Dunn Carney LLP
Portland and Salem based law firm
During the ongoing spread of the coronavirus, Dunn Carney has been helping employers assess and respond to the implications and consequences of the virus for their workforce. As a service to our clients and the business community, we provide the following list of answers to the most frequently asked questions.
Please note that this information may change as the situation evlolves. Please feel free to contact us with any further questions.
On March 14, 2020, the U.S. House of Representatives passed the Families First Coronavirus Response Act (H.R. 6201). Among other things, the bill amends the Federal Family and Medical Leave Act to require leave for reasons related to the coronavirus. The bill also significantly expands paid sick leave benefits for some employees.
We expect the Senate will act quickly, but key provisions of the bill may change. We are closely monitoring the legislative activity and will provide an update once the bill has passed both houses of Congress.
1. Do employers have to pay employees if the employer chooses to (or is required to) shut down?
If your employees are exempt and work part of any workweek, yes, you must pay them.You are generally not required to pay non-exempt employees.
Employers are required to permit employees to use their protected sick time for actual illness, an order by a public official shutting down a business due to a public health emergency, or a school closure impacting an employee’s child.
2. May employers prevent employees from coming to work if they are ill, and/or send an ill employee home?
Yes; actively encouraging sick employees to stay home is one of the most important things employers can do.
If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to the virus in the workplace. However, employers should maintain the confidentiality of the affected employee.
3. What kind of leave are employees entitled to if they (or a family member) contract COVID-19?
In Oregon and Washington, employees are entitled to use their paid sick time. Washington employees may also be entitled to paid leave under the State’s Paid Family and Medical Leave Program.
Additionally, the Oregon Family Leave Act (OFLA), and the Federal Family and Medical Leave Act (FMLA) require covered employers to provide employees with a serious health condition, or who need to care for a family member with a serious health condition, with protected leave. An employee who has COVID-19 or must care for a family member with it would qualify for such leave. Washington employees are entitled to protected leave to care for a family member with a serious health condition. An employee who is eligible for such leave is entitled to protected leave as well as reinstatement to their job when they are released to work, or no longer need to care for their family member.
4. What can employers do to reduce risk of infection/transmission at work?
Encourage employees to stay home and notify workplace administrators when they are sick. Encourage personal protective measures among staff, including handwashing and respiratory etiquette. Clean and disinfect frequently touched surfaces throughout the day. Ensure hygiene supplies (soap, hand sanitizer, disinfectant wipes, tissues, no-touch disposal receptacles) are readily available in multiple places throughout the workplace.
Implement social distancing measures, including: increasing physical space between employees at the office or worksite; staggering work schedules (if feasible); decreasing social contacts in the workplace (such as limiting in-person meetings, meeting for lunch in a break room, etc.); cancelling large work-related gatherings like staff meetings and functions.
5. How much do we need to tell employees?
Timely, informed, and compassionate communication is critical. Create an employee communications plan, including a process to communicate the latest COVID-19 information to employees and business partners. Anticipate employee fear, anxiety, rumors, and misinformation, and plan your communications accordingly.
6. May employers require employees to telework?
Yes, this is at the employer’s discretion.
7. May employers require employees to have a doctor’s note to return to work after being diagnosed with the virus (or if it is suspected that the employee may have had the virus)?
Yes, but the employer must pay for the doctor’s visit if it is not covered by insurance.It also may not be feasible for employees to obtain such a clearance, as doctors’ offices and urgent care facilities are already overwhelmed—and it is only going to get worse. Current medical advice is that the employee should remain off work until they have been symptom free for at least 72 hours (meaning they have no cough, fever, or signs of a fever or any other symptoms without the use of fever-reducing or other symptom-altering medication).
Employers should be careful not to assume that anyone with mild symptoms has the virus; according to medical authorities it is far more likely to be the flu or a cold than the coronavirus. This could change, so we recommend keeping up to date with the latest information from sources like the Centers for Disease Control and Prevention (CDC).
8. May employers require employees to provide a negative Covid-19 test before returning to work if they have been ill?
Yes, but this will likely be impractical, as states do not have the capacity to perform significant testing at this time.
9. May employers restrict employees from traveling?
Employers can restrict (or ban entirely) business travel; they cannot prevent employees from traveling for personal reasons, but they can require these employees to self-quarantine if they travel to a country identified as a hotspot for the virus, according to the CDC’s risk assessment levels and other guidance on its website, or if they take a cruise or visit places in the U.S. where there has been a confirmed concentrated outbreak. It is a good idea to warn employees about this possibility before they leave town; we recommend implementing a carefully drafted policy and consistently enforcing it.
10 Where can I learn more?
For more information, we recommend these websites:
US. State Department
U.S. Chamber of Commerce}
Guidance for employers to plan and respond to coronavirus
For Washington employers, the Governor’s Office for the State of Washington has an excellent resource: