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.

Overtime Eligibility for Agricultural Workers

In Oregon, agricultural workers have historically been exempt from overtime. House Bill (HB) 4002 changes that. If signed by Governor Kate Brown, beginning in 2023, farmers and ranchers will be required to pay agricultural workers overtime pay at one and one-half times their regular rate. To help with the transition, the overtime pay requirements will occur in phases. In 2023 and 2024, employers will be required to pay overtime to workers who work in excess of fifty-five hours in one workweek; in excess of forty-eight hours in 2025 and 2026; and in excess of forty hours beginning in 2027. Employers that are subject to these new requirements may be eligible for refundable tax credits to assist with the increased cost. The tax credit will be a percentage of the additional amount paid in overtime to workers during the year, but will decrease over the course of the transition phase.

Notice of Mandatory Overtime Shifts for Employees of Certain Manufacturers

Senate Bill (SB) 1513, which Governor Brown signed on March 7, 2022, amends Oregon Revised Statutes (ORS) 652.020 to prohibit employers that are classified within the North American Industry Classification System (NAICS) under NAICS Code 3118 (which includes bakeries and tortilla manufacturers) from taking adverse employment action against any employee who refuses to work mandatory overtime “unless the employer has provided the employee with at least five days’ advance notice of the overtime shift, including the date and time of the overtime shift.” In light of this new amendment, Oregon employers that are classified under NAICS Code 3118 may want to examine how they schedule and notify employees of required overtime shifts. These notice requirements will take effect on January 1, 2023.

Workers’ Compensation Amendments

HB 4138 is one of two bills that amend Oregon’s Workers’ Compensation Act, ORS Chapter 656, particularly with regard to retroactive benefits and overpayments. The proposed changes include:

• requiring an employer to provide written notice to a worker and his or her attorney if temporary disability benefits are scheduled to cease;
• increasing the duration that the worker’s physician can retroactively authorize temporary disability from fourteen days to forty-five days;
• barring physicians from retroactively declaring a worker “medically stationary” more than sixty days prior to the date the worker is declared permanently disabled;
• barring insurers or self-insured employers from declaring an overpayment of compensation paid more than two years prior to the date of the declaration; and
• permitting insurers or self-insured employers to recover overpayments from up to 50 percent of the permanent partial disability award, while the remaining amount must be recovered from future compensation.

If Governor Brown signs the bill, these changes will apply to workers’ compensation claims that “exist on, or arise on or after, January 1, 2024.”

Additionally, Governor Brown recently signed HB 4086 into law. HB 4086 updates the definition of “family” in ORS 656.204, clarifying that a worker’s stepparents, stepsiblings, stepchildren, grandparents, grandchildren, or any spouse or domestic partner thereof, may be listed as “dependents” and receive the worker’s benefits upon death of the worker. The revised definition also includes “[a]ny individual related by blood or affinity whose close association with a worker is equivalent of a family relationship.” The new law also clarifies that the anti-retaliation protections in ORS 659A.040 extend to employees who merely inquire about benefits under the Workers’ Compensation Act. These changes will take effect on January 1, 2023.