Public Hearing on Portland Sick Leave Ordinance Provides More Questions Than Answers
On Thursday, August 22, 2013, Commisioner Amanda Fritz's office held a public hearing on the draft administrative rules for the Portland Sick Leave Ordinance. (For basic information on the Ordinance and draft Administrative Rules, click here and here for past articles.) In attendance were various employers, a representative from the Bureau of Labor and Industries ("BOLI"), members from the task force that worked on drafting the Ordinance, among others. There to answer questions were Commissioner Amanda Fritz, Tom Bizeau (City of Portland Chief of Staff), and other City of Portland staff. Unfortunately, the attorney from the City Attorney's office who is working on drafting the rules was on vacation.
There were a number of comments made by the panel of people answering questions that could not be found in the Ordinance or the draft administrative rules. Therefore, while this was new information, it should not be relied upon until and unless we see these comments in writing.
For example, Commissioner Fritz stated that if an employer has a paid time off ("PTO") policy and an employee were to use up his/her entire PTO bank on travel and then got sick, an employer would not be required to give the employee protected sick time under the Ordinance. As she put it, if you choose to waste your PTO and not save any time for an event covered by the Ordinance, then that is your problem. This would be a substantial and significant addition to the Ordinance and rules.
The panel also stated that they intended there to be a two-year statute of limitation period so that individuals who felt that they had been retaliated against for requesting or taking sick leave would only have two years to file a complaint. This statute of limitations is more generous than the one year statute for most other retaliation provisions in the Oregon statutes. We intend to bring this to Commissioner Fritz's attention. However, including a statute of limitations in the rules, where one did not appear in the statute is an important protection for employers.
Still Unanswered, But May Be Clarified
The public hearing made clear that there are still many significant issues that have not been properly addressed or need to be clarified.
For example, no one could answer whether multiple or joint employers of a single employee would each need to provide 40 hours of sick time to that single employee or if they could share the burden. Likewise, Commissioner Fritz stated that she would clarify whether an employee begins accruing sick time when the employee crosses the City limit line or whether it starts when the employee actually arrives at his/her destination within the City. In addition, Commissioner Fritz stated that she would consider further defining "a calendar year," which is the cycle for calculating sick time accrual, sick leave use, and carryover from one calendar year to the next. Many members of the public suggested "a calendar year" include an employer's fiscal calendar year in order to decrease the administrative burden for employers operating on cycles that do not run from January 1 to December 31.
If nothing else, the public hearing demonstrated that there is still much work to be done to provide proper guidance on what it means to be in compliance with the Ordinance. Commissioner Fritz stated that she hopes to have the administrative rules finalized by the end of September, along with a poster and FAQ sheet by the end of the year. The Ordinance goes into effect on January 1, 2014. We will continue to keep you up to date on the Ordinance as we gather more information. In the meantime, do not hesitate to contact us with your comments, questions, and concerns.