March 13, 2020
by Randi Ensley

Oregon – COVID-19 Incident Reports, Workers’ Comp, Wage and Leave Issues

As Oregon employers continue to face unique issues in the wake of the COVID-19 coronavirus, SBH has assembled this list of commonly asked questions addressing workplace rights and responsibilities for incident reports, workers’ compensation claims, and other employment-related concerns.

 

When should an OSHA Injury and Illness Incident report be filed?

OSHA has deemed COVID-19 a recordable illness when an employee of a covered employer is infected on the job. https://www.osha.gov/SLTC/covid-19/standards.html

Employers should file an incident report if either:

  1. An employee has tested positive for COVID-19; or
  2. The employee was exposed at work to an individual who tested positive for COVID-19.

Further, employers must report the death or in-patient hospitalization of any worker due to an on-the-job injury by calling 1-800-922-2689 within certain time frames.

 

When should a workers’ compensation claim be filed?

A workers’ compensation claim should be reported when either of these events occur:

  1. The worker asks to file a workers’ compensation claim or
  2. The worker seeks medical treatment or testing for COVID-19 and there was a suspected exposure at work

Every incident does not automatically need to be filed as a workers’ compensation claim. The filing of an incident report protects the worker’s right to later file a claim. However, if an employee wishes to file a claim, the employer must report it to the insurance company within 5 days. WCD Guidance on Claims Reporting

 

Will the workers’ compensation claim be accepted?

ORS 656.266 requires the worker to establish affirmatively that the disease is work-related. The employee is not required to establish the existence of a specific condition (COVID-19) and simply needs to prove medical treatment or evaluation due to the exposure. The existence of a particular disease or diagnosis is not necessarily required to prove the existence of a “compensable injury”.  See K-Mart v. Evenson, 167 Or App 46 (2000). The medical services need not be directed toward the cure of any existing, identifiable disease; rather, diagnostic or other medical services will suffice. Id.

 

Can an employer ask an employee to leave work or stay home if they show symptoms of acute respiratory illness?

Employers are required by occupational safety and health laws administered by the Occupational Safety and Health Administration (OSHA) and Oregon OSHA to furnish a place of employment “free from recognized hazards … likely to cause death or serious physical harm.”

The Center for Disease Control (CDC) recommends that employees who appear to have acute respiratory illness symptoms (i.e. cough, shortness of breath) upon arrival to work or become sick during the day should be separated from other employees and be sent home immediately. The Equal Employment Opportunity Commission (EEOC) stated that requesting workers go home under these circumstances is not disability-related. EEOC Guidelines

Employers should be careful not to run afoul of federal and Oregon discrimination laws prohibiting employers from singling out people of a specific protected class, for instance race, sex, age, color, religion, national origin, disability, union membership or veteran status. Employers should be sure a factual basis exists for a decision to exclude someone from the workplace.

The CDC is also encouraging employers to determine whether flexible worksites and/or hours are an option.

Absence due to illness triggers Oregon protected sick time. Oregon Sick Leave law requires employers provide at least 40 hours of protected sick time per year (one hour of protected sick time for every 30 hours worked for those employed more than 90 days). Leave is paid if the employer has more than 10 employees (or more than six in Portland). BOLI COVID-19 Sick Leave FAQ

A progression of COVID-19 may result in a serious health condition that also qualifies for protected leave for employers covered by OFLA or FMLA.

 

Can an employer ask an employee to leave work or stay home if they have traveled to an impacted region or been exposed to someone with COVID-19?

OSHA recommends that to protect the safety of employees, employers should implement policies that will result in the “prompt identification and isolation of potentially infectious individuals.” OSHA has also indicated that employers may take action with regard to high-risk individuals, which includes those who have traveled to impacted areas or those who have been exposed to the illness.

Employers should be careful not to run afoul of federal and Oregon discrimination laws prohibiting employers from singling out people of a specific protected class, for instance race, sex, age, color, religion, national origin, disability, union membership or veteran status. Employers should be sure a factual basis exists for a decision to exclude someone from the workplace.

Maintaining a safe workplace as it pertains to COVID-19 requires keeping up with evolving guidance from the health regulatory authorities. The CDC’s recommendations with respect to travel to impacted areas can be found here. OSHA has released “Guidance on Preparing Workplaces for COVID-19,” describing “lower exposure,” “medium exposure,” and “high or very high exposure” risk occupations and what precautions employers can take with respect to protect employees at each level.

For those employees identified as having potential exposure, an employer can, and in certain cases must, direct those employees to work from home or not work during the incubation period. Employees who do not want to provide information about travel or potential exposure could also be asked to work from home or not work until it is determined safe for the them to return to work.

 

How should employers handle situations where workers do not report to work due to sick family members?

Absence due to illness of a family member triggers Oregon protected sick time. Family members include an employee’s spouse, same-gender domestic partner, biological child, adopted child, stepchild, foster child, same-gender domestic partner’s child, parent, adoptive parent, stepparent, foster parent, parent-in-law, same-gender domestic partner’s parent, grandparent, grandchild, and any individual with whom an employee has or had an in loco parentis relationship.

Oregon Sick Leave law requires employers provide at least 40 hours of protected sick time per year (one hour of protected sick time for every 30 hours worked for those employed more than 90 days). Leave is paid if the employer has more than 10 employees (or more than six in Portland). BOLI COVID-19 Sick Leave FAQ

Progression of COVID-19 in an employee’s family member may result in a serious health condition that also qualifies for protected leave for employers covered by OFLA or FMLA.

Employers should look to the terms of any existing collective bargaining agreements, employment contracts or disability or PTO policies in place to determine whether any additional protections apply.

 

What legal protections are available for asymptomatic employees who self-quarantine?

Employees are permitted to use Oregon protected sick leave in the event of 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; or the exclusion of the employee from workplace under any law or rule that requires the employer to exclude the employee from the workplace for health reasons. BOLI COVID-19 Sick Leave FAQ

Leave under OFLA or FMLA likely do not apply to employees seeking leave solely for preventative purposes or when an employee is required by the employer to stay home but is asymptomatic. Protected leave is available under OFLA if an employee has a sick child who does not have a serious health condition but requires home care.

Employees who are absent due to concern over becoming infected with COVID-19 may also be protected under the NLRA and/or OSHA.  Under the NLRA, nonsupervisory employees may have the right to refuse to work in conditions they believe to be unsafe. Similarly, employees may refuse an assignment that involves “a risk of death or serious physical harm” if (1) the employee has “asked the employer to eliminate the danger and the employer failed to do so”; (2) the employee “refused to work in ‘good faith’” (a genuine belief that “an imminent danger exists”); (3) “[a] reasonable person would agree that there is real danger of death or serious injury”; and (4) “[t]here isn’t enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.”

While a generalized fear of contracting COVID-19 is not likely to justify a work refusal in most cases, employers should conduct a thorough review of the facts before any disciplinary action is taken against an employee who refuses to perform their job for fear of exposure to COVID-19.

 

Must employers keep paying employees who are not working due to quarantine, office closure or choose to stay home out of fear of infection?

Subject to the Oregon-specific exceptions listed below, employers are required to pay at-will nonexempt employees only for time worked under the Fair Labor Standards Act (FLSA) and Oregon wage and hour law. Thus, at-will nonexempt employees directed by their employer not to report to work and not to work from home generally need not be paid. Those employees may be permitted or entitled to use accrued paid time off, including paid sick leave as discussed below.

Exempt employees who work part of the week must be paid for the entire workweek unless paid sick leave or PTO may be substituted if the absence is initiated by the employer. If an exempt employee initiates an absence, the employer may only dock the employee for full-day absences.

Oregon Sick Leave is available in the event of 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; or the exclusion of the employee from workplace under any law or rule that requires the employer to exclude the employee from the workplace for health reasons. Employees who are not sick or caring for a sick family member, who are unable to work remotely, and who choose to stay home as a preventative measure may not be entitled to sick pay.

Employers should look to the terms of any existing collective bargaining agreements, employment contracts or disability policies in place to determine whether any additional protections apply.

Nonexempt retail, hospitality or food service employees who are sent home without notice may need to be compensated under Oregon’s predictive scheduling law. Exceptions to these requirements apply where the employer makes changes because of recommendations of a public official, a natural disaster or similar cause. COVID-19 may satisfy these exceptions under certain circumstances for example if a coronavirus-related closure is ordered or recommended by a public official or if employees with symptoms are sent home based on the recommendations of public officials.

In addition, Oregon employees may be entitled to unemployment compensation during closures or other periods away from work necessitated by COVID-19. The Employment Department has taken the position that benefits are available for employees who are temporarily laid off due to a temporary work closure so long as the employee is able to work, stays in contact with their employer and is available to work when the employer calls the employee back to work. Information about the Employment Department’s position on employment benefits related to COVID-19 can be found here and the Employment Department encourages employers with questions to email them at .

Employers considering a temporary or permanent break in operations, employers should consult with an SBH attorney with regard to the application of the federal WARN (Worker Adjustment and Retraining Notification) Act and Oregon’s “mini-WARN” law.

 

What can employer share with other employees about suspected or confirmed cases of COVID-19?

An employer may provide general information to employees to let them know that someone in the company is infected or is suspected to have been exposed to the virus to allow employees to monitor themselves for signs or symptoms and quarantine themselves, if appropriate. To maintain confidentiality as required by the Americans with Disabilities Act (ADA) and other privacy laws, employers may not, however, specifically disclose the identity of the infected employee or provide information that will allow other employees to identify the infected individual. Employees exposed to a co-worker with confirmed COVID-19 should refer to CDC guidance for how to conduct a risk assessment of their potential exposure.

 

Are there specific OSHA standards for COVID-19?

OSHA has released “Guidance on Preparing Workplaces for COVID-19,” describing “lower exposure,” “medium exposure,” and “high or very high exposure” risk occupations and what precautions employers can take with respect to protect employees at each level.

 

Are there additional resources for employers to consult on COVID-19 issues?

Maintaining a safe workplace as it pertains to COVID-19 requires keeping up with evolving guidance from the health regulatory authorities.

This guidance can be found at the following websites:

 

If you have further questions please call Randi Ensley – 503-595-6112 – or Krishna Balasubramani – 503-412-3104 – or another SBH attorney

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