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.

Nicole C. Elgin 9/13/21 Nicole C. Elgin 9/13/21

9/13/21: Federal Executive Order Requires Private Businesses with 100 or More Employees to Mandate Vaccines or Weekly Testing Before Their Employees Can Report to Work

September 13, 2021

By Amy Angel

Last week, President Biden signed an executive order that required all private sector employers with 100 or more employees to mandate either that their employees be fully vaccinated against COVID-19 or that their employees provide at least one negative COVID-19 test per week before reporting to work.

The U.S. Occupational Safety and Health Administration (OSHA) will promulgate a rule for enforcing the order. Violations of the rule could result in fines of up to $14,000 per day. Indications are that the OSHA rule will be issued in two to three weeks. Once the federal rule is adopted, Oregon OSHA will adopt a rule that aligns with the federal rule within 30 days.

President Biden signed similar orders that apply to federal employees, federal contractors, workers in healthcare facilities that receive Medicare and Medicaid reimbursements, and teachers and staff in Head Start and Early Head Start programs as well as other federal education programs. Workers covered by those mandates will not have a testing alternative.

Many more details will emerge as OSHA drafts its rule. In the meantime, here are a few things for employers to keep in mind and be prepared for:

Deadlines

The deadline for employers to comply with the rule is still unknown. More details are expected when OSHA issues its rule in the coming weeks. In the meantime, employers are still permitted to encourage their employees to get vaccinated or implement their own vaccine mandate ahead of the federal requirements.

Accommodations

The rule’s testing alternative for employers with 100 or more employees will likely suffice as a reasonable accommodation for those with a disability or sincerely held religious belief that prevents them from getting vaccinated. Because there will be no testing alterative for workers in healthcare settings receiving Medicare and Medicaid reimbursements, these employers will need to engage in the interactive process for employees who request a medical or religious exception.

Employees covered by other federal mandates do not have a testing alternative. But if an employee requests an accommodation based on disability or religion, employers should evaluate whether testing is a reasonable accommodation. Employers should engage in the interactive process with their employees if they request an accommodation.

Paid Time Off

The OSHA rule that applies to employers with 100 or more employees will also require that employers provide paid time off to employees for the time it takes to get vaccinated and to recover from side effects.

Under state and federal law, employers are required to pay their non-exempt employees for the time spent receiving COVID-19 testing during the workday, and employers may also be required to pay non-exempt employees if they receive their testing on a non-work day.

Testing Availability & Costs

The OSHA rule will likely drive a surge in the demand for testing. It is not yet known whether the supply of testing can keep up. It is also not known who will shoulder the burden of the cost of testing—insurance companies, employers, or the government. Employers should note that Oregon law makes it unlawful for an employer to require an employee to pay for a required medical exam unless the exam is required pursuant to a collective bargaining agreement, state or federal statute, or city or county ordinance. Stay tuned for more information on who will be responsible for the cost of testing.

We will follow up with a separate E-Alert once the OSHA rules are available. In the meantime, employers should seek counsel as they prepare to comply with the federal requirements or if they wish to implement their own vaccination mandates.

For questions about vaccination mandates or for any other matters relating to COVID-19 in the workplace, contact Amy Angel at 503-276-2195 or aangel@barran.com.

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.

Nicole C. Elgin 9/2/21 Nicole C. Elgin 9/2/21

9/2/21: The Other Delta: The Delta Airlines Vaccine Surcharge & What a Surcharge Could Look Like for Your Business

September 2, 2021

By Jeff Robertson & Iris Tilley

Delta Airlines recently made headlines stating it would require all employees who remained unvaccinated against COVID-19 to pay a $200 surcharge on their company health insurance premiums. Delta Airlines stated it was taking this step due to the high cost of treatment related to COVID-19 patients and its belief that those costs could be prevented through vaccination.

Most companies do not have 75,000 employees across the world, and the impact of COVID-19 costs to a company’s bottom line will vary. However, there is no question that high healthcare costs will impact the health insurance costs for a company whether that is through renewal of a fully-insured health plan or more directly through claim payments by self-insured group health plans.

In recent weeks, we have seen many questions around vaccine mandates vs. surcharges vs. taking no action to encourage or discourage vaccination. This E-Alert is not intended to recommend any specific approach, but rather to help provide some clarity around the reasons behind Delta’s recent actions as well as some legal background for those considering surcharges in their own workplaces.

Unlike a vaccine mandate, health plan surcharges associated to vaccine status fall within the existing structure of wellness program rules housed within the Americans with Disabilities Act (ADA), the Affordable Care Act (ACA), the Genetic Information Nondiscrimination Act (GINA), and guidance from the Equal Employment Opportunity Commission (EEOC). When a surcharge is designed within these rules, it allows employers to charge employees who do not take defined health steps more for their health insurance coverage than employees who opt to take those steps. Safeguards are still of course required for those with medical and religious barriers to vaccination, but for employers looking for a way to gently encourage vaccination, wellness programs can offer the right type of gentle nudge. In particular, wellness programs to promote COVID-19 vaccines can help employees understand the effect their personal decisions may have on cost consequences to the group health plan as a whole, and recognize the link between behavior choices and company health insurance costs.

To learn more about vaccine incentives and mandates please contact Iris Tilley or Jeff Robertson at 503-276-2155 or 503-276-2140, or at itilley@barran.com or jrobertson@barran.com. You can also learn more about vaccine mandates and incentives by registering for our upcoming Annual Employment, Labor, Benefits, & Higher Education Law Seminar: “Barran Liebman’s HR Open.”

Click to access a PDF of this Electronic Alert.

Nicole C. Elgin 8/30/21 Nicole C. Elgin 8/30/21

8/30/21: Employees Who Are Fired for Refusing COVID-19 Vaccine May Not be Eligible for Jobless Benefits

August 30, 2021

As a general rule, jobless benefits are available to unemployed Oregon workers who are laid off or who have good cause to quit their jobs. Workers are generally not eligible for jobless benefits if they are terminated from their job due to misconduct. Misconduct can arise when an employee refuses to adhere to an employer’s reasonable workplace policy.

Is an employer’s vaccine mandate a reasonable workplace policy? An official with the Oregon Employment Department signaled last week that in the context of a global pandemic, a vaccine mandate could be considered a reasonable policy, and employees may be ineligible for jobless benefits if they are fired for refusing the COVID-19 vaccine, unless they can establish a medical or religious exemption.

The official said determining whether a vaccine policy is reasonable is a fact-specific inquiry, and the department will determine each jobless claim stemming from termination for failure to be vaccinated on a case-by-case basis.

Jobless claims are one of many complex and dynamic issues that stem from COVID-19 vaccine mandates. Employers who are considering a COVID-19 vaccine mandate should consult with counsel to ensure their policy is in compliance with state and federal law.

For questions about vaccine mandates or for any other questions relating to COVID-19 in the workplace, contact the Barran Liebman team at 503-228-0500.

Nicole C. Elgin 8/26/21 Nicole C. Elgin 8/26/21

8/26/21: OHA Rules for Schools & Healthcare Settings

August 26, 2021

Updated 08/27/21: The Oregon Health Authority released new FAQs available here concerning the vaccine requirement for schools and school-based programs.

The Oregon Health Authority released rules concerning the COVID-19 vaccination requirements for healthcare workers and K-12 teachers and staff. The rules detail who the vaccination requirement applies to and the process for requesting a medical or religious exception. Workers who fall under the rules must provide their employer, contractor, or responsible party with either proof of vaccination (must be fully vaccinated) or documentation of a medical or religious exception by October 18, 2021.

Healthcare Workers

The vaccine requirement applies to healthcare personnel in healthcare settings. The rule defines “healthcare personnel” broadly to include unpaid workers such as those who are learning, studying, assisting, observing, or volunteering, or anyone “who has the potential for direct or indirect exposure to patients, residents, or infectious materials.” The rule defines “healthcare setting” to include facilities such as residential behavioral health facilities, adult foster homes, group homes, pharmacies, alternative medicine providers such as acupuncture or naturopathy, and even vehicles or temporary sites where healthcare is delivered such as mobile clinics and ambulances.

The rule excludes from the definition of healthcare setting an individual’s private home where the individual directly contracts with healthcare staff, as long as the individual’s home is not a licensed or registered healthcare facility.

Schools & School Programs

The vaccine requirement applies to teachers and school staff in schools or school-based programs. This includes public, private, charter, and alternative schools that provide any type of K-12 program. Covered school-based programs include any program serving children or students that takes place in school facilities. However, standalone preschool programs (including those offering kindergarten) are not covered by the rule.

School staff is defined broadly to include those not employed but who are “providing goods or services to schools through a formal or informal agreement.” This includes paid and unpaid personnel and volunteers, including but not limited to administrative staff, cleaning staff, coaches, school bus drivers, family volunteers, and substitute teachers. The rule defines school-based program staff to include all the same categories of workers as schools, but it also includes child care staff, drivers, and family volunteers.

Short-term visitors, individuals making deliveries, and school board members (unless they are also volunteering in schools) are excluded from the rule.

Medical & Religious Exception Form

The medical and religious exception forms can be found on the OHA website. The medical exception form requires a signature by a medical provider (other than the person who is requesting the exception) and must list the individual’s physical or mental impairment that prevents the individual from receiving the vaccination based on a specific medical diagnoses and whether it is permanent or temporary.

The religious exception form requires the individual to describe their sincerely held religious belief and how it affects their ability to receive a COVID-19 vaccination. No corroborating signature from a religious organization is required.

Employer Responsibilities

Employers and other responsible parties are required to maintain vaccination documentation and documentation of medical and religious exceptions in accordance with applicable federal and state laws for a period of at least two years, and must provide copies to the OHA upon request.

Employers or other responsible parties who violate any provision of the rule are subject to penalties of up to $500 per day per violation.

Employer Discretion to Implement Additional COVID-19 Precautions

The medical and religious exception forms indicate that employers and responsible parties may take additional precautions to safeguard the workplace from COVID-19. Specifically, the forms state that workplaces are not required to grant accommodations when doing so presents a direct threat to others in the workplace or where the accommodation creates an undue hardship for the employer.

For questions regarding vaccination requirements or for any other questions related to COVID‑19 in the workplace, contact the Barran Liebman team at 503-228-0500.

Nicole C. Elgin 8/24/21 Nicole C. Elgin 8/24/21

8/24/21: New Oregon Outdoor Mask Mandate Takes Effect Friday

August 24, 2021

By Amy Angel

Update 08/30/2021: The Oregon Health Authority’s outdoor mask rules can be found here and its mask, face coverings and face shields, and physical distancing guidance can be found here.

Governor Kate Brown announced that a new outdoor mask mandate will go into effect on Friday August 27, 2021. The mandate applies to public outdoor spaces in Oregon where physical distancing is not possible, regardless of vaccination status.

Under the new rule, individuals will be required to wear masks in outdoor settings in which individuals from different households are unable to consistently maintain distance. The mask requirement will not apply to “fleeting encounters” such as when two individuals walk past each other on an outdoor public walkway.

Exceptions to the outdoor mask mandate will align with the current exceptions to the indoor mask rule including:

Children under the age of five;
Individuals living outdoors;
Individuals who are actively eating, drinking, or sleeping; and
Individuals playing or practicing competitive sports or engaged in an activity in which it is not feasible to wear a mask such as swimming.

The outdoor mask mandate also does not apply to day-to-day operations at K-12 schools which will continue to operate under a separate mask rule for schools. However, outside public events, spectator events, and gatherings of the general public on K-12 school grounds will be subject to the new requirements.

Similar to the indoor mandate, businesses and entities are required to ensure that their employees, contractors, and volunteers wear masks in outdoor public spaces that are under their control, and entities covered by the ADA must comply with requirements to provide reasonable accommodations.

In the meantime, businesses and employers should update their policies, practices, communications, and signage now to be in compliance on Friday, August 27, 2021.

For questions about this mandate or for any other questions related to COVID-19 in the workplace, contact Amy Angel at 503-276-2195 or aangel@barran.com.

Nicole C. Elgin 8/23/21 Nicole C. Elgin 8/23/21

8/23/21: FDA Approves Pfizer COVID-19 Vaccine Triggering October 18, 2021 Deadline for Certain Oregon Employees to be Vaccinated

August 23, 2021

By Amy Angel

Today, the U.S. Food and Drug Administration granted full approval for the Pfizer COVID-19 vaccine for individuals 16 and older.

Governor Brown recently announced that certain Oregon employees would be required to be fully vaccinated against COVID-19 or obtain a disability or religious accommodation by October 18, 2021, or six weeks after the FDA gave full approval to a COVID-19 vaccine. With the FDA’s approval of the Pfizer vaccine, the deadline for these employees is October 18, 2021. Testing is no longer an alternative to the requirement to be fully vaccinated.

The Governor’s vaccine mandate applies to:

Healthcare workers and healthcare staff;
Public and private K-12 teachers, educators, support staff, and volunteers; and
Oregon executive branch employees.

Similarly, Multnomah County has announced that all of its employees will be required to be fully vaccinated by October 18, 2021, subject to medical, disability, and religious accommodations.

In related news, to ensure a uniform statewide approach regarding mask wearing, Multnomah County rescinded its mask mandate and is instead following the statewide OHA rule.

OHA has released updated rules implementing the Governor’s vaccine mandates for healthcare workers and teachers and staff.

Nicole C. Elgin 8/12/21 Nicole C. Elgin 8/12/21

8/12/21: Mask Mandate Update Part 2: OHA Issues Temporary Rule on Statewide Mask Mandate

August 12, 2021

By Amy Angel

Updated 08/18/21: To avoid confusion and ensure statewide consistency and approach, Multnomah County rescinded its mask requirement and instead will follow the statewide mandate in effect until Feb. 8, 2022.

The Oregon Health Authority (OHA) filed its temporary rule requiring masks to be worn in indoor spaces in Oregon effective August 13, 2021.

“Indoor spaces” is defined broadly to mean anywhere indoors that is not a private residence or a private automobile being used for personal use (i.e. not used for ride sharing), including:

public and private workplaces;
businesses;
indoor areas open to the public;
building lobbies, elevators, and bathrooms;
common or shared spaces;
classrooms;
transportation services; and
other indoor space where people may gather for any purpose.

The rule further defines “public and private workplaces” as indoor places where people work, including, but not limited to businesses, banks, food processing plants, manufacturing facilities, construction sites, warehouses, and farms. Additionally, “common or shared spaces” means:

“Areas where individuals may interact such as a restroom, breakroom, hallway, elevator, lobby, classroom, large room with cubicles, meeting rooms, conference rooms, and any area open to the public.”

The statewide rule is substantially similar to the Multnomah County Health Department Rule implementing the County Indoor Face Covering Mandate. When the state and county rules differ, businesses in Multnomah County must comply with the stricter rule.

Key differences where Multnomah County requires more:

Responsible persons must provide face coverings to employees and educate employees on safe communication with people who cannot wear face coverings and on how to provide accommodations.
Multnomah County excludes face shields from the definition of face coverings, because they allow droplets to be released. Accordingly, in Multnomah County, the use of a face shield alone does not meet the requirements of the Order. While the OHA rule allows the use of face shields to comply with the mandate, OHA does not recommend that individuals wear a face shield instead of a mask or face covering, unless it is not feasible due to certain medical conditions or necessary accommodations.
Multnomah County only excepts athletic or other physical activities from the mask requirement where use of a face covering would be unsafe because of exertion or risk of strangulation. The State allows an exception to the mandate while “practicing or playing a competitive sport at any level.”
Multnomah County’s mask mandate applies not only to indoor spaces, but also to “enclosed areas,” which together with indoor spaces includes:
- any section or area of a business that is enclosed on three or more sides with walls or windows (permanent or temporary) and also by a roof – whether accessible by the public or not;
- any building or space that meets the above criteria to which the public has access by right or by invitation (express or implied), including all lobbies; or common areas, workplaces, classrooms, elevators, bathrooms, or meeting rooms
- any other spaces outside of private residences where people gather for any purpose, including entertainment, social, civic, cultural, or religious purposes.

While the definitions essentially include the same areas, the County inclusion of any “enclosed area” with three walls and a roof could encompass some temporary outdoor eating areas and other similar structures.

The OHA rule includes an exception to the mask requirement when an individual is performing, including but not limited to playing music, delivering a speech to an audience, and theater. Multnomah County does not include this specific exception but some of these activities may fall under their exception for when an individual is engaged in an activity that makes wearing a face covering impracticable.

Key difference where the State requirements are stricter:

Both Multnomah County and the State require posted signs, but the State specifies that signs must be posted at every entrance to the indoor space.
The OHA rule does not include an exception to the mask requirement when an individual is at or in a location where the employee, contractor, or volunteer does not have a job interacting with the public or with other employees, such as a large warehouse and at least six feet of distance can be maintained between other people. Accordingly, the exception is not available, even in Multnomah County.

The Oregon Health Authority's Indoor Masking FAQ page is available here. Businesses and employers should carefully review the OHA rule and update their policies, practices, and signage.

For questions about complying with the current mask mandates, contact Amy Angel at 503-228-0500 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.

Nicole C. Elgin 8/12/21 Nicole C. Elgin 8/12/21

8/12/21: Masks Mandated Again Beginning August 13 in All Public Indoor Settings in Oregon

August 12, 2021

By Amy Angel

Updated 08/18/21: To avoid confusion and ensure statewide consistency and approach, Multnomah County rescinded its mask requirement and instead will follow the statewide mandate in effect until Feb. 8, 2022.

As you have likely heard, effective Friday, August 13, 2021, everyone five years of age or older will be required to wear a mask in all indoor public settings in Oregon, regardless of vaccination status. The requirement excludes people actively eating and drinking in food establishments.

The mask requirement, according to the governor, is an effort to keep schools and businesses open. Governor Brown did not rule out further restrictions such as capacity limits or business closures if the virus continues to spread. Enforcement of the mask mandate will lie with Oregon OSHA. Further details of the Governor’s Order are being finalized and are expected to be released by Friday, August 13, 2021.

The Governor is also requiring executive branch employees to be vaccinated by October 18, 2021, or six weeks after full FDA approval of a COVID-19 vaccine, whichever is later. In announcing the vaccine mandate, the Governor strongly encouraged all public and private employers to require vaccination for their employees.

Before Governor Brown’s announcement, Multnomah County Chair Deborah Kafoury announced on Monday, August 9, 2021, that Multnomah County would require face coverings for all people five and older (and two years and older if tolerated) in all public settings.

The Executive Order directed the Multnomah County Health Department to issue guidance requiring the use of face coverings that closely mirrors the October 2020 guidance from the Oregon Health Authority (OHA). The Health Department has issued guidance and frequently asked questions that provide additional detail for implementation of the mask mandate.

Specifically, persons responsible for indoor spaces or enclosed areas should, but are not required, to provide face coverings for customers and visitors who do not have one. Additionally, such responsible persons are required to:

Have all employees, contractors, volunteers, students, customers, and other visitors wear a face covering (unless an exception applies);
Provide face coverings for employees;
Post public-facing signs about the face covering mandate; and
Educate employees on how to safely work and communicate with people who cannot wear face coverings and how to provide appropriate accommodations, if needed.

Accommodations include those required under state and federal civil rights laws providing protection for those with a disability or a sincerely held religious belief preventing them from wearing a face covering.

Exceptions when a face covering is not required include:

While engaged in an activity that makes wearing a face covering impracticable, such as swimming, eating, or drinking;
When engaged in an activity that only involves members of the same household;
While receiving personal services where a face covering is impractical, such as dental, beard, and facial services;
When at a private individual workspace, used by one individual at a time that is enclosed on all sides with floor-to-ceiling walls and a closed door; and
When at or in a job location that does not require interacting with the public or with other employees (such as a large warehouse) and at least six feet of distance can be maintained between other people.

Enforcement of the County mandate will be complaint-driven and will focus on compliance by businesses. Failure to comply with the law may result in a fine of up to $1,000 per violation. “Our goal is not to fine people,” Chair Kafoury said, but rather to prompt communitywide behavior change. Businesses may take “any additional steps” they choose to reduce the spread of COVID-19. The public can file complaints online or over the phone as outlined on the County’s website about the Indoor Face Covering Order. While the County encourages the public to submit complaints about businesses that are not enforcing the mask mandate, it does not encourage individuals to police other individuals.

Nothing in the new orders changes more restrictive or sector-specific rules currently in place or the existing requirement for everyone two years of age or older to wear a mask while on public transportation and in healthcare settings. The County Executive Order could be rescinded if there is a comparable, equally, or more restrictive state mandate.

Businesses and employers should update their policies, practices, and signage to comply with the new requirements and continue to watch for additional details as they become available.

For questions about the new mask mandate or assistance drafting mask or vaccine policies, contact Amy Angel at 503-228-0500 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.

Nicole C. Elgin 8/10/21 Nicole C. Elgin 8/10/21

8/10/21: Your Fall Employee Benefits Guide: A Wrap-Up of a Few of Our Favorites

August 10, 2021

By Jeff Robertson & Iris Tilley

As those of you who were able to attend our recent benefits webinar know, there is a lot going on in the benefits world these days. From continuing remote work complexities to hastily-drafted legislation to a constant stream of guidance, it can sometimes feel impossible to take it all in. With that in mind, we have wrapped up a few of our favorites here to help keep your company compliant and ready to face 2022.

Remote Workforce Policies

As discussed in our recent webinar, many employees have been working remotely (and sometimes out-of-state) for some time. While employees working remotely for a limited duration and based on governmental work-from-home mandates have a better chance of being deemed incidental employees to that state of residence, as time goes on, it gets harder to call this out-of-state work incidental. In addition, many employers have started to roll out longer term work-from-home and hybrid remote work arrangements that often allow for out-of-state work. This passage of time, the intent to allow long-term work from home, and an evolving governmental regulatory environment increases the risk of employees being considered permanent working residents from their home. While we wish there was an easy answer, remote work arrangements (especially when they involve a state away from an employer’s usual place of business) call for a case-by-case review and the development of clear remote work policies. These policies are necessary to ensure compliance with all potential state taxes and state employee laws. Employers may also wish to consider clear policies regarding how long someone may work from home in a state outside the jurisdiction.

Employee Retention & Deferred Compensation

Another current hot topic in our world is employee retention. As more out-of-state employers have started conducting national searches and have moved to allowing new hires to work from home, we have seen pressure on local employers to retain their key employees. Effective ways to help incentivize key employees to pass on those remote offers include deferred compensation and bonus structures. (These programs can also be key tools to incentivize a new hire to accept an offer.) It is important to remember that deferred compensation is subject to Internal Revenue Code Section 409A, and failure to meet the Code’s requirements may result in a hefty income tax. Many providers are delaying implementation of deferred compensation plans due to demand, which may lead to mistiming your plan with your expectations and promises, so early planning is often key when it comes to implementing these programs.

CARES Act/ARPA

Many of the pandemic provisions within the CARES Act and the ARPA included provisions which were placed into legislation rather quickly to address what were seen as immediate needs related to the pandemic. As a result, the ultimate text, impact, and interpretation of those laws is very limited, and application is sometimes uncertain. For example, the IRS recently issued COBRA premium assistance guidance, yet the COBRA premium assistance component of the ARPA is set to expire in fewer than 60 days (September 30, 2021). While much of the COVID-19 pandemic has involved reacting to regulation with best efforts, it is important to continuously review policies and procedures impacted by the CARES Act and the ARPA to ensure continued compliance with the most updated guidance and requirements.

Cybersecurity

In today’s environment, one of the greatest risk areas for sponsors of health and retirement plans is cybersecurity. In April of this year, the Department of Labor recognized this risk by publishing specific cybersecurity guidance with the Employee Retirement Income Security Act (ERISA) in mind. As many plan sponsors are updating prototype and individually designed retirement plans in 2021 and are entering new Health Plan contracts for January 1, 2022, we recommend including cybersecurity language within plan documents and contracts. In addition, we recommend that the Plan Committees/Trustees review internal and vendor cybersecurity protections (with regard to both financial and individually identifiable data) on at least an annual basis, as a cybersecurity breach can be extremely costly to Plan Sponsors and their participants.

For any benefits and compensation questions, contact Jeff Robertson or Iris Tilley at 503-276-2140 or 503-276-2155, or at jrobertson@barran.com or itilley@barran.com. You can also learn more about recent benefits law changes, including those related to cybersecurity, by registering for Barran Liebman’s upcoming Annual Employment, Labor, Benefits, & Higher Education Law Seminar: “Barran Liebman’s HR Open.”

Click to access a PDF of this Electronic Alert.

Nicole C. Elgin 8/6/21 Nicole C. Elgin 8/6/21

8/6/21: New Rules Requiring Vaccination (or Frequent Testing) for Oregon Health Care Personnel

August 6, 2021

By Amy Angel

On August 4, 2021, Governor Brown directed the Oregon Health Authority (OHA) to adopt new safety and health measures for personnel in healthcare settings. Governor Brown’s statement noted: “severe illness from COVID-19 is now largely preventable, and vaccination is clearly our best defense. Vaccination and weekly testing ensure Oregonians can safely access health care and employees can go to work in an environment that maximizes health and safety measures for COVID-19.”

On August 5, 2021, OHA issued its temporary rule effective through January 31, 2022. Simply put, the rule requires:

In order to work, learn, study, assist, observe, or volunteer in any healthcare setting healthcare providers and healthcare staff must:

be fully vaccinated; or
undergo COVID-19 testing at least weekly, by molecular or antigen detection for any week the provider or staff person intends to be present at a healthcare setting, on a schedule established by the healthcare provider’s or healthcare staff person’s employer, contractor or responsible party, or in the case of a self-employed healthcare provider, on their own schedule.

Employers of healthcare providers or healthcare staff, contractors, or responsible parties must have a policy for requesting proof of vaccination and required COVID-19 testing for the unvaccinated. Many of the terms in the rule incorporate long definitions and employers should review the definitions to determine if their workplace is covered.

In developing their policy, covered employers should address:

Requesting and obtaining proof of vaccination;
Required testing for any covered employee who is unvaccinated or has an unknown vaccination status;
Maintaining test results and vaccination status (in a separate confidential medical file) for at least two years;
Process for accommodations;
Wage and hour issues regarding time spent for vaccination or testing; and
Covering the cost of testing when required by law.

Full compliance with the rule is required no later than September 30, 2021. Any person violating the rule after that date may face a $500 civil penalty per day per violation.

For questions regarding who is covered by this rule, developing a policy, or other compliance issues, please contact Barran Liebman attorney Amy Angel at aangel@barran.com.

Click to access a PDF of this Electronic Alert.

Nicole C. Elgin 8/5/21 Nicole C. Elgin 8/5/21

8/5/21: Oregon OSHA Issues Temporary Rules for Wildfire Smoke

August 5, 2021

By Amy Angel & Nicole Elgin

Employers take note! Oregon OSHA issued temporary rules effective August 9, 2021, that apply when employees are exposed to wildfire smoke where the air quality index (AQI) is at or above 101. The rule requires employers to train employees and to implement exposure controls and a communication system.

Training

By August 16, 2021, employers must provide training to employees who may be exposed to an AQI at or above 101. OSHA anticipates having sample training materials available by August 6, 2021. Training must include:

Potential health effects of wildfire smoke, including increased risk of health effects to sensitive groups;
Symptoms of exposure: burning sensations in the eyes; runny nose, sore throat, cough, and difficulty breathing; and fatigue, headache, and chest pain;
How employees can view current and forecasted AQI level;
How to operate and interpret the air quality monitoring device provided by the employer;
The employer’s methods to protect workers from wildfire smoke;
Emergency response procedures;
The employee’s right to report health issues and obtain medical treatment without retaliation;
Two-way communication system for wildfire smoke hazards; and
The importance, limitations, and benefits of using filtering facepiece respirators when provided by the employer, and how to wear them properly.

Communication System

The employer’s communication system must notify employees when the ambient air concentration:

is at or above AQI 101;
is at or above AQI 201;
is at or above AQI 500; and
drops below levels requiring protective measures.

Exposure Controls

Employers must implement the following exposure controls:

Use engineering or administrative controls whenever possible to reduce employee exposure to less than AQI 201. OSHA notes that engineering controls include enclosed buildings or vehicles where the air can be adequately filtered and administrative controls include relocating work to another outdoor location with better air quality or changing work schedules.
If employee exposure exceeds AQI 201, employees must wear NIOSH-approved filtering facepiece respirators.
If employee exposure exceeds AQI 101, employers must provide the respirators at no cost and make them readily available to employees for voluntary use.
KN95s previously approved under the FDA’s emergency use authorization can be substituted for NIOSH-approved filtering facepiece respirators for exposures below AQI 499. For exposures at AQI 500 and above, employers must provide NIOSH-approved filtering facepiece respirators.

Some workplaces are exempt from the rule, including enclosed buildings where air is filtered by a mechanical ventilation system and enclosed vehicles where air is filtered by a cabin air filter.

For questions on employer compliance with these new rules, contact Barran Liebman attorneys Amy Angel at aangel@barran.com or Nicole Elgin at nelgin@barran.com.

Click to access a PDF of this Electronic Alert.

Amy L. Angel 7/30/21 Amy L. Angel 7/30/21

7/30/21: New Workplace Disability – “Long COVID”

July 30, 2021

By Amy Angel

Earlier this week, federal health agencies released guidance for many employers about the long-term health effects of COVID-19 in the workplace. Health professionals have identified “long COVID” as a new medical condition that afflicts people for many months after COVID-19 infection. The guidance states that “long COVID” is considered a disability under Section 504 of the Americans with Disabilities Act (“ADA”) if it substantially limits a major life activity.

“Long COVID” is a physiological condition that will affect one or more of the body systems including the neurological, cardiovascular, respiratory, and circulatory systems. Because of the range of symptoms, long COVID can be both a mental and physical impairment under disability law. Here are a few examples:

A person with long COVID who has lung damage may experience shortness of breath, fatigue, and related effects.

A person with long COVID who has gastrointestinal damage may experience intestinal pain, vomiting, and nausea.

A person with long COVID who experiences neurological effects may experience memory lapses and “brain fog” that impacts their brain function, concentration, or thinking.

While the new guidance is directed only at employers who receive federal financial assistance, it identifies long COVID as a disability under the same ADA analysis that applies to private employers. Therefore, any employer with an employee requesting accommodations due to long COVID should conduct an interactive process to determine whether the individual has a condition that meets the definition of “disability” under applicable law, and then identify what reasonable accommodation would enable the individual to perform the essential functions of their position.

Federal ADA guidance like this is used by Oregon agencies and courts in applying state disability protections. As a result, employers with six or more employees in Oregon should follow these new guidelines in evaluating requests for accommodations of long COVID.

To navigate the process of determining and confirming that an employee with long COVID symptoms is entitled to a reasonable accommodation, contact Amy Angel at 503-228-0500 or aangel@barran.com.

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Andrew M. Schpak 7/28/21 Andrew M. Schpak 7/28/21

7/28/21: OHA Recommending Masks Indoors Regardless of Vaccination Status

July 28, 2021

By Andrew Schpak & Nicole Elgin

On July 27, 2021, the Oregon Health Authority (OHA) announced that it is recommending universal mask use for all public indoor settings, including for fully vaccinated people.

OHA explained: “the use of face masks provides significant protection for individuals who are unvaccinated as well as an additional level [of] protection from a small but known risk of infection by the virus for persons who have already been vaccinated.”

This came on the heels of a similar announcement from the Centers for Disease Control (CDC). While OHA’s announcement says that it aligns with the CDC, the two actually differ. While the CDC’s July 27, 2021, guidance applies only in counties of substantial or high transmission according to the CDC’s county tracker, OHA’s recommendation is state-wide, regardless of the county’s status.

For example, as of July 28, 2021, Multnomah County is classified at “moderate risk” under the CDC’s tracker, so it does not fall under the CDC’s new guidance. However, on July 26, 2021, Multnomah County Public Health issued a statement that “strongly recommended that everyone 5 and older (2 and older if tolerated) wear masks in all indoor public spaces, regardless of whether they have been vaccinated.”

This is only a recommendation from OHA and not a mandate. Employers should continue to monitor local, state, and federal authorities as this guidance evolves and consider implementing these recommendations.

For questions on employer compliance in the pandemic, contact Barran Liebman attorneys Andrew Schpak at aschpak@barran.com or Nicole Elgin at nelgin@barran.com.

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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.

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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.

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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.

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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.

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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.