Gov. Brown Aims for June Reopening, New Mask Guidelines Released

OBI continues to talk with Gov. Kate Brown about the challenges Oregon businesses are facing with the new requirement that they must ask customers, employees and members of the public to show a vaccine card before allowing them to go without a face mask.   The requirements were announced last week, when the Oregon Health Authority established updated mask guidance for Oregon businesses, in line with the CDC’s announcement that fully vaccinated Americans are now able to be indoors and outdoors – with certain exceptions – without a mask. You can find the new OHA guidance here.   Shortly after the OHA guidance came out, the Oregon Occupational Safety and Health Administration (Oregon OSHA), released a statement laying out how the new guidance will impact workplace rules. Read the OSHA statement here.   The rules specify that Oregon business owners will need to establish a vaccine verification process for any customer or employee that wishes to remove their mask, and the process relies on the individual producing a vaccine card. OBI is raising concerns about the practicality of this requirement. Oregon appears to be the only state in the nation requiring proof of vaccination to this extent.   Late last week, Washington Gov. Jay Inslee announced his mask guidance for vaccinated individuals, essentially setting an honor system instead of rigid verification rules.  We are urging the governor to consider a process more like what Washington is requiring. Regardless of vaccination status, Americans still need to wear masks when traveling on public transportation, visiting hospitals, nursing homes and long-term care facilities, prisons, and other higher risk places. Be sure to join OBI and law firm Stoel Rives on May 26 at noon for a webinar that will dive into what employers need to consider as mandates are lifted. Register now.

Employment Department Proposes Delay in Paid Family and Medical Leave Program; Other Employment Bills We’re Watching

HB 3398, introduced this month at the request of the Oregon Employment Department, would delay the start date of the new Paid Family and Medical Leave Insurance (PFMLI) program by one year. The department said they needed the additional time because of the challenges in implementing a complex new program during a pandemic. The program had been set to take effect Jan. 1, 2022. OBI supports the bill, arguing that it is important that the complex new PFML program be implemented correctly. OBI played a key role in negotiating the program during the 2019 session, and legislators understood that the aggressive timeline originally set up for the program may need to be amended. We expect them to approach this bill with that in mind. The new leave program will be funded by both an employer-paid and an employee-paid payroll tax. If the bill passes, the program will begin collecting tax payments on Jan. 1, 2023 and start using the program on Sept. 3, 2023. OBI is also heavily engaged in a number of other important employment-related bills that will have impacts on businesses throughout Oregon. You can find a full bill report and summaries on our website, which is updated weekly, but here are a few of note: SB 483, creating a presumption of retaliation if workers have filed safety complaints, is scheduled for a committee vote on May 25. OBI continues to urge legislators to adopt an amendment which would address the issue of anonymous OSHA complaints before the presumption would apply. This would require an employee to prove that the employer knew the employee had filed a complaint before retaliation is presumed. HB 3389, providing unemployment insurance fixes to provide relief to employers, passed unanimously out of Senate Labor and Business last week. It now heads to Ways & Means, where we hope it will advance quickly. The bill makes significant improvements in how our system is funded and provides crucial relief to the hardest-hit employers. It also provides that no employer’s experience rating will be impacted by COVID claims by returning them to pre-2020 experience rates.  HB 2818, which allows for final wage claims to be paid directly by BOLI out of the Wage Security Fund if employers have not paid them, is scheduled for a work session on May 25. This bill has a broad relating clause, and two other amendments were proposed when it was last heard on April 29. Sen. Johnson’s amendment seeks to clarify penalties for meal period violations and creates a de minimis exception if employees return five or fewer minutes early. OBI supports this amendment. Sen. Taylor’s amendment, drafted at the request of OBI and the Northwest Grocers’ Association, clarifies that vaccine incentives are not compensation under the Pay Equity law. A new amendment by Sen. Hansell has been proposed to amend the Pay Equity law to exempt hiring and retention bonuses for a limited duration from May 2021 to March 2022. At this point, it is unclear if the committee will adopt all three amendments. Be sure to visit our website or sign up for our weekly Business Bulletin newsletter to stay updated on these and other important bills. The legislative session will adjourn on or before June 27, 2021.

OSHA Makes COVID Workplace Rule Permanent

On May 4, the Oregon Occupational Health & Safety Administration (OSHA) filed permanent workplace rules related to COVID. OSHA had previously adopted temporary rules on Nov. 6, 2020 and they were set to expire. OBI has been heavily engaged in the rulemaking process on our members’ behalf, and has encouraged OSHA to consider the availability of COVID vaccines and other factors as Oregon businesses look ahead to a post-pandemic reality. Read the full rules here and refer to the above article for new guidance on masks.   Our number one concern has always been public safety, and we have worked hard throughout the pandemic to ensure new state regulations in workplaces were fair and implementable. Below is our summary of some clarifications and new provisions in the rules that differ from the temporary rules. While most of the rules went into effect May 4, some of these new provisions will be delayed until June. OSHA has indicated the rules will be repealed when the COVID pandemic is no longer a threat to public health. Provides that rules will be regularly reviewed and reevaluated to determine if rules are still needed or enforcement guidance will be needed as conditions approve. First review is scheduled for this July. Clarifies that if an employer already conducted a risk assessment and completed an infection control plan under the temporary rules, they do not need to do so again under the permanent rules. Updates the cleaning and sanitization requirements to be consistent with new CDC guidance that such cleaning need only be done once a day. This is particularly helpful for businesses that run 24-hour operations. Directs employers to minimize employees traveling together in vehicles, where practical. Where not practical, employees must wear face coverings and outside air flow in vehicles should be optimized. Employers with 10 or more employees must attest that HVAC systems are functioning consistent with rule requirements. When employees must be absent from the workplace to quarantine because of an exposure, employers must notify them of their rights to return and any paid leave benefits provided by the employer. Note: under new guidance from OHA individuals who are fully vaccinated and asymptomatic do not have to quarantine after an exposure.   If you have any questions about the rules or how they might impact your workplace, feel free to send us an email.

Job Search Requirements for Unemployment Benefits to Resume

Acting Employment Department Director David Gerstenfeld announced last week that Oregonians applying for continued unemployment benefits would soon need to prove they are searching for work.   Amid the COVID pandemic and massive layoffs last year, Congress had provided a waiver to states to allow benefits to go out without proof of job search. Oregon joins several other states now in starting to enforce the job search requirement, to get more workers back on the job.   Gerstenfeld said the job search requirement will take effect July 31.   You can read more about this in The Oregonian.

Model COBRA Premium Assistance Notices Now Available

Heidi Mason, Innova Legal Advisors Heidi is contributing this column for the newsletter as part of Innoval Legal Advisors partnership with OBI through the LegalPlus Program.

The new American Rescue Plan Act (ARPA) provides for a 100% COBRA premium subsidy for up to six months to employees and their beneficiaries who lose group health coverage because of layoff, discharge, or any other involuntary separation or reduction of hours, if they elect continuation coverage through COBRA (Assistance Eligible Individuals). Assistance Eligible Individuals do not have to pay any of the COBRA premium for the period of coverage from April 1, 2021 through Sept. 30, 2021. Instead, the premium is reimbursed directly to the employer, plan administrator, or insurance company through a COBRA premium assistance tax credit. Employees who quit or whose employment is terminated for gross misconduct are not eligible for this assistance. Employers have three new notification obligations under this new law: Loss of group health coverage on or after April 1, 2021: Provide a general notice to Assistance Eligible Individuals of their ARPA rights within 14 days of the employee’s layoff, discharge, or involuntary separation or reduction of hours. Loss of group health coverage after Oct. 1, 2019 and before April 1, 2021: Provide an extended COBRA election period notice to Assistance Eligible Individuals who did not elect COBRA continuation coverage when it was first offered, or who elected but are no longer enrolled. This notice informs Assistance Eligible Individuals of their right to elect COBRA continuation coverage beginning on or after April 1, 2021 and receive premium assistance. This notice must be sent on or before May 31, 2021. Expiration of premium assistance: Between 15-45 days before an Assistance Eligible Individual’s premium assistance expires, provide a notice explaining that premium assistance will expire soon, the date of expiration, and that the individual may be eligible to continue coverage under COBRA without premium assistance. Model notices and FAQs are now available on the U.S. Department of Labor’s website at https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/cobra/premium-subsidy.

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.

Staff Spotlight: Paloma Sparks

Paloma Sparks is OBI’s vice president of government affairs, which means she is your go-to person on all things political and policy related. An attorney herself, Paloma is known throughout Oregon as one of the top employment law experts. Her advocacy work for OBI centers around employment policy, campaign finance, general business legislation and other important areas.   Paloma brings more than 15 years of experience working with the Oregon Legislature, most recently as the director of government affairs and general counsel for Oregon Resource Association. Previously, she was the legislative director for the Bureau of Labor and Industries. Paloma attended the University of Oregon, where she earned a Bachelor of Arts in political science and a Juris Doctor.   Paloma staffs our Employment Policy Steering Committee, which makes decisions on how OBI responds to proposed legislation and directives from various state agencies. If you’re interested in participating on this committee, let us know.   Why is it important to advocate for fair employment policy? “Fair employment policies are those that presume that the vast majority of employers and employees are well-meaning,” Paloma said. “Too often, we see proposals from labor advocates that are premised on the idea that most employers are out to cheat their workers. Fair policy balances the interests of workers and employers. There are often different ways to do this – limiting liability, providing opportunities to cure, require employees to use existing policies, etc. “In recent years we have focused a lot of energy on building in extra lead time for implementation so that employers have plenty of time to get new requirements and training in place,” she continued. “Often, legislators forget that not every business has a large HR department so we educate them on the challenges of the ever-changing employment law landscape and the need to address the resources of both large and very small businesses.”

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