APPLIES TO Faith-Based Organizations

EFFECTIVE July 8, 2020

QUESTIONS? Contact HR On-Call (888) 378-2456

Employees classified under the “ministerial exception” because they perform religious functions within their job may be precluded from making employment discrimination claims against the religious entities that employ them. In Our Lady of Guadalupe School v. Morrisey-Berru and St. James School v. Biel, the U.S. Supreme Court expanded the exception analysis into a review of all the circumstances, rather than limiting it to a specific test.

In 2012, the U.S. Supreme Court used four factors to determine whether an employee’s role is ministerial: (1) formal job position title, (2) substance of the position based on the title, (3) the employee’s use of the title, and (4) the religious functions the employee performed for the religious institution. In Our Lady, the 9^th Circuit stated that all four factors must be met to qualify for the exemption. Upon review, the Supreme Court said that these four factors were not meant to be a “rigid formula,” and that courts should “take all relevant circumstances into account.”

There, employee teachers taught academics and religion at Catholic schools to elementary-aged children and attended religious services with the children. The teachers were subsequently terminated based on alleged poor performance, and they brought discrimination suits against their employers. The Court considered the teachers’ actual duties and the fact that the schools “expressly saw [them] as playing a vital part in carrying out the mission of the church” in ultimately stating that they qualified for the exception. The fact that they did not have a “minister” job title was not determinative.

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APPLIES TO All Employers with CO Employees

EFFECTIVE As Indicated

QUESTIONS? Contact HR On-Call (888) 378-2456

On July 15, 2020, the Health Families & Workplaces Act (HWFA) went into effect, instituting a three-part mandatory statewide paid sick leave requirement on all employers.  The three types of paid sick leave include COVID-19 emergency paid sick leave, paid sick and safe time, and public health emergency paid sick leave.  Some provisions have a delayed effective date.

APPLIES TO All Employers with OR Employees

EFFECTIVE As Indicated

QUESTIONS? Contact HR On-Call (888) 378-2456

The Oregon Bureau of Labor and Industry (BOLI) has released model notices for two laws whose notice requirements have very recently or will soon be going into effect.  These are the Workplace Fairness Act, which covers anti-discrimination and anti-harassment policies, and the Pregnancy Accommodation notice.

Workplace Fairness Act.  Last year, the Oregon legislature passed the Workplace Fairness Act, which implemented various anti-discrimination and anti-harassment protections.  Among these was the requirement for employers to adopt a written anti-discrimination and anti-harassment policy no later than October 1, 2020.  The policy must contain specific information, including:

• Notification to employees that they have five years to pursue claims of prohibited conduct;
• Notification to employees that the employer cannot require workers to enter a non-disclosure or non-disparagement agreement;
• Explain that employees who are claiming to be victims of prohibited conduct may voluntarily request to enter an agreement including non-disclosure, non-disparagement, or no-rehire terms, and that employees have a seven-day revocation period to withdraw such agreement;
• Advise employees and employers to document any incidents of potentially prohibited conduct.

The Oregon Bureau of Labor and Industries has released a template policy that covers all topics required by the Act, available on the sexual harassment page of its website.  Employers may utilize this template or create their own policy.  The final policy must be distributed to all employees, provided to new employees at time of hire, and provided to an employee who reports information about alleged prohibited conduct.

Pregnancy Accommodation Notice.  Effective January 1, 2020, Oregon employers of six or more employees must provide reasonable accommodations to employees who are limited by pregnancy, childbirth, or related medical conditions.  This requirement extends to known limitations related to pregnancy, even if they are not on the level of a disabling condition.

Employers must also conspicuously post a new workplace notice, and provide copies (1) to existing employees as of June 29, 2020, (2) at time of hire, and (b) within 10 days of an employee informing them of their pregnancy status.  A template notice is now available from the Oregon BOLI website.

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APPLIES TO All Employers with VA Employees

EFFECTIVE July 27, 2020

QUESTIONS? Contact HR On-Call (888) 378-2456

Virginia is the first state in the country to implement an Emergency Temporary Standard (ETS) for managing COVID-19. It went into effect on July 27, 2020. Employers must assess the “exposure risk level” of disease-related hazards in the workplace defined as “very high,” “high,” “medium,” and “lower,” and the top three classifications must implement an infectious disease preparedness and response plan. Employers who comply with (unidentified) CDC publications to mitigate COVID-19 related risks are deemed to have complied with the ETS. All employers must also:

• Tell employees how to self-monitor for symptoms;
• Implement policies and procedures for employees to report COVID-19 symptoms;
• Prohibit infected or exposed employees from reporting to a worksite (other than a remote work arrangement) or client location;
• Make employees aware of sick leave policies;
• Implement specified confidential notification procedures when an employee or contractor receives a positive COVID-19 test result;
• Ensure employee access to their own COVID-19 exposure and medical records;
• Implement return to work policies and procedures following illness or exposure (including following strategies mirroring those formerly set forth by the CDC);
• Implement policies and procedures to observe physical distancing;
• Ensure access to common areas, breakrooms, or lunchrooms is closed or controlled;
• Ensure compliance with respiratory protection and personal protective equipment standards when occupying a vehicle for work purposes;
• Follow specified sanitation and disinfecting guidelines; and
• Provide personal protective equipment where required, including training on use.

There are additional requirements for jobs classified as medium, high, or very high exposure risk. Employers in the top three classifications have specific training requirements, including 30 days after the ETS effective date to implement training requirements on the ETS and 60 days to implement training requirements on the employer’s infectious disease preparedness and response plan. Finally, employers are prohibited from discriminating against employees exercising their rights under the ETS.

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