Greetings! As employers and business owners, many of you are on the front lines of this rapidly evolving COVID-19 situation. I know that caring for your employees while keeping your business afloat is front and center for you. To help you navigate what your options and obligations are, here is a list of things to keep in mind. Let me know if you have any questions.

  • Oregon Sick Time
    • If you employ 10 or more (6+ in Portland), your employees get paid sick time. At a minimum, employees receive 1 hour of sick time for every 30 hours worked (up to 40 hours of sick time). If you have a written policy that provides more than the minimum, your employees get the amount detailed in your policy.
    • Employees may draw on their accrued sick time on the 91st day of employment.
    • Employees may use this protected sick time to care for themselves and family members. In public health emergencies like the COVID-19 pandemic, employee absence due to a closure of a school, day care or business would also be protected as sick time.
  • Oregon Family Leave Act (OFLA) and Family Medical Leave Act (FMLA)
    • If you employ 25 or more, your employees may take up to 12 weeks off under OFLA and FMLA to care for their children during closures. This leave is unpaid, but employees may use available paid time off or paid sick leave contemporaneously.
  • Families First Coronavirus Response Act (FFCRA). President Trump signed this bill into law yesterday. It goes into effect April 1st and will remain in effect until December 31, 2020. FFCRA applies to all private employers of 500 or fewer, however there is a possibility that employers with fewer than 50 employees may be eligible for a hardship exemption at a later date. We are still waiting on the Secretary of Labor’s related regulations so stay tuned. Under the FFCRA, employers must provide:
    • Emergency Paid Sick Leave:
      • Who: All employees of employers with 500 or fewer
      • Qualifying Reasons: if an employee is unable to work/telework because
        • He/she is under a quarantine or isolation order;
        • A medical provider has advised your employee to self-quarantine due to COVID-19 concerns;
        • He/she is symptomatic of COVID-19 and is seeking medical diagnosis;
        • He/she is caring for an individual (we are currently unclear whether this ‘individual’ is limited to family members… more on that as I get it) who is subject to a quarantine/isolation or has been instructed to self-quarantine by a medical professional for COVID-19 concerns;
        • He/she is caring for his/her child whose school or daycare is closed or unavailable as a result of COVID-19 concerns and precautions; or
        • He/she is experiencing anything similar as specified by the Secretary of HHS in consultation with the Secretaries of Treasury and Labor. More on that when the Secretary of HHS clarifies.
      • What:
        • Full time employees receive up to 80 hours of paid sick leave;
        • Part time employees receive an amount equivalent to the average hours they have worked over a two-week period;
        • Employees must be paid at their regular rate of pay, up to a max of $511/day and $5,100 total for leave taken for reasons associated with their own illness;
        • Employees must be paid at 2/3 of their regular rate of pay, up to a max of $200/day and $2,000 total for reasons associated with caring for others or facility closures.
      • Use:
        • Eligible employees may use this paid sick time beginning on April 2nd.
        • Employers are not allowed to require employees to first use other paid leave (such as Oregon Sick Time, PTO, OFLA, FMLA, etc) before using paid leave under this Act. This paid leave is in addition to other paid leaves.
        • Employers can require employees to follow reasonable notice procedures after the first workday the employee receives the paid sick time. This means your employee will be protected even if he/she fails to provide advanced notice to you prior to the first workday of absence.
      • Posting Requirement: you must post a notice advising employees of their rights under this Act. This notice should be available for you no later than March 25th.
    • 12 weeks paid emergency family leave for school & childcare absences
      • Who: This is an emergency extension of the Family Medical Leave Act (FMLA) to address school and daycare closures nationwide and it applies to all employers of 500 or fewer.
      • Qualifying Reasons: Employees may take this leave if they cannot work or telework because their child’s school or daycare is closed as a result of the public health emergency COVID-19.
      • Qualifying Employees: Employees who have worked at least 30 days for you are eligible for this leave.
      • What:
        • Unpaid for the first 10 days, although a qualifying employee may elect to draw on his/her accrued paid sick leave/PTO/vacation during this time;
        • After the initial 10-day period, the employee is entitled to receive 2/3 of the employee’s regular pay during the leave (up to a max of $200/day and $10,000 total).
      • Reinstatement looks like:
        • Employers of 25+ must reinstate employees to the same or equivalent position. Employers of fewer than 25 must restore the employee at the end of the leave period unless the job has been eliminated for economic conditions or other reasons associated with the public health emergency.
      • A couple other notes about this new bill:
        • This bill prohibits retaliation against employees for drawing on this leave, and failure to pay is treated as a violation of the Fair Labor Standards Act (which means penalties, interest and attorney fees).
        • Employers will receive refundable tax credits against you portion of social security taxes for 100% of wages paid under the Act.
  • Unpaid Leave: Consider revising your unpaid leave policy to extend the allowance for symptoms associated with COVID-19 symptoms. This relaxation will go a long way in employee relations and will help you apply the leave consistently (thus avoiding retaliation claims in the future).
  • Let’s talk about layoffs:
    • Do not lay off your employees to circumvent these new laws
    • If you do need to lay off employees, know that Oregon has updated its relevant definitions of criteria to encompass COVID-19 related unemployment.
    • Document the reasons for your layoffs
    • Talk to me if you have concerns about layoffs, unemployment insurance, etc.
  • Let’s talk about Workshare:
    • Workshare is a national program administered by Oregon’s Employment Department, designed to help prevent a full layoff of your skilled staff. The program essentially fills the gap between full hours and reduced hours created in scenarios like what we are seeing today.
    • Workshare isn’t for every employer – but it is worth considering if you have a forced reduction in hours, want to retain your skilled workers as much as possible, and have at least three workers you can enroll.
    • See me if you are interested in pursuing Workshare as an option. Must have at least three employees who we will enroll
  • A note about exempt employees
    • If an exempt employee is sick and has exhausted all paid leave options, you can only dock pay in full day increments.
    • If you have to close your doors for a day or two out of the week, you still pay your exempt employees for the full week. You cannot dock your exempt employee’s pay for partially worked weeks. You can dock your exempt employee’s pay when the employee does not work at all during an entire work week.

Finally, it is critical that you remind your employees of your prohibition against discrimination. As my clients, almost all of you have published and trained your employees on your position that you do not tolerate discrimination and harassment of any kind, and now is a good time to remind them of your position. As we have all seen in recent days, sometimes fear causes folks to act in ways they would not otherwise act, say things they might not otherwise say, and treat others in ways they might not otherwise treat them. Be the voice of reason – you won’t regret it.