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The city of Eugene, Ore., passed a mandatory paid sick leave ordinance in July 2014, which is set to take effect on July 1, 2015. The city has published proposed rules that provide the all-important details about how the ordinance will actually work and what employers must do to comply. Below is a brief summary of the proposed rules.
The ordinance applies to businesses based both inside and outside of the city of Eugene. It operates not on an employer’s location, but rather on where an employee performs work, even if that location changes from day to day. Under the ordinance, any employee performing work within Eugene must accrue paid sick leave. Accordingly, employees who occasionally travel into Eugene to make deliveries or visit customers, for example, may be entitled to paid sick leave.
Under the proposed rules, employees are entitled to accrue paid sick leave as soon as they start work or on the ordinance’s effective date of July 1, 2015 (whichever is later).
Paid sick leave must accrue at a rate of at least one hour for every 30 hours worked. Accrual at any lesser rate or over any longer period of time will violate the ordinance.
Employees must be allowed to accrue up to 40 hours per year (whether it is a calendar year, fiscal year, leave year, or other predetermined 12-month period). As an alternative to accrual, employers may front-load an employee with 40 hours at the beginning of the year.
Although accrual must begin on the first day of work, employees may not use sick time until they have been employed at least 90 days. In addition, employees who are based outside of Eugene are not allowed to use accrued leave until they have worked at least 240 hours within the city. The 240-hour requirement does not apply to Eugene-based employees, however, which will generally result in part-time employees becoming eligible to use leave after working 90 days. Regardless of the amount of paid sick leave any employee accrues, however, no more than 40 hours can be used in a single year.
Eligible employees must be allowed to use paid sick leave for any of the following reasons:
Because these reasons will often implicate the federal Family and Medical Leave Act and/or the Oregon Family Leave Act, employers should be mindful of the federal, state, and local laws each time an employee requests leave.
At the end of each year, employees must be allowed to carry over up to 40 hours of unused leave. Employers that frontload paid sick leave each year, however, are not required to allow any carryover.
Employers with paid time off (PTO) or sick leave policies that equal or exceed the requirements of the ordinance will be deemed in compliance with the accrual and use sections of the ordinance. To meet this requirement, a PTO or other leave policy must accrue paid leave at the same or greater rate than the ordinance, and must allow use for the same reasons. Experience with other cities’ leave laws has shown that many employers need to make changes to meet the legally mandated accrual rate.
Employees can be required to provide “reasonable” notice of absences for which they want to use accrued paid sick leave. But employers that do not have a written policy detailing their notice expectations are required under the proposed rules to establish a written policy.
Every employer subject to the ordinance will be required to both provide and post written notices regarding the ordinance to its employees. The notices must be in English as well as any other language the business uses to communicate with its employees. In addition to notifying employees about use, accrual, and other basic aspects of paid sick leave, employers must inform employees that retaliation for using or requesting sick leave is prohibited. Employers also must inform employees of their “right to file a complaint if sick time as required by the [o]rdinance and these [r]ules is denied by the employer, or if an employee is retaliated against for requesting or taking sick time.” As currently drafted, however, the rules do not specify to which agency a complaint should be addressed.
In addition, employers must notify each employee at least quarterly about the amount of accrued and unused paid sick leave the employee has available.
Until the proposed rules become final, there is no need for employers to amend their policies or change their practices.
The rules are expected to be finalized in early February 2015, and the ordinance is scheduled to take effect on July 1, 2015. Fortunately, Eugene does not plan to impose penalties for noncompliance for three months after the ordinance takes effect (i.e., through September 2015). Unfortunately, however, as soon as the ordinance takes effect, employees and their attorneys may file lawsuits seeking penalties even if the city does not. For that reason, once the final rules are published, employers should review their current policies, enact new compliant policies, prepare compliant notices, and update payroll or other leave tracking systems.
Sean Driscoll is an attorney in the Portland, Ore., office of Ogletree Deakins. Republished with permission. © 2015 Ogletree Deakins. All rights reserved.
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