By Jordan Jeter
The projected start date for Paid Leave Oregon (PLO)—September 3, 2023—is just around the corner. As employers work to get their policies ready, one of the common questions is what to do when PLO does not align with the Oregon Family Leave Act (OFLA), which has been in place for decades. Oregon lawmakers have also grappled with that question and, last month, Governor Kotek signed into law Senate Bill (SB) 999, which aims to better align the two Oregon leave laws. With the new changes, OFLA and PLO are more similar to each other, but increasingly distinct from their federal counterpart, the Family Medical Leave Act (FMLA).
The new law clarified the following five changes to OFLA and PLO:
- How to calculate a benefit year;
- Who is a qualifying family member;
- What reinstatement rights employees have following protected leave;
- When an employer must continue an employee’s benefits; and
- Whether leave will run concurrently under the different systems.
First, SB 999 amends OFLA’s process for calculating the benefit year. Previously, OFLA provided Oregon employers options for calculating the one-year period during which eligible employees may take leave. PLO, however, does not provide options and, instead, requires employers to use a forward-looking method. Under SB 999, the forward-looking method will be required for both PLO and OFLA, effective July 1, 2024. As such, the benefit year will be the 12-month period beginning on the Sunday immediately before the date on which the leave commences. Employers should plan on updating their FMLA policies to align the benefit year calculations with the new law, but keep in mind that changes to the FMLA benefit year require at least 60 days’ notice and cannot impact an individual employee’s ability to take leave. These changes will, therefore, require careful planning.
Second, SB 999 amends OFLA’s definition of “family member” to mirror PLO and include individuals related by blood or affinity whose close relationship is the equivalent of a family relationship. Effective September 3, 2023, both PLO and OFLA define “family member” as:
- The spouse of a covered individual;
- A child of a covered individual or the child’s spouse or domestic partner;
- A parent of a covered individual or the parent’s spouse or domestic partner;
- A sibling or stepsibling of a covered individual or the sibling’s or stepsibling’s spouse or domestic partner;
- A grandparent of a covered individual or the grandparent’s spouse or domestic partner;
- A grandchild of a covered individual or the grandchild’s spouse or domestic partner;
- The domestic partner of a covered individual; or
- Any individual related by blood or affinity whose close association with a covered individual is the equivalent of a family relationship.
SB 999 directs the Oregon Employment Department and BOLI to adopt rules, no later than September 3, 2023, outlining what factors should be used in determining whether a close family relationship exists. We will keep you informed as this develops.
Third, SB 999 amends the reinstatement rights under OFLA and PLO. Both OFLA and PLO provide job protection rights for employees returning from leave; employers must return the employee to the same job position if that position still exists. The amendment does not change that requirement but, instead, addresses what employers must do when the position no longer exists. Effective September 3, 2023, if the employee’s position no longer exists upon returning from OFLA or PLO leave, employers must offer an equivalent position at a job site located within 50 miles of the employee’s former position. If equivalent positions are available at multiple job sites, the employer must first offer the position at the job site that is closest to the employee’s former job site.
Even with that amendment, however, job protection rights under OFLA and PLO are not perfectly aligned. Specifically, employees are entitled to job protection under OFLA if they have been employed at least 180 days and worked an average of 25 hours per week. Under PLO, on the other hand, employees need to have been employed at least 90 consecutive days with the employer to be entitled to job protection.
Fourth, SB 999 amends PLO to mirror the requirements for the continuation of benefits under OFLA. Effective September 3, 2023, if an employee takes protected leave under OFLA or PLO, the employer must maintain the employee’s health care benefits on the same terms and conditions as if the employee had not been on leave. If, during that period of family leave, an employer is required to pay any part of the costs of providing disability, life, or other insurance coverage that is normally paid by the employee, the employer may deduct those amounts upon the employee’s return from work until that amount is repaid. In no event can the total amount deducted exceed 10 percent of the employee’s gross pay each period.
Finally, SB 999 makes clear that, if leave qualifies as protected leave under FMLA, OFLA, or PLO, the leave must be taken concurrently with, and not in addition to, leave taken under the other leave laws. Put differently, employees may not stack their protected leave. If the leave qualifies under any combination of FMLA, OFLA, and PLO, the leave must be taken concurrently.
As we continue drawing nearer to the start of PLO, we will continue to monitor new rules and guidelines. For prior updates, please see:
Get Ready for Paid Leave Oregon
This update is prepared for the general information of our clients and friends. It should not be regarded as legal advice. If you have questions about the issues raised here, please contact any of the attorneys in our Labor & Employment Practice Group, or the attorney with whom you normally consult.