As the number of confirmed cases of COVID-19 in Oregon continues to rise, employers must remain particularly mindful of their various statutory obligations to provide protected leave and benefits.
Oregon Family Leave Act (OFLA)
Oregon employers with 25 or more employees are subject to the OFLA. Employees are eligible for OFLA leave if they have been employed for 180 days and work an average of 25 hours per week. COVID-19 may trigger an employee’s entitlement to use protected OFLA leave in a number of ways, including:
- To care for their own, or a family member’s, serious medical condition;
- To care for a sick child with an illness, injury, or condition that is not serious;
- To make funeral arrangements, attend the funeral, or to grieve a family member who has passed away (this “bereavement leave” is limited to two weeks and must be completed within 60 days of the employee learning of the death); and
- Notably, the Oregon Bureau of Labor & Industries (BOLI) is currently undergoing emergency rulemaking to allow employees to take OFLA leave to care for their children during official school closures to limit the spread of COVID-19.
Note that employees are not FMLA eligible until 12 months of employment have passed. COVID-19 could present situations where an employee is eligible for – and exhausts – OFLA leave before their one-year anniversary. In that situation, the employee may be entitled to an additional 12 weeks of FMLA leave, provided they meet all other qualifications.
Oregon Sick Leave
Oregon employers should also be mindful of the broad range of reasons employees may use protected sick leave. Employees are entitled to accrued (or banked) sick leave after 90 days of employment. The leave must be paid if the employer has 6+ employees (if the employer has a location in Portland) or 10+ employees (if the employer does not have a location in Portland). The reasons an employee may take protected sick leave during the COVID-19 pandemic include, but are not limited to:
- Any of the above OFLA-qualifying reasons (including to care for children during official school closures);
- To care for their own, or their family members’, non-serious illness, injury, or health condition (i.e., experiencing flu-like symptoms of COVID-19);
- To seek medical diagnosis, care, or treatment, or to seek preventative medical care for themselves or their family member (i.e., to get tested for COVID-19);
- To recover from or seek treatment for a health condition that renders the employee unable to perform at least one essential job function;
- If a public official requires the employer to shut down operations due to a health emergency;
- If a public health authority or healthcare provider determines the presence of the employee or their family member in the community would jeopardize the health of others; and
- The employee is excluded from work by law or by rule for health reasons (i.e., if state or local officials declare a shelter-in-place policy).
Employees may also donate their own accrued sick time to another employee for any of the above authorized reasons, provided the employer has a policy to that effect. Employers that don’t have such a policy may consider adopting a temporary policy to that effect as a measure to assist employees in need, at least during the COVID-19 pandemic.
As a reminder, there is nothing preventing employers from going beyond their statutory obligations with regard to paid and unpaid leave. Some employers with the means to do so have already taken creative steps with their PTO policies to assist employees experiencing work loss during the COVID-19 pandemic.
For example, some employers are allowing employee leave banks to go negative. Other employers who have temporarily shut down operations are continuing to pay hourly employees, even if the employees cannot work from home. While such measures are undoubtedly well-intentioned, employers should be mindful of what potential limits or caps they can afford and clearly communicate those details to their employees in a written policy.
If you have questions about the issues raised here, please contact any of the attorneys in our Labor & Employment Practice Group.