Five Legal and Regulatory Employment Updates for Manufacturers

Sponsored content by Stoel Rives LLP originally published by the Portland Business Journal on September 2, 2022.

Laws, regulations, and rules for manufacturers are constantly changing—whether as a result of emergency responses to a once-in-a-lifetime pandemic or through more gradual changes driven by shifts in technology, politics, and climate. Manufacturers should remain up to date on legal and regulatory changes to limit not only legal exposure, but also to prevent disruption caused by decreased employee morale and productivity.

Below are five key legal and regulatory employment-related updates:

1. New Oregon Heat and Smoke Rules

In July 2022, Oregon implemented rules regarding employee exposure to heat and wildfire smoke. The rules apply whether employees work inside or outside, with some exemptions that are likely applicable to manufacturers. Specifically, employers who have a mechanical ventilation system that keeps the heat index below 80 degrees Fahrenheit are exempt from the heat rules. And employers with enclosed buildings and structures in which the air is filtered by a mechanical ventilation system (and the exterior doors or windows are kept closed) are exempt from the smoke rules.

If manufacturers do not fall under those exemptions, they are subject to the new rules, which create substantial obligations including training, adoption of internal processes to limit heat and smoke exposure, and supplying employees with everything from clean water to NIOSH-approved filtering facepiece respirators.

2. Oregon Paid Family Medical Leave

Beginning in January 2023, eligible employers will be required to contribute to Oregon’s new paid medical leave insurance program. The new program—funded by employee and employer contributions made through payroll deductions beginning on January 1, 2023—provides paid leave for eligible employees beginning in September 2023. The final administrative rules are expected in September 2022.

Manufacturing employers should evaluate what steps they need to take to comply with the new program and whether they plan to develop their own, equivalent paid leave plan in lieu of participating in the state plan.

3. COVID-19 Accommodations/ Americans with Disabilities Act (ADA)

While the worst of the pandemic appears to be behind us, employees continue to request exemptions from various COVID-19 protocols, and both the short-term and long-term impacts of the disease on individuals, such as long COVID-19, have created a new type of disability that may fall under the purview of the ADA. At the same time, employers are facing increased pressure to allow employees greater scheduling flexibility or the ability to work from home.

When presented with a disability accommodation request, it is best practice for employers to gather information at the outset, engage in a thorough—and well documented—interactive process, and implement accommodations in a consistent and justifiable manner. For manufacturers in particular, it is vital to have clear, up-to-date job descriptions to avoid confusion and uncertainty regarding the possibility of remote work as an accommodation.

4. Labor and Captive Audience Meetings

One outgrowth of the pandemic has been an uptick in union activity across the country, including increased union organizing efforts. Part of this is explained by labor shortages, which have empowered workers—whether unionized or not—to bargain from a position of increased strength on any number of employment-related issues. In addition, the changed political landscape has set the stage for a more pro-union National Labor Relations Board (NLRB or Board).

On April 7, 2022, NLRB General Counsel Jennifer Abruzzo issued a memorandum that proposed a dramatic shift in the Board’s approach to so-called “captive audience meetings.” These meetings, which have long been permitted under the Board’s interpretation of the National Labor Relations Act, allow employers to hold mandatory meetings with employees regarding the company’s position on union organizing.

General Counsel Abruzzo’s memorandum, which states that these meetings “inherently involve an unlawful threat that employees will be disciplined or suffer other reprisals if they exercise their protected right not to listen to such speech,” urged the Board to reconsider its precedent on one of the key tools employers have when addressing potential union organizing activity. Although there has not been a ruling on this issue, the memorandum signals the approach the Board’s General Counsel will take when the opportunity to address the issue arises.

5. Access to Employer Property

An additional labor topic manufacturers should keep an eye on is their ability to restrict union organizers’ access to company property and facilities. Under current NLRB precedent, employers can exclude off-duty employees from using nonpublic areas to disseminate pro-union materials and refuse union access to public and private spaces on their property.

Given the change in the NLRB’s composition, it is likely that the precedent will return to a more pro-union standard. When that occurs, employers will likely no longer be able to restrict off-duty employees from accessing their facilities to provide pro-union literature and will not be able to prevent union access to public spaces on the employer’s property if the employer also allows, for example, commercial or charitable activities in that space.

Stoel Rives helps manufacturing clients address their business and regulatory challenges, including those related to labor and employment, corporate, antitrust, real property, environmental and safety, tax, and intellectual property law. To learn more visit www.stoel.com.