By: James P. Sikora & Phillip J. Haberthur

Originally written and published for the Vancouver Business Journal on March 27, 2020.

As the effects of COVID-19 continue to spread, employers should be mindful of their obligations under federal, state or local law to provide certain forms of leave to employees who are affected by COVID-19. This Employment Law Bulletin provides a summary of common forms of leave available to employees in Washington and Oregon who may be unable to work because of COVID-19. We encourage employers to familiarize themselves with these leave laws, and to stay updated on the frequent changes and interpretations of these laws. Since the laws and regulatory environment is changing daily, we encourage you to obtain legal advice as needed.

1. Families First Coronavirus Response Act (FFCRA)

The President signed the FFCRA into law on March 18, 2020. The FFCRA goes into effect on April 2, 2020. Employers should be aware of, and prepare to comply with, the relevant portions of the FFCRA that provide job-protected leave and pay for employees affected by COVID-19.

Emergency Family and Medical Leave Act

The FFCRA provides a temporary expansion of FMLA under the Emergency Family and Medical Leave Act. This temporary expansion applies through December 31, 2020, and allows 12 weeks of FMLA leave for a “qualifying need related to a public health emergency,” which includes situations in which:

• An employee is unable to work or telework due to the need to care for a son or daughter under the age of 18 because their child’s school or childcare facility is closed; or

• The child’s usual childcare provider is unavailable.

Employers with fewer than 500 employees are covered by this temporary FMLA expansion. Any full-time or part-time employee who has been employed for at least 30 calendar days is eligible. Employers may elect to exclude certain employees who are health care providers or emergency responders. The FFCRA authorizes the Secretary of Labor to issue guidelines exempting businesses with fewer than 50 employees for whom this temporary FMLA expansion would “jeopardize the viability of the business.”

The first 10 days of leave are unpaid. An employee may elect (but is not required) to use accrued vacation, paid time off or sick leave (including emergency paid sick leave) during this 10-day period. After the initial 10-day period of unpaid leave under this temporary FMLA expansion, employees are to be paid by their employer the lesser of $200 per day or two-thirds of the employee’s regular rate of pay. Total benefits during the leave period are capped at $10,000.

Employees who take leave under the Emergency Family and Medical Leave Act are entitled to reinstatement to the same or equivalent position at the conclusion of the leave, unless:

• The employer has fewer than 25 employees;

• The position held by the employee at the start of leave no longer exists due to economic circumstances or operational changes caused by a public health emergency (e.g., a reduction in business caused by COVID-19); and

• The employer makes reasonable efforts to contact the employee for up to one year following the end of the public health emergency, or 12 weeks after the leave commenced, whichever is earlier, if an equivalent position becomes available.

Emergency Paid Sick Leave Act

The FFCRA also provides paid sick leave under the Emergency Paid Sick Leave Act. A covered employer must provide paid sick leave to an employee who is unable to work or telework because:

• The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;

• The employee has been advised by a health care provider to self-quarantine because of COVID-19;

• The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;

• The employee is caring for an individual subject or advised to quarantine or isolate;

• The employee is caring for a son or daughter whose school or place of care is closed, or the childcare provider is unavailable, due to COVID-19 precautions; or

• The employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

All employees are immediately eligible for paid sick leave, regardless of duration of employment. Full-time employees are eligible for 80 hours of paid sick leave. Part-time employees are eligible for paid sick leave on a pro rata basis based on the number of hours the employee works.

Paid sick leave for an employee’s own illness or quarantine is paid at an employee’s regular rate of pay with a maximum of $511 per day ($5,110 in total). Paid sick leave to care for others or school closures is paid at two-thirds of an employee’s regular rate of pay with a maximum of $200 per day ($2,000 in total).

Employers cannot require employees to use other forms of paid leave (e.g., PTO or vacation) before using sick leave under the Emergency Paid Sick Leave Act. Further, sick leave under the Emergency Paid Sick Leave Act is in addition to, and does not diminish, other paid leaves available under employer policies; collective bargaining agreements; or other federal, state, or local laws.

Tax Credits

The FFCRA provides for a refundable tax credit for employers paying paid FMLA and paid emergency sick leave. The tax credit is equal to 100% of amounts paid in each calendar quarter. Employers should establish pay codes for paid leave benefits paid under the FFCRA for tracking purposes.

2. Washington Paid Family and Medical Leave (WPFML)

Eligible employees became eligible to take leave under WPFML starting on January 1, 2020. Qualifying reasons for leave include an employee’s own or a covered family member’s serious health condition. COVID-19 may or may not qualify as a serious health condition. A mild case of COVID-19 that does not require ongoing medical treatment may not qualify as a serious health condition. In contrast, a more serious case that involves ongoing medical treatment may qualify.

It is unclear at the moment how the Employment Security Department will apply WPFML to situations involving COVID-19. As a precautionary measure, employers should issue the required notice under WPFML when an employee has been absent for seven days for a reason related to COVID-19. This notice includes the potential availability of WPFML benefits. The Employment Security Department has published a “Statement of Employee Rights” for use by employers to provide the required notice. Employees who are laid off and placed on furlough as a result of COVID-19 will remain eligible to apply for benefits under WPFML.

3. Washington Paid Sick Leave

All non-exempt employees in Washington are entitled to accrue and use paid sick leave. Eligible employees may begin using paid sick leave on the 90th calendar day after the start of employment.

Qualifying reasons for use of paid sick leave include an employee’s own health condition or to provide care for a sick family member. Employees may also use paid sick leave when an employee’s place of business is closed by order of a public health official for any health-related reason or when an employee’s child’s school or place of care has been closed for such reasons.

Washington employers should track Washington paid sick leave separately from paid sick leave under the federal Emergency Paid Sick Leave Act. This will help employers track accrual and use of Washington paid sick leave, and use of paid sick leave under the federal Emergency Paid Sick Leave Act for purposes of the tax credit. Washington employers should also be mindful of the fact that new employees, who have been employed for fewer than 90 days, are not eligible to use Washington paid sick leave, but will be eligible to take paid sick leave under the federal Emergency Paid Sick Leave Act.

4. Oregon Paid Sick Leave

Employees in Oregon are also entitled to accrue and use paid sick leave. Employers with ten or more employees (six or more in Portland) must provide 1 hour of paid sick leave for every 30 hours an employee works. Employees may begin using paid sick leave on the 91st calendar day of employment.

Similar to Washington paid sick leave, qualifying reasons for use of paid sick leave in Oregon include an employee’s own health condition or to provide care for a sick family member. Employees may also use paid sick leave in the event of a public health emergency. The Oregon Bureau of Labor and Industries (BOLI) recently issued guidance regarding COVID-19 and paid sick leave. BOLI interprets the law to allow an employee to use paid sick leave if an employee’s child’s school is closed by order of a public health official for a public health emergency.

Oregon employers should also track Oregon paid sick leave separately from paid sick leave under the federal Emergency Paid Sick Leave Act, and remain mindful of the differences regarding use of paid sick leave for new employees under Oregon paid sick leave and the Federal Emergency Paid Sick Leave Act.

5. Oregon Family Leave Act (OFLA)

Eligible employees may take up to 12 weeks of unpaid family or medical leave under Oregon law. Employers with 25 or more employees are subject to OFLA. Qualifying reasons for use of unpaid leave under OFLA include an employee’s own serious health condition or to care for a qualifying family member with a serious health condition.

BOLI also issued a temporary rule, on March 18, 2020, to allow for use of leave under OFLA to care for an employee’s child whose school or place of care has been closed in conjunction with a statewide public health emergency declared by a public health official. This temporary rule will remain in effect through September 13, 2020.

Similar to WPFML, under OFLA, COVID-19 may or may not qualify as a serious health condition, depending on its severity. Employees taking leave under OFLA may use any paid sick leave, vacation, or PTO during the period of leave.

For more information, contact attorney James P. Sikora at james.sikora@landerholm.com or Phillip J. Haberthur at philh@landerholm.com.

The above should not be construed as specific legal advice and is intended for general information purposes only.