Rules on Oregon's Paid Family and Medical Leave Program Finalized

​The Oregon Employment Department (OED) recently published its latest rules governing Oregon's new Paid Family and Medical Leave Insurance (PFMLI) program. The PFMLI program will be funded by employer and employee contributions in the form of payroll deductions beginning Jan. 1, 2023 and will provide employees leave beginning on Sept. 3, 2023.

The PFMLI program covers any employer that employs one or more employees in Oregon, but only employers with 25 or more employees will be required to pay into the fund via payroll taxes. Employers and employees will share the cost of the 1 percent contribution rate. Employers will pay 40 percent of the contribution, and employees will pay 60 percent. The OED determines employer size by looking at all employees in the company, not just employees in Oregon.

To be eligible for benefits, an employee must have:

• Earned at least $1,000 in annual wages.
  
• Contributed to the PFMLI fund.
  
• Experienced a qualifying event necessitating leave.
  
• Current Oregon employment.
  
• Submitted an application for benefits.
  
• Not already exceeded their maximum paid leave and benefit amounts.
  
• No current disqualification from benefits, such as being eligible to receive workers' compensation or unemployment benefits.
  

Workers are entitled to 12 weeks of paid family, medical or safe leave. Employees who have limitations related to pregnancy, childbirth, or lactation are eligible for an additional two weeks of leave. Safe leave is leave needed as a result of domestic violence, sexual harassment, or stalking.

If the reason for leave qualifies for unpaid leave under the Oregon Family Leave Act (OFLA) or the federal Family Medical Leave Act (FMLA), then the employee must take such leave concurrently, up to 16 weeks of combined paid and unpaid leave in one benefit year (or 18 weeks, if the employee takes leave due to pregnancy, childbirth or related conditions).

Beginning Sept. 3, 2023, employees can apply for PFMLI benefits up to 30 calendar days before or after the start of leave. The OED will notify the employer when an employee has applied for benefits, and the employer may respond to the OED if the employee did not provide notice of the need for leave. Workers can take leave intermittently in increments equivalent to one workday or one workweek.

Verification of Eligibility

For family leave to care for and bond with a child, an employee must provide verification reflecting the employee's name as parent or guardian of the child after birth or placement of the child through foster care or adoption, the child's name, and the date of the child's birth or placement. Such verification may include a birth certificate, document issued by a health care provider, copy of a court order, or document from the foster care, adoption agency, or social worker involved in the placement.

An employee seeking medical or family leave for their own or their family member's serious health condition must submit verification of the relevant health care provider, type of medical practice or specialization, and contact information, approximate date the serious health condition commenced, a reasonable estimate of the duration of the condition or recovery period, or a reasonable estimate of the frequency and duration of intermittent leave and estimated treatment schedule.

An employee seeking safe leave connected to domestic violence, harassment, sexual assault or stalking must provide verification, such as:

• A police report or a formal complaint indicating that the employee or their child was a victim of domestic violence, harassment, sexual assault, or stalking;
• A protective order or other evidence from a court that the claimant appeared in a related proceeding; or
  
• Documentation from an attorney, law enforcement officer, health care provider, mental health professional, clergy, or victim services provider that the claimant is undergoing related treatment or counseling.

Notice Rules

If leave is foreseeable, such as leave needed for an expected birth or scheduled medical treatment, the employer may require that the employee provide at least 30 days' written notice. If leave is unforeseeable, the employee must give oral notice to the employer within 24 hours of leave beginning and must provide written notice within three days after the leave begins. For safe leave, employees must provide reasonable advance notice unless not feasible.

An employer requiring written notice may ask employees to list the type of leave, explanation of the need for leave, and anticipated timing and duration of the leave. The employer must permit employees to provide notice via electronic communications, including text messages and email, that are "consistent with the employer's known, reasonable and customary policies." Employees don't need to mention the PFMLI program when submitting notice.

Employees who fail to provide the required leave notice may incur a penalty amounting to a 25 percent reduction in the first weekly benefit amount.

Approved Equivalent Plans

Employers that provide paid leave benefits that are equal to or greater than those provided by PFMLI do not have to pay contributions to the PFMLI program. Equivalent plans must provide the same or better benefits as the PFMLI program to all full-time, part-time, seasonal, and temporary employees and may not be more restrictive or cost more than the base rate established by the OED. The OED has released a checklist and guidebook for employers to consult.   

The OED recently rolled out equivalent plan applications for employers. Employers must pay a $250 non-refundable fee to apply through the OED's online portal, Frances Online.

To be exempt from paying contributions beginning Jan. 1, 2023, employers must submit their equivalent plan application by Nov. 30. If an employer is unable to submit an equivalent plan application by Nov. 30, they may submit a Declaration of Intent, acknowledging that they intend to offer an equivalent plan. Employers that utilize the Declaration of Intent option must submit the equivalent plan application by May 31, 2023.

Employers that submit an approved equivalent plan application in June 2023 will be exempt from contributing to the PFMLI program, beginning Oct. 1, 2023. If an employer has not submitted a Declaration of Intent or an equivalent plan application by June 30, 2023, the employer will be expected to contribute to the PFMLI program for the full year.  Employers that submit a Declaration of Intent must still deduct employee contributions and hold them in trust beginning Jan. 1, 2023 until the OED has approved the equivalent plan application.

If the OED denies an equivalent plan application, then the employer must continue to collect and pay PFMLI contributions, but may submit an appeal to the OED or Office of Administrative Hearings. Employers must reapply for approval of their plans annually for the first three years or if any substantive changes are made to their approved plan. After three years, employers will no longer have to reapply for approval, and their equivalent plans will remain in place until withdrawn or ended.

Employers should prepare to review and revise their leave policies for implementation in 2023 and consider what requirements they want to impose regarding required notice for employees applying to take leave. Employers that wish to be exempt from quarterly contribution requirements beginning Jan. 1, 2023 must submit either an Equivalent Plan Application or a Declaration of Intent by Nov. 30, 2022. The OED will likely issue another set of final rules by the end of September.

Cristin Casey, Megan J. Crowhurst and Christine E. Sargent are attorneys with Littler in Portland, Ore. Sebastian Chilco is an attorney with Littler in San Francisco. © 2022. All rights reserved. Reprinted with permission.