2019 Legislative Session Update

The Oregon Legislature is in session with many employment bills on the docket. The following bills are active and have the potential to significantly impact the workplace.[1]

Employment Discrimination Settlements – SB 726

SB 726 is one of the most troubling bills introduced this session. The bill would regulate employment discrimination settlements with a broad brush. Some of the key provisions in the introductory version of the bill:

  • Instead of the current one-year statute of limitations on claims for unlawful employment practices, the bill would allow claims to be brought for seven years. Shorter limitations periods reflect the reality that memories fade and employee witnesses move on, making older cases harder to prove and defend.
  • Employers are restricted from inserting certain nondisclosure and nondisparagement clauses into employment, settlement and severance agreements.
  • The bill prohibits employers from inserting a “no rehire” provision in any severance or settlement agreement. As a result, even after receiving severance/settlement compensation, the employee could seek rehire and potentially assert a new claim for discrimination if not rehired.
  • The bill imposes personal liability on owners, partners and corporate officers for certain unlawful employment practices.
  • The bill mandates that all employers post and distribute at hire a written policy with procedures and practices for the reduction and prevention of employment discrimination and sexual assault.
  • Severance agreements with executives would be voidable if a future investigation determines that the former executive engaged in employment

Pregnancy Accommodation – HB 2341

HB 2341 would require employers to provide reasonable accommodations to pregnant employees. Currently, pregnant employees are entitled to time off as allowed under the family and medical leave laws but are otherwise expected to perform all job-related functions prior to taking maternity leave.

  • This bill would require employers to provide pregnant employees with reasonable accommodations.
  • The bill imposes liability on employers who fail to provide accommodations or fail to hire a candidate because of the potential need for accommodation.
  • Employers are not required to provide an accommodation if doing so would impose an undue hardship. Keep in mind that proving undue hardship can be very difficult.
  • Employers would be prevented from asking the employee to take family leave if the absence can be avoided by providing a reasonable accommodation.
  • The bill sets out a non-exclusive list of possible reasonable accommodations, including: acquisition or modification of equipment or devices; more frequent or longer break periods or periodic rest; assistance with manual labor; modification of work schedules or job assignments; and providing an appropriate location in the workplace for an employee to express breast milk in private.
  • By including “assistance with manual labor” as a reasonable accommodation, the bill likely requires an employer to assign certain essential functions of the pregnant employee’s job to another employee. This goes beyond the typical accommodations expected for disabled employees under the ADA.

Accommodation of Off-Duty Marijuana Use  – SB 379

Unlike alcohol and most drugs, there is no test for on-the-job marijuana use or impairment. An employee’s recent off-duty use will result in a positive test even if the employee reports to work unimpaired. Because of this challenge, and because marijuana is a controlled substance under federal law, Oregon law currently allows employers to discipline or terminate an employee who tests positive for marijuana use, even if the use might have occurred off-duty.

This bill would make it an unlawful employment practice for an employer to require, as a condition of employment, that an employee or prospective employee refrain from using any substance that is lawful under Oregon law. This includes marijuana use. The bill has a carve-out where the employer’s restriction on off-duty use is a bona fide occupational qualification. Although employers still can still discipline for on-duty impairment, proving an employee has used and is under of the influence of marijuana while at work will be challenging with no objective test in existence.

“Because of Age” Discrimination – HB 2818

HB 2818 would expand / clarify Oregon age discrimination law by specifically enumerating criteria used as a proxy for age to prove an age discrimination claim. This includes the length of an applicant or employee’s tenure with an employer, higher cost factors relating to pension or retirement benefits, and the employee’s retirement or pension status.

Manufacturing OT Maximum Hours – HB 2175 & SB 110

In the 2018 Session, the Oregon Legislature passed a law restricting the total number of hours that manufacturing employees may work. The general restriction is 55 hours in one work week, with 60 hours permitted upon employee request and up to 84 hours permitted in very limited hardship circumstances. The restriction applies even if an employee wants to work additional overtime hours. These companion bills would remove the weekly caps on maximum hours of work.

If you have questions about these bills or would like to weigh in as these bills are considered by the legislature, please contact Randall Sutton. 503-399-1070 / rsutton@sglaw.com.

[1] The information contained in this report is current as of February 5, 2019. This summary focuses on significant legislation affecting private sector employers and is not intended to cover every employment-related bill. This information is considered accurate but is not guaranteed. Additional information is available at www.leg.state.or.us. The comments contained herein are not legal advice and do not create an attorney client relationship. The purpose of this report is to provide information and analysis and is not intended to lobby one position over another. Follow these updates on Twitter @sgEmploymentLaw.