Changes to Oregon Unemployment Insurance and Oregon Family Leave Act in Light of COVID-19

On March 18, 2020, Oregon issued temporary rules to help employees impacted by COVID-19. The Oregon Employment Department issued temporary rules expanding the availability of unemployment insurance to those impacted by COVID-19, while the Oregon Bureau of Labor and Industries (“BOLI”) issued a temporary rule expanding the availability of the Oregon Family Leave Act (“OFLA”) to parents whose children are impacted by school or day-care closures. Continue Reading

Congress Passes Legislation to Provide Paid Leave to Employees During COVID-19 Emergency

On March 18, 2020, the Senate passed the Families First Coronavirus Response Act, (the “Act”), which was passed by the House last week.  President Trump swiftly signed the legislation, which is effective in 15 days.  All public employers and private employers with under 500 employees are covered by the Act, which provides for emergency paid family and medical leave as well as emergency paid sick leave, among other provisions including changes to unemployment insurance and food and nutrition benefits.

Much of the final Act tracks the bill originally enacted in the House (discussed here), but there are some significant changes.  Below we summarize the key important provisions of the Act as passed by Congress that relate to paid leave. Continue Reading

EEOC Updates Guidance on ADA and the Rehabilitation Act In Light of COVID-19

As employers continue to react to and prepare for workplace challenges due to the impact of the COVID-19 outbreak around the country, the EEOC has updated some of its guidance on the Americans With Disabilities Act (“ADA”) and the Rehabilitation Act.  The EEOC addresses situations such as whether employer can require that employees showing symptoms of COVID-19 stay home, and whether employers can take employee’s temperatures.  For the EEOC’s guidance on those issues and more, see the guidance here.  For questions specific to your workplace, please contact your Stoel Rives attorney and check back here and the Stoel Rives Coronavirus (COVID-19) Resource Hub for updates.

House of Representatives Takes Steps to Provide Paid Leave to Employees Absent due to COVID-19; Senate Must Still Act

We are continuing to monitor developing issues facing employers due to the outbreak of COVID-19.  The latest is from Congress.

On March 13, the US House of Representatives passed the Families First Coronavirus Response Act, (the “Act”) to  provide for emergency paid sick and family and medical leave for some employees around the country.  Public agencies and employers with fewer than 500 employees are covered by the Act, and can apply for tax credits each quarter to recoup payments made under the Act.

Please note that the Act has not gone into effect yet and is not final.  The Senate must also pass the Act before it becomes effective, and the Senate is likely to make changes.  Subject to those changes, below is a summary of the important items for employers to know about the Act in its current state.

Emergency Family and Medical Leave

Employees are eligible for up to 12 weeks of paid family and medical leave under the Act if they have worked for an employer for at least 30 days, and are absent from work for one of the following reasons: Continue Reading

COVID-19 – Information Updates

We continue to stay up to speed on workplace-related legal issues as we all navigate this challenging time. Many of you attended the webinar we put on today, Taming the COVID-19 Chaos: What Employers Need to Know.  The materials from that presentation are available here.  Please join us for another webinar next Wednesday, March 18; come back here soon for registration information, or, if you are a subscriber, monitor your inbox.

Also stay tuned for a list of FAQs compiled from some of the client questions we have received recently,  including answers to questions about unemployment insurance and leave.  In the meantime, for those hardest hit in Seattle and Washington State, here is a chart from the Washington Employment Security Department showing when sick leave, unemployment benefits, and Paid Family and Medical Leave are available under different COVID-19 circumstances.  And for those in Oregon, here is a similar chart.

HDHPs Can Provide No Cost COVID-19 Testing and Treatment

Washington Health Benefit Exchange Announces Special Enrollment Period

Today, the IRS issued Notice 2020-15 clarifying that high-deductible health plans (HDHPs) may provide benefits associated with testing and treatment of COVID-19 (commonly referred to as coronavirus) without application of a deductible or cost-sharing. Doing so will not impact a plan’s status as a HDHP or a participant’s eligibility to contribute to a health savings account (HSA) under the Internal Revenue Code.

The IRS cited the unprecedented public health emergency posed by COVID-19, and the need to eliminate potential administrative and financial barriers to testing for and treatment of COVID-19, as the reason for the clarification.

In response to the pandemic, the Washington Health Benefit Exchange has announced a special enrollment period allowing qualified uninsured Washington residents to purchase individual health insurance. This enrollment period, which runs through April 9, 2020, may be of interest to employees and their dependents who are not eligible for or enrolled in employer-sponsored health plans, such as part-time employees.

For additional commentary on the labor and employment aspects of COVID-19, please visit our Coronavirus Resource Hub for Employers and World of Employment, the Stoel Rives Labor & Employment Law Blog.

Washington’s New Leave Laws and the COVID-19 Outbreak

No sooner has Washington enacted two major new leave laws – the Washington Paid Sick Leave Law and the Washington Paid Family and Medical Leave Law (WPFML) – than the State has found itself to be one of the epicenters of the COVID-19 outbreak.  Here is what Washington employers need to know about Paid Sick Leave and WPFML in the coming weeks.

WA Paid Sick Leave

All non-exempt/hourly employees within the state of Washington are entitled to accrue paid sick leave.  Those employees who have worked for you for at least 90 days are entitled to use their paid sick leave for several reasons that the COVID-19 outbreak may trigger.

Not surprisingly, the employee may use accrued sick leave for his or her own healthcare needs, as well as to allow the employee to provide care for a covered family member with a health condition.  Unlike the federal Family and Medical Leave Act (FMLA) and WPFML, the health condition need not be “serious.”  Even the most mild version of COVID-19 would be covered. Continue Reading

Tips For Employers to Mitigate Issues Related to COVID-19 Outbreak

With COVID-19 (coronavirus) impacting communities in the Northwest and around the U.S. and world, employers are wondering what role they can play in keeping their employees safe and healthy. Don’t panic! Your current policies and practices are probably sufficient to handle any issues that may affect your workplace. But here are some general recommendations. (See the Centers for Disease Control and Prevention’s guidance for businesses and employers for additional information, and our article on wage, sick leave, and scheduling issues here.)

Practice prevention

  • Provide alcohol-based hand sanitizer with at least 60% alcohol throughout your workplace, including in common areas like kitchens, lunch rooms, conference rooms, and reception areas.
  • Provide disinfectant throughout working areas, and encourage employees to disinfect high-contact areas and items, like door handles, phones, keyboards, etc.
  • Ensure adequate supplies of hand soap are available and encourage employees to wash their hands frequently.
  • If applicable, ask your regular cleaning services what options they have to disinfect your workplace.

Continue Reading

Pay, Leave, and Scheduling Issues Due to the Coronavirus (COVID-19)

With hourly reports of a possible coronavirus (COVID-19) pandemic in the news, employers are confronted with preparing for widespread employee absences or a pandemic situation.  Among many issues to consider is how to treat absences related to coronavirus.  Not only must employers consider how to treat employees who themselves become ill, they must also prepare for those who will be absent to care for others, as well as possible illness-related furloughs or facility closures.

Under the FLSA and most state wage and hour laws, there is a distinction between how employees are treated, depending upon their status as exempt or non-exempt employees.

Non-exempt employees.  Employers should pay non-exempt employees for all time worked but are not required to pay them if they do not perform work.   For example, if the non-exempt employee performs work from home, they should be paid for all time actually worked.  On the other hand, the employer need not pay non-exempt employees if they perform no work because, for example, the employer closes its facility (1) because of an epidemic, (2) to prevent the spread of disease, or (3) for lack of work. Continue Reading

A Return to Common Sense in Federal Labor Law

Through a series of decisions issued in late 2019, the National Labor Relations Board (“NLRB” or “Board”) has signaled a return to common sense in its approach to the rules governing labor relations.  Here are a few of the Board’s decisions that are of interest to employers.

Employers May Require Employees to Maintain Confidentiality in Workplace Investigations

In Apogee Retail, LLC d/b/a/ Unique Thrift Store, 368 NLRB No. 144 (Dec. 16, 2019), the NLRB upheld an employer’s right to require that employees maintain confidentiality in workplace investigations.  In doing so, the NLRB overruled Banner Estrella Medical Center, in which the Board previously created a presumption that confidentiality rules unduly infringed on employees’ Section 7 rights to organize or engage in concerted activities, and required employers to demonstrate the need for confidentiality based on facts specific to the investigation.

In balancing employees’ Section 7 rights against the needs of employers to maintain confidentiality in the investigation process, the Board observed that the confidentiality rules at issue in this case did not prohibit employees from discussing either the incident or any resulting discipline.  Instead, “they narrowly require that employees not discuss investigations of such incidents or interviews conducted in the course of an investigation.”  Id. at 8 (emphases in original).  Finally, the Board also recognized that even after the conclusion of an investigation, there may be legitimate reasons for prohibiting employees from discussing interviews that occurred during the investigation, but stated that rules requiring post-investigation confidentiality required “individualized scrutiny.”

Employers May Restrict Union Buttons at Work

In Wal-Mart Stores, Inc., 368 NLRB No. 146 (Dec. 16, 2019), the NLRB addressed whether a dress code policy that limits, but does not prohibit, the wearing of buttons and insignia violated the National Labor Relations Act (“NLRA”).  Wal-Mart maintained a policy that limited employees to wearing “small, non-distracting” union insignia no larger than the size of their name badges. Continue Reading