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Employment Law Update: What’s New in 2022

2022 Updates in Employment Law

The new year brings some new laws and some changes to existing laws for Oregon employers. This Employment Law Update summarizes these new laws and changes and provides a short update on the status of COVID-19 vaccine mandates. Oregon employers should familiarize themselves with these changes and make any necessary updates to their employment handbooks, documents, and practices.

Vaccine Mandate for Large Employers Blocked

As has been widely reported in the media, the U.S. Supreme Court blocked the Biden Administration from enforcing a federal vaccine-or-testing mandate for large employers. Employers may still adopt and enforce their own vaccine mandates provided that the mandates provide exemptions for bona fide religious beliefs or medical conditions and comply with any other applicable laws. Federal and Oregon state mandates requiring vaccinations for health care workers are not affected by the U.S. Supreme Court’s decision.

Federal Emergency Temporary Standard for Healthcare Workers

On December 27, 2021, the federal Occupational Safety and Health Administration (OSHA) announced that it was withdrawing all but the record-keeping requirements of a COVID-19 emergency temporary standard (“ETS”) that applied to healthcare workers. The COVID-19 log and reporting provisions remain in effect under the federal ETS. The federal Occupational Safety and Health Administration also announced that it was working on a permanent standard that would replace the withdrawn temporary standard. Given its intent to issue a permanent standard, the Occupational Safety and Health Administration has strongly encouraged healthcare employers to continue to implement the ETS’s requirements in order to protect healthcare workers.

Oregon COVID-19 Workplace Update

On December 21, 2021, Oregon OSHA adopted updates to its rules providing protections for Oregon workers against the spread of COVID-19. The adopted updates include:

  • Employers with workers operating in indoor workspaces must implement the facial covering requirements adopted by the Oregon Health Authority.
  • The physical distancing requirements of Oregon OSHA’s workplace COVID-19 rule are no longer in effect except for health care and transit settings.
  • Except for health care settings, Oregon OSHA no longer requires employers to regularly clean or sanitize common areas, shared equipment, and high-touch surfaces. Other sanitation measures in the division’s rule remain in effect for all workplaces.
  • Certain employers in the health care sector must provide certain workers with medical removal protection benefits when such workers cannot work because of quarantine or isolation due to COVID-19.

Oregon Family Leave Act

The Oregon legislature enacted significant changes to the Oregon Family Leave Act (“OFLA”).

  • The Oregon legislature amended the eligibility requirements for OFLA leave during a statewide public health emergency. Effective January 1, 2022, in the event of a statewide public health emergency proclaimed by the Governor, employees may become eligible for protected OFLA leave after 30 days of employment if they worked an average of 25 hours a week in the 30 days before taking leave.
    • As a reminder, Oregon Governor Kate Brown has extended the statewide public health emergency due to COVID-19 through June 30, 2022.
  • OFLA now has restoration rights for employees who return to work within 180 days from a break in service. Effective January 1, 2022, eligible employees who have been separated from employment or laid off but who are reemployed or returned to service within 180 days remain eligible for OFLA leave on their return to work. In addition, in determining eligibility for OFLA, a covered employer must credit the employee for days of employment prior to a break in service when the employee is reemployed or returned to work within 180 days.
  • Eligible employees may use OFLA leave to care for a child who requires home care due to the closure of the child’s school or childcare provider as a result of a public health emergency, such as the current COVID-19 statewide public health emergency proclaimed by Oregon’s Governor.

Restrictions for Non-Competition Agreements

The Oregon legislature continues to tighten the restrictions for valid employee non-compete agreements in Oregon. The restrictions are set forth in ORS 653.295. The following changes apply to employee non-compete agreements that are entered into on or after January 1, 2022:

  • The term of a valid non-compete agreement was shortened from 18 months to 12 months. Any restricted period in excess of 12 months is void and may not be enforced by an Oregon court.
  • An employee’s gross salary and commissions must exceed $100,533 at the time of the employee’s termination from employment. This amount will be adjusted annually for inflation.
  • Finally, any non-compete agreement with an Oregon employee that does not satisfy all of the requirements of ORS 653.295 is void and unenforceable. It is therefore essential that Oregon employers ensure that they are strictly complying with the statute to have an enforceable non-compete.

Oregon employers are reminded that non-compete agreements are only enforceable against employees who are properly classified as exempt executive, administrative, or professional employees. The employer must also have a “protectable interest,” which is defined as the employee having access to trade secrets or competitively sensitive confidential business or professional information. Oregon employers are also reminded that they are required under ORS 653.295 to inform the employee “in a written employment offer … at least two weeks before the first day of employment that a noncompetition agreement is required as a condition of employment.” The employer must also provide the employee with “a signed, written copy of the terms of the noncompetition agreement” within 30 days after the date of the employee’s discharge.

The Crown Act

The Oregon legislature enacted the Crown Act. Under this Act, employers cannot discriminate against employees based on hairstyles associated with race. Protected hairstyles are defined as “hair color or manner of wearing hair that includes, but is not limited to, braids, regardless of whether the braids are created with extensions or styled with adornments, locks, and twists.” In addition, the Crown Act addresses dress codes that may have a disproportionate adverse impact on members of a protected class. The employer may enforce an otherwise valid dress code or policy as long as the policy provides reasonable accommodations. The Crown Act went into effect on January 1, 2022.

Amendment to Oregon Safe Employment Act

The Oregon legislature tightened protections for employees who report unsafe working conditions or engage in certain other protected activities under the Oregon Safe Employment Act. It has been unlawful for an employer to retaliate or discriminate against employees for making workplace safety complaints or engaging in certain other protected activities. The Oregon legislature tightened these protections by creating a “rebuttable presumption” of discrimination or retaliation when an employer takes an adverse action against an employee within 60 days of the employee reporting unsafe working conditions or engaging in other certain protected activities. The presumption may be rebutted if the employer shows by a preponderance of the evidence that no unlawful retaliation or discrimination occurred. Employees may still claim unlawful retaliation or discrimination if the adverse action occurs more than 60 days after the protected activity, but the rebuttable presumption will not apply.

Driver’s License as a Condition of Employment

Effective January 1, 2022, Oregon employers may not require possession of a valid driver’s license as a condition of employment unless the ability to legally drive is an essential function of the job or is related to a legitimate business purpose.

Minimum Wage Increase

Employers are reminded that Oregon’s minimum wage will increase on July 1, 2022. Under Oregon’s tiered minimum wage system, the minimum wage in the Portland Metro area will increase to $14.75 per hour. The Standard minimum wage will increase to $13.50 per hour. The minimum wage for Nonurban Counties will increase to $12.50 per hour.

Oregon Workplace Fairness Act

Employers are reminded that the Oregon Workplace Fairness Act, which went into effect on October 1, 2020, requires most Oregon employers to have written anti-discrimination policies that contain specific provisions. Read Buckley Law’s employment update on the Oregon Workplace Fairness Act.

Employers with questions about compliance should contact legal counsel. Buckley Law, P.C. is working with its clients to update their handbooks and agreements to meet the law’s obligations. We are here to partner with you. If you have questions or need legal assistance on employment law, please contact Jillian A. Pollock or William E. Gaar at 503-620-8900.

Jillian A. Pollock

Jillian A. Pollock is a shareholder in the firm’s employment law practice group. Her practice includes representing employers in federal and state court proceedings and in administrative proceedings. Her practice also includes employment counseling.

William E. Gaar, SPHR

William E. Gaar, SPHR, is a shareholder in the firm’s employment law practice group. He is an advocate and litigator for his business and employer clients, providing practical solutions to everyday concerns and protecting his clients’ rights in state and federal court, private arbitration and mediation, and before state and federal agencies.

This material is provided for informational purposes only. The provision of this material does not create an attorney-client relationship between the firm and the reader, and does not constitute legal advice. Legal advice must be tailored to the specific circumstances of each case, and the contents of this article are not a substitute for legal counsel. Do not take action in reliance on the contents of this material without seeking the advice of counsel.