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My (Stephen鈥檚) wife always reminds me that life is full of seasons, and that we are squarely in the young-child-who-loves-Legos season of life. This has led to many mornings filled with expletives as I walk over his shag rug to wake him (wondering why we still have this rug is a fight I have given up).

This season is also filled with friends telling us they are pregnant. Those conversations inevitably lead to the question about what my friends鈥� options are related to parental leave. For ages, those conversations varied from 鈥淚 am given no leave as a dad鈥� to 鈥淚 get three months of leave.鈥� Now, I suspect, those conversations will normalize with Oregon鈥檚 Family and Medical Leave Insurance (FAMLI) program set to take effect on Jan. 1, 2023, ushering in a far more employee-friendly leave policy statewide.

Outlined below is: 1, a summary on what FAMLI is, who is eligible, and what it provides; 2, upcoming deadlines about opting out; and 3, next steps.

Background and obligations related to FAMLI

FAMLI applies to private employers with one or more employees in Oregon. It provides up to 12 weeks of paid leave within a 12-month period. Leave under FAMLI may be taken for many of the same reasons employees could previously avail themselves of OFLA leave: for the birth or care of a child, for placement of an adopted or foster child with the employee, to care for a family member with a serious health condition, for an employee鈥檚 own health condition, and to deal with domestic violence.

Generally, to be eligible for benefits, an employee must first be a current Oregon employee, provided there are no disqualifications from benefits, such as an ineligibility to receive workers鈥� compensation or unemployment benefits. In addition, the employee must have:

1, earned at least $1,000 in subject wages in either the base year or alternate base year;

2, contributed to the PFMLI fund during the base year or alternate base year;

3, experienced a qualifying event necessitating family leave, medical leave, or safe leave;

4, applied for benefits; and

5, not exceeded their maximum paid leave and benefit amounts.

Paying an employee who is on FAMLI leave is further broken down based on weekly wages. If an employee鈥檚 average weekly wage is equal to or less than 65 percent of the state鈥檚 average weekly wage as determined by the Oregon Employment Department (OED), the employee is entitled to 100 percent of their average weekly wage while on leave. If the employee鈥檚 average weekly wage is greater than 65 percent of the average weekly wage set by the OED, then they will be entitled to 65 percent of the average weekly wage plus 50 percent of the employee鈥檚 average weekly wage that is greater than 65 percent of the average weekly wage 鈥� up to the maximum weekly benefit (which is 120 percent of the state鈥檚 average weekly wage).聽 Importantly, the employer is not responsible for paying these wages while the employee is on leave; the PFMLI program will pay these amounts.

An employee may combine his or her OFLA-protected leave with FAMLI leave. However, the maximum amount of leave an employee may take when combining both programs is 16 weeks (12 paid weeks under FAMLI and an additional four unpaid weeks under OFLA). Throughout the leave, benefits must continue as if the employee is actively employed, and the employee should be reinstated to the same position.

What if I want to opt out?

Employers can opt out of the FAMLI program should they choose. If an employer offers a paid leave benefit equal to or greater than those provided by FAMLI, or if the employees work with an equivalent-plan employer, they may choose to opt out. To do so, the employer can apply to the Employment Department director for approval of an employer-offered benefit plan in lieu of FAMLI, provided that the plan is made available to all employees who have been employed for 30 days, provides benefits that are equal to or greater than the weekly benefits and the duration of leave specified, provides leave for all of the circumstances specified, and costs employees no more than the premium required by FAMLI. There is a $250 application fee for this option, and the Employment Department has published a guide to help employers that elect this option.

Finally, employers must provide written notice to each employee of the duties and rights of an eligible employee.

Next steps

As my (Stephen鈥檚) wife reminds me, while sometimes a season of life can be tough, it is important to embrace that season. For me, that means wearing slippers when walking on the Lego-infested rug to wake up my son. Employers must embrace the reality of FAMLI. Employers that elect to participate in FAMLI should amend employee handbooks for all employees living or working in Oregon to reflect this new reality. This may require providing an addendum to current employees ahead of the new year outlining the requirements and rights provided under FAMLI so all employees are aware of their rights before Jan. 1, 2023.

Employers that wish to opt out and provide equivalent leave should reach out to counsel regarding the upcoming opt-out deadlines. Employers must submit their equivalent plan application by Nov. 30, 2022. If they cannot, they can submit a declaration of intent that both acknowledges the requirements and states an intent to offer an equivalent plan and then submit their application no later than May 1, 2023. Importantly, employers that submit an approved equivalent plan application between June 1, 2023 and June 30, 2023 will be exempt from contributing to the PFMLI program beginning Oct. 1, 2023. Employers seeking to opt out should reach out to counsel to ensure the proposed equivalent plan meets the state minimums.

Stephen Scott is a partner in the Portland office of Fisher Phillips, a national firm dedicated to representing employers鈥� interests in all aspects of workplace law. Contact him at 503-205-8094 or [email protected].

Dan Schmidt is an associate in the Portland office of Fisher & Phillips. He defends businesses against employment-related claims, including discrimination, retaliation, harassment and wage and hour suits. Contact him at 503-205-8063 or [email protected].

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the authors and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither of the authors nor the 91视频 guarantees the accuracy or completeness of any information published herein.