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.

Jessica L. Peterson 3/9/22 Jessica L. Peterson 3/9/22

3/9/22: USWNT Settlement: A Reminder for Oregon Employers to Keep Their Head in the Game

March 9, 2022

By Missy Oakley

Last month, the U.S. Women’s National Team (USWNT) scored a major victory when it settled its lawsuit against the U.S. Soccer Federation for $24 million. The lawsuit, which drew national attention, alleged in part that the players on the Women’s National Team were paid less than their male counterparts on the Men’s National Team in violation of the Equal Pay Act.

The Equal Pay Act is a federal law that protects against wage discrimination on the basis of sex and requires equal pay for equal work. In 2017, the Oregon legislature passed a similar law, the Oregon Equal Pay Act of 2017. The law prohibits employers from paying employees in comparable jobs different compensation based on a protected class. Unlike the federal law, Oregon’s Equal Pay Act extends pay equity protections to all protected classes, not just sex.

The federal Equal Pay Act allows employers to pay employees differently where the difference is based on a “factor other than sex.” Oregon’s law is more strict, in that it allows employers to pay employees who perform work of comparable character differently only if all of the difference is based on one or more of the law’s bona fide factors.

Oregon’s law also contains an equal pay analysis safe harbor provision for employers. An equal pay analysis is simply an evaluation process employers undertake to assess and correct wage disparities among employees who perform work of comparable character. These analyses can be used by employers as an affirmative defense against an award of compensatory and punitive damages if the employer can show that within three years of an employee’s pay equity claim, they conducted a good-faith equal pay analysis and made reasonable and substantial progress toward eliminating wage differentials.

The USWNT’s settlement comes roughly three years after Oregon’s Equal Pay Act went into effect on January 1, 2019. Thus, it serves as a convenient reminder for employers that if it has been more than three years since their last equal pay analysis, it is time for another.

Click to access a PDF of this Electronic Alert.

For questions on pay equity or for any other employment-related matters, contact Missy Oakley at 503-276-2122 or moakley@barran.com.

Jessica L. Peterson 3/4/22 Jessica L. Peterson 3/4/22

3/4/22: Oregon Legislature Approves End to Agricultural Worker Overtime Exemption

March 4/ 2022

By Wilson Jarrell

Yesterday, the Oregon legislature passed a contentious bill to end the long-standing overtime exemption for agricultural workers.

House Bill 4002 operates to phase out the overtime exemption over the next five years, while temporarily providing tax credits to farmers to compensate for the inevitably higher labor costs. The bill defines agricultural worker broadly, applying the term to any individual who performs services in the following areas:

Farming in all its branches, including the cultivation and tillage of the soil;
Dairying;
The production, cultivation, growing, and harvesting of any agricultural or horticultural commodity;
The raising of livestock, bees, fur-bearing animals, and poultry; and
Any other practice performed by a farmer or on a farm as an incident to or in conjunction with farming operations, including preparation for market, delivery to storage or to market, or delivery to carriers for transportation to market.

The bill excludes individuals who are otherwise exempt from minimum wage requirements under ORS 653.020(1), as well as employees exempt from minimum wage and overtime requirements who qualify as administrative, executive, or professional salaried employees.

The phase-in schedule gradually reduces the number of hours agricultural workers in Oregon need to work in a workweek to receive overtime pay:

55 hours beginning January 1, 2023;
48 hours beginning January 1, 2025; and
40 hours beginning January 1, 2027.

Similarly, a tax credit will be available for employers of agricultural workers in three separate tiers, based on whether they employ more than 50 workers, between 25 and 50 workers, or less than 25 workers. The tax credit will be equal to a percentage of the additional wages paid as required overtime, and that percentage will decline over time as follows:

A special tax credit applies to dairies, which will receive a 100% tax credit with no time limit if they have fewer than 25 workers, or fall into the middle tier above (with its associated time limit) if they have more.

The bill is currently awaiting the Governor’s signature.

Click to access a PDF of this Electronic Alert.

For questions about the end to Oregon’s agricultural overtime exemption and what this bill means for your workplace’s unique circumstances, contact Wilson Jarrell at 503-276-2181 or wjarrell@barran.com.

Jessica L. Peterson 3/4/22 Jessica L. Peterson 3/4/22

3/4/22: New #MeToo Law Prohibits Enforcement of Arbitration Provisions for Workplace Sexual Assault Claims

March 4, 2022

By Wilson Jarrell & Nicole Elgin

Yesterday, President Biden signed into law H.R. 4445, a bill that was recently passed by Congress in a bi-partisan effort and hailed as a major victory for the #MeToo movement.

The new law largely prohibits the enforcement of mandatory pre-dispute arbitration provisions to the extent they apply to “a case” that relates to workplace sexual harassment or assault. The law amends the Federal Arbitration Act to ban agreements that were signed prior to an incident of workplace sexual harassment or assault. The law also prohibits any pre-dispute waivers of the right to participate in a joint, class, or collective action alleging such conduct. However, it is important to note that such an agreement is still allowed and enforceable if a worker chose to sign the agreement after any sexual harassment or assault dispute arises.

Importantly, the new law’s use of the term “case” rather than “claim” when referring to allegations of workplace sexual harassment or assault introduces some uncertainty as to how courts will handle claims that include other claims in addition to those involving workplace sexual harassment or assault. Courts may read the language broadly and require that an entire case stay in court, or narrowly to force all non-harassment or assault claims into arbitration. Courts may also decide the issue on a case-by-case basis, based on how connected all the claims alleged are. This will inevitably result in significant litigation around the issue.

President Biden has supported this legislation throughout its progression through Congress, and the White House has previously said the law “advances efforts to prevent and address sexual harassment and sexual assault, strengthen rights, protect victims, and promote access to justice.” The law goes into effect immediately.

Practically, employers should be aware that pre-dispute mandatory arbitration provisions in agreements will not be enforceable with respect to any dispute or claim of workplace sexual harassment or assault that arises on or after today’s date. Additionally, employers should review any mandatory arbitration provisions in their agreements to ensure that they comply with the new law.

Click to access a PDF of this Electronic Alert.

For questions about H.R. 4445 or for any other employment-related questions, contact Wilson Jarrell or Nicole Elgin at 503-228-0500, or at wjarrell@barran.com or nelgin@barran.com.

Jessica L. Peterson 3/1/22 Jessica L. Peterson 3/1/22

3/1/22: SB 1514 Extends Pay Equity Exceptions

March 1, 2022

By Wilson Jarrell & Amy Angel

Last year, the Oregon legislature passed HB 2818, which made several notable amendments to Oregon’s Equal Pay Act, including a provision which temporarily exempted hiring bonuses offered to prospective employees and retention bonuses offered to existing employees from the definition of “compensation.” This was a crucial change, giving Oregon employers more leeway to offer bonuses to attract and retain employees in a particularly challenging labor market without violating Oregon’s Equal Pay Act. However, this amendment was temporary and was effective only until today, March 1, 2022.

Fortunately for employers, the Oregon legislature took up this issue again in the short session and passed SB 1514. SB 1514 extended the exemption of hiring and retention bonuses from the definition of “compensation” for Equal Pay Act purposes. The exemption is again temporary, this time set to expire on the 180th day after the expiration or termination of the current state of emergency. The Governor has indicated she will lift the state of emergency effective April 1, 2022, in which case the exemption will remain in effect until September 28, 2022. The bill currently awaits signature by the Governor.

Click to access a PDF of this Electronic Alert.

For questions about SB 1514 or for any other questions related to pay equity, contact Wilson Jarrell or Amy Angel at 503-228-0500, or at wjarrell@barran.com or aangel@barran.com.

Jessica L. Peterson 2/28/22 Jessica L. Peterson 2/28/22

2/28/22: Some COVID-19 Workplace Mandates & Restrictions Will Lift Soon: What Employers Should Know

February 28, 2022

Governor Kate Brown announced this morning that masks will no longer be required in most indoor settings, including schools, effective March 12, 2022. With the exception of healthcare settings, the Oregon Occupational Safety and Health Administration (OSHA) will no longer mandate that employers require their employees or others in the workplace to wear masks indoors. Multnomah County will still require masks in certain county buildings, such as healthcare and corrections settings.

Last week, the Centers for Disease Control and Prevention (CDC) announced that it is changing its guidance for when individuals should wear masks or take other COVID-19 precautions. The CDC analyzes the number of hospital beds being used, hospital admissions, and the number of COVID-19 cases in a given area and it assigns a low, medium, or high “community level” rating. In low community levels, the CDC recommends individuals wear masks based on their personal preference. In medium community levels, the CDC recommends individuals at high risk for severe illness (such as those 65 years or older or those with compromised immune systems) wear masks. In high community levels, the CDC recommends that everyone wear masks in indoor settings.

For all three levels, the CDC recommends that people continue to get vaccinated and boosted, individuals with symptoms, a positive test, or exposure to someone with COVID-19 wear masks, and individuals get tested for COVID-19 if they experience symptoms. As of February 28, 2022, the CDC has assigned a “medium” community level to the three Oregon counties in the Portland-metro area.

Once Oregon’s mask mandate ends, it’s entirely up to employers if they want to require their employees or others in the workplace to wear masks. Employers also have discretion to mandate that their employees be vaccinated against COVID-19, provided they allow for disability and religious accommodations.

While government mandates are ending, public health officials warn that COVID-19 is still a threat. Accordingly, employers should monitor COVID-19 in the workplace to protect the health and safety of their employees, and to minimize business disruption when outbreaks occur.

Meanwhile, Oregon OSHA has announced that it is re-visiting other COVID-19 workplace rules concerning infection control planning, exposure risk assessments, sanitation, and notification requirements. It is unclear when Oregon OSHA will rescind these requirements.

Click to access a PDF of this Electronic Alert.

For any questions about mask mandates or navigating COVID-19 in the workplace, contact the Barran Liebman team at 503-228-0500.

Jessica L. Peterson 2/22/22 Jessica L. Peterson 2/22/22

2/22/22: Be Careful When Disciplining Employees for Complaining About Work on Social Media!

February 22, 2022

By Natalie Pattison

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.

Jessica L. Peterson 2/1/22 Jessica L. Peterson 2/1/22

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.

Jessica L. Peterson 1/25/22 Jessica L. Peterson 1/25/22

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.

Annika Wilcox 1/19/22 Annika Wilcox 1/19/22

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.

Jessica L. Peterson 1/14/22 Jessica L. Peterson 1/14/22

1/14/22: U.S. Supreme Court Stays OSHA ETS—Upholds CMS Vaccine Mandate

January 14, 2022

By Natalie Pattison

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.

Annika Wilcox 12/21/21 Annika Wilcox 12/21/21

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.

Annika Wilcox 12/17/21 Annika Wilcox 12/17/21

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.

Annika Wilcox 12/13/21 Annika Wilcox 12/13/21

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.

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.

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.