Just a quick reminder: I’m still working! Like a lot of folks, I’m working from home these days. The staff at the office forwards my mail incoming to me, and I’m doing everything out of my home office.
What this means for clients is that I’m available, I’m reading your e-mails, and we are proceeding with the work on your matter.
What this means for people looking for legal advice — prospective clients — is that I’m available, but you may have to go through the inconvenience of leaving a voice mail so I can return your call from home.
I count myself fortunate that I’m feeling healthy so far, have no trials or critical hearings scheduled for several months, and have the ability to do nearly everything from home that I could in the office. My heart goes out to those who are not so well-off. The public health crisis has already cost our nation far too many lives and far too many jobs.
Safety is the most important thing – without that, we can’t have anything else. And when it gets to be time for folks to get back to work, there are a lot of things we’re going to have to look at:
- If you laid people off, it’s a good time RIGHT NOW to reach out to them and let them you that they’re on your mind and you look forward to offering them their jobs back when this is all over.
- If you’re in a critical, impacted industry that’s up and running right now, EVERY DAY is an opportunity to address workplace safety issues because your workplace is likely to be a vector. How will you keep people separate, safe, and not at risk of transmitting the virus? Even if your workers are asymptomatic, they might inadvertently carry the virus home and get someone there sick.
- If you’ve got people working at home, remember it’s possible to fairly and productively evaluate how folks are doing, as well as to find the time to give them pep talks and training. If this is working out, and you’re getting things done, maybe there’s some long-term lemonade to be made out of having learned remote work?
- Federal Law: A lot of resources have been made available, and it’s a matter of the bureaucracy finding ways to get them to the people who need them. The U.S. Small Business Administration is administering grants through the mechanism of bank loans, which is not super-efficient, but will provide some relief to your workers. There is also direct assistance to most businesses available through the SBA. Employers with more than 50 (not 500) employees are affected by an expansion of FMLA — complying with a state quarantine order triggers eligibility; the first two weeks may be unpaid but the remaining ten of the twelve weeks of FMLA leave must be paid at the rate of at least two-thirds regular pay, and if an employee is sick themselves or has a child or family member who becomes sick, there may be a requirement to pay 80 hours of sick leave. However, note that wages paid under this emergency law are likely to be considered refundable tax credits.
- Oregon Law: I won’t repeat all of the information on BOLI’s website for coronavirus reminders here, but I will highlight some things for my Oregon clients: the threshold for paid sick time is six employees in the City of Portland and ten employees in all other parts of Oregon. Employees who have worked more than 90 days get the sick time, which accrues either at a front-loaded 40 hour hours per year or 1 hour for every 30 hours worked. When that time runs out, the employee can then go on Oregon Family Leave, with familiar thresholds of 25 employees who work a minimum 25 hours per week on average. The emergency rule from BOLI on OFLA availability will apply through mid-September.
- California Law: As in Oregon, paid sick leave can be used for COVID quarantine compliance or child care in the wake of a school closure. Once paid leave is exhausted, and any other PTO or vacation time has been used, an employee may claim up to twelve weeks’ unpaid time under the California Family Leave Act. Employees working from home, even with reduced hours, are generally required to be paid at least two hours’ pay per work day regardless of the amount of time logged in. (Employers may, however, use discipline to make sure that the claimed amount of work is actually being done, though I counsel against being too heavy-handed with this.) And it may be more useful to you to reduce your employees’ hours rather than laying them off, and offsetting the impact to their income through the Cal-EDD’s Shared Work Program.
- In all places, be extra careful about claims of retaliation for employees claiming benefits or exercising claimed rights during this time! Be extra careful when it comes time to hire people back or re-open the workplace! The likeliest place for litigation that I anticipate is employers failing to take employees back when the crisis passes: these will almost certainly be treated as terminations, and employers will face all the same sorts of hazards and concerns of terminating employees then as they did before the crisis.
Finally, just as of today, we learn that the governors of California, Oregon, and Washington have agreed to lift the stay-at-home orders applicable to workplaces and easing the temporary regulations to get through the public health crisis in each of these states, only in concert with one another. The entire West Coast will open up all at once, and until then, not at all.
All of this is very frustrating for those of us anxious to get back to business as usual — and we all are! — but when we take a few moments and look at what’s going on in other parts of the country, it’s a sobering reminder of why we’re doing all of this.
Stay healthy, everyone, and be thoughtful and careful with your employment decisions. I’m here for when you need me.