Coronavirus and Employer Obligations: Your Questions Answered

By Caitlin Egeck, JD, HR and Compliance Consultant
Cascade Employers Association
[email protected]

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With many Oregon employers wondering what their workplace obligations are in the wake of the Coronavirus Outbreak, abbreviated COVID-19, we developed some FAQS. Please keep in mind that the Centers for Disease Control (CDC) and the Occupational Safety and Health Administration (OSHA), along with local public health authorities, should be where employers turn for specific workplace safety guidance.

Click here for OSHA’s Guidance on Preparing Workplaces for COVID-19 and click here for CDC’s Interim Guidance for Businesses and Employers. You can also read our last alert regarding the Coronavirus here.

Q: How does Governor Brown’s March 11th announcement regarding statewide COVID-19 orders affect Oregon employers?

A: Governor Brown announced that all large gatherings with over 250 people will be immediately canceled statewide for four weeks. This ban will affect employers who have any conferences or large social gatherings in the next four weeks. A gathering is defined as any event in a space in which appropriate social distancing of a minimum of three feet cannot be maintained. Additionally, Governor Brown recommended implementing workplace distancing measures including an increased physical space between employees in offices and worksites, limited in-person meetings, limited travel, and staggered work schedules where possible.

Q: On March 12th, Governor Brown ordered Oregon State’s public schools to cancel classes through March 31st. Many of our employees have school-aged children. What happens next?

A: Under Oregon Sick Leave, employees have a right to use sick time for a closure of their child’s school (or daycare) due to this public health emergency. Since public schools are now closed, employers should consider allowing employees to work remotely, if their job duties allow for it.

Q: May an employer send employees home who exhibit symptoms of COVID-19?

A: Yes. With the WHO’s declaration of COVID-19 being classified as a pandemic, the EEOC has stated that employers can require employees exhibiting any symptoms associated with COVID-19 to leave or not report to work. Employers do need to be careful to apply such practice consistently and in a manner that does not discriminate against any protected classes.

Q: What are your obligations if an employee has contracted or been directly exposed to COVID-19?

A: If you have an employee who has contracted COVID-19, that employee should be sent home immediately. It is also advised to seek information about who they may have come into close contact with through their work. Employers should share non-identifying information with other employees who work at the same location, as they are at increased health risk. Any employee that has come into close contact with the infected employee should also be sent home for 14 days. For specific guidance how to deal with COVID-19 positive employees, please reach out to the local health authority.

Q: May an employer require an employee to use any available PTO or vacation/sick leave for their absences associated with COVID-19?

A: Yes. Employers may require employees to use any available PTO or vacation/sick leave for their absences associated with COVID-19. Commonly, employers have policies in place that state employees must use all available paid time off before utilizing unpaid time off. As a reminder, Oregon law requires employers to allow employees to accrue, use, and generally carryover up to 40 hours of paid sick leave (unpaid if fewer than 10 employees or fewer than 6 employees in Portland) per year. COVID-19 related symptoms would be a qualifying reason under Oregon Sick Leave (OSL). Additionally, COVID-19 related symptoms of an employee’s family member would also be a qualifying reason under OSL.

Q: What can employers do if an employee is out of Paid Time Off and is absent from work due to COVID-19 related symptoms?

A: This answer depends on whether an employee is exempt or non-exempt.

  • For non-exempt employees, employers must compensate employees for all hours worked. If a non-exempt employee is home from work but working remotely, then the employee must be compensated for all hours worked. However, if a non-exempt employee is absent from work and does not perform any services, the employee does not need to be paid for that time.
     
  • Exempt employees, on the other hand, should receive their full salary during any week where work is performed, with some exceptions. For instance, if an employer has a bona fide sick leave or PTO policy in place and an exempt employee either is not eligible for sick leave/PTO or has exhausted their sick/ PTO hours, then employers can deduct only for full day absences assuming the employee performs no work during that day.

Q: Could COVID-19 trigger FMLA or OFLA for eligible employees?

A: Potentially. As a reminder, there are statutory family leave laws that generally allow eligible employees to take up to 12 protected weeks off for certain health or family-related reasons. If your company has 25 or more employees in Oregon, it is covered under OFLA. If your company has 50 or more employees anywhere in the United States, it is covered by FMLA. For OFLA, employees generally must have worked for the company for 180 days and be working an average of 25 hours per week during the 180 days before leave begins. For FMLA, employees must have been with the company for at least 12 months (not necessarily consecutive), and have worked at least 1250 hours in the 12 months prior to the requested leave.

One of the reasons an eligible employee can take FMLA and/or OFLA leave is for serious health conditions related to the employee or the employee’s immediate family members. Coronavirus could be considered a “serious health condition” under FMLA and OFLA. If eligible employees are unable to work due to COVID-19 related symptoms, they should be provided with the OFLA/FMLA paperwork.

Q: Do employers have to pay employees if the company shuts down for a specified time due to COVID‑19?

A: Like the previous FAQ, this answer depends on whether employees are exempt or non-exempt. If an employer shuts down their offices/facilities, non-exempt employees do not need to be paid when work is not being performed. However, for exempt employees, the general rule is that exempt employees need to be paid for all weeks in which some work is performed. Therefore, if offices/facilities are shut down for partial weeks, exempt employees receive their full salary. However, if offices/facilities are shut down for a full week, employers are not required to pay exempt employees for weeks where no work is performed.

Q: If employers are faced with having to close facilities or lay off employees due to COVID-19, are those employers required to give notice to employees?

A: If employers do have to close facilities or lay off employees due to COVID-19, employers need to determine whether the Worker Adjustment and Retraining Notification Act (WARN) applies. WARN is a federal law that requires employers with 100 or more employees to provide written notice at least 60 calendar days before a plant shutdown or covered mass layoff. The law does have an exception to the 60-day notice provision for unforeseeable business circumstance that is caused by some sudden, dramatic, and unexpected action or conditions outside the employer's control.

There is a good argument that COVID-19 would be considered an unforeseeable business circumstance. However, even with that exception triggered, employers still give employees notice of such layoffs or closures as soon as practicable.

Q: I am an employer covered by predictive scheduling. How does COVID-19 interact with this law?

A: As a reminder, the Oregon Employee Work Schedules Law, which took effect in 2018, applies to Oregon employers who are primarily engaged in providing retail, hospitality or food services and have 500 or more employees worldwide. Employers covered under WARN are required to provide employees with written work schedules at least seven calendar days before the first day of work that runs through the last day of the posted work schedule in effect at the time of delivery.

If employers fail to provide advance notice of scheduled changes, employers are required to provide compensation to the employees who were affected by the schedule change. However, an employer does not have to pay the penalty if an employee’s work shift or on-call shift cannot begin or continue due to the recommendation of a public official. With this, there is a strong argument that the COVID-19 triggers this exception to the penalty component of predictive scheduling.

Q: May employers encourage or require employees to work remotely as a disease prevention strategy?

A: Yes. Employers may encourage or require employees to work remotely as prevention strategy. Employers still need to be mindful that such policies and practices must be applied in a non-discriminatory manner. Employees should be told to contact their supervisors to see if remote work is feasible based on their job descriptions.

Q: May employers discipline employees who are in violation of the company’s attendance policy due to COVID-19 related absences?

A: Employers should strongly consider not disciplining employees who are in violation of attendance policies because of COVID-19, as the health and safety of all employees is important in the face of a pandemic. Some of the absences may also be specifically protected under Oregon Sick Leave and/or OFLA and FMLA which would prohibit using those absences against them. Further, if employers relax their attendance policy in the face of COVID-19, employers will not create a precedent for non-coronavirus related absences as long as it is clear the relaxed policy is specific to COVID-19 related illnesses only.

Q: May an employer restrict business travel?

A: Yes. Employers may restrict business travel and should prohibit all unnecessary travel per Department of State’s advisory. Employers should develop and communicate plans in regards to both global and domestic travel. While employers should not limit employees’ rights to personal travel, employers can implement self-quarantine upon an employee’s return but this policy must be applied consistently.

Q: Is there anything employers can do to help ease the financial burden COVID-19 has caused employees?

A: Yes. Employers can consider advancing PTO/Vacation accruals to cover COVID-19 related absences. Employers may also decide to increase employee sick leave accruals or potentially frontload 40 hours to employees. Some employers are also providing employees additional paid sick leave specifically for COVID-19 purposes. Other employers are letting employees use accrued vacation for COVID-19 purposes if they have separate sick and vacation policies and the employee does not have sick time available. Employers can consider implementing a catastrophic leave bank where employees donate PTO or sick hours to give to employees who are absent from work due to COVID-19. Of course, there are many other options to consider, but these are the most common we are seeing right now.

Q: Can an employee refuse to come to work due to their concerns over COVID-19?

A: In most circumstances, no. Under OSHA rules, an employee can refuse to come to work if they believe they are in imminent danger, which is defined as threat of death or serious physical harm. The employee would need to show that there is a high risk of death or serious physical harm in their immediate future if they were to come to work as opposed to a generalized fear. This is a high burden for employees to meet, especially if employers are following the workplace recommendations provided by the CDC and OSHA. However, if an employee is refusing to come to work, it may be worth seeking guidance.

Q: Can I require an employee that has recently traveled (personal or for business) to a high risk area to stay at home for a period of time after they return.

A: Because COVID-19 has been declared a pandemic, employers do not have to wait until an employee develops symptoms to ask about potential exposure. If the CDC or local health authorities such as the Oregon Health Authority recommends that individuals traveling to an affected area stay home for a period of time, then employers may do the same. It is recommended you obtain information from the CDC and Oregon Health Authority if you have any employees in that situation.

Cascade is actively monitoring this situation, and will continue to provide additional guidance as this situation may rapidly change. Please do not hesitate to reach out if you have any questions. Our team is prepared to answer your questions.

 

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