The Oregon Legislature has passed SB 1515, a long-awaited bill that mostly aligns pre-existing Oregon Family Leave Act (OFLA) and the new Paid Leave Oregon (PLO). Governor Kotek is expected to sign SB 1515 into law shortly, and SB 1515 contains an emergency clause allowing it to take effect immediately upon the Governor’s signature.
Employers will recall that OFLA was the Oregon state extension of the federal Family Medical Leave Act (FMLA). While FMLA generally applied to employers with 50+ employees nationwide and allowed for up to 12 weeks of unpaid leave, OFLA generally applied to employers with 25+ employees in Oregon. When Oregon created PLO in 2019, OFLA remained in place, causing significant confusion for employers and employees on what types of leave were available for different situations and at different times. Most other states instituting paid leave laws rescinded their pre-existing unpaid leave laws, but Oregon did not.
With SB 1515, the redundancies between OFLA and PLO are eliminated. Unfortunately, OFLA is not entirely eliminated because certain situations not covered by PLO remain covered by OFLA—the Legislature did not simply include those situations in PLO. Therefore, employers in Oregon must still comply with OFLA and PLO! SB 1515 simply eliminated situations being covered by both OFLA and PLO.
OFLA still exists, still generally applies to employers with 25+ employees in Oregon, and still requires unpaid leave, but only covers the following situations:
- Leave to care for a child who requires home care due to illness, injury, serious health condition, or school/care provider closure due to public health emergency (up to 12 weeks in any one-year period);
- Two weeks’ temporary leave to complete the legal process for placement of a foster child or adoption of a child, with notice to the employer within 24 hours of leave being taken (this provisions is repealed on January 1, 2025);
- Two weeks’ family bereavement leave for a family member’s death, not exceeding four weeks in any one-year period; and
- Leave for pregnancy or childbirth disability of up to 12 weeks in any one-year period.
For these few situations still covered by OFLA, any OFLA leave is in addition to leave taken under PLO and is not concurrent with PLO. Some restrictions apply if two employees work for the same employer and seek either or both OFLA and PLO. Prior notice is not required in unexpected circumstances, except for leave for adoption/foster child placement. Otherwise, 30 days’ notice must be provided when the leave is foreseeable.
OFLA will no longer cover leave to care for a newborn, a newly adopted child, a newly placed foster child, an employee’s own serious health condition, or a family member’s serious health condition (SB 1515 Section 8). PLO is now the exclusive state-provided leave for these situations, as well as all other personal Medical Leave, Family Leave, and Safe Leave.
SB 1515 also made some technical changes to PLO. An important matter for Oregon’s tribes, “federally recognized Indian tribes” are now officially excluded from the definition of employer for purposes of PLO. Also important, SB 1515 clarifies that PLO leave is automatically concurrent with federal FMLA if taken for the same purposes.
Also, as most employers are aware, PLO benefits generally do not pay employees with 100% of their wages. SB 1515 clarifies that employees must be allowed to “top off” PLO benefits by using accrued paid time off to replace 100% of their wages. As many employers know, this “topping off” of wages has become a serious administrative burden on employers. This is especially true because the Oregon Employment Department (OED), which administers PLO, does not share benefit amounts with employers. For this reason, OED is directed to create rules to allow this information to be shared with employers so that employers can comply with the requirement to allow employees to “top off” PLO benefits with available accrued unused leave. Going forward, employees will no longer be able to “top off” PLO benefits with available leave beyond their full wage replacement.
SB 1515 also addressed a conflict with the state’s work scheduling laws and penalties for late schedule changes. For employers required to set schedules for employees 14 days in advance (including employees filling in for co-workers who are out on PLO leave) SB 1515 now makes clear that these employers are not subject to penalty wages if the schedule of an employee must be changed to accommodate the return of a co-worker who resumes work after being on PLO but does not give at least 14 days’ notice. While it would have been much easier to simply require employees on PLO leave to provide 14 days’ notice prior to returning if their employer sets work schedules 14 days in advance, at least these employers will not be subject to penalty wages for changing the schedule to accommodate an employee’s return from PLO with less than 14 days’ notice. For employers with collective bargaining agreements, this provision should be carefully studied against the existing and any future collective bargaining provisions relating to late changes to work schedules resulting from employees returning from PLO leave.
SB 1515 also clarified that if an employee is eligible for time loss workers’ compensation or unemployment benefits, then the employee cannot also be eligible for or receive PLO benefits. Additionally, PLO benefits are exempt from garnishment except for child and spousal support garnishments and crime victim restitution garnishments.
Again, these changes will be in effect immediately once the bill is signed by the Governor, which is expected to occur imminently. Employers with questions regarding leave coordination and compliance, assistance with updating their leave policies or handbooks, or other needs related to these or other employment related topics should feel free to reach out to our Labor & Employment Team members for guidance and assistance.
The legal issues impacting workplaces are ever changing (Employment Law in Motion!), and since publication, new or additional information not referenced in this blog post may be available.
This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.
