The Hazards of Remote Employee Layoffs: Wage and Hour Issues, Severance Agreements, and Unemployment Claims

Remote work has exploded since the COVID-19 pandemic began, with some employers hiring employees to work remotely anywhere in the United States. With the recent economic downturn, layoffs are beginning to occur, and for the first time a significant number of remote employees may be included in layoffs. Layoffs of remote employees present unique legal hazards for employers.

A Primer on Oregon’s Paid Family and Medical Leave Insurance Program

In 2019, the Oregon Legislative Assembly passed the Paid Family Medical Leave Act, which established a paid family and medical leave insurance (PFMLI) program for Oregon employees. On April 27, 2022, the Oregon Employment Department (OED) filed proposed administrative rules with the Oregon Office of the Secretary of State to detail the specifics of the program.

Oregon Governor Signs Bill on Incentives, Bonuses, and Equal Pay Act Requirements

Oregon employers may want to be aware that on March 7, 2022, Governor Kate Brown signed into law amendments to the state’s Equal Pay Act detailed in Senate Bill (SB) 1514. As a result, Oregon employers may offer vaccine incentives, hiring bonuses, and retention bonuses until 180 days after the expiration of the COVID-19 state of emergency without running afoul of the Equal Pay Act.

Oregon Legislation Addresses Workers’ Compensation and Overtime Issues for Agricultural and Manufacturing Employees

The primary employment-related bills passed in Oregon’s 2022 legislative session relate to pay equity and the Workplace Fairness Act. Oregon employers in particular sectors may also want to be aware of recently passed and pending legislation that addresses overtime eligibility for agricultural workers, notice of mandatory overtime shifts for manufacturing employees, and workers’ compensation retroactive benefits and overpayments.

Oregon Amends Workplace Fairness Act to Limit Confidentiality in Settlement of Discrimination and Harassment Claims

In 2019, Oregon Governor Kate Brown signed the Workplace Fairness Act (OWFA), which took full effect as of October 1, 2020. Among other things, the law prohibits employers from requiring employees to enter into agreements that would prevent them from disclosing conduct constituting discrimination and harassment (including sexual assault) prohibited under state law, or that would prevent them from seeking reemployment with the employer, except in narrow circumstances. In February 2022, both chambers of the Oregon legislature passed Senate Bill (SB) 1586, amending the OWFA.

Oregon Legislature Passes Equal Pay Act Amendments Extending Temporary Exclusion of Certain Incentive Payments

The Oregon Legislative Assembly recently passed Senate Bill (SB) 1514, extending the expiration date of temporary amendments to Oregon’s Equal Pay Act. The act prohibits employers from “discriminat[ing] between employees on the basis of a protected class in the payment of wages or other compensation for work of a comparable character,” unless the wage differential is based on certain bona fide factors.

Oregon OSHA to Promulgate Rules Addressing Employee Exposure to Wildfire Smoke

From 2020 through 2021, wildfires burned more than 1.5 million acres of land in Oregon. To put things in perspective, the area that burned was approximately seven times the size of New York City. Wildfire smoke can contain hazardous small particles that can penetrate deep into the lungs, causing a range of health problems. On September 11, 2020, wildfire smoke caused Portland’s air quality to rank worst among major cities across the world with an air quality index (AQI) of 349, a level that the U.S. Environmental Protection Agency characterizes as “hazardous.” Unsurprisingly, Oregon is taking measures to address the health risks associated with exposure to wildfire smoke, and the state is expected to soon join California in adopting related regulations.

Oregon OSHA Announces Stance on Federal Vaccine-or-Test Standard

On January 13, 2022, the Oregon Occupational Safety and Health Division (Oregon OSHA) announced that because the Supreme Court of the United States has stayed the federal Occupational Safety and Health Administration’s (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), it “will not move forward with adopting the same or similar standard in Oregon.”

 

Oregon OSHA Announces Schedule for Implementing COVID-19 Vaccine or Test Standard

Oregon operates a state plan that the U.S. Occupational Safety and Health Administration (OSHA) has approved that applies to both public and private employers. Accordingly, Oregon employers are subject to the state OSHA’s standards rather than the federal OSHA standards. Oregon OSHA may adopt an emergency temporary standard (ETS) related to COVID-19 that differs from the federal ETS, but Oregon OSHA’s ETS must be “as effective as” the federal ETS.

Minimum Wage Increases in 2022: A Chart of Upcoming Changes and Interactive Map

In 2022, while the federal minimum wage will remain at $7.25 per hour for non-tipped employees and $2.13 per hour for tipped employees, several states’ minimum wage rates will increase. The chart below lists the state (and certain major locality) minimum wage rate increases for 2022—and future years if available—along with the related changes in the maximum tip credit and minimum cash wage for tipped employees.

Oregon OSHA Anticipates Delay in Adopting COVID-19 Vaccine or Test Standard

When the U.S. Occupational Safety and Health Administration (OSHA) issued a new emergency temporary standard (ETS) on November 4, 2021, Oregon OSHA had only 30 days to adopt its own standards, until December 4, 2021. However, in light of a federal court order staying the federal ETS, Oregon OSHA recently updated its website to state that it does not anticipate adopting a rule by December 4, 2021, although it is “continuing discussions with stakeholders.”

Oregon Employee Leave Entitlements for Absences Due to Child’s COVID-19–Related Illness, School Closures, and Quarantine Orders

Under Oregon Governor Kate Brown’s Executive Order 21-15, the state of public health emergency due to COVID-19 will continue in Oregon until December 31, 2021, unless the governor extends the deadline or terminates the state of emergency before the end of the year. Now that school is back in session in Oregon and most schools and students are returning to in-person attendance, the potential exists for school closures and/or student quarantining due to exposures to COVID-19. Employers may want to refamiliarize themselves with leave entitlements that may be available to Oregon employees under the Oregon Sick Leave (OSL) law and/or the Oregon Family Leave Act (OFLA) in the event that the children of employees are subject to quarantine orders or required closures of their schools or places of care.

Oregon Enacts Temporary Rule Requiring Healthcare Worker Vaccinations or COVID-19 Testing

In recent weeks, Oregon has seen a sharp rise in the number of COVID-19 cases and hospitalizations due to the more contagious Delta variant of the coronavirus, which threatens to overwhelm local hospitals. On August 5, 2021, the Oregon Health Authority (OHA) adopted a temporary rule on an emergency basis in response to Governor Kate Brown’s direction to curb and prevent the spread of COVID-19 in healthcare settings.

Oregon OSHA Enacts Emergency Rules to Protect Workers From Extreme Heat

On July 8, 2021, the Oregon Occupational Safety and Health Division (Oregon OSHA) adopted temporary rules to bolster worker protections from the hazards of high and extreme heat, including requirements to provide shade, drinking water, cool-down breaks, an effective emergency medical plan, and training to all employees. Oregon OSHA adopted the Temporary Rules to Address Employee Exposure to High Ambient Temperatures on an emergency basis in response to direction from Oregon Governor Kate Brown, following a record-breaking heat wave that hit the Pacific Northwest in late June.

Notice Requirements Under the FMLA: Federal Court Reinforces Employees’ Obligations to Follow Established Notification Procedures

On June 17, 2021, the U.S. District Court for the District of Oregon issued an opinion and order in Munger v. Cascade Steel Rolling Mills, Inc., addressing an employee’s claims under the Family and Medical Leave Act (FMLA) and an analogous state law after the employee’s separation from employment due to excessive unexcused absences. The principal issue before the court was whether the employee was entitled to FMLA leave when the employee had failed to follow his employer’s usual and customary notice requirements for requesting FMLA leave.

Oregon Lifts Most Statewide Mask, Distancing, and Capacity Restrictions: What Employers Need to Know

Effective June 30, 2021, Oregon Governor Kate Brown, the Oregon Health Authority (OHA), and the Oregon Occupational Safety and Health Division (Oregon OSHA) lifted most statewide mask and physical distancing restrictions related to COVID-19, with limited exceptions. Mask requirements remain in place in some specialized settings, including healthcare, emergency medical services, public transit, transportation hubs, and correctional facilities. In addition, businesses may continue to require individuals to wear masks, face coverings, or face shields, and physically distance regardless of vaccination status. Individuals may continue to wear masks, face coverings, or face shields, even when not required, if they choose to do so.

Oregon Enacts Employment Protections for Hairstyles and Other Physical Characteristics Historically Associated With Race

On June 11, 2021, Oregon Governor Kate Brown signed into law House Bill 2935, also known as the CROWN Act (Creating a Respectful and Open World for Natural Hair), joining several other states in explicitly prohibiting employers and public schools from discriminating against individuals based on physical characteristics historically associated with race, including hair texture and protective hairstyles.

Oregon Updates and Expands the Oregon Family Leave Act

On June 8, 2021, Governor Kate Brown signed into law House Bill (HB) 2474, amending the Oregon Family Leave Act (OFLA) to update and expand the law’s eligibility and leave provisions. The amendments give eligibility to take leave to employees reemployed after a separation or returning after a temporary work cessation within 180 days, expand eligibility and leave entitlements during public health emergencies, and remove gendered language.