This has been a year like no other – and for Oregon’s construction industry, the fires and pandemic have brought new challenges and considerations.
The Oregon Bureau of Labor and Industries (BOLI) is committed to helping employers of all sizes navigate this new landscape so that they can manage risk and avoid potential violations before they happen. On Nov. 5-6, our 36th annual Employment Law Conference will feature legal experts and specialists in an all-virtual format to help businesses of all sizes stay in compliance. Visit www.oregon.gov/boli/employers/Pages/conference.aspx to register.
Check with your state of local labor boards for information about your region.
Until then, here are a few of the top civil rights and wage and hour questions we’re fielding from construction employers:
Most construction businesses are familiar with the Oregon sick time basics. Employees earn one hour of sick time for every 30 worked unless a business decides to front-load workers 40 hours at the beginning of the year.
But the pandemic brings new considerations. In normal times, employers do not have to let employees use sick time for child care. However, during a pandemic (or other public health emergency), employees can use sick time for school, child care or business closures due to the emergency. Also, the wildfires, recently designated as public health emergencies, meet this standard.
Employers facing layoffs should keep departing employees’ sick time on the books. If rehires are made within 180 days, employees should have access to their previous sick time bank.
Employers have a duty to protect employees from unlawful retaliation when they bring good faith complaints regarding safety conditions, wages or a host of other working conditions. Even when the employee is wrong or mistaken on the merits, he or she has a right to bring concerns to the employer or an enforcement agency.
Unlawful retaliation can take many forms. Termination is the most obvious and extreme, but any reduction of hours or other adverse employment action can trigger a complaint. Employers also must protect employees from peer-to-peer retaliation; it’s not just top-down actions that can put businesses at risk.
Face coverings, physical distancing
Construction workers should maintain physical distancing and wear masks, face shields and face coverings in all indoor places and outdoors when distancing isn’t possible. Employers should make reasonable accommodations for employees with a religious objection or a disability, unless to do so represents an undue hardship. Learn more at: https://govstatus.egov.com/or-oha-face-coverings.
When an employee travels from home to a work site, the time spent commuting is generally considered unpaid “portal-to-portal” travel. Special, one-day assignments 30 miles or more from a fixed worksite have different rules, however. In that case – and only for single-day jobs, not projects spread over a longer period of time – employers must compensate employees for the travel time.
Employers should consider travel from one job site to another paid time. When an employee starts the day working in one location, then travels to a second work site, wage and hour law requires the time be paid.
Employers have a duty to keep their workforce safe and ensure that they meet all applicable health and safety mandates. Businesses should also overcommunicate steps they’re taking and provide an outlet to employees to provide feedback and suggestions for what’s working and what’s not. After all, when an employee comes to his or her employer with a concern – not our agency or Oregon OSHA – he or she is doing it a favor.
Employers also may develop a system for daily temperature checks, either at a job site or via self-reporting by employees at their residences. Employers that decide to institute temperature checks on site should have a plan to keep the results confidential and secure. Remember, health records must be kept apart from personnel files per Oregon law.
Since the early days of the pandemic, those of us in the Technical Assistance for Employers program have worked to help employers understand their obligations in a rapidly changing world. There’s a strict firewall between our compliance experts and the two major enforcement divisions so that businesses aren’t penalized for trying to do the right thing. We’ve fielded thousands of calls and emails from employers working to understand complexities ranging from the FFCRA to new OFLA rules that affect their operations. Any construction business looking for guidance can contact us for free, confidentially, via email at firstname.lastname@example.org.
Charlie Burr is a training and development specialist for BOLI’s Technical Assistance for Employers program. He helps employers navigate complex civil rights and wage and hour issues. Contact him at 971-673-0797 or email@example.com.