By David Briggs, Partner – Employment Law & Litigation Practice Group
Ready or not, here it comes. Paid Leave Oregon is here. Employees are eligible to apply for benefits and can start receiving those benefits beginning on September 3, 2023.
The Oregon Employment Department is estimating that 41,000 individuals will apply for benefits before the program even begins.
Do you have everything in order? Are your policies up to date? All notices posted? We are giving you a quick guide to the things that you should know and what you need to do (if you haven’t already).
Overview of Paid Leave Oregon: The Basics
Employees who have earned at least $1,000 in wages may qualify for up to 12 weeks of paid family, medical, or safe leave. Most employees will be paid a percentage of their wages for time that they take off, but some employees will receive the full amount of their wages.
Leave can be used for a number of reasons, including:
– Time to care for and bond with a newborn or newly placed child;
– The serious health condition of the employee or a family member;
– To take leave of the employee or the employee’s family member has experienced domestic violence, sexual assault, or harassment.
Serious health conditions include:
– In patient care
– Family member’s long-term care (i.e., moving a family member to an assisted living facility)
– A condition that causes an imminent danger of death
– Incapacity of three or more calendar days, including either:
– Two or more treatments by a health care provider; or
– One treatment plus a regimen of continuing treatment (i.e., prescription medication)
– Chronic incapacity (i.e., asthma, diabetes, migraines, epilepsy)
– Long-term incapacity where treatment is potentially ineffective (i.e., severe stroke, Alzheimer’s);
– Pregnancy related conditions, including prenatal visits.
An employee’s family member includes:
– Child of employee, employee’s spouse or domestic partner;
– Parent of employee, employee’s spouse or domestic partner;
– Sibling or stepsibling of employee, employee’s spouse or domestic partner;
– Grandparent or grandchild of the employee, the employee’s spouse or domestic partner; or
– An individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.
Employees who are on workers’ compensation benefits or unemployment benefits are not eligible to receive PLO.
After 90 days of employment, employees who take PLO receive job protection and (in most cases) will need to be put back into their old positions upon return from leave.
The Employment Department will administer PLO benefits unless an employer has opted out and has an approved equivalent plan (either self-insured or through a third-party carrier).
Employees must provide at least 30 days’ notice of their need for leave unless the need for leave is unforeseeable. If the leave is unforeseeable, then employees must give oral notice within 24 hours and written notice within three days of the start of leave.
For employers who do not have an equivalent plan, employees will apply for PLO leave through Frances online. They can apply for leave up to 30 calendars days prior to the start of leave or 30 days after the start of leave.
Employers may request information to verify the leave. But the law does not give employers an entitlement to this information.
What’s New with PLO and OFLA?
As we step into a whole new protected leave, the law will keep updating. Here is some of the latest information.
The Employment Department has defined what “affinity” means with respect to someone being a family member. The person must have a significant bond that is like a family relationship and the relationship has characteristics of a family relationship. Those characteristics may include shared personal financial responsibility, emergency contact designations, the expectation to provide care, or cohabitation.
Employers with 25 or more employees who are subject to the Oregon Family Leave Act, used to have the choice to designate a leave year (rolling forward, rolling back, calendar, or fixed year). The law now requires OFLA-qualifying employers to designate the rolling forward leave year to match PLO. Though not required, employers subject to the Federal Family and Medical Leave Act (FMLA) should consider changing the FMLA leave year to rolling forward to match PLO and OFLA.
Until now, OFLA’s definition of family member was narrower than PLO. That has now changed and OFLA’s definition mirrors the PLO definition outlined above.
A new amendment to PLO now confirms that, like OFLA, an employer can require an employee to repay any insurance benefits premiums paid on the employee’s behalf when the employee returns from leave.
Remember, most employees will not receive their full wages through PLO. Considering that shortfall, many employees will want to supplement their PLO benefit with PTO, vacation, or sick leave. Employers with 25 or more employees will be required to allow employees to use any paid leave to supplement their PLO. Unfortunately, the Employment Department has stated that it will not share an employee’s benefit amount with employers. So, employees seeking to supplement their PLO with employer-provided paid leave will likely have to provide their benefits statements to their employers.
PLO Interaction with OFLA and FMLA
While there have been significant efforts to line up PLO and OFLA, they still are not perfectly aligned.
For employers who have 25 or more employees, employees may decide to exhaust protected leave under OFLA before taking PLO, extending their leave further.
Employees are also eligible to take PLO as soon as they have made $1,000 in wages in a year, whether or not those wages were made while employed by the same employer. However, employees only become eligible for OFLA after 180 days of employment.
For employers with 50 or more employees who are subject to FMLA, be aware that even more discrepancies will occur. Remember, each time an employee takes leave, each type of protected leave must be evaluated independently of the other. Be on the lookout for seminars from our employment attorneys who will dive into this issue more deeply.
What to Do Next?
The law requires employers to be ready to jump through a lot of new hoops and will stretch employers’ staff further as employees begin taking leave. In the meantime, here are a few things to do:
– If you haven’t done so, post the model notice. You can find it here.
– Update your policies on your OFLA leave year (to be rolling forward).
– Update your policies on PLO, if you haven’t already. Be sure to review whether you will be allowing your employees to supplement their PLO with any paid leaves (if you are over 25 employees, you will be required to do so).
– Evaluate the likely impact that leave will have on your organization to determine whether you need to do additional hiring.
– Train your managers to understand that PLO is protected leave and to look out for employees who may retaliate against individuals using this leave.
Conclusion
The rollout of PLO is unlikely to go smoothly for most employers. There will be questions that come up that many of us have not thought of or will be unique. The Employment Department has some resources available. However, as always, we are here to help. Please contact a member of our Employment Team if you get stuck on an issue or have any questions. We look forward to working with our clients through these issues.
David Briggs is a partner in the Employment Law & Litigation practice group. The information in this article is not intended to provide legal advice. For professional consultation, please contact David Briggs at Saalfeld Griggs PC.
The contents of this publication are current as of August 31, 2023 and should not be construed as legal advice. Information in this publication may only apply in certain states. Readers should not act upon information presented in this publication without individual professional counseling. Receipt of this publication does not constitute or create an attorney-client relationship. The material in this publication may not be reproduced without the written permission of Saalfeld Griggs PC. © 2023 Saalfeld Griggs PC
