(Image by Klaus Hausmann from Pixabay)
On November 13, 2020, Oregon Governor Kate Brown issued a travel advisory urging visitors entering the state, or returning home from travel outside of the state, to self-quarantine for 14 days upon return. As a result, employers are wondering how to handle requests or disclosures from employees who plan to travel.
Does the Governor’s travel advisory create a state-mandated requirement?
No. Despite urging residents to stay local, the state’s travel advisory is just that — advisory. The currently operative version of the travel advisory does not require an employer to force an employee to quarantine for 14 days before returning to the physical worksite.
Even if it is not a legal requirement, can I create a policy mandating self-quarantine?
Yes. So long as employers are applying the policy consistently, they may create a policy which requires employees to self-isolate in the event that they choose to travel out of state for the holidays. The policy may also require that employees disclose their intent to travel. A written travel policy should address the scenarios in which an employee may be required to self-isolate and for how long. A clear policy will let employees know if their planned trip would be implicated, and detail what they can expect upon return.
Aside from the state’s travel advisory, are there any other laws or regulations which might require quarantine?
Yes. For example, the Temporary Oregon OSHA rule that went into effect on November 16, 2020, mandates “medical removal.” This means that an employer must direct a worker to self-isolate whenever the Oregon Health Authority or other local public health agency recommends that a worker quarantine or isolate, e.g. due to an exposure identified through contact tracing. During this medical removal quarantine, the employer must allow the employee to work from home if suitable work is available and the employee’s condition does not prevent it.
Importantly, the employer cannot fill that position with another employee and thereby make it unavailable to the affected employee, who is entitled to return to their previous job duties following their quarantine. The job restoration rights for employees who take this emergency leave are the same as under FMLA.
If an employee requests to self-quarantine upon returning from travel, do I have to allow it?
Likely, yes. The Governor’s order implicates the Families First Coronavirus Response Act (FFCRA), which would allow the employee up to 80 hours of paid leave if the employee is quarantining subject to a state or local isolation order.
The Governor’s recommendations qualify as a state isolation order, and will serve as a qualifying reason for an employee to take paid leave under the FFCRA if they have not exhausted such leave already. Generally, the FFCRA states that covered employers must provide all employees with two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis. Note that paid leave under the FFCRA is not available to employees who are otherwise able to work remotely.
If I require an employee to self-quarantine, do I have to pay them while they stay home?
As stated above, in the event that an employee is unable to work remotely, and has not yet exhausted their paid leave allotment under the FFCRA, their 14-day period likely qualifies under the FFCRA, and they should be paid for that time.
In the event that an employee is unable to work remotely, and has exhausted their paid leave allotment under the FFCRA, employers may require non-exempt employees to use vacation, sick time or other paid time off (PTO) if FFCRA leave is unavailable to them. If an employee has no accrued PTO, they may need to take unpaid leave. In this case, the employee may be eligible for unemployment insurance benefits, Pandemic Unemployment Assistance (PUA) programs or Oregon’s COVID-19 Temporary Paid Leave Program.
Chris Morgan and Julie Preciado are employment attorneys at Barran Liebman LLP. For answers to additional COVID-19-related questions, contact them at 503-228-0500, or at cmorgan@barran.com or jpreciado@barran.com.
