Employers should brace for likely changes to the Oregon Family Leave Act (OFLA) and Paid Leave Oregon (also called paid family and medical leave insurance, or PFMLI), which the 2023 legislature is considering in order to partially align the two laws. Normally we don’t report on proposed legislation because so much can change in the negotiation process. In this case, however, there were some big swings in possibilities initially, but then the provisions began to solidify and stay relatively consistent. There is no guarantee that these changes will be adopted, but if approved, the “-A5 Amendment” to SB 999 would amend OFLA and Paid Leave Oregon as follows:
- Require all OFLA-covered employers to change their OFLA leave year to a 52-week “look forward” method that begins on the Sunday immediately before the date on which family leave begins. This is similar to the current “look forward” method that begins on the date of leave (one of the four available options under OFLA), except that the requirement to backtrack to Sunday means the leave year may be different by up to 6 calendar days for any given employee, compared to the current method. Employers would have to make the switch no later than July 1, 2024.
- Expand OFLA’s list of covered family members for whom an employee may provide care due to a serious health condition to match the family members under Paid Leave Oregon. OFLA currently allows an eligible employee to care for the serious health condition of the employee’s spouse or same-gender domestic partner, parent (including a relationship “in loco parentis” – standing in the shoes of a parent), parent-in-law, child (any age, including a relationship “in loco parentis”), grandparent, and grandchild. The amendments would add the employee’s child’s spouse or domestic partner (i.e. the employee’s daughter-in-law or son-in-law), the employee’s parent’s spouse or domestic partner, the employee’s sibling or stepsibling and their spouse or domestic partner (i.e., the employee’s sister-in-law or brother-in-law), the employee’s grandparent’s spouse or domestic partner, the employee’s grandchild’s spouse or domestic partner, and any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship. This expansion would take effect on September 3, 2023, the date that employees may begin taking paid time off through Paid Leave Oregon.
- In situations where the original job no longer exists for an employee returning from leave under OFLA, the geographic area for considering reinstatement to an available equivalent position would expand to within 50 miles instead of 20 miles. For employees who were employed long enough (90 days) to be entitled to reinstatement rights after time off under Paid Leave Oregon, the statute was previously silent on the geographic scope of reinstatement rights; the amendments would mirror the new OFLA language. This change would take effect on September 3, 2023.
- Clarifies that if OFLA leave qualifies as leave under the federal Family and Medical Leave Act (FMLA) or Paid Leave Oregon, OFLA must be taken concurrently with, and not in addition to, any leave under FMLA or Paid Leave Oregon. (Comment from Vigilant: This is a good clarification but unfortunately there still is no clear avenue to require an employee on OFLA to apply for benefits under Paid Leave Oregon, which means an employee could first take OFLA leave and then later apply for benefits under Paid Leave Oregon, thus stacking their leave.)
- Makes Paid Leave Oregon follow the existing OFLA process for taking payroll deductions after an employee’s return from leave, to cover the cost of the employee’s share of health insurance premiums that the company voluntarily paid on their behalf during leave.
- Clarifies that the Paid Leave Oregon procedure for filing a lawsuit in court or a complaint with the Bureau of Labor and Industries (BOLI) doesn’t apply if the employee’s beef is with the Employment Department over their receipt of Paid Leave Oregon benefits. In other words, complaints about an employer’s conduct go to a court or BOLI, while complaints about benefit payments go to the Employment Department.
Tips: You shouldn’t make any changes to your policies until this bill is passed by the legislature and signed by the governor, because further changes could occur (or the bill could fall apart – unlikely, but always a possibility). However, employers with 25 or more employees should start thinking about when to time their organization’s jump to the new OFLA leave year if the provisions above are approved. You will have to notify all employees at least 60 days in advance, and during the transition period you must provide whatever amount of leave is most favorable to the individual employee under either the old or new system. (OFLA’s regulations defer to the federal Family and Medical Leave Act (FMLA) process for changing a leave year, which is spelled out in the FMLA regulations at 29 CFR 825.200(d)(1).)
Vigilant is monitoring these developments closely and will develop model policy language once we have clarity on these important changes. In the meantime, see our Legal Guide, Oregon Paid Family and Medical Leave. For a very simple overview of current differences between Paid Leave Oregon, OFLA, FMLA, and Oregon sick leave, see BOLI’s comparison chart.
