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Sep 16, 2021

OREGON: Health care workers get paid leave for COVID-19 exposure

COVID-19Employee BenefitsLeave LawsSafety and Health 

Oregon OSHA has published a temporary rule that requires employers with 11 or more employees to pay their health care workers who take time off to quarantine or isolate after a work-related exposure to COVID-19 (coronavirus). This rule on “medical relief benefits” (also referred to as “medical removal protection benefits”) is effective from September 16, 2021, through December 26, 2021. You can see the official rule and accompanying explanation here and a “tracked changes” version here. Oregon OSHA decided it needed to add this rule after comparing Oregon’s existing COVID-19 workplace safety rules to federal OSHA’s emergency temporary standard (ETS) for health care workers, which took effect on June 21, 2021. (For information on federal OSHA’s ETS, see the regulations at 29 CFR Part 1910, Subpart U and the COVID-19 Healthcare ETS web page).

Coverage: Oregon’s new paid leave requirement applies to health care employees engaged in direct patient care or in direct support of such care. “Direct patient care” is defined elsewhere in Oregon OSHA’s existing COVID-19 workplace safety rules as “any employee job duties that include direct physical contact with a patient during the delivery of healthcare services.” The new paid leave rule offers these examples of direct support of patient care: “patient intake or admission, patient food services, equipment and facility maintenance, housekeeping services, healthcare laundry services, medical waste handling services, and medical equipment cleaning or reprocessing services.” Employees who don’t come into contact with patients or spaces where they receive care aren’t covered.

Exclusions: Workers whose need for leave “cannot reasonably have resulted from workplace exposure” to COVID-19 aren’t eligible for paid leave under the rule. Interestingly, employees who aren’t fully vaccinated and don’t have a valid religious or medical exception aren’t eligible either (although they may be eligible for paid leave under Oregon’s sick leave law or company policy). The remaining exceptions to the paid leave requirement are: (1) employees who provide first aid but aren’t health care providers; (2) pharmacists who dispense prescriptions in a retail setting; (3) non-hospital ambulatory care settings where non-employees are screened and excluded if they have suspected or confirmed COVID-19; (4) hospitals with “well-defined ambulatory care settings” where all employees are fully vaccinated and non-employees are screened and excluded if they have suspected or confirmed COVID-19; (5) home health care settings where all employees are fully vaccinated and all non-employees are screened and people with suspected or confirmed COVID-19 aren’t present; (6) health care support services that aren’t performed in a healthcare setting, such as off-site laundry services or off-site food preparation; and (7) telehealth services performed away from direct patient care settings.

Benefits and paid leave: If a covered health care employee’s work-related COVID-19 exposure results in medical removal from the job and prevents them from working, the employee is entitled to continued benefits and pay during the leave. Their benefits (such as health insurance) must be the same as if the employee had continued to work. The amount of pay depends on the size of the employer. Employers with 500 or more employees must pay for all hours the employee would have worked, paid at the regular (non-overtime) rate, capped at $1,400 per week. Employers with fewer than 500 employees are subject to the same requirements for the first two weeks, but beginning in the third week they may reduce the pay to two-thirds of the regular rate, capped at $200 per day. You may reduce these payments by any amounts actually received by the employee as compensation for lost earnings, such as workers’ comp time loss payments or paid sick leave.

Tips: Oregon OSHA’s new paid leave rule appears to cover a narrower group of health care workers than does the Oregon Health Authority (OHA)’s vaccine mandate for health care providers and health care staff. As explained above, Oregon OSHA’s paid leave rule covers employees who provide direct patient care and direct support for such care. OHA’s COVID-19 vaccine mandate, in contrast, covers any individuals who are “working, learning, studying, assisting, observing or volunteering in a healthcare setting providing direct patient or resident care or who have the potential for direct or indirect exposure to patients, residents, or infectious materials.” Administrative and billing personnel are included among the examples of workers who may be required to obtain the vaccine. Contact your Vigilant Law Group employment attorney for guidance on providing paid leave or mandating the COVID-19 vaccine for your employees.

This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.