Initial Guidance on Emergency Paid FMLA/SICK Leave; Oregon Unemployment Benefit Eligibility

Oregon Sick Leave Law (Compiled by Kelsey Heilman at the Oregon Law Center)

1.       Can an employee use Oregon sick leave if she or a family member contracts 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 said home would be illegal retaliation. ORS 653.641(2).

2.       Can an employee use Oregon sick leave if she must stay home because a child’s school is closed due to COVID-19?

“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,

3.       What if an employee doesn’t have sick leave available or runs out of sick leave – are there other protections under Oregon law?

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). 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.

I could not find any general retaliation protections for people who stay home from work due to a public health emergency – the protections seem to be tied only to use of sick leave.

4.       What can our clients do if their hours are cut because of public health orders/quarantines?

Clients with status and sufficient work history 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.

Think Out Loud also aired a related segment yesterday:



The U.S. Department of Labor issued its initial guidance March 25 regarding implementation of the Families First Coronavirus Response Act (FFCRA), previously summarized in our March 20,2020 COVID-19 e-alert. The guidance clears up some questions but leaves others unanswered pending issuance of the governing regulations.

Effective Date: The DOL confirmed that the effective date for the new legislation is April 1 and not April 2 as originally anticipated.

Hours of Leave for Part Time Employees. Part time employees are entitled to pay for their average number of work hours in a two-week period. Variable time employees are entitled to pay based on the average hours the employee worked in a two-week period over the six months prior to commencement of leave. If the employee has not been employed for the previous six months, the employer can use the number of hours the employer and employee agreed at the time of hire that the employee would work. If there is no agreement, the employer should use the average number of hours per day the employee was scheduled to work during the period of time the individual has been employed.

Combined Emergency Paid FMLA and Emergency Paid Sick Leave. An eligible full time employee is entitled to take her/his 80 hours of emergency paid sick leave plus an additional 10 weeks emergency paid FMLA (EPFMLA). An eligible p

Required Posting/Notice to Employees: Employers are required to post the notice available at (at “The Families First Coronavirus ResponseAct Posters”). Employers must post the notice in a conspicuous place on its premises, which can be satisfied by emailing or direct mailing the notice to employees or posting it on an intranet or other employee informational website. Although the DOL’s initial guidance states that employers do not have to provide the notice to laid-off employees, it is still unclear whether the notice needs to be provided to employees on furlough.

Small Business Exemption. The initial guidance states that employers with fewer than 50 employees document why compliance with the Act would “jeopardize the viability of the business” (the language used in the Act for the basis of the exemption). Although the DOL has yet to clarify how an employer can meet this standard, the guidance reports that employers should “not send any materials to the Department of Labor when seeking a small business exemption for paid sick leave and expanded family and medical leave.”

Retroactive Application. If an employee already has been discharged or furloughed for COVID-19 related economic conditions, the initial guidelines indicate the employee will not be eligible for either emergency paid FMLA leave or emergency paid sick leave.

Clarification of Emergency Paid FMLA (EPFMLA): The EPFMLA provides paid leave for employees who are unable to work, or to telework, because the employee is required to care for his/her minor child (under 18) because of a local, state or federally “declared” COID-19 related public health emergency.

1. Pay for Leave - First 10 Days. Are unpaid; however, and as noted below, the emergency paid sick leave can be applied to these first 10 days under certain circumstances. The employee also can choose to substitute accrued, unused PTO or sick leave under the employer’s current policies.

2. Hours of Leave for Part Time Employees. Part time employees are entitled to pay for their average number of work hours in a two-week period. Variable time employees are entitled to pay based on the average hours the employee worked in the six months prior to commencement of leave under the Act. An eligible p

Clarification of Emergency Paid Sick Leave (EPSL): EPSL provides paid sick leave for employees related to the current public health emergency resulting from the COVID-19 pandemic under the circumstances specified.

1. Hours of Leave for Full Time Employees. Up to 80 hours in a two-week period. The guidelines do not address whether the time can be taken intermittently or needs to be taken in one block of time.

2. Reasons for Leave. The guidelines clarify that EPSL can be taken for any combination of qualifying reasons, but that no employee is entitled to receive more than 80 hours of leave.

3. Inclusion of overtime. The guidelines also clarify that overtime hours worked must be included in calculating the number hours paid to an employee in a single workweek (subject to the 80 hour cap) if the employee normally would have been scheduled to work overtime in that week.


The Oregon Employment Department has made additional modifications to its temporary rules concerning eligibility for unemployment benefits related to COVID-19. Detailed information is available at  (at “For COVID-19 questions related to employer and job seeker programs and services” click here.)

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