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.

Jeffrey G. Robertson 1/6/21 Jeffrey G. Robertson 1/6/21

1/6/21: What the Consolidated Appropriations Act of 2021 Means for Your Retirement & Health Plans

January 6, 2021

On December 28, 2020, we looked at what the Consolidated Appropriations Act of 2021 (“CAA of 2021”) means for your flexible spending and dependent care accounts. Today, we tackle the sprawling bill’s effect on your health and retirement plans.

Retirement Plans

Relief from Partial Plan Termination

The CAA of 2021 provides some relief for employers who had to terminate a large amount of their workforce but who are able to rehire employees by March 31, 2021. The CAA of 2021 provides that employers will not be considered to have had a partial plan termination in any plan year that includes the period from March 13, 2020 to March 31, 2021, as long as the number of active participants in the plan on March 31, 2021 is at least 80% of the number of active participants who were in the plan on March 13, 2020. This is good news for employers whose plans would have otherwise incurred a partial termination, because partial plan termination results in 100% vesting for affected participants.

Coronavirus-Related Distributions from Money Purchase Pension Plans

The CAA of 2021 amended the CARES Act to include Money Purchase Pension Plans in the group of retirement plans from which an individual can take a Coronavirus-Related Distribution. This amendment applies as if it was included in the CARES Act.

Employers who wish to offer this distribution option may operate their plans in compliance with this change now. No plan amendment is required until the end of the plan sponsor’s first plan year beginning on or after January 1, 2022 (2024 for government plans).

Disaster Relief

Similar to the relief included in the Further Consolidated Appropriations Act 2020, the CAA of 2021 includes provisions that provide flexibility in distributions and loans from certain qualified retirement plans that are requested as a result of a disaster declared as such under the Robert T. Stafford Disaster Relief and Emergency Assistance Act.

Employers who wish to include this relief in the plans they offer have until the end of the plan sponsor’s first plan year beginning on or after January 1, 2022 to make plan amendments (2024 for government plans).

Health Plans

Protections Against Surprise Medical Bills

The No Surprises Act (an act within the CAA of 2021) protects healthcare consumers from the surprise medical bills that can result when they receive care from an out-of-network provider in an emergency. Prior to the No Surprises Act, patients often received bills that were higher than they had expected because the law permitted patients to be billed for the balance between the amount that their health plan would cover for the service as an out-of-network service and the total cost of the service.

The No Surprises Act applies to both self-funded and insured health plans. It covers air ambulance and emergency services and out-of-network services provided at in-network facilities. The No Surprises Act prohibits providers from billing patients for the balance of the cost of these services and generally limits the amount a patient can be billed to the in-network cost. The No Surprises Act also creates a process through which plans and providers will negotiate the cost of the services covered by the No Surprises Act.

The No Surprises Act is effective in 2022. Employers will want to work with their insurers, third-party administrators, and/or attorneys to ensure that the health plans they sponsor are amended to include the updates required by the law.

Employers who have questions about any of the changes mentioned in this E-Alert can contact the Barran Liebman team at 503-228-0500.

Click to access a PDF of this Electronic Alert.

Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. Alerts are not intended as legal advice, but as employment law, labor law, and employee benefits announcements. If this has been forwarded to you, and you would like to begin receiving Electronic Alerts directly, please email or call Traci Ray at 503-276-2115. Copyright ©2021 by Barran Liebman LLP.

Jeffrey G. Robertson 1/5/21 Jeffrey G. Robertson 1/5/21

1/5/21: Happy New Year! It’s Time to Review Policies & Procedures for Workplace Complaints

January 5, 2021

By Wilson Jarrell

Now that 2020 is (finally) over, the new year is a perfect time to re-evaluate how you handle employee complaints of harassment or other misconduct. The ongoing COVID-19 pandemic has changed how many employees work, and while some forms of complaints have become temporarily less prevalent, other complaints have arisen. Further, as employees return to work or settle into a new more permanent remote status, employers would do well to expect a resurgence of workplace complaints.

How an employer responds to a complaint is extremely important. Just last month, the EEOC fined two employers amounts in the six figures for harassment claims that may have otherwise been avoided if the companies had conducted proper investigations.

Everyone hopes that their workforce is happy and functioning appropriately, but when a complaint arises, it is important that you are prepared and that your managers are well trained on how to appropriately respond.

Although receiving a complaint can often feel like a problem, there is a positive aspect that comes with it. The underlying issue exists independent of a complaint, and an employee coming forward provides you an opportunity to respond and handle the situation. Receiving a complaint allows you to both (a) shield yourself against liability from some claims by raising an affirmative defense that reasonable steps were taken to stop and prevent any alleged harassment, and (b) provide you with a solid record on which you can base disciplinary action.

In order to properly address a complaint and take advantage of the silver linings, it is important that you respond promptly, conduct a thorough and fair investigation, and take reasonable action based on the results.

1. Receiving a Complaint

Managers and supervisors are often the first to hear a complaint or the preceding concerns, and are the first to have an opportunity to address problematic behavior. It is important that managers and supervisors treat all complaints seriously. It is not the time to complain about receiving complaints or express opinions about the merits of it (or the complainant or the person accused of wrongdoing). Instead, a manager or supervisor should respond to a complaining employee promptly, thanking them for coming forward and expressing how seriously the organization takes complaints. They should also state that the organization will follow up throughout the process and at the conclusion, and invite questions about that process. Managers and supervisors may benefit from both formal training and informal conversation granting them the appropriate language and tools to respond.

After receiving a workplace complaint, the employer must evaluate whether an investigation is warranted. Some employers investigate all complaints, which helps demonstrate how seriously the company takes them. Although not every complaint necessitates a full investigation, the employer should minimally review the allegations and determine if true, if the alleged conduct violates company policy. An investigation is particularly important for any complaint which includes behavior that could potentially be unlawful or which could lead to disciplinary action for an employee.

But not every investigation begins with an employee complaint. It is important not to wait for an employee to complain if there is an issue that you are aware of. If an employer has heard rumors of behavior that if true would result in an investigation or disciplinary action, it should not wait for a formal complaint before initiating an investigation. Further, sometimes it is apparent that there is some issue in the workplace causing strife amongst employees without a specific cause being known. For example, there may be a history of small complaints between employees, or an employer may hear, either through a formal process like an annual review or through more informal conversation, that employees feel uncomfortable or unsatisfied, or refer to the workplace or coworkers as “toxic.” An investigation under these circumstances, particularly by an outside investigator with a more removed viewpoint, can help identify issues before they become larger problems and provide the insight necessary to put the workplace back on track.

2. Initiating the Investigation

If you chose to initiate an investigation, the next important step is selecting an investigator. Depending on the allegations, an internal investigator such as a human resources representative or in-house counsel may be sufficient. However, for particularly sensitive matters or complaints involving senior management, the specialized experience and greater impartiality of an outside investigator are necessary. This is especially true if there is a possibility that the complaint could eventually lead to litigation, as work done by an HR representative may become discoverable, and an in-house attorney cannot be the same attorney who conducts an investigation and represents the company in subsequent litigation. It should also be noted that Oregon employers cannot use an outside investigator unless they are a licensed attorney or licensed private investigator.

3. Conducting an Appropriate & Reliable Investigation

After you have decided that an investigation is warranted and chosen an investigator, the investigation itself involves reviewing documentation, interviewing witnesses, and writing a report that documents the findings.

The complainant is generally interviewed first, which helps ensure an appropriate scope for the investigation is set, followed by other relevant witnesses and the subject of the investigation last. Each interview should start with a brief explanation of the complaint and the investigator’s role, as well as a description of the investigatory process, a reminder of the company’s policies against retaliation for involvement, and a note regarding the limits of interview confidentiality. The investigator will ask each witness about key facts from their personal knowledge, using open-ended questions. Depending on the scope of the investigation, this may also include more generalized questions about the workplace and observed behaviors of other employees.

The investigation report documents the investigatory process, the evidence reviewed during the investigation, the analysis of documents and facts gathered from witnesses, and conclusions reached in each element within the scope of the investigation. This may involve making credibility determinations if necessary. This written record allows decision-makers to separately determine the appropriate outcome and next steps after the investigation.

4. Investigation Considerations in the COVID-19 Pandemic

In the midst of a pandemic, today more than ever employers are still trying to maneuver through the complexity of employee issues. Workplace investigations are no exception. Some employers are currently seeing a decrease of the more “typical” complaints as employees are working remotely, but other forms of complaints and issues are more prevalent now, such as OSHA concerns or complaints about COVID-19 and safety protocols. Furthermore, while it may be tempting to hold off on investigating some complaints that may have arose prior to the pandemic (whether due to an abeyance of the problem resulting from remote work or the restrictions of conducting an investigation during this time), it is important that employers timely and adequately respond to all complaints.

Conducting a remote investigation is entirely possible, and in some ways, is more convenient for employees and witnesses. Videoconference applications such as Zoom or Microsoft Teams allow interviews to occur remotely in a manner that is comfortable and convenient for most. This can often allow for an investigation to proceed more efficiently than may otherwise be possible. With little change to protocols, an investigation can occur safely and remotely, resulting in an outcome that is just as sufficient as otherwise.

It is always in the company’s best interest to take all the necessary steps to ensure an appropriate and reliable investigation in response to employee concerns, whether conducting internally or hiring an outside investigator. A proper investigation can help assuage employee concerns, help determine appropriate and necessary action, provide a backstop to the employer when action is taken, and provide a crucial defense if litigation ever results.

If you are considering your policies for responding to employee complaints or determining how to respond to a complaint that you have received, we recommend contacting counsel for further advice.

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

Click to access a PDF of this Electronic Alert.

Jeffrey G. Robertson 1/4/21 Jeffrey G. Robertson 1/4/21

1/4/21: Federal Stimulus Update Part 1: What Employers Need to Know About the PPP

January 4, 2021

By Chris Morgan

On December 27, 2020, President Trump signed the $900 billion COVID-19 relief bill into law. The new law helps businesses, nonprofits, and venues that continue to be hit hard by the impact of COVID-19, with the funding accomplished through Title III of the Consolidated Appropriations Act, 2021, called the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act.

PPP Extension

The most relevant part of the Act for many businesses is going to be the extension and expansion of the Paid Protection Program (“PPP”). The re-tooled PPP provides assistance to employers by extending the forgivable PPP loan program, with a few changes. With the PPP reopened, businesses can apply for the first time, while many companies are also eligible to apply for a “second-draw” PPP loan.

For first-time and “second draw” applicants alike, the loan process remains largely the same with a few major changes:

The PPP program is now open through March 31, 2021 (or until the new funding is exhausted).
The maximum loan amount is still 2.5 times an applicant’s average monthly payroll costs (increased to 3.5x for small businesses in accommodation and food services industries – those with NAICS codes starting with 72), but is now capped at $2 million (previously the cap was $10 million).
Group health insurance payments may be included in payroll costs when determining the maximum requested loan amount.
Some employers that were previously excluded from eligibility can now receive funds: 501(c)(6) member non-profits, local news media organizations, and housing cooperatives.

Second Draw Applicants may be eligible for a second draw loan if they:

(1) have exhausted their first PPP loan;
(2) have less than 300 employees; and
(3) have experienced a greater than 25% reduction in gross receipts during any quarter in 2020 relative to the same quarter in 2019.

PPP Rule Changes: The bill also makes a few important changes to PPP rules.

(1) Deductibility of Expenses: The act clarifies tax treatment of PPP funds. The new law applies to past and future loans and provides that:

Tax Deductible Expenditures: Regular business expenses paid for with PPP loan proceeds may be deductible for tax purposes. This reverses the IRS ruling that businesses could not deduct expenses paid by PPP funds.
PPP Loan Funds are Not Taxable Income: Even if forgiven, the funds are not considered income for tax purposes.

(2) Forgiveness: Borrowers must still spend at least 60 percent of their PPP on payroll costs in order to receive full forgiveness, but some other rules have broadened.

Expansion of Qualifying Expenses: The list of expenses on which a PPP borrower may now spend the other 40% of loan proceeds has been expanded to include certain operations expenses, supplier costs, worker protection expenses (i.e. money spent to comply with public health guidance related to COVID-19), and property damage costs associated with property damage due to civil unrest in 2020 that are not covered by insurance or otherwise.
EIDL Grant no longer reduces the amount of PPP loan that may be forgiven.
Extended Loan Forgiveness Period recipients may now elect any period between 8 to 24 weeks after loan origination date in which to use funds on allowable expenses.
Simplified Application - PPP loans for less than $150,000 may be forgiven by a simplified one-page expedited application process.

Stayed tuned for Part II of our series on the new federal stimulus package, which will explore other key provisions of the Act for employers to consider in 2021.

For questions on the PPP and more, contact Chris Morgan at 503-228-0500 or cmorgan@barran.com.

Click to access a PDF of this Electronic Alert.

Jeffrey G. Robertson 12/31/20 Jeffrey G. Robertson 12/31/20

12/31/20: Oregon Law Restricts Healthcare Employers Who Want to Require COVID-19 Vaccination

December 31, 2020

By Paula Barran

As we outlined in our earlier E-Alert this month, employers generally have the authority under federal law to require workers to be vaccinated, subject to limited exceptions for employees with disabilities needing an accommodation or employees who have sincerely held religious beliefs preventing them from being vaccinated. State laws may impose different restrictions.

A 1989 statute in Oregon, in fact, does just that – places restrictions on healthcare employers. Healthcare employers are required to provide preventive vaccinations for their employees, but at the same time are prohibited from requiring their employees to be vaccinated unless vaccination is “otherwise required by federal or state law, rule, or regulation.”

The statute defines healthcare workers broadly. “Worker” means a person who is: licensed or certified to provide healthcare under separate legislative provisions; an employee of a healthcare facility, a licensed healthcare provider, or a clinical laboratory; a firefighter; a law enforcement officer; a corrections officer or a parole and probation officer.

We have contacted advisors to Governor Brown to seek clarification and learn whether a regulatory change may be considered. When we know more, we will follow up with an updated E-Alert. In the meantime, employers of healthcare employees (and all employers, regardless of industry) need to be cautious if they are planning to issue mandatory vaccination policies.

The entire statute can be reviewed here.

For any questions relating to navigating COVID-19 in the workplace, contact Paula Barran at 503-228-0500 or pbarran@barran.com.

Click to access a PDF of this Electronic Alert.

Jeffrey G. Robertson 12/30/20 Jeffrey G. Robertson 12/30/20

12/30/20: January 6: Ventilation Requirements Deadline

December 30, 2020

By Natalie Pattison

As a reminder, Oregon OSHA published extensive temporary rules regarding COVID-19 that apply to almost all workplaces in Oregon. These temporary rules include the following ventilation requirements:

No later than January 6, 2021, employers must optimize the amount of outside air circulation through their existing HVAC system when employees are present in the workplace. This includes replacing air filters as needed and ensuring HVAC intake ports are clean and functioning properly.

This rule does not require employers to purchase new HVAC systems or retrofit existing systems.

While there is no written condition for this requirement, employers should memorialize in writing what steps were taken to comply by the deadline in case of agency scrutiny.

It is important that employers stay up-to-date with the many requirements imposed by Oregon OSHA’s temporary rules. Details regarding these rules and various deadlines are outlined in Barran Liebman’s previous E-Alert (originally published November 9, 2020).

For any questions relating to navigating COVID-19 in the workplace, contact Natalie Pattison at 503-276-2104 or npattison@barran.com.

Click to access a PDF of this Electronic Alert.

Jeffrey G. Robertson 12/28/20 Jeffrey G. Robertson 12/28/20

12/28/20: What the Consolidated Appropriations Act of 2021 Means for Your Health FSA & Dependent Care Account Plans

December 28, 2020

By Iris Tilley

Among the sprawling 5,000 plus pages of legislation signed into law on December 27, 2020, are several employee benefits provisions worth a second look. The most pressing of these changes are rollover and extended grace period options related to Health Flexible Spending Accounts (FSAs) and Dependent Care Account Plans (DCAPs) that allow employers to implement plan changes to avoid employees forfeiting remaining Health FSA and DCAP balances.

While employees with pending balances will be anxious to hear whether their employers intend to roll out this relief, plan amendments are not required for quite some time, so there is no need to push through a last-minute amendment before end of year.

Health FSAs

As many companies are well aware, some employees had a difficult time spending their full FSA balances in 2020. The key issue has been that certain non-urgent procedures that an employee may have planned for in 2020 were delayed due to COVID-19, leaving the employee with a sometimes sizeable FSA balance.

Under normal circumstances, an employer’s options are quite limited when it comes to an employee’s end-of-year FSA balance. However, the current stimulus offers some additional options that may come as a relief to many employees.

Under the new package, employees are still prohibited from cashing out their remaining account balance or making a retroactive election change. However, the bill allows amounts remaining as of December 31, 2020, to be spent in 2021 and 2022. This additional time to spend can be accomplished through a plan amendment that adjusts the plan’s carryover or grace period language.

Participants will also have more flexibility in 2021 to make election changes, as prospective changes will be allowed even where a participant does not have a “change of status” as defined by the regulations.

DCAPs

As with Health FSAs, many plan participants reached the end of the year with dependent-care balances because their children were not in daycare for much of the year and largely did not attend summer camps. The new bill allows employees with unused balances for the 2020 plan year to claim reimbursements for the 2021 plan year. In addition, the maximum age for reimbursements related to child care was increased from 12 years old to 13 years old for dependents who aged out during the last plan year. Additional flexibility is also available to make prospective election changes throughout the year.

Conclusion

As noted above, each of these plan changes is optional. In addition, while the treatment of funds can now be changed to allow employees to avoid a forfeiture on December 31, 2020, formal plan amendments are not required for quite some time.

If you are interested in discussing plan amendment options or any participant communication you may wish to send before year-end, contact Iris Tilley at 503-276-2155 or at itilley@barran.com.

Click to access a PDF of this Electronic Alert.

Jeffrey G. Robertson 12/22/20 Jeffrey G. Robertson 12/22/20

12/22/20: This is Just in! - FFCRA Leave to be Voluntary in 2021

December 22, 2020

By Amy Angel

Congress has just approved a $900 billion stimulus package as part of a 5,593-page bill which is awaiting the President’s signature. With that many pages, there are sure to be a few surprises in store for us, but here is what we know about FFCRA so far.

The new bill supports paid sick leave for certain COVID-related reasons, but not in the same way it did in 2020. Mandated FFCRA leave still ends on December 31, 2020. After December 31, 2020, employers are not required to provide paid FFCRA leave to employees. However, employers who do provide employees with paid sick leave for COVID-related reasons may still claim the FFCRA tax credit through March 31, 2021.

Even if you voluntarily continue to offer FFCRA leave, employees may have already exhausted that leave. If an employee used the 80 hours of Emergency Paid Sick Leave (“EPSL”) earlier this year, there will not be a new EPSL allocation come January 1, 2021. Employers will not be allowed the EPSL tax credit if an employee has already taken the maximum EPSL leave allowable under FFCRA. More complicated is Expanded FMLA (“EFMLA”) leave. If under your policy, the 12-month FMLA period resets on January 1, it appears that an employee could be eligible for paid EFMLA again. While we expect more guidance on this issue from the Department of Labor and/or the Internal Revenue Service, for now it appears that the employer could potentially qualify for tax credits for additional paid EFMLA leave to an employee who exhausted EMFLA in 2020 if the leave year restarted.

The Takeaway:

FFRCA is still in full effect until December 31, 2020.
The new stimulus bill allows employers to claim tax credits for paid leave until March 31, 2021.
1. While details are still a bit fuzzy, for now we assume the leave may be taken for the same qualifying reasons as leave under FFCRA and that the same caps apply.
2. It is unclear whether the leave bank resets for EFMLA if employees are in a new FMLA leave year.

Remember also that FFCRA was not the only source of monetary relief for employees missing work for COVID-19-related reasons. States have their own paid sick leave laws and federal contractors must offer paid sick leave under Executive Order 13706. Oregon also offers additional help for employees who do not have other employer-provided paid time off through its COVID-19 Temporary Paid Leave. Depending on the circumstances, employees off work for COVID-19-related reasons may also be eligible for unemployment or workers’ compensation benefits. Finally, although not a paid benefit, employees eligible for OFLA may have leave available to them if they are suffering from their own serious health condition, are caring for a family member with a serious health condition, or if the employee is caring for their child whose school or place of care is closed due to the statewide health emergency.

For questions about FFCRA, tax credits for paid leave related to COVID-19, or applying other leave laws to a COVID-19-related absence, contact Amy Angel at 503-228-0500 or aangel@barran.com.

Click to access a PDF of this Electronic Alert.

Jeffrey G. Robertson 12/18/20 Jeffrey G. Robertson 12/18/20

12/18/20: December 21: Employee Information & Training Deadline

December 18, 2020

By Natalie Pattison & Andrew Schpak

As a reminder, Oregon OSHA recently published extensive temporary rules related to COVID-19 that apply to almost all Oregon workplaces. These temporary rules include training requirements.

Specifically, employers must provide information and training regarding COVID-19 to employees in a manner understood by employees. In addition, employees must be afforded the opportunity to provide feedback regarding the information and training. The specific topics that must be covered can be found here. OR OSHA also released COVID-19 training modules designed to help employers meet four (4) of the ten (10) employee training requirements, and those can be found here.

Most employers should have the information and training requirements completed by the regulatory deadline on Monday, December 21, 2020. However, OR OSHA recently released an enforcement memo containing the following exceptions to this deadline:

OR OSHA announced an extension for employers affected by the recent statewide freeze and newly adopted risk levels who have therefore experienced significant modifications to their immediate business activities. Those businesses will not be cited for violations of the training provisions of the rule that occur before January 11, 2021.
For all other business, OR OSHA will not enforce compliance issues with regard to the information and training requirements until December 28, so long as the employer acknowledges it is actively working towards meeting the requirements.

It is important that employers stay up-to-date with the many deadlines imposed by OR OSHA’s new rules. Details regarding these and other upcoming employer requirements are outlined in Barran Liebman’s previous E-Alert (originally published November 9, 2020).

For any questions relating to navigating COVID-19 in the workplace, contact Natalie Pattison or Andrew Schpak at 503-228-0500, or at npattison@barran.com or aschpak@barran.com.

Click to access a PDF of this Electronic Alert.

Jeffrey G. Robertson 12/17/20 Jeffrey G. Robertson 12/17/20

12/17/20: EEOC Issues Guidance on COVID-19 Vaccinations

December 17, 2020

By Amy Angel & Natalie Pattison

The Equal Employment Opportunity Commission (EEOC), as anticipated, is permitting mandatory COVID-19 vaccinations, with some exceptions.

The EEOC released guidance answering important questions on how COVID-19 vaccinations interact with the legal requirements of the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA).

Here are the main takeaways:

Medical Examinations & Disability-Related Inquiries

The COVID-19 vaccine is not a medical examination. Neither is asking an employee for proof of vaccination. This means employers are free to require and administer the vaccine without having to meet ADA standards for medical examinations.

However, pre-screening vaccination questions may be subject to the ADA restrictions for disability-related inquires. The EEOC emphasized the distinction between situations where an employer-required vaccine is administered by the employer (or a third party with whom the employer contracts to administer a vaccine), and situations where an employee voluntarily receives the vaccine or receives an employer-mandated vaccine from an unrelated third party, such as a pharmacy or other health care provider.

If an employer requires and administers a COVID-19 vaccine, any pre-screening vaccination questions likely to elicit information about a disability must comply with the ADA requirement that such questions be job-related and consistent with business necessity. To satisfy this requirement, an employer needs to have “a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.” In contrast, this requirement does not apply to disability-related screening questions that are asked by either (1) an employer who offers the vaccine on a voluntary basis, or (2) by a third party (that does not have a contract with the employer), such as a pharmacy or other health care provider.

Employers that do not administer the vaccine are allowed to ask employees for proof of vaccination—it is not a medical examination or disability-related inquiry under the ADA. However, if the manner in which an employer requests proof may elicit information about a disability, it will be subject to the ADA standard for disability-related inquiries. The EEOC encouraged employers to expressly warn employees not to provide any medical information with proof of receipt of a COVID-19 vaccination. To avoid implicating the ADA, employers should essentially ask for a “yes” or “no” with respect to proof of vaccination and not why an employee has not received the vaccine to avoid gathering any medical-related information.

ADA & Title VII Accommodations

The EEOC affirmed that employers must provide reasonable accommodations for employees with an ADA-covered disability or sincerely held religious belief that prevents them from receiving a vaccine. However, employers are not required to provide a disability accommodation that would pose a direct threat to the health or safety of other employees. If an employee’s ADA-covered disability prevents them from receiving a vaccine, the employer must show that an unvaccinated employee would pose a direct threat to other workers and the threat cannot be eliminated or reduced by reasonable accommodation. Even if an accommodation cannot eliminate or reduce an unvaccinated employee from presenting a direct threat to the workplace, the employee may be entitled to other reasonable accommodations such as remote work.

Likewise, employers do not have to provide a religious accommodation if it would pose an “undue hardship,” which is defined under Title VII as having more than de minimis cost or burden on the employer. (Note that the standard for “undue hardship” is different for religious accommodations than for disability accommodations.) The EEOC encouraged employers to assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. But, employers are justified in requesting additional information if the employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance.

The EEOC also noted that administering a COVID-19 vaccine does not violate Title II of the Genetic Information Nondiscrimination Act (GINA), but pre-screening questions that ask about genetic information may violate GINA.

For any questions relating to navigating COVID-19 in the workplace, contact Amy Angel or Natalie Pattison at 503-228-0500, or at aangel@barran.com or npattison@barran.com.

Click to access a PDF of this Electronic Alert.

Jeffrey G. Robertson 12/16/20 Jeffrey G. Robertson 12/16/20

12/16/20: No Harm, No Foul? Not for Employers Subcontracting Union Work

December 16, 2020

By Natalie Pattison & Nicole Elgin

A recent appellate court decision serves as an important reminder for employers when subcontracting union work: the duty to bargain is not contingent on reduced hours for union employees. In the case of Bob’s Tire Co., Inc. v. NLRB, the D.C. Circuit Court ruled the employer violated federal labor law by failing to bargain before subcontracting work, even when the subcontracting did not result in employee layoffs.

Subcontracting is the practice of using non-bargaining unit employees to perform work traditionally performed by bargaining unit employees. As a general rule, an employer has a duty to bargain with the union before subcontracting; however, there is an exception when the subcontracting would only indirectly impact employment security.

In this case, the employer argued the bargaining unit employees were not harmed by its subcontracting decision because no bargaining unit employees were laid off or replaced. The Court rejected the employer’s argument and held that a union is adversely affected whenever its work is given away to non-bargaining unit employees. Even without layoffs, the union still “had an interest in understanding, discussing, and possibly objecting to the use of non-unit employees,” the Court said. The Court further held that subcontracting out work to non-bargaining unit employees deprived bargaining unit members the opportunity to potentially obtain extra shifts, work overtime, or expand the bargaining unit.

This case means an employer cannot avoid the obligation to bargain over subcontracting just because there are no layoffs due to the subcontracting, unless there is clear contract language to support such a decision. Before making decisions about subcontracting, including entering into service agreements with a staffing agency, employers should carefully consider the indirect impacts on the bargaining unit. Keep in mind that if an employer is found to have violated the NLRA by its subcontracting, the employer may also be required to pay backpay.

If you have questions about subcontracting or how to negotiate subcontracting provisions into your union contract, contact Nicole Elgin at nelgin@barran.com or Natalie Pattison at npattison@barran.com.

Click to access a PDF of this Electronic Alert.

Jeffrey G. Robertson 12/14/20 Jeffrey G. Robertson 12/14/20

12/14/20: Can Employers Require Workers to Get a COVID-19 Vaccine?

December 14, 2020

By Natalie Pattison & Chris Morgan

For most employers, the answer is yes.

In general, employers can require vaccinations that are job-related and consistent with business necessity or justified by a direct threat. However, employers must make exceptions to accommodate (1) an employee’s ADA-covered disability, and (2) an employee’s sincerely held religious belief under Title VII.

Exemptions Under the Americans with Disability Act (ADA):
Employers generally must provide reasonable accommodations to an employee with an ADA-covered disability that prevents them from receiving a vaccine. To trigger ADA protections, an employee must notify their employer of their ADA-covered disability and request a workplace accommodation. The ADA requires employers to provide reasonable accommodations to persons with disabilities unless doing so would impose an “undue hardship” or pose a “direct threat” to the safety of the employee or others. Employers should engage in the interactive process with an ADA-covered employee to determine whether a vaccination exemption would qualify as a reasonable accommodation under the circumstances.

Exemption for Sincerely Held Religious Beliefs Under Title VII of the Civil Rights Act of 1964 (Title VII):
Employers must also provide accommodations for an employee with a sincerely held religious belief, practice, or observance that prevents them from taking a vaccine. To trigger Title VII protections, an employee must notify their employer that a sincerely held religious belief conflicts with a job requirement, such as a mandatory vaccination. An employer may deny the accommodation request if it would impose an undue hardship on the employer. In this context, the EEOC defines undue hardship as “more than a minimal burden on [the] operation of the business.”

Other Considerations:
As the legal landscape with respect to COVID-19 vaccines develops, employers should exercise caution when navigating these issues. Note, some healthcare employers in Oregon may be prohibited from requiring their employees to get vaccinated. Additionally, employers with unionized and nonunionized workforces should consider implications of the National Labor Relations Act (NLRA) on mandatory vaccination polices.

Formal, definitive guidance on COVID-19 vaccinations should be forthcoming in the next several weeks from federal agencies such as the Equal Employment Opportunity Commission.

As this area of the law develops, we encourage employers to consult with counsel when making decisions about these difficult issues.

For any questions relating to navigating COVID-19 in the workplace, contact Chris Morgan or Natalie Pattison at 503-228-0500, or at cmorgan@barran.com or npattison@barran.com.

Click to access a PDF of this Electronic Alert.

Jeffrey G. Robertson 12/3/20 Jeffrey G. Robertson 12/3/20

12/3/20: December 7: Exposure Risk Assessments & Infection Control Plans Must Be Completed

December 3, 2020

By Andrew Schpak

As a reminder, Oregon OSHA recently published extensive temporary rules regarding COVID-19 workplace exposure that implicate all workplaces in Oregon. Employers should have the following forms and plans completed by Monday, December 7:

COVID-19 Exposure Risk Assessment
Infection Control Plan

Employers with more than 10 employees must document their Exposure Risk Assessment(s) and Infection Control Plan(s) in writing, and ensure that a copy of any Infection Control Plan is accessible to employees at their workplace.

Model forms and plans are provided by Oregon OSHA here.

It is important that employers stay up-to-date with the many deadlines imposed by Oregon OSHA’s new rules. Details regarding these and other upcoming employer requirements are outlined in Barran Liebman’s prior Oregon OSHA E-Alert (originally published November 9, 2020).

For questions about Oregon OSHA’s new COVID-19 rules or for any other questions relating to navigating COVID-19 in the workplace, contact Andrew Schpak at 503-228-0500 or aschpak@barran.com.

Click to access a PDF of this Electronic Alert.

Jeffrey G. Robertson 11/24/20 Jeffrey G. Robertson 11/24/20

11/24/20: Does the State’s Travel Advisory Mean That My Employees Have to Quarantine for Two Weeks if They Travel for the Thanksgiving Holiday?

November 24, 2020

By Chris Morgan

The short answer is no.

On November 13, 2020, Oregon Governor Kate Brown, California Governor Gavin Newsom, and Washington Governor Jay Inslee issued travel advisories urging against non-essential out-of-state travel, and asking people to self-quarantine for 14 days after arriving from another state or country. Here in Oregon, despite urging residents to stay local, the states’ travel advisories are just that – advisory. Although employers may choose to implement an internal policy requiring self-isolation before employees physically return to work, they are not required to do so.

A couple of additional reminders:

If remote work is an available option, employers should continue to allow employees to work remotely until further notice.
There may be independent reasons which require an employee returning from travel to self-isolate. For example, the Temporary Oregon OSHA rule that went into effect last Monday, November 16, mandates “medical removal.” This means that an employer must direct a worker to self-isolate whenever the Oregon Health Authority (OHA) or other local public health agency recommends that a worker quarantine or isolate, e.g. due to an exposure identified through contact tracing. During this medical removal quarantine, the employer must allow the employee to work from home if suitable work is available and the employee’s condition does not prevent it. Additionally, the employer cannot fill that position with another employee and thereby make it unavailable to the affected employee, who is entitled to return to their previous job duties following their quarantine.
If an employee has returned from travel and has been advised by a medical provider to self-quarantine, they may be eligible for up to 80 hours of paid leave under the Families First Coronavirus Response Act (“FFCRA”) if they have not exhausted available leave under the FFCRA already.

For answers to additional COVID-19-related questions, contact Barran Liebman attorney Chris Morgan at 503-228-0500 or cmorgan@barran.com.

Click to access a PDF of this Electronic Alert.

Jeffrey G. Robertson 11/19/20 Jeffrey G. Robertson 11/19/20

11/19/20: November 23: Building Operators Must Meet Additional COVID-19 Cleaning & Mask Signage Requirements

November 19, 2020

By Andrew Schpak

Starting Monday, November 23, employers who are also building operators must implement regular cleaning or sanitization of common areas based on the following frequencies:

At least once every 24 hours if the building is occupied less than 12 hours a day; or
At least once every 8 hours while the building is in use, if the building is occupied more than 12 hours a day

Common areas include: building lobbies, reception areas, waiting rooms, restrooms, break rooms, eating areas, smoking areas, locker rooms, bathing areas, transit lounges, conference rooms, or any other location indoors or outdoors under the employer’s control where multiple individuals may use or congregate. A common area that is closed to use due to COVID-19 does not need to be routinely cleaned.

Additionally, the Oregon Health Authority’s “Masks Required” sign should be posted in common areas where masks, face coverings, or face shields are required. This sign can be found here.

It is important that employers stay up-to-date with the many deadlines imposed by Oregon OSHA’s new rules. Details regarding other upcoming employer requirements are outlined in Barran Liebman’s previous Oregon OSHA E-Alert.

For questions about Oregon OSHA’s new COVID-19 rules or for any other questions relating to navigating COVID-19 in the workplace, contact Andrew Schpak at 503-228-0500 or aschpak@barran.com.

Click to access a PDF of this Electronic Alert.

Jeffrey G. Robertson 11/13/20 Jeffrey G. Robertson 11/13/20

11/13/20: November 16: New Oregon OSHA Provisions & Poster Requirement Go into Effect

November 13, 2020

By Andrew Schpak

As a reminder, Oregon OSHA recently published extensive temporary rules regarding COVID-19 workplace exposure that implicate all workplaces in Oregon. The following provisions go live Monday, November 16 for all workplaces:

Physical distancing
Mask, face covering, or face shield requirements
Cleaning and sanitation efforts
Developing a COVID-19 infection notification protocol – a model policy released by Oregon OSHA can be found here.
Posting Oregon OSHA’s “COVID-19 Hazard Poster”

It is important that employers stay up-to-date with the many deadlines imposed by Oregon OSHA’s new rules. Details regarding these and other upcoming employer requirements are outlined in Barran Liebman’s prior Oregon OSHA E-Alert (originally published November 9, 2020).

For questions about Oregon OSHA’s new COVID-19 rules or for any other questions relating to navigating COVID-19 in the workplace, contact Andrew Schpak at 503-228-0500 or aschpak@barran.com.

Click to access a PDF of this Electronic Alert.

Jeffrey G. Robertson 11/9/20 Jeffrey G. Robertson 11/9/20

11/9/20: Oregon OSHA Releases New Temporary COVID-19 Rules Implicating Almost Every Oregon Employer

November 9, 2020

By Andrew Schpak

Oregon OSHA has adopted temporary rules related to COVID-19 that will go into effect on November 16, 2020. While many general requirements will affect employers on the date the rules go live, there are also specific deadlines implicating many employers later in November and December of this year.

General Requirements in Effect November 16, 2020

1. Physical Distancing in the Workplace

Employers must ensure 6 feet of physical distances between all individuals in the workplace unless the employer determines and can demonstrate that 6 feet of separation is not feasible for certain activities. This requirement applies to both indoor and outdoor worksites.

Where social distancing is not feasible, employers must ensure all workers utilize a mask, face shield, or face covering.

2. Masks, Face Shields, & Face Coverings

Employers must ensure that all individuals at the workplace or employer’s premises – including employees, part-time workers, customers, vendors, patrons, and contractors – who are not actively eating, drinking, or smoking are wearing a mask, face shield, or covering. These requirements are subject to the Oregon Health Authority’s Statewide Mask, Face Covering, Face Shield Guidance.

Masks, face coverings or face shields are strongly recommended in all indoor work spaces, but not required when at or in a location where the employee, contractor, or volunteer has a job that does not require interacting with the public or with other employees (such as a large warehouse), and where at least 6 feet of distance can be maintained between other people. When 6 feet of distance cannot be maintained, such as in a restroom or break room, masks, face coverings, or face shields are required.

Masks, face coverings, or face shields are not required when individuals are stationed at a “private, individual workspace not shared with other people.” It is unclear at this time whether open air cubicles that separate employees by a partial barrier are excluded from the mask requirements.

Additionally, employers are required to provide access to a mask, face shield, or face covering at no cost to employees. Employers may allow employees to wear their own mask, face shield, or face covering, and must allow employees to wear a covering even when a covering is not required.

3. COVID-19 Infection Notification Process

Employers must establish a process to notify exposed employees of a work-related contact with an individual who has tested positive for COVID-19. They also must notify affected employees (those who worked in the same facility or in the same well-defined portion of the facility, such as a particular floor) that an individual who was present in the facility has confirmed COVID-19.

The process must include a mechanism for notifying affected employers within 24 hours of the employer being made aware of a positive COVID-19 test result of an employee who was in the workplace or had work-related contact with workers.

Employers should consider outlining this process in writing and sharing it with employees as part of their Infection Control Plan outlined below.

4. Medical Removal of Employees

If the Oregon Health Authority (OHA), a local public health agency, or a medical provider recommends an employee be restricted from the workplace due to quarantine or isolation for COVID-19, the affected worker must be directed to isolate at home and away from other non-quarantined individuals. Employees who are identified through public health contact tracing and needing to quarantine or isolate fall into this category. Isolation or quarantine must continue until the employee is released by their medical provider or an appointed public health authority determines the employee may return to work.

During an employee’s isolation, an employer must allow the affected employee to work from home if suitable work is available and the employee’s condition does not prevent working. The employee is also entitled to return to their previous job duties, if still available, without any adverse action.

Employers are not required to retain an employee’s job if the job would have become unavailable regardless of the employee’s quarantine or isolation (such as through layoff or downsizing). Employers may not, however, make a quarantining or isolating employee’s job unavailable by filling the job with another employee.

5. Workplace Cleaning Requirements

Employers must regularly clean common areas, shared equipment, and high-touch areas at least once every 24 hours if the workplace is occupied fewer than 12 hours during a day or at least once every 8 hours while in use, if the workplace is occupied more than 12 hours a day.

However, locations with only “drop-in” availability or minimal staffing are permitted to rely upon a regular schedule of cleaning and sanitation and directing employees to sanitize their own work surfaces before use.

6. Poster Requirement

The “COVID-19 Hazards Poster” must be permanently posted in a central location where workers are expected to see it. An electronic copy of the poster should be provided to employees working remotely. Copies of the posters are available in English here and Spanish here.

Deadline Specific Requirements

1. COVID-19 Exposure Risk Assessment – December 7, 2020 Deadline

By December 7, 2020, all employers must conduct a “COVID-19 exposure risk assessment.” This assessment does not take into account the use of personal protective equipment or face coverings, such as masks and face shields.

The assessment requires feedback and participation by employees. This can be accomplished through an interactive process with employees, such as a safety meeting, safety committee, union involvement, etc.

After feedback is gathered from employees, employers with more than 10 Oregon employees (including temporary or part-time workers) or employers with “an exceptional risk workplace” must document in writing their COVID-19 risk assessment, which must include the following:

The name(s), job title(s), and contact information of the person(s) who performed the exposure risk assessment;
The date the exposure risk assessment was completed;
The employee job classifications that were evaluated; and
A summary of the employer’s answers to 13 specific exposure risk assessment questions, which can be found here.

It is advisable to put the assessment in writing regardless of employer size so that, should an employer receive a safety complaint or concern, the memorialized written assessment can be shared with Oregon OSHA or any investigating agency to demonstrate the employer’s compliance.

2. Infection Control Plan – December 7, 2020 Deadline

All employers are required to establish and implement an “infection control plan” specific to the “type of work performed by employees” by December 7, 2020. The plan must be tailored on a “facility-by-facility basis.” If an employer has multiple facilities that are substantially similar, its infection control plan may be developed by facility type rather than site-by-site so long as any site-specific information that affects employee exposure risk to COVID-19 is included in the plan.

Again, employers with more than 10 employees must document this plan in writing and provide employees at the worksite with access to the plan. The plan must contain six elements outlined here.

3. Ventilation Requirements – January 6, 2021 Deadline

No later than January 6, 2021, employers must maximize the amount of outside air circulation through their existing HVAC system when employees are present in the workplace. This includes replacing air filters as needed and ensuring HVAC intake ports are clean and functioning properly. Employers are not required to purchase new HVAC systems or retrofit existing systems.

While there is no written condition for this requirement, employers should memorialize in writing what steps were taken to comply by the deadline in case of agency scrutiny.

4. Employee Information and Training – December 21, 2020 Deadline

Employers must provide information and training regarding COVID-19 to employees in a manner understood by affected workers. Employees must be afforded the opportunity to provide feedback regarding the information and training. The specific topics that must be covered can be found here.

Employers should take an organized approach in meeting these requirements by the associated deadlines. Oregon OSHA has indicated it will release templates and training materials in the coming weeks to aid employers with compliance. While these resources will be informative, every organization is unique. There is no one-size-fits all solution to the Exposure Risk Assessment or Infection Control Plan requirements. Employers with multiple worksites or complex work environments are encouraged to consult legal counsel as needed for drafting and compliance.

For questions about OSHA’s new COVID-19 rules or for any other questions relating to navigating COVID-19 in the workplace, contact Andrew Schpak at 503-228-0500 or aschpak@barran.com.

Click to access a PDF of this Electronic Alert.