Quick Hits
- Oregon Governor Kotek is expected to sign a bill that would reduce redundancies in the state’s employee leave laws.
- Eligible employees would still be able to take protected, unpaid leave under the Oregon Family Leave Act (OFLA) for employee health conditions related to pregnancy and for qualifying reasons that are not covered under Paid Leave Oregon, such as bereavement leave and sick child leave.
- Employees also would be able to take up to two weeks of OFLA leave to effectuate the legal process required for fostering or adopting a child until January 2025, when this reason for leave will become available only under Paid Leave Oregon.
- Most changes are scheduled to take effect July 1, 2024.
The legislation, Senate Bill (SB) 1515, which the legislature passed on February 27, 2024, also clarifies how OFLA and Paid Leave Oregon interact with paid time off (PTO) benefits offered by employers and Oregon’s predictive scheduling law.
Key Changes Under SB 1515
OFLA has historically provided an unpaid, twelve-week leave benefit to eligible employees for reasons that are similar to the reasons that qualify for leave under the federal Family and Medical Leave Act (FMLA), although OFLA provides leave for a few reasons that FMLA does not.
Paid Leave Oregon, which took effect in September 2023, is a wage replacement benefit program administered by the Oregon Employment Department. Paid Leave Oregon provides a paid time-off benefit to eligible employees for reasons that are largely duplicative of the reasons qualifying under OFLA.
SB 1515 is designed to reduce the redundancies in OFLA and Paid Leave Oregon by eliminating most (but not all) of the qualifying reasons for OFLA leave that are duplicated under Paid Leave Oregon. SB 1515 also clarifies what limits employers can place on their employees’ use of employer-provided PTO benefits while receiving the wage-replacement benefit under Paid Leave Oregon.
Elimination of Qualifying Reasons for Leave Under OFLA
The most significant change in SB 1515 is the elimination of qualifying reasons for leave under OFLA that are now also covered under Paid Leave Oregon. This includes the elimination of leave to care for the employee’s own or a family member’s serious health condition and leave to care for an infant or a newly adopted or newly placed foster child (i.e. “child bonding leave”).
OFLA leave would continue to be available to eligible employees for reasons that are not qualifying reasons under Paid Leave Oregon. This includes leave to care for a child of the employee who is suffering from an illness, injury, or condition that requires home care or who requires home care due to the closure of the child’s school or child care provider as a result of a public health emergency (i.e., “sick child leave”), and up to a total of four weeks of leave in any one-year period to deal with the death of family members (i.e., “bereavement leave”).
In addition, not all qualifying reasons under OFLA that are covered under Paid Leave Oregon would be eliminated. Leave to recover from an illness, injury, or condition related to the employee’s own pregnancy or childbirth that disables the employee from performing available job duties (i.e., “pregnancy disability leave”) would continue to be available under OFLA, even though pregnancy disability also qualifies for leave under Paid Leave Oregon. Under OFLA, an eligible employee would be permitted to take up to twelve weeks of pregnancy disability leave in a leave year in addition to any other qualifying OFLA reason (i.e., in addition to sick child leave or bereavement leave).
Leave to Effectuate Legal Process for Child Adoption or Foster Placement
For a relatively short period, until January 1, 2025, eligible employees would be entitled to take up to two weeks of OFLA leave in addition to the twelve-week entitlement during a leave year to effectuate the legal process required for the placement of a foster child or the adoption of a child. On January 1, 2025, employees would still be able to take leave for this purpose, but only under Paid Leave Oregon, not under OFLA.
Coordination of Paid Leave Oregon, OFLA, and FMLA
SB 1515 makes clear that Paid Leave Oregon would be in addition to, and not taken concurrently with, OFLA leave. Because of the elimination of most redundant reasons for leave under Paid Leave Oregon and OFLA, the need to coordinate leaves under the two laws primarily arises with employees who have a pregnancy-related disabling condition. Such an employee could qualify for up to fourteen weeks of Paid Leave Oregon and twelve weeks of OFLA in connection with the pregnancy-related disabling condition, and also remain eligible for up to an additional twelve weeks of OFLA for another qualifying purpose in the same leave year (i.e., sick child leave or bereavement leave) and, at least until January 2025, for two weeks of OFLA to effectuate the legal process for child adoption or foster placement.
Employers that are covered under the FMLA would still be permitted to require employees to take FMLA leave concurrently with Paid Leave Oregon or OFLA for any FMLA-qualifying reason.
Coordination of Paid Leave Oregon With Employer-Provided Paid Time Off
SB 1515 clarifies that employees taking Paid Leave Oregon would be entitled to use any accrued sick leave, vacation, or other employer-provided PTO benefit to “true up” the wage-replacement benefit they receive from the Oregon Employment Department so that they receive a full wage replacement while on Paid Leave Oregon. However, it is currently unclear how employers would be informed of what benefit amounts employees receive from the Oregon Employment Department so that employers can know what amount is needed to “true up” the benefit.
Employers may (but are not required to) elect to permit employees to use any accrued sick leave, vacation, or other employer-provided PTO while on Paid Leave Oregon in an amount that causes employees to exceed their full wage replacement amount.
Subject to the terms of any agreement or collective bargaining agreement, employers would also have the right to dictate the order in which accrued leave is used by an employee on Paid Leave Oregon when more than one type is available. For example, an employer could dictate that employees on Paid Leave Oregon who choose to draw down accrued PTO must first exhaust paid sick time, followed by vacation, and so forth.
Coordination With Predictive Scheduling Law
If signed into law, SB 1515 will amend Oregon’s predictive scheduling law to address times when a covered employer has less than fourteen days’ notice that an employee absent on OFLA leave or Paid Leave Oregon will return to work. In these situations, the employer may change the schedule of the employee who was temporarily assigned to cover specific shifts of the employee who is returning from leave without incurring an obligation to pay additional compensation to the rescheduled employee under the predictive scheduling law.
Employers may consider reviewing their Paid Leave Oregon, OFLA, and predictive scheduling policies to ensure that they are prepared for the changes made by SB 1515.
Ogletree Deakins’ Portland (OR) office will continue to monitor developments and will provide updates on the Leaves of Absence and Oregon blogs.
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