Oregon Legislature Enacts New Protections for Schools and Whistleblowers Due to COVID-19

By Liani J. Reeves - Bullard Law

December 22, 2020

In the State’s third Special Session held on December 21, 2020, the Oregon Legislature passed House Bill (“HB”) 4402, which enacted additional protections for schools related to the COVID-19 pandemic. It also has implications for private employers who provide services to schools.

HB 4402 was one of five bills considered by the Special Session. It passed the House with 46 ayes, eight nays, and six excused; and passed the Senate with 20 ayes, four nays, and six excused.

The bill establishes an immunity against claims for damages against schools related to COVID-19 infections suffered as a result of acts or omissions performed by a school in the course of operating an education program (on or off school property) and when the school is operating in compliance with “COVID-19 emergency rules” in effect at the time of the act or omission.

“COVID-19 emergency rules” include “an executive order, order of the Superintendent of Public Instruction, declaration, directive or other state or federal authorization, policy, statement, guidance, rule or regulation that creates a standard or waives, suspends or modifies otherwise applicable state or federal law, regulations or standards regarding the rendering of education services.” This would include following protocols outlined in OSHA or Oregon Health Authority rules.

Schools include a common school district, a union high school district, an education service district, a public charter school, a private school providing instruction to any grade from kindergarten through grade 12, or a community college district.

It also provides that a person engaged in activities on school property that are not operated by a school may not bring a claim against the school for damages related to COVID-19 infection. The bill excludes immunity for “reckless, wanton or intentional misconduct.” The bill does not prohibit causes of actions based on workers’ compensation, occupational health and safety, wage and hour laws, discrimination, retaliation, or specialized instruction laws.

The immunity applies to claims arising during the period in which any declaration of a state of emergency related to COVID-19 and issued by the Governor on March 8, 2020, and any extension of the declaration, is in effect. The Governor recently extended the state of emergency declaration until March 3, 2021.

The law also amends the public and nonprofit whistleblowing statute, ORS 659A.203, to make it an unlawful employment practice for any school services employer to invoke or impose any disciplinary action against a school services employee for reporting or filing a complaint alleging a violation of any law, regulation or standard pertaining to the COVID-19 pandemic. A “school services employer” includes a private employer that enters into a contract with a school to provide school services to a school, including custodial or janitorial, nutrition, transportation, or other education services that are customarily performed by school employees. The amendments to ORS 659A.203 apply to retaliatory conduct that occurs during the period in which any declaration of a state of emergency related to COVID-19 and issued by the Governor on March 8, 2020, and any extension of the declaration, is in effect. As noted above, this is currently through March 3, 2021.

The bill will be forwarded to the Governor for signature.

As always, our team at Bullard Law is here to help if you have any question.