by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel,
August 07, 2019
It’s getting hard to come up with creative captions for articles about these new state paid family and medical leave laws. And darn it, can we say Oregon is the 10th state when one of the jurisdictions counted is the District of Columbia?
Well that’s my rule and I’m stickin’ to it.
You can see our tally of the states in our recent blog post on Connecticut’s leave law (we get to our number by including Hawaii, which has a paid medical/disability law but not aid family leave – yet!). What has Oregon passed, and how does it compare to other recent PFML laws? Glad you asked: read on!
The Best Paid Leave Law?
Recently, each new state to join the PFML bandwagon proclaims that it has just passed the “best” or “most generous” paid leave law, and Oregon is no exception. But how do you measure that? If it’s by the top percentage a low-wage worker can receive, then Oregon does take the cake, proposing to pay benefits up to 100% of earnings in the case of a worker who earns at or below 65% of the state’s average weekly wage. Just last month Connecticut had claimed that honor with a benefits formula that will pay some workers up to 95% of their wages during leave. (See our Connecticut blog post.) And based on the current AWW for Oregon at $1044.40 (through June 30, 2020), that puts Oregon’s maximum benefit at over $1250 per week – also beating out the competition by that measurement.
Duration of Benefits. But there are other ways to measure which state offers the “best” benefits to employees, such as length of paid leave and the reasons for which an employee can take paid leave under the law. Oregon will provide up to 14 weeks of paid leave per benefit year (12 weeks total for all leave reasons plus another 2 weeks if an employee is incapacitated by pregnancy or related conditions). That 2-week baby bump is becoming common – Connecticut and Washington are doing the same, for example. But Massachusetts beats Oregon overall with up to 20 weeks of leave for the employee’s own serious health condition; and both Massachusetts and Connecticut provide up to 26 weeks for care of an ill or injured servicemember.
Leave Reasons. Oregon is neck and neck with other states as to who offers the “best” benefit when measured by covered leave reasons. Oregon’s PFML will not cover leave specifically to care for an ill or injured servicemember (although that could form the basis for leave to care for a family member with a serious health condition, generally). Nor will it cover leave for military exigencies, although that type of job-protected but unpaid leave is available under another Oregon statute.
On the other hand, Oregon will provide “safe leave” for reasons related to the employee or the employee’s minor child being a victim of domestic violence, harassment, sexual assault, or stalking. Currently only New Jersey offers such paid leave (due to amendments to their law earlier this year, but with a very broad class of family members for whom the employee can take such leave – see our blog post here). Connecticut will also offer paid leave relating to family violence, but only when the employee is the victim.
Family Members. Finally, Oregon is on the forefront when it comes to the family members with a serious health condition for whom an employee can take paid leave. The latest trend (and there will be more states doing the same) is to include a broad list of the specific family relationships that are covered by the law (see the chart below) AND include coverage for someone who is “like a family member” to the employee. Under Oregon’s law this is defined as: “Any individual related by blood or affinity whose close association with a covered individual is the equivalent of a family relationship.” This is in recognition of the changing nature of families in the United States, but it will surely present some administrative challenges to both the state and an employer in trying to interpret and apply this language. Connecticut and New Jersey have similar covered relationships, and Colorado (expected to pass a PFML law next year) also included this broad category.
The Oregon PFML Law
Here are the key provisions of the Oregon PFML law. There are many more details, of course, but with contributions over 2 years out and benefits another year after that, we’ll take some time before burying you with all the nitty gritty (much of which we don’t even have yet). Following the chart are a few more observations, if you are still reading at that point!
|Employee Eligibility||During the Base Year or Alternate Base Year:
Base Year: first 4 of the last 5 completed calendar quarters
Alternate Base Year: Last 4 completed calendar quarters
Other covered individuals include, under certain circumstances,
|§§ 2(1), (3), (5), (8) & (11)
|Covered Employers||All private employers||§§ 2(14)(a) & (b)|
|Total Leave Entitlement||
MAXIMUM TOTAL: 18 weeks per
Specifically excludes other leave reasons
|· §§ 2(17), (19) & (21)|
|Family Members||Spouse or Domestic partner
The following relations to the employee
Any individual related by blood or
|· § 2(6), (18) & (20)|
|Leave Year Calculation Methods||“Benefit year” – a 12-month period
to be defined by regulations
|Leave Increments||Benefits payable for leave taken in
increments equivalent to 1 work day
or 1 work week
|§ 12(3) & (4)|
|Employee Documentation||Not yet determined; Director will
establish rules for submitting claims
|Employee Notice to Employer||
|Employer Notices to Employees||
||§§ 16, 42, 62|
|Benefits||Benefits start 01-01-2023
|Private plan||“Equivalent plan” that provides equal or
greater benefits and protections
|Concurrency with Other Leave Laws||Leave taken under PFML is
||§§ 5, 6|
|Interaction with Other Employer Benefits||
Other Points of Interest
Here are some additional details that are laid out by the Oregon PFML law.
Localization of Employee Wages – §21. In some states an employee’s eligibility for PFML benefits is based in the first instance on whether the employee is employed primarily within the state (Washington, for example). Then other eligibility factors kick in, such as hours worked in the state or earnings of a specified amount. Under the Oregon law it is possible for an employee who only works a very small amount per year in Oregon to receive benefits. The statute addresses what employee wages are subject to contributions and count for determining eligibility and benefits:
An employee’s wages shall be used to make determinations under sections 1 to 51 of this 2019 Act if the wages are earned for service:
- Performed entirely within this state; or
- Performed both within and outside this state, but the service performed outside this state
is incidental to the employee’s service within the state.
As noted in our chart above, it only takes $1000 in earnings in a base year to be eligible for benefits, but of course benefits will be proportionally small as well.
Counting Employees – § 35. The method for counting employees for such purposes as the small-employer exemption for paying employee contributions will be determined by the Director. However, the law requires that the determination be based on the average number of employees employed by the e in the 12-month period immediately preceding the date on which the determination is made.
Equivalent Plans – §§ 43-48. The Oregon PFML law will allow employers to adopt an “equivalent” plan to provide benefits to employees rather than using the state mechanism. This option is called voluntary or private plans in other states. Here are some of the key provisions spelled out in the statute:
- As is common, the plan must offer benefits that are equal to or greater than the state benefits.
- The employer may impose a 30-day waiting period for a new employee before offering plan coverage.
- Employee contributions collected by an employer with an equivalent plan must be used for
plan expenses and are not considered to be a part of an employer’s assets for any purpose.
- An approved equivalent plan must remain in effect for at least one year. The employer must submit
an approved plan for reapproval annually for 3 years after initial approval.
- Benefits for an employee who is covered under more than one plan will be prorated under each plan.
- The Director must adopt rules to establish the process by which employers may apply for approval of
an equivalent plan by September 1, 2021.
Administration by a Third Party – § 34. Following a competitive bid process, the Director may engage a third party to implement the PFML law and to administer the program thereafter. This bodes well, as so many of the challenges with the programs in states like Washington and Massachusetts seem to be attributable to the fact that the state staff lacks leave of absence management knowledge and experience. Use of a third party is not mandatory, however.
MATRIX CAN HELP! It’s early days yet for Oregon PFML. As usual, we will be watching for developments and reporting on this blog as new information is available. In the meantime, you can find our prior blog posts about other state PFML laws by typing the state name in the search box – a wealth of articles about the pending Connecticut, Massachusetts, and Washington laws and the 2019 New Jersey amendments.
AND . . . If your company is interested in the private plan option for Washington or Massachusetts PFML, contact your Matrix/Reliance Standard account manager or send us a message at firstname.lastname@example.org.