OREGON: Major leave changes will eliminate OFLA and PLO overlap – Technologist

The Oregon legislature has passed SB 1515, which makes major changes to the Oregon Family Leave Act (OFLA), and minor changes to Paid Leave Oregon (PLO), in an effort to eliminate the overlap between the two leave laws. The governor is expected to sign the bill. Most leaves that are currently covered by both OFLA and PLO will no longer be covered by OFLA, concurrent use of OFLA and PLO will no longer be allowed, and there will no longer be a combined OFLA-PLO cap on leave usage. Except as noted below, these changes take effect on July 1, 2024.

OFLA will only cover:

• Sick Child Leave: To care for a child (under 18 or disabled) of the employee who is suffering from an illness, injury, or condition that requires home care, or who requires home care due to the closure of the child’s school or child care provider due to a public health emergency. Note that under this new bill, sick child leave covers all illnesses requiring home care, regardless of whether they are serious health conditions. This leave counts toward the basic 12 weeks of leave available under OFLA.
• Bereavement Leave: Continues to allow up to 2 weeks of leave due to the death of an employee’s family member. The bill caps total bereavement leave at 4 weeks per one-year period. This leave counts toward the basic 12 weeks of leave available under OFLA.
• Pregnancy Disability Leave: Continues to allow an employee up to 12 weeks of OFLA leave for pregnancy disability (including recovery from childbirth), in addition to the basic 12 weeks of leave available under OFLA.
• Foster Care and Adoption: An additional 2 weeks of leave for the legal process required for placement of a foster child or the adoption of a child. (This is temporary from July 1, 2024, through December 31, 2024. Beginning on January 1, 2025, leave for these purposes will be included in the Family Leave provisions of PLO.)

PLO will continue to cover:

• Family Leave: To care for a family member with a serious health condition, or for bonding with a newborn or newly placed child. Effective January 1, 2025, this also includes time off for the legal process required for placement of a foster child or the adoption of a child.
• Medical Leave: For the employee’s own serious health condition. This continues to include an employee’s pregnancy disability, but PLO and OFLA leave for pregnancy disability cannot run at the same time. A pregnant employee who wants to maximize their available leave therefore could take 2 weeks of PLO for pregnancy disability, plus up to 12 weeks of unpaid pregnancy disability leave under OFLA (depending on the length of time certified by their health care provider), followed by 12 weeks of PLO family leave to bond with the newborn child.
• Safe Leave: For reasons due to sexual assault, domestic violence, harassment, bias crimes, or stalking.

Changes to PLO:

• Use of accrued employer-paid time off: Employees will be entitled to use any accrued time off to top off their PLO benefits to 100 percent of wages, and employers may permit employees to use their accrued paid leave to exceed their regular wages. The employer has the right to determine the order in which accrued leave is used.
• Length of leave: Retains the 12-week total for PLO with an additional 2 weeks possible for pregnancy-related disability, capping the total amount of PLO at 14 weeks per benefit year.

The bill also grants an exception to some of the predictive scheduling requirements for large employers in the retail, hospitality, and food services industries. If an employee gives their employer less than 14 days’ notice before the first day of the work schedule of the need for OFLA or PLO leave, or that they are returning from OFLA or PLO leave, the employer doesn’t have to pay extra compensation under Oregon’s predictive scheduling law to any temporarily assigned employees who are covering that person’s shifts.

Tips: These changes should ultimately simplify leave administration for Oregon employers and streamline the leave process for employees, but the transition will create some surprises. You should plan on notifying employees of the changes as the July 1 effective date draws near.

One significant practical change under this new bill is that employees taking partial days of leave for a non-pregnancy serious health condition won’t have protections under either OFLA or PLO, because non-pregnancy serious health conditions will only be covered by PLO, and PLO can only be taken in full-day increments. The only protections for these partial-day absences will be under the Oregon sick leave law, the federal Family and Medical Leave Act (FMLA), and potentially as a reasonable accommodation under the Americans with Disabilities Act (ADA) for time off due to an employee’s disability.

As of July 1, 2024, employees who are on OFLA leave for a non-pregnancy serious health condition or for parental leave (bonding with a newborn or newly placed child) will no longer be eligible for these types of leave under OFLA. You should communicate the change in advance and, where applicable, advise employees to apply for PLO in a timely manner so that their leave isn’t impacted. The bill doesn’t create a new leave year, or require you to ignore OFLA leave that employees have already taken, even though the reason for leave is no longer covered under the new law.

The Oregon Bureau of Labor and Industries (BOLI) will be issuing regulations to clarify the new law. Vigilant will be updating our Model Policies: Oregon Family Leave Act Policy, Oregon: Paid Leave Oregon Policy; our Model Forms: OFLA: Leave Designation Letter, and OFLA: Eligibility Notice; and our Legal Guides: Federal and Oregon Family Leave Comparison Chart, and Oregon: Paid Leave Oregon. Contact your Vigilant Law Group employment attorney with questions, but we strongly recommend that you wait to update your polices until after BOLI has issued its regulations to avoid the potential of having to make an additional round of changes.