Released for Public Comment: Portland Sick Leave Ordinance Draft Rules Offer Important Clarification and Opportunity to Respond
Commissioner Amanda Fritz's office published the draft administrative rules for the Portland Sick Leave Ordinance, which means further clarification on what employers need to do in order to comply (and the steep consequences if they don't)as we approach January 1, 2014, when the Portland Sick Leave Ordinance will go into effect.
After Portland City Council passed the Portland Sick Leave Ordinance on March 13, 2013, we analyzed the Ordinance to find out what employers would need to do in order to prepare (see my last article covering the basics of the Ordinance
Toolbox for Where to Find the Ordinance, Rules, and an Opportunity to Comment
1. Find the Ordinance here.
2. Find the Draft Rules here.
3. On or before September 6, 2013, you can have your voice heard on the draft rules via written comment or in-person.
a. You may attend the public meeting, scheduled for this Thursday, August 22 from 6:30 p.m. to 8 p.m. in the Portland Building, Room C, 1120 SW 5th Avenue, 2nd Floor. I will be there, so feel free to introduce yourself, and, if you can't make it, I will draft a third article on this topic to report what happened.
b. You may send written comments using the comment form available online here or by mailing your comments to the City Attorney's Office at the below address. Comments must be received by September 6, 2013.
City Attorney's Office
Attn: SLAR Comments
1211 SW 4th Avenue, Ste. 430
Portland, OR 97204
Employer Checklist to Prepare for Compliance
R Properly Classify Workers. Ensure that your workers are properly classified as "independent contractors" versus "employees." Independent contractors are not covered by the Ordinance, which means avoiding the Portland Sick Leave Ordinance's recordkeeping requirements, sick leave accrual calculations, and sick time use for these workers. Proper classifications require careful legal analysis and you should consult with our employer lawyers for assistance.
R Revise Your Employee Handbook by January 1, 2014. The Administrative Rules for Portland's Sick Leave Ordinance leave open a few options for employers on whether or not to offer certain benefits or require certain procedures. Whatever decision you make for your business, revise your employee handbook to clearly explain your new policies. Below are the significant issues you should decide how to proceed on and then consult with our employment attorneys to draft policies to reflect your decision that are tailored to fit your business operations.
1. Cashing Out. You are not required to allow an employee to cash out accrued and unused sick time at termination of employment or at the end of the calendar year.
2. Shift Trading. You may allow shift trading where, if an appropriate shift is available, an employee may work additional hours or shifts during the same workweek without using available protected sick time for the missed hours or shifts. Note that you may not place conditions (such as finding a replacement or working an alternate shift) on an employee requesting to take protected sick time leave.
3. Employee Notice. You may require employees to provide reasonable notice of an absence for protected sick time leave. If you do create a policy for providing reasonable notice, you must also create a written policy for how an employee gives reasonable notice (such as calling a designated phone number). You should also provide for an explanation of what is reasonable notice based on whether the reason for the leave is foreseeable or unforeseeable.
R Revise Your Recordkeeping and Notification System.
1. Revise Your Recordkeeping System. Your recordkeeping will need to include the following information for each employee for a period of at least two years (even if the employee transfers to a job outside the City of Portland):
a. name, address, and occupation;
b. the actual hours worked each week and each pay period; and
c. sick time accrued and used.
2. Provide General and Employee-Specific Notice. You must provide the following written notice to all employees who work in the City of Portland (and greater area where the City has jurisdiction):
a. General notice of (1) an employee's entitlement to sick leave, (2) the amount of sick time and the terms of its use guaranteed under the Ordinance, (3) the prohibition against retaliation, and (4) an employee's right to file a complaint ifprotected sick time is denied or if the employee is retaliated against for requesting or taking leave.
b. Quarterly notice to each employee of the amount of accrued and unused sick time available for that employee.
RTrain Managers/Human Resources Staff. Managers and HR staff should receive specific training on how to respond to employee requests for leave, absences, and record requests. Some of the important points to make follow:
1. Managers and HR staff should not require an employee to give an explanation of the illness or other reason for the absence, unless the absence is for a purpose covered by a federal, state, or other local law, such as family medical leaveor reasons related to domestic violence, harassment, sexual assault, or stalking. Consider creating a checklist of reasons the employee cannot be at work that day and ask the employee which one applies without asking for a detailed explanation.
2. Train managers and HR staff to keep all records regarding use of sick time for purposes related to domestic violence, harassment, sexual assault, or stalking confidential and do not release these records without the express permissionof the employee, unless otherwise required by law.
3. Emphasize that retaliatory conduct (such as threatening to terminate an employee who requests leave) will be strictly prohibited.
Filling in the Blanks: What the Draft Rules Clarified
This section provides a brief overview of new information that the draft administrative rules clarified. For a basic review of the Portland Sick Leave Ordinance, click here.
1. Eligible Employee = 240 Hours + 89 Calendar Days Worked. Employees start to accrue sick time on January 1, 2014 (or at the commencement of employment if an employee is hired after January 1, 2014), but cannot use their sick time until they have worked 240 hours in a calendar year and 89 dayshave passed since the commencement of their employment. Thus, if the employee has worked 240 hours in a calendar year (which could be the prior year), then on the 90th calendar day of employment, the employee may use accrued sick time.
2. Forty Hours Max Really Is Forty Hours Max. Employees may accrue and use a maximum of 40 hours of sick time in a calendar year, regardless of how many hours of accrued and unused sick time carried over from the previous calendar year. For example, if an employee accrues and then uses forty hours of sick time in a calendar year, the employee may then continue to accrue up to 40 hours of sick time, but this sick time cannot be used during that calendar year. Instead, the accrued and unused sick time will transfer to the next calendar year when the employee can again start using up to 40 hours of sick time.
3. Travelling-Through Does Not Count. Employees who travel through the City, but do not stop in the City for their work (incidental stops, such as filling up their gas tank, don't count), are not covered by the Ordinance.
4. Calculating Your Number of Employees. The Ordinance requires employers with 5 or less employees to provide unpaid sick leave, while employers with 6 or more employees must provide paid sick leave. If you are a smaller employee or have a sudden fluctuation in your workforce, pay especially careful attention: (1) all employees (regardless of whether they are full-time, part-time, temporary, or work outside of the State of Oregon) must be counted toward the total number; (2) On January 1, April 1, July 1, and October 1, employers must calculatetheir total number of employees. For example, if on January 1 an employer has 5 total employees, then for that quarter, eligible employees will earn unpaid sick time. If on April 1, the employer grew to 6 employees, employees will now earn paid sick time for the second quarter. Even if the employer then dips back down to 5 employees, the employer must allow employees to use accrued and unused paid sick time from the previous quarter.
5. Required Use. Eligible employees must use accrued sick time hours on the first day and each subsequent day of absence for a qualifying absence until all accrued time has been used.
Portland's Sick Leave Ordinance raises novel and complex issues, which we are ready to help you navigate. We will continue to keep you updated on the latest information as it becomes available. Please feel free to contact us with your questions and concerns.