O-R-E...Oh, Oregon. Oregon PFML and OFLA Legislation Has More Filling Than a Double Stuff Oreo®.

by Shelby Felton, Esq. - Director and Product Compliance Counsel

April 10, 2024

 

Remember when we blogged about the alignment between Oregon Paid Family and Medical Leave (OR PFML) and the Oregon Family Leave Act (OFLA) here and here? IGNORE THEM! Just kidding, kinda.

On March 20, 2024, Governor Kotek signed Senate Bill 1515 into law. The bill represents the Oregon legislature's latest attempt to align OR PFML and OFLA beginning July 1, 2024. Will the new law finally be the one that succeeds? Well...

Let's look at the changes included in SB 1515 for both OR PFML and OFLA:

Paid Leave Oregon (OR PFML) (effective 7/1/24 unless otherwise noted):

  1. OR PFML will be in addition to OFLA; they will not run concurrently. If the employee applies for OR PFML, OR PFML will still run concurrently with FMLA.
  2. Family Leave under OR PFML will:
    1. still include care of a child with a serious health condition but will exclude OFLA leave to care for a child who is sick (but not with a serious health condition) or whose school/childcare is closed because of a public health emergency,
    2. exclude bereavement leave provided by OFLA, and
    3. effective 1/1/25, include leave to effectuate the legal process required for placement of a foster child or the adoption of a child.
  3. The combined leave available under OR PFML will change to a limit of 14 weeks – 12 weeks for family/medical/safe leave plus the additional 2 weeks for limitations related to pregnancy, childbirth, or a related medical condition, including, but not limited to, lactation. There will no longer be 4 additional weeks of unpaid leave following PFML.
  4. Employees will be entitled to use employer-provided accrued sick, vacation, or any other employer-provided accrued paid leave during their OR PFML leave up to 100% of full wages. Alternatively, an employer may (but is not required to) permit employees to use accrued leave and OR PFML benefits in excess of 100% full wages. Employers will also be able to determine the order in which employer-provided accrued paid leave is used if there is more than one type available.
  5. The PFML definition of serious health condition used to refer back to the OFLA statute. As of July, however, serious health condition will no longer be covered by OFLA, and the definition will be found only in OR PFML as:
    1. An illness, injury, impairment or physical or mental condition that requires inpatient care in a hospital, hospice, or residential medical care facility;
    2. An illness, disease, or condition that in the medical judgment of the treating health care provider poses an imminent danger of death, is terminal in prognosis with a reasonable possibility of death in the near future, or requires constant care;
    3. Any period of disability due to pregnancy, or period of absence for prenatal care; or
    4. Any period of absence for the donation of a body part, organ, or tissue, including preoperative or diagnostic services, surgery, post-operative treatment, and recovery.
  6. An employee will be able to receive workers' compensation non-time-loss benefits at the same time as OR PFML benefits. In other words, they can receive medical-only benefits at the same time as OR PFML benefits for a non-occupational self-injury or for family leave or safe leave.
  7. OR PFML benefits can be garnished for child support, spousal support, or restitution for crime victims.

OFLA (effective 7/1/24 unless otherwise noted)

  1. OFLA will be in addition to OR PFML; OFLA will no longer run concurrently with OR PFML, but OFLA will still run concurrently with FMLA.
  2. OFLA will no longer permit leave to be taken for:
    1. bonding,
    2. care of a family member with a serious health condition, or
    3. an employee's own serious health condition.

    These leaves will still be covered by OR PFML.

  3. OFLA leave will still be available for:
    1. care for a child of the employee who is suffering from an illness, injury or condition that requires home care (a serious health condition will no longer be included),
    2. care for a child of the employee who requires home care due to the closure of the child's school or childcare provider because of a public health emergency,
    3. bereavement leave for a family member, or
    4. an illness, injury or condition related to the eligible employee's own pregnancy or childbirth that disables the eligible employee from performing any available job duties.
  4. From July 1, 2024, until January 1, 2025, in addition to the 12 weeks of childcare leave, an employee will be able to take up to two (2) weeks of OFLA to effectuate the legal process required for placement of a foster child or the adoption of a child.
  5. OFLA care for a child leave will still be available for 12 weeks in a 1-year period, but will not run concurrently with OR PFML leave. (Remember that beginning 7/1/24 all OFLA leave must be tracked using the measure forward method.)
  6. OFLA bereavement leave will still have to be completed within 60 days after the employee receives notice of the death.
  7. OFLA bereavement leave will still be available for up to two (2) weeks each occurrence but will be capped at four (4) weeks total within a 1-year period. An employer may not require concurrent leave if more than one family member dies during the 1-year period. Bereavement leave and childcare leave will both count towards the same 12-week bucket of OFLA leave permitted in a 1-year period.
  8. OFLA pregnancy disability leave will still be available for up to 12 weeks in a 1-year period and will be in addition to the 12 weeks total that may be taken for OFLA childcare/bereavement leave.
  9. Employee family members working for the same employer will only be able to take OFLA at the same time if:
    1. one employee is taking childcare leave, and one is taking pregnancy disability leave, or
    2. it is for bereavement leave.

So, from a practical perspective, what are the key takeaways for employers? After July 1, there will still be stacking of PFML and OFLA leave, and SB 1515 will now prohibit employers from requiring employees take them concurrently.

  • Example 1: An employee could take 14 weeks of paid PFML leave for pregnancy disability, 12 weeks of unpaid OFLA pregnancy disability leave, and 12 weeks of unpaid OFLA sick child leave for a total of 38 weeks in a 12-month period. FMLA would be exhausted during the first 12 weeks of the pregnancy disability leave.
  • Example 2: An employee could take 6 weeks of paid PFML leave for a family member with a serious health condition, 8 weeks of paid PFML leave pregnancy disability leave, 8 weeks of unpaid OFLA pregnancy disability leave, and 4 weeks of unpaid OFLA bereavement leave (2 different leaves of 2 weeks each) for a total of 38 weeks in a 12-month period. FMLA would be exhausted after the 6 weeks of PFML family leave and the first 6 weeks of PFML pregnancy disability leave.

Remember that job protection applies equally to OR PFML and OFLA.

As if SB 1515 didn't add enough new sandwich cookie filling between PFML and OFLA, we're also expecting new regulations in support of SB 1515 (to be titled Batch 11 – hearing on those regulations scheduled for May 8, 2024) with an effective date of August 1, 2024. Those new regulations will hopefully identify how the alignment changes will affect leaves that begin before July 1, 2024, but continue after July 1, 2024, and which leave types come first.

Besides SB 1515, which becomes effective July 1, 2024, did you know that amended OFLA rules became effective on March 2, 2024? We think that the biggest news from those amendments is that OFLA pregnancy disability leave now includes disability due to pregnancy termination, and fertility or infertility treatments. See amended OAR 839-009-0210, 839-009-0230.

There are also several amendments to the OFLA notice and medical verification rules. Employees unable to give 30 days' notice of leave must give notice as soon as practicable. Employees must give verbal or written notice within 24 hours before or after commencement of unforeseeable leave. This notice may be given by someone on behalf of the employee. The employer may require that employees give written notice within 3 days of returning to work. An employee who calls in sick without more is not sufficient notice, but the amendments clarify that an exception to this is if the employer has reason to know the employee is attempting to invoke protected leave or the employer acquires knowledge that an employee's leave may be for an OFLA-qualifying reason. See amended OAR 839-009-0250. The OFLA notice changes are also reflected in SB 1515.

As to verifications, an employer may not require medical verification for OFLA bonding leave (remember, OFLA bonding leave is being eliminated on July 1), for the death of a family member or for the need of sick child leave due to the closure of a school/childcare provider due to a public health emergency.

If an employee has taken OFLA sick child leave on all or part of 3 separate days during a leave year, the employer may only require medical verification from a health care provider on the 4th day of using sick child leave within that leave year. The opinion of the health care provider is binding, and the employer may not request a second opinion.

The employer must pay the cost of any requested medical verification not covered by insurance or another benefit plan unless the medical examination or health certificate is required by a collective bargaining agreement, or legal ordinance. When SB 1515 becomes effective, the employer must pay for any required sick child medical verification regardless of insurance coverage.

At this point, it is completely understandable and there will be no judgment if you eat an entire package of Double Stuff Oreos® in order to digest all of the changes to Oregon PFML and OFLA.

Reliance Matrix Can Help!

If you need help navigating the coordination of different leaves of absence, Reliance Matrix offers employers leave administration, including state paid family and medical leave solutions and accommodation services. For more information, contact your Reliance Matrix account manager or send us a message to [email protected].

Through its insurance and administrative services entities, Reliance Matrix offers integrated leave management services involving the FMLA, state-mandated paid family and medical leave and accommodation solutions. Product features and availability may vary by state. For more information, please contact your Reliance Matrix account manager, or reach us at [email protected].

Posted On April 10, 2024