The start of a new quarter is a good time for businesses to assess how they’re charting with regards to new employer legislation and compliance. Back in January, we kicked off 2021 with a review of key legislative updates for Oregon employers. A global pandemic, social unrest, and a presidential election made 2020 eventful, and left us with many questions about what 2021 will bring! With many of these concerns still unresolved in the first few months of 2021, we felt it was imperative to review what employers need to know now and what to anticipate as we continue to move through 2021.
Luke Reese from Garrett Hemann Robertson hosted our legal update webinar in January. Luke specializes in employment & labor law with an emphasis in HR consulting. He joined Xenium’s VP of People Development & Culture, Suzi Wear, to provide an overview of the most pressing legal topics to be aware of as an employer. Luke reviewed COVID legislation, policy updates at the state and federal level, and some HR issues that we had anticipated for 2020, but which took a back seat due to the virus.
It’s a new world every day
One thing we can all be sure of is that, on a day-to-day basis, there is nothing we can be sure of!
Luke stressed that, although our country has taken steps to implement new legislation that will ease our transition back into normalcy, the impacts of these new laws are still being weighed. Everything is highly subject to change in the coming months, considering the recent transfer of power to a new administration and the learned effects of implemented legislation over time.
“This is one of the craziest experiences in my 16 years of practicing law, where we really did have to not only learn, but implement an entirely new area of law on the fly.”
Luke advises employers to regularly check government websites for new information, notably the Department of Labor’s FAQ section and OSHA’s guidance on protecting employees. He also stressed how important it is to communicate with your employees on a regular basis about the status of safety protocols. Be transparent, let them ask questions, and be honest. Employers should relate to their employees on a personal level rather than create conflict and confusion based on assumptions or misinformation.
New legislation regarding COVID-19
At the federal level, the Families First COVID Relief Act (FFCRA) sets up two categories of paid sick leave accommodations for employees dealing with COVID.
- The Emergency Family and Medical Leave Expansion Act require certain employers to provide up to an additional ten weeks of ⅔-pay paid (and two weeks unpaid) emergency family and medical leave to eligible employees who have been affected by the recent COVID restrictions. This includes caring for a child whose school or place of care was closed.
- The Emergency Paid Sick Leave Act requires certain employers to provide up to 80 hours of paid sick leave to employees taking leave from work to care for themselves or another individual experiencing COVID symptoms. This act expired at the end of 2020, but there is an option for employers to extend this benefit through the end of March 2021. In doing so, employers can offer leave to employees who haven’t already taken it, and as a result, will qualify for tax incentives. Luke believes it’s a good idea for employers to continue their participation in this program, but to remember that other leave options exist now and will continue beyond 3/31, such as those set out in the Oregon Family Leave Act. Specifics on OFLA can be found on the state of Oregon’s website.
Occupational Safety and Health Administration requirements
Luke’s had the opportunity to work closely with OSHA on behalf of many of his clients this past year and reassures us that they’re not out to get people. OSHA is getting hundreds of complaints a day, and they only have time to deal with legitimate concerns during the pandemic. However, employers need to ensure that their workplace is up to code at all times.
Two recent OSHA requirements and their deadlines are as follows:
- 12/7/20 – deadline for employers to conduct a COVID-19 exposure risk assessment and implement an infection control plan based on the assessment findings
- 12/21/20 – deadline for employers to provide workers with information/training regarding COVID-19 and its effects on their operations, including the importance of social distancing, availability of masks for employees at all times, the requirement of a face covering for all employees inside the building, the availability of cleaning supplies, and the requirement to have ventilation systems inspected and maintained on a regular basis
If you missed these deadlines, you won’t necessarily be punished, but employers should make it a priority to become compliant on these points as soon as possible. If you are contacted regarding a complaint, you will want to have your risk assessment paperwork ready. Just remember to always be cooperative and timely with OSHA requirements.
Vaccination
Even before distribution began, vaccines were a touchy subject. Here’s what employers need to know about vaccine requirements.
The US Equal Employment Opportunity Commission has said that employers can require their employees to receive the COVID-19 vaccine. However, exemptions do exist. First, a disability which prevents an employee from being vaccinated can qualify as a reason for exemption. Second, a note from an employee which states a religious belief, practice, or observance which prevents them from receiving the vaccine can also exempt an employee.
An excuse such as “I don’t believe in vaccination/this vaccination,” could fail to exempt an employee from vaccination requirements, but certain practices that don’t fall under major religions or belief groups might be recognized as valid.
“Especially in Oregon and on the West coast, there’s a really fine line between a bonafide religious belief and a philosophical belief.”
Because of this, employers are encouraged to refrain from insisting that an employee “not believing in the vaccine,” or “not wanting to get the vaccine,” will lead to termination. Wait for objections to come in and evaluate them on a case-by-case basis.
Luke also stressed that if an employer wishes to require employees to be vaccinated, their approach to an objector can’t be related to the employer’s belief in the vaccine’s importance to our communities at large. It must be related to the risk that an employee’s non-compliance would add to the workplace.
“You have to be able to show that not being vaccinated poses a direct threat […] to the health and safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
It’s also legal to make vaccination a prerequisite for onboarding, but the same exceptions apply.
What got left behind in 2020
While we were all navigating through an unexpected global pandemic that brought about a whole slew of new legislation in 2020, there was other important (non-COVID-19) legislation that was slated for last year.
The Oregon Workplace Fairness Act was originally slated to be the most important HR event of 2020. It did still go into effect, however, and there are some policy changes that should have been reflected in employee handbooks by October of 2020:
At minimum, workplace policies must:
- Provide a process for employees to report prohibited conduct
- Identify one person and one alternate to whom employees can report prohibited conduct
- Communicate the statute of limitations for a legal claim
- Include a statement that the employer may not require or coerce an employee to enter into a nondisclosure or non-disparagement agreement that prevents the employee from discussing discrimination or sexual assault
- Notify employees that they may request a nondisclosure or non-disparagement agreement, but they will still have seven days after the agreement is signed to change their mind
In the last six months of 2020, many lawsuits were filed against employers who haven’t updated their confidentiality agreements to meet these requirements. If your employee handbook has not been updated yet, you won’t necessarily be fined, but it’s best to make these changes as soon as possible. The OWFA is a big step towards a safer and more accountable professional environment. Beyond avoiding legal trouble, it’s considered best practice to implement these policies for the sake of your employees’ workplace safety.
We in HR and management have been tasked with roles and workloads beyond our training and capacity this past year. We’ve been asked to mitigate workplace conflict that we’ve never seen before and have been required to understand and communicate ever-changing information and legislation—all under the stress of maneuvering unforeseen changes in our personal lives.
Thank you to people like Luke, who have generously shared their wisdom to help us as HR and business leaders push through this pandemic – hopefully emerging stronger, more resilient, and better informed on the other side.
Luke is just one of the dozens of Xenium guests who have co-hosted workshops with us over the years. We have plenty more slated for 2021. Visit our website to view our workshop schedule and sign up! You can also watch replays of our past webinars here. We hope you join us soon!
DISCLAIMER:
This is a brief educational summary from a legal update workshop in January 2021. This should not be treated as legal advice for you and your organization. Seek counsel for individual advice and recommendations.