Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Given the continued spread of the novel coronavirus (COVID-19) and its implications, employers are confronting difficult questions regarding how to handle safety and health rules, travel restrictions, privacy of employees’ health information, compensation, and other employment and labor issues. There are many resources available on the numerous national (and international) issues to consider in this crisis. Our extensive Littler guidance is available here, and those materials broadly address topics such as preventative measures, what to do if an employee tests positive, and general considerations for furloughs and wage and hour law.
This article will not revisit the basics of the virus or macro issues that arise as a result. Rather, it will focus on issues specific to Oregon employers. Employers should stay apprised of additional legislative, regulatory, and other developments as the situation continues to unfold and should consult counsel with questions.
Oregon Employer Liability. Oregon employers have a duty to provide a place of employment, free from recognized hazards that cause or are likely to cause the death or serious physical harm to employees. That said, privacy laws prevent employers from sharing any specific medical information of another employee. The extent to which this regulation requires proactive measures before a known infection in the workplace is unclear. Employers are urged to take all available precautions to mitigate the risks of contamination in the workplace while respecting individual privacy rights.
Oregon Paid Sick Leave (OPSL). OPSL is applicable if an employee is prevented from physically attending work due to a public health emergency, even if they are not personally symptomatic. Otherwise healthy employees may be required to stay home, not work, and exhaust any personally available OPSL, subject to the public health emergency provision. Consistent with company policy, employers may permit otherwise healthy employees, who are not working, to stay home on an unpaid leave basis, if the employee wishes to save their sick leave; but if OPSL is requested, it must be provided. Employers should make sure employees understand any relevant policies and might consider reminding staff of such policies.
Under the OPSL law, employers with six or more employees in Portland, or 10 or more employees in the rest of the state, are required to provide employees with a minimum of 40 hours paid sick leave per year, which may be used after the employee’s 90th day of work. OPSL can either be “accrued” at a rate of 30:1 (one hour of leave per 30 hours worked) or “front loaded” at the beginning of the year or a work anniversary. OPSL may be donated between employees, or donated by healthy employees to a general “bank” of leave to benefit other high risk, or unhealthy employees. Donation programs should be implemented pursuant to a specific policy. Employers interested in adopting such a policy should consult with counsel about their specific needs.
Oregon Family Leave Act (OFLA). Employers with more than 25 employees must provide qualifying employees with up to 12 weeks of unpaid leave to care for their own, or a family member’s, serious medical condition. OFLA would be triggered for COVID-19 if the employee is personally ill or caring for a family member who is ill. An employer should provide an employee invoking OFLA with proper election forms and potentially could be exhausting available FMLA leave at the same time, if the employee is eligible.
WARN-like Notice. There is no specific Oregon law requiring notice to employees of a mass layoff, although an employer may need to notify the Office of Community Colleges and Workforce Development agency of a layoff that otherwise qualifies for federal WARN. The issue can be complicated, but generally federal law (the Worker Adjustment and Retraining Notification Act, known as WARN) requires that most employers with over 100 workers provide 60 days advance notice in the event of mass layoffs where workers are not expected to return to work within six months. Additional information about federal WARN duties can be found in this article, and at the link provided above.
Furlough/Layoff Considerations. A furlough keeps employees technically on an employer’s “books” during a work stoppage. A layoff, on the other hand, is generally more permanent, with an uncertain return to work at best. Furloughing employees during a temporary crisis is usually more favorable than a layoff unless the employer does not believe the work will return. Employers should be cautious about the wage implications of reduced work arrangements. For example, exempt employees (salaried management, professionals, and executives) are entitled to the same pay for working a partial week as they would be for working a full week. Exempt employees that do not perform any work in a week are not required to be paid for that week. So, for exempt employees facing reduced hours, employers may choose to schedule them “one week on, one week off,” as opposed to partial weeks. An employer is not required to pay a non-exempt employee who is furloughed.
Unemployment Benefits. Oregon employees laid off or furloughed will likely be entitled to unemployment benefits. Employees working significantly reduced work schedules will also likely be entitled to benefits, which are calculated based on formulas with the applicable state agency. Some states have amended their unemployment regulations to account for the COVID-19 outbreak (including neighboring Washington) and employers should follow applicable updates to become aware of potential changes.
Predictive Scheduling. In Oregon, employers with 500 or more employees worldwide in the retail, hospitality, or food service industries are required to compensate employees for late changes to work schedules. Exceptions exist, however, for work interruptions due to the cancellation of events, or on the recommendations of a public health official. If an employee is symptomatic, there should not be a penalty for sending them home without pay under this law. For any non-symptomatic employees denied work as a precaution, a penalty under this law would seem unlikely given the state of this crisis, and the speed of its development.
Remote Work. Some Oregon employers may permit employees, whether healthy or high risk, to work remotely to slow the spread of the disease. Under Oregon’s anti-discrimination laws relating to age (the elderly) and disabilities (individuals with chronic health conditions), permitting home work as a reasonable accommodation, where possible and not an undue hardship on the business, may be legally required. Employers considering any work at home arrangements should strive to set concrete expectations for what is required, including work hours, availability, and productivity. Non-exempt workers must have clearly established systems for tracking hours and required breaks. Other considerations include personal workspace safety, ergonomics, confidentiality of information, and communication expectations.
All employers are encouraged to continue re-examining their policies as COVID-19 issues continue to develop.