Gov. Brown Reinstates Mask Mandate Statewide; Vaccines Required for K-12 Staff, State Employees, and Healthcare Workers

Earlier today Gov. Kate Brown announced that she has directed all public K-12 teachers and staff to be fully vaccinated against COVID-19 by Oct. 18, or six weeks after full Federal Drug Administration approval, whichever is later. The announcement follows previous requirements that all executive branch employees and healthcare workers also be fully vaccinated against COVID-19, or face termination. OBI is hosting a webinar tomorrow, Friday, Aug. 20 at 11:30 with Oregon Health & Science University and the Oregon Association of Hospitals & Health Systems to brief our members on the Delta variant and what it means for our communities. Register now.   As of Aug. 13, a statewide mask mandate is now in effect for all indoor public settings, including businesses. OSHA published an official temporary rule as well as enforcement guidance, which can be found here. You can view the Oregon Health Authority rules here.   Here’s what Oregon businesses need to know. Employers are required to ensure that employees, contractors and volunteers wear face masks and make “reasonable efforts” to ensure that customers, guests, visitors and others comply with the requirement. Employers must post signs at every entrance informing individuals that face masks are required. OHA has produced a sign that employers may use, but you are permitted to use your own sign as long as it clearly states the requirements of the OHA rule.   In the enforcement memo OSHA describes what they will consider as evidence that an employer is making a “reasonable effort” to ensure customers, guests, visitors and others are complying if the employer: Ensures employees are wearing face coverings. If practical, provides a regular audio reminder using existing systems – for example, if a store traditionally makes announcements to customers over an audio system, the face mask requirement should also be provided. If a business does not traditionally have such a system or make announcements over a system, they are not required to do so. Does not actively contradict the rule requirements – such as posting signs that undercut the message that masks are required or that suggest the business disagrees with the requirement.   Some important modifications to the existing COVID rules: Physical distancing is no longer required outside of healthcare workplaces. Mask requirements will be back in effect after being repealed on June 30. Regular cleaning and sanitization requirements are not being enforced outside of healthcare workplaces.   OHA’s rule provides for a $500 per day per violation against individuals who violate the mask requirement and for businesses who fail to abide by the rules. OSHA also has penalty authority against employers and may assess penalties. However, OSHA will be enforcing on a complaint basis and has said they will give employers a grace period of two weeks to come into compliance before conducting inspections. OSHA’s penalty structure is based on the severity of the violation, the employer’s history of compliance and employer size.   OBI released the attached statement following the governor’s initial announcement.

OBI Defeats Several Costly Employment-related Bills in 2021 Legislative Session

After more than a year of ever-evolving COVID-19 restrictions, on top of substantial new employment laws enacted during the past few legislative sessions, OBI went into the 2021 legislative session on the defensive. No new, costly employment regulations. OBI tracked 113 employment bills and we led or were actively involved in discussions around nearly all of them. If you have questions or comments about employment legislation, email palomasparks@oregonbusinessindustry.com. HB 2205 would have duplicated California’s disaster of the Private Attorney General Act which allows employees, unions and attorneys to sue on behalf of employees for alleged violations of a variety of employment laws. OBI identified this bill as a top priority to defeat and we were successful in that goal. HB 2358 removed the overtime exemption for agricultural employees. We partnered with other business voices to note that this would result in fewer hours for workers and slower delivery of products to markets. HB 2489 would have essentially created a presumption that an individual performing services was an employee rather than an independent contractor. This concept is, in part, based on California’s approach to the issue of independent contractors vs. employees. HB 2974 is a concept we have seen several times, prohibiting employers from disciplining or terminating employees for testing positive for marijuana use. OBI has consistently opposed the legislation in part because testing technology is not yet available that distinguishes between an intoxicating effect of marijuana use. HB 3025 would have presumed that any employee who was regularly going to a workplace and contracted COVID-19 was exposed at the workplace and made it a compensable workplace injury. OBI and our partners opposed this concept and other workers’ compensation presumptions arguing that employees who were clearly exposed at work should be covered, but employees who were exposed outside of work were properly denied as a workers’ compensation injury. SB 13 would have prohibited noncompete agreements except to the extent that they were limited to protecting trade secrets; a covenant not to contact former customers or clients to provide similar products; or the protection of proprietary information. SB 477 would have removed nearly every burden of proof for employees who bring claims of discrimination. SB 802 created a 30-year retroactive COVID-19 presumption. This would have allowed employees to file claims under the presumption 30 years after the expiration of the Governor’s emergency orders. OBI also pushed for a handful of bills to pass, notably HB 3389 which alleviates the increase in unemployment insurance tax burden employers were facing to due COVID-19 layoffs, and HB 3398 which delays implementation of the Paid Family and Medical Leave Insurance program for one year. You can find the full 2021 Legislative Report here.

With Business Restrictions Eased, Jobless Claims Hit New Lows

While the mask mandate is back in effect statewide as of Aug. 13, businesses have been fully reopen – meaning no capacity limits, social distancing recommendations, etc. – since June 30. Oregonians are starting to find work again, and, according to state economists, the economy has added as many jobs in the past six months as it did in the year leading up to the pandemic. Now, the rate of jobless claims is the lowest it’s been since before COVID-19 struck in early 2020, sitting at less 4,200 claims at the end of July. The next state economic forecast is scheduled for Aug. 25. Read more from The Oregonian.

Guest Column: Understanding the New Heat and Smoke Rules

Ronald G. Guerra, Innova Legal Advisors Ron is contributing this column for the newsletter as part of Innoval Legal Advisors partnership with OBI through the LegalPlus Program.

After the beginning of the 2020 COVID-19 pandemic, everyone looked forward to a better 2021. Little did we know or envision that 2021 would bring even greater challenges for Oregon businesses, government, and the public. The COVID-19 vaccines brought hope that the nightmare of 2020 would abate. But mother nature is sometimes cruel and just kept piling on. The COVID delta variant began to proliferate, followed by record heat extremes and then out of control wildfires, with its air quality problems for all.   On July 7, 2021, OR-OSHA adopted an emergency rule to address and protect workers in the workplace against extreme heat. The new rule incorporated the heat index into the rule, which considers how humidity and air temperature affect the human body. The rule establishes threshold temperatures for safety in the workplace. Employers should carefully review the rule and seek resource help from OR OSHA. Click here for more information:   On Aug. 2, 2021, OR-OSHA adopted an emergency rule to protect against the hazards of wildfire smoke. The new rule uses an Air Quality index (“AQI”) for determining what measures an employer must follow. The threshold AQI is 101, which is unhealthy for sensitive groups. Some workplaces exempt from this rule include enclosed buildings where the air is filtered by a mechanical ventilation system and vehicles utilizing a cabin filter for air. Employers should carefully review the rule and seek resource help from OR OSHA. Click here for more information.   While all of this may seem very burdensome, it is likely that Oregon employers have been addressing these issues in the workplace for years. Much of the new rules are simply common-sense but still it is a good reminder that we are all in this together. Let’s keep everyone safe and productive.

For more information on LegalPlus, click here.   This article is provided for educational purposes only, does not constitute legal advice and does not create an attorney-client relationship. If you or your company would like to contribute content to OBI newsletters, please let us know by emailing communications@oregonbusinessindustry.com.

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