Two New Laws Affecting Your Workplace

January 25, 2016

Andrew M. Schpak is a Partner at Barran Liebman, LLP, and is a featured presenter at the OHCA Spring Expo. Here, he provides an introduction to his Spring Expo presentation “Legislative Updates: What Do Oregon’s New Employment Laws Mean to You?”.

Join Andrew Schpak at the OHCA Spring Expo, March 3-4, in Eugene, Oregon, where he will provide a more complete overview of the new changes in the law that affect your workplace. If you haven’t already, take the time to register for the Spring Expo.

As we settle into 2016, there are a few big changes to employment laws that affect workplaces.

Recreational Marijuana

No new Oregon law received more attention in 2015 than Measure 91, which legalized recreational marijuana in Oregon. Many employers are left wondering how to respond to recreational marijuana use by employees.

Perhaps the most important fact to bear in mind is that the new law did nothing to change marijuana’s classification as a Schedule 1 drug in the Federal Controlled Substances Act. As a result, marijuana remains illegal under federal law and employers retain the right to prohibit marijuana use by employees.

Employers have discretion to establish drug and alcohol testing on the following grounds: (1) post-offer but pre-employment; (2) random; (3) reasonable suspicion; and/or (4) post-accident or near miss. Companies with federal contracts as well as those subject to the Omnibus Transportation Testing Employee Act may be legally obligated to conduct drug and alcohol testing. Because an employee’s expectation of privacy is informed by company policies, employers should have a written drug and alcohol testing policy if they ever want to exercise their right to test an employee or applicant. Regardless of whether your company has an existing policy or recently adopted a new one, communicating that policy to all employees is imperative, as is reminding employees that marijuana still qualifies as an illegal drug under federal law.

Paid Sick Leave

Whereas Portland’s sick leave law went into effect on January 1, 2014, Oregon’s sick leave law went into effect on January 1, 2016. The law applies to all employers who have one or more employees working anywhere in the state. It calls for the same minimum accrual rate as the Portland law (at least one hour of sick time for every 30 hours worked). Employers also are required to let employees carry-over at least 40 hours of accrued but unused sick time from one year to the next. However, they can cap the accrual of sick time at 80 hours and/or not allow an employee to take more than 40 hours of sick leave in a year.

What makes the Portland and Oregon sick leave laws so notable are the grounds on which employees can take protected leave. Qualifying grounds for protected leave under the new laws include not just any condition which would entitle an employee to protected leave under the Oregon Family Leave Act, but also: (1) time spent for diagnosis, care, or treatment of a mental or physical illness, injury, or health condition (including preventive medical care for oneself or a family member); (2) reasons related to domestic violence, harassment, sexual assault, or stalking; or (3) a public health emergency. Companies should communicate with their human resources, benefits, and payroll departments to confirm that sick leave is being tracked and accrued as required by applicable law. Companies also should ensure that managers understand the new law and the protections it affords to employees.

Is your head spinning yet? This is just the tip of the legal iceberg. The Oregon Family Leave Act, social media privacy laws, and the laws regulating non-competition agreements and criminal background checks all experienced meaningful changes in the past year.