Yesterday, the Oregon legislature met for a one-day special session to consider a handful of bills aimed at getting more state money for COVID relief and wildfire recovery. The legislature also considered a handful of policy bills, the primary bill being a major relief package for residential landlords combined with an extension of the eviction moratorium.

HB 4401 - Housing/Landlord Relief.  Provides $150 million in grants directly to landlords on behalf of financially distressed tenants for up to 80 percent of unpaid rent between April 1, 2020 and June 30, 2021. Requires landlords to forgive the remaining unpaid rent for tenants who show inability to pay due to COVID. Distributes rent assistance to recipients of the CARES Act Emergency Solution Grants, which will make payments directly to landlords. Extends eviction moratorium until June 30, 2021.

HB 4402 - Liability Protections for Schools. Prohibits claims against schools from damages due to COVID-19 infections if the school is in compliance with the Governor’s Executive Orders during the COVID-19 emergency.  In one of the surprises of the session, Rep Shelley Boshart Davis (R-Albany) won support for an amendment to include private schools with liability protections. The original version of HB 4402 excluded private schools.

SB 1801 - Cocktails-to-Go. Allows restaurants during the pandemic emergency to sell and deliver mixed drinks in sealed containers to-go. Rules will limit the sale to two drinks per substantial food item ordered. The bill also limits the fees that a third-party food platform (eg Grub Hub, etc.) may charge a restaurant to facilitate to-go orders.

SB 5731 - $800 million COVID/Wildfire Relief Appropriations. SB 5731 made five distinct appropriations - $100 million to the Emergency Board for appropriations, $400 million for the state’s response to the COVID-19 emergency, $100 million for wildfire recovery and prevention activities, $150 million for the housing relief fund created under HB 4401, and $50 million for Housing and Community Services Department for rental assistance programs.

One bill did fail in committee in the run-up to the special session: SB 1803 would have created medical liability protections for hospitals, HMO’s, health care providers and clinics for certain claims arising during the COVID-19 emergency period. This legislation was a negotiated product in a workgroup convened by Senator Floyd Prozanski (D-Eugene). However, 11^th hour demands from SEIU caused the bill to fail as House Democrats voted ‘no’ in committee and killed the bill.

Last night, OSCC staff were made aware of an effort by the Facebook group ‘Open Oregon’ in response to the OR-OSHA Temporary COVID rules and enforcement activities. You may be aware, but this Facebook group has organized protests of 50-100 people at the homes of several OR-OSHA staff in response to enforcement action. Yesterday, Open Oregon asked their Facebook followers to generate complaints against businesses to flood the OR-OSHA complaint system, presumably to reduce the capacity for OR-OSHA to levy fines.  Open Oregon leaders asked members to target big box stores and those that have supported the state regulations during COVID-19.

We realize that local businesses are at their breaking point and wanted to make you aware of this effort.  OR-OSHA anticipates hundreds/ thousands of new anonymous complaints against businesses across Oregon, and these complaints could result in compliance letters being sent to your members by OR-OSHA.  If you hear of this effort in your community or against any of your members, please feel free to reach out to OSCC staff, jenny@pacounsel.org.  OSCC has voiced concerns about our members being subject to fraudulent complaints, and we are working with OR-OSHA to determine which complaints are legitimate vs. those that are the result of a call to action by Open Oregon.  We are also working alongside other business trade associations in this effort.   

Jessica Chambers

Oregon State Chamber of Commerce

Yesterday, Governor Brown announced updates to county risk levels under the state's new public health framework to reduce transmission of COVID-19. The framework uses four different risk levels for counties based on COVID-19 spread—Extreme Risk, High Risk, Moderate Risk, and Lower Risk—and assigns health and safety measures for each level.

Twenty-five counties will be in the Extreme Risk level, meaning they will continue with the economic shutdown currently in place. In addition, five counties will be High Risk, two counties will be Moderate Risk, and four counties will be Lower Risk. A complete list of counties and their associated risk levels is available here.

These measures will be in place beginning Thursday, December 3rd through December 17th. The Oregon Health Authority will examine and publish county data weekly. County risk levels will be reassigned every two weeks, with the next risk assignment levels taking effect on December 18th.

You can learn more about the risk levels and activity guidance here.

Read full press release.

Oregon OSHA has released a Fact Sheet for the COVID-19 Temporary Rule for All Workplaces as well as a question and answer document regarding the rule. It is important to understand these provisions and what your responsibilities are as an Oregon employer. Oregon OSHA’s temporary rule for COVID-19 (OAR 437-001-0744) requires all employers to develop and implement an infection control plan. This plan builds upon each employer’s exposure risk assessment, which the rule also requires, and aims to eliminate or otherwise minimize worker exposure to COVID-19. The exposure risk assessment and infection control plan need to be completed in writing for those employers with more than 10 employees by December 7th. Below are several resources regarding COVID-19-related rule updates. You can find additional materials on Oregon OSHA's website.

Infection Control Plan (Fill-in Word document or Print version) COVID-19 Hazards Poster English / Spanish Exposure Risk Assessment Form (Fill-in Word document or Print version) Temporary Rule 437-001-0744 and Appendix Addressing COVID-19 Workplace Risks Overview Table for Oregon OSHA COVID-19 Temporary Rule Model Policy for Notification of Employees when COVID-19 Exposure Occurs (PDF) (Spanish - PDF and Word document) Questions and Answers

Three significant issues that need to be brought to your attention:. 

1.    State Revenue Forecast. The quarterly revenue forecast issued Wednesday morning provided a little bit of good news for legislators - the state now has $97 million more in its coffers since the last quarterly forecast in September. This completes a near-unbelievable total comeback from the $2+ billion revenue loss that was forecast in the midst of the pandemic in May.

A cautious note was struck by the state economist, however, as these projections were finalized before Governor Brown’s 2-week economic “pause” that will largely close restaurants, gyms and other businesses through December 2^nd.  The economists predicted that the “pause” would largely be felt through declines in lottery revenues, but would only amount to about $26 million in losses if the restaurant closures were limited to only two weeks.

2.      House Speaker Tina Kotek (D-Portland) calls for emergency special session in December. The Speaker called out the unlikelihood of a Federal relief package in 2020 and indicated that she would like to spend state reserve funds to assist businesses and the unemployed. Specifically, she called out her desire to spend $100 million “to keep Oregonians housed and stabilize the rental market” as her primary objective.

We are not surprised at the prospect of another special session prior to 2021. Before the Speaker’s announcement, we believed a special session was likely next week. We will keep you apprised as we gain more information on a prospective December session.

3.      Legislative Election Results are now finalized. The last race to be called was House District 52 which saw Democrat incumbent Anna Williams hold off challenger Jeff Helfrich by 84 votes. The race was in doubt until yesterday’s final numbers at 4pm.

The final count in the Senate: 18 Democrats, 12 Republicans. No change.

The final count in the House: 37 Democrats, 23 Republicans. Republicans gained one seat, but Democrats retained their “supermajority.”

 The last bit of intrigue will come from a fight for the Speakership of the House. Representative Janelle Bynum (D-Clackamas) is looking to forge a coalition to unseat current House Speaker Tina Kotek. 

Although Kotek won a majority of support from her caucus for a 4^th term as Speaker, the challenge will spill out onto the House floor on the first day of the 2021 session when the entire House, including 23 Republicans, will cast their vote for Speaker. 31 votes are needed to secure the position of House Speaker. 

The Oregon legislature and Governor Brown approved $20 million more to Business Oregon’s Emergency Business Assistance Grant Fund. The application for this new round of funds will be available beginning this Thursday on Business Oregon's website. Applications will be reviewed on a first-come first-served basis.

The grants are available to small businesses that have seen lost revenue due to the pandemic, and that meet a minimal set of requirements.

Businesses are eligible to receive up to $200,000 in grant funding as detailed in the grant application. To be eligible, a business must show it was prohibited from operations by the Governor’s Executive Order 20-12, or demonstrate a 25% reduction in sales over a 30-day period in 2020 compared to a comparable period in 2019.

This Thursday, the application form and additional details will be found on Business Oregon’s website in multiple languages. Grants will be reviewed on a first-come first-served basis, and will be allocated so that there is an equitable geographic distribution of funds as dictated by the Oregon Legislature. 

Visit Business Oregon's website here for more information.

Governor Brown also announced that the state will commit $55 million in financial assistance to support Oregon businesses who have been impacted by COVID-19 restrictions. These funds will be allocated to counties to distribute to businesses who have been financially impacted, with a priority for the hospitality industry, businesses impacted by the freeze, small businesses, and women, Black, Indigenous, People of Color, and Tribal-owned businesses. The $55 million in Coronavirus Relief Funds will be allocated to counties, with each county receiving a base of $500,000 plus a per capita allocation of the remainder of the funds. The counties will be responsible for deciding how businesses apply to receive funds and communicating the application process to businesses. The Governor’s Office anticipates that funds will be distributed to counties within the next several weeks. Businesses who are interested in applying should contact their county for more information.  Read full press release here.

In a press conference today, Governor Brown announced a statewide two-week freeze to help curb the rise in COVID-19 cases.

The freeze will be in effect November 18th - December 2nd.

Businesses

• Work-from-home to the greatest extent possible and close offices to the public
• Restaurants are delivery and take-out only
• Grocery stores and pharmacies are limited to 75% capacity and should encourage curbside pick up
• Retail stores and malls (indoor and outdoor) are limited to 75% capacity and should encourage curbside pick up

Must Close

• Gyms and fitness organizations
• Indoor recreational facilities, museums, indoor entertainment activities, and indoor pools and sports courts
• Zoos, gardens, aquariums, outdoor entertainment activities, and outdoor pools
• Venues that host or facilitate indoor or outdoor events

Social Gatherings

• Limited to no more than 6 people total, from no more than 2 households – indoor and outdoor
• Limited faith-based organizations to a maximum of 25 people indoors or 50 people outdoors
• No Indoor visitation in long-term care facilities

The Two-Week Freeze does not apply to or change current health and safety protocols for:

• Personal services (such as barber shops, hair salons, and non-medical massage therapy)
• congregate homeless sheltering
• outdoor recreation and sports
• youth programs
• childcare
• K-12 schools
• K-12 sports currently allowed
• current Division 1 and professional athletics exemptions, and
• higher education

— all of which can continue operating under previous guidance issued by the Oregon Health Authority.

The new Oregon OSHA Temporary COVID-19 rules require that businesses establish a notification process that provides notice within 24-hours if an employee has been exposed to someone confirmed to have tested positive for COVID-19. This requirement goes into effect on Monday, November 16th.

OR-OSHA has just released the model notification, which you can view here.

The COVID-19 infection notification process includes:

Employers must establish a process to notify exposed employees that they had a work-related contact with an individual who has tested positive for COVID-19, as well as to notify affected employees that an individual who was present in the facility has confirmed COVID-19. 

Exposed employees include:

• Those who were within 6 feet of a confirmed COVID-19 individual for a cumulative total of 15 minutes or more, regardless of whether one or both of them were wearing source control

• Those who worked in the same facility or in the same well-defined portion of the facility such as a particular floor

This excludes settings where patients are hospitalized on the basis that they are known or suspected to be infected with COVID-19.

The notification process must include the following elements:

• A mechanism for notifying both exposed and affected employees within 24 hours of the employer being made aware that an individual with COVID-19 was present in the workplace while infectious or otherwise may have had work-related contact with its employee(s) while infectious; and

• This notification process must be established and implemented in accordance with all applicable federal and Oregon laws and regulations. Note: Employers can satisfy this requirement by adopting the model procedure to be published by Oregon OSHA before the effective date of the rule.

Note: OAR 333-018-0016 requires such cases to be reported by healthcare providers and laboratories within 24 hours of identification.

Amidst the chaos of the global pandemic, OR-OSHA is moving forward with proposed changes to two administrative rules that would stack the deck against employers: OR-OSHA’s Proposed Amendments in General Administrative Rules to Clarify Employer’s Responsibilities and OR-OSHA’s Proposed Increase of Certain Minimum and Maximum Penalties for Alleged Violations.
 
These rule changes are about agency convenience in contested cases, NOT about employee safety.
 
Oregon law says that for an employer to be liable for a serious violation, OR-OSHA must prove that the employer knew, or with the “exercise of reasonable diligence” could have known, of the violation. Recently, the Oregon Supreme Court made clear that the burden is on OR-OSHA to prove what is "reasonable" and what is "diligence" under the circumstances of each case. But these rules will change that Court ruling.

1. OR-OSHA’s proposed rule redefines “reasonable diligence” to make employers strictly liable, so that the agency can easily win a contested case.
2. It also makes the “unpreventable employee conduct” defense entirely useless.
3. In a different rulemaking, OR-OSHA’s Administrator is given unlimited discretion to impose huge penalties: $13,538 for any “serious” violation and up to $135,382 for any “willful” violation. These enormous fines could be assessed for just two paperwork violations!

Without strong opposition, OR-OSHA will adopt these rule changes at the end of October! Oregon’s businesses are already under immense pressure from OR-OSHA and are struggling to stay afloat during COVID-19. Without your immediate action, employers could be subject to strict liability and sweeping fines!
 
Submit your comments today to OPPOSE these proposed rule changes. Comments are due by October 30th.

Yesterday, the Oregon Legislature convened for a one-day session - the second special session of the summer - to focus on balancing the state budget.

The Legislature voted to pull $400 million from the Education Stability Fund to keep the State School Fund whole, and voted to trim another $400 million from lottery and general fund programs.

On balance, the legislature opted to keep Oregon's $9 billion K-12 budget unharmed and worked to plug the $1 billion shortfall using the aforementioned cuts and other budget maneuvers, including "re-shuffling" of expenses and "sweeps" of dedicated funds.

The session was another example of the "top-down" executive decision-making that's been so prevalent during the COVID pandemic. Decision-making is in the hands of a very few legislators with very little input from legislators and the public.

For example, Democratic leaders announced on Monday morning that they would not hold any public hearings on the slate of bills.  Most bills were not made public until the weekend, so only the most seasoned observers even knew where to look to understand what was going on. Decisions on legislation were already made before the legislature convened.

The bills that passed included:

• SB 1701 to allow part time workers to earn up to $300 per week before unemployment benefits are reduced.
   
• SB 1703 to give the Employment Department access to Revenue Department data during the COVID emergency for the purpose of processing unemployment claims.
   
• SB 5722 adjusted and revised several capital construction projects in order to shift costs.
   
• SB 5723 cut nearly $400 million in costs for the current biennium.
   
• HB 4301 placed additional limits use of choke holds and police use of force.
   
• HB 4302 modified fees and requirements for mineral exploration, mining operations, gas and oil drilling and exploration and geothermal well drilling operation.
   
• HB 4303 transferred $400 million from the Education Stability Fund to the State School Fund.
   
• HB 4304, the "sweeps" bill, transferred money from various dedicated administrative accounts to further alleviate budget shortfalls.
   
• HB 5221 made changes to allocation of lottery funds to account for precipitous drops in lottery revenues.

Bills that did not pass:

• SB 1702 was the one unscripted shocker of the session. The bill which would have streamlined the process for classified education employees to receive unemployment benefits. But the bill failed in committee when Senator Johnson (D-Scappoose) joined Republicans in voting against the bill, saying that the bill gave the appearance of putting these workers "at the front of the line" for receiving benefits when others have been waiting due to Employment Department failures.

The Oregonian's reporting of the special session can be found here.

We are expecting one additional special session in September that could be populated with several controversial issues, including:

1. Legislation to disconnect Oregon from certain provisions of the CARES Act related to tax treatment for business losses and interest expenses for certain businesses.
    
2. Consideration of liability reform to provide temporary and targeted liability relief for companies facing lawsuits related to COVID.
    
3. Consideration of a liability shield for medical provides and health care facilities acting within the scope of COVID-19 guidance from the Governor's office, OHA and others.
    
4. A workers' compensation compensability presumption for COVID claims.

If you have any questions or feedback stemming from the 1-day session, please don't hesitate to reach out.