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March 20, 2013

Employers Beware: Portland City Council Passes Sick Leave Mandate

March 20, 2013

By Leora Coleman-Fire


Leora Coleman-Fire - Employment Attorney - Portland, OR
By Leora Coleman-Fire

Leora Coleman-Fire - Employment Attorney - Portland, OR

The City of Portland joined Seattle, San Francisco, Washington D.C., and the State of Connecticut when the Portland City Council unanimously passed a paid sick leave ordinance on March 13, 2013. The ordinance will take effect on January 1, 2014, after further rulemaking is concluded. However, it is important for all employers with employees who perform work within the City of Portland to be ready for the changes.

What Employers Should Do Now

1. Relax – Portland's sick leave ordinance does not go into effect until January 1, 2014, which means you have time to understand what is required and take appropriate action.

2. Review – Take a look at your current leave and paid time off (PTO) policies and see how they match up with the Portland sick leave ordinance requirements. If your policies meet the minimum requirements of the ordinance, no changes to your policies will be necessary.

3. Calendar – Mark your calendar with the following important dates:

  • September-December 2013:
    • Update your handbooks to be compliant with the ordinance and related administrative rules, which should be finalized at about this time.
    • Train managers and human resources personnel to understand the new ordinance and be ready to properly implement.
  • January 1, 2014:
    • Begin documenting the hours worked, sick time accrued, and sick time used by current employees. For any new employees hired after January 1, 2014, begin the same documentation process, but calendar 90 days from the employee's start date for when s/he will be able to use accrued sick leave.
    • Provide and post notices (in English and any other languages used to communicate with your workforce) of employee rights under the new ordinance. The City will provide a template for the notice and the Oregon Bureau of Labor & Industries (BOLI) will likely create and disseminate the required poster.

The Key Points, in Brief, of the Portland Sick Leave Ordinance

1. A covered employer includes any employer with one or more employees (not including properly classified independent contractors) who work at least 240 hours in a calendar year within the geographic boundaries of the City of Portland. This includes even employees who are headquartered elsewhere, but stop in Portland to conduct business.

2. Employers with five or fewer employees must provide employees with one hour of unpaid sick time for every 30 hours of work performed in the City of Portland.

3. Employers with six or more employees must provide employees with one hour of paid sick time for every 30 hours of work performed in the City of Portland.

4. On January 1, 2014, sick time will begin to accrue for employees of covered employers. After January 1, 2014, new employees will start to accrue sick time at the commencement of their employment, but new employees will not be able to use their sick leave during the first 90 calendar days of employment.

5. A maximum of 40 hours of sick time may be accrued in a calendar year and employees may carry over up to 40 hours of unused sick time from the previous calendar year. Even if the employer sells, transfers, or otherwise assigns the business to another employer, employee's accrued sick time will transfer.

6. Compensation for unused sick time is not required upon separation of employment. Employers should include this policy in their employee handbook.

7. Sick time can be taken in one hour increments, to cover all or part of a shift, and to cover up to 40 hours per calendar year.

8. Sick time can be used for various health-related reasons, including: the diagnosis, care, or treatment of the employee or the employee's family member's mental or physical illness, injury, or health condition; in response to domestic violence, harassment, sexual assault or stalking; or if an employee's child's school or business is closed due to a public health emergency.

9. Employees cannot be forced to find a replacement or work an alternate shift as a condition of or to make up for their use of sick time.

10. Employers will be required to establish written policies for how employees provide sick leave notice. Employers can include in their policies that for absences of more than three consecutive days, employees must provide reasonable documentation that their sick time is being used for one of the legally-allowed purposes. Employers must then pay for any uncovered cost owed by the employee as a consequence of obtaining such documentation. Employers cannot count earned sick leave as an absence that may lead to or result in an adverse employment action.

11. An employee's exercise of sick time rights is protected and no employer or other person may interfere with, restrain or deny the exercise of (or the attempt to exercise) any right related to sick leave.

12. Employees may not be retaliated against for exercising their rights. Employees can file claims with BOLI, which will enforce this ordinance, or private lawsuits against their employer.

13. Employers must post notices of employee rights related to sick leave when the required poster becomes available.

14. Employers must keep records documenting the hours worked, sick time accrued, and sick time used by employees, for a period of at least two years.

We are keeping a close eye on Portland's sick leave ordinance and will continue to stay up-to-date on new information as it becomes available. This sick leave ordinance raises novel and complex issues, which we can help you navigate. Please feel free to contact us with your questions and concerns.


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