(Originally published on 3/9/20.)

This last weekend, Oregon has declared a state of emergency over the Coronavirus outbreak, with the number of confirmed cases reaching 16. The frenzy continues.

Oregon employers are facing many questions with uncharted legal ramifications. This two-part series attempts to answer some of these questions.

Can an employer send a sick employee home?

Generally, yes.

An employer should be sure to comply with the obligations of the Americans with Disability Act (ADA). Although the virus is unlikely to qualify as a disability under the ADA, the ADA prohibits discrimination based on a perceived disability. Also, the ADA regulates disability-related inquiries and medical examinations for employees regardless of whether they have an ADA disability.

The employer should be careful to uniformly and consistently implement any policy. For instance, treating an employee differently because of race, ethnicity, or national origin would constitute unlawful discrimination.

Must an employer send an employee home?

If an employee is sneezing and showing symptoms of being sick, other employees may insist that the employee be sent home. Usually, the decision belongs to the employer. However, there may be an argument that being forced to work with a sick employee violates OSHA standards. The bar is high, as the standard is whether the place of employment is free from recognized hazards that are causing or are likely to cause death or serious physical harm.

Must the employer continue to pay an employee that is sent home for being sick?

This depends on the employer’s sick policy. If the policy allows for paid sick time and the employee has accrued it, then the employee can still receive pay.

Keep in mind that Oregon requires employers with 10 or more workers to allow at least 40 hours of paid sick time per year. Employers with less than 10 employees must allow 40 hours of unpaid sick leave. In Portland, the number of employees decreases to six.