2003 Oregon Legislative Update

2003 Oregon Legislative Update
By Jeffrey Chicoine

Introduction

The 2003 Session of the Oregon Legislature convened on January 13 and adjourned on August 27, 2003, making it the longest legislative session in history. Despite its length, the 2003 Legislature enacted only a small number of bills dealing with labor and employment in the private sector. None of the enactments should have far-reaching consequences for employers.

CIVIL RIGHTS
1. Damages in Injured Worker Discrimination Cases
  
  HB 2276 amends the remedy available for violations of ORS 659A.043 and 659.046, which protect injured workers and provides them rights to reinstatement (if able to perform prior job) or re-employment (if unable to perform prior job). Under the amendment, injured workers may now seek compensatory and punitive damages for such violations. Special provisions govern notice of claims and statute of limitations for unlawful employment practices committed after January 1, 2002. Effective upon passage.
2. Crime Victim’s Leave Rights
  
  SB 610 Requires covered employers to provide unpaid time-off from work for eligible employees to attend criminal, juvenile and other proceedings involving crimes against them or immediate family members.
  
  It is an unlawful employment practice under ORS chapter 659A for a covered employer to fail to grant such leave, or engages in conduct that threatens, coerces or intimidates employees.
  
  A covered employer is one that employs six or more employees within Oregon during each of 20 or more calendar workweeks in the year during either the calendar year in which an employee requests leave to attend a criminal proceeding or in the immediately preceding year.
  
  An eligible employee must be crime victim and has worked an average of 25 hours or more per week in the 180 days prior to a request for leave. A "crime victim" is a person who has "personally suffered financial, social, psychological or physical harm as a result of a felony" or is "a member of the immediate family of" the crime victim. "Immediate family member" includes the spouse, domestic partner, parent, grandparent, sibling, child or stepchild of a crime victim.
  
  There is no maximum length of crime victim leave.
  
  Undue hardship. If the leave creates an undue hardship on the employer, the employer may restrict the amount of leave taken. An undue hardship, however, will not justify an employer from providing any leave. "Undue hardship" is defined as "a significant difficulty and expense to a business" considering both the employer's size and critical need for the employee. If an employee notifies the prosecuting attorney that taking a leave would cause undue hardship to his or her employer, the prosecuting attorney and the court or hearing body must take the employee's schedule into consideration when scheduling the proceeding.
  
  Notice. Eligible employees must provide reasonable notice of their intention to take crime victim leave and must provide to the employer copies of any criminal proceeding scheduling notices.
  
  Confidentiality of records. Employers must keep all records regarding an eligible employee's crime victim leave confidential.
  
  Use of paid leave. Crime victim leave is unpaid unless otherwise provided by an employer's policies or an applicable collective bargaining agreement. However, an eligible employee must be allowed to use any paid accrued vacation or other accrued paid time off offered in lieu of vacation to receive compensation during the crime victim leave. Employers may determine the order in which any accrued paid leave is to be used, if more than one type is available.
  
  No administrative processes. Although violations are labeled as an unlawful employment practice, claimants under the law are not subject to the Bureau of Labor and Industries (BOLI) administrative review. A claimant may file an action directly in court, although there is no express statute of limitations. A one or two year statute of limitations will likely apply.
  
  Effective date is January 1, 2004.
UNEMPLOYMENT
1. Family Membership and Drug and Alcohol Testing
  
  SB 916 addresses coverage and eligibility for unemployment compensation in two respects:
  
  Section 1: Expands the definition of family member who need not be covered to include parents, stepparents, grandparents, spouses, sons-in-law, daughters-in-law, brothers, sisters, children, step-children, adopted children and grandchildren.
  
  Section 2 addresses eligibility for unemployment compensation for employees that fail to satisfy a “reasonable written policy” established by an employer or in a collective bargaining agreement, governing drug and alcohol testing and use if the employee:
  - fails or refuses to take a test as required;
  - refuses to cooperate with or subverts a test;
  - is “under the influence of intoxicants” while performing services for the employer or possesses a drug unlawfully;
  - tests positive in connection with employment, or
  - refuses to enter or violates a last chance agreement.
  However, if the employee is participating in a recognized drug or alcohol rehabilitation program on the date of separation or within 10 days, the foregoing shall not be grounds for disqualification, unless the employee was offered and refused a last chance agreement.
  
  An employee is disqualified if he or she voluntarily leaves work or refuses or fails to apply or accept suitable work (i) because the employer has a reasonable drug-free workplace policy, (ii) because the employer requires the individual to consent to a present or future drug test, (iii) to avoid taking a drug or alcohol test, or (iv) to avoid meeting the requirements of a last chance agreement.
  
  A last chance agreement is deemed reasonable if (i) the employee has engaged in drug or alcohol use “connected with work” or has admitted to alcohol abuse, marijuana use or drug use’ and (ii) it permits the employee to return to work under conditions that may require an employee to:
  - abstain from alcohol use, marijuana use and unlawful drug use; and
  - attend and comply with requirements of a rehabilitation program.
  An individual is considered “under the influence of intoxicants” when the level of alcohol, marijuana or unlawful drugs in the blood stream exceeds the amount prescribed in the policy or collective bargaining agreement.
2. Extension of Unemployment Benefits
  
  SB 2 extended emergency unemployment benefits for up to 13 weeks and became effective on April 1, 2003. SB 903 extended benefits for up to 20 weeks, ending September 27, 2003, and became effective July 3, 2003.
3. Filing of Unemployment Tax Reports
  
  HB 2161 amends ORS 657.571 relating to the filing of quarterly unemployment tax report forms. The amendment allows unemployment tax reports to be filed annually for employment consisting of domestic service in a private home, local college club, or local chapter of a college fraternity or sorority. Previously, such reports had to be filed annually. This amendment gives listed employers the option of filing quarterly or annually.
4. Allows Dismissal of Claims for Hearing
  
  HB 2163 allows dismissal of requests for hearing for unemployment benefits in certain cases. The hearing officer may dismiss a request for an unemployment hearing if the requesting party withdraws its request, fails to submit information necessary for hearing, or fails to appear, and in other limited circumstances. When a recommendation for dismissal is made, the requesting party has the right to request that the hearing be reopened for good cause. This statute closely tracks the provisions of current administrative rules.
MEDICAL AND HEALTH CARE
1. Health Care Authorization Revisions
  
  In HB 2305, Oregon adopted a new health care authorization form that should be used when seeking medical records from Oregon health care providers. The new Oregon form was designed to be consistent with HIPAA privacy regulations and replaces a prior and more complicated state mandated form. A copy of the new Oregon form is available on our firm’s website at www.nsslaw.com/rt_healthcareforms.htm.
  
  HIPAA pre empts state privacy statutes that are “contrary” to the privacy rules, but permits “more stringent” state medical privacy laws. “More stringent” means that the state law offers greater privacy protection to the employee. Both Oregon and Washington have adopted more stringent medical privacy laws which employers should follow in obtaining protected health information from providers.
2. Court Ordered Health Insurance Coverage
  
  Under HB 2095, courts are specifically authorized to include health insurance coverage in child support orders and employers and their plans are required to provide coverage, make deductions as appropriate and make or accept payments to the health plan for such coverage. The bill does not appear to mandate expansion of health care coverage where it would not otherwise exist.
WORKERS’ COMPENSATION
1. Subject Workers
  
  SB 924 amended ORS 656.027, adding translators and interpreters to a group of workers not subject to the workers’ compensation law, but only if provided through an agent or broker.
2. Review of Temporary Rules
  
  SB 234 altered the process for adopting temporary rules. The amendment eliminates the requirement that the Workers’ Compensation Management-Labor Advisory Committee review temporary rules.
3. Reconsideration of Closure by Employers or Insurers
  
  SB 285 amended ORS 656.268 so that an insurer or self-insured employer may, under limited circumstances, request a right of reconsideration. This provision will apply to all claims closed on or after March 31, 2004.
4. Permanent/Partial Disability Awards
  
  SB 757 amended ORS 656.214, developing an new system for calculating awards and eliminating the distinction between scheduled and unscheduled awards for permanent partial disability. The amendment defines the term “impairment” as “the loss of use or function of a body part or system due to the compensable industrial injury or occupational disease determined in accordance with the standards provided under ORS 656.726, except expressed as a percentage of the whole person.” Impairment only compensation is awarded if the worker has satisfied conditions for return to regular work and under new statutorily-provided formulae.
  
  Workers unable to return to regular work will be awarded impairment and “work disability” benefits. “Work disability” is a new term and is defined as “impairment modified by age, education and adaptability to perform a given job.” The amendment provides a formula for determining work disability and a list of scheduled awards in ORS 656.214(3) consistent with the new formula. As part of the change, the work disability formula references “percentage” (not “degrees”) of impairment of a whole person.
  
  Amendments apply to injuries incurred on of after January 1, 2005, and will sunset on January 1, 2008 unless further legislative action is taken.
5. Multiple Party Hearings
  
  SB 63 specifies a new and more expeditious procedure for hearings involving multiple employers and/or insurers.
6. Workers’ Compensation Board Panels
  
  SB 286 codifies a practice in the assignment of board members to a hearing panel based on background (i.e., employee, employer or public).
7. Time Limits to File Injury Claims
  
  SB 932 adds an exception to the requirement that an injured worker give written notice to the employer within 90 days after an accident. A worker may now file a timely claim within one year if he or she had “good cause” for failure to give notice within the 90-day period.
PUBLIC EMPLOYMENT
1. Disclosure of Employee Photographs
  
  SB 3068 prohibits a public body from disclosing copies of photographs of employees from their ID badges without the employee’s written consent. The ban applies to badges or identification cards which are prepared by a public employer for internal use by the public body to identify employees of the public body. Effective upon passage.
2. Parole and Probation Officers
  
  HB 2576 Amends ORS 243.736, making parole and probation officers strike-prohibited employees and subject to interest arbitration.
3. Public Employee Retirement System
  
  The legislature passed 15 bills related to PERS which contained the following key elements:
  
  HB 2001 Places an effective cap on earnings distributions until certain criteria is satisfied.
  
  HB 2003 Enacted reforms to current PERS system, including
  - Recalculation of revised service retirement allowances for Tier 1 members who retireed using the money match method between 2001 and 2004 and recaptures overcredit by suspending COLA adjustments until amount repaid.
  - Makes assumed rate of interest applicable over lifetime not each year.
  - Provides for appointment of separate legal counsel (not covered by PERS) when litigating PERS issues.
  - In City of Eugene v State of Oregon case, if PERS is required to correct benefit calculations, permits correction to be made by withholding COLA, permits administrative expenses to paid from future income and bars charging costs of remedy to employers.
  HB 2004 Directs the PERS board to use updated mortality tables.
  
  HB 2005 Created new PERS board, reducing member ship from 12 to 5.
  
  HB 2020 Created new retirement system for new hires consisting of a defined benefit plan funded by employer contributions and an investment account of up to 6 percent of salary funded by employee contributions (which may be picked-up by employers). For a section-by-section analysis, see the PERS website.
  
  HB 2401 Permits PERS to charge accounts for certain tasks, such as locating member, responding to requests for estimates, and recovering overpayments.
  
  HB 2409 Provides exclusive jurisdiction in Supreme Court to hear any challenges to PERS-related legislation.
  
  A more detailed summary of all the bills may be found at the PERS website.
MISCELLANEOUS
1. Independent Contractors
  
  SB 232, sections 1-3, redefined independent contractors solely as regards the withholding of state income tax. Under the amendment, a new less restrictive test applies to determine whether a worker is considered an employee whose earnings are subject to withholding of state income tax or an exempt independent contractor. The new test is best described as an "independent business analysis" that still differs from the IRS’s 20-factor analysis. However, the state’s old and more restrictive tests, including the 8-factor analysis of ORS 670.600, will continue to apply to determine whether payroll taxes need be paid for unemployment and Tri-Met taxes and whether the employee is subject to workers’ compensation.
  
  This provision becomes effective January 1, 2006, if not replaced with a new law on independent contractors in the next session. The legislature has established a task force to study the definition of independent contractor and report on the matter to the next legislature.
2. Hardship Driving Permits
  
  HB 2263 prohibits the issuance of hardship driving license permits to workers whose driving privileges are suspended for failure to appear, pay fine or obey order of the court.

Effective Date of Legislation: In accordance with ORS 171.022, "Except as otherwise provided in the Act [and as noted above], an Act of the Legislative Assembly takes effect on January 1 of the year after passage of the Act."

FOR FURTHER INFORMATION

Text of the bills can be found at the Oregon State Legislature website: http://landru.leg.state.or.us/billsset.htm

Disclaimer: The materials available on this web site are for informational purposes only. Nothing on this site should be construed as legal advice or opinion. It is important that you consult an experienced attorney concerning your particular factual situation. Do not rely solely on the information provided on this web site.