Oregon adds rules to new paid family and medical leave insurance program

The Oregon Employment Department (OED) has added more rules to the Oregon Paid Family and Medical Leave Insurance (PFMLI) program, providing clarification for employers.

The Details:

The OED rules clarify various aspects of the PFMLI program, such as the use of certain types of leave, what verification is needed, and various employee and employer requirements.

Covered Leave:

The rules clarify when an employee can take the following types of leave:

New Child Bonding Leave:

When the new child bonding period crosses two benefit years, the maximum combined total of new child bonding leave between the two years for the one child is 12 weeks. The rules prohibit an employee from taking 12 weeks of family leave in one year and 12 weeks of family leave (24 weeks) in the following year for one child, even if both proposed absences would fall within 12 months of the child’s birth, placement or adoption.

However, when an employee takes bonding leave for two or more children, the combined amount of family leave during the two benefit years may exceed 12 weeks. For example, if an employee has twins, the employee may take up to 12 weeks of leave for a child during the first benefit year and may also take up to 12 weeks of leave for the other child in the second benefit year.

Serious Health Condition:

Employees may use family leave to provide physical and psychological assistance to a family member with a serious health condition.

Physical assistance includes attending to basic medical, activities of daily living, safety, or nutritional needs when a family member cannot provide self-care; or, transporting the family member to a health care provider when the individual cannot transport themselves.

Psychological assistance includes providing comfort, reassurance, or companionship; completing the family member’s administrative tasks; or, arranging for changes to a family member’s care, including transfer to a nursing home.

Employee Intermittent Leave:

Under existing law, employees may claim leave benefits in increments equivalent to one workday or one workweek. The rules clarify that employees may use this time in consecutive or nonconsecutive periods of leave and increments that equal one workday or one workweek.

For a leave of less than one workweek, an employee can take leave equal to the average number of workdays they typically work. The weekly benefit for this time will be prorated based on the number of workdays of leave the employee takes in the workweek. To calculate the workday benefit amount, divide the weekly benefit amount by the average number of workdays the employee would typically work in a workweek.

Additionally, under the rules, employees with more than one employer must have their leave for a workday or workweek taken from all employers. As an example, if an employee works for different employers in the morning and afternoon but only needs to take leave during the morning or afternoon, the employee would not qualify for PFMLI benefits.

And, if an employee splits a four-day workweek equally between two employers, the employee cannot work for either employer during that time to qualify for a workweek of PFMLI benefits.

Verifying Benefit Eligibility:

New Child Bonding Leave:

An employee must provide verification for new child bonding leave that reflects the employee’s name as parent or guardian of the child after the birth or placement of the child through adoption or foster care, the child’s name, and the date of the child’s birth or placement.

Types of verification may include:

• The child’s birth certificate or other documents issued by the child or pregnant employee’s health care provider; or
• A copy of a court order that verifies placement or documents from the foster care, adoption agency, or social worker involved in the placement confirming the placement.

Serious Health Condition:

An employee seeking medical or family leave must provide verification of the following, in addition to their own or a family member’s personal information:

• The relevant health care provider and their type of medical practice or specialization and contact information;
• The approximate date the serious health condition began;
• A reasonable estimate of the duration of the condition or its recovery period; and
• A reasonable estimate of the frequency and duration of the intermittent leave and estimated treatment schedule (if applicable).

Safe Leave:

To take safe leave, an employee must provide verification, which can include:

• A copy of a police report or a formal complaint that indicates an employee or their child was a victim of domestic violence, harassment, sexual assault or stalking;
• A protective order or other evidence from a court or agency that the claimant or child appeared in (or was preparing for) a related proceeding; or
• Documentation from an attorney, health care provider, law enforcement officer, licensed mental health professional or counselor, member of the clergy, or victim services provider that the individual or child was undergoing related treatment or counseling, obtaining services, or relocating.

Note: The rules provide an exception to the verification requirements if an employee can demonstrate good cause. For instance, if an employee has difficulty procuring the required verification because they lack access to services or have concerns for the safety of the claimant or their child. In this case, the employee can provide a written statement attesting they are taking qualifying leave.

Employees may also be required to provide additional verification to establish eligibility or qualify for benefits. Upon receiving a mailed request for information, they must respond within 14 days from the date of the request. If the request is delivered by telephone message, email, or other electronic methods, the employer must respond within 10 days.

Employee Notice Requirements:

The rules clarify that, in addition to existing notice requirements, employees are not required to expressly mention PFMLI when they provide notice. Written notice may include handwritten or typed electronic communications, such as email and text messages, consistent with an employer’s known, reasonable and customary policies.

Employer Notice Requirements:

Employers requiring written notice may require employees to provide the type of leave, the anticipated timing and duration, and an explanation of the need for leave.

Additionally, an employer must outline their written notice requirements in a written policy and procedures and provide a copy to every eligible employee at the time of hire and each time the policy and procedure change.

The rules clarify that the policy must also include a description of the penalties (a 25% reduction in an employee’s first weekly benefit amount) that the state may impose if an employee does not comply with the employer’s notice requirements.

PMFLI Benefits:

PFMLI Contribution Rates:

Beginning January 1, 2023, Oregon employers with 25 or more employees (including those out of state) will pay 40%, and Oregon employees will pay 60% of the 1% of the contribution rate to the PFMLI fund.

Employers must submit an Equivalent Plan Application or a Declaration of Intent (see below) by November 30, 2022, to be exempt from quarterly contribution requirements.

Employee Benefit Entitlements:

Employee benefit entitlements will be based on the employee and the state’s Average Weekly Wage (AWW) amounts. The OED will determine Oregon’s AWW amounts.

Note: PFMLI program will pay these while the employee is on leave.

Employee Benefits Application Process:

Beginning September 3, 2023, employees may apply for PFMLI benefits through the OED up to 30 calendar days before or after their leave start date. The OED will notify employers when an employee has applied for benefits. Under the rules, an employer may respond to the OED’s notification if their employee did not provide the required notice of their need for leave.

Approved Equivalent Plans:

Employees working for an equivalent-plan employer and employers that provide paid leave benefits equal to or greater than the PFMLI program do not have to pay contributions.

Equivalent plans must provide equal to or greater than the PFMLI program’s benefits to full-time, part-time, seasonal, and temporary employees. Additionally, these plans may not be more restrictive or cost employees more than the base rate established by the OED.

The OED has provided a checklist and guidebook to assist employers with equivalent plans.

Employer Applications:

The OED has released equivalent plan applications for employers already offering paid leave to employees or those considering offering such leave. Applications cost $250 (non-refundable) and are accessible through the OED’s online portal or a printable form.

Employers should allow at least 30 days for a decision on an application. If the OED denies an application, an employer must continue collecting and paying PFMLI contributions. However, they may submit an appeal to the OED or the Oregon Office of Administrative Hearings.

For the first three years, employers must reapply for the approval of their plans on an annual basis or if they make substantive changes to an approved plan. After three years, their plans will remain in effect until withdrawn or terminated.

Application Exemptions:

Declaration of Intent:

Employers that cannot make the November 30, 2022 deadline may submit a Declaration of Intent that acknowledges and agrees that they intend to offer an equivalent plan. Employers that do so must apply by May 31, 2023. These plans will take effect on September 3, 2023.

If an employer submits a Declaration of Intent, they must deduct employees’ contributions and hold them from January 1, 2023 until the OED approves the application. Employers that have not submitted a Declaration of Intent or an application by June 30, 2023 must contribute to the PFMLI program for the full year.

Next Steps:

• Review PFMLI policies and procedures.
• Determine required notice periods for employees applying to take leave.
• Review the PFMLI website for frequently asked questions guides and the additional release of rules from the OED.