04/30/2024
Compliance news
Family and medical leave
February 22: The Oregon Division of Child Support amended rules to clarify the withholding of child support from certain Oregon Paid Family and Medical Leave (OR PFML) benefits. The rules have been amended to clarify that child support obligations can be withheld from OR PFML benefits attributed to medical or family leave. Child support cannot be withheld from OR PFML safe leave benefits.
The rules have been further amended to clarify that even if the claimant has filed bankruptcy (Chapter 7, Chapter 11, Chapter 12, or Chapter 13), any notice of order to withhold child support from OR PFML benefits will remain in place. For more information, please visit the state’s website.
March 1: Oregon adopted new regulations amending the Oregon Family Leave Act (OFLA) to align with OR PFML.
The following definitions have been updated:
• Family member: Expanded to include a relationship through affinity; a relationship with a significant personal bond.
• Parent: Updated to include current or former foster parent.
• Domestic partner: Revised to specify that partners don’t need to be the same gender.
• Eligible employee: Clarified by adding the following:
– To determine the number of days an employee has worked, the employer must count the number of days an employee is maintained on the payroll, including all time paid or unpaid. If an employee continues to be employed by a successor in interest to the original employer, the number of days worked is counted as continuous employment by a single employer.
– To determine an employee’s average hours of work per week, the employer must count hours of protected leave taken, including OFLA leave, and actual hours worked, using guidelines set by the federal Fair Labor Standards Act.
• Serious health condition: Updated to remove female and add pregnancy termination and period of absence due to fertility or infertility treatment.
The regulations also included the following updates:
Changes to the relationship between OFLA and other laws
• When a covered employee takes leave under OFLA, which also qualifies for OR PFML, the benefits can run concurrently.
• An employee can choose to take accrued paid leave, such as sick or vacation time, concurrently.
• The denial of OR PFML isn’t a valid reason on its own to deny OFLA.
Leave year
• When a covered employer transitions OFLA entitlement tracking to rolling forward beginning on the Sunday immediately preceding the date on which family leave commences, all eligible employees of the covered employer must be provided with a new bank of OFLA leave entitlement at the beginning of the new leave year.
Designation of leave and notice
• An employer may not request medical certification if the leave reason is parental, bereavement, or sick child leave due to the closure of a child’s school or as a result of a public health emergency. However, additional information may be requested to determine that a requested leave qualifies under OFLA.
• A covered employer may provisionally designate an absence as OFLA leave until sufficient information is received to make a determination.
• If an employer receives notice that an employee has applied for OR PFML, that’s sufficient notice to provisionally designate an absence as OFLA.
• When an employee’s OR PFML leave also qualifies as OFLA, their OFLA leave may be reduced for the duration of their leave.
• If an employer has taken sick child leave on all or any part of three separate days during a leave year, the employer may only require medical verification from a healthcare provider on the fourth day or for subsequent use of sick child leave within that leave year. The opinion of the healthcare provider is binding, and the employer may not require employees to obtain a second opinion. The full text with all the changes can be found on the state’s website.
March 20: Oregon’s governor signed legislation (OR S 1514) requiring the director of the Oregon Employment Department to periodically assess the solvency of the Paid Family and Medical Leave Insurance Fund. If the fund is determined to be insolvent, the director may take the following actions to restore solvency:
• Decrease the maximum weekly benefit amount to no less than 100% of the state average weekly wage. The current maximum is 120% of the state average weekly wage.
• Adjust the weekly benefit amount to be the sum of:
– 65% of the state average weekly wage
– Not less than 40% of the employee’s average weekly wage that’s greater than 65% of the state average weekly wage (currently, 50% of the employee’s average weekly wage that’s greater than 65% of the state average weekly wage).
• If, after the above two actions are taken, the director determines the fund is or may be insolvent, the director may reduce the entitlement of OR PFML available from 12 weeks to 10 weeks. Notwithstanding a reduction in overall OR PFML entitlement for solvency concerns to 10 weeks, leave taken for parental bonding cannot be reduced and will remain at 12 weeks, whether taken individually or in combination with other family leave, medical leave, safe leave, or the additional two weeks available for pregnancy or childbirth complications.
Adjustments made cannot remain effective for more than five calendar years.
Oregon’s governor also signed legislation (OR SB 1515) updating OR PFML and the OFLA on March 20.
OFLA amendments
Changes to qualifying reasons (effective July 1)
The following qualifying leave reasons will be removed from the OFLA, as they’re covered under OR PFML, which also provides job protection:
• Bonding �
• Care of a family member with a serious health condition, except for sick child leave as explained below
• Own serious health condition, except for pregnancy disability leave, which doesn’t have to qualify as a serious health condition.
Concurrency with OR PFML (effective July 1)
If the employee’s qualifying leave reason under the OFLA also qualifies under OR PFML, the leaves cannot be taken concurrently. OFLA leave available is in addition to OR PFML. It would be the employee’s choice which type of leave they want to take.
Sick child leave:
Covers leave to care for a child of the employee who’s 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 childcare provider as a result of a public health emergency.
Update (effective July 1): Previously, sick child leave was reserved for situations where the child didn’t have a serious health condition. With these changes, if a child has an illness, injury, or condition that requires home care, regardless of whether it’s a serious health condition, the employee can take OFLA sick child leave.
If the child has a serious health condition, the leave would be covered under the OFLA or PFML. The employee will need to choose which program this leave falls under, as the OFLA or PFML can no longer be taken concurrently effective July 1.
If the child doesn’t have a serious health condition, the leave would only be covered under the OFLA.
Pregnancy disability leave:
In addition to the 12 weeks of family leave under the OFLA, an eligible employee may take a total of 12 weeks of leave within a one-year period for an illness, injury, or condition related to the eligible employee’s own pregnancy or childbirth that disables the eligible employee from performing available job duties offered by the covered employer.
No update: Although this leave type hasn’t changed, it’s worth noting that the employee could also qualify for OR PFML for the same leave reason. Again, effective July 1, the OFLA and OR PFML cannot run concurrently and it’s up to the employee which type of leave they want to take.
Bereavement leave:
Covers leave to deal with the death of a family member by: attending a funeral or alternative to a funeral for the family member; making arrangements necessitated by the death of the family member; or grieving the death of the family member.
Update (effective July 1): Previously, an eligible employee could take two weeks of bereavement leave for each family member within a one-year period, not to exceed the overall 12 weeks of family leave under the OFLA. This has been updated to an overall cap of four weeks of bereavement leave in a one-year period. Bereavement leave is part of and not in addition to the overall 12 weeks of family leave under the OFLA.
Foster or adoption legal proceedings leave (temporary [effective July 1, and will be repealed January 1, 2025])
A new type of OFLA leave will be temporarily added, which is in addition to the 12 weeks of family leave authorized under the OFLA. An eligible employee is entitled to a total of two weeks of leave to carry out and manage the legal process required for placement of a foster child or the adoption of a child
Multiple family members working for the same employer (effective July 1) Updates due to removal of several OFLA qualifying leave reasons include:
When two or more family members work for the same employer, they cannot take concurrent OFLA leave unless one employee is taking sick child leave and the other is taking pregnancy disability leave, or they’re both taking bereavement leave.
Notice of leave (effective July 1)
An eligible employee doesn’t have to give prior notice of the need for leave under the following circumstances:
• Sick child leave (unexpected illness injury or condition of a child of the employee that requires home care) – no change
• Bereavement leave – no change
• Pregnancy disability leave – new
Second or third medical opinion (effective July 1)
The option for employers to seek a second or third opinion from a healthcare provider has been removed from the statute.
OR PFML amendments
New qualifying leave reason (effective January 1, 2025)
Leave to manage the legal process required for placement of a foster child or the adoption of a child.
Employer-provided paid leave (effective July 1)
• An employee is entitled to use accrued sick leave, accrued vacation leave, or other paid leave offered by the employer in addition to receiving OR PFML benefits, as long as the total combined amount of accrued paid leave and OR PFML benefits doesn’t exceed 100% of the employee’s wages. Please note that currently, employers aren’t required to allow employees to use accrued sick leave, accrued vacation leave, or other paid leave concurrently with OR PFML; however, effective July 1, employees must be provided this option.
• An employer can still permit an employee to use accrued paid leave in addition to OR PFML benefits so that the total combined amounts received by the employee exceeds 100% of wages.
• The employer can determine the order in which accrued leave is used when more than one type of accrued leave is available to the employee. This is subject to any agreement between the employer and employee, such as a collective bargaining agreement, that may state otherwise.
Garnishment (effective July 1)
OR PFML benefits can only be garnished for:
• Child or spousal support
• Restitution for crime victims
Overall maximum entitlement between OR PFML and the OFLA (effective July 1)
Before these amendments, when OR PFML and OFLA would run concurrently, there was an overall maximum entitlement between the two programs of 16 weeks in a benefit year (18 if the two weeks for pregnancy or childbirth complications were taken under OR PFML). This overall maximum has been removed from the statute and will no longer be applicable as of July 1.
April 4: Oregon’s governor signed legislation (OR H 4010) impacting healthcare provisions, which included changing the title of physician assistants to physician associates.
The requirements for the physician assistant and associate are the same and titles are interchangeable.
Source: Lincoln Absence Advisor:Report
