FAQs on the business closures resulting from Gov. Kate Brown’s ban on public gatherings.
Stephen M. Scott is an associate attorney with national employment law firm Fisher Phillips in the firm’s Portland office.
In response to the growing COVID-19 outbreak, Gov. Kate Brown announced on March 16 that she is banning seated dining at the state’s bars and restaurants and prohibiting gatherings of more than 25 people.
The executive order 20-07 includes exemptions for grocery stores and retail outlets. The ban took effect Tuesday, March 17 and is scheduled to last at least four weeks. Violating the governor’s executive order is a misdemeanor.
As a business owner in the Beaver state, this order will – to some degree – affect you and your business. This article will give you guidance on how to proceed during this pandemic.
I operate a food service or restaurant, entertainment recreational facility. Do we have to close? For how long?
Probably, effective from March 17 until April 14, 2020, unless extended. The proclamation specifically prohibits “on-premise consumption,” of food or drink.
However, it does allow restaurants and food service establishments to remain open for drive-through, takeout and delivery (locations open based on these exceptions must practice social distancing and allow three feet between customers ordering, waiting or in line).
Specifically, the proclamation covers:
• Restaurants;
• Food courts;
• Taverns and brew pubs;
• Coffee shops and cafes;
• Wine clubs;
• Night clubs and bars; and
• All other similar establishments that offer food or drink.
Other similar venues likely include, for example, social clubs, private clubs, tennis clubs, golf clubs and tasting rooms.
I operate an entertainment or recreational facility. Do we have to close? For how long?
Probably, effective from March 17 until April 14, 2020, unless extended. The proclamation specifically prohibits gatherings of 25 people or more.
These gatherings include, but are not limited to, “any community, civic, public, leisure, faith-based, and sporting events, concerts, conventions, fundraisers, fairs, festivals, if a distance of at least three feet between individuals cannot be maintained.”
I operate a retail business. Do we have to close?
Possibly not. Gov. Brown’s prohibition on gatherings states the prohibition does not apply to essential businesses and services.
The executive order defines those as “workplaces, grocery stores, retail stores, convenience stores, banks and credit unions, gas stations, hotels or motels, health care facilities, pharmacies, child care facilities and state or local government.”
But Gov. Brown did encourage these exempt businesses to implement social distancing protocols, which are consistent with guidance from the Oregon Health Authority. This executive order replaced the old executive order no. 20-05 (that limited gatherings of 250 or more).
I operate a different kind of business. Do we have to close?
If your business is not covered by the categories above, it probably does not need to close at this time unless it receives specific recommendations due to an employee or onsite outbreak.
Our business is closing temporarily. Do I need to worry about WARN (Worker Adjustment and Retraining Notification Act)?
It depends on the length of the closure and if your company is covered. Oregon does not have its own Worker Adjustment and Retraining Notification Act (WARN) act, so the federal WARN law applies.
WARN helps ensure advance notice in cases of qualified plant closings and mass layoffs.
The only Oregon-specific obligations are to comply with the federal WARN act and employers must notify the State Department of Community Colleges and Workforce Development if they give notice of a plant closing or mass layoff under the federal WARN Act.
Do I need to worry about Oregon’s secured scheduling penalties?
It depends on if you are a covered employer and the reason for closing. The law applies to companies with at least 500 employees, and especially impacts retail, hospitality and restaurant workers.
For the covered employees, the law generally requires employers to provide workers a reliable, “good faith” estimate of their work schedule when hired and must have the work schedules written seven days in advance.
Typically, an employer is required to provide compensation to an employee for each employer-requested change that occurs to a written work schedule without advance notice.
However, Oregon Bureau of Labor and Industries commissioner Val Hoyle agreed that the governor declaring a state of emergency triggers the exemption for predictive scheduling and that agency will act accordingly.
But the agency stated that employers need to show a good faith effort in communicating with employees as soon as possible the scheduling challenges they are facing.
Arguably, nothing has been “suspended” as it relates to Oregon’s predictive scheduling laws. Instead, it is more that COVID-19 triggers the “natural disaster” exemption that means additional compensation is not due to employees when schedules change.
What else can we do to ensure the health and safety of our employees and community?
In addition to the Center for Disease Control and Prevention and the World Health Organization, our state agencies and government authorities have provided useful resources that address how we can all help slow the spread of the novel coronavirus:
• Oregon Health Authority COVID-19 updates;
• Gov. Brown’s executive order;
• Bureau of Labor and Industries’ statement regarding secured scheduling; and
• Oregon’s unemployment guide related to COVID-19 layoffs, closures and unemployment insurance benefits.
