OSHA ETS: What Health Care Providers Need to Know

Contributed By John R. Hayes, June 18, 2021

On June 10, 2021 OSHA issued its COVID-19 Emergency Temporary Standard (ETS) for the health care industry, along with general guidance for all other employers, which we already touched on in a previous post. However, there remains a lot to unpack, as there are many unanswered questions, especially for the health care field.  Below we dig a bit deeper into the ETS and its practical implications for health care providers.

Are you covered? The first question—and it is not as clear cut as it may seem—is whether the ETS applies to your business. OSHA has issued a flowchart to attempt to answer this question. However, it still remains murky for some. Generally, the ETS applies to settings where coronavirus patients are treated (including hospitals, nursing homes and assisted living facilities) and covers “all settings where any employee provides health care services or health care support services.” These are defined as:

  • Health care services are services that are provided to individuals by professional health care practitioners (doctors, nurses, emergency medical personnel, oral health professionals) for the purpose of promoting, maintaining, monitoring, or restoring health, and are delivered through various means including hospitalization, long-term care, ambulatory care, home health and hospice care, emergency medical response, and patient transport.
  • Health care support services are services that facilitate the provision of health care services, which include patient intake/admission, patient food services, equipment and facility maintenance, housekeeping services, health care laundry services, medical waste handling services, and medical equipment cleaning/reprocessing.

The ETS contains several exemptions to its coverage, and it does not apply to:

(1) the dispensing of prescriptions by pharmacists in retail settings;

(2) non-hospital ambulatory care settings (outpatient settings such as doctor’s offices) where all non-employees are screened before entering and people with suspected or confirmed COVID-19 are not allowed to enter;

(3) well-defined hospital ambulatory care settings and home health care settings where all employees are fully vaccinated, all non-employees are screened prior to entry, and people with suspected or confirmed COVID-19 are not permitted to enter those settings or are not present;

(4) health care support services not performed in a health care setting (off-site services); and

(5) telehealth services performed outside of a setting where direct patient care occurs. 

Moreover, in certain situations, such as where a health care setting is embedded with a non-health care provider (such as a medical clinic in a manufacturing facility), the ETS applies only to the embedded health care setting and not the other parts of the facility. 

Also, in well-defined areas in a health care setting where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present the ETS provisions for PPE, physical distancing, and physical barriers do not apply to fully vaccinated employees. To meet this exception, the COVID-19 plan for the employer must include policies and procedures to determine employee vaccination status.

ETS Mandates. If you are an entity covered by the ETS, then what exactly does it require of you? The main requirements are what you have likely had in place throughout the pandemic:

  • Development of a COVID-19 plan. This applies to all covered employers with 10 or more employees.
  • Provide PPE and ensure employees properly wear facemasks that meet OSHA standards when physical distancing is not possible.
  • Cleaning, disinfecting, installing barriers and maintaining social distancing. 
  • Follow general screening and management practices for COVID-19. 
  • Record Keeping/Reporting. Employers must retain all versions of their COVID-19 plan, log and record each instance an employee is COVID-19 positive whether or not the infection was at work, report each work-related COVID-19 fatality and in-patient hospitalization within 24 hours.
  • Vaccination PTO. Employers must provide reasonable time and paid leave for employees to receive COVID-19 vaccinations and recover from any side effects. OSHA defines “reasonable time” as four hours of paid leave for each dose, and 8 hours of leave for any side effects of the dose.
  • Training on the basics of COVID-19 and employer and workplace specific policies on all other ETS requirements, such as screening, cleaning, and sick leave policies.

Medical Removal Protection (MRP) Benefits. Employers with more than 10 employees must provide paid leave to employees if the employee is removed from the workplace under the ETS – basically if the employee is unable to work due to COVID-19 or COVID-19 exposure, regardless of whether the employee was exposed at work or outside the workplace.

  • For employers with more than 10 but fewer than 500 employees, the employee is entitled to their regular rate of pay, up to $1,400 per week for the first two weeks.  Beginning in the third week, if the removal continues that long, then the employee shall receive two-thirds the rate of their regular pay, up to $200 a day. 
  • For employers with 500 or more employees, the employer must pay up to the $1400 cap each week during the entire period of removal, until the employee meets the return to work criteria, which must be made in accordance with guidance from a licensed health care provider or applicable guidance from the CDC.
  • For all employers with more than 10 employees they must continue to provide the benefits to which the employee is normally entitled.
  • The employer is not required to provide overtime pay, even if the employee had regularly worked overtime hours in recent weeks.
  • The employer may reduce the amount paid to the removed employee by compensation the employee receives for lost earnings from any other source, such as employer-paid sick leave or other PTO.
  • For employers with fewer than 500 employees, tax credits are available under the American Rescue Plan for voluntarily provided COVID-19 sick leave through September 30, 2021.

Implementation Timeline. Covered employers must comply with most provisions of the standard within 14 days of publishing, and with the provisions regarding physical barriers, ventilation, and training within 30 days. OSHA states it will use its enforcement discretion to avoid citing employers who are making a good faith effort to comply with the ETS. However, OSHA has made no secret it is overall increasing its enforcement, and is encouraging more in-person inspections. Employers who believe they may be subject to the ETS should review it carefully and consult with experienced employment counsel regarding their obligations under the ETS.

NEED AN HR AUDIT CHECKLIST?  HERE YOU GO!

Contributed By: Jeff Risch, June 16, 2021

Employers of all sizes and industries, operating anywhere in the U.S., need to conduct HR Audits regularly. In 2021 and beyond, it is critical to carefully evaluate all aspects of how to properly and lawfully administer and manage personnel issues. Workplace laws, rules and regulations are constantly changing – what was lawful yesterday may be unlawful tomorrow. Annual HR Audits conducted by those with intimate knowledge and understanding of the latest legal developments, including enforcement, must be part of any employer’s regular processes.

SmithAmundsen LLC’s Labor & Employment Law Practice Group, comprised of attorneys concentrating in Employment, Traditional Labor, Immigration, Benefits/ERISA, OSHA, Workers Compensation and other key areas of focus, encourages HR Managers, Executives, Business Owners, CFO’s, In-House Counsel, and any other manager involved in personnel matters to review and give thought to our latest HR Audit Checklist.

Yes, Your Employer Can Require You To Be Vaccinated, According to a Federal Judge in Texas

Contributed By: John R. Hayes, June 14, 2021

A federal judge in Texas on June 12, 2021 dismissed a lawsuit brought by Texas health care workers challenging their hospital’s COVID-19 vaccine mandate. The scathing opinion by U.S. District Judge Lynn N. Hughes left no doubt that he believed the claims of the 117 plaintiffs were without merit.

The lawsuit was brought by employees of Houston Methodist Hospital, who had refused the vaccine, after the hospital in April announced a policy requiring  vaccination of all employees.  In early June, over 170 employees of the hospital were suspended for two weeks without pay over their decision to refuse getting the COVID-19 vaccine. If these employees did not get vaccinated within two weeks then they would be terminated. At the time of the filing, almost 25,000 Hospital employees had complied with the vaccination requirement, and approximately 285 employees had received medical or religious exemptions. 

The employees refusing the vaccine claimed that the policy of the hospital requiring the COVID-19 vaccine of its employees was an effort to coerce them into becoming test subjects for an untested and unreliable vaccine. Echoing a refrain made by many who are refusing the vaccine, the plaintiffs argued that the lack of full approval by the Food and Drug Administration (FDA), justified their refusal to get vaccinated. While not yet granting full approval for the three vaccines in the United States, the FDA has granted emergency use authorization for the vaccines, and approximately 173 million Americans have received at least one dose, with over 143 million being fully vaccinated.

In his opinion, Judge Hughes found that the plaintiffs were not “coerced” to get the vaccine, and that public policy clearly supports widespread inoculation efforts. Specifically, the court said that lead plaintiff and nurse Jennifer Bridges’ claims that the vaccines are “experimental and dangerous” were “false” and “irrelevant.”  He went on to say Bridges’ argument that the vaccine requirement equates to medical experimentation in Nazi concentration camps was “reprehensible.” 

Further explaining that the employees were not coerced, Judge Hughes stated that the hospital “is trying to do their business of saving lives without giving them the COVID-19 virus. It is a choice made to keep staff, patients and their families safer. Bridges can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else.” Calling it “all part of the bargain” between a worker and their employer, the court stated “every employment includes limits on the worker’s behavior in exchange for his renumeration.”   

While the focus of the opinion was on Texas law regarding wrongful discharge, it appears to be the first of its kind regarding vaccine mandates, and has implications nationwide.  Judge Hughes cited to the Equal Employment Opportunity Commission’s (EEOC) updated May 28, 2021 guidance that employers can require employees to be vaccinated against COVID-19, subject to reasonable accommodations for employees with disabilities or sincerely held religious beliefs that preclude vaccination. He further stated that while this guidance is not binding “it is advice about the position one is likely to meet at the Commission.” 

The lawyer for the plaintiffs stated he planned to pursue an appeal.

Ultimately, the decision whether or not to mandate vaccination of its employees is up to the individual employer. While some hospital systems and other health care institutions such as nursing homes and home health care providers in the country are moving to require COVID-19 shots, many private employers have not yet taken that step. And although the EEOC has said employers can require vaccines, subject to certain exemptions, there still remain questions on the legality of doing so, as evidenced by this lawsuit. Any workplace vaccination policy—whether a mandate or one that provides incentives to get the shot—should be carefully considered in advance, ideally vetted by experienced employment counsel. 

We are continuing to monitor this evolving situation, and will update our blog with any new developments.

Illinois Legislature Passes Comprehensive Non-Compete Legislation

Contributed By Jeffrey Glass, June 11, 2021

employment law books and a gavel on desk in the library. concept of legal education.

As reported in prior blogs, the Illinois legislature for several months has been considering amendments to the Illinois Freedom to Work Act that apply to non-compete and non-solicitation restrictions. SmithAmundsen attorneys worked closely with the Illinois Chamber of Commerce to protect the interests of employers as much as possible during the legislative process. 

The legislature has now passed SB672. It is generally viewed as a compromise between employer and employee interest groups. It is not a ban on restrictive covenants, but it does impose important limits on them.

The legislature will send SB672 to Governor Pritzker for signature before the end of the month. The governor then will have up to 60 days from receipt to act. It is widely expected that the governor will sign the bill, probably sometime in August.

The amendments are effective for any contract entered into after January 1, 2022.  

The legislation is comprehensive and detailed, and should be read in its entirety. However, important highlights of the new legislation include the following:

Income Thresholds for Non-Compete and Non-Solicitation Agreements

One of the most important changes is the establishment of income thresholds for non-compete and non-solicitation agreements. 

For agreements entered into on or after January 1, 2022, an employee’s actual or expected annualized earnings must exceed $75,000 per year in order for the employee to be subject to a non-compete clause. This threshold increases to $80,000 on January 1, 2027, $85,000 on January 1, 2032, and $90,000 on January 1, 2037. A non-compete agreement does not include a confidentiality agreement or a covenant prohibiting the use or disclosure of trade secrets or inventions, so those contracts can continue to be used regardless of the employee’s income.  

Additionally, for agreements entered into on or after January 1, 2022, an employee’s actual or expected annualized earnings must exceed $45,000 per year in order for the employee to be subject to a non-solicitation clause. This threshold increases to $47,500 on January 1, 2027, $50,000 on January 1, 2032, and $52,500 on January 1, 2037. A non-solicitation agreement includes any agreement that bans solicitation of not only customers or prospective customers, but also employees, and vendors, among other categories.

“Earnings” for purposes of these thresholds includes earned salary, earned bonuses, earned commissions, or any other form of compensation reported on an employee’s IRS Form W-2.

The legislation also prohibits employers from entering into a covenant not to compete or not to solicit with any employee who an employer terminates, furloughs, or lays off as the result of business circumstances or governmental orders related to COVID-19, or under circumstances that are similar to the COVID-19 pandemic, unless the employer pays the employee pursuant to a formula contained in the Act. It also prohibits covenants not to compete for individuals covered by a collective bargaining agreement under the Illinois Public Labor Relations Act, the Illinois Educational Labor Relations Act, or certain individuals employed in the construction industry. Construction employees who primarily perform management, engineering or architectural, design or sales functions for the employer; or are a shareholder, partner, or owner in any capacity for of the employer may be covered by a covenant to compete or a covenant not to solicit.

Pre-Signing Notice and Review Period

The legislation adds a new Section 20 which provides that non-compete and non-solicitation clauses are illegal and void unless (1) the employer advises the employee in writing to consult with an attorney before entering into the covenant; and (2) the employer provides the employee with a copy of the covenant at least 14 calendar days before the commencement of the employee’s employment or the employer provides the employee with at least 14 calendar days to review the covenant.

Attorney’s Fees for Employees Who Prevail in Litigation

Many restrictive covenants provide that the employer may recover its attorney’s fees if it prevails in litigation to enforce a covenant. The new legislation levels the playing field by providing that, if an employee prevails on a claim to enforce a covenant not to compete or a covenant not to solicit, the employee shall recover his or her attorney’s fees and costs.  

Attorney General Enforcement

The amendments also provide for the Illinois Attorney General to investigate and prosecute abusive restrictive covenant practices. If the Attorney General has reasonable cause to believe that an employer is engaged in a pattern and practice prohibited by this Act, the Attorney General may initiate or intervene in a civil action in the name of The People of the State in any appropriate court to obtain appropriate relief. The Act grants the Attorney General broad investigative powers and provides for a wide range of remedies including civil penalties not to exceed $5,000 for each violation or $10,000 for each repeat violation within a 5 year period.

Adequate Consideration Defined

The definition of “adequate consideration,” consistent with the Fifield v. Premier Dealer Services decision that was discussed in detail in a prior blog is that an “at will” employee must work for at least two years after entering into the restrictive covenant contract in order for it to be enforceable.  Notably, the new statutory standard of “at least two years” actually is stricter than the standard that courts developed in the wake of Fifield. Courts applying Fifield, particularly in the federal system, used two years as a rule of thumb, but were willing to find adequate consideration based on lesser periods of post-contract employment (e.g., 18 months) in certain cases, such as when the employee voluntarily resigned. The new legislation would appear to deny courts such flexibility. 

The amendments also provide, alternatively, that the employer can provide “a period of employment plus additional professional or financial benefits, or merely professional or financial benefits adequate by themselves.” After Fifield, many employers sought to avoid potential consideration problems by providing a monetary payment to the at-will employee as additional consideration for the agreement; otherwise they would run the risk that the restrictive covenant would be deemed unenforceable if the employee resigned or was terminated less than two years after signing the restrictive covenant agreement.  Unfortunately, as with Fifield itself, this new provision provides no guidance as to what “professional or financial benefits” would be deemed sufficient as an alternative to two years or more of at will employment.

Definition of Employer’s “Legitimate Interest” and Standard for Enforceability

SB672 adds new Sections 7 and 15 to the Act which essentially codify the approaches to determining the legitimate interest of the employer, and determining whether the restriction is enforceable to protect the interest, that were established in 2011 by the Illinois Supreme Court in Reliable Fire Equipment Co. v. Arredondo case also discussed in a previous blog. This approach provides that, while exposure to “near-permanent” client relationships and the possession of confidential information are legitimate interests, there is no limit as to what can be a protectable interest and the “totality of the facts and circumstances” must be considered by the court in every case. Once the interest is identified, the restrictions must be deemed reasonable according to various criteria, such as whether they are no more burdensome than necessary to protect the interest of the employer, and whether they are injurious to the public. No single factor is determinative and the same covenant could be enforceable in one case, yet not be enforceable in a different case. These provisions codify the approach that courts and practitioners have been following since Reliable Fire.  

Reformation of Overbroad Restrictions

As with the definition of “adequate consideration,” and the provisions regarding an employer’s legitimate interests and how to determine whether a restriction is reasonably tailored to protect the interest, SB672 adds a new Section 35 that essentially codifies existing law regarding the reformation of overbroad covenants. It provides that, while “extensive judicial reformation” may be against the public policy of the State of Illinois, a court may exercise its discretion to modify an unreasonable or overbroad restriction rather than hold that it is wholly unenforceable. Factors to be considered “include the fairness of the restraints as originally written, whether the original restriction reflects a good-faith effort to protect a legitimate business interest of the employer, the extent of such reformation, and whether the parties included a clause authorizing such modifications in their agreement.”

As stated above, these amendments apply to any restrictive covenant contract entered into after January 1, 2022. Employers obviously need to make sure any contracts entered into after that date fully comply with the new law. In addition, employers who would like to get restrictive covenants in place before these rules go into effect would be well-advised to work with experienced employment counsel to accomplish that objective in compliance with existing law.

OSHA Issues its Emergency COVID-19 Standard

Contributed By Matthew Horn, June 10, 2021

On June 10, OSHA issued its long-promised COVID-19 Emergency Temporary Standard (ETS).  Surprisingly, the ETS relates only to the healthcare industry, but updated guidance has been issued for all other industries, as outlined below:
 
Non-Healthcare Industries: For non-healthcare industries, including manufacturing and construction, OSHA only intends to continue issue guidance relating to COVID-19, including updated guidance on complying with the CDC’s latest recommendations. Notably, the updated guidance exempts fully vaccinated workers from wearing masks, distancing, and barrier requirements when in areas where there is no reasonable expectation that any person will be present with suspected or confirmed cases of COVID-19.
 
Healthcare Industry: The ETS applies strictly to the healthcare industry, and focuses on healthcare workers most likely to have contact with someone infected with the virus, including employees in hospitals, nursing homes, and assisted living facilities; emergency responders; home healthcare workers; and employees in ambulatory care settings—where suspected or confirmed COVID-19 patients are treated.
 
The ETS largely requires these facilities to continue to comply with precautions already in place, codifying well-known requirements such as conducting a hazard assessment, adopting a written COVID-19 plan, providing employees with PPE and respirators as appropriate, distancing, erecting barriers, screening entrants for COVID-19, disinfecting and sanitizing exposed areas, and others. The ETS does add a few new requirements, however, requiring employers to prepare a “COVID-19 log” listing all employee cases of COVID-19 and provide workers with paid time off to get vaccinated and recover from any side effects. Covered employees who have COVID-19 or who may be contagious must also be required to work remotely or quarantine, being provided paid time off, up to $1,400 per week. For most employers with fewer than 500 employees, these costs may be reimbursed through the provisions of the American Rescue Plan.
 
Notably, we expect OSHA to use the ETS – and the pandemic itself – as part of its on-going effort to unionize more employers in the healthcare industry. 

Save the Date! Complimentary Webcast June 23: Your Employee Asked to Work Remotely Indefinitely (or Short Term): Important Legal Considerations Before You Say Yes

A year ago we all became a remote workforce almost overnight. Now, while many offices are beginning to open, some employees are asking to remain working remotely. Before saying yes, be sure that you know the right questions to ask to avoid the many landmines that could accompany a continued, remote workforce or even future short-term remote work arrangements.

Join us on Wednesday, June 23 at noon CT as Molly Arranz, Meredith Murphy, Tom Pienkos, and Sara Zorich from our Data Security, Tax, IP, and Employment groups discuss several hypothetical remote work scenarios, lessons learned from the past year and how to troubleshoot potential issues including:

  • On-boarding, Form I-9/E-verify compliance, leave laws and other practical considerations
  • Tax nexus considerations, unexpected cross border (state, local, foreign) taxes
  • Cyber hygiene best practices and the potential, continued data privacy threats when working remotely
  • Business incorporation/licensing for your remote employees
  • Payroll requirements (withholding and unemployment taxes)
  • Workers’ compensation/business insurance
  • Critical agreements that need to be in place for employers to protect their IP and ownership

Nevada Amends Non-Compete Statute To Further Protect Employees

Contributed By Jeffrey Glass, June 1, 2021

employment law books and a gavel on desk in the library. concept of legal education.

Effective May 25, 2021, the State of Nevada enacted amendments to the Nevada Unfair Trade Practice Act that address non-compete agreements. Prior to the new amendments, Nevada law provided that a non-competition covenant is deemed void and unenforceable unless: it is supported by valuable consideration, it does not impose any restraint that is greater than required for the protection of the employer, it does not impose any undue hardship on the employee, and it imposes restrictions that are appropriate in relation to the valuable consideration supporting the non-competition covenant. These provisions of the statute were not amended and therefore these rules still apply in Nevada.

The statute, prior to the recent amendments, also provided that a non-competition covenant may not restrict a former employee from providing service to a former customer or client if the former employee did not solicit the former customer or client, if the customer or client voluntarily chose to leave and seek services from the former employee, and if the former employee is otherwise complying with the limitations of the covenant as to time, geographic scope, and scope of activities restrained. The new legislation amends this provision slightly to provide not only that a non-competition covenant may not restrict this type of activity, but that an employer may not bring an action to enforce such a restriction.  This would appear to be merely a clarification of existing law.

The new legislation also provides for the first time that a non-competition covenant may not apply to an employee who is paid solely on an hourly wage basis, exclusive of any tips or gratuities. This is similar to many states that have sought to ban or severely restrict restrictive covenants for low wage employees.

Prior Nevada law provided that a court “shall” revise an overbroad covenant to render it reasonable.  The new legislation modifies this slightly to clarify that this type of “blue pencil” approach applies where the employer brings an action to enforce the covenant, or where the employee brings an action to challenge it. It also emphasizes that the undue hardship on the employee must be considered. Again, this is a subtle revision that is apparently intended to make sure that the former employee’s interest in avoiding undue hardship is given due consideration by a court interpreting the statute.

The new legislation also contains a new section which provides that, if either an employer or an employee brings an action to enforce or challenge a non-competition covenant, and the court finds that the covenant either applies to an hourly wage employee or attempts to restrict an employee from dealing with former customers whom the employee did not solicit, that the court “shall” award the employee reasonable attorney’s fees and costs. This, too, is similar to legislation that has been passed in other states that seek to level the playing field for the benefit of former employees by providing them with fee-shifting even if the contract does not provide for it.

Overall, the new Nevada legislation makes modest but real improvements for former employees, and follows the clear trend across the country to ban non-competes for low wage employees and give employees the right to recover attorney’s fees in this type of litigation. 

We will continue to monitor legislative developments on non-competes across the country.   

EEOC Issues Updated Guidance Addressing COVID-19 Vaccine Incentives Among Other Issues

Contributed By Steven Jados, May 28, 2021

Medicine doctor and vaccine dose

On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) updated its guidance regarding employers offering incentives for employees to be vaccinated against COVID-19. The updated guidance also clarifies issues related to whether employers can mandate that employees be vaccinated before entering the workplace.

Interestingly, the EEOC’s guidance on vaccine incentives is broken into two parts: (1) incentives for employees voluntarily providing proof that they received a vaccination on their own, and (2) incentives for employees who voluntarily receive a vaccination administered by the employer or its agent.

As to the first scenario, the EEOC’s guidance says little more than that requesting proof of vaccination is not a disability-related inquiry covered by the Americans with Disabilities Act (ADA), and also does not seek information protected by the Genetic Information Nondiscrimination Act (GINA), and therefore employers may offer incentives to employees who provide proof that they were vaccinated. 

The guidance for the second scenario is a bit more detailed. It states that incentives may be offered, so long as the incentive (whether it is a reward or penalty) “is not so substantial as to be coercive.” The difference between the first and second scenarios is that in the second scenario, employees will likely be required to disclose protected medical information as part of the vaccine provider’s pre-vaccination inquiry. An incentive that is too large could make employees feel pressured to disclose that protected medical information, and that undue pressure may violate the ADA.

The EEOC’s guidance is that the incentive limitation in the second scenario does not apply to the first scenario—because the first scenario is just asking for proof of vaccination status, which is not a disability-related inquiry in the EEOC’s eyes. However, we recommend caution in providing large incentives in first scenario circumstances, too, given the recency of this EEOC guidance, and the thorny issues and litigation risks that can arise with respect to incentive programs that touch on employee health and medical information.

On the subject of mandatory vaccines, the EEOC’s updated guidance makes clear that “federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19,” subject to reasonable accommodation and other EEO considerations. The guidance includes expanded advice for responding to employees who do not want to be vaccinated due to medical or religious reasons or because of pregnancy. (A word of caution: federal EEO laws are not the only game in town, and there is a possibility that other laws could prohibit employers from imposing mandatory vaccine policies—so be careful.)

The EEOC’s next piece of guidance should not come as a surprise to our loyal readers: employees’ COVID-19 vaccination documentation is confidential and must be kept separate from employee personnel files, like other medical information.

The EEOC’s updated guidance also includes several links to resources available for employers to educate their employees about COVID-19 vaccinations and related issues.

As discussed above, issues relating to vaccine incentives—and really any issue relating to COVID-19 vaccines in the workplace—can get thorny very quickly. With that in mind, we recommend engaging experienced employment counsel before wading too deep into these issues.

Happy Memorial Day! A Quick Guide for Affirmative Action Programs for Hiring Veterans with Disabilities

Contributed By Allison P. Sues, May 26, 2021

With the upcoming Memorial Day holiday offering an opportunity to acknowledge and appreciate the sacrifice made by military families, it seemed a fitting time to revisit the legal nuances of providing preference in hiring veterans with disabilities. Veterans report high instances of service-connected disabilities, including blindness, deafness, missing limbs, major depressive disorder, and post-traumatic stress disorder. Some laws require employers to provide preference to disabled veterans. Some employers voluntarily create affirmative action programs for veterans with disabilities. Here is what employers should know. 

Can an employer give preference in hiring to a veteran with a disability?

Yes. There is no law that prevents an employer from voluntarily creating a program that gives preference in hiring to qualified veterans with disabilities. Moreover, there are various laws in place that may require an employer to provide affirmative action to veterans. For example, the Vietnam Era Veteran’s Readjustment Assistance Act (VEVRAA) requires all business with a federal contract or subcontract exceeding $100,000 to take efforts to employ and advance veterans with disabilities. The Uniformed Services Employment and Reemployment Rights Act (USERRA) requires employers to make reasonable efforts and accommodations to return veterans with service-connected disabilities to their position prior to military service or to help qualify the veteran for a job of equivalent seniority, status, and pay. 

May an employer ask if an applicant is a disabled veteran? 

Yes. While the Americans with Disabilities Act (ADA) generally prohibits employers from making medical inquiries, they may do so for affirmative action purposes. Therefore, an employer may ask applicants to voluntarily self-identify as a veteran with a disability if it is collecting this information to undertake affirmative action required by a veterans’ preference law, or to provide benefits to these applicants through the employers’ own voluntary program.   

If an employer requests that applicants self-identify as a veteran with a disability, the request must clearly state that this information is intended for use solely in connection with its legal affirmative action obligations, or voluntary affirmative action efforts. Employers should also confirm with the applicants that the information will be kept confidential, and that the applicant’s decision to disclose this information is completely voluntary. Keep all records of disability-related information in a separate, confidential file.

What are some steps that employers can take to attract, recruit, and hire veterans with disabilities?

  • Job postings and advertisements may encourage veterans with disabilities to apply and should explicitly state that the organization is an equal opportunity employer.
  • Employers may send job opening information to organizations that job-train veterans and assist veterans with finding employment.
  • Employers may attend job fairs that connect employers with qualified veterans searching for work.
  • Employers should review all language used in job postings to make sure that nothing would dissuade a veteran with a disability from applying. Job postings should not include language calling for “excellent health” or listing required physical abilities if an individual with a disability would be able to accomplish the job function differently through an accommodation.
  • Employers must provide accommodations to veterans with disabilities in the application process where necessary. For example, employers should provide applications and other written materials in an accessible format, whether that be in large print, Braille, or electronically. Employers should also conduct interviews in accessible locations. 

New Oregon Non-Compete Law Further Restricts Non-Competes

man is signing non compete agreement

Contributed By Jeffrey Glass, May 25, 2021

Over the past several years, the State of Oregon has enacted significant statutory limits on non-compete agreements. Under ORS 653.295, as in effect until recently, a non-compete was “voidable and [could] not be enforced by a court of this state” unless:

  • The employer advised the employee in a written employment offer at least two weeks before the first day of employment that a non-competition agreement is required, or the non-competition agreement is executed upon the employee’s bona fide advancement;
  • The employee is exempt from Oregon minimum wage and overtime law;
  • The employer has a protectable interest, which is generally limited to access to trade secrets or competitively sensitive confidential information;
  • The employee makes more than the median family income for a family of four as determined by the U.S. Census Bureau;
  • The employer provided the employee with a signed copy of the agreement within 30 days after the last day of employment; and
  • The duration of the non-compete does not exceed 18 months.

Importantly, the restrictions described above generally do not apply to covenants to solicit customers or employees of the prior employer.  Additionally—and notwithstanding the foregoing restrictions—Oregon allows “bonus restriction agreements,” a type of restriction, permitted only for managers and other employees with significant client contact and high-level knowledge of the employer’s business operations, which provides that the employee may forfeit limited types of bonus income, such as profit sharing, if the employee violates post-employment covenants that are reasonable in time and geographic scope.

Under the amended statute, enacted through Oregon Senate Bill No. 169 which was signed into law by the Governor of Oregon on May 21, the existing restrictions will become even more aggressive.  The new rules include:

Instead of non-competition agreements being “voidable” by a court, the new law makes them “void and unenforceable” unless statutory conditions are met. 

The new law shortens the maximum period of restriction for non-compete agreements from 18 months to 12 months.  This requirement does not apply to covenants not to solicit employees or customers.

The amendments increase the income threshold for enforcement of non-compete agreements to $100,533, adjusted annually for inflation.  In contrast, the prior version of the statute used the median income of a family of four per the U.S. Census Bureau.  This requirement does not apply to covenants not to solicit employees or customers.

The new law also provides that, notwithstanding the various limitations on non-compete agreements, a non-compete agreement is generally enforceable for up to 12 months if the employer agrees in writing to provide the employee, for the period of restriction, with the greater of at least 50% of the employee’s annual gross base salary and commissions at the time of termination, or 50% of $100,533, adjusted annually for inflation. 

We will continue to monitor legislative developments in Oregon and the many other states where non-compete agreements are the subject of increasing legislative scrutiny.