Oregon's PFML Program Is Going Live Soon – What Employers Need to Know

Eligible employees may receive benefits under Oregon's paid family and medical leave (PFML) program starting September 3, 2023. Many Oregon employers and employees still have questions about this PFML program and how it interacts with other federal, state, and local leave laws. This advisory provides a brief overview of PFML program basics, explains recent changes to PFML and related laws, and highlights some key considerations to help employers navigate this new program.

Overview and Status of Oregon's PFML Program

On July 18, Oregon's Employment Department (OED) confirmed that benefits under Paid Leave Oregon, the State's paid family and medical leave (PFML) program, will be available beginning September 3, 2023. Employees who apply for and are approved for PFML will receive full or partial wage replacement from the State, unless their employer has an approved equivalent plan in place.

Employees who need to take time off due to eligible life events may now apply for PFML benefits, as the State's application website went live on Monday, August 14. Eligible employees may take up to 12-14 weeks of PFML for the following reasons:

• To care for themselves or members of their family during the birth of a child, or to bond with a child after birth, adoption, or foster care placement;
• To care for themselves while experiencing a serious health condition, including conditions related to pregnancy;
• To care for a family member when they have a serious health condition; or
• If the employee or their child experiences sexual assault, domestic violence, harassment or stalking.

Related Recent Developments

On June 7, 2023, Governor Kotek signed Oregon Senate Bill 999 which amended the Oregon Family Leave Act (OFLA) and Oregon's PFML law to better align the laws in both language and application.

Senate Bill 999 made several changes to both OFLA and PMFL, including:

• Addressing Concurrent Leave Usage. Senate Bill 999 amended the OFLA statute to explicitly require that OFLA leave be taken concurrently with PFML, as is the case with FMLA. Under the amendments, if an employee applies for and takes PFML for a reason also covered by OFLA, the leaves must run concurrently and count towards OFLA usage. However, there is no converse provision requiring an employee to apply for and take PFML if an employee takes OFLA leave for a purpose covered by PFML. Therefore, it is possible for an employee to choose to take unpaid OFLA first and then later take PFML for the same reason. However, the law does currently limit the amount of OFLA and PFML to a combined total of 16 weeks per benefit year (or 18 weeks if the employee is eligible for the two (2) additional weeks of PFML for pregnancy or childbirth).
• Changing the Definition of Benefit Year. The Bill also amended the definition of "benefit year" under OFLA. Previously, Oregon employers could select a benefit year of their choice, such as a calendar year, fiscal year, rolling forward, or rolling backward year. PFML, however, has only one benefit year option: a rolling forward year, for the 52-week period beginning on the Sunday before PFML leave begins. To address this inconsistency, OFLA has been amended to require employers to use the same forward-rolling year as PFML, requiring it to begin on the Sunday before OFLA leave begins. Employers will have until July 1, 2024, to transition to the new leave-year definition and must give employees at least 60 days' notice of the change.
• Aligning the Definition of Family Member. Senate Bill 999 also modified the definition of "family" used under OFLA – and, by extension, the Oregon sick time law – to align it with the definition used for PFML. The expansion to the OFLA definition now includes relationship by blood or affinity, siblings (and the spouses or domestic partners thereof), stepsiblings (and the spouses or domestic partners thereof), and the spouse or domestic partner of an employee's child, stepchild, grandparent, or grandchild. This change takes effect September 3, 2023.
• Changes to Reinstatement Rights and Benefits Continuation. Senate Bill 999 altered the standard for reinstatement rights when an employee's position no longer exists upon returning from OFLA or PFML. Effective September 3, 2023, if an employee's position no longer exists upon returning from leave, employers must offer an equivalent position at a job site located within 50 miles of the employee's former position. If multiple equivalent positions are available at different job sites, employers must first offer the job at the site that is closest to the employee's former job site. The amendments do not change the requirement that an employer must return an employee to their same job if that position still exists upon return.
• Aligning Benefits Continuation Rules. Senate Bill 999 also amended PFML's benefits continuation requirements to match those under OFLA. Specifically, effective September 3, 2023, if an employee takes protected leave under PFML or OFLA, the employer must maintain the employee's health benefits on the same terms and conditions as if the employee had not gone out on leave. If during the leave an employer is required to pay any part of the costs of providing disability, life, or other insurance that is normally paid by the employee, the employer may deduct those amounts upon the employee's return to work until they are repaid. Employers must limit the total amount deducted each pay period to 10% or less of the employee's gross pay.

Key Takeaways

All employers with at least one employee in Oregon should refresh their knowledge of PFML program requirements in advance of the upcoming effective dates. In addition, employers should:

• Confirm your written PFML policy complies with written notice requirements.
• Ensure any other PTO, sick leave, or other leave policies are properly integrated with your PFML policy.
• Update your OFLA policy to comply with Senate Bill 999, including providing notice to employees when your benefit year changes.

Please see our other PFML advisory here. Our employment attorneys are ready to help Oregon employers comply with their new PFML obligations, integrate the changes to OFLA, and navigate the complicated employee leave landscape.