Sick Leave & Employment Rights for COVID-19

The sick leave law permits an employee to use available leave to stay home sick and/or care for a sick family member. ORS 653.616(1) & (2). To the extent an employee has accrued sick leave hours, whether paid or unpaid, they can be used if the employee or a family member gets COVID-19. Any adverse action (e.g. termination) because the employee stayed home would be illegal retaliation. ORS 653.641(2).

“An employee may use sick time earned under ORS 653.606 . . . [i]n the event of a public health emergency. For purposes of this subsection, a public health emergency includes, but is not limited to: (a) 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; (b) A determination by a lawful public health authority or by 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, such that the employee must provide self care or care for the family member; or (c) The exclusion of the employee from the workplace under any law or rule that requires the employer to exclude the employee from the workplace for health reasons.” ORS 653.616(6); see also BOLI Q&A about COVID-19, https://www.oregon.gov/BOLI/WHD/OST/Pages/index.aspx.

For employers with at least 25 employees, the Oregon Family Leave Act provides up to 12 weeks of unpaid leave for any “serious health condition” the employee/a family member develops, but “serious health condition” generally means something that requires inpatient hospital care or poses an “imminent danger of death.” ORS 659A.150(6). Even if a mild case of coronavirus is not a “serious health condition,” note that OFLA also covers leave “[t]o care for a child of the employee who is suffering from an illness, injury or condition that is not a serious health condition but that requires home care.” ORS 659A.159(1)(d). Any adverse action (e.g. termination) because the employee inquired about, requested, or took leave that is protected under OFLA would be illegal retaliation. ORS 659A.183. OFLA does not protect an employee who has to take time off because a child’s school is closed if the child (or another family member) is not sick.

Workers who have sufficient work history (and are otherwise eligible) may be able to buffer losses a bit with unemployment insurance, but the benefit is limited to the difference between the amount earned in a week and what the employee would be entitled to in weekly UI benefits. For example, a person who earned $30,000 in the “base year” (roughly, the year preceding when their hours were cut) is entitled to a weekly benefit amount of $375. The usual weekly wage of a worker at this income level is $577. So the person cannot benefit from UI unless their hours are cut so that they are earning less than $375 a week.