Employment Law FAQ

Can I be laid off because of the COVID-19 pandemic?

Yes, a lay off would be lawful as long as the decision is made for business reasons. It would not be lawful if it the decision was actually based on you having a disability, your status as a member of a protected class or because you have engaged in a protected activity. Protected classes include race, color, religion, sex, sexual orientation, national origin, marital status and age. Protected activities include seeking protected family medical leave, whistleblowing, invoking the workers’ compensation system and making a wage complaint. If you believe you have been laid off or terminated because of your protected class or protected activity, you should speak with a lawyer.

For example, if you are of Asian descent and your employer tells you that your employment is ending for economic reasons because of the pandemic, but only employees of Asian descent are being laid off, this could be discriminatory, and you should speak with a lawyer.

As another example, if you are a non-essential worker and complain that your employer is making you come to work when you could work remotely (a violation of Governor Kate Brown’s Executive Order 20-12), and are then terminated because you made that complaint, you should speak with a lawyer.

Will I be able to collect unemployment if my employment ends because of the COVID-19 pandemic? And how much will it be?

Yes, you can file a claim for unemployment benefits with the Oregon Employment Department if your employer ends your employment due to the COVID-19 pandemic. You can also file a claim for unemployment benefits if you are unable to work because of the coronavirus in certain circumstances (explained in detail below).

Oregon’s Employment Department adopted a temporary rule (OAR 471-030-0070) which applies retroactively from March 8, 2020, through September 12, 2020, to expand the availability of unemployment insurance benefits not only to workers who are laid off by their employers because of the pandemic, but also to those who are unable to work due to a “COVID-19 related situation.” A “COVID-19 related situation” can be any of the following:

• A person is unable to work because they are ill with the novel coronavirus;
• A person is unable to work because they have been potentially exposed to the novel coronavirus and have been subjected to a mandatory quarantine period;
• A person is unable to work because they have been advised by their health care provider or by advice issued by public health officials to self-quarantine due to possible risk of exposure to, or spread of, the novel coronavirus;
• A person is unable to work because their employer has ceased or curtailed operations due to the novel coronavirus, including closures or curtailments based on the direction or advice of the Governor or of public health officials;
• A person is unable to work because they have to stay home to care for a family member, or other person with whom they live or for whom they provide care, who is suffering from the novel coronavirus or subject to a mandatory quarantine;
• A person is unable to work because they have to stay home to care for a child due to the closure of schools, childcare providers, or similar facilities due to the novel coronavirus; and
• A person is being asked to work when it would require them to act in violation of a mandatory quarantine or Governor’s directive regarding the limitation of activities to limit the spread of the novel coronavirus.

According to the Oregon Employment Department, workers in temporary layoff situations related to COVID-19 can receive unemployment benefits without actively seeking work with other employers. Such employees “need to stay actively engaged with their current employer, and return to work when called back as the employer resumes operations.” Whether your employment is temporarily or permanently terminated, or whether you are unable to work due to a “COVID-19 related situation,” you must still meet other weekly eligibility requirements.

The amount of unemployment benefits you will receive is generally 1.25 percent of your earnings over a 12-month period. The Oregon Employment Department provides the following example on its website: “A worker who earned $12.50 per hour, working 40 hours per week for the past year would generally receive $325 per week in unemployment benefits. In 2020, benefit payments range from a minimum amount of $151 per week to a maximum amount of $648 per week.”

Oregon has seen a record number of claims filed due to the pandemic. The Oregon Employment Department has created a helpful web pageto keep the public updated on the latest information, including answers to frequently asked questions about COVID-19 related business layoffs, closures, and unemployment insurance benefits. As of March 24, 2020, unemployment insurance claims can only be filed using the agency’s online system or by calling 1-877-FILE-4-UI (1-877-345-3484). Offices are accepting visitors by appointment only in order to help slow the spread of COVID-19.

A new federal law, the Coronavirus Aid, Relief and Economic Security (CARES) Act, was just into law on March 27, 2020. It will extend state-level unemployment insurance by an additional 13 weeks, provide up to an additional $600 per week in supplemental unemployment benefits for up to four months for those who qualify, and extend unemployment benefits to self-employed workers, independent contractors (including “gig workers”), and those with limited work history. Individuals should apply for these temporary new federal benefits with their state’s Employment Department office.

What if my employer will not let me work from home?

Your employer is required to allow you to telework, if your work can be done remotely. This is mandated in Governor Brown’s Executive Order 20-12, which you can find here: https://www.oregon.gov/gov/admin/Pages/eo_20-12.aspx.

Keep in mind that your employer generally retains the ability to adjust your duties. Ask your employer for clarity on your job duties and attendance expectations, if you are at all unsure.

If your job duties must be completed on-site, and your employer is exempt from the Executive Order 20-12, then you should report to work, unless you meet the criteria for sick leave or family leave, or if the employer is unable to make the workplace safe. Executive Order 20-12 dictates the steps an employer must take to maintain workplace safety, including social distancing measures.

The law is currently unclear whether employees may obtain unemployment benefits because they don’t not feel safe reporting to work. The Oregon Employment Department has indicated that this may qualify you for unemployment benefits, although it is something that will be determined on the specific facts of each situation. Here is a helpful chart provided by the Employment Department regarding what benefits are available under different scenarios: https://www.oregon.gov/employ/Documents/EDPUB190_0320.pdf. You should speak with lawyer if you need advice on this issue.

How are “essential employees” designated?

Whether or not an employee is “essential” depends on whether the employee works for a business or entity that has been allowed to continue operation during the COVID-19 pandemic. If you are an employee of a business or entity that has been allowed to continue operation, you are likely considered essential. The following types of businesses are currently allowed to continue operation:

• Hospitals and health care;
• Grocery stores;
• Banks and Credit Unions;
• Pharmacies;
• Take-out/delivery from restaurants and bars;
• Pet stores;
• Gas stations;
• Certain retail stores;
• Child-care facilities and babysitters (only if abiding by new rules); and
• Indoor and outdoor malls (for the limited purpose of providing food, grocery, health care, medical, pharmacy, or pet store services).

In addition, TriMet, Portland Streetcar, United States Postal workers and private delivery companies such as UPS and FedEx have been allowed to continue operation.

Pursuant to Governor Brown’s Executive Order 20-12, the following types of businesses are currently not allowed to continue operation (with limited exceptions), and employees of such businesses are therefore likely considered to be non-essential:

• Amusement parks;
• Aquariums;
• Arcades;
• Art galleries (to the extent that they are open without appointment);
• Barber shops and hair salons;
• Bowling alleys;
• Cosmetic stores;
• Dance studios;
• Esthetician practices;
• Fraternal organization facilities;
• Furniture stores;
• Gyms and fitness studios (including climbing gyms);
• Hookah bars;
• Indoor and outdoor malls (i.e., all portions of a retail complex containing stores and restaurants in a single area);
• Indoor party places (including jumping gyms and laser tag);
• Jewelry shops and boutiques (unless they provide goods exclusively through pick-up or delivery service);
• Medical spas, facial spas, day spas, and non-medical massage therapy services;
• Museums;
• Nail and tanning salons;
• Non-tribal card rooms;
• Skating rinks;
• Senior activity centers;
• Ski resorts;
• Social and private clubs;
• Tattoo/piercing parlors;
• Tennis clubs;
• Theaters;
• Yoga studios; and
• Youth clubs.

An important exception to the temporary shut-down of the above businesses is that restaurants, bars, taverns, brew pubs, wine bars, cafes, food courts, coffee shops, or other similar establishments are currently allowed to offer food or drink for take-out or delivery service only; employees working in this capacity are therefore likely considered essential.

Note that according to Governor Brown’s Executive Order 20-12, “subject to approval by the Governor, the Oregon Health Authority has the authority to determine if additional business closures are necessary to slow the spread of COVID-19 during the ongoing state of emergency.” You can check on the status of closures on the Governor’s website page here: https://govstatus.egov.com/or-covid-19. Additional closures may mean that employees of such businesses will be considered non-essential.

What if my employer does not enforce social distancing?

If you believe that your employer is not in compliance with Governor Brown’s Executive Order 20-12, you should direct your workplace safety complaints to the Oregon Occupational Safety and Health Division (Oregon OSHA or OR-OSHA), which has the authority to enforce the requirements of the Governor’s executive orders as they relate to potential worker exposure to COVID-19. For further information or to file a Complaint, go to: https://osha.oregon.gov/Pages/contactus.aspx. For answers to questions about enforcement of rules and directives related to COVID-19, go to Oregon OSHA’s FAQs posted on their website: https://osha.oregon.gov/Documents/COVID-19-scope-for-Oregon-OSHA.pdf.

Retaliation for making a good-faith safety complaint to OR-OSHA is prohibited by law.

Employees may qualify for unemployment benefits if they are not working because they believe the employer is unable to provide a safe working environment in compliance with Governor Brown’s Executive Order 20-12 and the employer’s general duty to provide a safe working environment. Any such determination will be made on an individual basis by the Oregon Employment Department. Check the Oregon Employment Department’s page for information on this issue and other frequently asked questions here: https://govstatus.egov.com/ORUnemployment_COVID19.

What if I have tested positive for COVID-19 and believe I contracted it in my workplace?

If you have tested positive for COVID-19 and believe you contracted it in your workplace, you should contact your health care provider and report your status to your employer as soon as possible. You can also contact the Workers’ Compensation Division of the Department of Consumer and Business Services for information on filing a workers’ compensation claim by telephone at 800-452-0288 or via email at workcomp.questions@oregon.gov. Currently, all regular workers’ compensation deadlines and processes remain in place, with the exception of the Workers Compensation Board transitioning to telephone hearings instead of in-person appearances.

Legal Editors:  Caitlin Dolan, Patricia Pascone and Jovanna Patrick, March 2020.