Untangling the Oregon Leave Quagmire

If you have employees working in Oregon, chances are you have heard about Oregon’s Paid Family and Medical Leave Insurance Program also known as Paid Leave Oregon (PLO). In addition to PLO, eligible Oregon employees may be entitled to leave under the Oregon Family Medical Leave Act (OFLA), Oregon Sick Time law (OSTL), and the federal Family and Medical Leave Act (FMLA). The types of leaves covered by the PLO and OFLA changed on July 1. Different leave eligibility requirements and qualifying circumstances can tangle up even the most experienced HR professionals and leave administrators.

Before we provide some suggested strategies to help employers maintain compliance, we will review the types of leave each of these Oregon laws provide to employees.

Permissible Leave under Paid Leave Oregon

As of July 1, PLO provides benefits and protected leave to qualified employees for the following reasons:

• Due to the birth of a child.
• To bond with a child (after birth, through adoption, or foster care placement).
• To care for a family member with a serious health condition.
• To care for yourself when you have a serious health condition.
• To obtain assistance as a survivor of sexual assault, domestic violence, harassment, bias crimes, or stalking.

Beginning Jan. 1, 2025, to effectuate the legal process required for placement of a foster child or the adoption of a child.

While the Oregon Employment Department determines eligibility, employees are generally considered to be qualified for the program if they currently work in Oregon and made at least $1,000 in the year preceding their request for leave. Certain exceptions apply for self-employed, independent contractors, and tribal and public employees.

Permissible Leave under the Oregon Family Medical Leave Act

As of July 1, up to 12 weeks of OFLA is available to eligible employees for the following reasons:

• Sick child leave to provide home care for a child (including home care for a child with a serious health condition).
• To care for a child of the employee or spouse or domestic partner whose school or childcare provider has been closed in conjunction with a declared public health emergency.
• Bereavement leave up to four weeks per year.
• Pregnancy-related disability leave (this leave is in addition to other leave available under OFLA and Paid Leave Oregon).
• Leave to effectuate the legal process required for placement of a foster child or the adoption of a child (child placement leave) for a total of two weeks, through Dec. 31.

Employers must also change their OFLA leave year to a period of 52 consecutive weeks beginning on the Sunday immediately before the date on which OFLA leave begins as of July 1.

For leave taken after July 1, PLO leave and OFLA may no longer be taken at the same time. PLO and FMLA or OFLA and FMLA may still run concurrently, however, when the reason for the leave is a qualifying reason under both the state and federal leave laws.

Permissible Leave under Oregon Sick Time Law

The Oregon Bureau of Labor and Industries recently adopted new rules on the permissible uses of OSTL. Under OSTL, employees get one hour of sick leave for every 30 hours worked, up to a maximum of 40 hours per year. OSTL is paid leave if an employee has 10 or more employees in Oregon (six or more if the employer has a location in Portland); otherwise, OSTL is still available, but unpaid. Effective July 1, OSTL may be used for the following reasons:

• For an employee’s or an employee’s family member’s mental or physical illness, injury or health condition; need for medical diagnosis, care or treatment of a mental or physical illness, injury or health condition; or need for preventive medical care.
• For the following purposes under OFLA: 1) Bereavement leave, child placement leave, or pregnancy disability leave; and 2) To care for a child of the employee who is suffering from an illness, injury or condition that requires home care or 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.
• To obtain assistance as a survivor of sexual assault, domestic violence, harassment, bias crimes, or stalking.
• If permitted by employer policy, to donate accrued sick time to another employee for a permissible sick leave purpose.
• Public health emergency leave.
• For purposes authorized under Paid Leave Oregon.

Coordination of Oregon Leave Laws

Implementation of and compliance with Oregon leave laws is increasingly complicated because of the overlap and intersection of PLO, OFLA, OSTL, and the FMLA. Each leave program has different qualifying circumstances and eligibility requirements. The definition of “family member” differs between these Oregon laws and the FMLA, as could the applicable “benefit year.”

Employers may want to consider asking their employees the following questions to assess the benefits and leave available:

• What type of leave (medical, family, safe) do you need?
• Why do you need to take leave (qualifying event)?
• When do you need to take leave?
• How long do you estimate you will need to be on leave?
• Do you need continuous or intermittent leave?

Communication between the employee and employer will help identify which leave benefits or programs may apply and whether any of these benefits can run concurrently. For example, in addition to state statutory leaves, employees may be entitled to use paid time off (PTO), short term disability leave, or unpaid leave as an accommodation under the Americans with Disabilities Act (ADA) and its state equivalent.

Remember that when an employee requests OFLA or FMLA leave, or when a covered employer acquires knowledge that an employee’s leave may be for a qualifying OFLA or FMLA purpose, the covered employer must notify the employee of the employee’s eligibility to take OFLA or FMLA leave within five business days.

Common Questions

• Can I require my employee to apply for PLO benefits?
  Answer: No, employers may encourage employees to apply for PLO, but they cannot force employees to take PLO leave. PLO benefits are not reduced because an employee has taken OFLA or FMLA.
• Are employers required to allow employees to supplement their PLO benefits with other employer paid time off (vacation, sick time, PTO, etc.)?
  Answer: Yes, effective July 1, employees are entitled to use any other employer-paid leave in addition to their PLO benefits to receive up to 100% of the employee’s full wage replacement. An employer may allow an employee to exceed 100% of the employee’s full wage replacement. Per updated PLO guidance, however, an employer may not require an employee to supplement their PLO benefits with other paid leave.
• As an employer, how do I know how much my employee receives in PLO benefits?
  Answer: PLO will not share this information with employers. Instead, it recommends employers use the benefits calculator. Alternatively, employers may request the information directly from an employee when an employee requests to supplement their PLO benefit with other paid leave.
• As an employer, when PLO approves my employee for intermittent leave, how will I know which days my employee will be on leave?
  Answer: PLO does not share the details of intermittent leave with an employer. Employers should request that employees give them advance notice of their plans to use intermittent leave when possible. 
• If an employee needs intermittent leave of less than one day per occurrence, is that covered under PLO?
  Answer: No, PLO is for full-day or full-week absences only. Intermittent leave of less than one day may be available under OFLA, FMLA, OSTL, or as an ADA accommodation.
• If an employee is eligible for FMLA leave, is it possible for the employee to take 12 weeks of FMLA time off and then apply for 12 weeks of PLO benefits?
  Answer: Yes, although recent legislation significantly reduced stacking of OFLA and PLO, no changes were made to eliminate stacking of leave under the FMLA and PLO.
• As an employer, if I previously approved OFLA leave beyond July 1, can I now rescind that leave?
  Answer: Yes. In order to rescind leave previously protected by OFLA, employers must notify the affected employee, in writing, as soon as practicable, that the leave is not protected by OFLA on and after July 1. Employers who rescind leave previously protected by OFLA must give the employee written information that informs the employee of the ability to apply for PLO benefits.
• What if an employee needs to take sick leave after their OSTL is exhausted?
  Answer: It depends. There are several factors to consider, including the eligibility of the reason for leave. While not addressed in this article, employers will want to remember that unpaid leave could also be an accommodation under the ADA.

Next Steps for Employers

With the changes in these laws effective July 1, employers will want to confirm they have reviewed and revised their leave policies and tracking systems for the implementation of the changes. Employers also may want to consider providing refresher training for employees tasked with leave administration.

Lisa Shevlin and Cristin Casey are attorneys with Littler in Portland, Ore. © 2024 Littler. All rights reserved. Reposted with permission.