Employment Highlights From Oregon’s Energetic 2021 Legislative Session – Employment and HR

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Employment Highlights from Oregon’s Active Legislative Session in 2021

July 14, 2021

Little Mendelson

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June 2021 culminated in the lifting of COVID-19 restrictions in Oregon and significant changes to the state’s labor laws during the 2021 legislature. On June 25, 2021, Governor Kate Brown enacted Executive Order 21-15, granting all remaining COVID-19 Restrictions that allow companies to operate without a mask mandate or capacity limits effective June 30, 2021 at midnight, the meeting was suspended following the passage of several notable labor laws, including updates on protective leave laws, health and safety complaints, non-compete and discrimination .

Below is a summary of the most important bills.

Leaves of absence

• Amendments to the Oregon Family Leave Act (OFLA) to define a public health emergency, sick child leave, and maternity leave. Legislators added a definition of “public health emergency” to clarify that a governor’s proclamation is required to protect public health. The law expands the “sick leave for children” to include the need for home care due to the school being closed or the childcare provider of the child due to a health emergency and includes requirements to verify a school closure. The bill reduces a worker’s right to vacation from 180 days to 30 days for any qualifying reason related to a public health emergency. It also stipulates that any employee who leaves their employment relationship and returns within 180 days, resets their entitlement to OFLA to the state they were in before they left the employment relationship. In addition, the draft law changes the entitlement to maternity leave from “female” workers to “pregnant” workers in order to abolish gender identity as a prerequisite for maternity leave. The new law will come into force on January 1, 2022. HB 2474.

• Delayed implementation of family paid leave. In 2019, Oregon passed one of the most generous paid vacation laws in the country. During the last term, the legislature, by 33 votes to 19, postponed several aspects of the Oregon Paid Family and Medical Leave Insurance program for one year, including the deadline for setting policy rules and the date by which employer to meet the policy Funding of the program will begin January 1, 2022 through January 1, 2023. Employees who are entitled to paid vacation under the new law are not entitled to this vacation before September 2023. HB 3398.

Oregon Health & Safety

• Extension of 90 days to one year to file complaints with the Oregon Bureau of Labor and Industries (BOLI) for unsafe workplace complaints. The legislator has extended the limitation period for employees who complain to BOLI of discrimination and retaliation for reporting health and safety complaints from 90 days to one year. The new schedule makes the statute of limitations for other BOLI claims, including other types of discrimination and retaliation claims, consistent. The bill was likely introduced in response to numerous occupational safety complaints received by BOLI during 2020 due to employees’ COVID-19 concerns. HB2420.

• Suspicion of retaliation for adverse action taken within 60 days of reporting unsafe workplace conditions. The legislature has created a rebuttable presumption of liability against an employer who takes action against any employee within 60 days of the employee’s notification of allegedly unsafe workplace conditions. While courts have consistently ruled over the past several years that retaliation or discrimination may be suspected if an adverse action has occurred within a certain period of time after the protected activity, the new Oregon law codifies this standard. Therefore, employers need to ensure that they are following health and safety protocols and documenting employee complaints. The new law came into force on June 15, 2021. SB 483.

Non-compete obligations

• Non-compete agreements are more void than contestable, the minimum salary threshold is increased to $ 100,533 per year, and the maximum vesting period is decreased from 18 months to 12 months. Legislature has made a number of changes to Oregon’s Non-Compete Act. While many lawmakers were in favor of banning non-compete agreements overall, lawmakers opposed the passage of such a law, but introduced some new legal requirements that limit employers’ ability to require workers to enter into non-compete agreements. With effect from January 1, 2022, the most important changes to the new law include 1) the repeal of non-compete agreements instead of contestability; 2) Raising the salary threshold for employees who may be subject to a non-competition clause; and 3) Reduction of the maximum post-employment vesting period for non-compete obligations from 18 months to 12 months. Under previous law, non-compete obligations that did not meet the requirements of the law were only countervailable, which meant that the employee had to take positive action to make the agreement ineffective. According to the new law, such agreements that do not meet the requirements are legally void and therefore unenforceable. While workers whose gross wages exceeded their median family income could previously be subject to a non-compete clause, the new law requires workers to earn more than $ 100,533 per year to be subject to a non-compete clause. Finally, non-compete obligations that limit an employee to more than 12 months are now unenforceable. Employers are urged to identify and review any non-compete clauses currently in place in order to make any revisions necessary to meet the new requirements. SB169.

Discrimination

• Oregon’s CROWN Act. After leading several states including California, New York, Washington and Colorado, Oregon passed the CROWN (Creating a Respectful and Open World for Natural Hair) 28-1 to explicitly expand existing anti-discrimination laws to include “physical properties, that are historically associated with the race. ” In particular, the new law prohibits discrimination based on certain hairstyles and textures. The bill will come into force on January 1, 2022. Employers are encouraged to review the in-person appearance guidelines to make sure they are in line with the new law. HB2935.

• Driving licenses. Oregon law now prohibits employers from requiring prospective employees to obtain a driver’s license if driving is not an essential function of work. Instead of requiring a driver’s license to verify identity, employers should request other valid identification documents for the purposes of the I-9 verification forms. SB569.

Wage and unemployment insurance

• Exemption from recruitment and loyalty bonuses from “compensation”.

  Between May 25, 2021 and March 1, 2022, recruitment and retention awards are exempt from the definition of “compensation” under the Oregon Pay Equity Act of 2017, which, among other things, covers wage differentials between workers due to a protected class for work of a similar nature . In addition, companies offering vaccination incentives during a public health emergency are excluded from the definition of “compensation”. With this regulation, the legislature creates an incentive for companies to bring employees back to their workplaces after the COVID-19 pandemic. With HB 2818, BOLI can now also pay wage claims from the wage protection fund financed by the employer according to a legally binding order if the employer has not paid the wages owed. HB2818.

• Changes in unemployment insurance. Recognizing the potentially serious impact on employers following the forced closings and the rise in layoffs due to the COVID-19 pandemic, Oregon lawmakers made sweeping changes to how unemployment insurance rates are calculated. The draft law explicitly changes the provision of the “high benefit cost period” in order to exempt the calendar years 2020 and 2021 from the calculation of unemployment tax for every employer. The law comes into force on September 25, 2021. HB 3389.

For more details on these bills, as well as a discussion of bills that have not passed but are likely to be considered in future legislative sessions, please register for our upcoming free webinar on July 15, 2021 at 11:00 am PST, “What’s New In Oregon? Employer Update on 2021-21 Legislative Session in Salem. “

The content of this article is intended to provide general guidance on the subject. Expert advice should be sought regarding your specific circumstances.

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