The Countdown to Paid Leave Oregon: Are you ready?
Employee leave can be confusing. With Paid Leave Oregon (PLO) benefits starting September 3, 2023, it’s time to make sure you’re ready. Below are employer considerations and actions to take to ensure compliance with new requirements.
Review and revise policies
Review your current personnel policies and employee handbook(s) to ensure they coordinate with the new requirements. Although it would be great to review all your policies, processes, and handbooks, this can be time-consuming. To start, here are a few key policies and documents to review.
- Family and Medical Leave Act (FMLA)
- Oregon Family Leave Act (OFLA)
- Paid Leave Oregon (PLO)
- Any collective bargaining agreements
Seven areas to consider when you review
- What do your policies say about the notice requirements for each program?
- Do your policies require that FMLA, OFLA, and paid leave run concurrently when possible?
- Do you have any other policies or procedures that fail to account for the new paid leave requirements?
- Have you created a policy or procedure for employees to request leave and provide notice of leave? What about a policy for employees to update you about changes to leave, including a new or revised return-to-work date?
- Do you have any procedures in place for posting required notices or when to provide them to employees? Do you have a process for informing new and existing employees of the policy and documenting their understanding?
- Does your collective bargaining agreement touch on any of these issues?
Requirements specific to PLO
By requiring employers to post information about the state plan, the state of Oregon aims to ensure that employees are aware of their rights and options under the law, including, but not limited to, the conditions of eligibility for paid leave and other protections provided by PLO.
Employer Notice Poster
Under PLO, employers are required to display a notice at the workplace informing employees of their rights under the law. The notice must be posted in the language(s) the employer typically uses to communicate with employees at each worksite and in a location that is accessible and regularly frequented by employees. For remote workers subject to PLO, the notice also must be provided in the language the employer typically uses to communicate with the worker and must be provided directly to the employee by hand delivery, regular mail, or through an electronic delivery method at the time of hire or assignment to remote work.
The state of Oregon provides a model notice poster.
Requirements specific to equivalent plans
Employer Notice Poster
Like the state plan, employers must post a written notice poster to employees about their equivalent plan. The requirements for the contents of this notice vary slightly from the state plan notice requirements, but the general purpose remains the same—to provide employees with information about the benefits available under the equivalent plan and other employee rights.
Posted Notice Location is the Same as the State PLO Plan Requirements
- Employers must display the notice poster in each of the employer’s buildings or worksites in an area that is accessible and regularly frequented by employees.
- Employers must provide remote employees a copy of the notice poster upon hire or assignment to remote work.
- The language(s) of the notice provided or displayed may vary by building, worksite, and employee, depending on the language typically used to communicate with those employees.
Notice at the Time of Hire
Employers need to ensure a copy of the equivalent plan written notice is given to “all eligible employees, at the time of hire and each time the policy or procedure changes, in the language that the employer typically uses to communicate with the employees."
Additional Notice to New Employees
An employer with an equivalent plan that does not provide coverage on the employee’s first day of employment must additionally provide the state’s written notice poster to newly hired employees. New employees who are not covered by the equivalent plan until after 30 days of employment may be covered by the state plan until coverage is effective under the equivalent plan.
Employer Record Keeping
Equivalent plan employers will be required to keep certain records for at least six years from the date the equivalent plan became effective.
- Required reports made to the Oregon Employment Department, such as the Oregon Quarterly Tax Reports
- Information and records relating to the equivalent plan, including
- Amendments to the equivalent plan;
- Financial information regarding the employer’s administrative costs, maintenance, and claim documentation for the plan; and
- A copy of any written notice(s) provided to employees about the plan and other plan-related records
- Employee benefit applications
- Information regarding disputes and appeals
- Other records as described here
Note that many of those records will be in possession of your plan provider, so you should work with them to ensure the proper records are being retained or that they will be provided to you upon request.
Educate your employees
It is important employees know their rights to use paid leave and how to properly use available leave. By educating employees, employers can ensure that their staff are aware of the situations for which they are entitled to paid leave, how much leave they can take, and the procedures for requesting and using leave. This can help prevent misunderstandings, disputes, and noncompliance with the law, which can lead to legal and financial consequences for employers.
Additionally, educating employees about their rights under the law can improve employee morale and satisfaction, as it demonstrates that the employer values their well-being and is committed to complying with the law.
When the leave is foreseeable, employees must give their employer at least 30 calendar days’ notice before the commencement of leave to help you with leave management. Note, however, that an eligible employee who takes safe leave must give the employer reasonable advance notice of the intention to take safe leave, unless giving the advance notice is not feasible (ORS 657B.040).
Examples of foreseeable leave may include:
- expected birth,
- planned placement of a child,
- or scheduled medical treatment for a serious health condition of the eligible employee or a family member of the eligible employee.
When the leave is not foreseeable, employees must give oral notice to employers within 24 hours of the commencement of the leave and must provide written notice within 3 days after the commencement of the leave.
Examples of unforeseeable leave may include:
- an unexpected serious health condition of the eligible employee or a family member,
- a premature birth,
- an unexpected adoption
- an unexpected foster placement by or with the eligible employee,
- or for safe leave.
Oral notice of unforeseeable leave may be given by another person on behalf of the employee. Written notice may be given by the person named as the employee’s emergency contact person, or any other person otherwise designated by the employee, as reflected in the employer’s records.
Requirements for Employee Notice
There are rules the employer must follow if they choose to have employees provide their notice of leave in writing.
Employers are limited in what they can require to be contained in the written notice. Employers may require an employee’s written notice to include:
- The employee’s first and last name;
- The type of leave;
- Explanation of the need for leave; and
- Anticipated timing and duration of the leave.
The written notice can be in many forms, including handwritten or typewritten notices and electronic communications such as text messages and email if consistent with the employer’s known, reasonable, and customary policies. Employers must have written policies and procedures for providing written notice; otherwise, they cannot require employees to provide written notice. Those written policies and procedures must also include a description of the penalties that may be imposed if proper notice is not given. The penalty may include a reduction in the first weekly benefit amount by 25%. A copy of the written policies and procedures must be provided to all eligible employees at the time of hire and each time the policy or procedure changes in the language(s) typically used to communicate with employees.
More information about notice requirements and employer obligations can be found here.
How to File a Claim
- Gather relevant leave verification documents
- Provide notice to employer
- File application on Frances Online
- Employees can begin registering for Frances Online on August 14, 2023
- Applications can be submitted between 30 days prior to and 30 days after leave begins.
- Update the application any time the leave timeframe changes
Filing a claim under an equivalent plan will depend on the equivalent-plan provider. With the American Fidelity Equivalent Plan, an employee can easily file a claim through their online account where they are already used to viewing and filing claims for other American Fidelity benefits.
Employer education is important to help ensure compliance and avoid potential legal and financial consequences. By educating your staff about their responsibilities under the law, they can better understand their obligations to provide paid leave to employees and how to properly manage absence tracking. Employers also need to understand how to respond to employee requests for leave and how to properly document and maintain records of leave time.
Supervisors and HR personnel need to understand PLO requirements. This is important to ensure they do not inadvertently violate the statute and administrative rules and expose the organization to potential liability.
Remember, an employer may permit an employee to use all or any portion of an employee’s paid sick time, vacation, or any other paid leave earned by an employee. This is different from FMLA requirements, which allow an employer to require an employee to use other paid leave concurrently with FMLA leave. You may want to consult your legal advisor about how to handle situations that qualify for both PLO and FMLA leave. However your organization decides to address this, you should ensure supervisors are aware of policies so they don’t tell an employee that they will be required to use sick leave, vacation leave, etc., if they go out on leave, in a situation where that would not be appropriate.
Also, remember that employees are entitled to job and role protection if they were employed for at least 90 consecutive calendar days at the time they took leave. Supervisors need to understand that they cannot permanently replace the employee in those circumstances, but they may have a temporary employee to fulfill those job duties while the employee is out on leave. Upon return from leave, however, the employee must be restored to their former position if the position still exists. If the position has been eliminated and not merely renamed or reclassified, a large employer (25+ employees) must restore the employee to any available, equivalent position with the same pay and benefits at the job site that is nearest to the job site of the employee's former position.1
Finally, supervisors should understand they cannot discriminate, retaliate, interfere, or deny leave to an eligible employee. Additionally, discrimination and retaliation are prohibited against any employee who has inquired about the rights or responsibilities under the PLO program.2 To the extent the supervisors. at your organization don’t understand what constitutes discrimination, retaliation, interference, or denial, training would be appropriate to ensure compliance.
- Evaluate each request for paid leave for eligibility under other forms of leave and understand tracking obligations for each.
- Provide and post required notices regarding paid leave.
- Understand and enforce supervisor responsibilities.
Coverage when an employee switches jobs 3
- An employee who is covered by the state plan retains such status until the employee qualifies for an equivalent plan.
- An employee who stops being covered by an approved equivalent plan is, if otherwise eligible, automatically qualified for benefits under the state plan.
- An employee who was eligible for benefits under one employer’s approved equivalent is automatically eligible for immediate benefits under a new employer’s approved equivalent plan.
- An employee previously covered by the state plan or not covered by any plan must be covered by an equivalent plan after 30 calendar days of employment, provided other eligibility criteria are met.
Continuous health benefits 4
- During any period in which an eligible employee takes paid leave, the employer must maintain any health care benefits as if the employee had continued in employment during the leave period.
- An employer may require the employee to pay the same share of premium costs that the employee would be required to pay if not on leave.
- If an employee gives clear notice of an intent not to return to work, the employer’s obligations for job restoration and maintenance of health care benefits under the PFMLI statute cease on the date the notice is given.
If an employee cannot or will not pay their share of the premium costs, the employer may elect to discontinue health care benefit coverage, unless doing so would render the employer unable to restore the employee to full benefit coverage once the employee returns to work. If coverage lapses because an employee has not made required premium payments, upon the employee’s return from leave, the employer must restore the employee to coverage/benefits equivalent to those the employee would have had if leave had not been taken and the premium payments had not been missed.
If the employer pays any part of the employee’s share of health or other insurance premiums while an employer is on leave, the employer must receive permission from the employee to deduct from their pay for reimbursement until the amount is repaid. The employer may use any legal means to collect the amount owed for the employee’s share of health insurance premiums paid by the employer.
Payroll Processes 5
- An employer may not deduct from the employee’s subject wages more than the maximum allowable amount of 60% of the total contribution rate (1%) for any pay period.
- If an employer fails to deduct the employee’s maximum amount for a pay period, the employer is considered to have elected to pay that portion of the employee’s contribution and is liable for payment of that portion if not corrected within the quarter.
- The employer may deduct from the employee’s subject wages the amount they failed to deduct within the quarter.
The ability to retroactively withhold contributions during the applicable quarter does not apply in situations where an employer filed a Declaration of Intent to use an equivalent plan but either fails to file the application to use the equivalent plan by May 31, 2023, decides not to proceed with an equivalent plan, or the department cancels the employer’s approval of the equivalent plan prior to September 3, 2023, for the employer’s failure to follow the requirements of the PLO program.6
In those situations, the employer may remit any employee contributions previously withheld, that were held in trust for the payment of employee contributions due, but the employer is prohibited from withholding additional contributions from employees retroactively to pay any other amounts due. Also, employee contributions cannot be used to pay penalties or interest imposed on the employer.7
Record Retention 8
- All employers must maintain payroll records, including account records that document employee contributions and expenses, and employment records that reflect the total hours worked by all employees and the amount of PLO leave taken for the current calendar year and the three prior years.
- Additional recordkeeping requirements apply to equivalent plans as described above and in the PLO statute and regulations.
With Paid Leave Oregon benefits beginning soon, employers should take note of their responsibilities to help ensure compliance with the law. Educating employees about leave details is an important step in ensuring compliance, promoting a positive work environment, and supporting employee well-being.
This blog is up to date as of August 2023 and has not been updated for changes in the law, administration or current events.