, after interviewing the complainant, the respondent, and other witnesses, the investigator will conduct a follow-up interview with the complainant in order to provide an opportunity to explain additional or contradictory evidence. Sometimes this will result in a perfectly logical explanation for factual discrepancies, and other times it will involve credibility determinations due to contradictory factual accounts. Either way, it is important to maintain neutrality throughout the investigation process.

Ultimately, all workplace investigations must be prompt, thorough, and impartial, and issues raised about Rep. Hernandez’s investigation highlight some of the essential considerations for all workplace investigations.

For questions about workplace investigations, contact the Barran Liebman team at 503-228-0500.

Click to access a PDF of this Electronic Alert.

Jeffrey G. Robertson 3/8/21 Jeffrey G. Robertson 3/8/21

3/8/21: New CDC Guidance Provides Recommendations for Fully Vaccinated People

March 8, 2021

By Wilson Jarrell

This morning, the Centers for Disease Control and Prevention put out its first set of public health recommendations for people who have been fully vaccinated. This guidance can help provide direction not only to vaccinated individuals in their personal actions, but may also help guide employers in how to safely incorporate vaccinated individuals back into the workplace.

For the purposes of the guidance, a person is considered “fully vaccinated” after it has been at least two weeks after that person received the second dose in a 2-dose series (currently, the Pfizer-BioNTech or Moderna vaccine) or at least two weeks after that person received a single-dose vaccine (the Johnson and Johnson/Janssen vaccine).

Under the new recommendations, fully vaccinated people can:

Visit with other fully vaccinated people indoors without wearing masks or physical distancing;
Visit with unvaccinated people from a single household who are at low risk for severe COVID-19 disease indoors without wearing masks or physical distancing; and
Refrain from quarantine and testing following a known exposure if asymptomatic (unless employed in a high-density workplace, such as a correctional and detention facility, group home, or meat processing or manufacturing plant).

However, the CDC still recommends that fully vaccinated people take precautions like wearing a well-fitted mask and physical distancing when in public or while visiting unvaccinated people who have an increased risk for severe COVID-19 disease or when visiting with unvaccinated people from multiple households.

For employers, this may sound like a free pass for fully vaccinated employees to return to work as normal, but caution should still be exercised. The CDC specifically states that fully vaccinated people should follow previous guidance while in public spaces, including following any applicable workplace guidance.

Until updated, employers must still follow the requirements under Oregon’s Executive Orders, Oregon OSHA’s rules, and OHA guidance. Any changes to an employer’s COVID-19 protocols should be done with the advice of counsel.

However, employers should consider revising their Infection Control Plan and Exposure Risk Assessment to allow for fully vaccinated individuals with no COVID-like symptoms to avoid quarantine or testing following exposure (note that testing is still recommended if employed in a high-density workplace).

For help with revising Infection Control Plans and Exposure Risk Assessments, or for any questions regarding COVID-19 guidance, contact Wilson Jarrell at (503) 276-2181 or wjarrell@barran.com.

Click to access a PDF of this Electronic Alert.

Jeffrey G. Robertson 3/5/21 Jeffrey G. Robertson 3/5/21

3/5/21: Multnomah County Employers: Are Your Employees Ready for the Preschool for All Income Tax? Is Your Payroll System Ready?

March 5, 2021

By Jeff Robertson

Employers whose employees work in Multnomah County take note: a new personal income tax measure took effect on January 1, 2021. This measure was quickly passed in the 2020 election, and likewise, quickly becomes effective. The measure was passed as one that seemingly required Multnomah County residents to file and remit the special Income Tax yearly, similar to the Arts Tax.

Two important points have arisen from the limited guidance available:

The Income Tax appears to be effective for anyone performing work in Multnomah County, as well as residents of Multnomah County who work in other counties; and
Multnomah County is attempting to require employers to withhold the tax in 2022 and asking employers to begin withholding in 2021. The tax funds Preschool for All (PFA), which will provide free preschool for 3 and 4 year-olds in Multnomah County starting in September 2022. PFA is funded by a personal income tax of 1.5% on Oregon taxable income over $125,000 for individuals and over $200,000 for joint filers, and an additional tax of 1.5% on Oregon taxable income over $250,000 for individuals and $400,000 for joint filers. The tax applies to all Oregon taxable income earned by Multnomah County residents and income of nonresidents whose income is derived from Multnomah County.

Employees whose income is over the thresholds above will owe the tax starting in 2021.

There has been very little public discussion on the tax, its impact on employees, or the payroll requirements on employers, and this may be an unwelcome surprise to many higher wage earning employees. We do not have any guidance on how an employer is supposed to withhold on joint income thresholds, liability on failure to withhold or an employee’s failure to remit the tax, work-from-home implications, or other considerations. Many payroll and HR departments may not even know there are any employer requirements for 2022 on withholding.

We remain available to help answer questions to the extent possible.

Employers who have questions about PFA withholding or other similar issues may contact Barran Liebman benefits team members Iris Tilley or Jeff Robertson at 503-228-0500 (or itilley@barran.com, jrobertson@barran.com, respectively).

Click to access a PDF of this Electronic Alert.

Jeffrey G. Robertson 3/1/21 Jeffrey G. Robertson 3/1/21

3/1/21: California Family Rights Act Expanded to Include More Northwest Employers

March 1, 2021

On January 1, 2021, California Senate Bill 1383 went into effect, expanding the California Family Rights Act (“CFRA”) – the California counterpart to the Oregon Family Leave Act (“OFLA”). If you are a Northwest employer, why should you care? Now, employers with 5 or more employees anywhere in the country need to comply with CFRA for their California employees, even if they have only one California employee. To comply, employers with one or more California employees must have a written CFRA policy and provide up to 12 weeks of unpaid protected CFRA leave to those California employees with qualifying reasons to take family or medical leave.

More Employers Now Covered by CFRA

CFRA previously applied to companies with 50 or more employees. Because the law applied to larger operations with employees in California, it was not usually a compliance concern for most companies based in the Northwest (even those with a California employee or two). However, because the coverage size is now much smaller and because non-California-resident employees are included in the threshold employee count, many more employers may be affected by the law.

More Employees Now Covered by CFRA

The amendments also eliminated the requirement for employees to be working at a site with 50 or more employees within a 75-mile radius. This mileage requirement used to exclude from coverage remote California employees because their worksite was their home or a small satellite office. Even California employees of large, out-of-state employers who were previously excluded from coverage may be newly covered under this expansion.

All CFRA Policies Need Updates

If your CFRA knowledge is old hat, be aware that the updates also expanded qualifying reasons and eliminated previous exceptions. All CFRA policies will need a refresh to include the correct eligibility requirements.

What this Means for Northwest Employers

Leave obligations to out-of-state employees are usually informed by the jurisdiction where the employee works. This means that an Oregon or Washington employee working remotely in California during the pandemic might now be a covered worker for CFRA purposes.

Employers should evaluate whether they are (1) a covered employer under the California leave law; and (2) whether the individual employee is eligible for leave. The expansion of the California Family Rights Act could mean your California employees can use CFRA leave for the first time, if:

You have 5 or more employees anywhere in the U.S.; and
You have one or more California employees who have worked for you at least 12 months and worked 1250 hours or more in the 12 months prior to requesting leave.

If this applies to you, you should:

Create a CFRA policy for your California employees to comply with the CFRA requirement for a written policy; and
If you already have a CFRA policy, ensure that it reflects the expanded qualifying reasons.

For questions about the expanded California Family Rights Act or for assistance in updating your employee handbook, contact the Barran Liebman team at 503-228-0500.

Click to access a PDF of this Electronic Alert.

Jeffrey G. Robertson 2/26/21 Jeffrey G. Robertson 2/26/21

2/26/21: Flurry of Personnel & Policy Changes at the NLRB

February 26, 2021

By Natalie Pattison

Significant personnel and policy changes are afoot at the National Labor Relations Board (“NLRB”). The Biden administration has wasted no time in overhauling the NLRB’s personnel in order to reverse many of the policies put in place under the previous administration.

New Administration Moves Swiftly on NLRB Personnel Changes

Hours after the inauguration, President Biden fired the NLRB’s General Counsel, Peter Robb, and has since nominated Jennifer Abruzzo to serve as NLRB General Counsel. Abruzzo previously served as Special Counsel for the Communications Workers of America (“CWA”), the largest communications and media labor union in the United States. In her new position as NLRB General Counsel, Abruzzo will have broad discretion to determine labor policy.

Before Abruzzo was nominated, the Acting General Counsel of the NLRB, Peter Sung Ohr, made some significant policy changes by rolling back a slew of memos issued by former General Counsel Robb, that provided guidance regarding the National Labor Relations Act (“NLRA”). According to Ohr, he rescinded the memos because they were “inconsistent” with the NLRA’s purpose of encouraging collective bargaining and protecting workers’ rights, or because they were obsolete or contrary to Board law.

General Counsel Memoranda Rescinded

One of the most significant directives rolled back by Ohr was a memo issued by his predecessor that provided guidance on employee handbook rules and policies following the NLRB’s decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017). As a reminder, the decision in Boeing afforded employers more deference in their handbook polices by announcing a new balancing test by which workplace rules would be judged. The Boeing test determines lawfulness of a workplace rule by weighing the business justifications for the rule against the rule’s potential impact on employees’ rights. Following Boeing, former General Counsel Robb issued a memo providing examples and explanations to help employers determine whether certain polices are permissible under the NLRA. Ohr’s stated rationale for rescinding the memo was that it was no longer necessary given the number of Board decisions interpreting Boeing since it was issued.

Other memos Ohr rescinded that are worth noting include the following: a memo that put new restrictions on agency investigations and lawyers receiving recorded or documentary evidence; a pair of memos that lowered the bar for prosecuting unions; memos that increased the level of detail unions had to include in financial notes and called for imposing new rules on collecting member dues and nonmember fees; and a memo seeking new limitations on union-employer neutrality agreements.

Employers Should Expect Continued Changes by the NLRB

Employers should expect more policy changes and guidance in the near future and take into consideration that prior NLRB guidance has been or may be rescinded. All workplaces will be affected by the shifting tide of traditional labor law, regardless of whether the employer’s workforce is unionized. Barran Liebman will continue to publish E-Alerts on changes at the NLRB so that employers can stay informed of changes on the labor law horizon, and reach out to counsel when needed to ensure compliance with the new guidance and policies.

For questions about recent NLRB changes, contact Natalie Pattison at 503-228-0500 or npattison@barran.com.

Click to access a PDF of this Electronic Alert.

Jeffrey G. Robertson 2/8/21 Jeffrey G. Robertson 2/8/21

2/8/21: What the Consolidated Appropriations Act of 2021 Means for an Employer’s Ability to Make Pre-Tax Student Loan Payments for Their Employees

February 8, 2021

By Iris Tilley

As employees join the workforce with more and more student loan debt, employee benefit programs that help employees chip away at this debt have become of increased interest to employees. However, the employer side of this equation has remained complicated, with few options available to those employers wishing to assist employees with debt they incurred prior to their hire date.

The Coronavirus Aid, Relief, and Economic Security (CARES) Act temporarily expanded these options, and the Consolidated Appropriations Act of 2021 (CAA 2021) extended the time period of this temporary expansion. As the law stands now, employers are permitted to include student loan assistance of up to $5,250 per year in their Educational Assistance Plans until December 31, 2025.

Practically, this means that employers can pay up to $5,250 annually toward employee’s student loan debt on a tax-free basis, so long as they structure the payments in compliance with IRS rules governing Educational Assistance Plans, which come from IRS Code Section 127.

In particular, in order to qualify as an Educational Assistance Plan and provide tax-free student loan payments, the employer must (or in some cases, should):

Have a written plan document describing the group of eligible employees, the types of benefit offered, and a statement that employees cannot chose between the benefit and cash compensation;
Provide notice to employees that the benefit exists;
Obtain expense substantiation for amounts to be paid under the plan; and
Perform nondiscrimination testing.

For questions on employee benefit programs aimed to address student loan debt, the effects of COVID-19, or for any other benefits matters, contact Iris Tilley at 503-228-0500 or at itilley@barran.com.

Click to access a PDF of this Electronic Alert.

Jeffrey G. Robertson 1/22/21 Jeffrey G. Robertson 1/22/21

1/22/21: Should Employers Require COVID-19 Vaccinations? Considerations & Best Practices for Employers

January 22, 2021

By Natalie Pattison

Many employers are deciding whether they can—or should—require employees to receive a COVID-19 vaccine. Here’s what we know so far:

Employers Can Legally Require Vaccination, With Some Exceptions.

The general rule, with some exceptions, is, yes, employers can require employees to be vaccinated. There are three main exceptions to the general rule: disability accommodations, religious accommodations, and healthcare workers in Oregon. Current guidance from both the U.S. Equal Employment Opportunity Commission (“EEOC”) and the Oregon Bureau of Labor & Industries (“BOLI”) confirm this position. See our previous E-Alert on the EEOC’s guidance for more details.

Here are the exceptions:

Disability Accommodations: Employers must provide reasonable accommodations for employees who object to being vaccinated due to a disability, unless it would impose undue hardship.
Religious Accommodations: Employers must provide reasonable accommodations for employees who object to being vaccinated due to sincerely held religious beliefs, unless it would impose undue hardship.
Healthcare Workers in Oregon (ORS 433.416): Oregon law provides that healthcare workers may not be required to receive immunization as a condition of work unless the immunization is otherwise required by federal or state law, rule, or regulation. See our previous E-Alert on this Oregon statute for more information, including who is a healthcare worker under this statute.

However, There Are Additional Considerations.

Even though employers generally can require employees to be vaccinated, there are other important considerations.

Impact of the FDA’s Emergency Use Authorization: So far, the approved vaccines were processed under the U.S. Food and Drug Administration Emergency Use Authorization (EUA) process. That process requires vaccine recipients to be notified that they have the option to accept or refuse the vaccine. It is not yet clear whether this right-to-refuse might limit an employer’s ability to require vaccinations. For example, Oregon recognizes public policy wrongful termination claims to the extent an employer terminates an employee for pursuing statutory rights directly related to employment, so a kind of wrongful termination theory might be asserted by an employee who refuses to be vaccinated based on the EUA “right-to-refuse.”
Workers’ Compensation: An employee who has a negative reaction to a mandatory vaccine may well have a compensable injury resulting in a workers’ compensation claim, or may seek to avoid the exclusivity of workers’ compensation by asserting a deliberate injury. This is one consideration employers may evaluate in deciding to offer any vaccination through a third-party provider.
Unionized Workplaces: Requiring vaccination is a mandatory subject of bargaining under the National Labor Relations Act, and may be something already addressed in a Collective Bargaining Agreement.
Wage & Hour Considerations: Employers who require their Oregon employees to receive a COVID-19 vaccine may need to compensate them for the time spent getting vaccinated. BOLI’s recent guidance suggests that time spent getting vaccinated falls under the broad category of “medical attention,” which triggers Oregon wage and hour requirements. Under those requirements:
- If an employee is required to get a vaccine and receives the doses on-site or off-site when they would otherwise be working, their employer must treat that time as hours worked in payroll.
- If the employee gets their required vaccine at an off-site location and outside of their working hours, their employer is not required to pay them for their time spent getting vaccinated.

Pending Oregon OSHA standards may require payment for the out-of-pocket costs an employee incurs in getting vaccinated as well as travel.

Proof of Receipt of Vaccination: Asking for proof of receipt of vaccination is not itself a disability-related inquiry under the ADA. However, employers should be cautious when requesting proof of vaccination, even if the employer is only asking to collect information and not as part of a mandatory vaccine requirement. Employers should only ask for a “yes” or “no” and not why an employee did or did not receive the vaccine or ask for any medical-related information to avoid triggering ADA standards.
Incentive Programs: Employers who offer an incentive to encourage employees to receive the vaccine must analyze whether the incentive is permissible. Depending on the structure of the incentive, it could constitute a “wellness program” governed by the ADA, HIPAA, or GINA, in which case the program will need to be designed with these laws in mind, including limits on the incentive that may be offered. However, even where these laws do not apply, incentive programs must be carefully crafted to avoid potential employment law issues, including pay equity concerns, that could be raised by employees who refuse to receive the vaccine.

Employer-mandated vaccines have become a complicated issue in Oregon. As the law on COVID-19 vaccines continues to develop and change, employers should remain diligent and flexible when making decisions about their vaccine policies. Employers should consult with counsel to determine whether they can legally require vaccines and analyze other important considerations for their particular workplace, including wage and hour, pay equity, wellness program, and other considerations.

For any questions about navigating COVID-19 in the workplace, contact Natalie Pattison at 503-228-0500 or npattison@barran.com.

Click to access a PDF of this Electronic Alert.

Jeffrey G. Robertson 1/8/21 Jeffrey G. Robertson 1/8/21

1/8/21: New Year, New Classification Rules: Department of Labor Updates Economic Realities Test for Wage Claims

January 8, 2021

Appropriately classifying a worker as an independent contractor or an employee has always required a fact-intensive assessment about the economic realities of the individual’s work and weighing a long list of overlapping factors. On January 7, 2021, the United States Department of Labor (“DOL”) published a final rule that simplifies the legal standards under the Fair Labor Standards Act for classifying workers as independent contractors to provide greater predictability and flexibility for companies and workers alike.

Core Factors

The DOL’s new rule reaffirms that the central importance of the economic realities test assesses whether the individual is economically dependent on the potential employer for work or the worker is in business for themselves. Under the new rule, two “core factors” take center stage: (1) the nature and degree of the worker’s control over the work, and (2) the worker’s opportunity for profit or loss based on initiative, investment, or both. If these factors point toward the same classification, it is likely that they will determine a worker’s classification.

Additional Considerations

The DOL will also consider the following factors to a lesser degree: (1) the amount of skill required for the work, (2) the degree of permanence of the working relationship between the individual and the potential employer, and (3) whether the work is part of an integrated unit of production.

This final factor has undergone notable revisions. The DOL will no longer consider the importance or centrality of the individual’s work to the potential employer’s business or the “line of business” test.

Instead, this factor considers whether the worker depends on the overall production process to perform work duties, such as, for example, a programmer who works on a software development team. The final rule further illustrates this factor by comparing an editor and a freelance journalist. An editor is part of an integrated unit of production because they are involved in the entire production process, from assigning articles to determining layout, and their work is dependent on the constant coordination with other employees. By contrast, a freelance journalist, who only writes discrete articles, does not communicate with employees other than the editor, and provides discrete services to the company. Therefore, the freelance journalist’s work can be completely segregated from the other parts of the newspaper’s production process, suggesting the worker is properly classified as an independent contractor.

The new rule comes into effect on March 8, 2021, but employers should be aware that this new rule is limited to resolving worker classification issues under federal wage and hour law. It does not preempt or directly affect the tests that are applied under state law or federal discrimination, harassment, or retaliation laws, as those statutes have their own worker classification tests.

For any questions relating to classifying workers, contact the Barran Liebman team at 503-228-0500.

Click to access a PDF of this Electronic Alert.

Jeffrey G. Robertson 1/6/21 Jeffrey G. Robertson 1/6/21

1/6/21: What the Consolidated Appropriations Act of 2021 Means for Your Retirement & Health Plans

January 6, 2021

On December 28, 2020, we looked at what the Consolidated Appropriations Act of 2021 (“CAA of 2021”) means for your flexible spending and dependent care accounts. Today, we tackle the sprawling bill’s effect on your health and retirement plans.

Retirement Plans

Relief from Partial Plan Termination

The CAA of 2021 provides some relief for employers who had to terminate a large amount of their workforce but who are able to rehire employees by March 31, 2021. The CAA of 2021 provides that employers will not be considered to have had a partial plan termination in any plan year that includes the period from March 13, 2020 to March 31, 2021, as long as the number of active participants in the plan on March 31, 2021 is at least 80% of the number of active participants who were in the plan on March 13, 2020. This is good news for employers whose plans would have otherwise incurred a partial termination, because partial plan termination results in 100% vesting for affected participants.

Coronavirus-Related Distributions from Money Purchase Pension Plans

The CAA of 2021 amended the CARES Act to include Money Purchase Pension Plans in the group of retirement plans from which an individual can take a Coronavirus-Related Distribution. This amendment applies as if it was included in the CARES Act.

Employers who wish to offer this distribution option may operate their plans in compliance with this change now. No plan amendment is required until the end of the plan sponsor’s first plan year beginning on or after January 1, 2022 (2024 for government plans).

Disaster Relief

Similar to the relief included in the Further Consolidated Appropriations Act 2020, the CAA of 2021 includes provisions that provide flexibility in distributions and loans from certain qualified retirement plans that are requested as a result of a disaster declared as such under the Robert T. Stafford Disaster Relief and Emergency Assistance Act.

Employers who wish to include this relief in the plans they offer have until the end of the plan sponsor’s first plan year beginning on or after January 1, 2022 to make plan amendments (2024 for government plans).

Health Plans

Protections Against Surprise Medical Bills

The No Surprises Act (an act within the CAA of 2021) protects healthcare consumers from the surprise medical bills that can result when they receive care from an out-of-network provider in an emergency. Prior to the No Surprises Act, patients often received bills that were higher than they had expected because the law permitted patients to be billed for the balance between the amount that their health plan would cover for the service as an out-of-network service and the total cost of the service.

The No Surprises Act applies to both self-funded and insured health plans. It covers air ambulance and emergency services and out-of-network services provided at in-network facilities. The No Surprises Act prohibits providers from billing patients for the balance of the cost of these services and generally limits the amount a patient can be billed to the in-network cost. The No Surprises Act also creates a process through which plans and providers will negotiate the cost of the services covered by the No Surprises Act.

The No Surprises Act is effective in 2022. Employers will want to work with their insurers, third-party administrators, and/or attorneys to ensure that the health plans they sponsor are amended to include the updates required by the law.

Employers who have questions about any of the changes mentioned in this E-Alert can contact the Barran Liebman team at 503-228-0500.

Click to access a PDF of this Electronic Alert.

Jeffrey G. Robertson 1/5/21 Jeffrey G. Robertson 1/5/21

1/5/21: Happy New Year! It’s Time to Review Policies & Procedures for Workplace Complaints

January 5, 2021

By Wilson Jarrell

Now that 2020 is (finally) over, the new year is a perfect time to re-evaluate how you handle employee complaints of harassment or other misconduct. The ongoing COVID-19 pandemic has changed how many employees work, and while some forms of complaints have become temporarily less prevalent, other complaints have arisen. Further, as employees return to work or settle into a new more permanent remote status, employers would do well to expect a resurgence of workplace complaints.

How an employer responds to a complaint is extremely important. Just last month, the EEOC fined two employers amounts in the six figures for harassment claims that may have otherwise been avoided if the companies had conducted proper investigations.

Everyone hopes that their workforce is happy and functioning appropriately, but when a complaint arises, it is important that you are prepared and that your managers are well trained on how to appropriately respond.

Although receiving a complaint can often feel like a problem, there is a positive aspect that comes with it. The underlying issue exists independent of a complaint, and an employee coming forward provides you an opportunity to respond and handle the situation. Receiving a complaint allows you to both (a) shield yourself against liability from some claims by raising an affirmative defense that reasonable steps were taken to stop and prevent any alleged harassment, and (b) provide you with a solid record on which you can base disciplinary action.

In order to properly address a complaint and take advantage of the silver linings, it is important that you respond promptly, conduct a thorough and fair investigation, and take reasonable action based on the results.

1. Receiving a Complaint

Managers and supervisors are often the first to hear a complaint or the preceding concerns, and are the first to have an opportunity to address problematic behavior. It is important that managers and supervisors treat all complaints seriously. It is not the time to complain about receiving complaints or express opinions about the merits of it (or the complainant or the person accused of wrongdoing). Instead, a manager or supervisor should respond to a complaining employee promptly, thanking them for coming forward and expressing how seriously the organization takes complaints. They should also state that the organization will follow up throughout the process and at the conclusion, and invite questions about that process. Managers and supervisors may benefit from both formal training and informal conversation granting them the appropriate language and tools to respond.

After receiving a workplace complaint, the employer must evaluate whether an investigation is warranted. Some employers investigate all complaints, which helps demonstrate how seriously the company takes them. Although not every complaint necessitates a full investigation, the employer should minimally review the allegations and determine if true, if the alleged conduct violates company policy. An investigation is particularly important for any complaint which includes behavior that could potentially be unlawful or which could lead to disciplinary action for an employee.

But not every investigation begins with an employee complaint. It is important not to wait for an employee to complain if there is an issue that you are aware of. If an employer has heard rumors of behavior that if true would result in an investigation or disciplinary action, it should not wait for a formal complaint before initiating an investigation. Further, sometimes it is apparent that there is some issue in the workplace causing strife amongst employees without a specific cause being known. For example, there may be a history of small complaints between employees, or an employer may hear, either through a formal process like an annual review or through more informal conversation, that employees feel uncomfortable or unsatisfied, or refer to the workplace or coworkers as “toxic.” An investigation under these circumstances, particularly by an outside investigator with a more removed viewpoint, can help identify issues before they become larger problems and provide the insight necessary to put the workplace back on track.

2. Initiating the Investigation

If you chose to initiate an investigation, the next important step is selecting an investigator. Depending on the allegations, an internal investigator such as a human resources representative or in-house counsel may be sufficient. However, for particularly sensitive matters or complaints involving senior management, the specialized experience and greater impartiality of an outside investigator are necessary. This is especially true if there is a possibility that the complaint could eventually lead to litigation, as work done by an HR representative may become discoverable, and an in-house attorney cannot be the same attorney who conducts an investigation and represents the company in subsequent litigation. It should also be noted that Oregon employers cannot use an outside investigator unless they are a licensed attorney or licensed private investigator.

3. Conducting an Appropriate & Reliable Investigation

After you have decided that an investigation is warranted and chosen an investigator, the investigation itself involves reviewing documentation, interviewing witnesses, and writing a report that documents the findings.

The complainant is generally interviewed first, which helps ensure an appropriate scope for the investigation is set, followed by other relevant witnesses and the subject of the investigation last. Each interview should start with a brief explanation of the complaint and the investigator’s role, as well as a description of the investigatory process, a reminder of the company’s policies against retaliation for involvement, and a note regarding the limits of interview confidentiality. The investigator will ask each witness about key facts from their personal knowledge, using open-ended questions. Depending on the scope of the investigation, this may also include more generalized questions about the workplace and observed behaviors of other employees.

The investigation report documents the investigatory process, the evidence reviewed during the investigation, the analysis of documents and facts gathered from witnesses, and conclusions reached in each element within the scope of the investigation. This may involve making credibility determinations if necessary. This written record allows decision-makers to separately determine the appropriate outcome and next steps after the investigation.

4. Investigation Considerations in the COVID-19 Pandemic

In the midst of a pandemic, today more than ever employers are still trying to maneuver through the complexity of employee issues. Workplace investigations are no exception. Some employers are currently seeing a decrease of the more “typical” complaints as employees are working remotely, but other forms of complaints and issues are more prevalent now, such as OSHA concerns or complaints about COVID-19 and safety protocols. Furthermore, while it may be tempting to hold off on investigating some complaints that may have arose prior to the pandemic (whether due to an abeyance of the problem resulting from remote work or the restrictions of conducting an investigation during this time), it is important that employers timely and adequately respond to all complaints.

Conducting a remote investigation is entirely possible, and in some ways, is more convenient for employees and witnesses. Videoconference applications such as Zoom or Microsoft Teams allow interviews to occur remotely in a manner that is comfortable and convenient for most. This can often allow for an investigation to proceed more efficiently than may otherwise be possible. With little change to protocols, an investigation can occur safely and remotely, resulting in an outcome that is just as sufficient as otherwise.

It is always in the company’s best interest to take all the necessary steps to ensure an appropriate and reliable investigation in response to employee concerns, whether conducting internally or hiring an outside investigator. A proper investigation can help assuage employee concerns, help determine appropriate and necessary action, provide a backstop to the employer when action is taken, and provide a crucial defense if litigation ever results.

If you are considering your policies for responding to employee complaints or determining how to respond to a complaint that you have received, we recommend contacting counsel for further advice.

For any questions related to workplace investigations, contact Wilson Jarrell at 503-276-2181 or wjarrell@barran.com.

Click to access a PDF of this Electronic Alert.

Jeffrey G. Robertson 1/4/21 Jeffrey G. Robertson 1/4/21

1/4/21: Federal Stimulus Update Part 1: What Employers Need to Know About the PPP

January 4, 2021

By Chris Morgan

On December 27, 2020, President Trump signed the $900 billion COVID-19 relief bill into law. The new law helps businesses, nonprofits, and venues that continue to be hit hard by the impact of COVID-19, with the funding accomplished through Title III of the Consolidated Appropriations Act, 2021, called the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act.

PPP Extension

The most relevant part of the Act for many businesses is going to be the extension and expansion of the Paid Protection Program (“PPP”). The re-tooled PPP provides assistance to employers by extending the forgivable PPP loan program, with a few changes. With the PPP reopened, businesses can apply for the first time, while many companies are also eligible to apply for a “second-draw” PPP loan.

For first-time and “second draw” applicants alike, the loan process remains largely the same with a few major changes:

The PPP program is now open through March 31, 2021 (or until the new funding is exhausted).
The maximum loan amount is still 2.5 times an applicant’s average monthly payroll costs (increased to 3.5x for small businesses in accommodation and food services industries – those with NAICS codes starting with 72), but is now capped at $2 million (previously the cap was $10 million).
Group health insurance payments may be included in payroll costs when determining the maximum requested loan amount.
Some employers that were previously excluded from eligibility can now receive funds: 501(c)(6) member non-profits, local news media organizations, and housing cooperatives.

Second Draw Applicants may be eligible for a second draw loan if they:

(1) have exhausted their first PPP loan;
(2) have less than 300 employees; and
(3) have experienced a greater than 25% reduction in gross receipts during any quarter in 2020 relative to the same quarter in 2019.

PPP Rule Changes: The bill also makes a few important changes to PPP rules.

(1) Deductibility of Expenses: The act clarifies tax treatment of PPP funds. The new law applies to past and future loans and provides that:

Tax Deductible Expenditures: Regular business expenses paid for with PPP loan proceeds may be deductible for tax purposes. This reverses the IRS ruling that businesses could not deduct expenses paid by PPP funds.
PPP Loan Funds are Not Taxable Income: Even if forgiven, the funds are not considered income for tax purposes.

(2) Forgiveness: Borrowers must still spend at least 60 percent of their PPP on payroll costs in order to receive full forgiveness, but some other rules have broadened.

Expansion of Qualifying Expenses: The list of expenses on which a PPP borrower may now spend the other 40% of loan proceeds has been expanded to include certain operations expenses, supplier costs, worker protection expenses (i.e. money spent to comply with public health guidance related to COVID-19), and property damage costs associated with property damage due to civil unrest in 2020 that are not covered by insurance or otherwise.
EIDL Grant no longer reduces the amount of PPP loan that may be forgiven.
Extended Loan Forgiveness Period recipients may now elect any period between 8 to 24 weeks after loan origination date in which to use funds on allowable expenses.
Simplified Application - PPP loans for less than $150,000 may be forgiven by a simplified one-page expedited application process.

Stayed tuned for Part II of our series on the new federal stimulus package, which will explore other key provisions of the Act for employers to consider in 2021.

For questions on the PPP and more, contact Chris Morgan at 503-228-0500 or cmorgan@barran.com.

Click to access a PDF of this Electronic Alert.

Jeffrey G. Robertson 12/31/20 Jeffrey G. Robertson 12/31/20

12/31/20: Oregon Law Restricts Healthcare Employers Who Want to Require COVID-19 Vaccination

December 31, 2020

By Paula Barran

As we outlined in our earlier E-Alert this month, employers generally have the authority under federal law to require workers to be vaccinated, subject to limited exceptions for employees with disabilities needing an accommodation or employees who have sincerely held religious beliefs preventing them from being vaccinated. State laws may impose different restrictions.

A 1989 statute in Oregon, in fact, does just that – places restrictions on healthcare employers. Healthcare employers are required to provide preventive vaccinations for their employees, but at the same time are prohibited from requiring their employees to be vaccinated unless vaccination is “otherwise required by federal or state law, rule, or regulation.”

The statute defines healthcare workers broadly. “Worker” means a person who is: licensed or certified to provide healthcare under separate legislative provisions; an employee of a healthcare facility, a licensed healthcare provider, or a clinical laboratory; a firefighter; a law enforcement officer; a corrections officer or a parole and probation officer.

We have contacted advisors to Governor Brown to seek clarification and learn whether a regulatory change may be considered. When we know more, we will follow up with an updated E-Alert. In the meantime, employers of healthcare employees (and all employers, regardless of industry) need to be cautious if they are planning to issue mandatory vaccination policies.

The entire statute can be reviewed here.

For any questions relating to navigating COVID-19 in the workplace, contact Paula Barran at 503-228-0500 or pbarran@barran.com.

Click to access a PDF of this Electronic Alert.

Jeffrey G. Robertson 12/30/20 Jeffrey G. Robertson 12/30/20

12/30/20: January 6: Ventilation Requirements Deadline

December 30, 2020

By Natalie Pattison

As a reminder, Oregon OSHA published extensive temporary rules regarding COVID-19 that apply to almost all workplaces in Oregon. These temporary rules include the following ventilation requirements:

No later than January 6, 2021, employers must optimize the amount of outside air circulation through their existing HVAC system when employees are present in the workplace. This includes replacing air filters as needed and ensuring HVAC intake ports are clean and functioning properly.

This rule does not require employers to purchase new HVAC systems or retrofit existing systems.

While there is no written condition for this requirement, employers should memorialize in writing what steps were taken to comply by the deadline in case of agency scrutiny.

It is important that employers stay up-to-date with the many requirements imposed by Oregon OSHA’s temporary rules. Details regarding these rules and various deadlines are outlined in Barran Liebman’s previous E-Alert (originally published November 9, 2020).

For any questions relating to navigating COVID-19 in the workplace, contact Natalie Pattison at 503-276-2104 or npattison@barran.com.

Click to access a PDF of this Electronic Alert.

Jeffrey G. Robertson 12/28/20 Jeffrey G. Robertson 12/28/20

12/28/20: What the Consolidated Appropriations Act of 2021 Means for Your Health FSA & Dependent Care Account Plans

December 28, 2020

By Iris Tilley

Among the sprawling 5,000 plus pages of legislation signed into law on December 27, 2020, are several employee benefits provisions worth a second look. The most pressing of these changes are rollover and extended grace period options related to Health Flexible Spending Accounts (FSAs) and Dependent Care Account Plans (DCAPs) that allow employers to implement plan changes to avoid employees forfeiting remaining Health FSA and DCAP balances.

While employees with pending balances will be anxious to hear whether their employers intend to roll out this relief, plan amendments are not required for quite some time, so there is no need to push through a last-minute amendment before end of year.

Health FSAs

As many companies are well aware, some employees had a difficult time spending their full FSA balances in 2020. The key issue has been that certain non-urgent procedures that an employee may have planned for in 2020 were delayed due to COVID-19, leaving the employee with a sometimes sizeable FSA balance.

Under normal circumstances, an employer’s options are quite limited when it comes to an employee’s end-of-year FSA balance. However, the current stimulus offers some additional options that may come as a relief to many employees.

Under the new package, employees are still prohibited from cashing out their remaining account balance or making a retroactive election change. However, the bill allows amounts remaining as of December 31, 2020, to be spent in 2021 and 2022. This additional time to spend can be accomplished through a plan amendment that adjusts the plan’s carryover or grace period language.

Participants will also have more flexibility in 2021 to make election changes, as prospective changes will be allowed even where a participant does not have a “change of status” as defined by the regulations.

DCAPs

As with Health FSAs, many plan participants reached the end of the year with dependent-care balances because their children were not in daycare for much of the year and largely did not attend summer camps. The new bill allows employees with unused balances for the 2020 plan year to claim reimbursements for the 2021 plan year. In addition, the maximum age for reimbursements related to child care was increased from 12 years old to 13 years old for dependents who aged out during the last plan year. Additional flexibility is also available to make prospective election changes throughout the year.

Conclusion

As noted above, each of these plan changes is optional. In addition, while the treatment of funds can now be changed to allow employees to avoid a forfeiture on December 31, 2020, formal plan amendments are not required for quite some time.

If you are interested in discussing plan amendment options or any participant communication you may wish to send before year-end, contact Iris Tilley at 503-276-2155 or at itilley@barran.com.

Click to access a PDF of this Electronic Alert.

Jeffrey G. Robertson 12/22/20 Jeffrey G. Robertson 12/22/20

12/22/20: This is Just in! - FFCRA Leave to be Voluntary in 2021

December 22, 2020

By Amy Angel

Congress has just approved a $900 billion stimulus package as part of a 5,593-page bill which is awaiting the President’s signature. With that many pages, there are sure to be a few surprises in store for us, but here is what we know about FFCRA so far.

The new bill supports paid sick leave for certain COVID-related reasons, but not in the same way it did in 2020. Mandated FFCRA leave still ends on December 31, 2020. After December 31, 2020, employers are not required to provide paid FFCRA leave to employees. However, employers who do provide employees with paid sick leave for COVID-related reasons may still claim the FFCRA tax credit through March 31, 2021.

Even if you voluntarily continue to offer FFCRA leave, employees may have already exhausted that leave. If an employee used the 80 hours of Emergency Paid Sick Leave (“EPSL”) earlier this year, there will not be a new EPSL allocation come January 1, 2021. Employers will not be allowed the EPSL tax credit if an employee has already taken the maximum EPSL leave allowable under FFCRA. More complicated is Expanded FMLA (“EFMLA”) leave. If under your policy, the 12-month FMLA period resets on January 1, it appears that an employee could be eligible for paid EFMLA again. While we expect more guidance on this issue from the Department of Labor and/or the Internal Revenue Service, for now it appears that the employer could potentially qualify for tax credits for additional paid EFMLA leave to an employee who exhausted EMFLA in 2020 if the leave year restarted.

The Takeaway:

FFRCA is still in full effect until December 31, 2020.
The new stimulus bill allows employers to claim tax credits for paid leave until March 31, 2021.
1. While details are still a bit fuzzy, for now we assume the leave may be taken for the same qualifying reasons as leave under FFCRA and that the same caps apply.
2. It is unclear whether the leave bank resets for EFMLA if employees are in a new FMLA leave year.

Remember also that FFCRA was not the only source of monetary relief for employees missing work for COVID-19-related reasons. States have their own paid sick leave laws and federal contractors must offer paid sick leave under Executive Order 13706. Oregon also offers additional help for employees who do not have other employer-provided paid time off through its COVID-19 Temporary Paid Leave. Depending on the circumstances, employees off work for COVID-19-related reasons may also be eligible for unemployment or workers’ compensation benefits. Finally, although not a paid benefit, employees eligible for OFLA may have leave available to them if they are suffering from their own serious health condition, are caring for a family member with a serious health condition, or if the employee is caring for their child whose school or place of care is closed due to the statewide health emergency.

For questions about FFCRA, tax credits for paid leave related to COVID-19, or applying other leave laws to a COVID-19-related absence, contact Amy Angel at 503-228-0500 or aangel@barran.com.

Click to access a PDF of this Electronic Alert.

Jeffrey G. Robertson 12/18/20 Jeffrey G. Robertson 12/18/20

12/18/20: December 21: Employee Information & Training Deadline

December 18, 2020

By Natalie Pattison & Andrew Schpak

As a reminder, Oregon OSHA recently published extensive temporary rules related to COVID-19 that apply to almost all Oregon workplaces. These temporary rules include training requirements.

Specifically, employers must provide information and training regarding COVID-19 to employees in a manner understood by employees. In addition, employees must be afforded the opportunity to provide feedback regarding the information and training. The specific topics that must be covered can be found here. OR OSHA also released COVID-19 training modules designed to help employers meet four (4) of the ten (10) employee training requirements, and those can be found here.

Most employers should have the information and training requirements completed by the regulatory deadline on Monday, December 21, 2020. However, OR OSHA recently released an enforcement memo containing the following exceptions to this deadline:

OR OSHA announced an extension for employers affected by the recent statewide freeze and newly adopted risk levels who have therefore experienced significant modifications to their immediate business activities. Those businesses will not be cited for violations of the training provisions of the rule that occur before January 11, 2021.
For all other business, OR OSHA will not enforce compliance issues with regard to the information and training requirements until December 28, so long as the employer acknowledges it is actively working towards meeting the requirements.

It is important that employers stay up-to-date with the many deadlines imposed by OR OSHA’s new rules. Details regarding these and other upcoming employer requirements are outlined in Barran Liebman’s previous E-Alert (originally published November 9, 2020).

For any questions relating to navigating COVID-19 in the workplace, contact Natalie Pattison or Andrew Schpak at 503-228-0500, or at npattison@barran.com or aschpak@barran.com.

Click to access a PDF of this Electronic Alert.

Jeffrey G. Robertson 12/17/20 Jeffrey G. Robertson 12/17/20

12/17/20: EEOC Issues Guidance on COVID-19 Vaccinations

December 17, 2020

By Amy Angel & Natalie Pattison

The Equal Employment Opportunity Commission (EEOC), as anticipated, is permitting mandatory COVID-19 vaccinations, with some exceptions.

The EEOC released guidance answering important questions on how COVID-19 vaccinations interact with the legal requirements of the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA).

Here are the main takeaways:

Medical Examinations & Disability-Related Inquiries

The COVID-19 vaccine is not a medical examination. Neither is asking an employee for proof of vaccination. This means employers are free to require and administer the vaccine without having to meet ADA standards for medical examinations.

However, pre-screening vaccination questions may be subject to the ADA restrictions for disability-related inquires. The EEOC emphasized the distinction between situations where an employer-required vaccine is administered by the employer (or a third party with whom the employer contracts to administer a vaccine), and situations where an employee voluntarily receives the vaccine or receives an employer-mandated vaccine from an unrelated third party, such as a pharmacy or other health care provider.

If an employer requires and administers a COVID-19 vaccine, any pre-screening vaccination questions likely to elicit information about a disability must comply with the ADA requirement that such questions be job-related and consistent with business necessity. To satisfy this requirement, an employer needs to have “a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.” In contrast, this requirement does not apply to disability-related screening questions that are asked by either (1) an employer who offers the vaccine on a voluntary basis, or (2) by a third party (that does not have a contract with the employer), such as a pharmacy or other health care provider.

Employers that do not administer the vaccine are allowed to ask employees for proof of vaccination—it is not a medical examination or disability-related inquiry under the ADA. However, if the manner in which an employer requests proof may elicit information about a disability, it will be subject to the ADA standard for disability-related inquiries. The EEOC encouraged employers to expressly warn employees not to provide any medical information with proof of receipt of a COVID-19 vaccination. To avoid implicating the ADA, employers should essentially ask for a “yes” or “no” with respect to proof of vaccination and not why an employee has not received the vaccine to avoid gathering any medical-related information.

ADA & Title VII Accommodations

The EEOC affirmed that employers must provide reasonable accommodations for employees with an ADA-covered disability or sincerely held religious belief that prevents them from receiving a vaccine. However, employers are not required to provide a disability accommodation that would pose a direct threat to the health or safety of other employees. If an employee’s ADA-covered disability prevents them from receiving a vaccine, the employer must show that an unvaccinated employee would pose a direct threat to other workers and the threat cannot be eliminated or reduced by reasonable accommodation. Even if an accommodation cannot eliminate or reduce an unvaccinated employee from presenting a direct threat to the workplace, the employee may be entitled to other reasonable accommodations such as remote work.

Likewise, employers do not have to provide a religious accommodation if it would pose an “undue hardship,” which is defined under Title VII as having more than de minimis cost or burden on the employer. (Note that the standard for “undue hardship” is different for religious accommodations than for disability accommodations.) The EEOC encouraged employers to assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. But, employers are justified in requesting additional information if the employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance.

The EEOC also noted that administering a COVID-19 vaccine does not violate Title II of the Genetic Information Nondiscrimination Act (GINA), but pre-screening questions that ask about genetic information may violate GINA.

For any questions relating to navigating COVID-19 in the workplace, contact Amy Angel or Natalie Pattison at 503-228-0500, or at aangel@barran.com or npattison@barran.com.

Click to access a PDF of this Electronic Alert.