The Local Government Law Group
From our 2020 Special Edition e-newsletter
Below we provide you some general guidance regarding leave issues and COVID-19. Since many leave issues are dependent on the facts of your individual situation, we cannot provide legal advice on these issues through this article. Please do call us if you have questions about your individual leave policies and practices.
- Know your policies. Review your leave policies. You’d be surprised how much guidance and information is already in your policies. Don’t forget to review and reconcile your collective bargaining agreements or police and fire SOPs, which can sometimes provide different standards than your personnel policies. After your review, if you believe that some of your policies or practices may conflict with each other or if they don’t provide clear guidance, call us and we can work through the ambiguities with you.
- Know which leave laws your government must follow. Call us if you would like more information regarding this matter. Generally speaking, here is a simple breakdown:
- FMLA provides up to 12 weeks of unpaid, protected leave and only applies if your government has 50 or more employees within 75 miles of your worksite.
- OFLA provides up to 12 weeks of unpaid, protected leave and applies to employers with 25 or more employees in Oregon.
- Oregon Sick Leave Law provides 40 hours of unpaid, protected leave and applies to all employers who do not already have a comparable or better sick leave program.
- Oregon Sick Leave Law provides 40 hours of paid, protected leave and applies to employers who do not already have a comparable or better sick leave program who employ at least 10 employees (6 in Portland).
Once you have determined which laws apply to your government, then you must apply them. Applying the above laws can be tricky. Please call us or an HR professional for assistance if you need help. All employees must meet the individual laws’ eligibility requirements to qualify for the leave benefits, which generally include working for a defined period of time and certifying that the employee or a qualifying family member has a serious health condition. Generally speaking, OFLA and FMLA offer 12 weeks of unpaid protected leave for qualified employees, but under certain conditions the protected leave can be extended for up to 36 weeks. Remember also that Oregon’s Sick Leave Law allows a qualified employee to take sick leave to care for well children whose schools have been closed by this emergency.
- Consider the Details in Advance. After reviewing your policies and determining which laws apply to you, discuss the following questions with your leadership team, which should include an employment lawyer or HR professional to help guide you:o Who are your critical employees and how will they continue to provide critical services?
o If an employee needs time off because they are sick/exposed or need to care for sick children or a spouse and they have no accumulated paid sick leave, can they use vacation or other leave? In what order? Do they need special permission to proceed out of order?
o Do you have any employees who have banked excessive sick or vacation leave? Is now a good time to require them to burn it?
o Will you allow some or all employees to go “in the hole” regarding their leave accounts? If so, how much and under what conditions? If you make a distinction between employees, what are the criteria you are using?
o If you are making any changes to your policies or practices, do you need to bargain them with your union?
o If our office closes, will employee time away from work be paid or unpaid?
o If I come in to work and am told to leave, will my time away from work be paid or unpaid?
o If I’m not sick and my family is not sick, but I need time off because my kids’ school is closed, can I take it? Will it be paid or unpaid?
o How will you apply your leave donation policies during this time?
o What are our telecommuting policies? Do they apply to all employees? Do I need to call in or track my time while telecommuting? What are the job expectations for telecommuting? What technology assistance do I need to telecommute? What confidentiality concerns may arise with some telecommuting employees.