Alert: Portland adopts sick leave ordinance

On March 13, 2013, the Portland City Council unanimously adopted an ordinance requiring sick leave for employees who work at least 240 hours per year within the City’s geographic boundaries. It takes effect on January 1, 2014. During the coming months, the City will be drafting regulations to clarify the broad outlines of the ordinance. Here are the key points of the new Portland Sick Time:

Eligible employees: To be eligible, an employee must work at least 240 hours within Portland’s geographic boundaries in a calendar year. If an employee travels to the City and makes a stop “as a purpose of conducting their work,” the time they are paid to work within the City counts toward the 240 hours. This seems to mean that if a driver based outside the City makes a delivery in Portland, all the work time (except for bona fide meal periods) within the Portland city limits would have to be tracked and counted toward the 240 hours.

Covered employers: Employers of all sizes are covered, but their obligations differ. Those with six or more employees must provide eligible employees with at least one hour of paid Portland Sick Time for every 30 hours of work performed in Portland. Smaller employees have the same obligation, except that the sick time can be unpaid.

Reasons for leave: There are three categories of leave. First: Diagnosis, care, or treatment of the employee’s or family member’s mental or physical illness, injury, or health condition. Note that the condition doesn’t have to be serious. Family members include those covered under the Oregon Family Leave Act (OFLA), i.e., spouse, registered same-sex domestic partner, parent, child, grandparent, grandchild or parent-in-law. Second: Leave needed to address domestic violence, harassment, sexual assault or stalking, where the employee is a victim or the employee’s child or dependent is a victim. Third: Public health concerns. This includes emergency closure of the workplace or the employee’s child’s school or care center, determination by a health care provider or public health authority that a family member’s presence in the community would jeopardize others’ health, or any law or regulation that requires the employee to be excluded from work for health reasons.

Accrual: Employees may accrue a maximum of 40 hours of Portland Sick Time per calendar year. They may carry unused leave over to the next year, but you may cap the carryover at 40 hours. If you already have an accrued sick leave or paid time off (PTO) policy that meets or exceeds the Portland Sick Time benefits, then you aren’t required to grant any additional time beyond your policy.

Termination: You don’t have to pay out Portland Sick Time upon termination, but if you rehire the employee within six months, all of their previously accrued Portland Sick Time is immediately available.

New hires: During the first 90 calendar days of employment, you don’t have to allow a new hire to use Portland Sick Time.

Scheduling: Eligible employees can only use Portland Sick Time to cover hours that they are scheduled to work in the City. You cannot require employees to work extra shifts to make up the lost time, but if you normally allow shift trades then you must allow the employee the option of trading shifts instead of using Portland Sick Time if an appropriate shift is available.

Certification of need for leave: You may require certification of the need for leave, but not until an absence lasts more than three consecutive days or you notice a pattern of leave abuse (e.g., Monday/Friday absences).

Notice and posting requirements: You will have to give employees a notice of their rights under the ordinance, and you will also have to display a poster. Model language will be provided by the City and/or the Oregon Bureau of Labor and Industries (BOLI). You will also have to have a written policy for employees to notify you of their use of Portland Sick Leave.  (We expect that your normal call-in policy will serve this purpose, but the regulations may offer clarification on that point).

Enforcement: The City is planning to contract with BOLI to investigate complaints and enforce the ordinance.

Tips: The accrual of benefits under the ordinance doesn’t begin until the effective date of January 1, 2014. You should use this lead time to get your systems and procedures in place. Begin by identifying employees who may be covered by the ordinance (remember to include employees based outside the City, who travel there on business). You’ll need to establish procedures for tracking hours worked in Portland, and for tracking the accrual and use of Portland Sick Time. Vigilant will keep members informed when the regulations are issued, and when the model notice and poster become available. If you aren't a Vigilant member, you can learn more about the benefits of having unlimited help on employment issues on our website. Or visit our blog for updates on Portland's sick leave ordinance and other relevant issues for employers.