Changes to Oregon Unemployment Insurance and Oregon Family Leave Act in Light of COVID-19

On March 18, 2020, Oregon issued temporary rules to help employees impacted by COVID-19. The Oregon Employment Department issued temporary rules expanding the availability of unemployment insurance to those impacted by COVID-19, while the Oregon Bureau of Labor and Industries (“BOLI”) issued a temporary rule expanding the availability of the Oregon Family Leave Act (“OFLA”) to parents whose children are impacted by school or day-care closures.

Temporary Expansion of Unemployment Insurance

Among other things, the temporary rules provide that individuals whose employment is terminated or who voluntarily quit work for a “COVID-19 related situation” are still eligible for unemployment benefits if they meet other weekly eligibility requirements. A “COVID-19 related situation” includes individuals who are unable to work because:

• They are ill with the novel coronavirus or because they have been quarantined as a result of exposure to the virus;
• Public health officials or their own health care provider have advised them to self-quarantine;
• They have to stay home to care for a family member or other household member for whom they provide care, if that individual has COVID-19 or is subject to a mandatory quarantine.
• Their employer has stopped or decreased operations due to the novel coronavirus.
• They have to stay home to care for a child whose school or day care is closed. (This change is significant in light of Governor Brown’s recent directive that all K-12 schools are closed through at least April 28, 2020.)

Typically, in order to receive unemployment benefits, individuals must be able and available to work. The temporary rules modify that standard to allow individuals to remain eligible even if they are too sick to work, if they are quarantined on the advice of their health care provider or public health officials, if they are staying home due to school or daycare closures, or if they are staying home to care for COVID-19-impacted family members.

The temporary rules also modify the requirement that an individual be actively seeking work to be eligible for benefits. Now, an individual need not be actively seeking work if they and their employer intend for the individual to resume work for their employer “when COVID-19 related situations permit.”

The new rules are retroactive to March 8, 2020, when Governor Brown declared the statewide emergency in Oregon. The new rules do not change the existing waiting period to qualify for unemployment benefits, nor do they address the increased tax burden that employers will face as more of their employees apply and are eligible for unemployment.

Temporary Expansion of OFLA For Parents Impacted By COVID-19

BOLI’s temporary rule expands the definition of “sick child leave” to include an “absence 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.” In light of Governor Brown’s recent order expanding K-12 school closures through April 28, 2020, this makes all otherwise OFLA-eligible employees with school aged children immediately eligible for a protected, unpaid leave of absence under OFLA.

We believe that BOLI’s new rule extends beyond what is authorized by the underlying OFLA statute.

As a practical matter, for employers covered by both OFLA and the new Families First Coronavirus Response Act that provides for paid family leave, the unpaid OFLA leave and the paid FMLA would run concurrently in most circumstances.