2021 Legislation – Action Items

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Carrie Connelly

From our Summer 2021 e-newsletter

Homelessness:

1. Pursuant to ORS 203.077, all cities and counties are required to enact policies recognizing the problem of homeless individuals camping on public property, and ensuring humane treatment in the event of removal from those sites. If your city does not yet have such a policy on the books, we can help you draft and adopt the requisite provisions. If you have previously enacted such policies, HB 3124 amended ORS 203.079 to increase the notice required prior to such removal, from 24 to 72 hours, and modified where unclaimed personal property must be stored. As these amendments went into effect upon passage, let us know if we can assist your city in adopting needed amendments as soon as possible.

2. HB 3115 requires municipalities to review their codes and ensure that “any city or county law that regulates the acts of sitting, lying, sleeping or keeping warm and dry outdoors on public property that is open to the public must be objectively reasonable as to time, place and manner with regards to persons experiencing homelessness,” in conformance with the Ninth Circuit’s decision in Martin v. City of Boise. HB 3115 has a delayed implementation date of July 1, 2023, providing some time for needed Code audits.

As HB 3115 applies expressly to “any city or county law,” by its own terms this new law does not impose any new obligations on special district entities. More importantly, it appears that the new law does not impact a special district entity’s ability to regulate access to its own property, particularly with regards to prohibiting trespassing.

Public meetings:

As of January 1, 2022, ORS 192.670 is amended by HB 2560 to require all meetings (excluding executive sessions) of the governing body of a public body to allow for virtual or electronic participation “to the extent reasonably possible.” Technical failures, disruptive participants and considerable added costs may render such participation “unreasonable.” Take steps now to allow virtual or electronic participation in your entity’s public meetings. Before electing that remote participation is unreasonable, be sure to evaluate your entity’s obligations under the Americans with Disabilities Act.

Mandatory Reporting:

HB 3071 amends ORS 124.050 to include all elected officials as mandatory reporters of child, elder and vulnerable adult abuse. This obligation is personal, and extends beyond events witnessed or learned of through official conduct. The push for this amendment stemmed from alleged sexual abuse and misconduct at a Salem church. Apparently, abuse was reported to the Church’s board of directors (whose members included law enforcement and elected officials) who did not report the allegations to appropriate law enforcement.

While reporting suspected abuse is not a difficult process, elected officials should know when and how to fulfill this new obligation. Scheduling a training prior to the bill’s effective date of January 1, 2022, may help them feel more comfortable in their new role.

Lift Charges:

Unless otherwise authorized by law, HB 2397 prohibits local governments from regulating long term and residential care facilities. This prohibition includes imposing fees exclusively on such facilities. EMS service providers regularly charge care facilities for calls to lift a fallen individual back into bed. Fortunately, both general and specific exceptions in HB 2397 allow EMS providers to continue charging such fees.

First off, the prohibition applies only to fees that apply “exclusively” to long term or residential care facilities, not those that are “generally applicable” to other business entities. Please double check that your entities’ fee schedules do not single out protected care facilities.

Beyond that, HB 2397 further clarifies that the prohibition does not apply to a “fine, fee, charge or sanction” against long term or residential care facilities that contact EMS providers to provide lift assist services to a fallen resident. This exemption, however, does include a qualifier; the facility must have “known, or reasonably should have known” that the fallen individual “does not require the services of an emergency medical services provider.”

As a result, care providers may argue that they are not medical professions, so cannot know which residents require EMS assistance after a fall. Only a court can clarify the parameters of this exemption. However, with the added protection for fees that do not apply only to such care facilities, chances are that such charges will not be successfully challenged.

While HB 2397 may not be as clear as the drafters hoped, EMS providers should be able to continue charging for lift services. Be sure that your fee schedule (and practices) do not charge a lift fee only to protected care facilities. Further, document carefully how and why a fallen individual clearly did not require EMS services. If in doubt, call our office on protected and prohibited charges.

2021 Oregon Legislation Police Reform

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Diana Moffat

From our Summer 2021 e-newsletter

The following bills, amongst others, came out of Oregon’s 2021 recent legislative session. The following bills could be of interest to you as you navigate your relationships with your unionized public-sector employees. The bills outlined below contain just a summary of the newly enacted statutory requirements. You should consult with your management Labor Attorney for full details and best practices for implementation.

HB2930 – Police Misconduct – Arbitration proceedings (7/1/2021)

http://olis.oregonlegislature.gov/liz/2021R1/Downloads/MeasureDocument/HB2930/Enrolled

For Collective Bargaining Agreements entered into after July 1, 2021, grievances related to misconduct allegations for law enforcement officers will be resolved pursuant to the new statutory requirements. The burden of proof, upon the employer, is set at a “preponderance of the evidence” rather than the traditional “clear and convincing” evidence standard. Just cause is that as defined in ORS 236.350. The Oregon Employment Relations Board will appoint a person from a list of qualified, indifferent and unbiased persons to serve as the arbitrator of the proceeding. The appointed arbitrator shall uphold the disciplinary action unless the arbitrator finds that the disciplinary action is arbitrary and capricious. The bill also creates a commission through the DPSST to build a non-bargainable statewide discipline guide to address significant misconduct in the specified areas of misconduct.

HB2929 – Duty to Intervene and Report Misconduct

https://olis.oregonlegislature.gov/liz/2021R1/Downloads/MeasureDocument/HB2929/Enrolled

A police officer, including reserve officers, who witnesses another officer engaging in excessive force, sexual harassment, sexual misconduct, discrimination based on protected class, or a crime, must report the conduct to a direct supervisor, someone in the chain of command, or the DPSST within 72 hours of the observation. In addition, the bill provides for a reporting requirement of “a violation of the minimum standards for physical, emotional, intellectual and moral fitness for public safety personnel.”

HB2936 – Restrictions on police officer speech (1/1/2022)

https://olis.oregonlegislature.gov/liz/2021R1/Downloads/MeasureDocument/HB2936/Enrolled

Law enforcement agencies must now “adopt polices” that “set standards for speech and expression by officers in and outside the course and scope of employment.” Such policies must apply to all forms of speech and expression, “including but not limited tofilm video, print media, public and private speech and use of Internet services.” However, the adopted policies “may not violate the constitutional rights to free speech and expression.”

ADDITIONAL POLICE RELATED BILLS WORTHY OF NOTE

HB2162 – Police Accreditation and Equity Training (9/25/2021)

This bill requires police agencies with 35 officers or more to become accredited through an accrediting body determined by the state. The legislation also requires the Oregon Department of Public Safety Standards & Training (DPSST) to develop an equity training program for police and other certified public safety professionals. Police agencies with 100 or more officers must become accredited by July 1, 2025, and agencies with 35-99 officers must meet this standard by July 1, 2026.

HB2513 – CPR Training (1/1/2022)

HB2513 requires all certified police officers and reserve officers to receive three (3) hours of CPR and airway maintenance training, and thereafter receive at least two hours of such training in each maintenance training period. Additionally, when an officer encounters a restrained person suffering a respiratory or cardiac compromise, the officer is now required to immediately request emergency medical service if it is tactically feasible to make such a request and the officer has access to communications.

HB3145 – Police Discipline Reporting (1/1/2022)

This bill requires police agencies to report misconduct findings that result in economic discipline to DPSST.

HB3355 – Crowd Control Identification (1/1/2022)

HB 3355 requires police officers on duty and working crowd control in cities with a population of 60,000 or more to have the first initial and last name or unique identifying number legible on their front and back when engaged in crowd control activities. The requirement would apply to a smaller city that provides officers to a larger city that meets the population threshold through mutual aid.

Updates to Historic Preservation Ordinances Required by State Law

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Dan Lawler

From our Summer 2021 e-newsletter

In 2017, the Oregon Department of Land Conservation and Development (DLCD) amended the administrative rules that govern local historic resource programs and ordinances (OAR 660-023-0200). Afterwards, the State Historic Preservation Office (SHPO) developed a model historic preservation ordinance to provide local governments with an example of local regulations that comply with DLCD’s amended administrative rules. Together, the updated administrative rules and model ordinance identify elements of historic preservation programs that localities must adopt the next time they amend their historic preservation ordinances.

To help our clients that operate historic preservation programs, this article summarizes and explains significant items that must be included in historic preservation ordinances to ensure compliance with state law and to qualify for funding and technical assistance as a Certified Local Government. However, this article does not contain an exhaustive list of every requirement that local governments must incorporate into their historic preservation ordinances. Feel free to contact our office if your entity desires assistance updating its historic preservation ordinance.

Definitions

SHPO’s model ordinance identifies a handful of definitions that localities must incorporate into their historic preservation ordinances. These definitions are intended to promote consistency between federal, state, and local historic preservation programs, but may require localities to rename some of their existing definitions. For example, the commonly-used term “historic landmark” is now referred to by the State as “historic resource.” While SHPO may allow localities to retain some of their existing terminology, adopting the State’s definitions for historic preservation programs would help to avoid confusion between local, state, and federal requirements. For the complete list of definitions required under state law, see Section 7 of SHPO’s model ordinance.

Inventorying, Evaluating, and Designating Historic Resources

OAR 660-023-0200(4), (5), and (6) establish procedures that localities must use to inventory, evaluate, and designate historic resources. The following bullets summarize the State’s updated inventory, evaluation, and designation requirements that must be incorporated into local historic preservation ordinances.

• Local historic resource inventories and resource lists must be maintained as public records, except for archaeological sites.
• Historic Preservation Commissions must evaluate historic resources in accordance with the State’s “Guidelines for Historic Resource Surveys in Oregon, 2010” document or SHPO updates to the guidelines.
• Historic Preservation Commissions must evaluate historic resources in accordance with the following categories: Eligible/Significant, Eligible/Contributing, Non-Contributing, or Not in Period.
• Objections from property owners must not prevent properties from being inventoried, evaluated, or designated to the historic resource inventory.
• Commission designations to the historic resource list must be made as land-use actions at public meetings.

See Sections 10 and 11 of SHPO’s model ordinance for more information on requirements related to inventorying, evaluating, and designating historic resources.

Historic Preservation Commissions

Sections 8 and 9 of SHPO’s model ordinance identify requirements for Historic Preservation Commissions that localities must include in their historic preservation ordinances. These requirements fall into two general categories: 1) Organization of Historic Preservation Commissions; and 2) Duties of Historic Preservation Commissions. The following bullets summarize the requirements for each category.

• Organization of Historic Preservation Commissions:

o Commission members must have a demonstrated interest in and knowledge of historic preservation.
o Localities must make all reasonable efforts to appoint individuals with experience in preservation, architecture, archaeology, community history, building trades, real estate, or related fields.
o Localities may establish their own residency requirements and term lengths for Commission members.

• Duties of Historic Preservation Commissions:

o Commissions must meet at least four times per year.
o Commissions must use the procedures of local historic preservation ordinances to review and act upon applications for designation, evaluation, preservation, rehabilitation, reconstruction, alteration, relocation, or demolition of historic resources.
o Commissions must provide written comments to SHPO upon request regarding the eligibility of historic resources for listing in the National Register of Historic Places.

Miscellaneous Requirements

While the paragraphs above outline larger categories of changes required by the state, the updated administrative rules and model ordinance contain various additional requirements that localities must incorporate into their historic preservation ordinances. The following bullets outline these requirements.

• Additional Protections for National Register Resources: Commissions must consider the list of factors in Section 13(d)(2) of the SHPO model ordinance at a public hearing when determining whether to apply additional protections to National Register Resources.

• Demolition or Relocation of National Register Resources: Section 14 of SHPO’s model ordinance establishes a definition of “demolition” that must be used for National Register Resources and specifies factors that Historic Preservation Commissions must consider when reviewing applications to demolish or relocate National Register Resources.

• Removal from the Resource List: Section 16(d) of SHPO’s model ordinance establishes specific procedures and factors that Historic Preservation Commissions must use to consider applications to remove significant historic resources from the resource list.

• Archaeological Resources: Local historic preservation ordinances must include language stating that archaeological resources must be protected and preserved in accordance with federal, state, and local regulations and that no person may excavate, injure, destroy, or alter archaeological sites without a permit. See Section 15 of SHPO’s model ordinance for more information on requirements related to archaeological resources.

MANDATORY VACCINES FOR FIREFIGHTERS, EMTs, VOLUNTEERS Labor Relations Implications

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Diana Moffat

From our Summer 2021 e-newsletter

On August 25, 2021, the Governor of Oregon issued a Temporary Administrative Order (PH 38-2021) which provides for “Vaccination Requirements to Control COVID-19 for Healthcare Providers and Healthcare Staff.” This Temporary Order is effective from 08/25/2021 through 01/31/2022, unless modified or extended.

What we know as of August 27, 2021:

We know that this Order includes Firefighters, EMTs and Volunteers who are included as “Healthcare Providers and Healthcare Staff” under the Order since they interact in a “Healthcare setting providing direct patient or resident care or who have the potential for direct or indirect exposure to patients, residents, or infectious materials, and includes but is not limited to any individual licensed by a health regulatory board as that is defined in ORS 676.160.” ORS 676.160 includes the Oregon Health Authority as a Health Professional Regulatory Board under section 18. We also know that Healthcare settings specifically include “vehicles or temporary sites where health care is delivered.”

We know that the new Temporary Order specifically replaces the previous Temporary Order from 08/05/2021 which had allowed for weekly testing as an alternative to being vaccinated. The new Order does not provide for the alternative of testing. The new Order does, however, specifically provide for a medical or religious exception to the vaccine. The Oregon Health Authority (OHA) has now provided forms for both exceptions. These forms would be provided to the employer for processing. A copy of the new Temporary Order, as well as the vaccine exception forms can be found here: https://covidvaccine.oregon.gov

We know that, on or before October 18, 2021, qualifying firefighters, EMTs and volunteers must provide their employer, with either:

• Proof of vaccination showing they are fully vaccinated (likely to include the 14- day period following the final dose administration);or
• Documentation of a medical or religious exception.

“A medical exception must be corroborated by a document signed by a medical provider, who is not the individual seeking the exception, certifying that the individual has a physical or mental impairment that limits the individual’s ability to receive a COVID-19 vaccination based on a specified medical diagnosis, and that specifies whether the impairment is temporary in nature or permanent.”

“A religious exception must be corroborated by a document, on a form prescribed by the Oregon Health Authority, signed by the individual stating that the individual is requesting an exception from the COVID-19 vaccination requirement on the basis of a sincerely held religious belief and including a statement describing the way in which the vaccination requirement conflicts with the religious observance, practice, or belief of the individual.”

If an employee presents a qualifying medical or religious exception, the employer likely must then decide if the granting of the exception is required under the Americans with Disabilities Act (ADA) or under Title VII of the Civil Rights Act, both of which entail an analysis of reasonable accommodations and undue hardships to the employer. Employers should consult with their HR department over such analysis.

What we don’t know as of August 27, 2021:

Is it a reasonable accommodation to allow a qualifying medical or religious exception employee to remain in the workplace, to have continued contact with other employees and the public? What if you provide for weekly testing of those individuals?

If an employee elects to not be vaccinated and does not have a qualifying medical or religious exception, and therefore resigns, will they be entitled to receive unemployment insurance coverage based on the concept of “good cause” resignation? Generally speaking, people who quit their jobs aren’t eligible for jobless benefits unless they leave for “good cause,” meaning they faced an extraordinary issue that forced them to leave work.

If that same employee is terminated from employment, will they be entitled to receive unemployment insurance coverage? People who are fired often are eligible for benefits, unless they are fired because of misconduct. Is a refusal to be vaccinated, assuming that there is no bona fide medical or religious exception, misconduct?

“This is a rapidly evolving issue, and we are monitoring federal and state law and court cases closely,” the employment department said in a statement. “Each person’s situation is different, and eligibility for UI benefits is determined on a case-by-case basis.”

Do you have a Duty to Bargain with the Union?

A public employer has an obligation to bargain with the Union over the “impacts” of a change to working conditions if those changes impact a mandatory subject of bargaining. The employer, however, is prohibited from bargaining with the union to NOT follow State law. In addition, an employer cannot bargain with the Union to waive an individual’s right to applications of laws such as the ADA. So, what are the mandatory impacts that you may be required to bargain? Most employers already have in place policies and procedures for how employees are processed if they test positive for COVID and for whether testing and/or vaccinations are done on paid leave time. None of those policies are implicated by this new Temporary Order. However, any Demand to Bargain from the Union should be analyzed with your legal counsel.

The Bottom Line:

After October 18, 2021:

• Your qualifying employee may not work, assist, observe, or volunteer in a healthcare setting unless they are fully vaccinated or have provided documentation of a medical or religious exception.
• You, as the employer, may not employ, contract with, or accept the volunteer services of employees or volunteers who are working, assisting, observing or volunteering at a healthcare setting unless they are fully vaccinated against COVID-19 or have a documented medical or religious exception.

It is recommended that you consult with your labor legal counsel and your HR department regarding these important decisions. Additional information from the OHA is expected in the coming days.