OFLA And PLO Are Never Ever Getting Back Together: New Sweeping Changes To Oregon Leave Laws Require Employer Action

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On July 1, 2024, sweeping changes become effective to Oregon's leave laws. The Oregon Legislature recently passed fundamental changes to the Oregon Family Leave Act (OFLA)...
United States Employment and HR
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On July 1, 2024, sweeping changes become effective to Oregon's leave laws. The Oregon Legislature recently passed fundamental changes to the Oregon Family Leave Act (OFLA) to eliminate overlap between employee leaves of absence under OFLA and Paid Leave Oregon (PLO) and better coordinate with Oregon Paid Sick Time (PST) benefits. These changes require employers with Oregon-based employees to immediately take two steps to comply with these new laws. First, employers must immediately overhaul their policies. Second, employers must provide notice to current OFLA leave recipients about benefit changes on or before June 1, 2024. Read on for more details about what companies doing business in Oregon need to know.

Most Forms of Family and Medical Leave Are Eliminated From OFLA

When PLO was first enacted in September 2023, employees could be eligible for both PLO and OFLA leave for many of the same reasons. In March 2024, the Oregon Legislature enacted welcome changes to OFLA that will significantly reduce, but not eliminate, the overlap between OFLA and PLO. The following changes become effective July 1, 2024:

  • Qualifying reasons for leave under OFLA will only include:
    • Bereavement leave;
    • Sick child leave;
    • Leave to effectuate adoption or foster care (through December 31, 2024); and
    • Pregnancy disability leave.
  • OFLA no longer provides leave related to the serious health condition of an employee or an employee's family member, to care for or bond with a newly born child or child newly placed through adoption or foster care, or for safe leave related to sexual assault, domestic violence, harassment, stalking, or bias crimes. Employees can still receive PLO leave for these reasons.
  • Every 12-month period, eligible employees still may take up to 12 weeks of unpaid OFLA leave; however, bereavement leave will be limited to four weeks. Eligible employees may also continue to take up to 12 additional weeks of OFLA leave for pregnancy disability in that same 12-month period. Leave to effectuate adoption or foster care, which is only available under OFLA until December 31, 2024, will be limited to two weeks and is in addition to the 12 weeks of leave provided for other qualifying reasons.
  • Leaves of absence under OFLA and PLO no longer run concurrently. Eligible employees can take both OFLA and PLO leave in the 12-month benefit period without limits on the total amount of OFLA and PLO leave available to them. (Previously, OFLA and PLO leave was limited to 16 weeks total in a PLO benefit year.) Both PLO and OFLA leave still must run concurrently with the federal Family and Medical Leave Act (FMLA).
  • When tracking OFLA leave use, an employer's OFLA benefit year must mirror the PLO benefit year, which is defined as the 52- consecutive-week period immediately following the Sunday before the first day of an employee's leave. Employers no longer have the option to use alternative benefit years, such as the rolling method or other methods allowed under the FMLA. The Oregon Bureau of Labor and Industries (BOLI) previously clarified that employees receive a new, full bank of OFLA leave when an employer transitions to the new OFLA benefit year. With 60-day notice, employers can change the method they use for tracking FMLA leave in Oregon to also follow the PLO benefit year.

Notice to Employees Affected by OFLA Changes

No later than June 1, 2024, employers must notify all employees who are currently approved for OFLA leave based on reasons that will no longer qualify for OFLA that their OFLA leave protections are coming to an end. Specifically, employers must give affected employees written notice that:

  • Their leave will no longer be protected by OFLA on or after July 1, 2024; and
  • They can apply for benefits under PLO, along with the relevant contact information for the Oregon Employment Department.

Employers are also allowed to rescind any previously approved or designated OFLA leave that will no longer qualify. Similarly, between now and July 1, 2024, employees who inquire about family leave, medical leave, or safe leave that cease to qualify under OFLA as of July 1, 2024, must be redirected to the PLO program within 14 days of the employee's notice of a need for leave to the employer.

PLO Remains Mostly Unchanged

The reasons for and the amount of leave under PLO remain relatively unchanged, with some exceptions. The two changes most impacting employers include:

  • Effective July 1, 2024, employees must be able to use any accrued paid sick time, vacation, or any other paid leave that is offered by an employer while on PLO. Employers may, but are not required to, limit concurrent use of paid time off and leave, such that employees may receive no more than 100% of their wages during the period of leave. It is not clear yet what support or information PLO will provide to employers to help enforce any limitations on use. Employers may also dictate the order in which paid time off is used to supplement PLO benefits when more than one type of paid time off is available.
  • Effective January 1, 2025, PLO leave will be available to employees to effectuate the legal process required for the placement of a foster child or the adoption of a child.

BOLI Adopts Regulatory Changes to Bring Cohesion Between PLO, OFLA, and PST

In March 2023, BOLI also adopted administrative revisions to OFLA, PLO, and PST. Highlights of these changes include the following:

  • The definition of a "family member" under OFLA and PST was expanded significantly to mirror the definition of a family member under PLO. "Family member" now also includes siblings, stepsiblings, and the spouse or domestic partner of the employee's child, sibling, stepsibling, grandparent, or grandchild, as well as any individual related by blood or affinity whose close association with a covered individual is the equivalent of a family member. The definition also no longer requires that domestic partners be the same gender as the employee. Employers can seek verification that a person is related by affinity through a written attestation from the employee.
  • When determining whether an employee has worked sufficient hours to be eligible for OFLA leave, employers must count both hours worked and hours of protected leave.
  • When employees are taking OFLA and PLO leave at the same time, employers may require that they use any paid accrued sick time and vacation during the period of leave. Employees taking only PLO leave cannot be required to do so.
  • The definitions of "serious health condition" and pregnancy disability under OFLA now expressly include disability related to pregnancy termination and fertility or infertility treatments.
  • Employers cannot rely on a denial of PLO leave as a defense for denying OFLA leave. Employers must make their own independent decision regarding OFLA leave.
  • Any qualifying reason under PLO is now a qualifying reason for leave under PST.

These changes were adopted just before the structural changes to OFLA were enacted, so there will undoubtedly be additional regulatory changes in the coming months.

Takeaways for Employers

In light of these significant changes to PLO, PST, and OFLA, employers with employees working in Oregon should:

  • Update leave policies and practices to comply with the changes to PLO, PST, and OFLA;
  • Inform affected employees by June 1, 2024, that they are no longer eligible for certain OFLA protections as of July 1, 2024, and redirect them to the Oregon Employment Department to apply for PLO leave;
  • Train managers on the new reasons for leave under PLO, PST, and OFLA, and ensure they know how to recognize and direct employees in need of these benefits; and
  • Watch for additional PLO, PST, and OFLA regulatory changes.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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