Here is a list of FAQs my office has fielded over the last few days related to the COVID-19 pandemic. If you have not had a chance to read over a comprehensive list of leaves available to employees (as well as options to employers), read this first.
I have to reduce my employee hours. What obligations do I still have as employer?
- Reducing employee hours does not remove your obligations as employer. Employees who have accrued, unused sick time still get sick time for qualifying reasons (or the equivalent in PTO/vacation if you are operating under a substantially equivalent policy). Employees whose situations or conditions qualify them for federal leave under the Families First Coronavirus Response Act (FFCRA) will still receive this benefit beginning on April 2, regardless of reduced hours. Employers of 25 or more are still covered by the Oregon Family Leave Act (OFLA) and the Family and Medical Leave Act (FMLA).
- Consider updating your job descriptions for the positions receiving reduced hours. At a time of such unrest, your ability to clarify modified expectations may be critical to your employee’s understanding as well as your business performance.
- If you have to reduce at least three employees’ hours between 20-40%, and those employees have worked for you for 6 months (full time) or 12 months (part time), consider applying for Oregon’s Work Share program. I touched on this program briefly in my previous post because it is a legitimate and workable option for many of my clients. Oregon’s Work Share program helps employers avoid completely laying off employees by offsetting lost wages with unemployment insurance benefits.
My industry is essential and we cannot telecommute. What should I be doing to protect my employees?
In addition to the steps we all need to take to prevent the spread of COVID-19 (washing hands thoroughly and frequently, sanitizing surfaces, maintaining at least 6 feet away from people, coughing/sneezing into a tissue and disposing of it promptly, etc), I recommend the following:
- Post social distancing and hygiene requirements in all frequently-trafficked locations. These notices should include the requirements for employees to maintain at least 6 feet from one another, to thoroughly and frequently sanitize surfaces, and to wash hands with great frequency.
- Designate at least one individual responsible for ‘policing’ social distance requirements and for overseeing sanitization.
- If possible, consider workplace flexibility, such as staggered shifts.
- Draft a workplace policy specific to COVID-19. This policy should include the expectations you have for your employees to be vigilant in social distancing and all heightened hygienic practices, but it should also inform your employees about what to do if they feel ill, exhibit COVID-19 symptoms, or are exposed to someone who has COVID-19 symptoms. As with any other updated policy, employees need to read the policy and acknowledge it – and then it goes in their personnel file. Let me know if you would like help with this policy.
- If you absolutely insist on conducting health checks for your employees, see me. In light of the fact that COVID-19 is a pandemic, you may do so to a certain extent, but there are specific considerations associated with maintaining confidentiality, proper training of whoever will be conducting the health checks, etc.
What do I do if an employee calls in sick during this COVID-19 pandemic?
During this pandemic time, the restraints surrounding ADA-covered employers loosen somewhat: you may ask your employee if they are experiencing COVID-19 symptoms (fever, chills, cough, shortness of breath, sore throat). You must maintain your employee’s medical information confidential.
What do I do if an employee comes to work exhibiting symptoms of COVID-19?
You should send the employee home right away. You may also discipline the employee, although it would be wise to do so after the employee returns to work. COVID-19 represents a ‘direct threat’ to public health, and employees who have contracted the virus, or who display symptoms of the virus, present a significant risk of public harm by remaining at work. See this post for a primer on what kinds of leaves are available for symptomatic employees. Other steps you should take include:
- Talking (I recommend a virtual conversation) with infected employee to determine who he/she came into contact with over the last 14 days;
- Sending home those coworkers with whom the infected employee had close contact for at least 14 days;
- Consider closing temporarily to clean the entire facility/workspace; and
- Cleaning according to the following protocol: https://www.cdc.gov/coronavirus/2019-ncov/prepare/disinfecting-building-facility.html.
I have to lay off an employee. Do I have to pay out his/her sick time?
For employers of 10 or more (6+ in Portland) who have to temporarily lay off an employee, there is no legal obligation to pay out an employee’s sick time under Oregon law (unless you have an existing policy informing employees of payout upon termination). If your employee is rehired within 180 days, the sick leave balance is reinstated upon the date of rehire. However, you may elect to pay accrued and unused sick time, and rehired employees will begin accruing sick leave with a zero balance at time of rehire.
I have to close my business temporarily. Do I have to pay out all my employees’ sick time?
Oregon law grants employees the right to use paid sick leave when an employee’s workplace is closed due to a public health emergency. So if you have to lay off employees and close your business even temporarily, you should pay out their accrued, unused sick leave.