The Oregon Employment Department (OED) recently published rules regarding its Paid Family and Medical Leave Insurance (PFMLI) program. The recent rules include clarifications on the benefit application process, benefit eligibility, and notice requirements. The state has also provided new resources for employers that wish to pursue an equivalent plan exemption to the PFMLI program. A previous alert on Oregon PFMLI is copied below for reference.

Benefit Applications

• PFMLI benefits will be available to all eligible employees beginning September 3, 2023. Employees may apply for benefits up to 30 calendar days prior to or following the first day of leave.
• The OED will notify employers of employee applications; employers may alert the OED if employees have not provided the required notice of need for leave.

Leave Entitlement

• The rules clarify that leave for bonding with a new child cannot exceed 12 weeks for a single child, even when the 12-month period following the birth, adoption, or placement of the child crosses two benefit years. For example, if ten weeks of child bonding leave are taken at the end of a benefit year, those weeks would be counted against the employee’s bonding leave entitlement for that child in the subsequent year even if both occur within 12 months of the child’s birth, adoption, or placement with the employee.
• Leave taken for two or more children (e.g., birth of twins, adoption of more than one child) may exceed 12 weeks if the 12-month period following birth, adoption, or placement crosses two benefit years, with up to 12 weeks of leave allowed per child, up to 12 weeks per benefit year.
• The rules provide clarity as to the circumstances under which an employee can use PFMLI benefits to care for a family member. Leave may be taken to provide “physical or psychological assistance,” including attending to basic medical, safety, or nutritional needs, providing comfort, reassurance, or companionship, or assisting with activities of daily living when the family member is unable to care for themselves. Leave may also be taken to complete administrative tasks or make changes to a family member’s care (e.g., arranging for nursing home care).
• Leave may be taken consecutively or intermittently in increments of one workday or one workweek, with leave entitlements prorated based on the average number of workdays a claimant would typically work in a week.
• Claimants with more than one employer must take leave from all employers for a given workday or workweek in which they wish to use PFMLI benefits.

Notice Requirements

• The rules spell out the various forms of verification that must be provided to the state in order to substantiate the need for leave. Additionally, the rules clarify that employers may require employees to provide up to 30 days’ written notice when the need for leave is foreseeable and, when unforeseeable, may require verbal notice within 24 hours of leave commencement and written notice within three days.
• In the case of safe leave, employees may be required to provide “reasonable notice” based on feasibility.
• Required written notice may include type of leave, explanation of need for leave, and anticipated timing/duration of leave.
• Employers must allow any required notice to be submitted in writing (handwritten or typed) or via electronic means, including text or email, consistent with the employer’s reasonable and customary policies.
• An employer’s written notice requirements must be outlined in the employer’s written policies and procedures, which must be provided, in the language the employer typically uses to communicate with an employee, upon hire and whenever there is a policy or procedural change.
• Written policies must include any penalties the state may impose if the employee does not comply with the employer’s notice requirements (currently, a 25% reduction in the first week’s benefit amount).
• Employees are not required to expressly mention PFMLI when providing notice of leave.

Equivalent Plan Exemptions

• Employers may apply for an exemption from collecting/remitting contributions if they offer paid leave benefits equal to or greater than those provided by PFMLI. To qualify, an employer’s plan must offer equivalent or more generous benefits to all full-time, part-time, seasonal, and temporary employees, with terms that are no less restrictive and contributions that are not more costly than those associated with PFMLI.
• OED has released a checklist and guidebook to assist employers in seeking an equivalent plan exemption.
• Applications are currently available for employers that already offer, or are considering offering, a paid leave program to their employees. Applications include a non-refundable $250 application fee when applying through Frances Online, the OED’s online portal. A printable version of the application form may also be used.
• Employers must submit equivalent plan applications no later than November 30, 2022 in order to potentially be exempt when contributions begin on January 1, 2023.
• Employers that are unable to submit applications by the November 30 deadline may instead submit a declaration of their intent to implement an equivalent plan, and will then have until May 31, 2023 to submit the application. Such employers will be expected to deduct contributions from employees’ pay and hold them in trust from January 1, 2023 until their application receives approval from OED.
• Timelines for exemptions processed after the November 30, 2022 deadline are as follows:
  • Before May 31, 2023: exemption effective September 3, 2023
  • Between June 1 and June 30, 2023: exemption effective October 1, 2023
  • Beyond June 30, 2023: if no application has been submitted by this date, contributions will be expected to be made for the full year
• If employers appeal an equivalent plan denial, contributions must continue while the appeal is pending.
• Approval for equivalent plans must be renewed annually for the first three years or whenever substantive changes are made to an approved plan. After three years, plan approvals will remain in place until ended or withdrawn.

Oregon Paid Family Leave Program: Contributions Begin in 2022 (originally sent April 2022)

The State of Oregon passed the Oregon Family Leave Act (OFLA) in 2019, giving employees in the state up to 12 weeks of partially paid family and medical leave through the Paid Family and Medical Leave Insurance (PFMLI) program. Employer and employee contributions will begin on January 1, 2022 with benefits available to employees in 2023. Additional information on the PFMLI can be found on the Oregon Employment Department’s website.

Contributions

• The Oregon Employment Department (OED), which will oversee payment collection and program administration, will draft model notices and rules regarding contribution levels and collection of payments by September 1, 2021.
• Contributions may not exceed 1% of employees’ wages, with a maximum wage base of $132,900.
• Employer contributions are as follows:
  • Employers with 25 or more employees: up to 40% of the total contribution
  • Employers with fewer than 25 employees: no contribution required, but they may apply for a grant of up to $3,000 if they choose to make a portion of the employee contribution and meet certain conditions.
• Employers who are required to contribute may choose to contribute more than 40% (i.e., cover a portion of the employee contribution as a benefit).

Coverage

• The OFLA applies to employers (including state employers) with at least one employee working in Oregon. Tribal government employers are exempt, but may choose to opt in.
• For the purpose of determining eligibility for leave, the OFLA defines “family member” as an employee’s child, foster child, legal ward, spouse, parent, sibling, grandparent, grandchild, domestic partner, parent or child in loco parentis, the family members of the employee’s spouse/domestic partner, and any other individual related by blood or with a family-like relationship to the employee.
• The PFMLI provides three types of leave:
  • Family leave (for child bonding or care of a relative with a serious health condition)
  • Medical leave (for the employee’s own serious health condition)
  • Safe leave (for issues related to domestic violence, harassment, sexual assault, or stalking)
• Employees may qualify for more than 12 weeks of leave under certain circumstances:
  • Women who take leave due to pregnancy, childbirth, or a related medical condition (including lactation) may qualify for an additional two weeks of paid leave.
  • Employees may qualify for unpaid, job-protected leave under the state’s existing family and medical leave law. The combination of paid and unpaid leave cannot exceed 16 weeks in a year (or 18 weeks for pregnancy/childbirth).
• Benefits are calculated as a portion of the employee’s average weekly wage (AWW). The AWW is defined as the employee’s total wages during the base year divided by the number of weeks the employee was employed during the base year.
  • Employees whose AWW is at or below 65% of the state average weekly wage (SAWW) will receive 100% of their AWW when taking qualifying leave.
  • Employees who earn more than 65% of the SAWW will receive 65% of the SAWW plus 50% of their earnings in excess of that amount, with weekly benefits capped at 120% of the SAWW.
  • The minimum benefit is 5% of the SAWW.

Requirements

• Employers are required to provide employees with written notice of their PFMLI rights, including appeals, job protection, and benefits.
• Employees are required to provide their employers with 30 days’ advance notice of the need for foreseeable leave. When the need for leave is not foreseeable, employees (or their representatives) should provide notice within 24 hours, followed by written notice within three days.
• Employees’ benefits may be reduced if they fail to give notice as required.
• Employers that contribute to the PFMLI program will be required to file a combined quarterly wage and contribution report, which will be developed by the Oregon Department of Revenue.

Coordination With Other Leave

• PFMLI leave runs concurrently with federal and state unpaid, job-protected leave. Employers may permit eligible employees to use their paid sick time, vacation time, or other employer-provided paid time off (PTO) to supplement their pay during PFMLI leave up to 100% of their average weekly wage.
• Oregon’s current family leave law provides an additional four weeks of unpaid, job-protected family and medical leave; a 16-week limit applies to the combination of paid and unpaid family and medical leave benefits.
• Employers may obtain an exemption from participating in PFMLI if they offer an approved equity plan. If the employer is approved, contributions will not be collected and employees will not qualify for state plan benefits. The following conditions apply:
  • The plan must be available to all employees continuously employed with the employer for 30 or more days.
  • Benefits under the plan must equal or exceed PFMLI benefits.
  • Contributions deducted from employees’ pay to fund the plan must be used only for plan expenses, and cannot exceed what employees would pay in contributions to PFMLI.