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Dec 18, 2015

Final Oregon paid sick leave rules and notices have been published

Leave Laws 

The Oregon Bureau of Labor and Industries (BOLI) recently published final rules on the new Oregon paid sick leave law, which takes effect on January 1, 2016.

The Oregon Bureau of Labor and Industries (BOLI) recently published final rules on the new Oregon paid sick leave law, which takes effect on January 1, 2016. Unfortunately, the agency failed to answer a number of fundamental questions, despite repeated requests from Vigilant and other employer representatives. Here are some key points:

No guidance on whether carryover is required for front-loading employers. Vigilant raised this issue in two sets of written comments as well as in verbal testimony before the agency. Because BOLI’s final rules are silent, we believe front-loading employers should be reasonably safe in not worrying about carrying over leave from one year to the next.

The obligations of joint employers align with FMLA rules. BOLI says it intends to follow the principles in the federal Family and Medical Leave Act (FMLA) regulations for joint employers. This is good news, since the FMLA is clear that the primary employer is responsible for providing leave and giving required notices, while the secondary employer is only responsible for cooperating with the FMLA requirements. Generally the staffing agency is the primary employer and the client is the secondary employer. However, a professional employer organization (PEO) that just provides administrative functions such as payroll services is generally a secondary employer and the client is the primary employer. One word of caution: In temp-to hire situations where you hire a staffing agency worker after observing their work for a few months, BOLI failed to clarify whether you must count and track that joint employment time toward sick leave entitlement under your own policy. We recommend doing so, because BOLI takes that approach in assessing eligibility for leave under the Oregon Family Leave Act (OFLA).

Advance payout is okay. Surprisingly, the new rules allow a front-loading employer to pay workers a lump sum of at least 40 hours of sick time at the beginning of the year, and then simply allow the workers to take the time off (unpaid) later in the year.

Pro-rata front-loading may be based on number of months or days remaining in the year. For front-loading employers, the final rules indicate that you may prorate a new hire’s sick leave based on the number of months or days remaining in the year, rather than based on how much they would accrue at the rate of 1 hour per 30 hours of work.

No guidance on workers who work only part of their time in Oregon. If you employ workers who come into Oregon periodically on business, it’s unclear to what extent you must comply with the Oregon sick leave rules. BOLI failed to address this perplexing issue, so if you are faced with this situation, please contact your Vigilant employment attorney to assess the right approach.

Written policy should be thorough. The new rules state that if you want to require written verification of the need for sick time, or if you want to deny sick time to a worker who fails to provide adequate notice, it must be addressed in your written policy and provided to employees.

More options for general written notice. Two types of notices to workers are required under the law: (1) individual notice at least quarterly of the amount of a worker’s accrued and unused sick time; and (2) general notice of the requirements of the Oregon sick leave law. The new rules allow you to create your own notices or to use templates provided by BOLI for the individual notice and the general notice. For the individual notice, you may include the information on a pay stub. For the general notice, you have the option of distributing it electronically or physically, incorporating it into an employee handbook that is available to employees, or posting it in a conspicuous and accessible location in the workplace.

Limiting increments of leave to 4 hours requires notice provided by BOLI. In general, employers cannot set a minimum increment of leave larger than 1 hour. If this 1-hour minimum would cause an undue hardship, however, you may set a minimum increment of 4 hours as long as you allow an employee to use at least 56 hours of leave per year. The new regulations state that you must give the affected employee a BOLI-provided notice of undue hardship. The new rules list examples of factors to consider in determining whether undue hardship exists, such as the number of people available to fill in for the worker and the need to keep machinery running in continuous-operation industrial processes.

BOLI has established a web page for FAQs on the new sick leave law. It’s quite limited so far, but we expect BOLI will expand it. We have updated our Model Policy, “Oregon Sick Leave Policy” and Legal Guide, “Sick Leave Laws: California, Oregon and Federal” in light of the final rules. If you’re interested in seeing the written comments that Vigilant submitted on the proposed Oregon sick leave rules, we’ve posted a copy on our member website. The January 1, 2016, effective date is fast approaching; if you have any questions about the new rules, please contact your Vigilant employment attorney.

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