The ink is not yet dry on Senate Bill 999, drafted to attempt coordination of the Oregon Family Leave Act (OFLA) and the Oregon Paid Family and Medical Leave Act also called “Paid Leave Oregon” (PLO). On June 7, Senate Bill 999 was signed into law and became effective immediately.
Overview of Current OFLA and PLO Law
For many years, employees of employers with at least 25 employees have been eligible for up to 12 weeks a year (and in some cases more) of legally protected unpaid OFLA leave for certain medical and family leave reasons if they (i) have been employed for 180 days (or, following recent previous amendments, 30 days during a public health emergency), and (ii) work an average of at least 25 hours per week (except for parental leave). Employees of employers with at least 50 employees in a 75-mile radius have also long been eligible for up to 12 weeks of leave per year under the federal Family and Medical Leave Act (FMLA) for similar, but not all of the same, medical and family leave reasons after 12 months’ employment and working at least 1,250 hours.
Employers covered by both OFLA and FMLA already had challenges navigating and tracking leave under both the state and federal schemes. Those challenges increased when the Oregon legislature enacted the new PLO program that becomes available to employees September 3, 2023, which has yet another set of standards for application and employee eligibility.
Generally speaking, PLO applies to employers in Oregon of all sizes, and employees are eligible to apply for PLO after earning $1,000 in wages in the benefit year and entitled to employer job protection after 90 days’ employment. Like OFLA, PLO is also generally limited to up to 12 weeks of legally protected paid leave per year (or 14 weeks if the employee is eligible for two additional weeks for pregnancy- or childbirth-related reasons), but uses a different benefit year and definition of “family member” and does not cover all of the same medical and family leave reasons as OFLA.
Summary of Legislative Changes
Senate Bill 999 makes several changes to clarify and improve alignment between OFLA and PLO, including the following.
- Concurrent Use of Leave. Existing leave law already provided that leave covered by both OFLA and the federal FMLA would track concurrently and count toward both OFLA and FMLA usage. When the state legislature enacted PLO, it included language providing that leave covered by both PLO and OFLA could run concurrently. However, OFLA did not contain similar language, leaving an open question as to whether it permitted or required concurrent use of OFLA with the new PLO.
Senate Bill 999 amends the OFLA statute to explicitly require concurrent usage of OFLA leave along with PLO usage, like with FMLA. But this concurrent use does not necessarily go both ways.
Under the amendments, if an employee applies for and uses PLO for a reason that is also covered by OFLA, the leave taken must also run concurrently as and count toward OFLA usage. However, there is no provision in existing law or in amendments to it explicitly allowing the employer to require an employee to also apply for and concurrently use PLO if they request to use OFLA leave for a purpose also covered by PLO. Thus, it remains possible that an employee could choose to use unpaid OFLA first, and then later take PLO for the same reason, effectively stacking the leave without a requirement of concurrent usage. In such case, however, existing law does limit the amount OFLA and PLO leave stacking to a combined total of 16 weeks per benefit year (or 18 weeks if the employee was eligible for two additional weeks of PLO for pregnancy- or childbirth-related reasons).
In addition to limiting stacking in that circumstance, it is impossible to have complete concurrence of PLO, OFLA, and FMLA usage, because employee eligibility requirements differ and there are types of leave or family members covered by one scheme that are not covered by another. For example, OFLA includes sick-child care and bereavement leave, whereas PLO and FMLA do not. In addition, PLO and OFLA cover a broader category of who qualifies as a family member as compared to FMLA. Thus, employers will need to be more careful than ever in determining which leave scheme(s) applies and whether concurrent usage is required or allowed, and in applying and tracking each type of leave.
- Benefit Year Change. Previously, Oregon employers had a choice under OFLA and FMLA to use the benefit year of their choice (i.e., the calendar, fiscal, rolling forward, or rolling backward year). PLO, however, uses only a rolling forward year, for the 12-month period beginning on the Sunday before PLO leave commences. Using different leave years for different types of leave makes it more difficult for employers to track both concurrent and non-concurrent leave usage.
To address that problem, Senate Bill 999 amends OFLA to require employers to use the same 12-month rolling forward year beginning on the Sunday before leave commences for OFLA leave. Employers will have until July 1, 2024, to transition to the new leave year definition, but may want to consider implementing this change by September 1, 2023, when PLO leave becomes available to employees, to have aligned leave years from the outset of PLO. Employers who must change their OFLA leave year as the result of this amendment should keep in mind that the law requires them to provide their employees with 60 days’ advance notice of the OFLA leave year change.
- Expanded Definition of Family Member. OFLA has long applied a broader definition of “family member” as compared to FMLA, extended to include same-sex registered domestic partners and their parents and children. When the legislature enacted PLO, it included an even more expansive definition of “family member” to include “a person with whom the employee has a relationship by blood or affinity, siblings and stepsiblings, and the sibling’s spouse or domestic partner and the spouse or domestic partner of the employee’s child/stepchild, grandparent, or grandchild.”
Senate Bill 999 amends OFLA to use PLO’s more expansive definition of “family member.” It also amends both OFLA and PLO to add the following guidance:
In order to determine whether an individual qualifies as a family member by reason of affinity … consideration shall be given to whether there exists a significant personal bond attributed to factors, established by the Director of the Employment Department by rule, that, when examined in total, resemble a family relationship.
Senate Bill 999 also provides that “the rules may include rules for developing and using an attestation form by which an employee may attest to the affinity factors.”
Based on those directions, the Oregon Employment Department (OED) and likely the Oregon Bureau of Labor and Industries (BOLI) are expected to adopt rules outlining those factors and clarifying what is meant by the term “relationship by blood or affinity.” They may also provide required or optional template attestation forms.
The Oregon agencies could choose to adopt a definition similar to that provided in a similar Colorado statute, which sets a two-part test: (1) There must exist a significant personal bond that is like a family member; and (2) the employee must have some ties with the individual, such as:
(a) Shared personal financial responsibility, such as shared leases, common ownership of real or personal property, joint liability to pay bills, or a beneficiary designation;
(b) Emergency contact designation;
(c) An expectation of care created by the relationship, or by the prior provision of care;
(d) Cohabitation; or
(e) Geographical proximity.
Notably, the separate Oregon Sick Leave laws incorporate and apply OFLA’s definition of “family member,” so the expanded definition will now apply to Oregon Sick Leave as well.
- Equivalent Job Offer. Currently, OFLA provides that if the job of an employee returning from leave is no longer available, the employer must offer the employee an equivalent job at another location within 20 miles of the original job site. Senate Bill 999 amends that provision of OFLA to expand that distance to 50 miles. Additionally, if there are several jobs within the 50-mile range, it requires the employer to offer the employee the closest position to the former jobsite. Senate Bill 999 also amends the PLO statute to include these requirements for employers with at least 25 employees, (to offer an employee returning from PLO whose job is no longer available an equivalent job at another location within 50 miles of the original job site and to the closest position if there are several job sites in that range).
- Recovery of Unpaid Benefit Contributions During PLO. Under existing law, OFLA and PLO did not align with respect to an employer’s ability to recover contributions for an employee’s medical benefits while the employee is on leave. Under OFLA, an employer could require that when an employee returns from leave, the employee must repay any benefits premium contributions that the employer made on the employee’s behalf while the employee was on OFLA leave. As initially enacted, the PLO statutes did not include a similar provision. Senate Bill 999 enacts this same provision for PLO.
- Jurisdiction to Resolve Complaints. Currently, the PLO statutes provide that an employee may bring a civil action or file a complaint with BOLI relating to unlawful employment practices associated with PLO. The PLO statute also includes an appeals process that employers can use related to decisions on equivalent plan approval or that employees can use regarding benefit decisions; this is administered by the OED. Senate Bill 999 provides that the ability for an employee to bring a civil action or file a complaint with BOLI will not apply if the OED appeals process provides a remedy.
- Effective Dates. Senate Bill 999 will become effective upon enactment, with two exceptions. First, employers will have until July 1, 2024, to fully change over to a rolling forward OFLA leave year that begins on the Sunday before leave begins. Second, although the Act will be effective upon enactment, some provisions will not be operational until September 3, 2023 (for example, the provision of leave).
Remaining Gaps Between OFLA and PLO
Unfortunately, Senate Bill 999 does not achieve full alignment of the OFLA and PLO statutes. For example, there is still a coverage discrepancy as to when an employee is eligible for leave—that is, an employee is eligible for PLO at 90 days of employment, but is not eligible for OFLA until 180 days (or 30 days during a public health emergency). We can expect that there will be future efforts to further align these two leave schemes in the coming years, but this is, at least, a beginning.
Employers should keep these dates in mind when taking steps to change the OFLA benefit year (including giving employees the required 60 days’ notice), as well as updating other policies, handbooks, and computer or other leave recordkeeping systems in accordance with the new OFLA and PLO provisions.
This article summarizes aspects of the law and does not constitute legal advice. For legal advice for your situation, you should contact an attorney.
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