Coronavirus Resources for Employers

Red Abstract Virus Graphic


Top | Alerts | Resources | FFCRA | Tax Credits | Sick Leave | ADA | Wage & Hour | Closures | Unemployment | Safety | FAQs


There is a great deal of information being disseminated through the media, leaving employers confused and with many questions, including questions about telecommuting for those employees who are able to do so and leave for those who are not, along with the wage and hour implications of either scenario. Cascade is here to help provide clarity around the employment-related issues your business faces. As a first source, Cascade recommends using the Centers for Disease Control (CDC).

On this webpage, we will provide updated information about the virus, proactive steps employers can take and answers to your FAQs.

More Support for Our Members

AnswerSource Helpline
Our teams are ready and available to answer your COVID-19 related questions. Contact us at 503-585-4320 or [email protected].

Guides, FAQs, Webinars and Survey Data
Members have access to guidance and best practices produced by Cascade’s compliance team.

Email Alerts
Cascade will update our Members on an ongoing basis as new information emerges.

Consulting
If you need in-depth help navigating COVID-19 issues including workforce planning, employee communications, and reductions in force, Cascade is here to support you.


Top | Alerts | Resources | FFCRA | Tax Credits | Sick Leave | ADA | Wage & Hour | Closures | Unemployment | Safety | FAQs


COVID-19 Alerts

4/01 - IRS Issues Guidance Regarding Required Documentation for EFML and EPSL
4/01 - BOLI Issues Emergency Exemption to Maximum Working Hours in Certain Manufacturing Establishments
3/30 - FFCRA: IMPORTANT Update for Small Employers
3/27 - Senate Passes CARES Act: What Employers Need to Know
3/26 - Survey Results: COVID-19 Employer Responses
3/26 - New Emergency Order Issued By the Oregon Dept. of Consumer and Business Services
3/25 - New Required Poster for Families First Coronavirus Response Act (FFCRA)
3/25 - April 1 New Effective Date for Families First Coronavirus Response Act (FFCRA)
3/24 - New Dedicated COVID-19 Resource Center For Employers
3/23 - Governor Issues Stay-at-Home Directive
3/20 - Federal Government Allows Remote Form I-9 Verification
3/19 - Survey: Employer Response to COVID-19
3/19 - Temporary OFLA Amendments for COVID-19
3/19 - Emergency COVID-19 Bill Signed into Law: What Employers Need to Know
3/13 - Coronavirus and Employer Obligations: Your Questions Answered
3/12 - COVID-19 Preparedness at Cascade: We've Got You Covered
3/02 - What Employers Need to Know About the Coronavirus


Top | Alerts | Resources | FFCRA | Tax Credits | Sick Leave | ADA | Wage & Hour | Closures | Unemployment | Safety | FAQs


COVID-19 Resources

Cascade FAQs on COVID-19

Q: How should we address sick employees? (Updated 3/27/2020)
Q: How do we address employee concerns about co-workers who appear sick and/or who may be from areas with known coronavirus cases?
Q: What relief do we have if we cannot afford to pay leave required under the Emergency Family and Medical Leave and/or Emergency Paid Sick Leave? (Updated 3/27/2020)
Q: I am an employer covered by predictive scheduling. How does COVID-19 interact with this law?
Q: May employers encourage or require employees to work remotely as a disease prevention strategy? (Updated 3/27/2020)
Q: May employers discipline employees who are in violation of the company’s attendance policy due to COVID-19 related absences?
Q: May an employer restrict business travel?
Q: Is there anything employers can do to help ease the financial burden COVID-19 has caused employees?
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?
Q: Can I take the temperature of employee’s prior to them coming in to the workplace?
Q: Can I require a doctor’s note if an employee has been out ill?
Q: Can I require my employee to use their sick time for a COVID-19 related reason before using the Emergency Paid Sick Leave?
Q: Do you have any time off examples showing how EPSL, EMFL and other leaves are applied?
Q: Can employees use Oregon Sick Leave if our business shuts down? (Updated 3/27/2020)
Q: Can an employee use sick leave if they’re just fearful of coming to work and getting sick?
Q: How are full and part-time employees defined under EPSL and EFML? (Updated 3/30/2020)
Q: How do I know how much to pay under EPSL if my employee’s schedule varies week to week?
Q: Do I have to post a notice to employees about all of this? (Updated 3/27/2020)
Q: Are employees eligible for unemployment benefits if the business temporarily shuts down?
Q: Are employees that are required to stay home due to COVID-19 related illness or exposure eligible for unemployment benefits?
Q: If the employee is receiving paid time off benefits are they eligible for unemployment benefits?
Q: Do I include overtime in determining how much to pay employees under the EFML and EPSL?
Q: How do you determine an employee’s regular rate of pay?
Q: Can an employee take 80 hours of EPSL for their own self-quarantine and then another amount of EPSL for another covered reason?
Q: If an employee is home because their child’s school is closed (which is covered under both EPSL and EMFO), how do I track and pay for this time since it is covered under both?
Q: Do I have to pay for other qualifying reasons for FMLA now?
Q: Are the EFML and EPSL requirements retroactive?
Q: What documents does an employee need to give their employer to take EPSL or EFML? (Updated 4/1/2020)
Q: Can EPSL and EFML be taken intermittently? (NEW)
Q: If my employer closes its workplace during the effective period of the FFCRA but believes it will reopen at some time in the future, are employees eligible to use EPSL or EFML? (NEW)
Q: Are employees entitled to EPSL, EFML, or Oregon Sick Leave if our business closes due to lack of work? (NEW)
Q: If the employee is only receiving 2/3 of their regular rate under EPSL or EFML, can I require them to use their accrued and unused paid time off to make them “whole?” (NEW)
Q: If I reduce an employee’s hours, can they take EPSL or EFML for the hours that they were supposed to work? (NEW)
Q: Can I reduce wages for exempt employees without jeopardizing their FLSA status? (NEW)
Q: Can I switch to paying my exempt employees hourly? (NEW)
Q: What is the difference between a furlough and a layoff? (NEW)
Q: I have less than 50 employees. Am I excluded from complying with the Emergency Paid Sick Leave and Emergency Family Medical Leave Acts? (NEW)
Q: Is there any situation in which an employee could take more than 12 weeks of leave? (NEW)
Q: Can an employee use their company provided paid time off benefits and EPSL and EFML concurrently for the same hours? (NEW)
Q: Can I require an employee to supplement their pay from EPSL or EFML with company provided paid time off benefits such as sick or PTO? (NEW)
Q: How is son or daughter defined under the FFCRA? (NEW)
Q: What if an employee has already used some of their leave under traditional FMLA? (NEW)
Q: Who is considered a healthcare provider or emergency responder for purposes of exclusion from EPSL and EFML? (NEW)
Q: What records should employers keep for an employee’s use of EPSL and EFML? (NEW)
Q: What reinstatement rights do employees have after taking EPSL and/or EFML? (NEW)

Webinar Updates (Members Only)

Log in to view these recordings.
COVID-19 Webinar – Employer Questions Answered (Updated 3/25/2020)
COVID-19 Webinar – Employer Questions Answered (3/26/2020)
COVID-19 – Employer Questions Answered – Slide Deck (3/26/2020)
COVID-19 Webinar – End of Week Update (3/27/2020)
FFRCA and CARES Act Update Webinar (4/1/2020)
FFRCA and CARES Act Update Webinar – Slide Deck (4/1/2020)

Surveys

COVID-19 Employer Response Survey Report

Sample Documents (Members Only)

Log in to view these files.
Sample Emergency Family and Medical Leave and Emergency Paid Sick Leave Policy (Updated 3/28/2020)
Sample EPSL and EFML Leave Request Form (NEW)
Sample Time off and Remote Work Options Communication – April 1, 2020 (Updated 3/28/2020)
Sample Supervisor FAQs
Sample Notice of Workplace Exposure to a Communicable Disease
Sample Essential Employee Notice
Preparing for Layoffs Quick Guide
Preparing for Layoff Extended Checklist (Updated 3/29/2020)
Sample Memo to Managers on Layoff Selection Criteria
Sample Reduction in Force Letter
Sample Layoff Memos to Employees
Unemployment Benefits Factsheet
Telecommuting - Detailed Policy
COVID-19 Prevention and Protection Steps
Social Distancing - Generic Policy
Tips for Surviving Market Swings During COVID-19
COVID-19 Employee Termination and Benefits Considerations (NEW)

Website Links

CDC Guidance
Families First Coronavirus Response Act
OSHA Guidance on Preparing the Workplace for COVID-19
Department of Homeland Security – Business Continuity Plan
DOL Guidance on Family and Medical Leave
DOL Guidance on Emergency Family and Medical Leave and Paid Sick Leave under FFCRA
DOL Q&A on FFCRA
FFCRA Required Poster
FFCRA Required Poster FAQs
DOL Rules Implementing the FFCRA
Oregon Employment Department – COVID-19 Guidance
Oregon Health Authority – COVID-19 Updates
Oregon Executive Directive on Public Gatherings, School Closures and Limited Healthcare Procedures
CDC COVID-19 Travel Updates
World Health Organization – COVID-19 Information
Tax Credit Information
Oregon WARN Requirements
Oregon Work Share
Stay Home, Save Lives Executive Order
Oregon State Police Response to Stay-at-Home Orders
Oregon Health Authority Guidance for Employers
Paycheck Protection Program for Small Businesses
BOLI Temporary Rule Relaxing Maximum Hours of Work (Manufacturing)
Small Business Guide to the CARES Act
IRS Guidance and FAQs on Calculating and Obtaining COVID-19 Tax Credits
IRS Form 7200 – Advance Payment of Employer Credits Due to COVID-19


Top | Alerts | Resources | FFCRA | Tax Credits | Sick Leave | ADA | Wage & Hour | Closures | Unemployment | Safety | FAQs


Families First Coronavirus Response Act (FFCRA)

Emergency Family and Medical Leave (EFML)

Summary

Emergency Family and Medical Leave (EFMLA) provides eligible employees with the right to take up to 12 weeks of job-protected leave due to “a qualifying need related to a public health emergency.” EFMLA leave is limited to when an employee is unable to work or telework due to the need to care for children under the age of 18 when school or place of care is closed, or child care is unavailable due to a public health emergency, which COVID-19 qualifies as.

Effective Date

Effective April 01, 2020 until December 31, 2020.

Eligible Employers

Private-sector employers with 500 or fewer employees.

Public agencies of any size.

Small Employer Protections

The new law also provides an exemption for employers with less than 50 employees, protecting them from unpaid back pay and liquidated damages in the case of a FMLA related lawsuit. The details of this exemption are to be determined through the legislative rulemaking process.

Eligible Employees

Any full-time or part-time employee who has been employed for at least 30 days prior to request. EMFL does not provide a definition for full time and part-time employees. This may become know with future rulemaking from the Department of Labor (DOL).

Healthcare providers and first responders may also be exempt from this new law. The law did not provided a definition of a healthcare provider or first responder. Future rulemaking from the DOL may provide some clarification.

Relationship to OFLA and FMLA

EMFL expands the reach of FMLA. In short, FMLA eligibility and qualifications remain the same except for one notable exception:

When an employee is unable to work or telework due to the need to care for children under the age of 18 when school or place of care is closed, or child care is unavailable due to a public health emergency.

If the employer and employee qualify for standard FMLA, outside of the Emergency Family and Medical Leave exception, the leave time would drain from the employee’s 12 week FMLA allotment.

It is important to note an employee diagnosed with a confirmed case of Coronavirus may still qualify under FMLA and/or OFLA as a serious health condition for themselves or their family member. If so, employers should follow the normal family medical leave process.

As a reminder, aside from this amendment, employers with 50 or more employees are covered by FMLA. For an employee to be eligible for FMLA, aside from this amendment, they must have been employed at least 12 months (not necessarily consecutive), and worked at least 1250 hours. For OFLA, employers with 25 or more employees in Oregon are covered. Oregon employees are eligible if they work 180 days for the employer and average 25 hours per week.

Relationship to Paid Leave

This leave is unpaid for the first 10 days. However, employees can use Emergency Paid Sick Leave (EPSL) during the first 10 days if they have that time available. If an employee has exhausted EPSL employers can allow employees to use accrued time off provided by the company during this time, including Oregon Sick Leave. Employers can also allow employees to use company provided time off benefits to supplement wages if compensation under EPSL does not result in their full compensation.

After 10 days, eligible employers must provide paid leave at no less than two-thirds of an employee’s regular rate of pay. Capped at $200 per day and $10,000 in aggregate. Employers can also allow employees to use company provided time off benefits to supplement wages if compensation under EPSL does not result in their full compensation.

Job Protections

Eligible employees have reinstatement rights to the same or equivalent position.

There is an exception for employers with fewer than 25 employees where position does not exist due to economic conditions or other changes in operating conditions of the employer due to the public health emergency. What this means is still unclear and hopefully will be detailed in future rulemaking by the DOL.


Oregon Family Leave Act (OFLA) Expanded

Oregon’s Bureau of Labor and Industries (BOLI) has issued a temporary order expanding the reach of the Oregon Family Leave Act (OFLA) in response to COVID-19.

Effective Date

March 18, 2020 through September 13, 2020.

Eligible Employers

Employers with 25 or more employees in Oregon (no change).

Eligible Employees

Employees who have worked for a covered employer for 180 days, averaging 25 hours per week (no change).

New Eligible Reason for OFLA

Eligible employees can utilize OFLA for:

Emergency care for their child whose school or place of care has been closed in conjunction with a public statewide health emergency, which COVID-19 qualifies as.

If an employee is diagnosed with a confirmed case of COVID-19 or the employee needs to provide care for a family member diagnosed with COVID-19, it may still qualify OFLA as a serious health condition for themselves or their family member. If so, employers should follow the normal family medical leave process.


Emergency Paid Sick Leave (EPSL)

Effective Date

Effective April 01, 2020 until December 31, 2020.

Eligible Employers

  • Private-sector employers with 500 or fewer employees
  • Public agencies of any size
  • Any entity that is not a private entity and anyone acting directly or indirectly in the interests of the employer. It is unclear as to what types of organizations the last two will apply.

Note: This is different than Oregon Sick Leave employer eligibility which applies to almost all employers in Oregon even those with more than 500 employees.

Small Employer Exception:

Employers with less than 50 employees may be exempt if can prove complying with EFML would jeopardize the viability of the business. Secretary of Labor has ability to authorize this exemption.

Eligible Employees

Applies to all current employees regardless of length of employment.

Note: This is different than normal Oregon Sick Leave eligibility, which is not required to kick in until after 90 days of employment.

Summary

EPSL provides employees paid sick time when unable to work, including remotely, because:

  1. The employee is subject to a federal, state, or local quarantine or isolation related to COVID-19;
  2. The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. The employee is caring for an individual who is subject to one of the two reasons above; (Note: This reason is not just limited to family members. It specifically states to care of an “individual.”)
  5. The employee is caring for their son or daughter if the school or place of care has been closed, or the childcare provider is unavailable, due to COVID-19 precautions;
  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor.

This law is in addition to Oregon Sick Leave.

Paid Leave

Full-time employees receive up to 80 hours of paid leave. Part-time employees receive a number of hours equal to the number of hours that such employee works, on average, over a two-week period.

This paid sick leave is available to employees for immediate use. For reasons 1, 2, 3 listed above, employers must pay employees at their regular rate of pay, which is capped at $511 per day and $5,110 in aggregate. For reasons 4, 5, 6 listed above, employers must pay two-thirds of employee’s regular rate of pay, which is capped at $200 per day and $2,000 in the aggregate.

Relationship to Oregon Sick Leave

An employer may not require an employee to use other paid leave (such as Oregon Sick Leave or vacation) before the employee uses EPSL provided under this law.

In contrast to Oregon Sick Leave, where employers can limit use until after 90 days of employment, employees may use paid sick leave immediately under this law. Additionally, under Emergency Paid Sick Leave, all private employers with fewer than 500 employees are covered (besides exceptions listed below). In contrast, Oregon Sick Leave applies to all employers in Oregon – the leave is paid unless employers have less than 10 employees in Oregon or 6 employees in Portland.

Similar to Oregon Sick Leave, EPSL does not have to be paid out upon separation. Employers are also not allowed to use any time off provided to employees prior to the effective date of this law toward an employee’s entitlement under this law.

Job Protections

In line with Oregon Sick Leave, employers are prohibited from discharging, disciplining or discriminating against employees who use paid sick time under this law.

Violations

Employers that do not comply with the requirements of the EPSL will be treated as a “failure to pay minimum wage” under FLSA. Denying or interfering with protected leave could also result in additional violations and claims such as discrimination and retaliation.


Top | Alerts | Resources | FFCRA | Tax Credits | Sick Leave | ADA | Wage & Hour | Closures | Unemployment | Safety | FAQs


Tax Credits for Paid Sick and Paid Family Medical Leave

This law provides refundable tax credit for each calendar quarter in an amount equal to 100 percent of the wages paid by employers for Emergency Family Medical Leave and Emergency Sick Leave.

For EFML, the amount of qualified family leave wages taken into account for each employee is capped at $200 per day and $10,000 for all calendar quarters. If the credit exceeds the employer’s total liability under section 3111(a) for all employees for any calendar quarter, the excess credit will be refunded to the employer.

For EPSL, a refundable tax credit for employers equal to 100 percent of qualified paid sick leave wages required to be paid by the Emergency Paid Sick Leave Act that are paid by an employer for each calendar quarter. The tax credit is allowed against the tax imposed by section 3111(a) of the Internal Revenue Code (the employer portion of Social Security taxes).

The FFCRA credit also includes the employer’s cost of providing health care coverage to employees during a leave under EFML and EPSL. This applies to the amount the employer paid toward maintaining health plan coverage of an employee on such a paid leave which was excluded from the employee’s gross income for federal income tax purposes. So the cost of the group health plan coverage for an employee on such a leave is added to the wages paid for the qualifying paid leave.

The IRS provides the following as an example of how this will work:

If an eligible employer paid $5,000 in sick leave and is otherwise required to deposit $8,000 in payroll taxes, including taxes withheld from all its employees, the employer could use up to $5,000 of the $8,000 of taxes it was going to deposit for making qualified leave payments. The employer would only be required under the law to deposit the remaining $3,000 on its next regular deposit date.

If an eligible employer paid $10,000 in sick leave and was required to deposit $8,000 in taxes, the employer could use the entire $8,000 of taxes in order to make qualified leave payments and file a request for an accelerated credit for the remaining $2,000.

More information on these tax credits is available from the IRS.


Top | Alerts | Resources | FFCRA | Tax Credits | Sick Leave | ADA | Wage & Hour | Closures | Unemployment | Safety | FAQs


Traditional Family and Medical Leave Act Issues and Obligations

Oregon Family Leave Act and Family and Medical Leave Act (OFLA/FMLA)

Employers who are covered by the Oregon Family Leave Act (OFLA) federal Family and Medical Leave Act (FMLA) must provide job-protected leave and other benefits to an eligible employee who misses work due to a serious health condition of the employee’s own or a close family member. An employee’s illness caused by coronavirus may or may not qualify as a serious health condition, depending on the circumstances.

Flu Is Not Typically a “Serious Health Condition”

The flu and common cold do not typically qualify as serious health conditions under the OFLA/FMLA, unless complications arise. Likewise, an employee out sick with coronavirus may not have a serious health condition under the OFLA/FMLA. In this case, employers should not count the absence against an employee’s 12 weeks of OFLA/FMLA, leave. Doing so could violate the OFLA/FMLA. Remember, however, absences that are not considered a serious health condition, may still qualify under the, EPSL and/or Oregon Sick Leave.

Coronavirus with Complications May Be a Serious Health Condition

Coronavirus can amount to a serious health condition if complications arise from the illness, leading to, for example, hospitalization or incapacitation.

Where an employee has complications arising from coronavirus or the flu, employers covered by the OFLA/FMLA, must provide the employee (if eligible) with certain job protections and reinstatement rights while the employee is out on leave. The employer should also keep track of the leave and deduct it from the employee’s 12 weeks of allotted OFLA/FMLA leave.

Requiring Fitness-for-Duty Certification to Return to Work

Employers may require an employee who has been out on OFLA/FMLA leave due to coronavirus to satisfy any of the following before returning to work:

  • Provide a doctor’s note clearing the employee to return to the workplace.
  • Submit to a medical examination.
  • Remain symptom-free for a specific period of time before returning to work.

Employers should apply any policy or practice uniformly and treat employees in similar situations the same. For example, if an employer asks one employee who has been out sick to submit a doctor’s note, the employer should require the same of all employees who have been out sick with pandemic influenza before returning to work.

However, please note that the CDC has stated that employers may be advised to relax return-to-work doctor’s notes requirements, depending on the availability of health care professionals during the pandemic outbreak.


Oregon Sick Leave

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 for the following reasons:

Oregon sick leave is available for the following purposes:

  • Your own illness, injury, or health condition, including time off for medical diagnosis, care, treatment, and preventive care;
  • Care for your family member with an illness, injury, or health condition, including time off for medical diagnosis, care, treatment, and preventive care;
  • For purposes allowed under OFLA, such as bereavement leave, caring for a newborn child or newly adopted/foster child, or sick child leave, regardless of whether the employee is eligible for OFLA leave and regardless of whether the company is a "covered employer" under OFLA;
  • For any purpose allowed under Oregon's domestic violence, harassment, sexual assault, or stalking law; or
  • A public health emergency, including:
    • Upon an order of a general or specific public health emergency, or when the Company requires you to be away from the workplace by law or rule for health reasons.
    • Closure of the employee’s place of business, or the school or place of care of the employee’s child, by order of a public official due to a public health emergency;
    • A determination by a lawful public health authority or a health care provider that the presence of the employee or the family member of the employee in the community would jeopardize the health of others

COVID-19 related diagnosis or 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 if the employee needs to take time off to care for their family member due to their illness.

Oregon Sick Leave also covers absences due to the closure of a school, daycare or business due to a public health emergency, of which COVID-19 qualifies. Accordingly, absences up to 40 hours would be protected for these reasons under OSL if an employee has time available.

Remember, employers cannot require eligible employees to use OSL before using their time available under EPSL. OSL may be used for reasons not covered under EPSL and would apply only after an eligible employee has exhausted EPSL.


Top | Alerts | Resources | FFCRA | Tax Credits | Sick Leave | ADA | Wage & Hour | Closures | Unemployment | Safety | FAQs


Americans with Disabilities Act Issues and Obligations

The ADA protects qualified employees with a disability from discrimination in the workplace. Employers covered by the ADA must consider whether an employee who becomes ill with coronavirus has a disability within the meaning of the ADA, entitling the employee to certain protections and benefits. Employers should also check applicable state disability discrimination laws for different or additional legal requirements.

Employers must not violate the ADA’s privacy provisions while managing their workforces through a pandemic or in preparing for one. The ADA prohibits disability-related inquiries or medical examinations of current employees, except in limited circumstances, discussed below.

Coronavirus Can Be a Protected Disability

Generally, seasonal flu and other conditions of a short duration are not considered a disability under the ADA. However, complications arising from illness caused by coronavirus may lead to the condition becoming an ADA-covered disability.

The ADA also protects employees who are regarded as having a disability. Because seasonal flu and coronavirus typically cause only a transitory impairment, employees who become ill are not covered under the ADA’s prohibition against discriminating against employees who are regarded as having a disability. However, if an employee’s pandemic-related illness complicates or becomes associated with a different condition, such as an underlying health problem, that could give rise to a “regarded as” claim.

Duty to Make Reasonable Accommodation for Employee with Disability

Under the ADA, employers must make a reasonable accommodation for an employee with a disability, including providing leave or adjusting a disabled employee’s attendance requirements. An employer is not required to provide an accommodation to a qualified employee with a disability if the employee’s disability poses a direct threat; that is, a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”

Employer’s Ability to Make Disability-Related Inquiries and Medical Examinations

An employer may not make a disability-related inquiry or require a medical examination of a current employee, unless it is both: job-related and consistent with business necessity. An employer may make a disability-related inquiry or require a medical examination if, before making a medical inquiry, the employer reasonably and objectively believes that an employee’s medical condition either impairs the employee’s ability to perform essential job functions or poses a direct threat. The employer’s reasonable belief must be based on objective evidence that is known to the employer or reasonably available.

During a pandemic, an employer does not have to wait until an employee develops symptoms to ask questions about exposure to a pandemic influenza during recent travel.

Whether a Pandemic Poses a Direct Threat to Safety in the Workplace Depends on Severity

Whether a pandemic such as coronavirus represents a direct threat to safety in the workplace depends on its severity. In determining the severity of a pandemic, an employer should rely on the latest information from the CDC, other federal public health agencies, and state and local health departments.

While public health recommendations may change over the course of a pandemic, as well as across states, employers are expected to:

  • Exercise their best efforts to obtain public health advice that is both current and appropriate for their location.
  • Make reasonable assessments of their own workplace conditions.

The CDC’s or other public health agencies’ assessment of a pandemic would provide the objective evidence needed for a disability-related inquiry or medical examination.

Actions Employers Can and Cannot Take in Pandemic Preparedness and Response

In response to the 2009 H1N1 pandemic, the EEOC answered common questions ADA-covered employers may have about preparing for and responding to a pandemic. The questions and answers are instructive for other pandemics.


Top | Alerts | Resources | FFCRA | Tax Credits | Sick Leave | ADA | Wage & Hour | Closures | Unemployment | Safety | FAQs


Wage & Hour Law

Must we keep paying employees who are not working?

Under the Fair Labor Standards Act (FLSA), this answer depends on whether an employee is exempt or non-exempt. For non-exempt employees, FLSA minimum-wage and overtime requirements attach to hours worked in a workweek. Therefore, non-exempt employees who are not working are not entitled to pay.

For employees classified as exempt from overtime under FLSA, the analysis is different. Exempt employees are paid on a salary basis, and, in most cases, if an exempt employee performs any work at all during the workweek, the employee must be paid their entire salary for that particular workweek. There can be exceptions to this general rule. Some of the key exceptions relevant to a pandemic are outlined here, and employers should consult with an employment attorney regarding such exceptions. If an employer makes an improper deduction from an exempt employee’s salary or refuses to pay an exempt employee for days not worked, it may lead to a loss of the FLSA exempt classification of the employee, entitling the employee to overtime pay.

However, if an employee is eligible for any of the paid leave described above, they may be eligible for continued pay.

Permissible Deductions from Exempt Employee’s Salary

If an exempt employee misses work during a pandemic, whether an employer can deduct the exempt employee’s salary depends on various factors, including:

  • Who initiates the absence, the employee or employer
  • The employee’s reason for missing work
  • Whether the employer has a bona fide sick leave plan, policy, or practice of providing compensation for salary loss caused by sickness or disability.

When Employee Is Ill and Employer Has a Bona Fide Sick Leave Plan

If an exempt employee misses work because of illness or disability and the employer has a bona fide sick leave policy, plan, or practice of providing compensation for salary loss caused by illness or disability, the employer may deduct an exempt employee’s salary, but only in full-day increments. For example, if an employee misses two-and-a-half days due to illness, the employer may only deduct two days of pay from the exempt employee’s salary.

When Employee Misses Work for Personal Reasons

If an exempt employee misses work due to personal reasons, other than sickness or disability, the employer may deduct in full-day increments. For example, if the employee misses two days of work for personal reasons, the employer may deduct two days of pay. If the exempt employee is absent for one-and-a-half days, the employer may only deduct the equivalent of one day’s salary.

When Exempt Employee Takes FMLA Leave

An employer may make deductions from the salary of an exempt employee taking unpaid FMLA leave. The employer may pay employees their proportionate salary only for time actually worked. The employer may also make salary deductions for any hours taken as intermittent or reduced FMLA leave during the exempt employee’s workweek without affecting the exempt status of the employee.

When Exempt Employee Takes OFLA and/or FMLA Leave

If an exempt employee takes leave that is covered under both OFLA and FMLA or OFLA only, employers may not make partial day deductions.

Impermissible Deductions from Exempt Employee’s Salary

When Employee Is Ill and Employer Does Not Have a Bona Fide Sick Leave Policy

If an exempt employee misses work due to sickness or disability and the employer does not have a bona fide sick leave policy, the employer may not deduct an exempt employee’s pay for any time, unless the employee misses an entire workweek.

When Employer Initiates Absence of Exempt Employee

An employer may not deduct an exempt employee’s pay when the employee reports ready to work. For example, if the employer initiates an absence by insisting an employee with a sick relative stay away from the workplace during a pandemic, the employer may not deduct the exempt employee’s pay, unless the employee misses an entire workweek.

Use of Accrued Vacation or Paid Time Off

There is nothing in the FLSA that prohibits employers from requiring absent employees to use accrued paid time off, even in partial day increments, so long as the employer still pays exempt employees their full salary for a workweek. The FLSA views PTO and vacation as fringe benefits that the employer has the option of providing or not providing.


 

Top | Alerts | Resources | FFCRA | Tax Credits | Sick Leave | ADA | Wage & Hour | Closures | Unemployment | Safety | FAQs


Workplace Layoffs, Shutdowns and Business Closures

Workplace Shutdowns

If your organization has to shut down for a period of time, your obligation to pay depends on whether an employee is 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.

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.

If the business is temporarily closed due to a public health emergency such as COVID-19, if eligible, employees would be able to use their available time under Oregon Sick Leave.


Layoffs

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.

If the layoff is temporary, meaning it will be less than 35 days, an employer’s final paycheck obligations will not be triggered and the employer can determine how it will handle pay and paid time off during that time period. If the layoff will last more than 35 days, employers in Oregon must treat that as a termination of employment and follow the final paycheck rules and other notifications such as COBRA.

Oregon also has its own WARN notifications which can be found here.


Top | Alerts | Resources | FFCRA | Tax Credits | Sick Leave | ADA | Wage & Hour | Closures | Unemployment | Safety | FAQs


Unemployment Benefits

The US Department of Labor announced guidance to states regarding unemployment insurance flexibilities related to COVID-19.

Typically, state run UI programs require individuals to be available and able to work. They must also be actively seeking work in order to receive compensation. However, due to the COVID-19 pandemic, the DOL reiterated that states have significant flexibility in implementing these requirements. Therefore, states may determine COVID-19 related layoffs, quarantines, and not being able to work due to COVID-19 exposure risk factors could qualify for unemployment insurance. To file for UI, employees do not have to be off of payroll but rather, they have to show lack of work.

The DOL also pointed out that an individual receiving paid sick leave or paid family leave is still receiving compensation and therefore, those individuals generally would not qualify for UI Insurance. For information regarding Oregon’s Unemployment Insurance, click here.

The FFCRA, also requires employers to notify employees of the availability of unemployment compensation to an employee who separates. The Secretary of Labor is expected to produce a model notice.


Short Time Compensation Programs

In short, a short term compensation program is a program where employers reduce the number of hours worked by employees instead of laying off the employees. The employees whose hours were reduced by at least 10%, and not by more than a certain percentage set by the state are not disqualified from unemployment compensation. The employee must meet the availability for work and work search requirements while collecting the short-time compensation and unemployment compensation.

Employers that voluntarily establish a “short-time compensation program” may become eligible for obtaining this financial assistance from the government. The funding may be available if the employer has a program that qualifies and is located in a State that qualifies. Employers in Oregon may want to consider Oregon’s Work Share program. Work Share provides an alternative for employers and workers who may be facing the prospect of a lay off situation. With Work Share, instead of reducing staff, an employer reduces the hours of work for a group of workers. Partial Unemployment Insurance benefits are then paid to supplement workers' reduced wages.


Top | Alerts | Resources | FFCRA | Tax Credits | Sick Leave | ADA | Wage & Hour | Closures | Unemployment | Safety | FAQs


Workplace Safety

Health and safety in the workplace is regulated by the federal Occupational Safety and Health Act (“OSH Act”), which imposes legal obligations through industry-specific safety standards and the general duty clause. The general duty clause requires all employers to maintain a workplace free of any recognized hazards that may cause death or serious injury to their employees.

The Occupational Safety and Health Administration (“OSHA”) has provided a guide for employers related to COVID-19 obligations.


Top | Alerts | Resources | FFCRA | Tax Credits | Sick Leave | ADA | Wage & Hour | Closures | Unemployment | Safety | FAQs


COVID-19 Employer FAQS

Q: How should we address sick employees? (Updated 3/27/2020)

A: When sick employees come to work, they run the risk of infecting the rest of the workforce.

  • If you have an employee who has contracted COVID-19, that employee should be sent home immediately. Advise the employee to seek medical care right away and to avoid contact with others.
  • It is also advised that the employer seek information about who the employee 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.
  • Follow CDC guidelines for returning the employee to work. While some employers may be tempted to ask for medical clearance from a health care provider, doing so likely is no longer feasible, given current conditions. The employer should utilize established leave of absence policies and/or consider allowing the employee to telecommute during this time period.
  • Contact the CDC and local health department immediately; and
  • If you have an employee that has potentially been exposed to COVID-19 but is not exhibiting symptoms, take the same precautions as above.
  • If you have an employee that is sick, but not exhibiting any COVID-19 related symptoms, encourage them to stay home.

Q: How do we address employee concerns about co-workers who appear sick and/or who may be from areas with known coronavirus cases?

A: Employers should be prepared to respond to employees who express reservations about working with employees or others who have returned from international travel or who are otherwise suspected of being infected with coronavirus. While some employee worries will be reasonably based on and consistent with guidance from medical authorities, other concerns may be driven by unfounded fear and/or speculation. Employers must be careful not to feed into unsubstantiated employee concerns and to avoid engaging in discrimination — including discrimination against individuals who are disabled or perceived as disabled because they are exhibiting symptoms associated with the virus, or individuals belonging to protected classes associated with a virus that appears to have originated in Asia.

It is extremely important for employers to regularly communicate with employees regarding issues surrounding workplace COVID-19 matters. Additionally, it is also extremely important that supervisors are properly trained on how to respond to employee questions.

Q: What relief do we have if we cannot afford to pay leave required under the Emergency Family and Medical Leave and/or Emergency Paid Sick Leave? (Updated 3/27/2020)

A: Covered employers will be eligible for a tax credit for leave provided under the FFCRA. For EFML, the amount of qualified family leave wages taken into account for each employee is capped at $200 per day and $10,000 for all calendar quarters. If the credit exceeds the employer’s total liability under section 3111(a) for all employees for any calendar quarter, the excess credit will be refunded to the employer.

For EPSL, a refundable tax credit for employers equal to 100 percent of qualified paid sick leave wages required to be paid by the Emergency Paid Sick Leave Act that are paid by an employer for each calendar quarter. The tax credit is allowed against the tax imposed by section 3111(a) of the Internal Revenue Code (the employer portion of Social Security taxes).

The FFCRA credit also includes the employer’s cost of providing health care coverage to employees during a leave under EFML and EPSL. This applies to the amount the employer paid toward maintaining health plan coverage of an employee on such a paid leave which was excluded from the employee’s gross income for federal income tax purposes. So the cost of the group health plan coverage for an employee on such a leave is added to the wages paid for the qualifying paid leave.

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 predictive scheduling 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? (Updated 3/27/2020)

A: Yes. Employers in Oregon are required to take maximum effort to make remote work available to as many employees as it can under the Stay Home, Save Lives Executive Order.

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

A: Employers should 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, the Families First Coronavirus Response Act 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 may 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 allowing 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.

Remember, employers will still need to comply with the EPSL requirements. Any absences taken prior to April 1, 2020 that have been compensated with company provided paid time off benefits do not count towards employer obligations under EPSL or EFML.

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.

Q: Can I take the temperature of employee’s prior to them coming in to the workplace?

A: Generally, measuring an employee’s body temperature is an unlawful medical examination. However, because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued precautions as of March 2020, employers may measure employees' body temperature. As with all medical information, the fact that an employee had a fever or other symptoms would be subject to ADA confidentiality requirements. However, employers should be aware that some people that may have COVID-19 may not have a fever.

Q: Can I require a doctor’s note if an employee has been out ill?

A: This is not recommended right now. Hospitals and doctor’s offices are overwhelmed and industry sources have stated they cannot provide this documentation currently. This is also the current CDC guidance.

Q: Can I require my employee to use their sick time for a COVID-19 related reason before using the Emergency Paid Sick Leave?

A: Generally No. Starting April 1st, employees are entitled to use 80 hours of EPSL before being required to use company provided leaves if the reason for leave is covered under EPSL. If the reason is not covered under EPSL, then you can apply your normal employer policies, including use of Oregon Sick Leave.

Q: Do you have any time off examples showing how EPSL, EMFL and other leaves are applied?

A: Facts: Employee’s child’s school is closed for six weeks and the employee has no available daycare and cannot work from home. Employee only has 40 hours of sick leave available (assume employee and employer are covered under OFLA and FMLA).

Before April 1, 2020:

Employee can use up to 40 hours accrued and unused Oregon Sick Leave. This is paid. This time would run concurrently with OFLA. This time would not be covered under FMLA.

Once the employee has exhausted OSL, the employer can require the employee to use any of their remaining paid time off benefits during the leave. Once that exhausts, the time remaining time may be unpaid.

On April 1, 2020 through December 31, 2020

Employee can use up to 80 hours of EPSL. Once EPSL exhausts, the employer must pay the employee at 2/3 their regular rate subject to caps. Can allow employee to use their 40 hours of sick leave as OSL to supplement the difference. Once that exhausts, the employer can require the employee to use any of their remaining paid time off benefits during the leave.

Facts: Employee has been exposed to a COVID-19 positive individual and is told to quarantine for 14 days (assume employee and employer are covered under OFLA and FMLA). Employee has 40 hours of PTO available.

Before April 1, 2020

Employee can use their PTO for the first 40 hours. This time would count against their available OSL time. Once exhausted, additional time off may be unpaid.

This time would not qualify under OFLA or FMLA.

As of April 1, 2020 through December 31, 2020

Employee can use 80 hours of EPSL at 100% of their regular rate. If they need more than 80 hours for the quarantine, then the employee would be allowed to use up to 40 hours of their PTO under Oregon Sick Leave.

This time does not qualify under EFML, OFLA or FMLA.

Q: Can employees use Oregon Sick Leave if our business shuts down? (Updated 3/27/2020)

A: If the workplace is temporarily closed due to a public health emergency, eligible employees (generally after 90 days of employment) would be able to use accrued and unused OSL to cover the closure. If the employee is laid off, otherwise terminated or if the business is permanently closed, employees would not be entitled to sick leave. Employees reinstated within 180 days the employer must receive their balance of accrued but unused paid sick time and their eligibility restored at the same level prior to the layoff or termination.

Employees are not entitled to use EPSL or EFML for business closures, even temporary.

Q: Can an employee use sick leave if they’re just fearful of coming to work and getting sick?

A: Currently, Oregon is recognizing this as a covered reason under Oregon Sick Leave.

Q: How are full and part-time employees defined under EPSL and EFML? (Updated 3/30/2020)

A: For EPSL, a full-time employee is an employee who is normally scheduled to work 40 or more hours per week. Under EFML there is no distinction, but rather pay is based off of the number of hours an employee normally works each week.

Q: How do I know how much to pay under EPSL if my employee’s schedule varies week to week?

A: If an employee’s schedule varies so much week to week that it’s too difficult to determine the actual number of hours the employee would have worked, employers can use the average number of hours the employee worked per day over a six-month period of time, ending on the date the employee takes leave. This calculation should include any leave time already taken.

Q: Do I have to post a notice to employees about all of this? (Updated 3/27/2020)

A: Yes. All covered employers must post a notice of the FFCRA requirements in a conspicuous place on its premises. This can be done by emailing or direct mailing the notice to employees, or posting the notice on an employee information internal or external website. Even small employers with less than 50 employees are required to comply with the notice requirements. Employers with more than 500 employees do not need to post this as the FFCRA does not apply.

Q: Are employees eligible for unemployment benefits if the business temporarily shuts down?

A: UI benefits may be available to those who are on a temporary layoff. These benefits occur for claimants whose employer stops operation for a short period of time, such as cleaning following a coronavirus exposure or by government requirement.

Workers can get UI benefits, and do not need to seek work with other employers.

They must be able to work, stay in contact with their employer, and be available to work when called back.

Q: Are employees that are required to stay home due to COVID-19 related illness or exposure eligible for unemployment benefits?

A: Employees that are home sick because they are sick with COVID-19 or other flu like symptoms that prevent them from going into work, are considered able to work.

An employee that is quarantined, but not sick, is considered able to work.

Employees that are hospitalized because they’re sick with COVID-19, will have their claims reviewed determine the possibility of receiving benefits.

Q: If the employee is receiving paid time off benefits are they eligible for unemployment benefits?

A: Generally, employees will not be eligible for benefits if their employer is paying them to remain away from the site or as stand-by pay.

Employees getting vacation or other leave pay while their employer is closed, generally are not able to also receive unemployment insurance benefits.

Q: Do I include overtime in determining how much to pay employees under the EFML and EPSL?

A: Yes. According to the DOL, EFML requires employers to pay employees for hours the employee would have been normally scheduled to work even if that is more than 40 hours in a week.

The EPSL requires that EPSL be paid only up to 80 hours based on what the employee would have worked over a two-week period. For example, an employee who is scheduled to work 60 hours a week may take 60 hours of EPSL in the first week and 20 hours of EPSL in the second week. In any event, the total number of hours paid under the Emergency Paid Sick Leave Act is capped at 80.

Q: How do you determine an employee’s regular rate of pay?

A: According to the DOL, for purposes of the FFCRA, the regular rate of pay used to calculate your paid leave is the average of the employee’s regular rate over a period of up to six months prior to the date on which they take leave. If the employee has not worked for you for six months, the regular rate used to calculate their paid leave is the average of their regular rate of pay for each week they’ve worked for you.

Keep in mind the regular rate must also include overtime. If the employee is paid with commissions, tips, or piece rates, these wages will also need to be incorporated into the above calculation.

You can also compute this amount for each employee by adding all compensation that is part of the regular rate over the above period and divide that sum by all hours actually worked in the same period.

Q: Can an employee take 80 hours of EPSL for their own self-quarantine and then another amount of EPSL for another covered reason?

A: No. The employee can only take up to 80 hours for a full-time employee. A part-time employee can take, the number of hours equal to the average number of hours that the employee works over a typical two-week period) of paid sick leave. The cap is 80 hours for any combination of EPSL use.

Q: If an employee is home because their child’s school is closed (which is covered under both EPSL and EMFO), how do I track and pay for this time since it is covered under both?

A: The employee be eligible for both types of leave, but they will not receive more than 12-weeks of leave. The EPSL provides for an initial two weeks of paid leave. The first two weeks also covers the first ten workdays of EFML, which would otherwise be unpaid unless the employee chose to use their existing paid time off per your company provided time off benefits. After the first ten workdays, the employee will receive 2/3 of their regular rate for the hours they would have been scheduled to work in the subsequent ten weeks under the EFML.

Q: Do I have to pay for other qualifying reasons for FMLA now?

A: No. This only applies to leave taken because the employee must care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons. Again, reasons under EPSL are separate from EFML. EPSL does provide for additional reasons for leave that do not qualify under FMLA.

However, if an employee’s illness due to COVID-19 qualifies as a serious health condition or requires them to provide care for a family member with a serious health condition, then that would apply towards traditional FMLA, assuming the employee had met the eligibility requirements.

Q: Are the EFML and EPSL requirements retroactive?

A: No. They’re not retroactive.

Q: What documents does an employee need to give their employer to take EPSL or EFML? (Updated 4/1/2020)

A: Per the IRS, an employee must make a written request that includes:

  • Their name
  • The dates(s) leave is being requested
  • A statement of the COVID-19 related reason the employee is requesting leave and written support for such reason and
  • A statement that the employee is unable to work, including telework, for such reason

If the reason for leave is due to a quarantine or self-quarantine, the employee statement must include:

  • The name of the governmental entity ordering quarantine or the name of the health care professional advising self-quarantine, and,
  • If the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.

If the reason for leave is due to a school closure or unavailability of childcare, the employee statement must include:

  • The name and age of the child(ren)
  • The name of the school that has closed or place of care that is unavailable, and
  • Statement that no other person will be providing care for the child during the period they’re taking family leave
  • If the child is older than 14, a statement of the special circumstances that exist resulting in the inability to work or telework during “daylight hours.”

Q: Can EPSL and EFML be taken intermittently? (NEW)

A: This depends on of you are working remote or at your workplace. According to the DOL, employees that are not able to work remotely may not take intermittent leave or have partial day absences because:

  • You are subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  • You have been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • You are experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  • You are caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
  • You are experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

According the to the DOL, unless an employee is teleworking, once they begin taking paid sick leave for one or more of these qualifying reasons, they must continue to take paid sick leave each day until they either (1) use the full amount of paid sick leave or (2) they no longer have a qualifying reason for taking paid sick leave. This limit is imposed because if you are sick or possibly sick with COVID-19, or caring for an individual who is sick or possibly sick with COVID-19, the intent of FFCRA is to provide such paid sick leave as necessary to keep you from spreading the virus to others.

Employees taking paid sick to care for their child whose school or place of care is closed, or whose child care provider is unavailable, because of COVID-19 related reasons can take leave intermittently only if the employee and employer agree. Of course, employers should try to be as flexible as possible with employees taking leave for this reason.

Q: If my employer closes its workplace during the effective period of the FFCRA but believes it will reopen at some time in the future, are employees eligible to use EPSL or EFML? (NEW)

A: According to the DOL, no. Employees that work for a business that closes even for a small amount of time are not entitled to take EPSL or EFML. The DOL clarified, “This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State, or local directive.” This statement makes it clear that employers are not required to pay for EPSL or EFML due to state or local “stay home” orders such as Oregon’s Stay Home, Save Lives Executive Order.

In Oregon, employees may still be able to access Oregon Sick Leave for temporary shutdowns due to COVID-19 but generally not a shutdown due to lack of work. Employees may also be eligible for unemployment in this situation.

Q: Are employees entitled to EPSL, EFML, or Oregon Sick Leave if our business closes due to lack of work? (NEW)

A: No. Employees are not entitled to use Oregon Sick Leave, EPSL or EFML for loss of employment or a reduction in hours in this situation.

Q: If the employee is only receiving 2/3 of their regular rate under EPSL or EFML, can I require them to use their accrued and unused paid time off to make them “whole?” (NEW)

A: No, you cannot require it. However, you can allow it if the employee agrees. Employers can also refuse to let employees use their accrued and unused paid time off.

Q: If I reduce an employee’s hours, can they take EPSL or EFML for the hours that they were supposed to work? (NEW)

A: No. You do not have to pay under EPSL or EFML for hours they’re no longer scheduled to work because the reason for the reduced hours is not a covered reason under EPSL or EFML.

Q: Can I reduce wages for exempt employees without jeopardizing their FLSA status? (NEW)

A: Yes, as long as the reduction is not intended to shift week to week, or to avoid FLSA compliance. This means the reduction should be for an extended period of time based on the long-term operational needs to the business. For example, it would not be permissible to reduce an exempt employee’s salary for one week and then return it to the original rate the following week. Also keep in mind, that any reductions must still meet the minimum salary threshold under the FLSA of $684 per week. It’s also important that the reduction applies to specific groups of employees such as all Directors, rather than individuals. It should not be attached to an expectation of reduction in hours or other changes in job duties. Employers should also consider the impact such changes would have on Oregon’s Equal Pay Act requirements. Accordingly, it will be critical for employers to do a thorough analysis before making any changes.

Q: Can I switch to paying my exempt employees hourly? (NEW)

A: Employers may consider reclassifying exempt employees as non-exempt if such a change would support the long-term business needs of the organization, meaning this should not be changing week to week. For example, if the needs of the business show that there is only enough work to support exempt employees working part-time for the foreseeable future, switching that group of employees to an hourly rate may be justifiable. Keep in mind, this will impact many other areas such as the employees needing to track all hours worked, compliance with rest and meal periods and potentially overtime. Employers should also consider the impact such changes would have on Oregon’s Equal Pay Act requirements. Accordingly, it will be critical for employers to do a thorough analysis before making any changes.

Q: What is the difference between a furlough and a layoff? (NEW)

A: A furlough is most common in the public sector, but in the private sector is often used interchangeably with what is considered a temporary layoff. A furlough is either a complete or partial reduction in hours in which the employee maintains their employment and benefits. For example, a company a furlough employees for two days a month. However, a furlough could be longer as well. A layoff is typically associated with a complete loss of work for an extended period of time. If a layoff will be less than 35 days, it may still be considered a furlough or a temporary layoff because the individual generally has an expectation of recall within a short period of time and maintains their employment and benefits. If there is no expectation of recall, or if the layoff/furlough will last more than 35 days, it must be treated as a termination of employment.

Q: I have less than 50 employees. Am I excluded from complying with the Emergency Paid Sick Leave and Emergency Family Medical Leave Acts? (NEW)

A: The DOL has clarified that employers with less than 50 employees are exempt from providing EPSL due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and from EFML due to school or place of care closures or child care provider unavailability for COVID-19 related reason when doing so would jeopardize the viability of the small business as a going concern.

A small business may claim this exemption if an authorized officer of the business has determined that:

  1. The use of EPSL or EFML would result in the business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
  2. The employee’s leave from work would create substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
  3. There are not enough workers available who are able, willing, and qualified to perform the work done by the employee or employees requesting EPSL or EFML, and this work is needed for the small business to operate at a minimal capacity.

Accordingly, even employers with less than 50 employee must still make EPSL available for the following reasons:

  1. The employee is subject to a federal, state, or local quarantine or isolation related to COVID-19;
  2. The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. The employee is caring for an individual who is subject to one of the two reasons above;
  5. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor.

Q: Is there any situation in which an employee could take more than 12 weeks of leave? (NEW)

A: Yes, in a couple of situations. According to the DOL:

“You are entitled to paid sick leave under the Emergency Paid Sick Leave Act regardless of how much leave you have taken under the FMLA. Paid sick leave is not a form of FMLA leave and therefore does not count toward the 12 workweeks in the 12-month period cap. But please note that if you take paid sick leave concurrently with the first two weeks of expanded family and medical leave, which may otherwise be unpaid, then those two weeks do count towards the 12 workweeks in the 12-month period.”

For example, if an employee used 80 hours of EPSL for any other reason than to provide care for their child due to the closure of their school or place of care, and then subsequently needed leave to provide care for their child due to the closure of their school or place of care, they would have 12 weeks available under EFML.

Another possible scenario would be if an employee elected to use to use their company provided paid time off benefits such as sick or PTO for the first 10 days of EFML. Here is how this would play out. Employee uses PTO for first 10 days of EFML (child’s school or place of care is closed). The employee still has 10 weeks of paid leave available under EFML, totaling 12 weeks of paid leave using their PTO for the first 10 days and pay under EFML for the remaining 10 weeks. If the employee has not used EPSL for any other reason, they would still have an additional 2 weeks available under EPSL. The grand total is now 14 weeks.

Q: Can an employee use their company provided paid time off benefits and EPSL and EFML concurrently for the same hours? (NEW)

A: No, unless the employer agrees. Employees must choose which type of leave to use, unless their employer allows concurrent or supplemental use. Employees may not simultaneously take both, unless their employer agrees to allow employees to supplement their time.

Q: Can I require an employee to supplement their pay from EPSL or EFML with company provided paid time off benefits such as sick or PTO? (NEW)

A: No. The employee may decide whether to use existing company provided paid time off benefits to supplement the amount of pay their receiving from EPSL or EFML if the employer allows employees to supplement their pay. According to the DOL, employers are also not required to allow an employee to use existing paid leave to supplement the amount the employee receives from EPSL or EFML. If allowed by the employer, the employee would also have to agree to use existing paid leave to supplement their pay.

Q: How is son or daughter defined under the FFCRA? (NEW)

A: A son or daughter is the employee’s biological, adopted, or foster or stepchild, a legal ward, or a child for whom you are standing in loco parentis.

Additionally, the DOL clarified that under the FFCRA a “son or daughter” is also an adult son or daughter (i.e., one who is 18 years of age or older), who has a mental or physical disability, and is incapable of self-care because of that disability.

Q: What if an employee has already used some of their leave under traditional FMLA? (NEW)

A: Employees that have already taken leave under FMLA for traditional reasons are still entitled to EPSL. How much leave time an employee would have available would depend on how much time they’ve already used in a 12-month period. For example, if the employee had already taken six weeks of FMLA for their own serious health condition prior to April 1, then would only have six-weeks remaining for any other FMLA qualifying reason, including reasons under EFML.

Q: Who is considered a healthcare provider or emergency responder for purposes of exclusion from EPSL and EFML? (NEW)

A: According to the DOL, “A health care provider is anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions. This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments.”

According to the DOL, “an emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility.”

Q: What records should employers keep for an employee’s use of EPSL and EFML? (NEW)

A:

A: Employers should maintain the following documentation:

  • Documentation showing how you determined the amount of qualified EPSL and EFMLA wages paid to employees that are eligible for the credit (records of work, including telework, and use of leave)
  • Documentation showing how you determined the amount of qualified health plan expenses attributed to wages (IRS has a form for this calculation)
  • Copies of any completed Forms 7200, Advance of Employer Credits Due To COVID-19, that the employer submitted to the IRS. New form now available from IRS.
  • Copies of completed and submitted Forms 941, Employer’s Quarterly Federal Tax Return, that the employer submitted to the IRS.

Employers can start taking credits April 1, 2020 – December 31, 2020 Records must be maintained for four years after taxes are due or paid, whichever is later.

Q: What reinstatement rights do employees have after taking EPSL and/or EFML? (NEW)

A: In most situations, an employee is entitled to the same or an equivalent position The laws prohibit employers from firing, disciplining, or otherwise discriminating against an employee for taking or requesting leave. Keep in mind, employees on leave do not have extra protection from actions such as a layoff or reduction force that the employee would have been impacted by whether or not they took leave.

There is an exemption for employers with less than 25 employees when an employee takes leave due to a school closure or lack of care and all four of the following hardship conditions exist:

  • The position no longer exists due to economic or operating conditions that affect employment and due to COVID-19 related reasons during the period of your leave;
  • The employer has made reasonable efforts to restore the worker to the same or an equivalent position;
  • The employer makes reasonable efforts to contact the worker f an equivalent position becomes available; and
  • The continues to make reasonable efforts to contact the worker for one year beginning either on the date the leave related to COVID-19 reasons concludes or the date 12 weeks after your leave began, whichever is earlier.

Top | Alerts | Resources | FFCRA | Tax Credits | Sick Leave | ADA | Wage & Hour | Closures | Unemployment | Safety | FAQs