Following the January 1, 2016 implementation of the Oregon Sick Leave law, employers continue to grapple with understanding the various provisions of the new law.
Alongside Willamette Valley Development Officers, Xenium recently co-hosted a 2016 Legal Update event where a number of employers had questions for Stoel Rives employment attorneys on how to administer their policies under the new law. We specifically wanted to provide clarification on a question pertaining to “cashing out” unused sick leave that Xenium has verified with BOLI (Oregon’ department of labor and industries): There is no requirement to cash out accrued, unused sick leave either upon termination nor at the end of each benefit or calendar year.
Xenium has prepared an extensive Oregon Sick Leave FAQ for your reference. If you have questions about how the law relates to your workplace and current policies, please feel free to contact a Xenium HR Business Partner.
View the provisions published by BOLI here.
Q. What does the new Oregon Sick Leave Law require?
Effective January 1, 2016, the law requires all private businesses with employees working in Oregon to provide “sick time” for their employees. Employees include full-time, part-time, temporary, seasonal and on-call workers. The law requires employers with 10 or more employees to provide paid sick time. In cities with a population of 500,000 or more, (i.e. Portland), employers with 6 or more employees are obligated to provide paid sick time. Private employers with less than 10 employees (or less than 6 in Portland) will be required to provide unpaid sick time. Employers with a PTO or vacation policy that is substantially equivalent to or more generous than the minimum requirements of the law are deemed to be in compliance with the law.
Q. How many hours of sick time does the employer need to provide?
The ordinance requires all employers to provide employees with up to 40 hours of accrued sick time per year beginning January 1, 2016. Employers have the option of providing the time either via the accrual method of one hour of sick time for every 30 hours worked or by “frontloading” the full 40 hours at the start of each calendar or anniversary year. An anniversary year begins on an employee’s hire date and a calendar year begins January 1 and ends December 31. Employers who choose to frontload on the basis of a calendar year and hire an employee after January 1st must frontload a number of hours of sick time that is the pro-rata percentage of the hours to which a new employee would be entitled for an entire year. (Ex. An employee hired on July 2nd would be entitled to a 20 hour frontload, regardless of part-time or full-time status.)
Q. When does accrual of sick time begin?
Current employees must begin accruing sick time on January 1, 2016, the date the law takes effect. Employees hired on or after January 1, 2016 must begin to accrue sick time from the start date of their employment. Employers who choose to frontload sick leave every calendar year may pro rate the amount of leave for an employee hired after January 1. The prorated amount of front-loaded sick time is the percentage of sick time equal to the percentage of the “year” left at date of hire.
Q. When are employees entitled to use accrued sick time?
Employees may use their accrued sick time beginning on the 91st calendar day of employment. Employers may choose to allow employees to use sick leave earlier than the 90 day waiting period permitted by the law.
Q. What rate of pay is used for paid sick time?
Employees receive their regular rate of pay for sick time. If an employee is paid on a commission or piece-rate, the employee needs to be paid at least Oregon minimum wage.
Q. Does sick time carry over from one year to the next?
For employers who choose to use the accrual method, the law requires carry over of up to 40 hours of accrued, unused sick time to subsequent years, allowing for a maximum accrual of 80 hours of banked time in subsequent years. Employers that choose to frontload the full 40 hours at the beginning of each year are not required to carryover or cash out accrued leave at the end of the year. They can simply start with a new bank of 40 hours effective January 1.
Q. Can an employer limit the amount of sick time an employee can use?
Yes, employers can restrict the use of sick time to no more than 40 hours per year.
Q. What reasons may an employee use sick time for?
The law allows employees to use accrued sick time for the following reasons:
- For the employee’s mental or physical illness, injury or health condition, need for medical diagnosis, care or treatment of a mental or physical illness, injury or health condition or need for preventive medical care;
- Care of a family member for the above reasons;
- For any of the purposes covered under the Oregon Family Leave Act (OFLA), including the employee’s serious health condition; to care for a family member with a serious health condition; to bond with and care for a new child (parental leave); to care for a child with a non-serious injury or illness requiring home care (sick child leave); or bereavement leave to deal with the death of a family member;
- For leave related to domestic violence, harassment, sexual assault or stalking of the employee or dependent child of the employee;
- Public health emergency, including closure of the employee’s place of business, or the school or place of care of the employee’s child, by order of a public health authority or health care provider that the presence of the employee or the family member of the employee in the community would jeopardize the health of others; or
- Exclusion of the employee from the workplace under any law or rule that requires the employer to exclude the employee from the workplace for health reasons.
Medical care is broadly defined to include preventive medical care, such as prenatal visits and “routine” medical and dental visits. Additionally, there is no requirement that the illness be “serious,” thereby making the ordinance applicable to mild illnesses such as the common cold.
The law defines “family member” as an employee’s spouse or domestic partner, the biological, adoptive, or foster parent or child, the grandparent or grandchild, a parent-in-law or a person with whom the employee was or is in a relationship of in loco parentis.
Q. What is the minimum increment that employees can be required to use their sick time?
An employee is entitled to use accrued sick time in increments of one hour (unless the employer allows for lesser increments).
Q. What type of notice can employers require from employees who wish to use accrued sick time?
For planned sick leave, employees should provide notice at least 10 days prior to the date the leave will commence, or as soon as practicable. When leave is unforeseeable, employers may require employees to notify them of the need for sick leave before the start of their scheduled work shift, or as soon as practicable. Employees are responsible for making a reasonable effort to schedule leave to avoid unnecessary disruption to the Company or their work, including, by way of example, attempting to schedule a routine visit outside peak hours or mandatory meetings.
Q. Can employers require employees to find a replacement worker for their absences or work an alternate shift to make up for the absence?
No, employers cannot require employees to find a replacement worker for protected absences nor can they require the employee to work an alternate shift. If an employee requests to make up the time missed, employers may grant the request but are not obligated to nor can they require the employee to do so.
Q. Can employers require employees to provide documentation?
The law only allows employers to require documentation of the need for leave in the following circumstances:
- The employee is absent for more than 3 consecutive work days.
- If an employer suspects that an employee is abusing sick time, including engaging in a pattern of abuse, regardless of whether the employee has used sick time for more than 3 consecutive days. “Pattern of abuse” includes, but is not limited to, repeated use of unscheduled sick time on or adjacent to weekends, holidays, vacation days or paydays.
If the required documentation includes verification from a health care provider, the employer must pay the costs of verification (if not already covered by an insurance or benefit plan). An employer may not require that the verification or certification explain the nature of the illness or details related to the domestic violence, sexual assault, harassment, or stalking that necessitates the use of sick time.
Q. Are employers required to provide notification of sick time rights to employees?
Yes, employers must provide written notice of the law’s provisions to employees. Employer can use the notice developed by Oregon’s Bureau of Labor and Industries (BOLI).
Click here to view the notice.
Q. Are employers required to provide notice of the amount of sick time an employee has available?
Yes, employers are required to provide written notification, at least quarterly, to each employee of the amount of accrued and unused sick time available for use by the employee.
Q. What are the anti-retaliation provisions?
As is common with laws of this nature, the Oregon ordinance includes an anti-retaliation provision. The provision prohibits employers from retaliating or discriminating against employees for exercising his or her rights under the ordinance, inquiring about the provisions of the law, submitting a request for sick time, taking sick time, participating in any manner in an investigation, proceeding or hearing related to the law, or invoking any provision of the law.
Additionally, the provision explicitly forbids employers from having an attendance policy that counts earned sick time as an absence that may lead to or result in an adverse employment action.
Q. Are employers required to pay out accrued, unused sick time when an employee terminates?
No, the law does not require employers to payout accrued, unused sick time at termination, resignation, or retirement. Exception: If an employer offers a Paid Time Off (PTO) benefit to comply with the requirements of Oregon Sick Leave and the policy states that unused PTO will be paid out upon termination, they must follow the terms set forth in the policy.
Q. What happens if I rehire an employee who was previously eligible for sick time?
Employers must restore previously accrued unused sick time to an employee who is reemployed by that employer within 180 days of separation from employment with the employer.
This material is intended to provide general information on employer practices and the legal provisions that they cover, and is not intended and should not be construed to provide legal advice. These materials do not address all of the employer considerations that might arise, nor do they set forth all of the potential legal issues or applicable statutes, regulations, or case law that might be implicated. Xenium does not assume responsibility for or liability for any reliance on the contents of these materials. Employers should consult with legal counsel for legal or government agency advice on specific fact and legal issues, and when otherwise appropriate.