Rights of employers, employees as Oregon reopens


Seminar addresses what small businesses and employers need to know about current phase of reopening

May 16, 2020 — After two months of stay-at-home orders, 28 counties in Oregon are slowly beginning to reopen this week as small business owners and their employees learn how to work in the age of COVID-19. 

The shutdown has created economic devastation matching some of the worst crises in American history, with rural communities being hit the hardest.

“We have the highest unemployment in the state on the coast because we are so tourist driven,” Oregon Sen. Arnie Roblan said last week. 

Roblan, along with Lane County and Oregon RAIN (Regional Accelerator and Innovation Network) hosted a webinar on the ins and outs of reopening, including what’s expected of employees and employers in the first phase of reopening, along with what financial assistance is available for businesses still struggling.

The panel included Roblan, David Gerstenfeld from the Oregon Employment Department, Melissa Drugge from Business Oregon and Leah Horner from the office of Oregon Gov. Kate Brown, and was hosted by Florence City Manager Erin Reynolds, who is also the incoming vice-chair of RAIN.

The focus was on small businesses with 25 employees or less. 

“They have been the backbone of the economy and our state for a long, long time,” Roblan said. “We have to figure out ways we can support them.”

One of the most pressing questions businesses have had this week is whether or not they should open in the first place. While businesses that have remained open through the crisis will see little change and those who have relied on telework will continue to do so, retail, restaurants, gyms and barber shops are faced with the question of whether they have to reopen with the lifting of restrictions in the Phase One Reopening process.

“If you’re a business owner and you don’t want to operate in Phase One, you don’t have to,” Horner said. “You are more than welcome to wait for Phase Two or see how Phase One is playing out before making a decision on opening. Nothing is requiring anybody to be forced to be open.”

Unemployment insurance will still remain, and there will be no legal ramifications from the state.

Second, not all employees are required to return to an open business.

“If the reason they’re not coming back is related to COVID, then they may still be able to get benefits,” Gerstenfeld said.

The State of Oregon Employment Department lists a number of reasons a person can refuse to go back to work but still be eligible for unemployment.

  • If they are ill with COVID-19 
  • Have potentially been exposed to COVID-19 and are subjected to a mandatory quarantine period 
  • Are staying home to care for a family member or other person they live with or provide care for who is suffering from COVID-19 (or is subject to mandatory quarantine) 
  • Those unable to work because they have to stay home to care for a child due to the closure of schools, childcare providers, or similar facilities due to COVID-19  
  • Are asked to work when it would require them to act in violation of a mandatory quarantine or government directive  
  • Are unable to work because they have been advised by their healthcare provider or by advice issued by public health officials to self-quarantine due to possible risk of exposure to or spread of COVID-19

Even though the state is reopening businesses, it still suggests that vulnerable populations stay at home, including those over the age of 60 and with underlying medical conditions that could be terminally exacerbated by COVID, including those with severe heart or lung issues. Anyone who fits that description can refuse to return to work and still collect unemployment.

Also, if a business can’t follow social distancing guidelines by the government, such as allowing for six feet between customers, employees can decide not to return to work and still remain eligible for unemployment.

“As long as the worksite can meet government and public health guidelines, and a situation (outlined above) where an employee can continue claiming benefits does not apply, employees are considered able to work and no longer eligible for benefits,” the Employment Department stated.

What was not discussed during the webinar were the still legal grey areas as to the rights of employees once they return to work. An employer who is able to follow the government restrictions but blatantly decides not to follow through could be subject to legal issues. For example, if an employer refuses to hand out adequate face coverings, or refuses to enforce social distancing policies, an employee could potentially have cause to bring legal action against an employer — particularly if the employee is able to prove they contracted COVID from working.

On the same token, if an employee refuses to follow regulations, the employer may also have legal authority to terminate the employee.

Employer liability due to COVID is still being debated federally as congress discusses ways to protect businesses from lawsuits stemming from the virus.

But beyond issues of COVID, employers are having a different concern when it comes to getting people back to work — in particular, the federal CARES Act, which provides workers an additional $600 weekly on top of the state unemployment insurance they receive.

“How do we get them back?” Reynolds asked the panel. “We know it’s going to be difficult to bring them back at their original rates. Morale may be an issue. Any advice for those businesses?”

Gerstenfeld agreed that state and federal programs were, in a way, competing.

“There certainly was a push to make sure that people were getting money quickly and help support not just individuals and families, but communities,” he said. “The extra $600 has created a situation where some people are making more on unemployment insurance than what they’re being offered by working.”

The simplest solution he said would be to hire employees back part-time.

“They are still eligible in many cases to get some of their unemployment insurance benefits,” he said. “Right now, through July 25, that includes the additional $600 a week. A lot of businesses will be starting off not all at once, not bringing everybody back full-time. As long as they’re working less than full-time and earning less than what their regular unemployment amount would be, they should keep filing.”

However, if employers do need to bring someone on the CARES Act into full-time employment, and the employee doesn’t meet the criteria to remain home and the business is following guidelines, then unemployment benefits will be lost.

“[With] federal programs, there is clear guidance from the Department of Labor that essentially states that deciding not to go back to work because you’re making more on unemployment insurance is not a good enough reason. If that’s why you don’t go back to work, then you’re not eligible to receive those benefits,” Gerstenfeld said.

This is not to say that everyone who has gone on unemployment is making a better living. Due to an unprecedented amount of claims sent to the Oregon Employment Department, jobless claims have seen major delays.

“What would you say to someone that’s still living their very real life? Maybe they have $100 in their bank account?” Reynolds asked. “They’re nervous, they don’t have a job. They aren’t currently working because of COVID-19. They have applied for unemployment and have not received any benefits. Do you have advice for people who are looking for support and who are very nervous? Life is just very, very hard right now.”

Roblan said that his office has been fielding calls from those individuals frequently.

“Know that many of us have been listening to these stories and it is heartbreaking,” he said. “We know there are people who are slipping through the gaps. We need to hear from you to figure out what is the best avenue available to you. We will try and get back to you.”

One of the issues has been getting benefits out to those who applied.

“We have record numbers of people in Oregon needing assistance, and we’ve also had multiple pieces of federal legislation that creates great programs to help people. But it takes some time to stand up,” Gerstenfeld said. “We are working through the claims that we get through record speed. Each day, we are going through more than twice what we would do in an entire week. We know there’s people out there who haven’t received their benefits yet, and we’re really focused on doing everything we can.”

While the department is behind on claims, Gerstenfeld stressed that the state does have enough money to cover them. 

“You may have heard the states are running out of unemployment benefits. I want to assure you that Oregon is not in that situation,” he said. “We entered this crisis with the best funded trust fund in the nation, so we’re watching it closely.”

One of the reasons that the state has been overwhelmed is the number of emergency unemployment benefits that have been instituted since the shutdowns began. There’s the traditional unemployment program, which is seeing a record number of claims.

“Where a lot of people are getting benefits from right now is federal programs, pandemic unemployment assistance, and that’s really designed to help all the different groups of people who can’t get regular unemployment insurance. That includes people who are self-employed, independent contractors, a bunch of different groups of people,” Gerstenfeld said. “We also have extension programs because some people are going to run out of regular benefits. Those extensions will be rolling out soon, particularly for some of the governmental or nonprofits that are on the line.”

There’s also workshare, which allows employers to cut workforce hours instead of instituting layoffs.

“[Employees] can receive partial unemployment benefits, to partially make up for the wages they are not receiving,” Gerstenfeld said. “It’s a really good tool to keep your employees attached to you, they’re still engaged.”

There’s also the federal Paycheck Protection Program (PPP), which was designed to help small businesses. 

“The first phase didn’t make it to as many small businesses that have been able to access it,” Roblan said, referring to incidences where multi-million-dollar businesses, like the Los Angeles Lakers, received payouts.

“The second round, we’ve done much better,” Roblan said. “I’ve talked to a lot of small banks on the coast that have been successful in getting money out to people with these federal PPP loans that are forgivable if they’re used appropriately.”

And Horner stressed that businesses who previously had trouble getting the loan should reapply.

Even if all small businesses apply for PPP loans, not all of them qualify for various reasons. The panel spoke at length regarding a state program to invest $10 million into these situations.

“What we’re trying to do is fill in the gaps that existed from the federal money that was coming out for lots of different places — small businesses to unemployment insurance to all these other issues,” Roblan said. 

While the pandemic was in its early stages, the state created a bipartisan task force to address the financial issues of COVID.

“We had about $75 million, which is not a lot of money considering what is going on with the pandemic,” Roblan said. “We gave $25 million very early on in the process to the governor, and then we came back together and allocated another $32 million. We have about $18 million left.”

Much of the money had to be reserved for a variety of non-COVID issues, such as the upcoming fire season. But the task force was able to set aside an extra $5 million for small businesses. Knowing that wasn’t enough, the task force turned to Business Oregon, an agency of the state, to match the funds and equaling $10 million.

Roblan understands that the amount isn’t ideal considering the economic impact the shutdowns have created.

“[The pandemic] is going to be an economic impact greater than what we had during the Great Recession,” he said. “That had major effects on Oregon spending, and we don’t want to spend money ahead of time that we aren’t going to have in the future. So, we have been very careful. We have very frugal people in the process, and that’s why we ended up with $10 million.”

To grow the money further, Business Oregon is looking to match the funds with already existing programs that are helping small businesses. This would include local governments, such as county or city councils, or nongovernmental organizations that have been created to assist.

The City of Florence is currently in the process of joining Lane County and other cities for the first round of funding, which will be for $2.5 million. 

“The details are not all ironed out quite yet as we are diligently working to meet the quick turnaround time to file an application,” Reynolds said.

As for the future of Oregon businesses in the age of COVID, it’s still being worked on.

“The way that we have approached this pandemic has been in a response mode,” Horner said. “In normal states of emergency, you go from response to recovery. Now we’ve gone from response to reopening. We need to look at what recovery looks like down the road. I will say that the governor has started having a number of conversations around how to prioritize underserved and underrepresented communities in the recovery effort. How do we put that at the forefront? We’re really focusing on the business needs of those communities and ensuring that they are sustainable — not only in Phase One but presumably through Phase Two and then Phase Three.”

But the final phase will only occur when a vaccine or reliable treatment is found, which is months — if not more than a year — away. 

“There will be this continual length of time when we’re in this phase where we are as responsive as we can be,” Horner said. “That means be flexible, that means hearing concerns and hearing the needs.”

And it also means being good to one another. 

“Being a good human is something we all have to continue to work on day and day out,” Roblan said. “This means that Oregonians should treat each other well, both by following the guidelines like wearing face masks, and having empathy with one another. “Give that extra space to people. There are a lot of people who are concerned about their own personal health and other things. 

“They’ve been home for a while, they’ve stayed safe. And they need to feel comfortable knowing other people care about them as well.” 

For more information for small businesses and employees, including webinars and guidelines, the following links are available. All panelists stated that their offices are more than willing to field questions, and that the public is encouraged to reach out.

RAIN: www.oregonrain.org/

Business Oregon: www.oregon4biz.com/

Oregon Employment Department: www.oregon.gov/EMPLOY/Pages/default.aspx

Oregon Health Authority: www.oregon.gov/oha/pages/index.aspx

State of Oregon: govstatus.egov.com/or-covid-19

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