By: Randall Sutton, Employment Law & Litigation Attorney
As the 2019 Oregon Legislative Session winds down, it’s time to catch one’s breath and reflect on the outcome. Although every legislative session has its share of new developments and concerns for employers, this session is more eventful than most. With the Governor’s office and a supermajority of the legislature controlled by one party, the business community was left to focus on refining bills to make them a little more palatable instead of defeating bills or pursuing its own legislative agenda.
In the aftermath of this legislative session, the regulatory world for Oregon employers is once again made much more complicated. The following is a summary of some of the new laws affecting Oregon employers this session:
Paid Family Leave:
As the session began, the conventional wisdom was that nothing would happen on paid family leave this session. Politics is a fickle process and it soon became evident that paid family leave would in fact happen one way or another, so all sides rolled up their sleeves and got to work on a bill that would be as workable as possible. The new law will create a system similar to the unemployment insurance fund. The task of implementing paid family leave is so complex that the fund won’t be rolled out before 2022 and employees won’t be able to take paid family leave until 2023.
This bill is complex and subject to further evolution, but here are the key points so far. The fund for paid family leave will be created through employer and employee contributions. Employees will pay 60% of the cost, with organizations who employ 25 or more employees contributing 40%. Smaller employers (under 25) will not be required to contribute to the fund. Employers who design their own paid family leave program will be able to request an exemption from the funding requirement.
Unlike OFLA, which applies to employers of 25 or more employees, paid family leave will be available to every employee regardless of the employer size. Employees working for smaller employers will have limited reinstatement rights. Employees will be able to take up to 12 weeks of paid family leave. If an employee uses any paid family leave whatsoever, the total amount of combined paid family leave and Oregon family leave would be capped at 16 weeks per year for employers covered by OFLA.
Reasonable Accommodation for Pregnancy:
The Oregon legislature has placed additional burdens to provide workplace accommodations to pregnant employees. Under existing law, a pregnant employee who is unable to perform the full range of her job may take protected OFLA leave. For organizations with less than 25 employees, the employee’s inability to perform the job is not protected. Under the new law, employers with six or more employees are required to provide “reasonable accommodations” to pregnant employees. The listed accommodations include acquisition or modification of equipment or devices, more frequent or longer break periods or periodic rest, assistance with manual labor, and modification of work schedules or job assignments.
By requiring the employer to remove job duties or assign another employee to assist the pregnant employee, these accommodations go far beyond even the requirements of the Americans with Disabilities Act. Under the ADA, it is never a reasonable accommodation to remove essential functions or require the employer to provide the disabled employee with a helper. The law imposes a variety of other requirements, including the obligation to provide written notice about the law at time of hire.
Oregon law already requires employers with 25 or more employees to provide a 30-minute unpaid rest period to express milk for each four-hour work period. The new law requires every employer to provide nursing mothers with a reasonable rest period to express milk “each time the employee has a need to express milk.” Essentially, the new law allows nursing mothers to take unpaid lactation breaks at will. The employer also must take reasonable efforts to provide a private location to express milk that is near the employee’s work area. That space cannot be a public restroom or toilet stall. These breaks are unpaid unless combined with the employee’s usual paid break. Smaller employers (10 or fewer employees) can attempt to argue “undue hardship” to avoid obligations under the law.
New Discrimination Protections / Severance Agreements:
Significantly raising the stakes for employers, the Oregon legislature passed a broad expansion of liability under the Oregon employment discrimination laws. Most significantly, the law extends the statute of limitations for filing an employment discrimination claim from two years to five years. The extended limitations period is likely to be problematic for employers, given how memories fade over time and supervisors/managers come and go.
The new law also places significant restrictions on the content of severance agreements. The severance agreements we prepare typically include non-disparagement and no-rehire provisions. The new law makes inclusion of these terms an unlawful employment practice unless the severance agreement is entered into at the employee’s request. The law also allows the employee seven days to change his or her mind and revoke the agreement after signing it. A no-rehire provision is very important when negotiating severance, so this additional requirement will significantly alter when and how severance agreements are offered to employees.
The new law also requires that every employer have a written policy regarding sexual harassment and sexual assault. The law gives specifics regarding the content of the policy, including the need to explain the process for reporting prohibited conduct, who is responsible for receiving harassment reports (including an alternate person to receive reports), and the applicable statute of limitations period.
In Oregon, agreements restricting competition are already highly regulated, with many hoops to jump through before an agreement will be enforceable. In this year’s session, the Oregon legislature added an additional hoop. Even when an enforceable agreement is in place, the agreement will be voidable if the employer fails to provide the employee with a signed copy of the written agreement within 30 days after termination of employment. To avoid this enforcement “gotcha,” employers must take care to establish termination procedures that include providing verifiable evidence that the written notice was timely provided.
If ever there were a year for employers to revisit their employment policies, this is it. We encourage our clients to get in touch and have their policies updated to comply with the new laws.
Randy Sutton is a partner in the Employment Law & Litigation practice group. The information in this article is not intended to provide legal advice. For professional consultation, please contact Randy Sutton at Saalfeld Griggs PC. 503.399.1070. firstname.lastname@example.org © 2019 Saalfeld Griggs PC