Jordan Ramis pc. Attorneys at law
Oregon Adopts Mandatory Paid Sick Leave
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This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

BY AMY ROBINSON
JULY 2015

Governor Kate Brown signed the Oregon Paid Sick Leave Act into law on Monday, June 22, 2015.  For employers in the Portland Metro area and Eugene, this law will likely have minimal impact on you since your jurisdictions each had local paid sick leave laws, now preempted, that went into effect in 2014 and 2015, respectively.  For the rest of you, this may present a significant change to your operations that you will want to start preparing for now so that you are in compliance by January 1, 2016, when the law takes effect.  
 
Brief Overview
Here is a quick snapshot of the new law:
  • Employers in Oregon with 10 or more employees[1] will have to provide at least one hour of paid sick leave time for every 30 hours of work.  For Oregon employers located in a city with a population of more than 500,000 (i.e., Portland for now), that threshold drops to 6 or more employees.[2] 
    • As an alternative to the hourly accrual method, employers are permitted to “frontload” the entire amount of leave at the beginning of the year.  For new employees who have not yet worked a full year, that amount can be pro-rated.
    • Employers with 10 or fewer employees in Oregon (or 6 if in Portland) will have to provide the same amount of sick leave time, but it may be unpaid leave time.
  • Employers may cap accruals at 80 hours, or limit use to 40 hours per year, but must permit employees to carry over up to 40 hours of accrued but unused paid leave into the following year.  As an alternative to carryover, an employer can cash out accrued leave at the end of one year, so long as they then frontload the entire annual accrual amount at the beginning of the next year. 
  • The law does not require employers who already provide as much or more leave under a sick leave, vacation leave, or paid time off (PTO) policy to provide additional leave time, provided that such leave/PTO can be used just like the sick time mandated by statute.
  • Exempt employees will be presumed to work 40 hours each week, for purposes of accruing sick leave time, unless their regular work schedule is less than 40 hours per week.  In that case, the sick time will accrue based upon the regularly scheduled work week. 
  • Accrued but unused mandatory sick leave is not required to be cashed out at termination.  However, if the employee is rehired within 180 days (6 months) of separation, the employer must credit back the employee’s previously accrued and unused sick leave time and permit the employee to use that previously accrued sick leave time immediately upon re-employment.
  • Employees must be provided with written notice of the amount of accrued and unused sick leave available at least quarterly.
  • As with most other workplace laws, there are anti-retaliation provisions as well as a workplace posting requirement, with civil penalties for violation of the posting requirement.
 
Broader Usage than Traditional Sick Leave Policies
This leave covers more than just an employee’s own personal illness, and will include time for:
  • Diagnosis, care, or treatment of the employee’s, or a family member’s, mental or physical illness, injury, or health condition, including pregnancy, childbirth, post-partum care, and preventative medical care.  The law incorporates the definition of “family member” from the Oregon Family Leave Act (OFLA), which  includes: spouses and domestic partners; biological, adoptive, or foster parents and children; grandparents and grandchildren; parents-in-law; and a person with whom the employee was or is in a relationship in loco parentis (in place of a parent).
  • Caring for an infant, newly adopted, or newly placed foster child under 18 years of age, or for an adopted foster child older than 18 years of age if the child is incapable of self-care because of a mental or physical disability.
  • Caring for a child of the employee who is suffering from an illness, injury, or condition that is not a “serious health condition” as defined by OFLA, but one that requires home care.
  • Absences protected and defined by Oregon Domestic Violence Leave laws related to domestic violence, harassment, and sexual assault or stalking, including, but not limited to, time to seek law enforcement assistance, to pursue civil or criminal legal remedies, to obtain counseling, or assist a minor child with obtaining counseling related to an experience of domestic violence, sexual assault, or stalking, and for safety relocation. 
  • Absences due to an office or school closure caused by a publicly declared public health emergency, to care for a family member who has been determined by a public health care authority or health care provider to present a health risk to others, or the employer was required by law to exclude the employee from the workplace for health reasons.
 
Unlike the local versions previously adopted, the new Oregon paid sick leave law also permits use of paid leave for:
  • Time to deal with the death of a family member by attending the funeral (or alternative to a funeral), making necessary arrangements, or for grieving.
  • Donating to another employee if the other employee uses it for one of the approved reasons and the employer’s policy permits donation of sick leave.
 
Special Notice and Verification Rules
The implementing regulations have yet to be developed and may provide additional details or limitations on how employers are to administer this mandatory leave; however, the law as adopted authorizes employers to require an employee to comply with the employer’s customary procedures for requesting time off, as well as reasonable notice of the need for leave not to exceed 10 days by an employee when it is foreseeable.  Approval may not be conditioned on the employee finding a replacement or shift swapping to make up for time missed.  Absent reasonable suspicion of abuse, verification cannot be required unless the absence exceeds three days or is foreseen.  Just as is the rule under OFLA, the employer will be required to pay the cost of any verification by a health care provider that is not otherwise covered by insurance or another benefit plan.  
 
What do Oregon employers need to do now?
This law will take effect on January 1, 2016, so be prepared to comply by:

  Updating your employee handbooks and personnel policies to reflect the required terms.
 Updating workplace postings with the required sick leave notices.
 Educating those involved in attendance management so that they are familiar with the requirements of the law, including when an absence may be protected by law and therefore cannot be denied or used as a basis for termination or other discipline, even under an otherwise neutral no-fault attendance policy.  Depending on your organizational structure, this may include first level supervisors as well as personnel/HR representatives and upper management. 

As always, we will be monitoring BOLI’s rule-making efforts and will plan to keep you apprised of these and other developments.  In the meantime, don’t hesitate to call us if you have questions or concerns about your obligations to provide paid sick leave, want assistance with preparing an appropriate paid leave policy, need your current leave polices or handbook reviewed and/or revised, or have any other issues you need assistance with.  We will be more than happy to help.
**This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.
 
[1] Determined based on the per-day average number of employees for each of 20 workweeks in the calendar year or the fiscal year immediately preceding the year in which the leave is to be taken.
[2] According to the most recent census in 2013.  See, http://www.census.gov/popest/data/cities/totals/2013/SUB-EST2013-3.html.