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.
2/22/22: Be Careful When Disciplining Employees for Complaining About Work on Social Media!
February 22, 2022
Private sector employers take note: an employee’s social media post complaining about work may be entitled to protections under the National Labor Relations Act (“NLRA”). This is true regardless of whether the private sector workplace is unionized or not, because under the NLRA, private sector employers are restricted from disciplining an employee if the post involves “protected concerted activity” absent a few limited exceptions.
The NLRA protects employees’ rights to participate in concerted activities for the purpose of collective bargaining or other mutual aid or protection. Employers may not interfere with this right by, for example, disciplining an employee for conduct that constitutes protected concerted activity.
Employees commonly engage in protected concerted activity when they discuss wages, benefits, or other working conditions with one or more coworkers. However, even a single employee may engage in protected concerted activity if the employee is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action. Protection also extends to communications between employees that do not directly call for group action if they involve “inherently concerted” discussions about vital categories of workplace life such as wages, scheduling, or job security.
The National Labor Relations Board (“NLRB”) Office of the General Counsel recently released an advice memo (Johns Creek Surgery 10-CA-270348) about an employee who was terminated after complaining about her employer in a Facebook post. (Advice Memos are useful indicia of how the General Counsel’s office may choose to litigate unfair labor practices and other proceedings against employers before the Board.) The memo advised that the employer likely violated the NLRA by terminating the employee. A single Facebook post by one employee blaming employee attrition on bad management practices was protected concerted activity because the Facebook post elicited support from coworkers over scheduling, management, and employee attrition—issues that had been topics of concern for employees. The Facebook post was also protected to the extent it discussed workplace topics, such as job security, that are “inherently concerted.”
Although not all work-related comments made online are protected concerted activity, the memo clearly indicates that posts eliciting support from coworkers about a working condition, as well as communications that involve “inherently concerted” discussions, likely rise to the level of protected concerted activity.
It is important for all private sector employers to know what constitutes protected concerted activity because the NLRA’s protections apply even when no union is involved and no collective bargaining is contemplated by the employees. Before disciplining an employee for work-related social media posts, employers should evaluate whether the employee’s post may be protected concerted activity and consult their labor counsel as needed.
For questions about protected concerted activity, the National Labor Relations Act, or unions, contact Natalie Pattison at 503-276-2014 or npattison@barran.com.
Click to access a PDF of this Electronic Alert.
Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. Alerts are not intended as legal advice, but as employment law, labor law, and employee benefits announcements. If this has been forwarded to you, and you would like to begin receiving Electronic Alerts directly, please email or call Traci Ray at 503-276-2115. Copyright ©2022 by Barran Liebman LLP.
2/1/22: Current Status of Federal & State Vaccine Rules for Healthcare Employers
February 1, 2022
By Natalie Pattison & Amy Angel
Healthcare employers in Oregon take note: the Oregon Health Authority (“OHA”) filed a permanent rule keeping in place vaccination requirements in healthcare settings, and enforcement begins for the Center for Medicare & Medicaid Services (“CMS”) vaccine rule recently upheld by the Supreme Court.
OHA Vaccine Requirement for Healthcare Workers
On January 31, 2022, OHA filed a permanent rule keeping in place requirements regarding vaccination and masking for healthcare providers and staff in healthcare settings.
The permanent rule largely tracks the temporary rule which recently expired. Like the temporary rule, the permanent rule provides that healthcare providers and healthcare staff may not work, learn, study, assist, observe, or volunteer in a healthcare setting unless they are fully vaccinated or have provided documentation of a medical or religious exception.
The CMS Rule
In the wake of the Supreme Court’s decision upholding the CMS vaccination rule discussed here, covered Oregon healthcare employers should review the rule carefully, as it may apply to workers not covered by OHA’s rule.
The CMS Rule requires that staff working at almost all CMS-certified facilities that participate in the Medicare and Medicaid programs be vaccinated unless exempt for qualifying medical or religious reasons. The rule applies to all current staff as well as any new staff who provide care, treatment, or other services for the facility and/or its patients, including facility employees, licensed practitioners, students, trainees, and volunteers. It also includes individuals who provide care, treatment, or other services for the facility and/or its patients under contract or other arrangements.
Covered employers are required to establish a process or policy to fulfill the staff vaccination requirement over two phases:
Phase 1: Covered staff must have received, at a minimum, the first dose of a primary series or a single dose COVID-19 vaccine prior to staff providing any care, treatment, or other services for the facility and/or its patients. For Oregon, the deadline for Phase 1 was January 27, 2022.
Phase 2: Covered staff must complete the primary vaccination series (except for those who have been granted exemptions from the COVID-19 vaccine or those staff for whom COVID-19 vaccination must be temporarily delayed, as recommended by the CDC). For Oregon, the deadline for Phase 2 is February 28, 2022.
Note that the deadlines for compliance vary by state, so employers should be aware of the deadlines applicable to the states in which their employees are located.
Employers should reach out to counsel with questions regarding coverage or compliance with these rules.
For questions about vaccine mandates or for any other matters related to COVID-19 in the workplace, contact Natalie Pattison or Amy Angel at 503-228-0500, or at npattison@barran.com or aangel@barran.com.
Click to access a PDF of this Electronic Alert.
Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. Alerts are not intended as legal advice, but as employment law, labor law, and employee benefits announcements. If this has been forwarded to you, and you would like to begin receiving Electronic Alerts directly, please email or call Traci Ray at 503-276-2115. Copyright ©2022 by Barran Liebman LLP.
1/25/22: Employers Must Notify Employees About the Earned Income Tax Credit
January 25, 2022
By Missy Oakley
The Earned Income Tax Credit (EITC) is a federal and state tax credit for certain employees making up to $57,414 in 2021. As employers prepare to send out Form W-2s, the Oregon Bureau of Labor and Industries (BOLI) recently issued a notice reminding Oregon employers they are required to notify their employees that they may be eligible for this tax credit.
At a minimum, employers should provide employees written notice about the EITC along with the employee’s Form W-2 each year. This notice can be sent by regular or electronic mail, hand-delivery, or in any electronic manner used to provide the employee’s federal Form W-2, and must include information on the EITC website from the Oregon Department of Revenue and the IRS.
To help employers meet these notice requirements, BOLI provides sample text that employers can use. The sample text as well as more information on the EITC can be found on BOLI’s EITC page.
For questions on employee payroll and other notice requirements, contact Missy Oakley at moakley@barran.com or 503-276-2122.
Click to access a PDF of this Electronic Alert.
Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. Alerts are not intended as legal advice, but as employment law, labor law, and employee benefits announcements. If this has been forwarded to you, and you would like to begin receiving Electronic Alerts directly, please email or call Traci Ray at 503-276-2115. Copyright ©2022 by Barran Liebman LLP.
1/19/22: U.S. Labor Agencies Form Pact to Collaborate on Investigations into Worker Misclassification Claims
January 19, 2022
By Nicole Elgin
On January 6, 2022, the United States Department of Labor (DOL) and the National Labor Relations Board (NLRB) announced the agencies’ plan to collaborate on investigations, specifically targeting allegations of independent contractor misclassification and retaliation against workers. These are increasing areas of contention in the growing gig economy.
The agency collaboration effort is memorialized in a Memorandum of Understanding (MOU) and will make it easier for these agencies to investigate and cite employers for violations of laws that both agencies are tasked with enforcing. The announcement noted that “all too often, workers face adverse action for speaking out about their compensation, whether it is discussing their wages, fighting back against wage theft, or advocating for higher wages.”
As a reminder for employers, under the National Labor Relations Act (NLRA), whether a worker is an employee versus an independent contractor is determined by the following factors, with no single factor being determinative:
The extent of control the employer has over the work;
Whether the worker is engaged in a distinct occupation or business;
Whether the work is usually done under the direction of the employer or without supervision;
The skill required in the particular occupation;
Whether the employer or the worker supplies the instrumentalities, tools, and the place of work;
The length of time for which the worker is employed;
Whether the worker is compensated by time worked or by the job performed;
Whether the work is a part of the regular business of the employer;
Whether the parties believe they are creating an employer-employee relationship;
Whether the work is part of the regular business of the employer; and
Whether the principal is or is not in business.
In late 2021, the NLRB invited public comment on whether to revisit this standard. In making independent contractor classification determinations, it is also important to note that not all laws utilize the same criteria. For example, the Oregon Employment Department must use the definition of “independent contractor” from ORS 670.600 which contains a list of slightly different criteria.
In light of these investigation and enforcement efforts, employers should take this opportunity to review whether any workers may be improperly classified as independent contractors.
For questions regarding labor issues under the National Labor Relations Act or independent contractor classification issues, contact Nicole Elgin at 503-276-2109 or nelgin@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 ©2022 by Barran Liebman LLP.
1/14/22: U.S. Supreme Court Stays OSHA ETS—Upholds CMS Vaccine Mandate
January 14, 2022
After much anticipation, the U.S. Supreme Court has released two key decisions on vaccinations in the workplace: The Court upheld the Center for Medicare & Medicaid Services (CMS) vaccine mandate, and it blocked enforcement of the Occupational Safety and Health Administration’s (OSHA’s) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS).
CMS Rule
The Court upheld the CMS vaccine mandate, which requires vaccines and testing for select healthcare workers, including workers in nursing homes, hospitals, and other facilities that receive Medicare and Medicaid payments from the federal government. Covered facilities should ensure compliance with the rule as soon as possible.
OSHA’s ETS
In a separate decision, the Court voted 6-3 to stay enforcement of OSHA’s ETS requiring private employers with 100 or more employees to require vaccination or weekly testing pending disposition of the matter in the Sixth Circuit Court of Appeals. In other words, the ETS will not take effect until further notice.
The Court’s decision on OSHA’s ETS centered on the question of whether OSHA—a federal agency whose governing statute does not explicitly authorize vaccine requirements—had the authority to enact the mandate in the first place. Specifically, the majority opinion, writing per curiam, states:
The question before us is not how to respond to the pandemic, but who holds power to do so. The answer is clear: Under the law as it stands today, that power rests with the States and Congress, not OSHA. In saying this much, we do not impugn the intentions behind the agency’s mandate. Instead, we only discharge our duty to enforce the law’s demands when it comes to the question who may govern the lives of 84 million Americans.
The majority further states, “Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization[.]” Essentially, the majority views the COVID-19 pandemic not as an “occupational hazard,” but rather a “kind of universal risk [that] is no different from the day-to-day dangers that all face[.]”
In dissent, Supreme Court Justices Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan argued that OSHA did precisely what Congress mandated it to do: “It took action to address COVID-19’s continuing threat” in the workplace, adding that the ETS falls within the scope of OSHA’s mission, which is “to ‘protect employees’ from ‘grave danger’ that comes from ‘new hazards’ or exposure to harmful agents[.]”
Oregon OSHA
In light of the Court’s decision on federal OSHA’s ETS, Oregon OSHA posted a notice on their website announcing they will not be moving forward with adopting the same or similar standard in Oregon.
What Now?
While private employers that were covered under OSHA’s ETS need not worry about complying with the rule for now, employers should stay up to date on any changes as the matter continues to evolve. Further, employers should pay careful attention to state and local mandates, as the Court’s decision does not dispute the states’ authority to issue their own rules pertaining to vaccine mandates and testing requirements.
Note, the Court’s decision does not restrict an employer’s ability to implement their own vaccine or testing mandates, so long as the policy complies with applicable federal and state law, including Title VII and the ADA.
In light of these updates, here are a few steps employers can take right now:
Familiarize yourself with any vaccine mandates that are still in effect and how they may apply to your employees.
Update your company’s current policies around vaccination and testing, if needed, and communicate any changes to employees.
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 Natalie Pattison at 503-228-0500 or npattison@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 ©2022 by Barran Liebman LLP.
12/21/21: Stay on OSHA’s Vaccine or Test Mandate Overturned
December 21, 2021
By Chris Morgan
In a 2 – 1 opinion, a three-judge panel from the Sixth Circuit Court of Appeals has overturned the nationwide Stay on the Occupational Safety and Health Administration (“OSHA”) Emergency Temporary Standard (“ETS”).
Here’s what you need to know:
The ETS standard, which had previously been put on hold by the Fifth Circuit Court of Appeals, requires private employers with 100 or more employees to either be vaccinated or be subject to weekly testing.
Dissolution of the Stay means that employers again need to plan immediately for compliance with the full provisions of the ETS.
OSHA has said that they will not issue citations to employers for non-compliance with the ETS testing requirements until February 9, 2022, so long as the employer is exercising “reasonable, good faith efforts” to come into compliance.
OSHA has said that they will not issue citations for violations of the other provisions of the ETS, including requirements for indoor masking and collecting vaccination records, until January 10, 2022. A full list of ETS requirements is available here.
Shortly after the Stay was lifted, the ruling was immediately appealed to the United States Supreme Court, who will ultimately determine whether the ETS will be allowed to move forward while the underlying litigation is pending. U.S. Supreme Court Justice Brett Kavanaugh, who is assigned to oversee the Sixth Circuit, has ordered the U.S. Government to respond to the appeals by December 30, 2021, signaling that the entirety of the Court may hear and decide the matter early in the New Year.
For now, employers should plan for compliance while keeping closely attuned to changing information from the federal courts.
For questions related to vaccine mandates or for any other questions about navigating COVID-19 in the workplace, contact Chris Morgan at 503-276-2144 or cmorgan@barran.com.
Click to access a PDF of this Electronic Alert.
Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. Alerts are not intended as legal advice, but as employment law, labor law, and employee benefits announcements. If this has been forwarded to you, and you would like to begin receiving Electronic Alerts directly, please email or call Traci Ray at 503-276-2115. Copyright ©2021 by Barran Liebman LLP.
12/17/21: Washington Delays Premium Assessment for WA Cares Fund
December 17, 2021
By Iris Tilley & Wilson Jarrell
This morning, Washington Governor Jay Inslee and Washington Democratic Legislative leaders issued a joint statement announcing an agreement to delay the new WA Cares payroll tax on employees. The statement described that they will conduct further work to address concerns over the new long-term care program.
The WA Cares program was approved in 2019, with the intention that it would act as a safety net to help people pay for care for themselves in old age and sickness, funded through a 0.58% payroll deduction on workers. That payroll deduction was originally set to begin on January 1, 2022.
Gov. Inslee stated that he was ordering the Washington Employment Security Department not to collect premiums from employers for this program before they come due in April, and that the state would not collect those funds until the Washington Legislature sorted through issues with the program, including growing concerns that under the current structure, workers would pay into the program but never be eligible to receive benefits.
The Washington Legislature is expected to put forward proposals to address concerns with the program in January, when the Legislature will gather for a short, 60-day session. Washington Democratic Legislative leaders stated that the delay will allow the Long Term Care Commission time to “study and make recommendations about residents who move out of Washington to retire and assure that those who have opted out of the program maintain their private insurance policies.”
In the meantime, employers can be assured that they will not incur any penalties or interest from not withholding WA Cares taxes from wages. Although employers are not restricted from collecting the premiums, and technically remain able to do so, the joint statement “strongly encourages” them to pause in doing so until legislation can be passed next year.
For questions about the WA Cares payroll tax, contact Wilson Jarrell or Iris Tilley at 503-276-2181 or 503-276-2155, or at wjarrell@barran.com or itilley@barran.com.
Click to access a PDF of this Electronic Alert.
Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. Alerts are not intended as legal advice, but as employment law, labor law, and employee benefits announcements. If this has been forwarded to you, and you would like to begin receiving Electronic Alerts directly, please email or call Traci Ray at 503-276-2115. Copyright ©2021 by Barran Liebman LLP.
12/13/21: New Year Resolutions: 401(K) & Health Plan Considerations for End-of-Year
December 13, 2021
By Jeffery Robertson & Iris Tilley
As we move towards the end of the calendar year, now is the time to consider the impact of the New Year on your 401(k) and Group Health Plans. We have included five important items to consider as we usher in 2022.
Required Minimum Distributions Due December 31
With the delays of the pandemic and changes in the Required Minimum Distribution rules, it is easy to forget that 2021 RMDs are due by December 31st. The RMD requirement is further complicated by the change in minimum age last year – 70 ½ to 72 and next year’s change in life expectancy tables.
Cyber Security Policies 401(k) Plans
The U.S. Department of Labor continues to provide evidence that a documented Cyber Security Policy is a critical step for Plan Fiduciaries. Every 401(k) Plan Committee should consider a simple and documented Cyber Security Policy related to the oversight of 401(k) Plan Vendors. An important component of the Cyber Security Policy is to understand the contractual limitations of responsibility in vendor agreements. All vendor agreements should be reviewed regarding the rights and responsibilities in the event of a Cyber Security attack or breach.
HIPAA COVID-19 Vaccine Status
As vaccine requirements have become more and more common, an equally common question is whether an employee’s COVID-19 vaccine status is HIPAA-protected. HIPAA does not prohibit an employer or business from requesting information from an employee or individual as to their vaccine status. HIPAA may prohibit a health care provider from sending patient vaccine information without individual authorization. Please note that additional laws are important when evaluating employee vaccine status, and whether or not HIPAA applies, an employee’s medical records should be treated as confidential information.
Local Taxes
Local payroll taxes are becoming a greater avenue of revenue for local authorities and a large compliance concern for employers. In the Portland metro area, an employer may be forced to consider the Washington Long-Term Care Tax and the Multnomah County Preschool Tax for its employees. When employees work from home, the analysis is even more complicated.
COVID-19 Testing & Health Plan Expenses
Employers with group health plans, especially those with self-funded plans, will be faced with 2022 compliance concerns regarding COVID-19-related expenses. These will include COVID-19 testing reimbursement (including for the cost of at home tests), cost-sharing requirements, plan provisions encouraging vaccination, and many others. We recommend engaging knowledgeable partners to review your COVID-19-related health plan policies.
For 401(k), health plan, or any other benefits questions, contact Jeff Robertson or Iris Tilley at 503-276-2140 or 503-276-2155, or at jrobertson@barran.com or itilley@barran.com.
Click to access a PDF of this Electronic Alert.
Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. Alerts are not intended as legal advice, but as employment law, labor law, and employee benefits announcements. If this has been forwarded to you, and you would like to begin receiving Electronic Alerts directly, please email or call Traci Ray at 503-276-2115. Copyright ©2021 by Barran Liebman LLP.
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.
11/18/21: Now is the Time to Update Your Policies: Best Practices for Responding to Complaints & Conducting Remote Workplace Investigations
November 18, 2021
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.