2021 Oregon Legislative Alert

To stay on top of issues important to employers, Cardinal Services tracks the 2021 Oregon Legislative Session for potential laws that will impact employers and business owners.  Only bills that have been assigned to a committee and have had a work session scheduled still have a chance of becoming law. Here are the remaining employer-related bills being considered (with links to the full-text of each bill). 

HB 2474 – Oregon Family Leave Act [OFLA]: This bill proposes changing OFLA in the following ways: (a) any employer with at least one employee will be subject to OFLA (currently the law only applies to employers with 25 or more employees); (b) employees become eligible for leave after 30 days of employment (currently 180 days and an average of 25 worked hours per week); (c) eliminates any disciplinary action if the employee fails to provide advance notice of the leave; and (d) expands the definition of “sick child” to include care for the employee’s child whose school or day care is closed due to a public health emergency (this has already been added to the OFLA regulations). 

HB  2205Private Attorney Acting on Behalf of the State of Oregon: Establishes a procedure for a person to bring action in name of the state to recover civil penalties for violations of state law. This bill would create a process for a person, or non-profit organization to bring forward a lawsuit. The Oregon Bureau of Labor & Industries (BOLI) currently performs this function. This bill is modeled on a similar law in California which has led to a marked increase in litigation and forced employers into costly settlements.  

HB 2974Exclusion of Legalized Drugs from Drug-Free Workplace Policies: This bill would make it an unlawful employment practice to condition employment on refraining from using any substance that is lawful to use in Oregon (e.g., cannabis and now, psilocybin) during nonworking hours.  The only exceptions are for bona fide occupational qualifications or compromised performance of work while impaired.  This proposed law might run up against the 2011 Oregon Supreme Court decision concerning regulations around commercial driver licenses.  In the Emerald Steel Fabricators, Inc., v. Bureau of Labor and Industries, the Oregon Supreme Court held that an employer did not need to accommodate an employee for the use of medical marijuana as it was illegal under federal law. 

SB 716Childcare Accommodation: Requires employers to reasonably accommodate an employee’s work schedule related to child care availability. If this bill passes, it will take effect immediately. This raises the question: what is reasonable accommodation? That is not defined. In principle, most employers agree that they should work with employees to help with childcare challenges. Bottom line: the passage of this bill may mean employees without children or with more flexible child care schedules may have their schedules shifted without their input or choice.  

SB 169 Non-Competition Agreements: This bill makes it more difficult for employers to obtain an enforceable non-competition agreement by narrowing the pool of employees who can be required to sign an agreement to those making at least $100,000 per year.  In addition, the bill reduces the duration of such agreements from 18 months to 12 months. 

SB 483 – Presumption of Retaliation: If passed, SB 483 would create a rebuttable presumption that an employer has unlawfully retaliated against an employee or applicant if the employer terminates an employee or bars an applicant within 60 days after the employee or applicant makes a complaint or engages in other protected activity. The law takes effect upon passage. 

SB 569 Mandating Driver’s Licenses: This bill would prohibit an employer from requiring employees to have a valid driver’s license as a condition of employment, unless the job requires driving as an essential function, or the requirement is related to a legitimate business purpose. 

HB 2358 Overtime for Agricultural Workers: This bill would require agricultural employers to pay their employees overtime—1.5 times their regular rate of pay—for each hour in excess of 40 hours in one workweek. 

HB 2420 Extension of Time to File: If passed, this bill extends the deadline to one year for an employee to file a BOLI complaint alleging retaliation or discrimination for reporting unsafe working conditions. The current deadline for making such report is 90 days. 

HB 2489 Independent Contractors: This bill changes Oregon’s wage and hour laws so that individuals who perform services or labor in exchange for compensation are presumed to be employees.  The presumption can be overcome by demonstrating through a preponderance of the evidence that the individual is an independent contractor.  This bill also seeks to standardize the factors used by various agencies when determining whether a person is an independent contractor. 

Get Employer-Related Legislative News and Information as it Happens 

As the Oregon state legislature’s session continues, Cardinal will be keeping tabs on the laws that impact employers and the business community. We will keep you informed with email alerts if any of these potential laws move forward.