Oregon has become the fourth state, after Connecticut, California, and Massachusetts, to mandate that employers provide their employees sick leave benefits. Subject to certain exceptions, Senate Bill 454, signed by Governor Kate Brown on June 22, 2015, applies to all private-sector employers, regardless of the location of the employer’s primary place of business. The law goes into effect January 1, 2016.
Under the new law, private employers throughout the state are required to implement sick time policies that meet or exceed the law’s minimum benefits. Employers with operations outside of Portland and who have at least 10 employees working in the state will be required to provide employees up to 40 hours of paid sick leave per year. Employers with Portland operations and who employ at least six employees anywhere in the state will similarly be required to provide up to 40 hours of paid sick leave benefits. Employers with fewer that 10 Oregon-based employees, and fewer than six employees, if operating in Portland, must provide up to 40 hours of unpaid sick leave per year.
Accruing and Carrying Over Time
After January 1, 2016, all employees, regardless of whether they are temporary, part-time, full-time, salaried, or paid on a commission basis, will begin accruing sick leave. Employees generally must accrue sick leave at the minimum rate of one hour for every 30 hours worked. Alternatively, employers may “frontload” or credit eligible employees with a minimum of 40 hours of leave at the beginning of each year.
New employees have the right to use protected sick leave beginning after their 90th calendar day of employment. However, those employed as of January 1, 2016, may begin taking leave in one-hour increments as it is accrued.
Under the new law, up to 40 hours of unused sick time generally can be carried over to the following calendar year, however, employers are not required to allow carryover if employees receive an annual lump-sum allotment of at least 40 hours. An employee’s annual use of sick time under the new law may be capped by employers at 40 hours. In addition, the law permits employers to cap maximum accruals at 80 hours.
Reasons for Leave
The new law extends well beyond traditional sick leave. Leave may be taken not only for an employee’s own illness, injury, or preventive medical care, but also for a qualifying family member’s similar needs.
“Family member” is broadly defined to include the employee’s spouse, children, parents, parents-in-law, grandparents, grandchildren, and registered same-sex domestic partners.
Additionally, sick leave may be taken for absences resulting from workplace or school closures, or for reasons related to domestic violence, sexual assault, or stalking that affect the employee or the employee’s family members.
Further, sick leave may be taken for traditional “baby bonding leave” to care for an infant or newly adopted child.
Finally, sick leave may be taken to grieve the death of a family member, to make funeral arrangements, and to make arrangements necessitated by a family member’s death.
The new law creates significant traps for unwary employers. In addition to prohibiting employers from retaliating against employees for requesting, taking, or inquiring about sick leave, the law prohibits employers from denying or interfering with legitimate sick leave requests. Employers also are prohibited from conditioning sick leave approval on employees finding replacement workers or working alternate shift to make up for time missed. Further, the law mandates that employers may require only documentation for sick leave absences lasting three days or more.
Finally, covered employers will be required to post a notice describing the new law.
Collective Bargaining Agreement
Notably excluded from the new sick leave law are those employees covered by a collective bargaining agreement and employees employed through hiring halls. In 2014, Portland’s Paid Sick Leave Ordinance extended sick leave benefits to union employees. The new law reverses course by excluding those same employees while at the same time preempting city and county sick leave laws.
Employers covered by the new requirements should review their existing policies carefully. Covered employers that fail to comply with the sick leave obligations are subject to civil penalties. Employees who believe their employer interfered with or failed to provide them with the minimum benefits under the new law may bring an action for injunctive relief and back pay, as well as attorneys’ fees and costs.