On July 1, 2024, sweeping changes become effective to Oregon's leave laws. The Oregon Legislature recently passed fundamental changes to the Oregon Family Leave Act (OFLA) to eliminate overlap between employee leaves of absence under OFLA and Paid Leave Oregon (PLO) and better coordinate with Oregon Paid Sick Time (PST) benefits. These changes require employers with Oregon-based employees to immediately take two steps to comply with these new laws. First, employers must immediately overhaul their policies. Second, employers must provide notice to current OFLA leave recipients about benefit changes on or before June 1, 2024. Read on for more details about what companies doing business in Oregon need to know.
Most Forms of Family and Medical Leave Are Eliminated From OFLA
When PLO was first enacted in September 2023, employees could be eligible for both PLO and OFLA leave for many of the same reasons. In March 2024, the Oregon Legislature enacted welcome changes to OFLA that will significantly reduce, but not eliminate, the overlap between OFLA and PLO. The following changes become effective July 1, 2024:
- Qualifying reasons for leave under OFLA will
only include:
- Bereavement leave;
- Sick child leave;
- Leave to effectuate adoption or foster care (through December 31, 2024); and
- Pregnancy disability leave.
- OFLA no longer provides leave related to the serious health
condition of an employee or an employee's family member, to
care for or bond with a newly born child or child newly placed
through adoption or foster care, or for safe leave related to
sexual assault, domestic violence, harassment, stalking, or bias
crimes. Employees can still receive PLO leave for these
reasons.
- Every 12-month period, eligible employees still may take up to
12 weeks of unpaid OFLA leave; however, bereavement leave will be
limited to four weeks. Eligible employees may also continue to take
up to 12 additional weeks of OFLA leave for pregnancy disability in
that same 12-month period. Leave to effectuate adoption or foster
care, which is only available under OFLA until December 31, 2024,
will be limited to two weeks and is in addition to the 12 weeks of
leave provided for other qualifying reasons.
- Leaves of absence under OFLA and PLO no longer run
concurrently. Eligible employees can take both OFLA and PLO leave
in the 12-month benefit period without limits on the total amount
of OFLA and PLO leave available to them. (Previously, OFLA and PLO
leave was limited to 16 weeks total in a PLO benefit year.) Both
PLO and OFLA leave still must run concurrently with the federal
Family and Medical Leave Act (FMLA).
- When tracking OFLA leave use, an employer's OFLA benefit year must mirror the PLO benefit year, which is defined as the 52- consecutive-week period immediately following the Sunday before the first day of an employee's leave. Employers no longer have the option to use alternative benefit years, such as the rolling method or other methods allowed under the FMLA. The Oregon Bureau of Labor and Industries (BOLI) previously clarified that employees receive a new, full bank of OFLA leave when an employer transitions to the new OFLA benefit year. With 60-day notice, employers can change the method they use for tracking FMLA leave in Oregon to also follow the PLO benefit year.
Notice to Employees Affected by OFLA Changes
No later than June 1, 2024, employers must notify all employees who are currently approved for OFLA leave based on reasons that will no longer qualify for OFLA that their OFLA leave protections are coming to an end. Specifically, employers must give affected employees written notice that:
- Their leave will no longer be protected by OFLA on or after July 1, 2024; and
- They can apply for benefits under PLO, along with the relevant contact information for the Oregon Employment Department.
Employers are also allowed to rescind any previously approved or designated OFLA leave that will no longer qualify. Similarly, between now and July 1, 2024, employees who inquire about family leave, medical leave, or safe leave that cease to qualify under OFLA as of July 1, 2024, must be redirected to the PLO program within 14 days of the employee's notice of a need for leave to the employer.
PLO Remains Mostly Unchanged
The reasons for and the amount of leave under PLO remain relatively unchanged, with some exceptions. The two changes most impacting employers include:
- Effective July 1, 2024, employees must be able to use any
accrued paid sick time, vacation, or any other paid leave that is
offered by an employer while on PLO. Employers may, but are not
required to, limit concurrent use of paid time off and leave, such
that employees may receive no more than 100% of their wages during
the period of leave. It is not clear yet what support or
information PLO will provide to employers to help enforce any
limitations on use. Employers may also dictate the order in which
paid time off is used to supplement PLO benefits when more than one
type of paid time off is available.
- Effective January 1, 2025, PLO leave will be available to employees to effectuate the legal process required for the placement of a foster child or the adoption of a child.
BOLI Adopts Regulatory Changes to Bring Cohesion Between PLO, OFLA, and PST
In March 2023, BOLI also adopted administrative revisions to OFLA, PLO, and PST. Highlights of these changes include the following:
- The definition of a "family member" under OFLA and
PST was expanded significantly to mirror the definition of a family
member under PLO. "Family member" now also includes
siblings, stepsiblings, and the spouse or domestic partner of the
employee's child, sibling, stepsibling, grandparent, or
grandchild, as well as any individual related by blood or affinity
whose close association with a covered individual is the equivalent
of a family member. The definition also no longer requires that
domestic partners be the same gender as the employee. Employers can
seek verification that a person is related by affinity through a
written attestation from the employee.
- When determining whether an employee has worked sufficient
hours to be eligible for OFLA leave, employers must count both
hours worked and hours of protected leave.
- When employees are taking OFLA and PLO leave at the same time,
employers may require that they use any paid accrued sick time and
vacation during the period of leave. Employees taking only PLO
leave cannot be required to do so.
- The definitions of "serious health condition" and
pregnancy disability under OFLA now expressly include disability
related to pregnancy termination and fertility or infertility
treatments.
- Employers cannot rely on a denial of PLO leave as a defense for
denying OFLA leave. Employers must make their own independent
decision regarding OFLA leave.
- Any qualifying reason under PLO is now a qualifying reason for leave under PST.
These changes were adopted just before the structural changes to OFLA were enacted, so there will undoubtedly be additional regulatory changes in the coming months.
Takeaways for Employers
In light of these significant changes to PLO, PST, and OFLA, employers with employees working in Oregon should:
- Update leave policies and practices to comply with the changes
to PLO, PST, and OFLA;
- Inform affected employees by June 1, 2024, that they are no
longer eligible for certain OFLA protections as of July 1, 2024,
and redirect them to the Oregon Employment Department to apply for
PLO leave;
- Train managers on the new reasons for leave under PLO, PST, and
OFLA, and ensure they know how to recognize and direct employees in
need of these benefits; and
- Watch for additional PLO, PST, and OFLA regulatory changes.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.