Federal OSHA Releases Rule Requiring Large Private Employers to Mandate Vaccines
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On Nov. 4 federal OSHA released the anticipated rule mandating vaccinations for all employees at private businesses with 100 or more employees. Under the federal rule employees will have until Jan. 4, 2022, to be vaccinated or begin weekly testing. Employers are required to provide paid time off for employees to get vaccinated and for any side effects. The rule also provides that employees who do not get vaccinated will have to be tested weekly. The federal policy is that employees may be required to pay for their own tests; however, the rule notes that state laws or other agreements (e.g., collective bargaining agreements) may take precedence.

As you may know, there are several legal challenges in federal court. On Nov. 6, the U.S. Court of Appeals (COA) for the Fifth District issued a stay of the federal OSHA mandate in response to a suit filed by several states challenging the constitutionality of the mandate, particularly the provision preempting some state prohibitions on vaccine mandates. On Nov. 12, the court issued a ruling allowing the stay to remain in place, finding that the federal rule may be an overreach and that the suit against the rule had merit. All of the legal challenges have been consolidated and assigned to the COA for the Sixth District and hopefully there will be clarity soon. At this point, Oregon OSHA has indicated they plan to move forward with development of the rule but not implementation of the rule.

Oregon is an approved state plan, so Oregon OSHA will have to adopt rules that are “at least as effective” as the federal rules. With the federal court ordered stay in place, Oregon OSHA will pause their movement toward implementation while they await a ruling from the Sixth District court. On Nov. 18, Oregon OSHA issued this statement on their website:

“On Nov. 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay federal OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard, published on Nov. 5, 2021 (ETS2). The court ordered that federal OSHA "take no steps to implement or enforce" the ETS "until further court order."

Oregon OSHA is continuing discussions with stakeholders, and at this point, we do not anticipate adopting a rule by Dec. 4, 2021. If the stay remains in place, our timelines will be adjusted accordingly. We will continue to monitor the lawsuit and evaluate our options.”
 
We will keep you updated as we learn more. In the meantime, visit the federal OSHA website for more information about the new rules, including policy templates (based on the federal rule) and some other resources for employers.
Paid Family Medical Leave Insurance Administrative Rules Filed
The Oregon Employment Department filed its first round of administrative rules for the Paid Family Medical Leave Insurance (PFMLI) program on Nov. 1. The 35 rules are broken into four different topics: PFMLI contributions, small employer assistance grants, self-employed individuals, and the program’s outreach plan. While each proposed rule provides important information, the rules for small employers and contribution rules have the potential to significantly impact many small businesses. In the rules, the division is proposing to count all employees – even those out of state – when determining the size of the employer. The proposal also intends to make obtaining an assistance grant extremely difficult and costly. OBI has told the division both in person and in writing that this is not consistent with legislative intent. We will continue to provide that feedback and will be submitting formal comments on the rules.

Written comments on the rules may be submitted by email to OED_Rules@employ.oregon.gov no later than Dec. 20 at 5pm. There will be two rulemaking hearings, one on Nov. 30 from 9-11am (register here) and one on Dec. 9 from 4-6pm (register here). OBI will engage in these hearings and continue to advocate for effective policies that do not place undue burden on employers.

The rules are expected to be finalized by Jan. 1, 2022 and in effect by Jan. 1, 2023 when the program begins. 
November Legislative Days
The Legislature held Legislative Days Nov. 15-17 where committees held hearings on a variety of issues, including many concepts that we saw in the 2021 Legislative Session and expect to see return in 2022 such as proposals related to overtime in agriculture, workers’ compensation, and expansion of retaliation laws. Because the September Legislative Days were cancelled due to the Redistricting Special Session taking longer than expected, many committees carried over agenda items from the postponed September hearings to the November hearings. OBI closely tracked a variety of hearings and concepts, particularly concepts related to employment issues.

Of note, we heard that AFL-CIO plans to bring forward a bill to amend the Workplace Fairness Act to prohibit nondisclosure agreements altogether rather than merely limiting the language of nondisclosure agreements when employees bring discrimination claims. The Oregon Trial Lawyers Association (OTLA) is bringing legislation targeted at workers’ compensation benefits. OBI and other stakeholders are working with OTLA to negotiate the proposal so that is workable for both employees and employers. We hope to reach an agreement before session begins. 
Register for the 2021 Oregon Business Plan Leadership Summit
Historic changes underway in global supply chains and markets have created a pivotal opportunity to grow manufacturing and jobs. That, in turn, calls for upgraded workforce education and support that's accessible to more Oregonians. Join the Oregon Business Plan {hyperlink} on December 6 from 8:30 a.m. to 1:30 p.m. to hear proposals to build on these opportunities. Tickets are limited, so be sure to register today to secure your seat for the 2021 Leadership Summit!
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