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.

Amy L. Angel 7/26/21 Amy L. Angel 7/26/21

7/26/22: BOLI Issues Temporary Rule Regarding Use of Sick Time Due to Evacuations, Air Quality, & Extreme Heat

July 26, 2021

By Amy Angel

Oregon’s Bureau of Labor and Industries (BOLI) has issued a temporary rule clarifying that employees may use sick time accrued under Oregon’s Sick Time law for official evacuations and public health emergencies relating to air quality and extreme heat events.

Oregon’s Sick Time law permits employees to use accrued sick time in the event of a public health emergency. The temporary rule clarifies that when an authorized public official orders emergency evacuation or determines that air quality and heat index exposure jeopardize the health of an employee, the employee can use their accrued sick time.

Specifically, the temporary rule expressly states that employees may use accrued sick time in the event of a public health emergency, including but not limited to:

an emergency evacuation order of level 2 (SET) or level 3 (GO) issued by a public official with the authority to do so, if the area subject to the order includes EITHER the employer’s place of business OR the employee’s home address; and
a determination by a public official with the authority to do so that the air quality index or heat index are at a level where continued exposure to such levels would jeopardize the health of the employee.

The temporary rule is effective July 22, 2021, through January 17, 2022.

Employers should update their sick time policies and train supervisors to recognize when accrued sick time may be used to cover qualifying absences.

For questions regarding this temporary rule or for any other leave matters, contact Amy Angel at 503-276-2195 or aangel@barran.com.

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.

Iris K. Tilley 7/22/21 Iris K. Tilley 7/22/21

7/22/21: Working From Home (Out-of-State)? Best Practices for Managing Multi-State Remote Work

July 22, 2021

By Jeff Robertson & Iris Tilley

We frequently receive questions about the implications for employers when an employee works from home in a state other than the state in which their employer’s office is located. This was a common practice during the heat of work-from-home COVID-19 restrictions, but some employers have extended this flexibility beyond the end of their COVID-19-related work from home.

This often comes up in the context of payroll tax/income tax for the employee and especially if the State in question has a different income tax structure than the business. For example, Washington vs. Oregon. It is natural to want to accommodate employees and provide them the best possible flexibility and tax strategy. However, the state an employee works in has additional considerations for any employer including:

Registering for a business license in the state;
Establishing sales tax nexus with a state;
Unemployment and workers’ compensation;
State-specific sick pay and leave laws; and
Payroll set-up and state reciprocity.

With COVID-19 and many employees working from home, most jurisdictions took a hands-off approach to determining state of residence during the temporary health crisis. Some states, especially those located on the East Coast, issued formal guidance and many out West continued to operate with current laws, but within an atmosphere of non-enforcement.

As COVID-19 work-from-home restrictions continue to loosen, we expect most states to return to a traditional view and require state-tax payments and employer registration where an employee performs work in a state. However, this return to the “norm” in a post-COVID-19 landscape raises more questions than it answers. How does an employer ensure legal compliance when an employee works from a state that is otherwise unrelated to an employer’s business? Does the mere presence of the employee require compliance with that state’s specific laws?

There are no one-size-fits-all approaches or definitive answers to these questions. Most of the risk lies with the employer and the compliance requirements make it critical that employers educate themselves as to the considerations related to an out-of-state employee. For example, failure to withhold wages in Oregon for a Washington employee working at home could lead the State of Oregon to require the employer to remit such tax withholding to the State of Oregon. An employer in Multnomah County may be required to withhold the Multnomah County preschool tax for a Washington-based employee while the State of Washington requires withholding from the employer for its Long-Term Care plan. Washington may require sales tax remittance related to the Washington employee’s presence even though the company is solely in Oregon.

It is important to consider all aspects of a policy for out-of-state employees, ensuring such policies are drafted to ensure maximum protection for employers and provide employees with a clear roadmap of considerations for their own personal tax benefit (which does not obligate the employer to greater compliance or taxation risk and costs).

For questions related to multi-state remote work or for any other benefits and compensation questions, contact the Barran Liebman’s Benefits Team at 503-228-0500.

Click to access a PDF of this Electronic Alert.

Julie A. Preciado 7/9/21 Julie A. Preciado 7/9/21

7/9/21: Oregon OSHA Releases New Guidance on Heat-Illness Prevention & COVID-19 Restrictions Update

July 9, 2021

As a result of the tragic death of an agricultural worker during Oregon’s record-setting heatwave last month, Oregon OSHA created an emergency rule to protect workers while working in elevated temperatures. The rule went into effect yesterday and will remain in place for 180 days.

Heat-Illness Prevention
Employers must provide protection to employees who perform work activities when the heat index equals or exceeds 80 degrees, with additional requirements when the heat index is over 90 degrees. The heat index is the apparent temperature which is what the temperature feels like when relative humidity is combined with the air temperature. The only exception to the rules is when heat is generated only from the work process (in foundries, for example).

Access to Shade
Employers must maintain at least one “shade area” that does not expose employees to unsafe or unhealthy conditions or discourage use. The shade area must:

Be open air or provide mechanical ventilation for cooling;
Accommodate and fully cover the number of employees on a rest period, sitting in normal postures;
Be as close as practical to employee working areas; and
During meal periods, accommodate the employees on that meal period who remain onsite.

When an employer can demonstrate that providing a shade area is not safe or practical, they must implement alternative cooling measures of equivalent protection.

Drinking Water
Employers must always provide an adequate supply of readily accessible cool or cold drinking water at no cost to the employees and ensure employees have ample opportunity to drink water. There must be enough water supply for each employee to consume 32 ounces per hour.

Training
Beginning no later than August 1, 2021, employers must train all employees on heat-illness prevention. The training must include:

Environmental and personal risk factors for heat illness;
Effects of non-occupational factors on tolerance to heat stress;
Different types of heat-related illness and their common signs and symptoms;
Procedures for complying with the requirements of the rule;
Introduction to the concept, importance, and methods of acclimatization; and
Importance of immediately reporting signs and symptoms of heat illness in themselves or others.

High Heat Practices
When the heat index exceeds 90 degrees, employers must ensure effective communication at all times; observe employees for alertness, signs and symptoms of heat illness; and monitor affected employees to determine whether medical attention is necessary. Employers must implement one or more of the following procedures:

Ensure regular communication with employees working alone;
Create a mandatory buddy system; or
Implement other equally effective means of observation or communication.

One or more employees per worksite must be authorized to call emergency medical services, although any employee may contact medical services if the designee is not immediately available.

Employers must ensure each employee takes a minimum ten-minute rest period in the shade every two hours regardless of the shift length. These breaks may be provided concurrently with any other meal or rest break required by policy, rule, or law if the timing of the cool-down rest period coincides with the otherwise required break. Except when a cool-down rest period coincides with an unpaid meal break, the cool-down rest period must be paid.

Emergency Medical Plan
Employers must also create an emergency medical plan that addresses:

Responding to signs and symptoms of possible heat illness;
Contacting emergency medical services, and transporting employees to reach medical services when necessary; and
Ensuring clear and precise directions to the worksite are provided for first responders to navigate to the affected worker, in the event of an emergency.

COVID-19 Mask & Physical Distancing Restrictions Update
As anticipated in a previous E-Alert, on June 30, 2021 Oregon OSHA issued a temporary rule removing the mask and physical distancing requirements from its permanent rule for most workplaces; however, many pieces of the permanent rule remain in place. Masks and physical distancing are still required for certain specialized and congregate employment settings. The ventilation, notification, sanitation, and training requirements all remain in place, as well. Employers may still choose to require masks and physical distancing in their workplace, so long as they follow public health guidelines and keep accommodations in mind.

For questions on compliance with these rules or other labor and employment matters, contact the Barran Liebman team at 503-228-0500.

Click to access a PDF of this Electronic Alert.

Amy L. Angel 7/1/21 Amy L. Angel 7/1/21

7/1/21: 2021 Oregon Legislative Session General Overview

July 1, 2021

By Amy Angel

The Oregon Legislative Assembly’s current session ended on Saturday, June 26, 2021, with several bills creating notable changes for Oregon employers. The following is a list of the relevant bills that have been signed into law by the Governor.

HB 2818 – Amendments to Pay Equity

Paving the way for employers to offer vaccine incentives (both monetary & non-monetary), the legislature has carved out vaccine incentives from the definition of compensation in Oregon’s pay equity law. This change applies to lawsuits filed on or after April 29, 2021, and for any pending BOLI complaints that had not been decided as of that date. Additionally, to address the current labor shortage and allow employers to incentivize employment, between May 25, 2021, and March 1, 2022, hiring bonuses and retention bonuses are also excluded from the definition of “compensation.”

HB 2474 – Oregon Family Leave Act (OFLA) Amendments

Allows employees who have a break in service due to termination or temporary furlough or layoff of 180 days or less to retain their OFLA eligibility and count time prior to break in service to overall break in service.
Expands eligibility of OFLA during a public health emergency to employees working at least 30 days immediately prior to taking leave (reduced from 180 days) and an average of 25 hours or more per week during those 30 days.
Expands the definition of sick child leave to include providing home care to the employee’s child due to the closure of the child’s school or child care provider as a result of a public health emergency and allows for certain employer verification.
Clarifies that pregnancy disability leave may be taken by “an eligible employee” rather than “a female eligible employee.”

These changes take effect January 1, 2022.

HB 3389 – Changes to Unemployment Taxes

Employers in good standing with a rate increase of 0.5% or more may defer up to one-third of their 2021 tax obligation without accruing interest or penalties until June 30, 2022. Additionally, 2021 and 2022 are not included in the lookback period and the experience rating used to determine 2020 tax rate will be used in 2022, 2023, and 2024. Pending the governor’s signature, this law takes effect September 26, 2021.

SB 483 – Employee-Protected Activities & Workplace Safety

Creates a rebuttable presumption that an employer retaliated against an employee or prospective employee if an adverse employment action is taken within 60 days of the employee engaging in certain protected activities relating to health and safety complaints in the workplace. This law takes effect immediately.

HB 2420 – Timeline for Filing a BOLI Retaliation, Discrimination, or Safety Complaint

Extends employee timeline for filing a complaint with the Bureau of Labor and Industries from 90 days to one year for alleged retaliation or discrimination for reporting unlawful practices regarding workplace safety. This law takes effect January 1, 2022.

SB 569 – Driver’s License as Condition of Employment

Prohibits an employer from requiring an employee or prospective employee to present a valid driver’s license as a condition of employment unless the ability to legally drive is an essential function of the position or is related to a legitimate business purpose. This law takes effect January 1, 2022.

HB 2935 – Race-Based Discrimination

The definition of race-based discrimination is updated to include hairstyles, textures, and types. It also provides that any otherwise valid dress code or policy cannot disproportionately, adversely impact a member of a protected class. This law takes effect January 1, 2022. For more details on these changes, see our E-Alert: Oregon Becomes the 12th State to Pass the CROWN Act.

SB 716 – Predictive Scheduling Amendment regarding Child Care Needs

Amends Oregon’s predictive scheduling law by explicitly adding “child care needs” as an identifiable limitation or change in an employee’s work schedule availability. This law takes effect immediately.

HB 3389 – Delayed Implementation of Oregon’s Paid Family Medical Leave Program

The deadline for the Employment Department Director to adopt rules for Oregon’s Paid Family Medical Leave Program (OPFMLP) is moved from September 1, 2021, to September 1, 2022. As a result of this change, subsequent dates relating to progress reports and reviews of implementation and costs have been pushed back accordingly. Pending the governor’s signature, this law takes effect September 26, 2022.

SB 169 – Noncompetition Agreements

This new law changes the length of time a noncompetition is valid, as well as some of the qualifying criteria for the employer, employee, and the contract itself. This law takes effect January 1, 2022. For more details on these changes, see our E-Alert: New Changes to Oregon’s Statute on Employee Noncompetition Agreements.

SB 588 – Sick Time Exemptions Changed for Multi-Employer Collective Bargaining Agreements

The multiemployer exception for providing sick time to employees covered by collective bargaining agreements is being modified. Previously, many trades that were covered by multiemployer trusts were exempt from Oregon’s Sick Time Law. Effective January 1, 2023, an employer signatory to a collective bargaining agreement who contributes to a multiemployer-employee trust or benefit plan will have met the Oregon Sick Time requirements only if all of the following requirements are met:

The terms of the agreement provide a sick leave policy or other paid time off program that is substantially equivalent or more generous than the minimum requirements of the Oregon Sick Time law for the benefit of employees:
- Who are employed through a hiring hall, referral system, or third party;
- Whose terms and conditions of employment are covered by the collective bargaining agreement; and
- Whose employment benefits are provided by the joint multiemployer-employee trust;
The trustees have agreed to the level of benefits provided by the sick leave policy; and
The contributions to the trust or benefit plan are made solely by employer signatories to the agreement.

For questions on compliance with these rules or other labor and employment matters, contact Barran Liebman attorney Amy Angel at 503-276-2195 or aangel@barran.com.

Click to access a PDF of this Electronic Alert.

Amy L. Angel 6/28/21 Amy L. Angel 6/28/21

6/28/21: Saying Goodbye to Masks & Physical Distancing as Oregon Approaches Statewide Reopening

June 28, 2021

By Amy Angel & Natalie Pattison

On June 25, 2021, Governor Brown signed an Executive Order revoking COVID-19 public health restrictions around face coverings, physical distancing, and capacity limits on June 30, 2021, or when the state crosses the threshold of 70% first dose vaccination for those 18 and older, whichever is earlier.

Executive Order 21-15

Under the Executive Order, the following restrictions will be lifted:

Mask mandates,
Capacity limits, and
Physical distancing in business and other sectors.

The Executive Order also ends restrictions on higher education, certain restrictions for childcare providers, and restrictions designed to ensure adequate capacity and personal protective equipment in healthcare settings. The Executive Order also returns decision-making regarding the health and safety of students in K-12 schools to local school districts.

Importantly, the Executive Order notes that there are some specialized settings like healthcare, public transportation, correctional facilities, and certain other congregate settings where enhanced COVID-19 precautions will be necessary for an additional period of time, following guidance from federal or state regulatory authorities. Note that federal guidance from OSHA currently requires healthcare employees to wear facemasks.

The Executive Order also rescinds previous pandemic-related executive orders, including the county risk level framework.

Oregon OSHA

Oregon OSHA has indicated that it will cease enforcement of the mask and physical distancing requirements as soon as the Executive Order goes into effect (either at 12:01am on June 30, 2021, or when OHA announces that the 70% threshold has been reached, whichever is earlier). Oregon OSHA will then release a temporary rule to repeal the mask and physical distancing requirements in the permanent rule. Unless and until Oregon OSHA provides otherwise, all other rules and requirements under the permanent rule will remain in effect.

We will continue to provide updates as we know more, but employers should contact counsel with any specific questions regarding the status of workplace rules in Oregon.

For questions relating to reopening or changing COVID-19 guidance, contact Amy Angel or Natalie Pattison at 503-228-0500, or at aangel@barran.com or npattison@barran.com.

NOW, NEXT, & BEYOND: Barran Liebman’s E-Alert series covering the COVID-19 pandemic, helping employers identify what they need to do now, next, and beyond to stay in compliance, be responsive to employees, and best position their business for the future.

Click to access a PDF of this Electronic Alert.

Josh M. Goldberg 6/23/21 Josh M. Goldberg 6/23/21

6/23/21: U.S. Supreme Court Concludes NCAA Violated Anti-Trust Law by Restricting Education-Related Benefits

June 23, 2021

On June 21 2021, a unanimous United States Supreme Court, in National Collegiate Athletics Association v. Alston, affirmed that the National Collegiate Athletic Association (“NCAA”) violated anti-trust laws when they sought to restrict the student-athletes’ education-related compensation, such as, academic tutoring, laptops, and post-eligibility internships.

In concluding that the competitive harm to student-athletes was not justified, the Supreme Court insisted that the NCAA must comply with the permanent injunction entered by the district court. With important exceptions, the judgment invalidates the majority of the NCAA’s restrictions on the education-related benefits student-athletes may receive from their schools and conferences. Under this ruling, while individual conferences may choose to limit student-athletes’ education-related compensation, they must do so independently and not in coordination with one another, and schools may retain their own policies on student-athlete compensation.

The NCAA’s defense largely rested on its unique place in the market that preserved a space for amateurs, who did not, by definition, seek compensation for professional athletics. Historically, courts have deferred to this “revered tradition of amateurism in college sports,” and the Alston decision does not, by and large, represent an abrupt departure. The Supreme Court emphasized “firms deserve substantial latitude to fashion agreement that serve legitimate business interests” and courts will exercise restraint in crafting remedies for any anti-trust violation. Nonetheless, the Supreme Court concluded these important considerations do not immunize the NCAA from scrutiny. The NCAA in this case did not provide convincing evidence that education-related compensation would adversely impact collegiate sports, and the NCAA’s stated concerns about the judgment were unfounded.

Writing separately, however, Justice Brett Kavanaugh specifically panned the NCAA’s argument: “Movie studios cannot collude to slash benefits to camera crews to kindle a ‘spirit of amateurism’ in Hollywood.”

Importantly, this ruling is narrow. It does not require schools or conferences to offer educational benefits for student-athletes or decide whether the NCAA may continue to restrict other forms of compensation unrelated to student-athletes’ education benefits. If Justice Kavanaugh’s conclusion that the NCAA’s other compensation rules “raise serious questions under the antitrust laws” is any indication, debates and litigation over student-athlete compensation are far from over.

For specific questions, contact the Barran Liebman team at 503-228-0500.

Click to access a PDF of this Electronic Alert.

Julie A. Preciado 6/17/21 Julie A. Preciado 6/17/21

6/17/21: Oregon Becomes the 12th State to Pass the CROWN Act

June 17, 2021

On June 11, Governor Brown signed into law Oregon’s version of the “Creating a Respectful and Open World for Natural Hair (“CROWN”) Act.” Oregon is the 12th state to adopt such a law since 2019. The CROWN Act expands Oregon’s protection against racial discrimination to include physical characteristics historically associated with race, including but not limited to:

natural hair;
hair texture;
hair types; and
protective hairstyles, meaning: hairstyle, hair color, or manner of wearing hair that includes, but is not limited to, braids, locs, and twists.

The CROWN Act may require changes to your employee dress-code and personal appearance policies. Dress-codes or policies which specifically prohibit the above-mentioned physical characteristics will now be in violation of the law. Furthermore, even if your dress-code or policy does not expressly prohibit any of the above characteristics, it may still violate the law if it has a disproportionate adverse impact on members of a protected class.

What steps need to be taken? First, review your existing dress-code or personal appearance policies and employee handbooks for compliance with the CROWN Act. Second, train managers and supervisors that comments about certain hairstyles, hair textures, and more may now be the basis of a racial discrimination claim. Finally, review your practices to ensure your enforcement of dress-code policies or protocols does not create a disproportionate adverse impact on members of a protected class.

Employers should contact counsel with any questions or concerns regarding the CROWN Act. The new law goes into effect on January 1, 2022, so there is time to review and implement new policies, if necessary.

For questions on compliance with these rules or other labor and employment matters, contact the Barran Liebman team at 503-228-0500.

Click to access a PDF of this Electronic Alert.

Natalie M. Pattison 6/16/21 Natalie M. Pattison 6/16/21

6/16/21: New OSHA Emergency Temporary Standard for Healthcare Workers

June 16, 2021

By Nicole Elgin & Natalie Pattison

On June 10, 2021, the federal (not Oregon) Occupational Safety and Health Administration (OSHA) released its COVID-19 Emergency Temporary Standard to protect healthcare workers from COVID-19.

The Emergency Temporary Standard applies in workplaces where any employee provides healthcare services or healthcare support services. In those workplaces, employers are required to:

Develop and implement a COVID-19 plan for each workplace;
Designate one or more workplace COVID-19 safety coordinators to implement and monitor the plan;
Conduct a workplace-specific hazard assessment to identify potential workplace hazards related to COVID-19;
Seek the input and involvement of non-managerial employees and their representatives, if any, in the hazard assessment and the development and implementation of the COVID-19 plan;
Monitor each workplace to ensure the ongoing effectiveness of the COVID-19 plan and update it as needed; and
Inform employees of their rights to the protections required by OSHA’s standards and that the employer will not retaliate against employees for exercising their rights under the Emergency Temporary Standard.

If the employer has more than 10 employees, the COVID-19 plan must be written. Additionally, the COVID-19 plan must address hazards identified by the hazard assessment, and include policies and procedures to:

Minimize the risk of transmission of COVID-19 for each employee;
Effectively communicate and coordinate with other employers; and
Protect employees who in the course of their employment enter private residences or other physical locations controlled by a person not covered by the OSHA Act (e.g., homeowners, sole proprietors).

The Emergency Temporary Standard also includes detailed requirements for patient screening and management, standard and transmission-based precautions, respirators and personal protective equipment (PPE), aerosol-generating procedures on a person with suspected or confirmed COVID-19, physical distancing, physical barriers, cleaning and disinfection, ventilation, health screening of employees and patients, medical removal and return to work, employee training, and recordkeeping.

Last, the Emergency Temporary Standard requires employers to support COVID-19 vaccination by providing reasonable time and paid leave (e.g., paid sick leave, administrative leave) to each employee for vaccination and any side effects experienced following vaccination.

Employers have 14 days from the date the rules were published to comply with most of its requirements. However, employers have 30 days from the date of OSHA’s publication to meet the physical barriers, ventilation, and employee training requirements. OSHA also prepared several FAQs to help employers understand their obligations under these new rules.

Oregon Employers:

Oregon employers that provide healthcare services or healthcare support services must adhere to OSHA’s Emergency Temporary Standard in addition to complying with state and local rules that may be stricter, such as those issued by the Oregon Health Authority and Oregon OSHA (a different agency than the federal OSHA). All Oregon employers should remain aware of Oregon OSHA’s permanent rule released May 4, 2021, addressing COVID-19 in all Oregon workplaces.

Employers should ensure compliance with federal and state rules regarding COVID-19 in the workplace and reach out to counsel with any questions or concerns regarding these rules.

For questions related to recent guidance or navigating COVID-19 in the workplace, contact Nicole Elgin or Natalie Pattison at 503-228-0500, or at nelgin@barran.com or npattison@barran.com.

Click to access a PDF of this Electronic Alert.

Josh M. Goldberg 6/15/21 Josh M. Goldberg 6/15/21

6/15/21: COVID-19 Vaccine Mandate Withstands First Legal Challenge

June 15, 2021

In the first federal ruling of its kind, a federal court in the Southern District of Texas upheld an employer’s vaccine mandate and dismissed a lawsuit filed by 117 employees who sought to block the injection requirement.

Houston Methodist Hospital had announced employees would be required to be vaccinated against COVID-19 by June 7, 2021; most of the hospitals’ 25,000 employees complied, with some being exempted for medical and religious reasons and others receiving deferrals because of pregnancy. A small number (less than 1%) objected. After the hospital placed the hold-out employees on unpaid suspension, and provided an additional two weeks for employees to get the vaccine, 117 objecting employees became plaintiffs in the lawsuit. They argued that the hospital was unlawfully forcing the injections, that the available vaccines were “dangerous” and “experimental,” that employees were being made human guinea pigs, and that the policy was forced medical experimentation in violation of the Nuremberg Code.

The court dismissed the arguments about the nature of the vaccine, and sharply admonished the plaintiffs for “equating the injection requirement to medical experimentation in concentration camps.” The Court found the analogy “reprehensible.”

Employers have been eagerly awaiting rulings in some of the lawsuits filed to challenge vaccine mandates. As a cautionary note, this is one lawsuit in one federal district and one strongly worded opinion. Time will tell if it is a good predictor of how the laws will be interpreted in other jurisdictions.

Oregon and Washington employers should continue to monitor developments to see what trends emerge and, as always, remain cautious.

For any questions relating to navigating COVID-19 in the workplace or crafting your vaccination policy, contact the Barran Liebman team at 503-228-0500.

Click to access a PDF of this Electronic Alert.

Josh M. Goldberg 6/3/21 Josh M. Goldberg 6/3/21

6/3/21: New Changes to Oregon’s Statute on Employee Noncompetition Agreements

June 3, 2021

The Oregon legislature has once again modified Oregon’s statute on noncompetition agreements. Although many of the changes are relatively modest departures from the current law and only apply to new noncompetition agreements entered into on or after January 1, 2022, employers should be aware of these changes and start now to update noncompetition agreements.

Noncompetition agreements entered into on or after January 1, 2022, are void and unenforceable unless they adhere to these requirements:

The noncompetition period can only last up to 12 months after the employee’s termination of employment. (Current law allows the noncompetition period to be up to 18 months after termination.)
An employee’s annualized gross salary and commissions must be at least $100,533 at the time of their termination. This amount will automatically increase according to inflation each year.
The employee must be classified under one of the “white collar” exemptions from overtime wages.
The agreement must be in writing. It cannot be an oral agreement.
The employer must include in a written employment offer at least two weeks before the first day of employment that a noncompetition agreement is required as a condition of employment, or the noncompetition agreement must be entered into upon a subsequent bona fide advancement.
Within 30 days after the date of termination, the employer must provide the employee a signed, written copy of the noncompetition agreement.

Even if an employee does not meet the duties and salary requirements, employers may nonetheless enforce an otherwise valid noncompetition agreement, if an employer provides a written agreement that it will pay the employee during the period of noncompetition the greater of either:

at least 50% of the employee’s annualized gross salary and commissions at the time of termination; or
50% of the statutory amount ($100,533, adjusted for inflation).

Employers should also note that nonsolicitation agreements remain exempt from these statutory requirements, but this exemption should not be taken for granted. New litigation trends indicate nonsolicitation agreements are frequently noncompetition agreements in disguise. In light of these new restrictions on noncompetition agreements, employers should take a fresh look at their nonsolicitation agreements as well to ensure they can maintain their exemption.

For questions related to noncompetition, nonsolicitation, and nondisclosure agreements, contact the Barran Liebman team at 503-228-0500.

Click to access a PDF of this Electronic Alert.

Wilson S. Jarrell 5/25/21 Wilson S. Jarrell 5/25/21

5/25/21: OSHA Reverses Guidance on Recording Adverse Reactions to COVID-19 Vaccination

May 25, 2021

By Wilson Jarrell

The Occupational Safety and Health Administration (OSHA) recently updated its guidance on when employers need to record adverse reactions to COVID-19 vaccines. In a reversal of the guidance it issued back in April (which we discussed in a previous E-Alert), OSHA now says that employers are no longer required to record adverse reactions to COVID-19 vaccination.

Previously, OSHA stated that if an employer required employees to be vaccinated as a condition of employment, then any adverse reaction to the vaccine was work-related, and thus recordable if it was also a new case and met one or more of the general recording criteria.

Now, OSHA states that it is concerned that this requirement may have hurt vaccination efforts, and that “it does not wish to have any appearance of discouraging workers from receiving COVID-19 vaccination.” Thus, in the new guidance, OSHA states that it will not enforce the recording requirements as applied to COVID-19 vaccinations through May 2022.

Employers (especially those in California) should continue to monitor state specific reporting requirements, which may differ from the federal OSHA guidance.

For questions related to OSHA’s updated guidance or any other matters related to mangaging COVID-19 in the workplace, contact Wilson Jarrell at 503-276-2181 or wjarrell@barran.com.

NOW, NEXT, & BEYOND: Barran Liebman’s E-Alert series covering the COVID-19 pandemic, helping employers identify what they need to do now, next, and beyond to stay in compliance, be responsive to employees, and best position their business for the future.

Click to access a PDF of this Electronic Alert.

Amy L. Angel 5/18/21 Amy L. Angel 5/18/21

5/18/21: Here’s What You Need to Know About OHA’s Updated Guidance Regarding Vaccinated Individuals

May 18, 2021

By Amy Angel & Natalie Pattison

Last week, the U.S. Centers for Disease Control issued guidance allowing fully vaccinated individuals to go mask-free and not have to adhere to physical distancing requirements in most situations. Importantly, the CDC’s guidance is merely guidance and does not preempt state or local authorities that may impose stricter public health rules. The CDC guidance itself states that fully vaccinated individuals do not need to wear masks or physically distance in most circumstances, “except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.”

In the wake of the CDC’s guidance, many employers and businesses were left confused about how to navigate these changing rules and conflicts between state and federal guidance. Today, the Oregon Health Authority updated its Statewide Guidance on Masks and issued Interim Guidance for Fully Vaccinated Individuals to align with the CDC’s guidance.

Here’s what businesses need to know:

In its updated guidance, OHA requires all businesses, employers, and faith institutions to continue to apply and enforce mask and physical distancing requirements unless it:

Has a policy for checking for proof of vaccination status of individuals;
Requests proof of vaccination status from each individual; and
Reviews each individual’s proof of vaccination prior to entry or admission.

In other words, businesses, employers, and faith institutions may allow fully vaccinated individuals to forego wearing a mask and adhering to physical distancing requirements if they have a policy as described above. Importantly, OHA’s guidance makes clear that this is not required. Meaning, businesses, employers, and faith institutions may still require and enforce mask and physical distancing requirements at their discretion.

OHA defines proof of vaccination to mean “documentation provided by a tribal, federal, state or local government, or a health care provider, that includes an individual’s name, date of birth, type of COVID-19 vaccination given, date or dates given, depending on whether it is a one-dose or two-dose vaccine, and the name/location of the health care provider or site where the vaccine was administered. Documentation may include, but is not limited to, COVID-19 vaccination record card, or a copy or digital picture of the vaccination record card.”

It is recommended that businesses that choose to exempt vaccinated individuals from the mask and physical distancing requirements do not keep copies showing proof of vaccination status. Rather, if documentation is kept, it should be limited to a “yes” or “no” determination, the name of the individual verified, and who performed the verification. Similarly, employers should invite employees to submit proof of vaccination if they wish to be exempt from mask and physical distancing requirements but need not keep a copy of proof of vaccination. Employers should avoid asking employees why they are not vaccinated to avoid making a disability-related inquiry.

OHA’s updated guidance allowing businesses, employers, and faith institutions to loosen restrictions for fully vaccinated individuals does not apply in:

any setting where the owner or operator continues to require masks, face coverings, or face shields in accordance with the Statewide Mask, Face Coverings, Face Shields Guidance;
health care settings;
adult jails and correctional facilities;
youth detention and correctional facilities;
shelters and transitional housing;
K-12 schools (fully vaccinated individuals must comply with Ready School, Safe Learners (RSSL) guidance face covering requirements);
Planes, buses, trains, and other forms of public transportation traveling into, within, or out of the United States;
U.S. transportation hubs such as airports and bus stations.

Businesses that intend to allow fully vaccinated individuals and employees to enter their facilities without a mask or physical distancing should develop a policy describing the process for verifying vaccination status before doing so. It is recommended that businesses who choose to have a policy allowing fully vaccinated individuals into their facilities use signage and post updates on their websites to notify visitors of their policy.

Oregon OSHA

Oregon OSHA also released its own advisory memorandum to align with OHA’s updated guidance. Consistent with OHA’s guidance, Oregon OSHA provides that “an employer who requests and reviews verification of vaccination may permit fully vaccinated individuals with such proof of vaccination to go without a mask, face covering, or face shield, and does not need to enforce physical distancing requirements for such individuals.” Verification is key here—Oregon OSHA notes that an employer must continue to enforce the physical distancing and facial covering requirements for individuals who claim to be vaccinated but refuse to provide verification of vaccination status.

Other than this “vaccination exemption,” all OR OSHA requirements imposed by its permanent rule on COVID-19 safety measures for workers remain in place. More information on OR OSHA’s permanent rule can be found here.

For questions, contact Natalie Pattison or Amy Angel at 503-228-0500, or at npattison@barran.com or aangel@barran.com.

NOW, NEXT, & BEYOND: Barran Liebman’s E-Alert series covering the COVID-19 pandemic, helping employers identify what they need to do now, next, and beyond to stay in compliance, be responsive to employees, and best position their business for the future.

Click to access a PDF of this Electronic Alert.

Amy L. Angel 5/4/21 Amy L. Angel 5/4/21

5/4/21: Just In: Oregon OSHA Releases Permanent Rule Addressing COVID-19 in All Oregon Workplaces

May 4, 2021

By Amy Angel & Natalie Pattison

Today, Oregon Occupational Safety and Health Administration (OSHA) released its long-awaited permanent rule “Addressing the COVID-19 Public Health Emergency in All Oregon Workplaces.”

In January 2021, Oregon OSHA proposed a permanent COVID-19 rule to replace the temporary rule, which expires today. The permanent rule is limited to addressing COVID-19 and will be repealed when it is no longer necessary for that purpose. To that end, Oregon OSHA will engage with the relevant agencies and advisory committees every two months to discuss whether all or part of the rule should be repealed.

The permanent rule largely tracks Oregon OSHA’s temporary rule that went into effect on November 16, 2020. The permanent rule includes the same general requirements related to sanitation, face coverings and physical distancing, but does strongly discourage the use of face shields. Notably, employers that completed the risk assessment, infection control plan, and infection control training under the temporary rule do not need to revise or repeat those requirements under the permanent rule. (Employers who have not completed these items should do so as soon as possible.)

There are a few important differences in the permanent rule that all Oregon employers should note. Specifically, the permanent rule:

Encourages employers to consider alternatives to transporting multiple persons, but does not require employers to use multiple vehicles to transport multiple employees;
Slightly modifies the ventilation rules to include a requirement that all employers check the ventilation system at least quarterly and includes a requirement that employers with more than 10 employees attest that they are running their ventilation system in accordance with the rule;
Clarifies that recordkeeping provisions may apply when written COVID-19 exposure records are created;
Requires written notification of return-to-work rights when employees must quarantine (note that the rights are the same, but the written notification is new);
Requires certain exceptional risk employers to have a written PPE supply and crisis management plan; and
Requires health care employers to provide respirators to employees working with known or suspected COVID-19 positive patients unless such respirators are unavailable.

Oregon OSHA rules currently do not distinguish between vaccinated and unvaccinated employees. Accordingly, employers should not differentiate between vaccinated and unvaccinated employees with respect to following Oregon OSHA workplace rules, such as requirements for masks and physical distancing.

The final rule related to respiratory protection for direct patient care has a delayed effective date of May 17, 2021. The rule has a delayed effective date of June 6, 2021, for ventilation, transportation, employee notification, and the PPE supply and crisis management plan requirements.

Employers should ensure that their workplaces are in compliance with the rules and reach out to counsel with any questions or concerns regarding Oregon OSHA’s new rule.

For questions about OSHA’s permanent COVID-19 rule, contact Natalie Pattison or Amy Angel at 503-228-0500, or at npattison@barran.com or aangel@barran.com.

NOW, NEXT, & BEYOND: Barran Liebman’s E-Alert series covering the COVID-19 pandemic, helping employers identify what they need to do now, next, and beyond to stay in compliance, be responsive to employees, and best position their business for the future.

Click to access a PDF of this Electronic Alert.

Josh M. Goldberg 4/29/21 Josh M. Goldberg 4/29/21

4/29/21: EEOC Releases EEO-1 Reporting Form & Sets Deadline for EEO-1 Reporting

April 29, 2021

Many large employers who ordinarily report workforce demographic information to the EEOC received an extension to file their EEO-1 reports last year. Earlier this week, the EEOC announced it plans to collect both 2019 and 2020 EEO-1 reports and released the necessary forms. Employers have until July 19, 2021, to file their 2019 and 2020 EEO-1 reports, and employers prepared to file earlier may do so after May 26, 2021.

For the purposes of EEO-1 reporting, large employers are either (1) those with 100 or more employees, or (2) are federal contractors or first-tier subcontractors with 50 or more employees and a contract of $50,000 or more.

Employers may recall collecting compensation information for the EEO-1 Component 2 in years past. Employers should not be surprised that this form is not available through the EEOC’s new website, EEOCdata.org/eeo1. These compensation reporting requirements were subject to litigation, and after some back and forth with the U.S. District Court for the District of Columbia, the EEOC under the Trump administration rescinded these compensation reporting requirements. There are some indications that the Biden administration may restore compensation reporting of some type, but not at this time for the 2019 and 2020 EEO-1 reports.

Employers who have received their notification letter through the U.S. mail containing their account information can now log in. Covered employers that have not received their notification letter can contact the EEOC’s Filer Support Team at FilerSupport@eeocdata.org for assistance with creating an account.

For employers with questions about their voluntary self-identification forms, handling demographic information, or EEOC reporting requirements, contact the Barran Liebman team at 503-228-0500.

Click to access a PDF of this Electronic Alert.

Josh M. Goldberg 4/28/21 Josh M. Goldberg 4/28/21

4/28/21: Federal Contractors, Are You Up to Speed on Your Compliance Obligations? President Biden Enacts $15.00 Minimum Wage

April 28, 2021

Employers take note, on Tuesday, April 27, 2021, President Biden signed an Executive Order raising the minimum hourly wage for federal contractors and subcontractors to $15.00 and tying future automatic increases to the Consumer Price Index. President Obama last raised the minimum wage for federal contractors to $10.10 in 2014 and, indexed to inflation, the current minimum wage is $10.95.

By January 30, 2022, contract solicitations, renewals, and extensions will include the $15.00 minimum wage, but do not be surprised if agencies start incorporating these minimum wage requirements sooner. Additionally, seasonal, recreational, and equipment rental services operating on federal lands will no longer enjoy an exemption from minimum wage requirements for federal contractors, and workers with disabilities are subject to the $15.00 minimum wage.

The Executive Order also gradually sunsets tip credits for tipped employees. Starting on January 30, 2022, employers may take an hourly tip credit of $4.50 and will be required to make up for any shortfall in tips to ensure tipped employees earn at least a minimum wage of $15.00 an hour. In 2023, employers will be able to take a smaller tip credit in the amount of 15 percent of the minimum wage and, by 2024, the tip credit will be completely eliminated.

Employers should watch for implementing regulations that will be issued no later than November 24, 2021.

This is just one of the first of what we anticipate are many new considerations for federal contractors as the new Administration gets settled in. The Biden Administration has shown a keen interest in federal contractor compliance and enforcement, including annual verification that a contractor has satisfied the written affirmative action plan requirement through the Affirmative Action Plan Verification Interface (AAP-VI).

Employers who are federal contractors or who believe that they may be federal contractors, should take the time to ensure that they are properly in compliance with the laws that apply to them and are up to date on legal changes.

For questions related to compliance with the laws affecting federal contractors or with wage and hour laws, contact the Barran Liebman team at 503-228-0500.

Click to access a PDF of this Electronic Alert.

Amy L. Angel 4/27/21 Amy L. Angel 4/27/21

4/27/21: Not So Fast: Office Workers in Newly Announced “Extreme Risk” Counties Must Continue Teleworking

April 27, 2021

By Amy Angel & Natalie Pattison

Today, Governor Brown announced 15 counties will move to the “Extreme Risk” category on Friday, April 30, including counties in Portland, Salem, and Eugene.

The 15 counties that will move to Extreme Risk are: Baker, Clackamas, Columbia, Crook, Deschutes, Grant, Jackson, Josephine, Klamath, Lane, Linn, Marion, Multnomah, Polk, and Wasco. The Governor is canceling the “warning” week, meaning those counties that qualify will move to Extreme Risk on Friday, April 30.

Importantly, businesses and non-profits with offices in an Extreme Risk county are required to utilize telework and work-at-home “to the maximum extent possible.” Work in offices is specifically prohibited if telework or work-at-home measures are available, in light of position duties, availability of teleworking equipment, and network adequacy. Additionally, businesses including gyms and restaurants in Extreme Risk counties must drastically reduce capacity, and indoor dining is prohibited.

As a reminder, in early December 2020, the Governor issued a new Executive Order that replaced the “Stay Home, Save Lives” Executive Order and introduced the county risk level concept. The EO stated that, “although utilizing telework options to the extent possible is recommended at all Risk Levels during the pandemic, requirements around telework will vary based on the Risk Level where the county is located.” The EO goes on to provide that all businesses with offices in Oregon must comply with the following:

When a county is at Extreme Risk: Businesses with offices in that county shall facilitate telework and work-at-home by employees, to the maximum extent possible. Work in offices is prohibited whenever telework and work-at-home options are available, in light of position duties, availability of teleworking equipment, and network adequacy.
When a county is at High or Moderate Risk: All businesses with offices in that county are strongly recommended to facilitate telework and work-at-home by employees, to the maximum extent possible. It is strongly recommended that work in offices be avoided whenever telework and work-at-home options are available in light of position duties, availability of teleworking equipment, and network adequacy.
When a county is at Lower Risk: Businesses with offices in that county may make limited return to work available. Businesses are encouraged to consider continuing to make telework and work-at-home options available.
For all Risk Levels: Businesses with offices in Oregon must comply with any applicable OHA guidance, including but not limited to applicable sector-specific guidance, the guidance for employers, and the face coverings guidance.

Employers looking to bring employees back to the office, when permissible, should ensure compliance and enforcement of all applicable OR-OSHA requirements and COVID-19 protocols.

For any questions about 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.

NOW, NEXT, & BEYOND: Barran Liebman’s E-Alert series covering the COVID-19 pandemic, helping employers identify what they need to do now, next, and beyond to stay in compliance, be responsive to employees, and best position their business for the future.

Click to access a PDF of this Electronic Alert.

Paula A. Barran 4/22/21 Paula A. Barran 4/22/21

4/22/21: Nonprofit Health Care Medical Centers or Hospitals: Proposed BOLI Rule Open for Public Comment

April 22, 2021

By Paula Barran

The Oregon Bureau of Labor and Industries has posted a proposed rule which, if finalized, will allow nonprofit medical centers or hospitals to modify the very strict rules for the scheduling of meal and rest periods which are currently in place.

If adopted, the proposed rule would add two sections which would state:

(8) The provisions of this rule regarding meal periods and rest periods may be modified by the policies of a nonprofit health care medical center or hospital which provides patient care.

(9) The provisions of this rule are subject to the requirements of any licensing, standard of care, or patient care obligations or responsibilities of a nonprofit health care medical center or hospital which provides patient care.

These proposed changes are now open for public comment; comments must be submitted no later than close of business May 21, 2021, to erin.seiler@state.or.us.

If you have any questions about this rule, which we believe to be a valuable development for providers, please contact Paula Barran at 503-276-2143 or pbarran@barran.com.

Click to access a PDF of this Electronic Alert.

Amy L. Angel 4/22/21 Amy L. Angel 4/22/21

4/22/21: OSHA Recording Requirements for Adverse Reactions to COVID-19 Vaccines

April 22, 2021

The Occupational Safety and Health Administration (OSHA) recently issued guidance on when employers need to record adverse reactions to COVID-19 vaccines. OSHA’s guidance indicates adverse reactions to the COVID-19 vaccine are recordable on the OSHA recordkeeping log if it is:

Work-related;
A new case under 29 CFR 1904.6 (the employee has not previously experienced a recorded injury or illness of the same type that affects the same part of the body or the employee previously experienced a recorded injury or illness of the same type that affected the same part of the body but had recovered completely and an event or exposure in the work environment caused the signs or symptoms to reappear); and
Meets one or more of the general recording criteria in 29 CFR 1904.7 (it results in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or involves significant injury or illness diagnosed by a physician or other licensed health care professional).

If an employer requires employees to be vaccinated as a condition of employment, then any adverse reaction to the COVID-19 vaccine is work-related. The adverse reaction is therefore recordable if it is also a new case and meets one or more of the general recording criteria.

Employers do not need to record adverse reactions to recommended vaccines based on current OSHA guidance; however, the vaccine must be truly voluntary. This means, an employee who chooses not to receive the vaccine cannot suffer any repercussions from this choice. If employees are not free to choose whether or not to receive the vaccine without fearing adverse action, then it would be recordable if it is also a new case and meets one or more of the general recording criteria.

Employers (particularly those with employees in California) should also monitor state specific reporting requirements, which may differ from and be more stringent than the federal OSHA guidance detailed above.

UPDATE: OSHA reversed this guidance and employers are no longer required to record adverse reactions to the COVID-19 vaccine. More information about this update is available here.

For questions about vaccination and navigating COVID-19 in the workplace, contact the Barran Liebman team at 503-228-0500.

Click to access a PDF of this Electronic Alert.

Jeffrey G. Robertson 4/7/21 Jeffrey G. Robertson 4/7/21

4/7/21: The American Rescue Plan Act COBRA Subsidy Has Been Here Since April 1. Are You Ready?

April 7, 2021

By Jeff Robertson & Iris Tilley

It’s April 7, and the American Rescue Plan Act COBRA subsidy was effective April 1.

The Department of Labor (“DOL”) had promised, and has now delivered model templates for compliance with the notice requirements in the American Rescue Plan Act (“ARPA”). We advise employers to ensure that any notice is tailored to their particular health plan, but these notices provide a useful template. The DOL model notices also include helpful information on some frequently asked questions, including the effect of a leave of absence on eligibility and when notices must be provided.

The subsidy changes an employer’s usual compliance with COBRA in various ways, including:

Requiring a notice to employees who, within a certain timeframe were previously eligible to continue their coverage through COBRA, and who may have not elected or elected and then later declined COBRA coverage;
Requiring employers to provide notice to employees when their subsidy period is ending; and
Adding an additional layer of complexity to the fact that each COBRA qualified beneficiary has an independent COBRA election right, and now may have an additional opportunity to elect COBRA.

Employers who would like assistance with administering these new notices, or who have questions about how the ARPA subsidy applies to a specific situation are welcome to contact Iris Tilley or Jeff Robertson at 503-228-0500 (or itilley@barran.com or jrobertson@barran.com).

Click to access a PDF of this Electronic Alert.

Jeffrey G. Robertson 3/26/21 Jeffrey G. Robertson 3/26/21

3/26/21: California Retroactively Renews COVID-19 Paid Sick Leave

March 26, 2021

Starting next Monday, California employees of many Oregon businesses will become eligible for additional state-mandated COVID-19 sick leave. Specifically, California Senate Bill 95 takes effect on March 29, 2021, expanding California COVID-19 Supplemental Paid Sick Leave (SPSL).

California’s COVID-19 leave is modeled after the federal Emergency Paid Sick Leave created by the Families First Coronavirus Response Act (FFCRA). Eligible employees are entitled to up to 80 hours of additional paid sick leave for COVID-19-related qualifying reasons, not to exceed $511 per day or $5,110 total. However, unlike federal FFCRA leave, which is now voluntary, SPSL is mandatory for eligible employees. Only California employees are eligible for SPSL, but employers are subject to the law if they have 26 or more employees anywhere in the country and at least one of them is a California employee.

To comply by the deadline of Monday, March 29, 2021, employers must give notice to their California employees by posting or providing them with this required poster from the California Department of Industrial Relations. Eligible employees have until September 30, 2021, to use their leave. Employees may request compensation for COVID-19-related leave already taken between January 1 and March 29, 2021, if that leave was unpaid or paid at a lower rate than required for SPSL, which would reduce the remaining allotment of SPSL leave available to them.

What Employers (of California Employee(s)) Need to Do:

Post the required poster in a conspicuous place where employees will see it or otherwise ensure the poster reaches California employees (e.g., by email for teleworking employees).
Recognize an oral or written request for leave for one of the qualifying reasons as a SPSL leave request.
Be prepared for retroactive employee wage requests from unpaid sick leave taken earlier in 2021.
Know how to calculate the rate of pay and hours of eligibility for your California employees.
Determine whether voluntarily provided FFCRA leave or locally-mandated COVID leave counts against the SPSL requirements.

For questions about the retroactive COVID-19 Supplemental Paid Sick Leave or for assistance with other issues related to your California employees, contact the Barran Liebman team at 503-228-0500.

Click to access a PDF of this Electronic Alert.