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.
10/17/22: Washington Cares Rolls Out New Exemptions & Clarifies Employer Responsibilities
October 17, 2022
Now that the Washington Employment Security Department (“ESD”) has issued final rules for Washington Long-Term Services and Supports Trust Program (“WA Cares”), employers should prepare themselves to administer WA Cares and collect premium payments for this new long-term care insurance benefit from the state. Under WA Cares, participating employees may be eligible for up to $36,500 in benefits (adjusted annually for inflation) and the premium contribution is 0.58% per paycheck.
Employees must decide for themselves whether they are eligible for an exemption from premium payments, and these new rules clarify that employees must apply for either a permanent or conditional exemption. Employees who already have qualifying long-term care plans before November 1, 2021 must apply for an exemption by December 31, 2022, but employees must wait until January 1, 2023 to apply for the other permanent or conditional exemption. Employees should take these decisions seriously. Any decision about whether to apply for an exemption may have a lifetime impact on eligibility, as the rules only provide for specific circumstances in which exemptions may be claimed or withdrawn.
The new rules clarify that permanent exemptions may be provided to employees who are veterans of the United States military and have a service-connected disability rating by the United States Department of Veterans Affairs of 70% or greater.
Among the key changes to the new rules is that Washington now permits for certain conditional exemptions that employees may apply to after January 1, 2023. Those include:
A spouse or domestic partner of an active duty service member in the United States armed forces;
An employee who holds a nonimmigrant visa for temporary workers; or
An employee with a permanent primary residence outside Washington.
Employers should also begin communicating with employees about eligibility for WA Cares. Since the ESD will not likely inform when employees apply for exemptions or no longer qualify for exemptions, employers should be proactive about communicating with employees about premium payments. Employers should also make clear that employees must inform them and the ESD as required by the rules, when they no longer qualify for an exemption.
Employers should also note that the rules grant the ESD wide-reaching rights to audit employers for compliance, including the ability to use “other data” to determine premiums if the employer does not provide payroll or wage data.
As a reminder, under the new revisions to the program passed earlier this year, contributions to the program will begin July 1, 2023 for employees who have not notified employers that they are exempt, and benefits will become available to employees on July 1, 2026. Self-employed individuals may elect coverage on different timelines.
Click to access a PDF of this Electronic Alert.
For any questions regarding WA Cares, contact Wilson Jarrell at 503-276-2181 or wjarrell@barran.com.
10/13/22: Oregon & Washington Release Joint Letter Regarding Paid Leave Contributions
October 13, 2022
By Amy Angel & Iris Tilley
As Oregon employers with remote workers in Washington have become all too aware in recent years, the question of when to pay into the Washington paid family leave system has not always been clear. Are contributions required when an employee works and lives in Washington but reports to an Oregon employer? What about when the employee spends two days of their workweek at their Oregon employer’s headquarters?
The State of Washington’s answers to these questions have shifted with time, creating a murky compliance roadmap for employers trying to manage an increasingly hybrid workforce. In addition, as contributions to Oregon’s paid leave program loom closer beginning January 1, 2023, new questions have surfaced about an employer’s potential obligation to pay into both programs for the same employee.
Thankfully, Paid Leave Oregon and the Washington Employment Security Department have come to the rescue with a joint letter providing guidance regarding how to determine where to report wages and pay contributions.
The joint letter helpfully provides both general guidance and specific examples for employer reference and (…drumroll please…) does not require employers to pay into both state systems at the same time for the same employee, even if the employee splits their work time between Oregon and Washington.
Employers with employees working in both Oregon and Washington are encouraged to review the joint letter and contact our office with questions. In the meantime, we have distilled some of the key concepts in the following questions and answers:
What factors should employers consider in determining whether to pay paid leave contributions to Oregon or Washington for a hybrid employee?
Where is the work performed?
From which state is the base of operations?
Where does direction and control come from?
Where does the employee reside?
How much time does an employee working for an Oregon employer but living and working remotely from Washington need to spend in Oregon to be an Oregon employee for paid leave purposes?
There is no magic number here, but the employee’s work in Oregon must be regularly scheduled. If the work is sporadic and not based on a regular schedule, and if the employee otherwise works remotely from Washington, contributions will be due to Washington State.
For questions about Paid Leave Oregon-related policy updates, decision-making, or advice, contact Iris Tilley at (503) 276-2155 or itilley@barran.com, Amy Angel at (503) 276-2195 or aangel@barran.com.
10/11/22: The Independent Contractor Rule is Back to Haunt Us
October 11, 2022
On October 11, 2022, the United States Department of Labor (“DOL”) released a proposed regulation outlining how the Biden Administration plans to address workers classified as independent contractors under the Fair Labor Standards Act (“FLSA”). The public will have until 11:59 ET on November 27, 2022, to provide comments.
Recall that in January of 2021, the Trump Administration issued an independent contractor rule that sought to clarify the distinction between employees and independent contractors under the FLSA. Many private employers lauded the effort as the rule remedied inconsistent treatment by the courts and made it easier in most cases to classify workers as independent contractors.
After President Joe Biden took office in January of 2021, the DOL issued a rule postponing the effective date of the Trump-era rule, and later a final rule to withdraw the regulation completely. In March of 2022, a judge in the U.S. District Court for the Eastern District of Texas ruled that the DOL violated the Administrative Procedure Act in withdrawing the Trump-era rule, resulting in the rule going back into effect. The Biden Administration has initiated the current rulemaking to address this court decision.
The proposed regulation uses a multi-factored economic realities test to analyze the “totality-of-the-circumstances” and to ultimately determine whether a worker is economically dependent on the employer for work or in business for themselves. These factors include the opportunity for profit or loss, investment, permanency, the degree of control by the employer over the worker, whether the work is an integral part of the employer’s business, and skill and initiative. Unlike the Trump-era rule, which gave greater weight to two factors in the economic realities test, each factor is not assigned a predetermined weight and each factor is given full consideration.
Workers classified as employees are owed minimum wages, overtime, and other benefits and protections under the FLSA, whereas independent contractors are not. Workers misclassified as independent contractors may expose organizations to a lawsuit under the FLSA that seeks back pay, liquidated damages, and attorneys’ fees. Be sure to follow these new developments closely if you use independent contractors, as the proposed DOL rule is sure to significantly impact worker classifications.
Click to access a PDF of this Electronic Alert.
For questions about employee classification or for any other employment-related questions, contact Andrew Schpak at 503-276-2156 or aschpak@barran.com.
10/7/22: Oregon Employment Department Finalizes Paid Leave Oregon Rules Regarding Contributions
October 7, 2022
By Amy Angel
Yesterday, the Oregon Employment Department (“OED”) announced the adoption of nine new permanent rules that relate to contribution requirements under Paid Leave Oregon. As a reminder, Paid Leave Oregon is a family, medical, and sick leave insurance program that was created to provide eligible employees compensated time off from work for qualifying reasons. Contribution requirements under Paid Leave Oregon begin January 1, 2023.
Here are some key highlights from the new final rules:
Deductions of Employee Contributions: Starting January 1, 2023, employers are responsible for deducting from an employee’s subject wages 60% of the total contribution rate for the PFMLI Fund. Employers who deduct too much may be subject to penalties. Employers who deduct too little are considered to have elected to pay that portion of the employee’s contribution and are liable to pay that portion of the employee share unless the employer corrects the mistake within the quarter.
Employers May Elect to Pay Employees’ Share: Employers who elect to pay all or part of their employees’ share must provide a written notice, policy, or procedure to the employee specifying that the employer is electing to pay the employee contribution. If an employer decides to stop paying or reduce the amount of the employee share it elected to pay, it must provide an updated written notice, policy, or procedure to employees at least one pay period prior to any change.
Place of Performance Test: Employers who operate in both Oregon and Washington, or that have employees who work from or within both states, must understand which state’s paid leave program applies to each employee. Pursuant to the final rules, eligibility under Paid Leave Oregon will depend, at least in part, on where the employee performs services and whether those services are considered “incidental.” Failure to contribute to the correct program may result in the assessment of penalties and interest or give rise to a civil lawsuit. The rules provide several examples to help clarify which wages are subject to Oregon contributions. Employers with doubts as to which paid leave program applies to an employee should consult with counsel to determine their obligations (if any) under both states’ programs.
Successors in Interest: Under certain circumstances, business acquisitions may result in total or partial liability for any unpaid contributions due under Paid Leave Oregon. An employer who acquires a trade or business as a “total” successor in interest may be liable for the full amount of unpaid payroll contributions under Paid Leave Oregon. Unpaid contributions assessed to a total successor in interest will be due immediately upon assessment.
Penalties for Failure to Timely Report Contributions: Finally, the OED has clarified that an employer’s failure to file timely reports required under Paid Leave Oregon will result in a penalty that amounts to 0.02% of the total amount of that employer’s employees’ subject wages or $100, whichever is more. Employers may receive a waiver of the penalty if they are able to establish good cause for the failure to file the report(s) at issue.
While we wait for the OED to issue the remaining final rules, employers should start their Paid Leave Oregon preparations now to ensure a smooth transition. Visit our September 27 E-Alert, Paid Leave Oregon Poster Now Available: What Every Employer Needs to Do Now, for more information.
For questions about Paid Leave Oregon-related policy updates, decision-making, or advice, contact Amy Angel at (503) 276-2195 or at aangel@barran.com.
10/6/22: National Labor Relations Board Reverses 2019 Precedent on Union Dues Checkoff
October 6, 2022
The National Labor Relations Board (“NLRB”) has reversed existing precedent by holding that covered employers are no longer entitled to unilaterally stop union dues checkoff following the expiration of a collective bargaining agreement (“CBA”) that required the employer to make such deductions. Union dues checkoff refers to the practice of an employer, when authorized by the employee, deducting union dues from the employee’s wages so they may be remitted to the union. In Valley Hospital Medical Center, Inc. II, the Board recently reversed its 2019 decision in Valley Hospital Medical Center, Inc. I, where it held that employers are permitted to unilaterally stop union dues checkoff after the expiration of a CBA.
Generally, unionized employers are required to maintain the “status quo” or bargain over changes to the terms and conditions of employment under a CBA once it has expired absent valid impasse. However, as with many areas of labor law, this general rule is subject to numerous exceptions. Before an employer takes action related to its employees after the expiration of its CBA, it should examine the specific terms of the expired CBA as well as the most recent NLRB case law. As illustrated by Valley Hospital Medical Center, Inc. I & II, the NLRB frequently makes changes to the precedent it has established. Therefore, it is always critical to evaluate whether a seemingly permissible action is compliant with the NLRB’s current interpretation of labor laws.
For questions about union dues checkoff or other collective bargaining agreement obligations, contact the Barran Liebman team at 503-228-0500.
10/5/22: New Seattle Independent Contractor Requirements in Effect
October 5, 2022
The City of Seattle recently had a new set of requirements go into effect related to protections for independent contractors in the city, titled the Independent Contractor Protections Ordinance. If you have independent contractors currently working in Seattle, immediate action may be required.
The ordinance applies to any contractor that a “commercial hiring entity” hires who (a) has no employees, (b) performs any part of their work in Seattle, and (c) will receive or may reasonably expect to receive at least $600 in total compensation from you in any given year (importantly, this can be over several contracts). “Commercial hiring entities” is defined as a “hiring entity regularly engaged in business or commercial activity.” Under the law, a “hiring entity is regularly engaged in business or commercial activity if the hiring entity owns or operates any trade, occupation, or business, including a not for profit business[.]”
The ordinance requires that a hiring entity provide the following to any contractor who falls under those requirements:
A pre-work notice of rights under the ordinance;
A pre-work written notice that identifies the proposed terms and conditions of work and the terms and conditions of payment before starting work, including much of the information usually included in a formal independent contractor agreement or contract;
Timely payment in accordance with the terms and conditions of the pre-work written notice or contract, or if the contract is silent on the time for payment, within 30 days after the completion of services under the contract; and
A written notice that gives specific itemized payment information each time that payment is made.
Employers who contract with independent contractors that complete any part of their work in Seattle should review their current agreement forms and how they generally complete them to ensure that the required information is included and the level of detail required by the ordinance is met. Additionally, notices of rights under the ordinance and of itemized payment information to be included with any payment will need to be generated and provided to such contractors in compliance with the new requirements.
Importantly, the requirements apply retroactively to any ongoing contracts, so entities should review any ongoing contracts for anywhere work is or will be performed in Seattle, and make the required disclosures in those instances as soon as possible.
Click to access a PDF of this Electronic Alert.
For questions regarding Seattle’s Independent Contractor Protections Ordinance, contact Wilson Jarrell at 503-276-2181 or wjarrell@barran.com.
9/28/22: Certain Employees Covered by CBAs No Longer Exempt from Oregon Sick Time Law
September 28, 2022
By Nicole Elgin & Missy Oakley
In 2021, the Oregon legislature passed SB 588, removing the Oregon sick time exemption (located in ORS 653.646) for employees, other than longshore workers, covered under a collective bargaining agreement, who are employed through a third party (e.g., a hiring hall), and whose benefits are provided by a joint multiemployer-employee trust or benefit plan. Oregon sick leave requirements will now apply to these employees. This change becomes effective January 1, 2023.
Beginning January 1, 2023, employers utilizing hiring halls can still be in compliance with Oregon’s Paid Sick Leave requirements if:
The terms of the agreement provide a sick leave policy or other paid time off program that is substantially equivalent to or more generous than the minimum requirements of ORS 653.601 to 653.661 for the benefit of employees:
(a) Who are employed through a hiring hall or similar referral system operated by the labor organization or a third party;
(b) Whose terms and conditions of employment are covered by the multiemployer collective bargaining agreement; and
(c) Whose employment-related benefits are provided by the joint multiemployer-employee trust or benefit plan;
The trustees of the trust or benefit plan have agreed to the level of benefits provided under the sick leave policy or other paid time off program; and
The contributions to the trust or benefit plan are made solely by the employer signatories to the agreement.
Last Friday, Oregon’s Bureau of Labor & Industries filed a notice of proposed rulemaking related to SB 588. The notice states that BOLI plans to repeal OAR 839-007-0060, the rule that contains the sick time exemption. Deadline for public comment is 5:00 p.m. on October 31, 2022. Employers can anticipate the rule will be repealed.
In advance of the January 1, 2023, effective date, employers with unionized workforces should review whether repeal of this Oregon sick time exemption affects their employees and determine whether bargaining over the change with the union is required.
Click to access a PDF of this Electronic Alert.
For questions regarding Oregon’s sick time law, contact Nicole Elgin at 503-276-2109 or nelgin@barran.com, or Missy Oakley at 503-276-2122 or moakley@barran.com.
9/27/22: Paid Leave Oregon Poster Now Available: What Every Employer Needs to Do Now
September 27, 2022
By Amy Angel
Preparations for Paid Leave Oregon’s debut are in full swing and the Oregon Employment Department (“OED”) just published a model employee notice detailing employees’ rights and duties under the new program. Covered employers must make this (or a substantially similar) notice available to employees on or before January 1, 2023.
In addition to posting the required notice, here is what Oregon employers need to be doing now:
Become familiar with the basics of Paid Leave Oregon. Paid Leave Oregon is a family, medical, and sick leave insurance program that was created to provide eligible employees compensated time off from work for family leave, medical leave, and safe leave. Eligible employees may apply for benefits beginning September 3, 2023. The duration of benefits is generally 12 weeks per benefit year plus an additional 2 weeks for employees with limitations relating to pregnancy, childbirth, or a related medical condition.
Prepare payroll to collect contributions and remit payments. Paid Leave Oregon is funded by a trust fund with both employees and most employers contributing to the fund through payroll taxes. With contributions starting January 1, 2023, it is imperative that your payroll team is ready.
Review current paid time off and leave policies. Beyond understanding the mechanics of the program itself, employers must be aware of the impact Paid Leave Oregon may have on their currently offered employee benefits, especially when it comes to their leave policies. Leave available under Paid Leave Oregon may or may not align with other types of available protected leave, such as leave protected by the Oregon Family Leave Act or federal Family and Medical Leave Act. Similarly, Paid Leave Oregon benefits are in addition to other benefits offered by employers, including Oregon Sick Leave, short-term disability insurance, vacation, or other paid time off benefits. Oregon employers should take a critical look at their current leave policies and benefit offerings, and make decisions as to how those policies should be structured to better align with Paid Leave Oregon moving forward. Additionally, Oregon employers should revise their current policies to add new language regarding job protections and employee rights granted under Paid Leave Oregon.
Decide whether to apply for an equivalent plan. Employers may provide equivalent paid leave plans for their employees as an alternative to participating in the Paid Leave Oregon program. An equivalent plan must meet minimum requirements and be approved by the Oregon Employment Department. The Oregon Employment Department is already accepting applications. To be exempt from paying and remitting contribution payments beginning January 1, 2023, equivalent plan applications must be submitted by November 30, 2022. Employers who intend to apply for an equivalent plan but cannot do so by November 30 may consider submitting a Declaration of Intent in the interim.
If you are a Small Employer, evaluate whether to make the employer contributions. Small employers with fewer than 25 employees are covered by Paid Leave Oregon, but are not required to pay the employer portion of contributions. However, small employers who choose to make the employer contributions may receive assistance grants to help with the costs of hiring a replacement worker or other significant wage-related costs when an employee is on leave.
With multiple decision points and policy revisions ahead, employers should start Paid Leave Oregon preparations now to ensure a smooth transition.
For questions about Paid Leave Oregon-related policy updates, decision-making, or advice, contact Amy Angel at (503) 276-2195 or at aangel@barran.com.
9/26/22: Changes in Remote Work Policies Implicate Employers’ Bargaining Obligations
September 26, 2022
As the world continues to adapt in light of the pandemic, deciding which policies to maintain as part of the “new normal” can be complex as employers weigh the unique needs of their businesses. For employers with unionized employees, this process is further complicated by the potential bargaining requirements imposed by labor laws.
Policies affecting the health and safety of employees are mandatory subjects of bargaining under the National Labor Relations Act, which means unionized employers need to assess their obligations before making any adjustments to policies enacted to deal with the pandemic. While it is well established that work conditions related to the health and safety of employees are a mandatory subject of bargaining, whether an employer must actually bargain over changes related to remote work policies can depend on a number of facts specific to an employer and its union.
When determining whether they can act unilaterally to change remote work policies, the first question employers should ask is whether remote work, or similar COVID-19-related policies, are covered by any terms of an existing Collective Bargaining Agreement (“CBA”). If an employer has a CBA that directly addresses the subject, then the analysis will likely end there, and an employer must proceed according to the terms of the CBA. If the CBA is silent on the issue of remote work, whether an employer must bargain on the issue will depend on the presence of a management rights clause in the CBA and the language of that clause. A broad management rights clause could allow employers to unilaterally change their remote work policies.
If there is not a current CBA in effect between an employer and a union, then the employer’s obligation to bargain on changes to remote work policies typically depends on their established past practices. For employers who have yet to enter into their first CBA with a certified union, a unilateral change of remote work policies is likely prohibited by the National Labor Relations Act. Before companies with unionized employees make unilateral changes to their remote work policies, we recommend that they thoroughly analyze any bargaining obligations.
For questions regarding your company’s right to make changes to employee policies, contact the Barran Liebman team at 503-228-0500.
9/12/22: NLRB Decision Means it is Time to Review Uniform Policies
September 12, 2022
By Nicole Elgin
In August, the National Labor Relations Board (NLRB) issued a decision in Tesla, Inc., 370 NLRB (2022), that reinstated the rule that an employer’s uniform policy that restricts a display of union insignia is presumptively unlawful. Specifically, an employer’s uniform policy that, even implicitly, prohibits an employee from displaying union insignia (including union apparel) is unlawful, unless the employer can demonstrate special circumstances making the uniform policy necessary. The Board’s decision also overturns its 2019 WalMart Stores, Inc. decision regarding union insignia and uniforms.
Special circumstances are not easy to prove. The NLRB has found that an employer demonstrated special circumstances in limited situations, including: when the display of union slogans or apparel may jeopardize employee safety, damage machinery or products, exacerbate employee dissension, unreasonably interfere with a public image that the employer has established, or when necessary to maintain decorum and discipline among employees. The Tesla decision means that now is a good time for employers to review their employee handbooks and uniform policies to make sure they are following the NLRB’s decision.
Click to access a PDF of this Electronic Alert.
For questions on compliance with these rules or other labor and employment matters, contact Nicole at 503-276-2109 or nelgin@barran.com.
8/31/22: Temporary Exceptions to Oregon Pay Equity Law Set to Expire
August 31, 2022
As we have written about previously, the Oregon Legislature amended the Oregon Equal Pay Act to create an exception to the definition of “compensation” for a limited period of time in order to give employers greater leeway in hiring and retaining workers in the tight labor market. Under these amendments, employers can offer hiring and retention bonuses without them being considered “compensation” under the Oregon Equal Pay Act. These protections are, however, only temporary and are scheduled to expire on September 28, 2022.
Ordinarily, employers must make hiring and retention bonuses (and all other forms of compensation) available to all employees performing work of comparable character on an equal, non-discriminatory basis. If there are any differences in compensation between workers who perform work of comparable character, employers must justify the entire compensation differential on the basis of specific bona fide factors. Now that this exemption will soon expire, employers will once again need to consider how hiring and retention bonuses comply with the Oregon Equal Pay Act. Even with the limited exception under Oregon’s Equal Pay Act, employers still must be mindful of compliance with the federal Equal Pay Act.
Employers should also be mindful that they should issue their bonus payments on or before September 27, 2022, to be covered by this exemption.
As you may recall, the legislature also gave employers leeway to provide incentives for employees to get the COVID-19 vaccine. These protections will continue to remain in effect until the legislature removes them.
Click to access a PDF of this Electronic Alert.
For questions about pay equity compliance, contact Josh Goldberg at 503-276-2107 or jgoldberg@barran.com.
8/25/22: Washington is Updating its Job Posting Requirements: What Employers In (& Out of) Washington Should Know
August 25, 2022
By Nicole Elgin & Blayne Soleymani-Pearson
Beginning January 1, 2023, amendments to Washington’s Equal Pay and Opportunities Act (RCW 49.58) go into effect. The amendments create additional wage disclosure obligations for employers’ job postings for Washington-based employees.
Requirements
If an employer has 15 or more employees, their job postings must include:
a wage scale or salary ranges for the job opening, and
a general description of all of the benefits and other compensation to be offered to the hired applicant.
“Posting” means any solicitation intended to recruit job applicants and includes indirect recruitment through a third party, and to any print or electronic posting. The law also already requires employers to provide the wage scale or salary range for a specific position when requested by an internal employee who seeks transfer or promotion to a new position.
Broad Impact
Prior to this law taking effect, employers were required to disclose wage scale and general benefits descriptions upon applicant request. Beginning in January, covered employers must proactively provide this information in the posting itself.
Oregon and employers in other states should pay attention to this law! Washington’s Department of Labor & Industries (L&I) is currently drafting its guidance for changes to the law. According to the draft proposed guidance by L&I, an employer without a physical presence in Washington may be affected by these changes. According to this draft, an employer would be subject to this law if the employer:
recruits for jobs that can be filled by Washington-based employees, or
posts for remote work that can be performed by a Washington-based employee.
The guidance further warns that employers cannot avoid compliance by indicating they will not consider Washington-based applicants.
The L&I Employment Standards Program has released the second draft of its proposed administrative policy and is seeking public comment. Employers can view the current draft policy and submit feedback to L&I here.
Click to access a PDF of this Electronic Alert.
For questions on compliance with these rules or other labor and employment matters, contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.
8/19/22: How to Draft A Proper Remote Work Policy
August 19, 2022
By Jeff Robertson & Iris Tilley
A proper remote work policy protects the organization by defining who can work remotely and what those who are remote must disclose to their employer. This policy should be in written form and may be a separate policy or part of a larger employee handbook. However, where the policy is part of the handbook and not customized from employee to employee, a separate remote work agreement covering the specifics of an employee’s remote work arrangement is best practice. Failure to draft and distribute a clear remote work policy has potential ramifications for paid leave, taxes, workers’ compensation, reimbursement of equipment, and workplace discrimination claims.
A remote work policy and/or remote work agreement should cover:
The employee classes or positions that are eligible for remote work;
The covered employee’s approved work location;
Terms, conditions, and requirements tied to the privilege of remote work, e.g., that employees must continue to adhere to all company policies, expectations regarding the employer’s ability to reach the employee during specified hours, and details regarding specific times the employee must report in-person to the office; and
The employer’s right to revoke the remote work agreement and/or policy.
Remote work policies can vary substantially depending on an employer’s workforce, culture, and work locations. Our employment lawyers are highly skilled at drafting remote work policies and agreements and determining the laws implicated by employees who are working remotely. We work with companies to make sure written remote work policies support employees working remotely as well as to protect companies to the greatest extent possible.
Click to access a PDF of this Electronic Alert.
For any remote work questions, contact authors Jeff Robertson at 503-276-2140 or jrobertson@barran.com, or Iris Tilley at 503-276-2155 or itilley@barran.com.
8/15/22: The CDC’s COVID-19 Guidance Has Changed: What Employers Should Know
August 15, 2022
The Centers for Disease Control and Prevention (CDC) released revised COVID-19 guidance last week that may impact employers’ COVID-19 workplace policies. The high levels of immunity from vaccines and prior infections have led the CDC to continue to ease restrictions in non-high-risk communities.
Quarantining
The CDC no longer recommends quarantining just because a person has been exposed to COVID-19.
A person who receives a notification that they have been in contact with another individual who has tested positive for COVID-19 need not quarantine if they remain asymptomatic.
However, persons who have had recent confirmed or suspected exposure to an infected person should wear a mask for 10 days around others when indoors in public and should receive testing five days after exposure (or sooner, if they are symptomatic), irrespective of their vaccination status.
Vaccinated vs. Unvaccinated
The CDC’s COVID-19 prevention recommendations no longer differentiate based on a person’s vaccination status.
What Does the New CDC Guidance Mean for Employers?
Employers are permitted to have COVID-19 workplace policies that provide greater restrictions than what the CDC recommends. For example, employers can still require that their employees wear masks or that they be vaccinated against COVID-19, though employers who have vaccine mandates may have a more difficult time denying religious and disability accommodations based on the CDC’s new guidance.
Despite the change in the CDC guidance, employers still must follow the Oregon Occupational Safety and Health Administration’s COVID-19 workplace rules which require that employers:
Allow employees to voluntarily use facial coverings and provide facial coverings at no cost to employees.
Facilitate COVID-19 testing for employees if such testing is conducted at the employer’s direction by ensuring the employer covers the costs associated with that testing, including employee time and travel.
Continue to optimize the use of ventilation systems to help reduce the risk of COVID-19 transmission.
Follow Oregon Health Authority, public health, or medical provider recommendations for isolation or quarantine of employees for COVID-19.
Provide notice to employees who have had a potential work-related exposure to COVID-19 within 24 hours.
In addition, schools and employers in “exceptional risk workplaces,” including most health care settings, are subject to stricter requirements. It is important for employers to re-visit their COVID-19 policies from time-to-time to ensure that their policies are compliant with state and federal rules. In addition, employers may have COVID-19 policies in place from years prior that are no longer being followed. In these cases, employers should amend or repeal their policies so that they are consistent with day-to-day practices.
For any questions about managing COVID-19 in the workplace, contact the Barran Liebman team at 503-228-0500.
7/20/22: Protected Leave & Workers’ Compensation: Considerations for Employers with Remote Workers
July 20, 2022
By Nick Ball
As employers adapt to the post-pandemic economy, many are finding that remote work is here to stay. This E-Alert is part of a series intended to help employers ensure they are prepared for the unique challenges that remote work poses.
1. I have a remote employee who asked to take leave, and we are willing to provide it. Does it matter what we call it?
Your company may be happy to grant this employee leave, no questions asked. However, ensuring that the employee’s leave is properly classified will negate a number of problems that could arise down the road.
If the employee is taking leave for their own medical condition or that of a close family member, they may be entitled to leave under the Family Medical Leave Act (FMLA). Until the leave is designated as FMLA leave, the employer cannot count the employee’s time off against the employee’s 12-week FMLA entitlement. The employer may not mind granting this first leave request, but may find that their patience runs thin as additional leave requests roll in with no real end in sight. Further, the news that a later leave request is subject to FMLA protections because earlier leave was not designated as FMLA is never welcome news.
An employee’s medical leave may also be protected under various state laws. State laws interact in numerous ways with FMLA. For example, leave protected under both the Oregon Family Leave Act and FMLA will run concurrently. If a covered employer does not designate the leave correctly under federal and state law, the employee may be entitled to additional state law leave too.
2. A remote employee has claimed an injury and is filing a workers’ compensation claim in the state where they live, not the employer’s home state. What should I do?
When a remote employee is injured, the employer’s first priority (other than the injury itself) should be to identify the jurisdiction in which the worker’s claim arises. The employer needs to confirm whether it has coverage in the state where its worker is claiming an injury. While many employers carry national policies, some states disallow employers from obtaining third-party insurance (such as Washington), requiring employers to self-insure or purchase coverage through a state fund.
An employer that does not carry proper state coverage may face penalties related to failure to cover an employee and perhaps failure to provide an employee with information on their rights and how to file claims in the jurisdictions they are working from. An employee may file their workers’ compensation claim in the employer’s home jurisdiction or the employee’s, and no policy can control this choice.
States also vary in allowing claims for at-home injuries. For example, if an employee is walking their dog mid-shift and falls, will their injury be covered? The answer may vary from state to state.
Employers should proactively confirm that their workers’ compensation coverage is valid within the jurisdictions where their employees are working from to ensure that policies and coverage are compliant with the laws in those jurisdictions. A strong remote work policy also may help you proactively identify where an employee is working and where they may file a claim upon injury.
Click to access a PDF of this Electronic Alert.
For any remote work-related questions, contact Nick Ball at 503-276-2150 or nball@barran.com.
7/14/22: EEOC Updates its Guidance Regarding COVID-19 Testing
July 14, 2022
By Amy Angel & Joshua Waugh
On Tuesday, July 12, 2022, the Equal Employment Opportunity Commission (EEOC) updated its guidance for employers regarding COVID-19 in the workplace. This guidance includes two significant updates related to employer-required testing for COVID-19.
COVID-19 Viral Testing: The EEOC made clear that, going forward, employers that require an employee to be tested for COVID-19 must be able to satisfy the Americans with Disabilities Act’s (ADA) standard for medical examinations and inquiries of employees. Specifically, the employer must show that a viral test for COVID-19 is job-related and consistent with business necessity. Some of the considerations identified by the EEOC that may be used in making the “business necessity” assessment include working conditions, community transmission levels, workers’ vaccination status, breakthrough infection risk, ease of transmissibility of current variants, possible severity of illness, and potential impact on operations if an employee enters the workplace with COVID-19. Additionally, use of a COVID-19 test to screen employees who are or will be in the workplace must be in line with current guidance from the Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA), and state and local public health authorities.
COVID-19 Antibody Testing: The EEOC’s updated guidance states that employers may not require an employee to submit to COVID-19 antibody testing to enter the workplace. This update is based on current CDC guidance which explains that antibody testing may not show whether an employee has a current infection, nor does it establish that an employee is immune from infection. Accordingly, at this time, testing for COVID-19 antibodies does not meet the “business necessity” standard under the ADA for medical examinations or inquiries of employees.
The EEOC’s updated guidance highlights the need for employers to continually take into account current pandemic circumstances as well as their individual workplace to remain in compliance with applicable employment laws. Employers should take time now to review and update their policies and practices related to COVID-19 in the workplace in light of current trends and shifting regulatory guidance.
Click to access a PDF of this Electronic Alert.
For questions about compliance with the EEOC guidance and navigating COVID-19 in the workplace, contact Amy Angel at 503-276-2195 or aangel@barran.com.
6/29/22: The Supreme Court Runs Interference on Public Prayer Restrictions
June 29, 2022
On Monday, the United States Supreme Court weighed in on the role of prayer in public sector workplaces when it found in favor of a former football coach from Bremerton School District in Washington who defied his employer’s attempts to uphold religious neutrality and restrict when he may engage in expressive public prayer.
Background
Joseph Kennedy was a part-time high school football coach who, for years, incorporated prayer into his pre- and post-game pep talks with the team. He also publicly prayed at the conclusion of every game he coached by going to the 50-yard line, kneeling, and bowing his head, often while players were celebrating their victories. Initially, the coach prayed on his own, but over time, most of the team joined him.
In response, the school district advised the coach that his conduct may violate the constitutional principles that call for a separation of church and state. The school district also provided him with accommodations to pray privately or once the stadium emptied but insisted that he not engage in outward religious prayer while he was on the job.
The coach temporarily complied with some restrictions and then, in a turnabout, announced his defiance of other restrictions through the media. During one of the post-game prayer rituals, disorder ensued when members of the public sought to join the coach on the field and a stampede elicited student and parent complaints.
Ultimately, the school district believed that, if it allowed the coach to continue his public prayer, the district would be in violation of the First Amendment’s Establishment Clause because students and other attendees might perceive the district as endorsing religion. Since the coach declined to comply with the district’s request to limit his prayers to after games in a private location not observable to students, the district suspended him, gave him a poor performance evaluation, and advised against rehiring him due to his failure to follow district policy regarding religious expression and failure to supervise student athletes after games. The coach subsequently sued the district, alleging it violated both the Free Exercise and Free Speech Clauses of the First Amendment.
Compliance Insights
The Supreme Court’s opinion provides little insight into its decision-making process and is notable to the extent that the Court concluded the coach prevailed without the need of a jury trial.
What is clear is that the Court disagreed with the district disciplining the coach for engaging in prayer and wanted to send a strong signal to all employers about the importance of providing accommodations for sincerely held religious beliefs.
In finding for the coach, the Court found that the district’s policies were not neutral or generally applicable and therefore burdened the coach’s sincere religious practices. The Court also characterized the coach’s prayer as private and personal, and concluded that there was no evidence that the coach was coercing others into following his religious practices. The Court did not address the fact that at least one parent expressed their child felt forced to participate to curry favor with the coach and get playtime on the field. If there was stronger evidence of coercion, this case may have turned out differently.
Public employers can still regulate workplace speech but should be cautious in light of the Court’s willingness to downplay employer rights in favor of religious expression. Ultimately, the Court concluded that the coach’s conduct was protected First Amendment speech and not government speech that could be regulated because (a) he was momentarily on a break and not on the job when he prayed; and (b) his prayer, which the Court concluded was private and personal, was also protected speech on matters of public concern. These findings indicate public employers should carefully review matters of religious expression in the workplace and draft robust, neutral policies on religion in the workplace.
Click to access a PDF of this Electronic Alert.
For questions about responding to requests for accommodations based on religion, contact the Barran Liebman team at 503-228-0500.
6/27/22: Annual Compliance Check: Planned Increase in Oregon’s Minimum Wage is Effective July 1
June 27, 2022
It is that time of year again when employers must ensure that their pay rates are consistent with Oregon’s annual automatic increases to the minimum wage. The new applicable minimum wage rate depends upon both the location of the employer and where employees perform their work.
New Minimum Wage Rates
These are the new minimum wage rates for each region effective July 1, 2022:
Portland metro area within the urban growth boundary: $14.75
Standard minimum wage: $13.50
Rural Oregon: $12.50
The “standard minimum wage” applies to Benton, Clatsop, Columbia, Deschutes, Hood River, Jackson, Josephine, Lane, Lincoln, Linn, Marion, Polk, Tillamook, Yamhill, and Wasco counties as well as parts of Clackamas, Multnomah, and Washington counties outside the urban growth boundary.
Oregon’s rural minimum wage rate applies in Baker, Coos, Crook, Curry, Douglas, Gilliam, Grant, Harney, Jefferson, Klamath, Lake, Malheur, Morrow, Sherman, Umatilla, Union, Wallowa, and Wheeler counties.
If you are unsure if your company is within the urban growth boundary, please refer to this map maintained by Metro.
Compliance Reminders
Employers should consider taking some proactive steps to ensure compliance with Oregon’s new minimum wage rates. For example, for employers who outsource their payroll to third-party providers, it is worth confirming that your provider has input the appropriate minimum wage and overtime rates. Employers are also required to display an updated minimum wage poster in a conspicuous place beginning on July 1. The poster is available for download here.
Employers may also consider the downstream consequences of these new wage rates, as these increases tend to create wage compression that may need to be addressed. They may also affect employers’ pay equity plans and higher paid employees’ wages, depending on their compensation structure and the specific language in their job offers or employment agreements.
Click to access a PDF of this Electronic Alert.
For questions on wage and hour law, contact the Barran Liebman team at 503-228-0500.
6/13/22: DOL Releases New FMLA Mental Health Resources
June 13, 2022
By Missy Oakley & Becky Zuschlag
Last month, in coordination with National Mental Health Awareness Month, the U.S. Department of Labor’s Wage and Hour Division (“DOL”) published new resources regarding mental health conditions and the Family and Medical Leave Act (“FMLA”). The new resources are intended to aide employers in better understanding how to comply with the FMLA and assist employees in understanding their rights under the FMLA regarding mental health conditions.
FMLA generally provides eligible employees with up to 12 workweeks of job-protected leave each year for their own serious health condition, or to care for a family member with a serious health condition. Physical and mental health conditions are considered serious health conditions under the FMLA if they require inpatient care or continuing treatment by a healthcare provider.
Serious mental health conditions that require continuing treatment by a healthcare provider include conditions that incapacitate an individual for more than three consecutive days and require ongoing medical treatment—either multiple appointments with a healthcare provider or a single appointment with follow-up care; and chronic conditions that cause occasional periods when an individual is incapacitated and require treatment by a healthcare provider at least twice a year. Chronic conditions may include conditions like anxiety and depression. The DOL’s guidance includes helpful FAQs such as:
(Q) May I use FMLA leave to attend a family counseling session for my spouse who is in an inpatient treatment program for substance abuse?
(A) Yes. Assuming that you work for a covered employer and are eligible for FMLA leave, you may use FMLA leave to provide care for your spouse who is undergoing inpatient treatment for substance abuse. Care could include participating in your spouse’s medical treatment program or attending a care conference with your spouse’s healthcare providers.
Employers play an important role in mental health awareness by providing and promoting mental health-friendly workplaces. Ensuring that employees who are coping with mental health conditions receive the support and job-protected leave they may need is essential, not only in complying with the FMLA, but also to fostering a positive work environment. Employers can review the DOL’s newly published guidance here, which includes a fact sheet on mental health conditions and a list of FAQs on the FMLA’s mental health provisions.
Click to access a PDF of this Electronic Alert.
For questions on the FMLA or for any other employee leave-related matters, contact Missy Oakley at 503-276-2122 or moakley@barran.com.
6/8/22: Where Do My Employees Work for Leave Law & Paid Time Leave Purposes?
June 8, 2022
By Jeff Robertson & Iris Tilley
As you read in last week’s E-Alert regarding an employee’s tax home, remote work compliance remains a key area of concern for employers. In addition to the tax considerations we wrote about last week, we regularly receive questions regarding how to comply with leave laws when an employee works in a state other than the state in which an employer is headquartered or otherwise does business. Stay tuned for additional E-Alerts that will cover considerations such as wage and hour, workers’ compensation, and insurance-based remote work compliance.
Leave Laws
With many states and even cities or counties developing their own unique leave laws, employers are drowning in Google searches and questions to advisors as they try to determine which leave laws to follow. Further complicating the calculus, coverage by state and local leave laws is often subject to the employee-counting considerations in which physical location of both the remote employee and other employees of the employer come into play.
While state and local leave laws require their own consideration, we can offer some certainty around the federal Family and Medical Leave Act (FMLA). Employees who are otherwise eligible for FMLA leave are only covered by the law if they work for an employer with at least 50 employees within 75 miles of the employee’s work location. With that in mind, a single remote employee working out of a state other than the state in which the employer generally operates often will not be covered by FMLA.
For state and local leave laws, the first rule of thumb is the physical location of the employee. It is important to determine whether the company’s general leave policies, including paid time leave, comply with each state in which an employee may work. Company policies requiring employees to inform the company about where they are physically performing work are also important. Employers may wish to mandate that employees perform work from the employer’s office a designated number of days per week to control which leave laws govern a particular employee.
Practice Tip – Handbooks: Employers are often understandably resistant about creating handbooks or customized policies for a single out-of-state remote employee. However, identifying and documenting the contours of an employee’s relationship with the employer is critical. Fortunately, an employer’s current employee handbook can generally be amended to add an addendum for each relevant state in the place of drafting complete handbooks each time an employee begins out-of-state remote work.
Whether you are considering your first out-of-state remote hire, looking to get into compliance after loose policies driven by COVID-19, or already operating as a seasoned multistate employer, our remote work team is ready to assist with any questions that may arise.
Click to access a PDF of this Electronic Alert.
For questions about this E-Alert, contact Jeff Robertson or Iris Tilley at 503-276-2140 or 503-276-2155, or via email at jrobertson@barran.com or itilley@barran.com.