Covered Businesses Under Paid Leave Oregon Must Provide 12 Weeks Paid Leave
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Last Updated: 07/27/2023
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After a delayed implementation of Oregon’s paid family and medical leave program – Paid Leave Oregon – the state announced that eligible employees are allowed to apply for leave beginning Aug. 14, 2023, with benefits beginning Sept. 3, 2023.
When House Bill 2005 was originally signed in August 2019, Oregon became the eighth state to establish a paid family and medical leave program for eligible employees. However, unlike programs in California, Connecticut, Massachusetts, New Jersey, New York, Rhode Island, and Washington, Oregon will be the first in the country to offer 100 percent wage replacement for low-wage workers.
Paid Leave Oregon is designed to provide partially or fully compensated time away from work to covered individuals while they are on qualified family leave, medical leave, or safe leave. For those who meet the criteria, Oregon provides up to 12 weeks of paid leave.
Which Employers Will Be Required to Comply with Paid Leave Oregon Provisions?
As defined in the Oregon paid family and medical leave law, there is no minimum employee threshold that determines which employers are required to follow the requirements of Paid Leave Oregon. The law will apply to public and private employers with one or more employees. The law does not apply to the federal government or tribal governments. Self-employed individuals and employees of a tribal government may opt in for coverage under the law.
What is the Oregon PFML Insurance Fund?
The Oregon PFML Insurance Fund is a trust fund established by law and is separate and distinct from the Oregon General Fund. The fund will consist of all monies deposited into the fund from employer and employee contributions, penalties from fees, and all other monies deposited into the fund.
Beginning Jan. 1, 2023, contributions will be paid by employers and employees. The contribution rate is determined by the Director of the Employment Department before the beginning of each year.
- The total rate may not exceed 1 percent of an employee’s gross wages.
- Employer contributions shall be 40 percent.
- Employees shall contribute 60 percent.
There are two exceptions to the percentage of contributions. First, employers that employ fewer than 25 employees are not required to pay the employer contributions. They will be required to collect and remit the employee premium. However, if an employer that employs fewer than 25 employees elects to pay the employer contributions, the employer may apply to receive a grant set forth in the Oregon PFML.
Second, an employer may elect to pay the required employee contributions, in whole or in part, as an employer-offered benefit.
The law does identify that employers will be responsible for filing a combined quarterly report of wages earned and contributions paid under this section on a form prescribed by the Department of Revenue. The report shall be accompanied by payment of any contributions due.
When Do Paid Leave Oregon Employee Benefits Take Effect?
While the law requires contributions be paid beginning Jan. 1, 2023, employees are not eligible to receive benefits until Sept. 3, 2023.
What is an “Eligible Employee” Under Paid Leave Oregon?
Under Paid Leave Oregon, an eligible employee is one who has:
- Earned at least $1,000 in wages during the base year (defined as the first four of the past five completed calendar quarters proceeding the benefit year), or
- An employee who has earned at least $1,000 in wages during the alternate base year (defined as the last four completed calendar quarters proceeding the benefit year).
The law defines an employee as an individual performing services for an employer for pay or under any contract of hire, written or oral, express or implied. The law does not apply to independent contractors, participants in a work-study program in a secondary or post-secondary educational institution, a railroad worker exempted under the U.S. Railroad Unemployment Insurance Act, or volunteers.
What Are Reasons for Qualified Leave Under Paid Leave Oregon?
Eligible leave will include time away from work that can be used for the following reasons, individually or in any combination:
- To care for and bond with a child through birth, adoption, or foster placement within the first 12 months
- To care for a family member with a serious illness or injury (see below for definition of “family member”)
- To care for an employee’s own serious illness or injury
- Safe leave to seek medical, legal, or law enforcement assistance to address an incidence of domestic violence, harassment, sexual assault, or stalking
The law makes clear that Paid Leave Oregon will not include leave for active military service or impending active duty in the Armed Forces or the death of a family member, although leave under other state and federal programs might be available for those reasons.
Who is Considered a “Family Member” Under Paid Leave Oregon?
Oregon’s definition of “family member” includes a spouse, a parent, a sibling or stepsibling, grandparent, grandchild, domestic partner, and an individual related by blood or who lives with or is connected to the eligible employee like a family member.
The Oregon state website also provides definitions of “parent” and “child”.
How Long May an Employee Be Away from Work Under Paid Leave Oregon?
A covered individual may qualify for up to 12 weeks of family and medical leave insurance benefits per benefit year for leave taken for any of the following purposes, in any combination:
- Family leave
- Medical leave
- Safe leave
A covered individual who has taken any amount of paid leave available through Paid Leave Oregon may take up to 12 weeks of leave in the benefit year. If the covered individual is pregnant, has given birth, or has health issues related to childbirth, they may be able to take up to two more weeks for a total of 14 weeks.
Any family leave or medical leave taken under Paid Leave Oregon that also qualifies for unpaid leave under the Oregon Family Leave Act or under the federal FMLA must be taken concurrently. Individuals might be eligible for additional unpaid time off under these leaves.
Paid family and medical leave benefits are in addition to any paid leave time under the Oregon Paid Sick Leave law or paid leave provided by the employer (e.g., vacation leave or other paid leave earned by an employee).
What are the Benefits Available to an Employee Under Paid Leave Oregon?
The benefits available to an employee are dependent on the employee’s average weekly wage.
If the eligible employee’s average weekly wage is equal to or less than 65 percent of the state’s average weekly wage, the employee’s weekly benefit amount shall be 100 percent of the employee’s average weekly wage.
If the eligible employee’s average weekly wage is greater than 65 percent of the state’s average weekly wage, the employee’s weekly benefit amount is the sum of:
- 65 percent of the average weekly wage; and
- 50 percent of the employee’s average weekly wage that is greater than 65 percent of the average weekly wage
There will be a maximum benefit amount equivalent to 120 percent of the state’s average weekly wage and a minimum benefit amount equivalent to 5 percent of the state’s average weekly wage. Benefits are payable only to the extent that monies are available in the PFML Insurance Fund.
What If an Employer in Oregon Offers Its Own Paid Leave Program?
An employer who elects to offer an equivalent plan can seek exemption from Paid Leave Oregon contributions. To be approved, the employer must show the following:
- The plan is made available to all employees who have been continuously employed with an employer for 30 days.
- The benefits afforded to employees covered under the equivalent plan are equal to or greater than the weekly benefits and the duration of leave that an eligible employee would qualify under the Oregon PFML.
Employers must apply to opt-out and pay an application fee. The application fee is $250. If the exemption is approved, neither an employer that provides benefits under an approved equivalent plan nor an employee covered under such a plan is required to make the Oregon PFML contributions.
What Notice is an Employee Required to Provide?
An employer may require an eligible employee to give the employer written notice – including an explanation for the reason the leave is requested – at least 30 days before starting a period of family leave, medical leave, or safe leave.
If the leave is not foreseeable (e.g., an unexpected serious health condition, premature birth of a child, unexpected adoption), the employee will be required to give oral notice to the employer within 24 hours of the commencement of the leave and must provide written notice within three (3) days after commencement of the leave. An eligible employee who takes safe leave shall give the employer reasonable advanced notice of the individual’s intention to take safe leave, unless giving the advance notice is not feasible.
If an employee fails to provide proper notice, the state may reduce the first weekly benefit amount payable to the employee by up to 25 percent.
Does Paid Leave Oregon Include Employment Protection and an Anti-Retaliation Provision?
Yes. After returning to work from paid family and medical leave, an eligible employee is entitled to be restored to the position of employment held by the employee when the leave commenced, if that position still exists, without regard to whether the employer filled the position with a replacement worker during the period of leave. If the position held by the employee at the time leave commenced no longer exists, the employee is entitled to be restored to any available equivalent position with equivalent employment benefits, pay and other terms and conditions of employment.
For employers who employ fewer than 25 employees, if the position held by an eligible employee when the employee’s leave commenced no longer exists, an employer may, at the employer’s discretion based on business necessity, restore the eligible employee to a different position with similar job duties and with the same employment benefits and pay.
During a period in which an eligible employee takes paid family and medical leave, the employer must maintain any health care benefits the employee had prior to taking such leave for the duration of the leave, as if the employee had continued in employment continuously during the period of leave.
The law makes it an unlawful employment practice to deny leave or interfere with any right to which an eligible employee is entitled to under Paid Leave Oregon.
The law clarifies that temporary workers who were hired to replace an eligible employee taking PFML do not have rights to be retained by the employer. The employer may terminate or reassign the temporary worker. However, the employer must at the time of hire or reassignment due to paid family and medical leave, inform the temporary worker of their status as a temporary worker due to such leave.