Respiratory syncytial virus (RSV) and influenza cases are surging across the United States while COVID-19 continues to spread. Faced with hospital beds filling up and experts warning that this could be one of the most severe respiratory illness seasons in recent years, two states—Oregon and Colorado—have declared public health emergencies that will impact state sick and family leave requirements as workers struggle with the illnesses or to care for sick children.
RSV, in particular, is especially dangerous for infants and young children. While RSV is a common respiratory virus that causes cold-like symptoms, each year 58,000–80,000 children under the age of five are hospitalized due to an RSV infection, according to the U.S. Centers for Disease Control and Prevention (CDC). Recent media reports suggest those numbers could be much higher this year as hospitals across the United States are running out of beds due to an increase in rates of RSV. Similar surges are being reported for flu infections.
On November 14, 2022, Oregon Governor Kate Brown issued Executive Order No. 22-23 declaring an emergency due to “a rapid increase in pediatric infections and hospitalizations from respiratory viruses including RSV” in the state. The declaration will remain in effect for sixteen weeks, until March 6, 2023, unless it is extended or terminated earlier by the governor.
Those with RSV or flu were likely already covered under the Oregon Sick Time law, but following the RSV and flu public health emergency declaration, employees may have expanded eligibility to seek leave under the Oregon Family Leave Act (OFLA) due to amendments to the law that took effect on January 1, 2022.
As a result of the declaration, the prior amendments to the OFLA eligibility provisions during a period of public health emergency come into play. An employer is covered by OFLA if it employs “25 or more persons in the State of Oregon for each working day during each of 20 or more calendar work weeks in the year in which the leave is to be taken or in the year immediately preceding the year in which the leave is to be taken.”
Outside of a public health emergency, employees of a covered employer were only eligible to take OFLA leave if they were employed at least 180 days and also worked at least an average of twenty-five hours per week during the 180 days before leave begins. In the case of OFLA parental leave, employees needed to have been employed 180 days regardless of the average number of hours they worked. However, during a period of public health emergencies, employees of a covered employer are now eligible to take OFLA leave for any reason if they were employed for at least thirty days immediately before the leave begins and also worked an average of at least twenty-five hours per week during the thirty days immediately preceding the leave.
The OFLA amendments that took effect on January 1, 2022, also expanded the reasons for OFLA leave to include caring for a child “who requires home care due to the closure of the child’s school or child care provider as a result of a public health emergency.” Due to the declaration, employees may now be able to seek leave during these public health emergencies for reasons related to their children. Employers may not require employees to provide verification of the need for the child care/school closure leave, but may request that employees provide a statement that no other family member is willing or able to care for the child, among other information including the name of the school or child care provider subject to closure or unavailability.
On November 11, 2022, Colorado Governor Jared Polis signed an executive order amending and extending the state’s COVID-19 disaster emergency declaration, which has been in place since March 2020, to “include RSV, influenza, and other respiratory illnesses.” This executive order does not create a new requirement to supplement employees’ accrued sick time with public health emergency leave. Instead, it simply broadens the range of conditions that can be used to take leave due to the current public health emergency, which initially was limited to COVID-19–related conditions.
The Colorado Healthy Families and Workplaces Act (HFWA) requires employers to supplement employees’ regular paid sick leave in certain circumstances related to a public health emergency to ensure that full-time employees have up to eighty hours of sick time. This supplement is only required once during the entirety of the public health emergency. Under recent guidance from the Colorado Department of Labor and Employment (CDLE), employers must supplement employees’ accrued sick time with public health emergency leave (PHEL) at the time the request for PHEL is made.
According to the CDLE, the reasons for employees to access the PHEL include:
- experiencing symptoms of COVID-19, the flu, RSV, or other respiratory illnesses;
- quarantining or self-isolating;
- testing for COVID-19 or similar respiratory illnesses;
- getting vaccinated or experiencing vaccination side effects;
- being unable to work due to health conditions that may increase susceptibility to the risk of COVID-19, the flu, RSV, or similar respiratory illnesses; and
- needing to care for family due to illness or school closure.
Employers may not require employees to provide documentation to show that the leave is related to PHEL.
The requirement to supplement up to eighty hours of PHEL is ongoing and will continue until four weeks after all applicable federal or state public health emergencies have ended. Based on the current declarations, PHEL will continue until at least February 2023, according to the CDLE.
Those with RSV or the flu were likely already covered under the public health emergency leave related to COVID-19 because they have similar symptoms, but following the RSV and flu public health emergency revision to the public health emergency declaration, employees will be able to continue to use the PHEL if they test positive for RSV or the flu rather than COVID-19.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates on the firm’s Colorado, Oregon, and Leaves of Absence blogs as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.