Paid and protected sick leave under closures to prevent coronavirus spread

Oregon Sick Leave Law

Oregon Sick Leave Law

Creatives at agencies, design studios, in-house creative departments, and those operating their own shops alike all need to know the law on time off. Whether you are caring for yourself or a family member who is affected by COVID-19 or another illness, healthy, or just kept home by mandatory school or work closures, the applicable statutes and regulations can seem confusing and complex. In the current coronavirus situation, the most relevant of these is likely the Oregon sick leave law.

Under ORS 653.601, an employee may use earned sick time for him or herself or a family member for illness, need for medical diagnosis or treatment, or need for preventive medical care. ORS 653.616 specifically provides that sick time may also be used “in the event of a public health emergency.”1 In the public health emergency context, illness of the person using sick leave (or that of his or her family member) is not a requirement.

On March 8, 2020, Oregon Governor Kate Brown declared a “state of emergency” based on the threat to public health and safety created by the infectious coronavirus that causes the respiratory disease COVID-19.2 On March 12, the Governor issued a second Executive Order “prohibiting large social, spiritual, and recreational gatherings of 250 people or more, statewide.” The March 12 Executive Order expressly excluded “school attendance, places of employment, grocery stores, [and] retail stores” from the prohibition.3 The same day, the Governor issued guidance on updated mitigation measures “to protect [Oregon’s] health care system capacity.”4 The guidance advised schools to cancel or limit all non-essential gatherings but did not mandate school closures.

On the evening of March 12, however, the Governor announced the statewide closure of Oregon K-12 schools from Monday, March 16 through Tuesday, March 31.5

It does not appear that the Governor has specifically declared a state of “public health emergency” as authorized by ORS 433.441 and required by the Oregon sick leave law to allow the use of sick leave regardless of illness (to, for example, care for an apparently healthy child whose school has been closed). The announcement of the closures cited the fact that “it has now become impossible to functionally operate schools due to workforce issues and student absences.”

While the precise statute authorizing a public health emergency declaration was not expressly cited as the basis for the declarations and closures, we note that the March 8, 2020, emergency declaration cited only the “threat to public health and safety” as constituting a statewide emergency. Further, the same Executive Order directed the Oregon Health Authority to take all necessary actions under ORS 433.443 (which authorizes the agency to act “[d]uring a public health emergency declared under ORS 433.441.”6 ISS Law thus believes that the rapidly evolving coronavirus situation will likely qualify as a basis for ORS 653.616 sick leave.

Employees eligible for paid sick leave under ORS 653.616 accrue at least one hour of paid sick time for every 30 hours the employee works or 1-1/3 hours for every 40 hours the employee works. Employers may limit the number of hours of paid sick time that employees may accrue to 40 hours per year. An employee is eligible is he or she works for an employer that employs at least 10 employees working anywhere in Oregon. Unpaid sick leave accrues at the same rate for those working under employers of fewer than 10 Oregon employees.7 The employee limits are lower under employers located in the City of Portland, with paid and unpaid sick leave accruing when at least six employees are hired anywhere in the state8

1  ORS 653.616(6).

2  Exec. Order 20-03 (Mar. 8, 2020).

3  Exec. Order 20-05 (Mar. 12, 2020).

4  Press Release, Oregon Governor’s Office, State of Oregon Updated Mitigation Measures on Coronavirus Reponse (Mar. 12, 2020).

5  Press Release, Oregon Governor’s Office, Governor Kate Brown Announces Statewide School Closure for Students in Oregon from Monday, March 16 through Tuesday, March 31 (Mar. 12, 2020).

6  ORS 433.443.

7  ORS 653.606(1)(a)-(b).

8  ORS 653.606(13)(b).