The need for remote work and possible workforce reductions is becoming a reality for many employers, and there are important considerations. Employers are faced with responding to employee concerns and requests for leave, as well as evaluating temporary layoffs or closures.  In essence, all of this leaves us overwhelmed and confused about what we can and cannot do as employers.   Understanding the requirements around protected leaves, payment of wages, and employee separations, including how to best communicate with employees during these challenging times, is essential.  This 1-hour webinar explore strategies for managing an influx work environment. Receive guidance from Luke Reese of Garrett Hemann Roberson PC, around how your employment decisions may be impacted by the evolving federal and state regulations. 

1. COVID-19
What Employers Need to Know
April 1, 2020
Luke Reese▪ Suzi Wear
1011 Commercial St. NE • Salem, Oregon 97301-1049
(503) 581-1501 • 1-800-581-1501 • Fax (503) 581-5891 • www.ghrlawyers.com

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Housekeeping Items

3. Presenter: Luke Reese
Attorney
Garrett Hemann Robertson
Moderator: Suzi Wear
VP, People Development & Culture
Xenium HR

4. WHAT WE KNOW NOW
Families First Coronavirus Response Act

5. What We Know Now
▪ Families First Coronavirus Response Act (“FFCRA”)
▪ FFCRA includes the Emergency Paid Sick Leave Act
and the Emergency Family and Medical Leave
Expansion Act.
▪ FFCRA becomes effective April 1, 2020 and applies to
leave taken between April 1, 2020 and December 31,
2020.

6. What We Know Now (cont.)
Are there exemptions for small businesses?
▪ Private Employers with fewer than 50 employees may apply for
an exemption.
• Criteria: If compliance with providing paid sick leave and expanded
FMLA leave due to school or place of care closures or childcare
provider unavailability for COVID-19 related reasons would
jeopardize the viability of the business as a going concern
• Small businesses must still comply with other paid sick leave
qualifying reasons.

7. What We Know Now (cont.)
How do I apply for a small business exemption?
▪ An authorized officer of the business must determine one of the
following applies:
1. Provision of leave would result in the business’s expenses and financial
obligations exceeding available business revenues and cause the small
business to cease operating at a minimal capacity;
2. Providing leave to the employee requesting it would entail a substantial risk
to the financial health or operational capabilities of the small business
because of the employee’s specialized skills, knowledge of the business, or
responsibilities; or
3. Insufficient workers who are able, willing, and qualified, and who will be
available at the time and place needed, to perform the labor or services
provided by the employee or employees requesting leave, and these labor
or services are needed for the small business to operate at a minimal
capacity.

8. What We Know Now (cont.)
Emergency Paid Leave- What can it be used for?
1. Subject to a Federal, State or local quarantine or isolation order
related to COVID-19;
2. Advised by a health care provider to self-quarantine due to COVID-
19 concerns;
3. Experiencing COVID-19 symptoms and seeking medical diagnosis;
▪ If used for these reasons, the employee is paid his/her regular rate of
pay, but it is capped at $511 per day or $5,110 total.

9. What We Know Now (cont.)
Emergency Paid Leave- What can it be used for?
4. Caring for an individual subject to a federal, state or local quarantine or
isolation order or advised by a health care provider to self-quarantine due to
COVID-19 concerns;
5. Caring for the employee’s child if the child’s school or place of care is closed
or the child’s care provider is unavailable due to public health emergency; or
6. Experiencing any other substantially similar condition specified by the
Secretary of Health and Human Services in consultation with the Secretary of
the Treasury and the Secretary of Labor.
▪ If used for these reasons, the employee is paid two-thirds his/her
regular rate of pay, but it is capped at $200 per day or $2,000 total.

10. What We Know Now (cont.)
Emergency Paid Leave/Oregon Paid Sick Leave
▪ Paid leave under the FFCRA is in addition to leave available
under Oregon Paid Sick Leave.
• Oregon paid leave includes an employee caring for him/herself or a
family member with a physical illness or health condition AND
closure of an employee’s place of business, or the school or place
of care of the child by order of a public official.
▪ Employers cannot require employees to use other types of leave
before accessing paid sick leave under FFCRA.

11. What We Know Now (cont.)
Expanded FMLA
▪ Available to employees who have worked for the employer for at
least thirty (30) days
▪ Limited scope: Only available if an employee cannot work (or
telework) due to a need to care for a child under 18 years of age
when the child’s school or childcare provider has been closed
due to COVID-19.
▪ 12 weeks of leave are available

12. What We Know Now (cont.)
Expanded FMLA- Reinstatement
▪ Employers with fewer than 25 employees are not required to
return employees to the same position if:
(1) the position no longer exists due to economic conditions or other
changes in operating conditions;
(2) the employer made reasonable efforts to restore employee to an
equivalent position (i.e. same benefits, pay, and other
terms/conditions of employment); and
(3) the employer contacts the employee if the same or an equivalent
position becomes available in the next year. Employers with 25 or
more employees are obligated to return the employee to the same
position or an equivalent position.

13. What We Know Now (cont.)
Required Notice
▪ Conspicuously post at the workplace or send directly
to employees working remotely.
▪ Poster available here

14. Governor Kate Brown’s Executive Orders
▪ Order No. 20-07: Restaurants and bars- takeout and delivery
only.
▪ Order No. 20-08: All K-12 schools are closed through April 28,
2020.
▪ Order No. 20-12: “Stay Home, Save Lives”
• Prohibits non-essential social and recreational gatherings,
regardless of size if a 6-foot distance cannot be maintained
• Mandates closures of certain businesses which close personal
contact is difficult or impossible to avoid
• Requires social distancing at businesses that remain open, and
designation of employee to establish, implement and enforce social
distancing policies consistent with OHA guidance.
What We Know Now (cont.)

15. Telework
▪ Brown’s order provides, “all businesses and non-profit entities
with offices in Oregon shall facilitate telework and work-at-home
by employees, to the maximum extent possible. Work in offices
is prohibited whenever telework and work-at-home options are
available, in light of position duties, availability of teleworking
equipment, and network adequacy.”
▪ If teleworking is not available, an employee must be designated
to establish, implement and enforce social distancing policies
consistent with OHA guidance.
What We Know Now (cont.)

16. Telework
▪ If Employees can telework, they MUST telework in order for the
business to comply with the executive order.
▪ If employees are hesitant, make sure to have resources
available for technology support and training.
• VPN Access
• Zoom meetings
• Accessing work phone system
What We Know Now (cont.)

17. EVALUATING OPTIONS
Balancing Employer Obligations and Employee Needs

18. My business is closed by state order. What should I do?
▪ Layoffs versus furlough
• Furloughed employees remain eligible for health insurance, but
employers can require employees to pay the employee share of the
premium.
• Both likely qualify for unemployment benefits. Encourage them to
apply immediately.
• If the entire worksite is closed (due to state order or lack of business)
paid sick leave or expanded family and medical leave is not required,
but may be an option.
• Review terms of employment contracts- required notice/ability to
immediately terminate.
Evaluating Options

19. My business is closed by state order. What should I do?
▪ Communication to Employees
• Consistency
• You can be empathetic, but do not guarantee return date or
job availability- There are a lot of uncertainties.
• Continue to follow policies (i.e.- payment or nonpayment of
PTO)
• Explain benefits available- COBRA, Unemployment Insurance
Benefits
• Have plan for communication for rehire/reinstatement
Evaluating Options (cont.)

20. My employees are available to work remotely, but
some require leave to care for a child during the
school closure. What do I do?
▪ Those employees qualify for both paid sick leave and expanded FMLA,
which can be taken intermittently while teleworking.
▪ Intermittent leave can be taken in any increment.
▪ Collaborate with employee to set workable schedule. Document the
agreement.
▪ Ensure employee is tracking hours. When feasible, continue to use
regular timekeeping software.
▪ If not working remotely, only full day increments are available.
Evaluating Options (cont.)

21. My employees are available to work remotely, but
there is not enough work to keep full time employees
busy. What do I do?
▪ You may consider temporary layoffs or furloughs to reduce
workforce to the business needs.
▪ Paid sick leave and expanded FMLA is only available if a
COVID-19 related reason prevents the employee from working
the full schedule, not because business has decreased.
However, this is very much a related issue.
▪ Note, exempt employees must still be paid their full salary if they
work during a workweek.
Evaluating Options (cont.)

22. I cannot keep a full staff because so many employees
are taking protected leave. What do I do?
▪ Ensure the employees all have qualifying reasons to take
leave.
• Simply not working because of a fear of COVID-19 without
exhibiting symptoms or caring for an infected family member is
insufficient. Ultimately, use common sense.
• Being in a vulnerable population (over 60 and/or underlying health
conditions) is also insufficient unless a medical provider has
advised that they stay home.
• Make employees feel safe: implement social distancing, sanitize
frequently, have hand sanitizer and hand-washing readily available.
Evaluating Options (cont.)

23. I cannot keep a full staff because so many employees
are taking protected leave. What do I do?
▪ If employees are entitled, do not try to interfere or discourage
the employees to not take leave. This could result in liability
down the road.
▪ Make sure to discuss whether telework is an available option.
▪ If needed, recruit new employees. With the significant layoffs
many candidates may be available.
Evaluating Options (cont.)

24. Resources
▪ FFCRA Sample Policy
▪ FFCRA FAQ’s
▪ Temporary WFH Policy

26. Suzi Wear, SCP, SPHR
Xenium HR
Suzi.Wear@XeniumHR.com
503-612-2067
General Contact Information:
1011 Commercial St. N
Salem, Oregon 97301-1049
(503) 581-1501 • 1-800-581-1501
www.ghrlawyers.com
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CONTACT
Luke Reese
Garrett Hemann Robertson
lreese@ghrlawyers.com
503-581-1501