As employees are returning to work and vaccines are becoming more available (all Oregonians over 16 will be eligible by July 1st according to Governor Brown), employers may start requiring vaccination.
Can an Employer Mandate Vaccination?
Generally, yes. Some exceptions exist for specific kinds of workers, contractual limitations, and protected categories.
Exempt Employees
Pre-COVID state law requires employers of healthcare workers to provide vaccination, at no cost, to at-risk employees. This same law states that the employer may not require vaccination as a condition of employment. Subject workers include not just healthcare workers but also firefighters and police.
Contractual Limitations
Unionized employees may have a collective bargaining agreement that prohibits mandatory workplace vaccination. Although less likely, individual employment agreements may also have such a prohibition.
Religious Convictions and Disability
Civil rights and disability laws require employers to consider requests for exemptions from employees with either a sincerely held religious conviction or a disability. Employers will need to determine whether a reasonable accommodation can be made. Accommodations creating an “undue hardship” on the business or a “direct threat” to the safety of others need not be given.
Bonus for Vaccination? No so Fast.
While an employer may want to provide a financial incentive to convince a worker to get vaccinated, it could trigger a discrimination claim. For instance, an employee who refuses vaccination due to a bona fide religious conviction could argue that the employee is being discriminated against and receiving unequal pay as a result of his/her religious convictions, or is being retaliated against for asserting his/her rights.
COVID-19 Vaccines & Employers
Yesterday, Moderna's vaccine received FDA advisory committee approval and the FDA is expected to officially authorize distribution, along with Pfizer/BioNTech's vaccine which was authorized and began distribution last week.
Can Employers Require COVID-19 Vaccination?
Probably. Oregon is an “at-will” state, meaning that an employer can terminate an employee for any reason not contrary to law, such as discriminating against one’s national origin. Employers can specify and change the conditions of employment. Accordingly, an employer could arguably implement a new policy requiring employees to become vaccinated or else they will be terminated.
A legal challenge could involve a claim for religious or disability accommodations.
The at-will rule would not apply to employees with “for cause” termination protections in their employment agreements. Unionized employees likely have contracts with such terms.
Currently, Oregon requires employers to pay for COVID-19 testing if they require it. New legislation may require employers to pay for any required vaccination.
Can Employers Be Liable for Not Requiring Vaccination?
An employer is required to provide a reasonably safe working environment for its employees. Although a stretch at this time, especially since vaccines are not yet available to the general public, one may argue that the failure of an employer to mandate vaccination constitutes an unsafe working environment.
Oregon has already imposed specific requirements for employers regarding COVID-19 and providing a safe working environment, with some requirements going into effect just last week.
Current Workplace Requirements
Oregon has imposed COVID-19 requirements in the workplace such as the following:
• Employers are required to eliminate the need for workers to be within six feet of another person, unless the employer can demonstrate that it is not feasible for certain activities.
• Employers must ensure that all people at the workplace wear a mask, face covering or face shield at no cost to the employee.
• Employers must display certain COVID-19 posters depending on the business sector.
• Employers must conduct an exposure risk assessment with input from employees. Those employers with over ten employees must record their findings, complying with specific requirements.
Please contact us if you have any questions regarding COVID-19 employment law issues. Enjoy this holiday season, but it would be best to avoid Santa’s lap.
Turkey, Pumpkin Pie and Pandemic
We lament that Thanksgiving will be different this year because of the pandemic and Governor Brown’s restrictions. But an epidemic gave us the holiday.
The original Thanksgiving dinner never would have occurred without the Great Epidemic of 1616-1619.
A French trading vessel wrecked off the coast of Massachusetts near Cape Cod. The native Wampanoag took four men captive. One of them carried the epidemic causing disease--long thought to be typhus, small pox or plague but recently determined to be leptospirosis (a bacterial blood infection).
Having been exposed for centuries, most Europeans had developed immunities and resistance. However, for the Wampanoag the disease was devastating. It wiped out as many as 90% of the Wampanoag population in southern New England.
Still, the remaining Wampanoag outnumbered the settlers. Prior settlers had brutalized the Wampanoag and the Wampanoag people could have overcome the present group. However, the Wampanoag were terrified that the epidemic came from the white man’s God and was intended to wipe them out.
Accordingly, the Wampanoag leader Massasoit elected to make peace and established an alliance with the Pilgrims in the spring of 1621. The Wampanoag taught the Pilgrims what to plant and how to hunt certain wildlife and fish. In turn, the Pilgrims invited the Wampanoag to join them for the first Thanksgiving in the Fall of 1621.
While you eat your turkey with empty seats at the table this year, remember that the first Thanksgiving was also shaped by an epidemic . . . and the Wampanoag and Pilgrims didn’t even have Zoom.
Happy Thanksgiving!
Doing Business During the Apocalypse
Helpful Hints for Business Owners
The smoke has cleared and the sun is shining, but COVID-19, wildfires, protests and political uncertainty have left many business owners in the dark. Hopefully, this will provide some light.
Landlords and Accrued Rent
Oregon’s ban on commercial evictions for failure to pay rent is set to expire September 30, 2020. Tenants have until March 31, 2021, to pay the accrued rent. As of October 1, 2020, a landlord may send a notice to a tenant regarding the accrued rent. Tenants then have 14 days to send a notice back of intent to repay or else the landlord can charge a penalty of one half of a month’s rent. For assistance and assurance that the notice complies with Oregon law, contact A+A.
Restaurant Owners
If the nice weather continues, restaurant owners should apply for a "Healthy Business permit" offered through the Portland Bureau of Transportation's Safe Streets Initiative and expand their outside seating. The permit allows the use of sidewalks and parking spaces. Some even allow the use of the street. If granted, there is no charge. See https://www.portland.gov/transportation/safestreetspdx/what-healthy-businesses-permit
Lawsuits
Generally, all civil jury trials in Multnomah, Clackamas and Washington counties are postponed due to Coronavirus. Multnomah County Court operations are further hindered by the move to the new courthouse, which has been postponed to occur on October 5, with a delay in most operations until October 19. Some bench trials are permitted in Clackamas and Washington counties but depend on available staff and facilities. However, complaints can still be filed and are being processed by the courts. The resulting backlog of cases adds pressure for settlement for those that do not want their matters tied up in court indefinitely. Please contact A+A if you need help in negotiations or exploring alternative dispute resolution options.
Available Funds
While certain grants thru the PPP (Paycheck Protection Program) and EIDL (Economic Injury Disaster Loan) programs are no longer available, business owners can still obtain a 30 year, 3.75% interest (2.75% for nonprofits) loan for working capital and operating expenses through the Small Business Administration’s (SBA) EIDL program. For quick access to money, if a business owner already has a relationship with an SBA lender, up to $25,000 is promptly available and can be repaid through the EIDL loan. See https://www.sba.gov/funding-programs/loans/coronavirus-relief-options
For legal assistance in these uncertain times, contact A+A.
If we all light up we can scare away the dark.
-Passenger, Scare Away the Dark
Using the Fires, Riots or COVID-19 to Your (Legal) Advantage
Effects on Contractual and Leasehold Requirements
Certain court-recognized defenses could be used to fend off claims arising from the failure to adhere to contractual or leasehold obligations in these “apocalyptic” times.
Oregon courts have recognized impossibility, impracticability and frustration of purpose as defenses to breach of contract/lease claims. If any such defense applies, then contract obligations no longer apply. For instance, a tenant could terminate a lease early and avoid paying rent.
Currently, state and federal orders prevent a landlord from terminating a lease due to nonpayment of rent. However, the rent continues to accrue and the tenant cannot walk away from the lease. By contrast, the legal theories discussed below could terminate the lease and any continuing rent obligations.
Impossibility
Generally, impossibility applies when one is unable to perform under an agreement because of a change in circumstances since the contract was entered.
Frustration
Frustration occurs when performance is possible but essentially worthless because of the change in circumstances.
Impracticability
With impracticability, while performance may still be possible, it has been made impractical due to the occurrence of some unexpected event. The impracticability defense is included in the Uniform Commercial Code (which applies to commercial goods) and most recent court decisions reference it as opposed to the other defenses.
These legal theories require the occurrence of some unanticipated event. Such an event can be an “act of God,” including a natural occurrence of extraordinary and unprecedented proportions.
The fires and COVID-19 arguably constitute such a natural occurrence. Also, Oregon Governor Kate Brown’s stay home and evacuation orders arguably make it impossible or impractical for one to continue to adhere to the requirements of a contract or lease.
Force Majeure Clause
Before resorting to these common law defenses, one should look at the agreement itself for any language that might provide grounds for early termination. One such escape hatch is known as a force majeure clause. It typically provides that parties are relieved of their obligations in certain circumstances such as war, riot or act of God. The fires, riots and COVID-19 could arguably trigger such a clause.
Whether current catastrophes allow one of these legal defenses has not yet been litigated and likely will not be decided upon for some time. Multnomah County Presiding Judge Stephen Bushong has indicated that he will not permit civil jury trials until a vaccine to COVID-19 is available. In the meantime, a good negotiator should be prepared to raise or respond to these defenses. For assistance, contact A+A.
Protest Update
Legal Clash & Powder Keg
As the protests heat up, the legal issues mount. The standoff against the federal officers is not just with the protestors but also local officials. We are witnessing a clash between federal and state/local law.
Wed. 7/22
The Portland City Council voted unanimously to cease any cooperation between city law enforcement and federal agents. The Portland Police are barred from providing any operational support, sharing or receiving information with the federal officers, or policing protests alongside them. A federal officer that was stationed in the Portland Police command post has been removed.
Portland city attorneys sent a cease-and-desist letter to the federal government threatening fines for erecting the metal fence surrounding the downtown federal courthouse without a permit or city approval. The letter states, “the fencing and barriers in the right of way create a hazard for Portlanders by blocking the bike lane . . . .”
Thurs. 7/23
U.S. District Court Judge Michael H. Simon issued a temporary restraining order against federal officers. The media and legal observers had filed suit claiming that the federal officers were targeting them. Judge Simon ruled that federal officers are barred from arresting, threatening to arrest or using physical force against someone they reasonably know is a journalist or legal observer, unless they have probable cause to believe that that person has committed a crime. Journalists and legal observers are also not required to follow orders to disperse. Judge Simon previously imposed similar limitations on Portland Police.
The Portland Fire Bureau announced that it will not permit any law enforcement to use city fire stations as a base for tactical operations. Its decision applies to city as well as federal officers, as it accused the city of lying to the public about the fire bureau’s level of cooperation with federal authorities.
Fri. 7/24
Oregon Attorney General Ellen Rosenblum lost her request for a temporary restraining order against federal officers. U.S. District Judge Michael Mosman ruled that the state lacks standing to bring the suit. In other words, the Court ruled that, as opposed to individuals, the state of Oregon has not been harmed by the seizing and detaining of individuals without probable cause, as alleged in the lawsuit.
Mon. 7/27
The federal government indicated that it will send additional federal officers to Portland. The U.S. Marshals Service announced that it will send 100 additional deputy marshals, and the Department of Homeland Security is considering sending 50 additional Customs and Border Protection personnel.
Seems Otto von Bismarck’ s quote applies:
“Europe [Portland] today is a powder keg and the leaders are like men smoking in an arsenal . . . . A single spark will set off an explosion that will consume us all . . . . I cannot tell you when that explosion will occur, but I can tell you where . . . . Some damned foolish thing in the Balkans [downtown area] will set it off.”
Federal Officers in Portland
Flash Bangs, Tear Gas & Legal Questions
Last night, I decided to check out the downtown Portland protests. Apparently, Mayor Ted Wheeler had the same idea. And both of us experienced tear gas for our first time.
I went to the federal courthouse, where I have had many hearings and trials. It has become the focal point of the protests ever since President Trump ordered federal officers to come to Portland.
I did not see the vandalism and mayhem used to justify the federal troops, except for a few small fires outside of the courthouse. What I noticed mostly was the coordinated conduct of the protesters, despite being the after-midnight crowd and wearing black. They were barbecuing and handing out food across the street from the courthouse. Some pulled wagons full of snacks and water bottles. A makeshift ambulance was waiting nearby, attended by people with red crosses taped to their clothing. When people started to run others yelled out to walk and stay together.
What is the legal justification for the federal officers’ presence in Portland?
The Trump administration has stated that they are here to protect federal properties and monuments. This is permitted. Federal officers may enforce federal laws. However, While House Chief of Staff Mark Meadows acknowledged that the presence of federal officers in Portland is not just about protecting statues. “The statues are one thing, but it’s really about keeping our communities safe,” he asserted. Striking protesters with batons or whisking away others in unmarked vans would appear to advance neither goal.
Can federal officers arrest people for crimes beyond damaging federal property?
Yes. Federal officers can also arrest individuals for committing other federal crimes beyond destroying federal property. However, the officers need probable cause that the federal crime is being committed. Oregon Attorney General Ellen Rosenblum recently filed a lawsuit and is seeking an injunction against federal officers for detaining people without such probable cause.
Do the federal officers need permission from state and city leaders?
Yes and no. Federal officials usually only dispatch federal agents to assist with local incidents if the state or municipal governments ask for help and deputize that responsibility. Here, the local leaders have done the opposite. Accordingly, the federal agents cannot generally rely on state and local laws to justify their arrests. However, they can still enforce federal laws without such consent.
What about state and local crimes committed in front of a federal officer?
Most likely the federal officers in Oregon cannot enforce state and local law even if the crime is committed in front of them. Oregon allows a federal officer to arrest someone that has committed any crime in the federal officer’s presence but only if certain requirements are met. The federal officer must have probable cause to believe the person committed the crime, the officer must inform the person of the federal officer’s authority and reason for the arrest, and the officer must have been first certified by the state as having received the proper training. ORS 133.245.
Should you bring a gas mask if you attend a protest?
Yes.
Update—Police Misconduct & Qualified Immunity Defense
Some Bad and Some Good
In my last Legal Bits, I suggested that the Supreme Court should use pending cases as an opportunity to redefine the qualified immunity doctrine, which has been broadly interpreted to protect egregious police misconduct.
As a refresher, qualified immunity is a court-created defense available to civil servants that insulates them from civil liability. A police officer need only show that use of excessive force did not violate a clearly established prior court ruling that barred such conduct.
Let’s start with the bad. Today, the Supreme Court announced that it will not hear cases that seek the reexamination of the qualified immunity defense. Four votes of the justices are needed to grant review of a case.
Now for the good. My Legal Bits wound up in the hands of a friend running for the U.S. Senate. (Yes, another plug for Steve Bullock of Montana.) According to Steve, the Senate is considering legislation to limit the police’s use of the qualified immunity defense. There appears to be bipartisan support for qualified immunity reform.
Come senators, congressmen
Please heed the call
Don't stand in the doorway
Don't block up the hall
For he that gets hurt
Will be he who has stalled
The battle outside ragin'
Will soon shake your windows
And rattle your walls
For the times they are a-changin'
—Bob Dylan
Millions March But Just Nine Needed
Changing the Law to Curtail Police Misconduct
When Derek Chauvin, the Minneapolis police officer, put his knee on George Floyd’s neck he appeared to stare straight into the camera. He was not deterred by being filmed by either a police body camera or the phone of an onlooker. Why wasn’t he concerned, at least for his own legal liability? Two words--qualified immunity.
Chauvin likely knew that as a police officer he would be protected by qualified immunity, a court-created doctrine with no constitutional basis. As the Supreme Court held in the 1982 case of Harlow v. Fitzgerald, “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
Courts have construed “clearly established” as requiring a prior case with nearly identical facts. In other words, Chauvin could argue that there is no legal precedent specifically providing that kneeling on the neck of another is forbidden.
Practically, qualified immunity can protect egregious police misconduct. As stated by the Supreme Court in Malley v. Briggs (1986) qualified immunity “provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”
Both the Court’s most liberal member, Justice Sonia Sotomayor, as well as it most conservative, Justice Clarence Thomas, have expressed a desire to revisit qualified immunity. The Court has indicated that it will hear argument in the appeal of the 9th Circuit case of West v. City of Caldwell. West involves use of the qualified immunity defense to avoid police liability for smashing windows and lobbing canisters of tear gas into a home because someone with a warrant was suspected to be inside.
A new ruling from the nation’s top court would provide pause to police officers. While protecting a civil servant from civil lawsuits makes sense for teachers, firefighters and EPA officials, providing the same qualified immunity protection to an official carrying a deadly weapon may need some changes.
If you know what life is worth
You will look for yours on earth
And now you see the light
You stand up for your rights.
—Bob Marley
Money for Nothin' . . . Except More Forms
SBA Releases New Guidance on How to Keep PPP Money
The SBA released guidance on how recipients of coveted Paycheck Protection Program (PPP) funds can keep the money and not pay it back. This should help both businesses that already received funds as well as those on the sidelines that delayed applying. Funds are still available, although not likely for long, and certain banks and credit unions are still taking applications.
The PPP is part of the Coronavirus Aid, Relief, and Economic Securities (CARES) Act, which President Trump signed into law on March 27, 2020. The PPP was intended to provide $600 billion to small businesses to pay employee wages and other critical business expenses. Funds are originally provided as a loan, which is forgiven if at least 75% of the funds are used for payroll and any balance for utilities, mortgage interest or rent.
Under the new guidelines, an employer must file SBA Form 3508 (Paycheck Protection Program Loan Forgiveness Application) with its lender to obtain forgiveness.
Employers must spend PPP funds within eight weeks, but the new guidelines allow some flexibility in determining when money is used for payroll. Payroll costs are considered paid when paychecks are distributed, an ACH credit transaction is originated, or the day the employee earned the pay. The borrower can use an "Alternative Payroll Covered Period" to calculate payroll costs using the eight-week period beginning with the first pay period following disbursement of PPP funds.
The SBA guidance allows for forgiveness of amounts paid to owners. Similar to employee wages, the amount paid cannot exceed $15,385 (the eight-week equivalent of $100,000 per year) per individual.
The PPP originally required an employer to maintain its workforce to allow loan forgiveness. The guidance now provides clarified exceptions as well as a new Full Time Equivalency (FTE) safe harbor provision. Exceptions include reductions for (1) positions for which the borrower made a good-faith written offer to rehire an employee that the employee rejected, (2) terminations for cause, (3) voluntary resignations, or (4) agreed upon reductions in hours. The FTE safe harbor provides that an employer can reduce its workforce as long as it is restored to the same, prior level.
Further tweaks may be coming, including possible changes to the eight-week repayment period and the 75% payroll requirement. Congress appears to be listening to business owners, who are facing significant non-payroll costs or trying to reopen but unable to get their employees to return to work.
What's Your Plan?
No need to read further if no emergency order or pandemic will ever prevent you from working and you will never die. For those still reading, you do not need to worry about a monster at the end of the story, but you do need to make a plan.
What have you done to protect your business?
Business interests should be properly structured and documented. Does your business provide for limited liability? Is it properly registered and current with the state? Do you have Articles of Incorporation? Bylaws? Operating Agreement? Annual Meeting Minutes?
Those that applied for Payroll Protection Program (PPP) or other government assistance understand the importance of keeping easily accessible records.
Are you receiving income from a business through distributions, profit sharing or a salary? Is this adequately documented?
As resources become depleted due to the pandemic, uncertainty and conflict may arise over the allocation of funds. Having Bylaws or an Operating Agreement that clearly defines how and when business income and assets are to be divided is invaluable.
If a conflict has already ignited, it might not be too late. Getting assistance of counsel early to help with documentation can help douse the fire before much damage occurs.
Where will your assets go when you die?
Without a properly executed will or trust, your assets will likely be distributed according to Oregon (intestate) law. You will not have any input. The instructions you jotted down on that paper, without the required witnesses, will be disregarded.
Now is the best time to contact an attorney to assist you in making sure that your intentions are recorded and enforceable. COVID-19 has shown us how, within a short time and without any notice, our lives can be put at serious risk. Having an estate plan will not only ensure that your desires are followed but will ease the burden otherwise saddled on others to sort through and divide your estate.
You should make it through this pandemic and live for many years. Knowing that your business and personal interests are documented and protected will make those years more enjoyable.
What did You Do Today? Productivity During the Pandemic
When I was a young kid, in the summer my father would come home after a long day’s work and ask me, “What did you do today?” It was not meant, or at least I did not take it, as a greeting. He wanted to know. He wanted me to be accountable, to be productive.
With stay-home orders, people working from home and many without work, the question remains—what did you do today?
The paradigm of our worlds has shifted. We cannot predict when and if the old days will return. But, we can still be productive.
We have dusted, organized and cleaned our houses. Now we should get our business affairs in order.
Do you have a will, trust or plan for your estate?
Are you up to date with recent changes in employment law and your rights?
Are you current with the new rent deferral laws for residential as well as non-residential property?
Have you reviewed and applied for the loans and grants available to businesses?
Doing puzzles and reconnecting with family is important, but so is protecting your assets and income. If this all seems too pragmatic, I blame it on another father-son question. Many years ago, when I was contemplating a philosophy major, my father asked me, "How many philosophers can you find in the yellow pages?"
Please contact us if you have any questions, preferably legal and not philosophical. We can assist you while adhering to social distancing, and without you having to leave your home.
How Do You Limit Your Exposure, Not Just to COVID-19?
(Answer: Put your distancing in writing.)
1. Why draft a workplace distancing policy?
Oregon Executive Order No. 20-12 requires it. All businesses not otherwise closed by the order are required to establish, implement and enforce social distancing policies. The penalty for not adhering to the order is a class C misdemeanor. However, criminal enforcement does not seem to be a high priority for the state. Oregon has established a “hotline” for employees to report nonconforming employers. OSHA fields these calls and has threatened to inspect and shut down businesses that are not complying with the governor’s order.
2. What is so important about this policy statement?
A well-drafted policy will not only comply with the governor’s order and keep your employees safe, it should help limit your liability for possible claims by employees and others. Soon we may see a wave of claims brought by employees, arguing that they contracted COVID-19 due to employer negligence. Negligence involves failing to exercise reasonable care. In determining reasonableness, courts look to community standards.
Arguably, standards for how an employer should safeguard against COVID-19 have been published by the Oregon Health Authority (OHA), Occupational Safety and Health Administration (OSHA), and Centers for Disease Control (CDC). A well-drafted policy should incorporate these standards. In addition, the policy should address the state and federal requirements governing the use of Personal Protection Equipment (PPE).
An employee may also argue that a workplace is unsafe due to an employer’s failure to implement appropriate COVID-19 policies. If deemed unsafe, an employee may be entitled to stay home and the workplace may be shut down by OSHA.
3. Should the policy address the conduct of and with non-employees?
Yes. Executive Order No. 20-12 requires the policy to address how the business will maintain social distancing protocols for visitors. Customers, contractors and any other visitors are not just a possible source of transmitting COVID-19 but also a possible source of legal complaints. They could claim that they contracted COVID-19 due to a nonexistent or poorly drafted workplace distancing policy. In addition to drafting protocols for such visitors, you should consider further protecting your business with an indemnification and hold harmless agreement.
4. Does this apply if my employees telecommute or we shut down our business?
Every business should develop a workplace distancing policy. Whether the business has a single employee at the office to pick up mail and perform administrative tasks or the entire workforce is currently absent but will eventually return. COVID-19 will likely forever change the way we interact and conduct business with each other. New standards will emerge. Forward thinking employers should have policies to address and protect themselves in this brave new world.
Please contact us if you need assistance in drafting a workplace distancing policy or have any related questions or concerns.
Oregon’s COVID-19 Orders and Your Business
Closed Businesses
Businesses in Oregon must close in specified industries, ranging from hair salons to furniture stores to social clubs. (Please contact us for the complete list.) Restaurants, bars and coffee shops remain closed except for takeout or delivery service. All otherwise permitted retail businesses are required to designate someone to establish and enforce social distancing policies.
Business Offices
Work in business offices is only permitted if telework and work-at-home options are not available--in light of position duties, availability of teleworking equipment and networking adequacy. Such business offices must designate someone to establish and enforce social distancing policies.
Childcare Facilities
Childcare facilities can only stay open if they have groups of no more than 10 children in the same group each day, and prioritize the childcare needs of first responders, emergency workers and healthcare professionals.
Medical, Dental and Veterinary Clinics
All elective and non-urgent medical procedures that utilize Personal Protective Equipment (PPE)--including procedures at health, dental and veterinary clinics--must be cancelled or rescheduled to a date no earlier than June 15, 2020.
Penalties
Failure to comply with the "Stay Home" or "PPE" orders constitutes a Class C misdemeanor, with penalties of up to 30 days in jail, a $1,250 fine, or both. Oregon has established an online reporting process wherein employees can submit complaints about their employers online to Oregon’s Occupational Safety and Health Division.
Please contact us if you have any questions or concerns about complying with Oregon’s COVID-19 orders.
COVID-19 Update: New Requirements for Paid Time Off and Leave
On Wednesday, President Trump signed legislation significantly changing an employer's responsibilities relating to paid time off and work absences. Following is a summary of some of the important changes.
Emergency Family and Medical Leave Expansion Act
Applies to all employers with fewer than 500 employees.
Employees are eligible if employed for at least 30 calendar days.
Employees are entitled to take 12 weeks of leave to care for a child under 18 if school has been closed due to COVID-19.
Employers must pay employees for leave after 10 days and at 2/3 of the regular rate of pay.
Emergency Paid Sick Leave Act
Requires all employers with fewer than 500 employees to provide 2 weeks of sick leave.
Employee can take sick leave because:
The employee is subject to a governmental quarantine or isolation order related to COVID–19.
The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.
The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.
The employee is caring for an individual who is subject to an order as described in #1 or has been advised as described in #2.
The employee needs to stay home to care for a child due to school closures related to COVID-19.
Employers with fewer than 50 employees may apply with the Secretary of Labor for an exemption from the requirements of either Act if the requirements would jeopardize the viability of the business.
Tax credits are to be provided to employers to compensate for costs of complying with these new requirements.
These changes are set to expire by December 31, 2020.
We anticipate future legislative developments. Please contact us with any questions or for any assistance in complying with these requirements.
Coronavirus and the Oregon Employer - Part Two
(Originally published on 3/12/20.)
Last night, Oregon Governor Kate Brown banned public gatherings of more than 250 people. The Trailblazers and Timbers followed their respective leagues by indefinitely postponing games, and University of Oregon and Oregon State are canceling in-person classes. These measures to limit the spread of Coronavirus have heightened the frenzy among employees as well as employers.
This second article, in a two-part series, answers some questions facing Oregon employers.
Can an employer terminate someone who is absent from work due to contracting the Coronavirus?
The Oregon Family Leave Act provides that employers with 25 or more employees keep a job open to an employee that is absent for up to 12 weeks due to a serious health condition. Whether the Coronavirus causes a serious health condition will likely depend on how one reacts to it. Some people experience not more than a mild cold, while others end up on life support.
Also, an employee could claim that such a termination constitutes a wrongful discharge. An employee may not be discharged for fulfilling a public duty or societal function. Arguably, self-quarantining in order to prevent others from catching the virus could constitute fulfilling a public duty or societal function.
What if an employee refuses to come to work out of fear of contracting the coronavirus?
Depending on the circumstances, an employer can generally enforce its standard attendance policies.
If an employee has a medical condition that increases the risk of contracting the virus, reasonable accommodation should be considered, such as working from home.
OSHA provides that the workplace must be free from recognized hazards that are causing or are likely to cause death or serious harm.
What should an employer do now?
• Review and consider whether to make modifications to existing policies regarding medical leave, sick leave, and paid time off.
• Review anti-discrimination and harassment policies with employees. Remind employees that adverse treatment, such as singling out employees of certain ethnicities or national origins where the virus originated, will not be tolerated.
• Keep lines of communication open with employees. Assure employees that the employer is staying current with the news and public announcements and cares about employee safety.
• Wash hands, and remind employees to do the same.
Coronavirus and the Oregon Employer - Part One
(Originally published on 3/9/20.)
This last weekend, Oregon has declared a state of emergency over the Coronavirus outbreak, with the number of confirmed cases reaching 16. The frenzy continues.
Oregon employers are facing many questions with uncharted legal ramifications. This two-part series attempts to answer some of these questions.
Can an employer send a sick employee home?
Generally, yes.
An employer should be sure to comply with the obligations of the Americans with Disability Act (ADA). Although the virus is unlikely to qualify as a disability under the ADA, the ADA prohibits discrimination based on a perceived disability. Also, the ADA regulates disability-related inquiries and medical examinations for employees regardless of whether they have an ADA disability.
The employer should be careful to uniformly and consistently implement any policy. For instance, treating an employee differently because of race, ethnicity, or national origin would constitute unlawful discrimination.
Must an employer send an employee home?
If an employee is sneezing and showing symptoms of being sick, other employees may insist that the employee be sent home. Usually, the decision belongs to the employer. However, there may be an argument that being forced to work with a sick employee violates OSHA standards. The bar is high, as the standard is whether the place of employment is free from recognized hazards that are causing or are likely to cause death or serious physical harm.
Must the employer continue to pay an employee that is sent home for being sick?
This depends on the employer’s sick policy. If the policy allows for paid sick time and the employee has accrued it, then the employee can still receive pay.
Keep in mind that Oregon requires employers with 10 or more workers to allow at least 40 hours of paid sick time per year. Employers with less than 10 employees must allow 40 hours of unpaid sick leave. In Portland, the number of employees decreases to six.
How We Gutted a $45 Million Lawsuit
Yesterday, the U.S. District Court for the Eastern District of North Carolina gave us a ruling effectively ending a 2.5-year lawsuit against one of our Oregon business clients, and our cross-country commute.
The line was cast when our client, through its North Carolina counsel, settled a disputed claim for unfair trade practices. Instead of ending litigation, our client reeled in a shark. Opposing counsel, a contingent-fee plaintiff’s attorney, found four other claimants, recycled his prior complaint, and sued our client again—this time as a class action.
We took over the defense and appeared in North Carolina pro hac vice, a process that allows an out-of-state attorney to appear in a local proceeding. Our first move was to have the case transferred from state to federal court, which plaintiffs unsuccessfully contested.
While both courthouses (state and federal) are located in Raleigh, North Carolina, we preferred the federal system. In federal court, the risk of being “hometowned” is reduced, state court “trial-by-ambush” is avoided, and federal judges tend to give more weight to summary judgment motions.
Through a summary judgment motion, we convinced the judge to dismiss one plaintiff completely and eliminate many remaining claims. Invaluable to our success were the depositions we had conducted.
An effective deposition can win a case. We traveled to Raleigh, sat across the table from each plaintiff, and asked specific questions about their claims. We are often surprised at how unprepared parties can be at their own depositions. As a result, we extracted key information and concessions from them.
Plaintiffs were likely recruited by their attorney, who was focused on recovering a large contingent fee from the case. He figured that each plaintiff had a claim of up to $750, multiplied this by 20,000 (the number of businesses with which my client had interacted), and then tripled the amount (per North Carolina law), to reach a total of $45 million. However, to obtain class action status, plaintiffs first had to convince the judge to certify the class.
We focused on defeating plaintiffs’ motion for class certification. With the help of the depositions and other discovery we conducted, we prevailed. We were able to show that the plaintiffs had inconsistent stories. By defeating plaintiffs' motion, we reduced our client's potential damages from $45 million to a few thousand dollars. We have not yet even addressed the merits of the underlying claims, which we have strong evidence to counter.
While you or your business might not be facing a $45 million lawsuit, a lawsuit for any amount can be consuming, disruptive and stressful. Please contact us if you need assistance.
High Crimes and Misdemeanors? A Conversation with the Framers About Impeachment
President Trump faces impeachment for conditioning the payment of nearly $400 million in needed military aid to Ukraine as well as a White House visit upon the investigation of his political rival. According to the Impeachment Clause, a president may be impeached for “treason, bribery, or other high crimes and misdemeanors.” We are generally familiar with treason and bribery, but what are “high crimes and misdemeanors?” Let’s ask those who chose the language. (In lieu of law professors testifying, we brought back to life the Framers, through advances in genome sequencing and regeneration.)
Welcome Framers.
GEORGE MASON: Um, where am I? Did we, as I predicted, “end up in monarchy, or a tyrannical aristocracy.”
JAMES MADISON: I think we are in England. Did England take back the States as you feared, George?
ALEXANDER HAMILTON: No, but I think that I became an international rapper…whatever that is.
Our current president is facing impeachment with much debate over what conduct is impeachable. What is the appropriate standard for impeachment?
EDMUND RANDOLPH: I suggest that we follow my plan for Virginia, which provides for impeachment for “malpractice or neglect of duty.”
JAMES MADISON: Don’t take all the credit as I drafted the plan for Virginia.
GOUVERNEUR MORRIS: I object to any impeachment clause. “[Impeachment] will render the Executive dependent on those who are to impeach.”
GEORGE MASON: As a compromise, I understand that some of my colleagues are agreeable with limiting impeachment to cases of “treason and bribery.” But, we need only to look across the pond to the House of Lords impeachment trial of Warren Hastings, Governor-General of India. He is on trial for confiscating land and inciting protests, which falls outside of this limited standard. Treason and bribery alone “will not reach many great and dangerous offences.”
So, what do you propose?
GEORGE MASON: We should add “maladministration” as a third cause for impeachment.
What’s that?
GEORGE MASON: Maladministration means basically not doing one’s job.
JAMES MADISON: I object. “So vague a term will be equivalent to a tenure during pleasure of the Senate.”
GEORGE MASON: Fine, instead I propose “high crimes and misdemeanors against the State.” It's used by the English Parliament. We need “some mode of displacing an unfit magistrate” but “without making the Executive the mere creature of the Legislative.”
JAMES MADISON: We approve, but only if “against the United States” is added for clarity.
GOUVERNEUR MORRIS: As a member of the Committee of Style and Revision, I have now completed my task of improving the language of the Constitution without changing the meaning. Accordingly, I deleted “against the United States.”
GEORGE MASON: But you did change the meaning! Now “high crimes and misdemeanors” is vague! I’m not signing this Constitution.
Easy, let's break it down. What is meant by “high crimes and misdemeanors?"
GEORGE MASON: The act must be done by someone in a position of high authority, an official. It also refers to an act that can impact many.
What are examples of high crimes and misdemeanors committed by English officials?
GEORGE MASON: Misappropriating government funds, not spending money allocated by Parliament, disobeying an order from Parliament, and losing a ship by neglecting to moor it, etc.
Are “misdemeanors” limited to that category of crime in criminal law?
JAMES MADISON: There is no category of criminal law called “misdemeanors,” at least in our day. It is a general term for wrongdoings.
Isn’t impeachment really just a political tool?
JAMES MADISON: “There will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstration of innocence or guilt.”
GOUVERNEUR MORRIS: Impeachment could be used as a “tool of a faction.”
Some of our president’s supporters have suggested dispensing with impeachment and letting the upcoming election decide. What are your thoughts?
EDMUND RANDOLPH: I agree. If the president “should be re-elected, that will be sufficient proof of his innocence.”
GEORGE MASON: “No point is of more importance than that the right of impeachment should be continued. Shall any man be above Justice?”
BENJAMIN FRANKLIN: “Anyone who wishes to be president should support an impeachment clause, because the alternative is assassination.”
That’s a bit harsh, Ben. Now for the ultimate question, should Trump be impeached for high crimes and misdemeanors?
GEORGE MASON: Who is Trump? George Washington is our president.
Caveat: The above includes some paraphrasing and modernizing of language but quotes are actual language from the corresponding Framers, recorded from their debates. The views expressed are those of the Framers, recorded from such debates, and not necessarily the views of Acker + Associates P.C.
Whistleblower-Gate
A Perspective on the Man in the Middle: Michael Atkinson
Michael Atkinson, Inspector General of the Intelligence Community, determined that the complaint from an unidentified whistleblower is credible and of urgent national interest. Mr. Atkinson boldly disagreed with the Director of Intelligence, Justice Department and White House Counsel. He notified the House Intelligence Committee of the existence of the complaint.
The actions of Mr. Atkinson launched the current firestorm engulfing President Trump, including formal impeachment proceedings.
The complaint stated that President Trump, in a telephone call with the newly elected Ukrainian President Volodymyr Zelensky, sought to pressure the Ukrainian leader to take actions to help President Trump’s 2020 reelection bid.
Was Mr. Atkinson politically motivated and/or part of some conspiracy to take down Trump? Did he err in reaching his conclusion?
The quick answer to all of these questions is…no.
Michael and I were housemates at Cornell Law School, Moot Court partners, and buddies. We routinely timed our dinners (separately defrosted) so that we could watch the latest rerun of Miami Vice.
Michael’s decision regarding the complaint was not politically motivated. He was appointed to his position by President Trump. Michael has always been politically conservative, a staunch Republican, which made for occasional banter between us.
He was proud to be an American. As he was a fan of Bruce Springsteen, I can still hear the song “Born in the USA” blasting out of the speakers in his bedroom.
Michael did not seek the limelight…perhaps, unlike his housemate. I was surprised when he agreed to be my partner for the Cornell Moot Court Competition. Moot Court is essentially a debate contest with other classmates in the format of an appeals court hearing. Michael and I advanced to the semi-finals.
Michael works hard and takes his legal career seriously. After our time together at Cornell, he worked his way up to partner at a large DC law firm. He took a significant pay drop when he decided to pursue his passion and work for the Department of Justice. He worked as a trial attorney in the fraud section of the DOJ, and then became the DC Assistant U.S. Attorney General, in the fraud and public corruption section.
If Michael determined that President Trump’s telephone call and the surrounding events, as alleged, constitute a “serious or flagrant problem, abuse or violation of law or Executive order” then they do.
As I told Michael after the story hit the news, “you’re welcome--for teaching you everything you know.” Michael’s humble response was, “it may be premature, even for you, to try to take credit.”