United States: Five Questions Regarding Coronavirus In The Oregon Employment Context

Highlights

• As the United States and countries around the world continue to deal with the spread of the coronavirus (COVID-19), employers need to be prepared to deal with the impact on their employees as well as to provide a safe and healthy workplace.
• This is of particular importance to employers in Oregon because of the state's close proximity to Washington, which is among the most impacted U.S. states for COVID-19. When instituting policies and procedures, Oregon employers must be aware of and follow applicable state and federal laws to avoid any potential litigation.

As the United States and countries around the world continue to deal with the spread of the coronavirus (COVID-19), employers need to be prepared to deal with the impact on their employees as well as to provide a safe and healthy workplace. This is of particular importance to employers in Oregon because of the state's close proximity to Washington, which is among the most impacted U.S. states for COVID-19.

When instituting policies and procedures, Oregon employers must be aware of and follow applicable state and federal laws to avoid any potential litigation. This Holland & Knight alert addresses five questions that Oregon employers need to know regarding COVID-19 cases in the workplace. (Additional information is available in Holland & Knight's previous alert, "Coronavirus: Implications for Employers," March 4, 2020.)

Do Oregon employers have to pay nonexempt or exempt staff who are sent home, not scheduled because of office closure, or choose to stay home due to coronavirus concerns?

The Oregon Sick Leave law requires employers to provide at least 40 hours of protected sick time per year (one hour of protected sick time for every 30 hours worked for those employed more than 90 days). If the employer has more than 10 employees (or more than six in Portland), the employer must pay the employee's regular wage when sick leave is taken. Otherwise, sick leave is unpaid. Employees may use sick time for their own illness, or to care for a family member who is sick or needs to visit the doctor. Employers should consider whether the terms of any existing collective bargaining agreements, contracts or disability policies in place provide additional employee protections. While exempt employees are required to be paid if they work any part of a day – whether in the office or remotely – they may be required by company policy to use sick leave. Workers who are not sick or caring for a sick family member, who are unable to work remotely, and who choose to stay home as a preventative measure may not be entitled to sick pay.

Do mandated absences because of possible, suspected or diagnosed coronavirus fall under OFLA or FMLA?

If an employee has used all of their sick leave, they may qualify for 12 weeks of protected leave under the Oregon Family Leave Act (OFLA) or Family Medical Leave Act (FMLA). This likely does not apply to employees seeking leave solely for preventative purposes.

Under Oregon's predictive scheduling law (ORS 653.436—500 or more worldwide employees) must employers pay nonexempt retail, hospitality or food service workers who are sent home without notice?

Oregon's predictive scheduling law applies only to employers with 500 or more worldwide nonexempt employees who are primarily engaged in and performing a retail, hospitality or food services function. The law requires employers to provide shift work predictability and generally prevents employers from changing work schedules without advance notice. In certain circumstances, the law requires employers to compensate employees when changes are made. Exceptions to these requirements apply where the employer makes changes because of recommendations of a public official, a natural disaster or similar cause. Coronavirus may satisfy these exceptions under certain circumstances.

Must the employer take special precautions to clean its workplace?

Oregon Occupational Safety and Health (Oregon OSHA) and federal Occupational Safety and Health Administration's (OSHA) "general duty clause" requires covered employers to furnish a safe working environment. Additional requirements may apply to employers depending on the nature of the specific workplace. Employers should track the guidance from the Centers for Disease Control and Prevention (CDC) on this issue.

Must the employer cancel all employee travel?

Employers may – but are not required to – cancel all employee travel at this time. Certain travel may be restricted or prohibited on a federal, state or local governmental level. Travel restrictions and guidance is available from the CDC.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.