Paid Leave Oregon Benefits Available Starting Sept. 3, 2023

Mark A. Crabtree & Kevin M. Coles

Jackson Lewis P.C.

More than four years since the passage of Oregon’s Paid Family Medical Leave Act into law, paid leave benefits will finally be available to Oregon employees starting Sept. 3, 2023. Applications for benefits, toolkits, and quick start guides are all now available online at paidleave.oregon.gov. Here is what employers need to know.

Benefits

Any employee in Oregon that has earned at least $1,000 in the prior year may qualify for up to 12 weeks of paid family, medical, or safe leave in a benefit year (with up to two additional weeks available for limitations relating to pregnancy, childbirth, or a related medical condition). Employees will receive a percentage of their wages depending on how much they earned in the prior year. Benefits are approved, calculated, and paid through the state’s Paid Leave Oregon (PLO) program. In 2023, the minimum and maximum weekly benefit amounts will be $63.48 and $1,523.63, respectively.

Employees who have worked for their employer at least 90 consecutive calendar days are also guaranteed job protection rights, and employers must continue to provide the same health benefits and pension rights to those employees.

Contributions

Since Jan. 1, 2023, Oregon employers and employees have shared the cost of Paid Leave Oregon through a 1% post-tax contribution rate on the first $132,900 (adjusted annually) of each employee’s gross wages. Employers are responsible for 40% of the total contribution rate while employees pay the other 60%. Employers may opt to cover the entire contribution (including employees’ portion) as an additional benefit to employees.

Employers who opt to apply for approval and administer their own equivalent plans, together with their employees, may be exempt from the statewide contribution requirements.

Notice Requirements

Employers are required to provide written notice to employees of their rights and duties under the new law. Paid Leave Oregon has developed a model poster that meets these requirements. Employers must display the notice poster in each of the employer’s buildings or worksites in an area that is accessible to and regularly frequented by employees. The notice must also be displayed in the languages an employer typically uses to communicate with its employees. Employees assigned to remote work must receive the same notice by hand delivery, regular mail, email, or another electronic delivery method.

Employees, for their part, must give their employers 30 calendar days’ notice when commencing paid leave if the leave is foreseeable. Employers may require that the notice be in writing. If the leave is not foreseeable, the employee must give oral notice within 24 hours of the commencement of leave and must provide written notice within three (3) days.

Relationship with Other Leave Laws

Paid Leave Oregon does not replace employees’ other leave entitlements under existing state and federal laws, such Oregon Family Leave Act (OFLA), Oregon Sick Leave (OSL), and the federal Family and Medical Leave Act (FMLA). In general, if the employee qualifies for more than one leave entitlement, those benefits run concurrently. For example, if an employee qualifying for both Paid Leave Oregon and the FMLA takes four weeks of protected leave for a serious health condition, those four weeks will draw down from both the employees’ Paid Leave Oregon and FMLA banks.

In practice, however, there will be a variety of circumstances where benefits will not run concurrently. In those cases, employees may be able to “stack” various leaves beyond the individual time limitations set by each statute. For example:

• Under Paid Leave Oregon and OFLA, employees may take protected leave to care for a broad range of “family members” who are otherwise not covered under the FMLA, including unmarried domestic partners, grandparents and grandchildren, and friends whose close association with the employee is equivalent of a family relationship.
• Paid Leave Oregon provides safe leave for those experiencing domestic violence, harassment, sexual assault, or stalking. OFLA and the FMLA do not.
• Employee eligibility requirements differ among the various leave laws. An employee may be eligible for some Paid Leave Oregon benefits immediately after hire, but not other benefits until six months (OFLA) or a full year (the FMLA) after hire. Part-time employees may be eligible for Paid Leave Oregon, but never become eligible for OFLA or the FMLA.

Paid Leave Oregon and the Oregon State Legislature have worked to minimize some but not all presumably unintended consequences. Oregon employers must carefully develop and maintain attendance tracking systems to account for their employees’ use of the different leaves available.

PTO “Top Offs”

Higher earners in Oregon who take Paid Leave Oregon leave will receive only a percentage of their weekly wages or salaries through the program. Oregon’s paid leave law therefore gives employers discretion to allow their employees to use other accrued paid leave benefits (PTO, vacation time, etc.) to supplement their weekly income and avoid an effective pay cut while out on leave.

Employers who opt to allow employees to use their accrued paid leave benefits while out on leave will face some obvious administrative hurdles. This is because Paid Leave Oregon, not the employer, is responsible for receiving and approving employee applications for paid leave benefits, and for calculating and paying out the benefit amounts. Employers will need to coordinate closely with their employees and Paid Leave Oregon to determine the amount and duration of any accrued paid benefit supplements.

Additionally, unlike Paid Leave Oregon, OFLA and the FMLA give employees the right in most instances to demand that their employers apply their accrued paid leave benefits during periods of unpaid leave. In other words, the employer does not have discretion whether to allow or disallow the use of accrued paid leave benefits under OFLA and the FMLA. According to Oregon’s Bureau of Labor and Industries, in cases where an employee’s Paid Leave Oregon leave runs concurrently with FMLA or OFLA leave, the employer must allow the use of accrued paid leave benefits.

Out of State Workers

Employers also have questions about their employees living or working in other states, including when these employees are covered under Oregon Paid Leave laws and when the employer and employee are required to make Paid Leave Oregon contributions. Paid Leave Oregon, in conjunction with Washington State’s Employment Security Department, has issued helpful guidance on these questions, including a three-step analysis for determining coverage and a number of illustrative examples.

Under this published guidance, Paid Leave Oregon first asks where the work is performed. If all the work is physically performed in Oregon, all wages are reportable to Oregon. Second, if the work is performed in multiple states with regularity, including Oregon, Paid Leave Oregon looks to the base of operations or from where direction and control of the employee emanates. If the answer is Oregon, then all wages are reportable to Oregon. Finally, if the work is performed in multiple states with regularity, including Oregon, and the direction and control emanates from another state, then Paid Leave Oregon looks to where the employee resides. If the employee resides in Oregon, then all wages are reportable to Oregon.

***This article originally appeared on the Jackson Lewis’ Disability, Leave & Health Management blog and was reposted on the DMEC website with their permission.***