Applying Governor Brown's Stay-At-Home Order

In the last two weeks since my previous post on dealing with coronavirus, developments have moved rapidly and alarmingly. The need to minimize social contact to prevent the public health crisis from becoming a disaster has grown urgent and today, Oregon’s governor issued a stay-at-home order. Most violations of this order will be treated as Class C misdemeanors (meaning punishable through the criminal justice system with up to thirty days’ imprisonment in a jail, and/or a fine of up to $1,250). It’s not immediately clear how and to what extent the order will be policed and enforced, but my advice will always be to comply with the law regardless of the enforcement mechanism.

Remote Work

Previously, I suggested that employers move towards remote work, and look at the health emergency as an opportunity to incorporate workers using technology to work from home as a benefit and possibly a long-term means of overhead reduction. That advice not only still applies, it’s now mandatory:

9. Pursuant to ORS 433.441(3)(a), (b), (d) and (f), ORS 401.168(1), and ORS 401.188(1) to (3), and effective March 25, 2020, all businesses and non-profit entities with offices in Oregon shall facilitate telework and work-at-home by employees, to the maximum extent possible. Work in offices is prohibited whenever telework and work-at-home options are available, in light of position duties, availability of teleworking equipment, and network adequacy.

10. When telework and work-from-home options are not available, businesses and non-profits must designate an employee or officer to establish, implement, and enforce social distancing policies, consistent with guidance from the Oregon Health Authority. Such policies also must address how the business or non-profit will maintain social distancing protocols for business-critical visitors.

Compliance With Paragraphs 9 and 10

  • If you’ve not already done so, name someone, preferably the person whose actual job duties most closely resembles an “operations manager,” as your “remote work officer,” and empower that person to implement policies and ideas to maximize the number of people who can do their work remotely from home.
    • The remote work officer should spend some time writing internal memos documenting what’s being done to facilitate remote work. This should involve an assessment of the physical demands of each job classification in the workplace, similar to your hopefully already-existent ADA survey of essential job functions. This time, however, you’re going to evaluate not for what it takes a human body to do the various jobs, but rather whether there is any tangible work product that is handled, created, or distributed within the workplace.
    • There should also be some research into what sorts of electronic and telecommunications capabilities can be reached and what they will cost. My general advice is “get people working from home as soon as possible now and worry about the cost later,” though I’m sure I don’t need to tell anyone in business that yes, cost matters for things. Rather, consider my guidance that some things which once may have seemed like luxuries are now closer to the necessity end of the cost-benefit spectrum, because things are different now than they were even a month ago.
  • As the employer, it is your non-delegable responsibility to see to it that all employees have the equipment necessary to do their jobs. If employees wish to use their own computers and internet connections to work from home, please confirm that they are choosing to do so in writing. Two additional thoughts within this area of concern:
    • Those employees whose home internet access is used for connectivity to work should be given a reasonable monthly stipend for a portion of their internet fee. This should be the same for all employees.
    • In two situations, you may need to scramble now to get computers and possibly connectivity equipment to your workers who will be going remote: first, for those who do not have or do not wish to use their personal equipment; second, for those who handle highly sensitive proprietary data. In both cases, it is your job as the employer to get a reasonable computer in their hands and equipment needed to get them hooked in to your office. If necessary, secure the services of an IT professional to assist these employees over the phone in setting things up.
  • You are within your rights to require employees to maintain regular working hours when they are online and engaged in work activities. Further, if you have provided computer equipment for work connectivity use, you are within your rights to require that this computer and other equipment be used only for work purposes.
    • You can discipline employees for violating these rules. But if there is a problem, I suggest that you consider allowing for a period of adjustment for people new to remote work, and understanding that people are operating under considerable non-work stress including financial pressures, concerns about their families’ health, difficulties attending to children (see below for unavailability of professional day care); and emotional effects of minimized social contact. I suggest that you use graduated, progressive discipline, particularly for people new to remote working.
  • There’s some work that just can’t be done remotely. Manufacturing and construction sectors, I’m looking at you here. This order requires that you and your supervisory staff take a careful and creative look at how the actual work gets done. Get out those problem-solving tools, and figure out how the work can get done with no individual person standing closer than six feet to anyone else. I can’t provide more specific advice than that in a generalized web post; you need to be smart, creative, and safe. Supervisors need to be coached to remain aware of that requirement at all times. Further, if the nature of the work is such that you cannot avoid having people within six feet of one another, masks and gloves are a minimum necessity. Regulations and state guidance may change quickly as more and more is discovered about the virus, so stay in touch with the Oregon Health Authority.
  • Employees who have tested positive for the coronavirus or who show signs of cold- or flu-like symptoms should not be allowed on the worksite, period. Treat these employees as though they were medically disabled from work (meaning, among other things, don’t terminate their employment).

Mandatory Closures

The Governor has ordered some businesses closed outright. These include:

  • Entertainment Sector: amusement parks; aquariums; arcades; bowling alleys; card rooms (tribal gambling facilities excepted); dance studios; party places (including jumping gyms and laser tag); museums; skating rinks; senior activity centers; ski resorts; social and private clubs; tennis clubs; theaters; yoga studios; youth clubs.
  • Hospitality Sector: bars; brewpubs; cafes; coffee shops; food courts; hookah bars; restaurants; wine bars; another other businesses offering food or drink, are closed for in-house consumption. Such a business may, if it chooses, open for take-out or delivery service only. Not mentioned, but in my opinion likely included or to be included in this category, are marijuana dispensaries. Campgrounds are closed immediately, except for RV parks and other functionally-permanent housing facilities, and camp hosts or veterans in state campgrounds.
  • Retail Sector: art galleries (to the extent that they are open without appointment; it is unclear from the order whether appointment availability is still allowed with social distancing); furniture stores; jewelry shops (excepting pick-up or delivery service); malls both indoor and outdoor, meaning retail complexes where there are multiple stores and restaurants in a single area.
  • Personal Services Sector: barber shops; cosmetic stores; esthetician practices; fitness studios (including climbing gyms); gyms; hair salons; non-medical massage therapy; nail salons; spas (whether characterized as medical or cosmetic); tanning salons; tattoo and piercing parlors.
    • Daycare and Child Care: Most such facilities are closed through April 28, 2020. In order to remain open, a child care business must: (a) keep children in separate classrooms with maximum stable groups of 10 or fewer children — meaning the same group of 10 or fewer children are placed together every day; and (b) the childcare needs of first responders, emergency workers, health care professionals, and critical operations staff and essential personnel. Exceptions may be granted by the Oregon Department of Education as well, on a case-by-case basis. If your facility cannot comply with these conditions, you need to close. Pay attention as April 28, 2020 approaches for updates to this order.

Malls and other business facilities may remain open only for providing food, grocery, health care, medical, pharmacy, or pet store services. Those businesses must implement and enforce social distancing guidelines. I’ve seen some grocery stores already taping off standing positions for patrons to keep them distanced in line. Not every customer has figured that out and social distancing is new for them too, so it’s easy for people to forget. Stanchions and ribbons may help guide customers. Have employees direct customers in how to keep distancing.

If your business falls within or even adjacent to the closed businesses on this list, you’re basically shut down until further notice. Restaurants and other food service providers need to carefully consider the degree to which they can either provide delivery or take-out on their own or partner up with one or more of the food delivery brokers like GrubHub or Caviar, and operate. I have seen many establishments shut down completely, apparently calculating that they would not make enough money with only take-out or delivery for such activities to be profitable. That’s your business call.

But if you’re going to close your doors, be careful about how you handle employee relations doing this. At a minimum, you need to have employees paid up for work which they’ve already earned their pay.

In a lot of cases, employers are going to find they can’t afford to keep the payroll running, especially with operations limited or suspended. Some employers in that situation have laid off their employees, which I disagree with. I would prefer to see my clients call a closure a “furlough,” which indicates that the work stoppage is not the employee’s fault and preserves the existence of the employment relationship for the future.

When announcing the furlough, try hard to not vent your own frustrations and anxieties as you break the bad news: they’re already on edge enough and have dreaded this announcement from you. If they lash out or are otherwise unpleasant, sympathy and apology are better attitudes for you to manifest than defensiveness or anger. You want to preserve your relationship with your employees for later; this situation seems dire but it is temporary and you’re going to want your people back when you’re ready and permitted to open your doors again.

When Does This End?

The order does not have an expiration date for most of its provisions, excepting the childcare/day care facility exception. This is appropriate considering the magnitude of the crisis we’re confronting, as a community, and as a nation.

I would plan on the order being in effect until at least the end of April. It might be longer than that, depending on how events unfold. If it’s less than that, great.

Political events are moving quickly, so pay close attention to the news coming out of Salem and Washington D.C. These are hardships that you’re being asked to bear because of your role as an employer; there may be some relief coming as well. As of today, I can’t report on any of them but do pay attention because it appears that there is, if nothing else, generalized agreement on getting some sort of relief out to businesses rather than requiring them to hold the bag on everything.

Chances are good that your office and main workplaces are closed or nearly so. That doesn’t necessarily mean that your business is closed, though: whatever work can be done at home, should be done at home. Get computers to your people and get them doing their jobs from home ASAP.

A lot of this is tough, scary stuff. Some of you will have to confront whether you can keep your people on payroll during this time. As I mentioned before, the better employment practices suggest being compassionate with your employees even as you do what’s necessary from a business perspective, and remembering that you’re going to want the employees back when this is all over. Now is the time you can build employee loyalty, with whatever resources you’ve got — and you certainly have empathy and respect even if your cash flow was already on the knife’s edge before the crisis.

Most of all: stay healthy, and try to remember that this is not a permanent state of affairs. We will get through this and get back to work. I’ll be there for you in the meantime, working from home myself; I’ll be there for you when it’s time to get back to business as usual.