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

12/8/21: How Employers Should Approach the Federal Vaccine Mandates That are Held Up in Courts

December 8, 2021

By Amy Angel

In the past few months, we have covered the three major federal vaccine mandates that apply to employers locally and across the country: an OSHA ETS, a mandate for federal contractors, and a mandate for certain healthcare workers. The White House issued the mandates via Executive Orders and they are to be implemented by federal agencies. All three mandates have been subject to a fire storm of litigation. The challenges are generally premised on constitutional and statutory violations—raising questions about the limits of executive power and the administrative procedures that agencies must follow during emergency situations.

Here is what you need to know about your obligations under the mandates as the court battles rage on:

OSHA ETS

The federal Occupational Health and Safety Administration’s (OSHA) Emergency Temporary Standard (ETS) requires that employers with 100 or more employees (“covered employers”) either implement a mandatory workplace vaccine policy or test their unvaccinated employees for COVID-19 at least once per week. The ETS also requires that unvaccinated employees of covered employers wear face coverings while they are indoors.

The Fifth Circuit Court of Appeals issued a nationwide stay of the ETS and the legal challenges (including whether the stay will remain in place) have since been consolidated and transferred to the Sixth Circuit Court of Appeals. The White House is seeking to lift the stay, but the Sixth Circuit has not yet indicated whether the legal challenges will be heard by a three judge panel or the full court and has not set a schedule for a decision. Oregon OSHA, which was originally set to announce its own rule in early December that would be “at least as effective” as the federal ETS, will likely not proceed until there are further developments with the challenges at the federal level.

Federal Contractor Vaccine Mandate

The Safer Federal Workforce Task Force issued guidance earlier this fall that required employees of federal contractors and subcontractors to be vaccinated against COVID-19. The federal contractor mandate did not allow for a testing alternative (but did allow for disability and religious accommodations) and it even applied to those who work remotely full-time. Similar to the OSHA ETS, the federal contractor mandate required face coverings for unvaccinated employees. Initial challenges were only in effect in certain states, but on December 7, 2021, a federal judge in Georgia issued a temporary injunction that put a nationwide hold on the mandate pending further consideration of the legal challenges.

Federal Healthcare Worker Vaccine Mandate

The Centers for Medicare and Medicaid Services’ rule required that all employees in facilities participating in Medicare or Medicaid be vaccinated—allowing for disability or religious exemptions, but not a blanket testing alternative. This rule was put on hold in about 10 states last week by a federal judge. The stay on this rule does not affect the Oregon Health Authority’s temporary rule requiring Oregon healthcare providers and healthcare staff to be vaccinated against COVID-19.

The deadline for employees to be vaccinated under all three mandates was set for early next year, but all three mandates are on hold until the litigation plays out. It is possible that one, if not all, of the challenges to the mandates will go before the U.S. Supreme Court.

While it is unlikely that all three mandates come out unscathed, employers should not assume that none of the provisions in the mandates will go into effect. Various parts of the rules could be struck down and others could survive. It is also possible that one or more of the federal agencies will redraft their mandate in such a fashion that will survive future legal challenges.

In light of all the uncertainty, what should employers do now?

Familiarize yourself with the current mandates and how they may apply to your employees.
Inform employees that you are in a “wait and see” mode and that you will share updates as they become available.
Be prepared to update policies and procedures once details are fully available. If a mandate survives the legal challenges, we anticipate that employers will have some time to prepare for compliance, but we recommend being ready to hit the ground running.
Stay tuned! Stay alert to legal updates at both the federal and state level.

For questions about responding to vaccine mandates or for any other matters related to navigating 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 11/18/21 Nicole C. Elgin 11/18/21

11/18/21: Now is the Time to Update Your Policies: Best Practices for Responding to Complaints & Conducting Remote Workplace Investigations

November 18, 2021

By Wilson Jarrell

As we near the holidays and the end of the year, now is the perfect time to evaluate your policies and practices regarding the handling of internal complaints and the conducting of investigations. Some employers may have felt (or hoped) that remote work during the pandemic would itself resolve pending complaints, or permit putting off an investigation, but this is often far from the truth. Now, more than ever, it is important to promptly and thoroughly address and investigate complaints.

Over the last year and a half, many employers shifted from an office or in-person work environment to a remote, virtual one due to COVID-19. While initially thought to be a temporary move, increasingly employers are choosing to remain virtual or are adopting some form of hybrid work environment. We frequently hear from employers that they cannot adequately address or investigate complaints involving employees working remotely. Others believe that investigations can be conducted remotely the same as they were before, without consideration for the change in circumstances. Both of these attitudes are misguided. Although it requires consideration for the change in circumstances, it is both possible and necessary to conduct a thorough and timely investigation while operating in a remote work environment.

The most significant difference with remote investigations comes in conducting witness interviews. Although the previous gold standard was to interview witnesses in person, research has increasingly shown that this is not necessary in order to make accurate credibility determinations. Additionally, the increasing use of videoconference software by the average workforce allows investigators much of the same advantages afforded by an in-person interview. However, that is not to say that these interviews should be treated identically. Most interviewers will have to be more conscious of building rapport with remote interviewees, and more emphasis may need to be placed on avoiding crosstalk and utilizing non-visual listening cues. It is often helpful to take steps to communicate with the witness in advance of the interview to ensure that they are comfortable and confident in the process and to establish ground rules for how the interview will be conducted. Consideration should also be given as to how documents might be shared in a way that preserves necessary confidentiality. Further, interviewers must ensure that the interviewee is in a quiet, private, and secure location with adequate hardware and an internet connection capable of supporting the video call – considerations best communicated in advance. Other aspects of workplace investigations translate more naturally to a remote environment, but the individual requirements of an investigation may call for a different or more deliberate approach.

Despite the advantages of conducting a remote investigation, there are situations in which an investigation cannot be conducted 100% remotely. Careful consideration can result in a remote interview that gathers all the same critical information as one conducted in person, but a fully remote investigation results in the loss of the ability to see the worksite and physical space at issue. Although not always relevant, depending on the complaint, a site visit can be crucial to understanding or evaluating allegations. Investigators should evaluate whether a site visit would be useful, and whether they should visit with or without the witness.

Investigations remain a critical tool in an employer’s toolbox, and failure to properly conduct a timely investigation when necessary could hurt employee morale and expose an employer to unwanted liability. While in-person investigations will increasingly become more feasible, they may also increasingly require justification, given the time and cost advantages of a remote investigation, which in many circumstances can result in equally adequate work product. Employers should proactively take the necessary steps to ensure that effective remote investigations are carried out in response to employee complaints.

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

Click to access a PDF of this Electronic Alert.

Nicole C. Elgin 11/11/21 Nicole C. Elgin 11/11/21

11/11/21: Vaccination, Testing, & Unions: Employers Must Negotiate with Unions over Parts of OSHA ETS

November 11, 2021

By Nicole Elgin

On Wednesday, November 10, 2021, the National Labor Relations Board’s Acting Associate General Counsel issued a Memo (OM 22-03) outlining their position on employers’ bargaining obligations under OSHA’s recent Emergency Temporary Standard (ETS) on vaccinations. We wrote an E-Alert covering OSHA’s ETS here. Among several requirements, the ETS states that covered employers with 100 or more employees need to mandate employee vaccination or weekly testing.

In short, the Memo explains that covered employers have decisional bargaining obligations regarding the aspects of the ETS that affect terms and conditions of employment to the extent employers have choices on how to implement the ETS. This is because while the duty to bargain is relieved where a change to terms and conditions of employment is required by law, the employer may not unilaterally implement the change if it has discretion in how to comply with the law.

The Memo also reminds employers that even where an employer does not have discretion in implementing parts of the ETS, they are obligated to bargain over the effects of those changes. As an example, the Memo references the Blue Circle Cement case. In that case, the NLRB held that the employer could unilaterally prohibit employees from eating lunch in a specific area because federal regulations prohibited the consumption of food in an area where certain chemicals were present, but the employer unlawfully failed to bargain about the effects of the change.

If you have questions about OSHA’s ETS or any related bargaining obligations, contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.

Click to access a PDF of this Electronic Alert.

Nicole C. Elgin 11/4/21 Nicole C. Elgin 11/4/21

11/4/21: OSHA Releases COVID-19 Vaccination & Testing Rules for Employers with 100 or More Employees

November 4, 2021

Today, the federal Occupational Safety and Health Administration (OSHA) announced the highly anticipated Emergency Temporary Standard (ETS) that requires employers with 100 or more employees (“covered employers”), regardless of industry, to require their employees be vaccinated against COVID-19 or submit to weekly COVID-19 testing. The rule also requires unvaccinated employees in the workplace to wear face coverings, with a few exceptions.

The 100 employee threshold applies to companies who employ 100 or more employees anywhere in the United States. For example, if a company has 25 employees in Oregon and 75 employees in Texas, it would be subject to the ETS.

The following outlines some of the major employer requirements under the ETS:

Vaccination Requirement

The ETS requires that covered employers develop, implement, and enforce a mandatory vaccination policy. Employers are required to obtain acceptable proof of vaccination and maintain a record of each employee’s vaccination status. Further, employers are required to provide employees with reasonable time, including up to four hours of paid time off to receive each vaccination dose and reasonable sick leave for those employees who experience side effects after either dose.

Testing Alternative

As an alternative to a mandatory vaccine policy, employers are required to establish, implement, and enforce a policy that requires all non-vaccinated employees to undergo weekly testing.

The ETS requires non-vaccinated employees to undergo testing on at least a weekly basis. If an employee is away from the workplace for a week or longer, the employee must receive a negative test within seven days before returning to work.

Under the ETS, employers are not required to pay for costs associated with testing. Under Oregon law, however, employers are generally required to pay for out-of-pocket expenses for work-related medical exams and pay employees for the time they spend traveling to and from and undergoing medical exams. The Oregon Bureau of Labor and Industries (BOLI) has taken the position that COVID-19 testing is a medical exam.

Face Coverings

Employees who are not fully vaccinated must wear face coverings when indoors or when occupying a vehicle with another employee for work purposes.

Employers are not allowed to prevent any employee from voluntarily wearing a face covering unless it creates “a serious workplace hazard.”

Other Requirements

Under the ETS, employers must require their employees to promptly provide notice when they receive a positive COVID-19 test or are otherwise diagnosed with COVID-19. Employers are also required to immediately remove any employee (regardless of vaccination status) who has tested positive for COVID-19 or been diagnosed by a licensed healthcare provider. Lastly, employees must be kept out of the workplace until they meet the criteria to return to work (typically quarantining and/or receiving a negative COVID-19 test).

The rule also requires employers who learn that their employee has died from COVID-19 to report the incident to OSHA within eight hours and to report employee hospitalization stemming from COVID-19 within 24 hours.

Exceptions: The ETS does not apply to employers who are covered under the federal contractor or federal Medicare and Medicaid healthcare COVID-19 rules (both are generally stricter than the ETS). Further, the ETS does not apply to employees who report to a workplace where other people are not present, employees who are working from home, or employees who work exclusively outdoors.

Effective Dates: All of the requirements under the ETS (except for testing) take effect December 5, 2021. The testing requirement for unvaccinated employees will take effect on January 4, 2022.

In both Oregon and Washington, the state OSHA programs will release their rules—which are required to be at least as effective as the ETS, but they may implement stricter criteria—within 30 days.

The vaccine deadline for federal contractors and healthcare providers participating in Medicare or Medicaid has been changed to January 4, 2022, to align with employers covered under the ETS.

Potential Changes to Come: Because it is an emergency temporary standard, the rule takes effect immediately, however, OSHA will continue to take public comment and says it may revise or update the ETS as it continues to monitor COVID-19 infections. Additionally, numerous legal challenges to the ETS are expected, and this could draw out the implementation of the ETS.

Employers who fail to comply with the ETS could be fined up to $13,653 per violation. A willful violation could lead to a fine of up to $136,532. While the key deadlines are 30 and 60 days out, it is important for employers to prepare for compliance as soon as possible.

For questions related to OSHA vaccination and testing rules or for any other questions about navigating COVID-19 in the workplace, contact the Barran Liebman team at 503-228-0500.

Nicole C. Elgin 9/27/21 Nicole C. Elgin 9/27/21

9/27/21: Deadline for Federal Contractors to be Vaccinated Set for December 8

September 27, 2021

By Amy Angel

The Safer Federal Workforce Task Force issued guidance last week requiring federal contractors and subcontractors with a covered contract to follow the following workplace safety protocols:

COVID-19 vaccination of employees, except where an employee is legally entitled to a disability or religious accommodation;
Compliance by individuals, including employees and visitors, with masking and physical distancing requirements while in covered workplaces; and
Designation by the contractor of a person or persons to coordinate COVID-19 workplace safety efforts at covered workplaces.

Vaccination Requirement
Covered contractors must ensure that all covered employees are fully vaccinated no later than December 8, 2021, unless the employee is legally entitled to a disability or religious accommodation. After the December 8 deadline, employees on a newly awarded or extended contract must be vaccinated by the first day of performance on the new or extended contract.

Contractors must review employees’ documentation to prove vaccination status. There is no testing alternative and the vaccination requirement applies even if employees are working remotely.

Masking & Physical Distancing
In addition to the vaccine mandate, covered contractors must ensure that all individuals, including employees and visitors, comply with published CDC guidance for masking and physical distancing while at a covered workplace:

Masks: In areas of high community transmission—as defined by the CDC’s Online Data Tracker—masks must be worn at all times regardless of vaccination status. In areas of low or moderate community transmission, vaccinated employees are not required to wear masks. Unvaccinated individuals must wear a mask indoors regardless of the level of community transmission and also in certain outdoor settings.

Distancing: When feasible, unvaccinated individuals must maintain at least six feet from others in the workplace. Fully vaccinated individuals do not need to physically distance regardless of the level of transmission.

Designation of COVID-19 Coordinator
Covered contractors must designate a person (or persons) to coordinate implementation of and compliance with the Task Force’s Guidance and the required safety protocols. The designated person may be the same individual(s) responsible for implementing any additional COVID-19 workplace safety protocols required by local, State or Federal law.

Covered Contracts
Biden’s Executive Order requires the Federal Acquisition Regulatory Council (FAR Council) to develop appropriate language to incorporate into federal contracts. This clause must then be incorporated into covered contracts as follows:

For contracts awarded prior to October 15, 2021, the clause must be incorporated into the contract at the point at which an option is exercised or an extension is made.
For contracts awarded between October 15, 2021, and November 14, 2021, the clause must be included in the solicitation, and agencies are encouraged to include the clause in contracts awarded during this period, but are only required to include the clause if the solicitation was issued on or after October 15, 2021.
For contracts awarded on or after November 14, 2021, the clause must be included.

For questions about whether your workplace is covered by these new requirements or how to comply, contact Amy Angel at 503-276-2195 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.

Nicole C. Elgin 9/22/21 Nicole C. Elgin 9/22/21

9/22/21: New Oregon Unemployment Rule to Take Effect Next Week

September 22, 2021

By Paula Barran

The Oregon Employment Department announced that a new temporary unemployment benefit availability rule will take effect next week. It is intended to clarify eligible requirements for workers who must work around child care responsibilities, and will likely result in fewer workers being disqualified because of the operation of the eligibility requirements.

Under the new rule, workers must be available for suitable work for at least 40 hours per week, or one shift per day if their work is shift-based.

For example, the Department says that if a worker’s employer has two shifts available, but the worker is available for only one shift because of child care restraints, that employee will be eligible for benefits under the new rule. Previously, the worker would have to be available for both shifts in order to qualify for benefits. The Department explains: “Now when we say one shift, we do NOT mean one day of work. We mean one shift per day.” The Department considered the change necessary because its application means a shift worker needed to be available for all shifts. Here are two scenarios from the Department:

“Scenario 1: Your employer has two shifts for your position. Because your partner can only watch the kids during the evening shift, you must be available for the other shift to be considered ‘available to work.’”
Previously, you had to be available for all shifts during a day to qualify for benefits.

“Scenario 2: Your employer has 3 shifts for your position. Now that your child is back in school, you must be able and available to work the morning or day shift.”

The temporary rule also requires that new applicants complete “orientation activities” where they meet with a representative from WorkSource to receive assistance with their job search.

The Department will conduct a listening session with business and labor groups to gather feedback before drafting the permanent availability rule change.

Stay tuned for updates to Oregon’s unemployment rule changes.

For questions about the Employment Department’s rule change or for other questions about employer responsibilities concerning unemployment benefits, contact Paula Barran at 503-228-0500, or at pbarran@barran.com.

Nicole C. Elgin 9/16/21 Nicole C. Elgin 9/16/21

9/16/21: Oregon OSHA Updates its COVID-19 Rule to Include Medical Relief Benefits for Healthcare Workers

September 16, 2021

By Amy Angel & Wilson Jarrell

Beginning today, September 16, 2021, Oregon OSHA’s updated COVID-19 rule goes into effect which adds a Medical Relief Benefit for eligible workers in healthcare settings. OR-OSHA made this change to align its COVID-19 rule with federal OSHA standards, which require the state’s rules to be “at least as effective as” the federal standard.

The Medical Relief Benefit provides some financial relief for eligible healthcare workers when they are unable to work due to the quarantine and isolation provisions of Oregon OSHA’s COVID-19 rule.

Who is Eligible?

Except as listed below, employees engaged in direct patient care or in direct support of such care are eligible for medical protection benefits. Those in direct support of care include employees engaged in patient intake or admission, patient food services, equipment and facility maintenance, housekeeping services, healthcare laundry service, medical waste handling services, and medical equipment cleaning or reprocessing services. They do not include employees in office or administrative functions that do not involve any contact with patients or patient care spaces, such as bookkeeping, payroll, or accounting services.

The benefits do not apply to the following:

Employers with ten or fewer employees;
Employees whose COVID-19 illness or quarantine cannot reasonably have resulted from a workplace exposure;
Individuals who are not fully vaccinated or have a medical or religious exception;
Employees who provide first aid if they are not a healthcare provider;
Pharmacists who dispense prescriptions in retail settings;
Non-hospital ambulatory care settings where all non-employees are screened prior to entry and individuals with suspected or confirmed COVID-19 are not permitted to enter;
Well-defined ambulatory care settings within hospitals where all employees are fully vaccinated, all non-employees are screened prior to entry, and people with suspected or confirmed COVID-19 are not permitted to enter those settings;
Home healthcare settings where all employees are fully vaccinated and all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not present;
Healthcare support services not performed in a healthcare setting (off-site laundry, off-site food preparation, etc.); and
Telehealth services performed outside of a setting where direct patient care occurs.

What are the Benefits?

The new rules provide a paid benefit in situations where an employee is exposed to COVID-19. Additionally, the employer must continue to provide the benefits (including healthcare benefits) to which the employee would normally be entitled when working.

The amount of the paid benefit depends on the size of the employer:

If the employer has 500 or more employees, then the employer must pay the same regular (non-overtime) pay the employee would have received had the employee not been absent from work, up to $1,400 a week, until the employee is able to return to work; or
If the employer has fewer than 500 employees, then the employer must pay the same regular pay the employee would have received, up to $1,400 a week, for the first two weeks, after which the employer may reduce the benefit to two-thirds of the employee’s regular pay, up to $200 per day, until the employee is able to return to work.

Employers may reduce the amount of the paid benefit by the amount the employee receives from other sources, including workers’ compensation, paid sick leave, administrative leave, or other employer-provided leave that does not carry a cash value. However, the employer cannot take these other sources into account until the employee has actually received them.

It is important for employers who have employees engaged in direct patient care or in direct support of such care to be aware of this benefit, and evaluate whether any employee who has a COVID-19 exposure could have reasonably been exposed in the workplace.
For any questions about OSHA’s COVID-19 rule, contact Amy Angel or Wilson Jarrell at 503-228-0500, or at aangel@barran.com or wjarrell@barran.com.

Click to access a PDF of this Electronic Alert.

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.

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.

Click to access a PDF of this Electronic Alert.

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.

Click to access a PDF of this Electronic Alert.