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Employment Alert – Air Quality Guidance, New COVID-19 Leave Program And OFLA Expansion
September 21, 2020
By Peter S. Hicks, Attorney

In response to the ongoing Coronavirus Pandemic and the new threat posed by the unprecedented wildfires, Oregon has enacted a number of new measures.  These include: (1) new guidance from Oregon OSHA (OSHA) and the Oregon Health Authority (OHA) regarding outdoor work activities; (2) a new paid leave program from the Oregon Department of Business and Consumer Affairs (DCBS) and Oregon Department of Revenue (DOR) for employees that need to quarantine; and (3) amendments to the Oregon Administrative Rules (OAR) supplementing the Oregon Family Leave Act (OFLA). 

1.  OSHA-OHA Guidance.

The new OSHA-OHA guidelines have been issued in response to the hazardous air quality caused by the wildfires.  Given that the largest fires are expected to continue burning until the winter rain and snow set in, employers need to be aware of these guidelines and take appropriate steps to comply. 

The OSHA-OHA guidelines require employers to stop or delay outside work, or take steps to protect workers when air quality reaches or exceeds the “unhealthy” zone.  The guidance specifically lists farming harvests, construction, and outdoor activities requiring heavy and prolonged exertion as particularly risky activities and identifies the following measures to reduce risk:
  • Closing outdoor work activity when air quality in an area becomes “unhealthy,” or reaches an Air Quality Index of at least 151.
  • Allowing workers with underlying health conditions to stay home.
  • Re-arranging work schedules, hours, and tasks in a way that enables workers to get relief from smoky outdoor air.
  • Providing N95 masks, where and when appropriate, and informing workers of their proper use and care.
OSHA-OHA encourages employers to monitor the state’s Air Quality Index (AQI) Map and air quality ratings at the beginning of each shift and every hour into the shift.  Employers and workers are also encouraged to check a building’s ventilation system to make sure it has received routine maintenance, such as filter changes to monitor indoor air quality.  Face masks, face shields, and face coverings are not considered acceptable replacements for improved air quality.
Finally, the guidance notes employers must be mindful that workers that have been directed to prepare to evacuate may need to stay home from work to help their families with those preparations. 

2.  COVID-19 Temporary Paid Leave Program
 
On September 14, 2020, the Oregon Department of Consumer and Business Services (DCBS) announced a new program starting September 16, 2020, for individuals that need to quarantine or isolate due to COVID-19 exposure, but do not have access to COVID-19-related leave available.  People who qualify receive $120 per day for up to 10 working days ($1,200 total) for the time required to quarantine.
 
To be eligible, individuals must meet the following requirements:
 
  • Work in Oregon and be required to file an Oregon personal income tax return.
  • Be directed to quarantine by a local or tribal public health authority or health care provider because of exposure to someone who has been infected, or isolating because you have COVID-19-related symptoms and are seeking a medical diagnosis.
  • Be unable to work (including telework) due to quarantine or isolation.
  • Earn less than $60,000 individually or $120,000 jointly in 2020.
  • Work for an employer that does not provide COVID-19-related paid sick leave or, if the employer provides COVID-19-related paid sick leave, have exhausted all available such leave.
  • Not be applying for or receiving unemployment insurance benefits for the time off due to quarantine or isolation.
  • Not be not applying for or receiving workers’ compensation claim benefits due to quarantine or isolation.
  • Not be seeking or using benefits from similar COVID-19 quarantine relief programs in Oregon or another state.
  • Not be applying for or receiving other forms of paid leave from your employer during your quarantine or isolation, such as banked sick leave or vacation leave.
  • Not be laid off or furloughed by your employer.
  • Have notified your employer that you need to quarantine or isolate.

The program is available only for quarantine periods in place on or after September 16, 2020, and applicants can claim only one quarantine period.  Employees can apply online at oregon.gov/covidpaidleave.  The website also contains an eligibility quiz. 

3.  OAR Amendments to OFLA.

Also on September 14, 2020, the Oregon Bureau of Labor and Industries (BOLI) enacted a temporary amendment to OAR 839-009-0210 to address ongoing school closures.  This amendment expands the definition of “Child Care Provider” for sick child leave to include individuals who provide child care at no cost without a license on a regular basis such as a grandparent, aunt, uncle, or neighbor.

The amendment also expanded the definition of “closure” during a statewide public health emergency to include closures that are ongoing, intermittent, or recurring that restricts physical access to a child’s school or child care provider.

Significantly, OAR 839-09-0250 was amended to add that an employer may not request medical verification of the need for sick child leave due to closure of child’s school or child care provider.  However, the employer can request the name of the child being cared for, name of school or child care provider that has closed, and statement from the employee that no other family member is willing and able to care for the child.  If the child is older than 14, the employer can also require a statement showing that special circumstances exist requiring care of that child during daylight hours.

OAR 839-009-0230 was also permanently amended to address ongoing school closures.  The permanent amendment explicitly provides that sick child leave includes absence to care for an employee’s child whose school or child care provider has been closed in conjunction with a statewide public health emergency declared by a public health official.

Remember – these amendments are only to OFLA.  The COVID-19 related leaves available under Families First Coronavirus Response Act (FFCRA) for Emergency Paid Sick Leave and the Expansion of the Family and Medical Leave Act remain unchanged.  Similarly, employees remain entitled to leave under the Oregon Sick Leave Act. 

Peter Hicks is an employment and commercial litigation attorney at Jordan Ramis PC. He can be reached at (541) 797-2079 or peter.hicks@jordanramis.com.

Thank you for your interest in this article. The information contained in this article is for the general interest of our readers and should not be regarded as legal advice. If you have questions, or to obtain more information on this topic, please contact an attorney in our employment law practice group.