Oregon Sick Leave: Employer Requirements

This video is a summary of the requirements for Oregon employers, large and small, under Oregon's new sick time law, SB 454. It covers what employers must do and what employers with existing vacation, paid time off (PTO) and sick leave policies must do to comply.

The employer resources mentioned in the video can be found at the links below.

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Video Handout - Sick Leave Requirements

Mp3 Audio - OR Sick Leave 1 Audio

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LegalBriefs are published as an educational service for business people by Oregon business attorney Alan Thayer. He welcomes your questions and comments.

This article and all LegalBriefs articles are offered for general information and educational purposes only. They are not offered as legal advice and do not constitute legal advice or opinion. We do not promise or guarantee that the information is correct, complete or up-to-date. You should not act or rely upon the information in this or any other LegalBriefs article without seeking the advice of an attorney.

Paid Sick Time Transcript

Beginning January 1, 2016, Oregon employers must provide employees with up to 40 hours per year of sick time to care for themselves and their family members. Employers with 10 or more employees (6 or more in Portland) must offer paid sick time. Smaller employers can provide sick time without pay.

This program focuses on the requirements of Oregon’s paid sick time law, what employers must do and what employers with existing vacation, paid time off and sick leave policies must do in order to comply. 

Hello, I am Alan Thayer. I am an Oregon business lawyer.

It is reported that 49% of all claims against businesses are employment related claims. About 1/2 of my practice is helping Oregon employers comply with employment laws and adopt strategies to prevent employer liability.

I am also the founder of the Innovative Law Group. We search for effective ways to help Oregon businesses seize business opportunities and prevent legal liability.

This is the first of three programs on Oregon’s sick time law, SB 484. The next program will cover specific strategies and recommendations for Oregon employers. A third program will discuss Abuse Prevention.

We will also be creating supervisor training materials you can use with your managers and supervisors, templates you can use to create or revise your vacation or paid time off policy and instructions you can give your payroll processor to properly (and legally) implement your policy. 

Oregon Paid Sick Leave Requirements

This program covers the Oregon sick time requirements. You will learn:

• The employees that are covered. 
• How sick time hours accrue.
• Carryover requirements. 
• Protected uses of sick time. 
• Payments to those using paid sick time.
• Notice requirements (both employer notice to employees & employee notifications when using sick time). 
• Record keeping.
• Payment for unused sick time on termination. 
• Retaliation prohibitions. 
• Impact on your attendance policies. 
• Abuse prevention.
• How your existing vacation or time off policy will be affected.
• Penalties under the law. 

Employees Covered

You should pretty much figure all of your employees are entitled to sick leave, either paid or unpaid. There are, however, a few exceptions.

Covered. "Employee" is defined as "an individual who renders services ... " SB 454 sec. 2(1)(a). This includes people paid on a piece-rate, hourly, salary or commission basis. SB 454 sec. 2(1)(b).

There are special requirements for home care workers that are not covered here. 

Not Covered. Some employees are not covered. Those are employees receiving paid sick leave under federal law, independent contractors, state and federal work training and work study participants, railroad workers (subject to federal law) and an employer's spouse, children and parents. 

Hours (accrual)

Beginning January 1, 2016, employees will accrue 1 hour of sick time for every 30 hours worked, up to a maximum of 40 hours of accrued sick time. Theses hours begin to accrue on an employee’s first day of work.

Or you can simply front load 40 hours of paid sick time at the first of each year. As we will discuss in the Strategies & Recommendations programs, this can be a sucker bet for employers.

Carryover

You must carry over unused sick time from one year to the next.

Or front load 40 hours at the start of each year instead.

We will talk about your options and the approach that will work best for you in the Strategies & Recommendations session.

Use

Employees may use sick time as soon as it has accrued. However, you are not required to allow new employees to use sick time until their 91^st day of employment.

Use. Sick leave may be used for the employee’s or a family member’s:

1.       Preventive care.

2.       Care, treatment or diagnosis of the employee’s mental or physical illness, injury or health condition.

3.       Time dealing with domestic violence, harassment, sexual assault or stalking issues.

4.       Oregon Family Leave Act (OFLA) covered leave.

Increments. Sick time may be taken in one-hour increments. 

There is an exception, however, if allowing one-hour of leave would impose an undue hardship to the employer (BOLI is to adopt rules defining what constitutes a hardship). If there is a hardship, an employer may require sick time to be taken in 4-hour increments, provided the employer allows employees to accrue 56 hours of sick time rather than 40 hours.

Payment

So Oregon employees will be legally entitled to sick time. What pay are they entitled to during that sick time?

Paid / Unpaid Time. The first question is whether employee sick leave is paid or unpaid?

Employers of 10 or more employees must provide paid sick leave. 

There is a different rule, however, for Portland employers. A Portland employer is one with an office, store, restaurant or establishment in Portland. If an employer has a presence in Portland and has 6+ employees, employed anywhere in the state. They must pay for sick time.

Unpaid Time. Employers with fewer employees must provide the same amount of sick time, but they are not required to pay employees for that time off.

This is a different rule than the Eugene ordinance which required paid sick time for all employers, regardless of size.

Sick Time Payment. Employees entitled to be paid sick time must be paid.

But what is the regular rate of pay for employees paid on a commission or piece rate basis?

The regular rate of pay is calculated b taking total compensation for a given period of time and dividing by the number of hours worked during that period.

If no regular rate of pay has been calculated, then commission or piece rate employees must be paid the minimum wage or more for paid sick time.

Notice (employer & employee)

There are two types of notice. The first are required notices you must give to your employees. The second, if you desire, are notices your employees must give to you before they take sick time.

As an employer, you are required to give 3 notices.

1)    You must display a poster notifying employees of their rights under the law.

2)    You must give a written notice of the sick time law to new employees.

3)    You are also required to notify employees at least once each quarter of their accrued and unused sick time.

You can require your employees to notify you when they take sick time. If you want notice, though, spell out your notice requirements in a written policy.

You may require your employees to follow your usual notice procedure for absences and requesting time off. However, you must do so in a way that does not interfere with your employees’ ability to use sick time.

If the need to use sick time is foreseeable, you may require up to 10 days’ advance notice.

You can also require employees to make “reasonable attempts” to schedule their sick time so that it does not “unduly disrupt” your operations.

If the sick time is unforeseeable, employees must provide notice as soon as practicable and must comply with your absence call-in procedures.

This will be covered in greater detail in the Abuse Prevention program.

Record Keeping

The Oregon statute does not have specific record keeping requirements. This is different from other jurisdictions with paid sick leave laws.

Oregon law already requires you to maintain payroll records. Keep track of sick time accrual and use as part of these records.

Termination

Do you have to pay employees for unused sick lave when their employment comes to an end? Generally no. The choice is up to you.

If you don’t want to pay on termination, resignation, retirement or other separation of employment, you do not have to. But, put it in a written policy!

There are special rules for

• Sale of the business.

• Termination and rehire.

• Transfer to another state.

These special rules are not covered here but you need to be aware that they exist.

Retaliation 

The Oregon statute specifically prohibits retaliation against employees for:

• Inquiring about sick time.

• Requesting sick time.

• Using sick time.

• Participating in a BOLI sick time investigation.

Retaliation claims do not require proof of an underlying violation.

• You can be liable for retaliation even when there is no violation of the sick time law.

This is another layer of risk for employers.

• Let’s say you terminate an employee that does not work out.

• The employee can then allege you are really firing him because he took paid sick time, not because you caught him stealing.

Handling situations such as this was discussed in my LegalBriefs article, How to Fire A Bulletproof Employee. You can find a link to that article below this video.

Attendance Policy

You may be asking, “what about our attendance policy?” “Is that a form of retaliation?” The answer is yes, it is.

Your attendance policy cannot punish employees for taking sick time, instead you should count sick time as an “excused” absence.

Abuse Prevention

The Oregon law does have some weak, very weak, abuse prevention provisions.

Employers in cities where paid sick leave laws have been in effect for some time report their biggest problems are:

1)    Employees using sick time, 1 hour at a time, when they are late for their shifts because they have over slept.

2)    Employees adding an extra day before or after holidays.

If an employee takes more than three consecutive scheduled work days of sick time, you can require a medical certification by a “health care provider (as defined by Oregon law).” Larger employers should recognize this procedure from similar provisions in the Oregon Family Leave Act (which applies to employers with 25+ employees) and the federal Family Medical Leave Act (which applies to employers with 50+ employees).

Please note that it is not three days, it is more than three days. You cannot require a medical certification until the fourth day.

A client asked if they could require a medical certification after an employee has used an hour of sick time three mornings in a row. Great idea! Unfortunately, the answer is probably no, the statute refers to three “consecutive work days.” Here, the client’s employees would not be taking a “work day,” just one hour. Good question! But sorry, no luck.

Now, if an employee takes sick time without notice, you can require a medical certification without waiting for the three days.

You can also require medial certifications if there is a pattern of abuse. The statute states this includes repeated use of unscheduled time on or adjacent to:

            Weekends

            Holidays

            Vacation days or

            Paydays

There is more that you can do to prevent abuse. There are procedures you can adopt that are not prohibited by the Oregon law.

Sick time abuse has been a problem around the country in other cities and states with sick leave laws. It is an important issue for many if not all employers.

Policies and procedures you can adopt will be covered in a separate Abuse Prevention program.

Existing Policies

If you currently have a policy where employees get paid time off (whether a vacation policy, a Paid Time Off or PTO policy or a sick leave policy), are you good? The answer is probably not. Oregon’s new law requires that your existing program be “substantially equivalent to or more generous than the [law’s] minimum requirements.”

But what does "substantially equivalent" mean? Until BOLI adopts administrative rules and the Oregon courts enter rulings that are certain to follow. We do not know for sure.

Here is what you ought to consider though. Does your current policy:

• Meet the new accrual provisions?
• Does it have similar carryover provisions?
• Can employees use paid time off for the uses set out in the new statute?
• Do you comply with the employee notice limits?

In addition, you should also ask, does your current policy contain abuse prevention provisions to protect you from unscheduled absence abuse?

Prudent, take charge employers will adopt new policies or amend their existing policies to comply with Oregon's many new requirements. This will be discussed in the Strategies & Recommendations program.  

Penalties 

Employees may file complaints with the Bureau of Labor and Industries. BOLI can then investigate and fine employers up to $1,000 for violations. These penalties, however, may be imposed only for violations that occur after January 1, 2017. Employers get one year to comply before penalties will be imposed.

That is not the same, however, for employee lawsuits. Employees may file lawsuits against you from almost day one. They then can ask for reinstatement, up to two years of back pay, court costs and attorney fees for trial and appeal.

Employee lawsuits are part of that additional layer of risk mentioned earlier for businesses that hire employees. 

Conclusion

That is SB 454, Oregon’s new paid sick time law. If you would like a copy of the bill, there is a link below this video.

As previously mentioned, our next program will cover specific strategies and recommendations for Oregon employers. The program after that will cover abuse prevention.

We also will be creating:

 1.     Supervisor training materials (so that your supervisors know what to do and what not to do with your employees).

 2.     Templates you can use to revise your vacation or PTO policy or create a new policy.

 3.     And instructions for your payroll processor.

Make sure you know about these employer resources as they become available.

Subscribe to our free LegalBriefs newsletter, our YouTube channel and our Facebook page at the links below this video so that you can stay informed.

We have reached the end of the program. This information was presented as an educational courtesy for you and other Oregon employers by me, Oregon business lawyer Alan Thayer. I welcome your questions and comments.

This was a summary of potions of Oregon’s new sick time law. It is not offered as and does not constitute legal advice or opinion. For answers to your specific questions and advice on how to comply with Oregon’s sick time law, consult with an Oregon lawyer familiar with SB 484.

Thank you.