On Wednesday, the Oregon Employment Department (OED) issued a temporary rule related to Unemployment Insurance (UI) benefits in light of various actions by employers and employees in response to COVID-19 and the Governor’s declaration of a statewide emergency on March 8, 2020. In ordinary times, to claim and receive UI benefits, workers must be available to work, able to work, and must actively look for work. In light of the fact that these are anything but normal times, the temporary rule provides more flexibility to address the unique situations arising due to COVID-19 and the actions to slow its spread. The provisions of the rule apply retroactively to March 8, 2020, when the Governor declared the statewide emergency.

There are five provisions of the temporary rule. The text of the rule is available here.

1.  Designation of “COVID-19 Related Situations”
Under the rule, the following situations are deemed to be “COVID-19 related situations”:

• 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, child care 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.

2. Disqualification from UI Benefits
Typically workers are disqualified from UI benefits under certain scenarios. The rule provides that people who are discharged, quit work, fail to apply for work when referred by the employment office or the director, or fail to accept an offer of work because of a COVID-19 related situation are not disqualified from receiving UI benefits (although they still must meet the weekly eligibility requirements to receive benefits).

3. Ability to Work
Typically a person must be able to work in order to receive UI benefits. The rule provides that a person will not be deemed unable to work because:

• They are quarantined 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, but they are not sick;
• They are home sick because of the novel coronavirus or a condition with similar flu-like symptoms and they have not turned down an offer of work since they began being at home due to the sickness; or
• They are hospitalized, or in other institutionalized care, due to the novel coronavirus, but for less than half of the week, and they did not turn down an offer to work that week.

The rule provides that a person is unable to work in a week if they are offered suitable work and do not accept it because they are sick with novel coronavirus, or a condition with similar flu-like symptoms.

4. Actively Seeking Work
Typically a person must be actively seeking work in order to receive UI benefits. A person will be considered actively seeking work if they are unemployed because of a COVID-19 related situation, or if their work search efforts are significantly impacted by the novel coronavirus, and:
(a) They and their employer intend on the person resuming work for their employer when COVID-19 related situations permit (they are “employer attached”) and the person stays in contact with their employer, as reasonably required by their employer, so they can return to work when the employer permits them to do so; or
(b) They or their employer do not intend for the employee to return to work for their employer (they are not “employer attached”) and the person is doing what they can to find employment.  

5. Available for Work
Typically a person must be available for work in order to receive UI benefits. A person will not be deemed unavailable for work because:

• They are staying in their home, or are quarantined, due to risk of exposure to, or spread of, the novel coronavirus at the advice of a health care provider or by advice issued by public health officials or by directive of a government official, even if their employer had work for them they could otherwise have performed; 
• They are home solely because they lack childcare for a child or children due to school or daycare closures or curtailments; or
• They are home to care for a family member due to the effects of novel coronavirus.

Takeaways for Employers
Employers should inform employees who are on temporary layoff or if there is a temporary closure of business due to COVID-19 that UI benefits may be available to them. This includes when an employer stops operation for a short period of time such as a cleaning following a coronavirus exposure or by government requirement. Employees will not need to seek work with other employers. However, they must be able to work, stay in contact with their employer, and be available to work when called back.​

An Alternative to Layoff
Employers may also wish to consider Oregon’s Work Share Program which provides an alternative for employers and workers who may be facing the prospect of a layoff. Instead of reducing staff, an employer reduces the hours of work for a group of workers and partial UI benefits are then paid to supplement workers' reduced wages. An employer must apply for the program by sending in a written plan to the OED that includes three or more eligible employees. Eligible employees must have worked full-time for six months or part-time for 12 months before the plan was submitted. Work hours and wages must be cut by at least 20%, but no more than 40% per week, with a normal work week of 40 hours or less. For more information on the Work Share Program, click here.

We are monitoring other changes employers are facing in this new coronavirus world. For further information, contact any member of our COVID-19 team which includes Kathryn Hindman, Maryann Yelnosky, Francis Barnwell, Kent Pearson (Labor Law), and Kara Backus (Employee Benefits).