Senate Bill 999, designed to align Paid Leave Oregon (PLO) with the Oregon Family Leave Act (OFLA), passed the Oregon Legislature on June 1, 2023, and is expected to be signed by Governor Kotek shortly. The bill makes the following changes:
Rolling Forward Leave Year: Effective July 1, 2024, employers must use a “rolling forward” leave year for purposes of determining OFLA eligibility. The “rolling forward” leave year is defined as a consecutive 52-week period, beginning on the Sunday immediately preceding the date on which family leave commences. For example, for an employee starting parental leave on Monday, July 1, 2024, the “leave year” would start on Sunday, June 30, 2024, and the employee would be eligible for 12+ weeks of OFLA leave between Sunday, June 30, 2024, and Saturday June 28, 2025. This change is designed to align OFLA with PLO, which will be using the rolling forward year when benefits become available September 3, 2023.
The rolling forward leave year is not required until July 1, 2024, and between now and then, employers may choose any of the following methods for calculating the leave year under OFLA and FMLA: (1) rolling forward, (2) rolling backward, or (3) a consecutive 12-month period, for example, the calendar year, the employee’s anniversary year, or the fiscal year. However, employers currently using a method other than the rolling forward year may consider moving to that method by September 3, 2023, when PLO benefits become available.
Employers should review the leave policies in their employee handbooks, as many will need to update their written policies to address this change as well as others discussed below. Although not required by the law, employers will likely want to change their FMLA leave year as well to align with OFLA and PLO. Note that the FMLA requires employers to give employees at least 60 days’ notice before changing the method by which they calculate a leave year, and the transition cannot impact any individual employee’s ability to take 12 weeks of leave.
Expanded Definition of Family Member Under OFLA and Oregon Sick Leave: Effective September 3, 2023, OFLA (and, as a result, Oregon Sick Leave) will use an expanded definition of “family member,” designed to align with the broader PLO definition. “Family member” under OFLA and Oregon’s Paid Sick Leave law will now include domestic partner (regardless of gender), siblings, step-siblings, more in-laws (spouse or domestic partner of sibling, child, grandparent, or grandchild), and any “individual related by blood or affinity whose close association with a covered individual is the equivalent of a family member.” The Oregon Bureau of Labor and Industries is tasked with developing a rule that will outline various affinity factors to determine whether someone’s relationship resembles that of a family member.
Leave Stacking “Fix”: Senate Bill 999 provides that if family leave taken under OFLA also qualifies as PLO, the leave must be taken concurrently. This amendment is designed to alleviate employer concerns about “leave stacking,” specifically, that an employee could take a period of OFLA leave (either unpaid or using existing PTO), and then apply for PLO benefits, for a second bucket of protected leave.
Minor Revisions to Reinstatement Rights: OFLA currently provides that an employee returning from leave must be restored to the same position the employee held prior to the employee’s leave. If that position no longer exists, the employee must be reinstated to an equivalent position. OFLA previously provided that if an equivalent position is not available at the same job site, the employee may be offered an equivalent job at a location within 20 miles of the prior job site. Effective September 3, 2023, OFLA will require that if an equivalent position is not available at the same job site, the employee must be offered an equivalent position at a different location if such a position is available, but the location need only be within 50 miles of the prior job site. If equivalent jobs are available at multiple sites, the employee must be offered the position at the job site that is nearest to the employee’s prior job site.
Benefits Coverage: If an employee takes protected leave under OFLA or PLO, the employer must maintain the employee’s health care benefits, on the same terms and conditions as if the employee had not been on leave. The amendment makes clear that employees must continue to make regular contributions to the cost of their health insurance premiums while on leave. If the employer elects to cover the employee-portion of the insurance premium while the employee is on leave (which an employer is not required to do), the employer may deduct those costs from the employee’s paycheck upon the employee’s return from leave, as long as the deduction does not exceed 10% of the employee’s gross pay. This portion of the amendment is effective September 3, 2023.
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