The COVID-19 pandemic brings a lot of anxiety and unanswered questions. Below are some resources to provide guidance. The legal landscape on these issues is evolving rapidly, so please check the cited resources for updates. This blog is based on information available as of May 14, 2020.

Can I use accrued sick time to care for a sick family member or a child who is not in school?

Oregon law provides sick time to all employees.  The sick time must be paid if your employer has 10 or more employers (6 or more if your employer has operations in Portland).  This sick time may be used if a family member is sick, injured, experiencing mental illness, or if you need to visit a doctor.  Importantly, you may use your sick time to care for your child if your child's school is closed by order of a public official for a public health emergency, such as the COVID-19 health crisis.  Employees are protected from retaliation for using sick time.

Under new federal legislation, called the Families First Coronavirus Response Act (FFCRA), employees are also entitled to up to two weeks paid emergency sick leave if the employee is quarantined and/or experiencing COVID-19 symptoms.  Employees are also entitled to two weeks partial paid leave (2/3 pay) to care fo an individual subject to quarantine or to care for a child whose school or child care provider is closed for reasons related to COVID-19.  Employers with less than 50 employees may have certain exemptions under this law.

What rights do I have as an employee to take leave from work during the COVID-19 health crisis?

You may also take protected leave from work under certain circumstances.  Federal law provides protected leave for up to 12 weeks of unpaid leave if your employer has at least 50 employees.  Similarly, in Oregon, under the Oregon Family Leave Act (OFLA), you may take up to 12 weeks unpaid leave if your employer has at least 25 employees and you have worked for your employer for 180 days before taking leave.  Under both the FMLA and OFLA, leave may be taken for your own serious health condition or to care for a family member with a serious health condition.  Under the OFLA, leave may also be taken to grieve the death of a family member.  

By emergency rule-making, the Oregon Bureau of Labor and Industries also added the ability to take protected leave under OFLA to care for a child due to a school closure by order of a public health official for a public emergency under OFLA.  The temporary rule is in effect from 3/27/2020 to 09/22/2020.

Under the FFCRA, the federal government also expanded FMLA for employees employed for at least 30 days.  Those employees may take up to an additional 10 weeks of partially paid (2/3 pay) family and medical leave to care for a child whose school or child care provider is close or unavailable for reasons related to Covid-19. 

Your employer may not retaliate against you for taking protected leave and, in general, must keep your position available for you to return to after your period of protected leave has ended.

My employer is treating me differently than my coworkers because of my gender or race.  What can I do?

Oregon law protects employees from discrimination, including differences in the terms and conditions of your employment, on the basis of a protected class, including but not limited to an employee's national origin, race, gender, gender-identity, age, disability, and more.  Generally, it is a good idea to follow your employer's reporting policies on discrimination and harassment.  It is unlawful to retaliate against an employee for reporting discrimination or harassment.        

My employer is not taking safety precautions recommended by OSHA or the CDC and I believe my workplace is unsafe.  What are my rights?

The CDC has issued guidance for businesses and employers in preventing the spread of COVID-19 in the workplace.  OSHA also has provided guidance for employers on workplace safety related to COVID-19.  The guidelines outline best practices for creating a safe workplace and minimizing risk in the workplace related to COVID-19.  In addition, OSHA provides guidance on assessing the risk to worker exposure, as well as providing guidance for specific worker groups, such as manufacturing, meat and poultry processing, airline operations, retail operations, and more.  Oregon OSHA also has provided guidance on social distancing and PPE in the workplace.

In addition, Oregon law requires every employer to provide a "safe and healthful" workplace and to provide and use devices and safeguards, practices, means, methods, operations, and practices as are reasonably necessary to render workplaces safe and healthful.  Employers must also do "every other thing reasonably necessary to protect the life, safety and health" of their employees.  ORS 654.010.

If you feel unsafe in performing certain tasks, you may have the right to refuse to do those tasks, but you should first ask your employer to correct the unsafe condition, tell your employer that you won't perform the task until the unsafe condition is corrected, and remain at the worksite until order to leave by your employer. 

It is unlawful for your employer to retaliate against you for reporting unsafe work conditions in good faith to your supervisor and/or to the Oregon OSHA Office.

What if I am unable to pay my rent due to job loss?

Although the COVID-19 crisis does not relieve anyone from their contractual obligations to pay rent, Governor Kate Brown issued a temporary moratorium on evictions for failure to pay rent.  The moratorium is in effect from March 22nd and lasts for 90 days.

It is unlawful for your landlord to ask for payment of rent by exchanging work unless your landlord pays you minimum wage for your work and deducts the cost of the rent from your wages.  It is also unlawful under any circumstances for your landlord to request or require sexual favors in exchange for free or reduced rent.  Click here for additional information on sexual harassment in housing.

If I contract COVID-19, may my employer share my diagnosis or other medical information with my coworkers?

Under the Americans with Disabilities Act, employers are prohibited from making disability-related inquiries unless they are job-related and consistent with business necessity.  Generally, a disability-related inquiry is job-related and consistent with business necessity if the employer can establish that the employee will pose a direct threat due to a medical condition.  A direct threat 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."

 The Equal Employment Opportunity Commission has issued guidelines determining that the COVID-19 pandemic meets the direct threat standard.

According to EEOC guidance, in order to prevent the spread of COVID-19 in the workplace, employers may require a medical examination, take an employee's temperature, or require medical documentation to determine that employees do not have symptoms of the virus.  However, the test must be required of all employees.  Any medical information obtained, including that an employee tests positive or has symptoms of the virus, must be treated confidentially and may not be shared with other employees.

However, employers may have to disclose the diagnosis to local or state health authorities. Also, to protect other employees, employers may notify employees that have potentially been exposed that another employee has been diagnosed, but must do so without revealing the identity of the employee.

 Questions? Contact Shenoa Payne Attorney at Law for further information.