UPDATED: BOLI Issues New Rule Providing for Emergency Exemption from Manufacturing Hours Limits

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Current Oregon law grants two important rights to manufacturing employees: (1) they are entitled to overtime pay if they work more than 10 hours in a single work day (and can never work more than 13 hours in a day); and (2) they may not work more than 55 hours in a workweek unless they provide their written consent to work up to a maximum of 60 hours.  In response to the COVID-19 pandemic, the Oregon Bureau of Labor and Industries (“BOLI”) has adopted a new emergency rule that allows manufacturing employers to seek a partial exemption from these requirements as described below.

Under BOLI’s new rule, employers engaged in manufacturing products that “reasonably result in the preservation of life and property” during the coronavirus pandemic may seek the exemption.  (BOLI has also issued a FAQ to help employers determine whether they are making such products, among other guidance.)

Here is what BOLI had to say about what kinds of manufactured product will support the exemption:

“Manufacturers that are part of the supply chain for food or medical equipment and have seen increased demand during the pandemic are great examples. For example, garment factories producing medical personal protective equipment (PPE), scrubs, or gowns may be included, whereas a regular clothing manufacturer may not.”

Assuming a company is engaged in manufacturing qualifying products, the following parameters apply to the exemption:

  • Employers must provide notice of the emergency situation to the BOLI commissioner within seven calendar days of first permitting employees to work more than 55 hours in a week. A model notice containing the required provisions is here.  (Note that employers must submit a copy of their social distancing guidelines as part of the notice.)
  • Employers must obtain written consent from each employee whom the employer will request to work more than 55 hours in any workweek during the emergency period.  A model consent form containing some of the required provisions is here.  (Note: BOLI’s model notice as currently drafted does not precisely comply with their rule; we anticipate that changes are forthcoming.)
  • Employers may not coerce employees to consent to working more than 55 hours in a workweek. Additionally, employees can withdraw their consent at any time.
  • Even with the emergency exemption in place, employers must not allow employees to work more than 13 hours in a day and 91 hours in a workweek.
  • Employers must continue to pay overtime for employees who work more than 40 hours in a workweek.
  • Don’t forget about meal and rest breaks! Employers claiming an emergency exemption must still provide rest and meal breaks. BOLI’s FAQ includes a helpful chart for keeping track of how many meal and rest periods employees are entitled to when they work 10- to 13-hour shifts:
Length of work period Number of rest breaks required Number of meal periods required
2 hrs or less 0 0
2 hrs 1 min – 5 hrs 59 min 1 0
6 hrs 1 1
6 hrs 1 min – 10 hrs 2 1
10 hrs 1 min – 13 hrs 59 min 3 1

The emergency exemption is available from March 27, 2020 through September 22, 2020 (unless BOLI determines before that date that there is no longer an emergency).  Contact your employment attorney if you have questions regarding the new rule or whether the exemption applies to your business.

Key Contributors

John B. Dudrey
Melissa J. Healy
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