In June, Gov. Kotek signed into law Senate Bill 999. While the law was largely intended to align the Oregon Family Leave Act (OFLA) and Paid Leave Oregon, the bill also impacted Oregon’s sick time law (“Oregon Sick Time”).

Expanded definition of “family member”

Under Oregon Sick Time, there are several qualifying reasons employees can use sick time, including reasons related to an employee’s family. For example, an employee can use sick time for “care of a family member with a mental or physical illness, injury or health condition, care of a family member who needs medical diagnosis, care, or treatment of a mental or physical illness, injury or health condition or care of a family member who needs preventive medical care” or for any OFLA-qualifying purpose, including bereavement leave for the death of a family member. Under Oregon Sick Time, the term “family member” shares the definition provided in OFLA.

SB 999 amended and broadened OFLA’s definition of “family member” from spouse or domestic partner of an employee, the biological, adoptive, or foster parent or child of the employee, the grandparent or grandchild of the employee, a parent-in-law of the employee or a person with whom the employee was or is in a relationship of in loco parentis to also include 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.

SB 999 directs the Oregon Bureau of Labor and Industries (BOLI) to develop factors to be considered when determining whether an individual qualifies as a family member by reason of affinity. The new expanded definition of “family member” for purposes of both OFLA and Oregon Sick Time goes into effect on Sept. 3, 2023 – the same day Paid Leave Oregon benefits are scheduled begin.

“Topping off” Paid Leave Oregon benefits

Many of the qualifying reasons for leave under Paid Leave Oregon and OFLA overlap, meaning that once Paid Leave Oregon begins, employee leave taken under Paid Leave Oregon will often be covered by OFLA as well. However, Paid Leave Oregon and OFLA differ regarding use of paid accrued leave during a period of leave. Under OFLA, employees may decide whether to use paid accrued leave during OFLA leave. Under Paid Leave Oregon, employers may decide whether employees are permitted to use paid accrued leave during Paid Leave Oregon leave; however, employers cannot require it. Accordingly, when an employee’s leave under Paid Leave Oregon is also covered by OFLA, a conflict exists regarding whose choice it is to use paid accrued leave.

BOLI, which enforces OFLA, issued an in response to a request from several local governments and public agencies regarding whether employees would be able to use paid accrued leave to supplement or “top off” any portion of an employee’s normal full wages/salary not covered by their Paid Leave Oregon benefits. BOLI has opined that, when an employee’s leave under Paid Leave Oregon also qualifies as leave under OFLA, the employee gets to decide whether to use any available paid accrued leave. BOLI’s opinion letter makes clear that when there is a conflict of laws, it will follow the provision that is more beneficial to the employee.

The conflict implicates Oregon Sick Time since paid sick time is paid accrued leave. Oregon Sick Time requires employers (with 10 or more employees or six or more if the employer has a Portland location) to provide paid sick time to Oregon employees. This means whether an employer provides paid sick time or a “PTO bank” (that combines vacation and sick time) to comply with the Oregon Sick Time requirements, an employee taking leave under Paid Leave Oregon that also qualifies as leave under OFLA is allowed to determine whether to use that time off to supplement or “top off” any portion of their normal full wages/salary not covered by Paid Leave Oregon benefits.

Use of sick time for evacuations and emergencies

As a reminder, last year BOLI revised the regulations regarding the permissible uses of sick time to include using sick time for evacuation, air quality index, and/or heat index orders. Accordingly, employees may use sick time in the following situations:

• when there is an emergency evacuation order of level 2 (SET) or level 3 (GO) issued by a public official, if the affected area subject to the order includes either the location of the employer’s place of business or the employee’s home address, or
• when there is a determination by a public official that the air quality index or heat index is at a level where continued exposure to such levels would jeopardize the employee’s health.

The revised rule applies to all employees other than first responders.

Amy Angel is a partner with Barran Liebman LLP in Portland. She represents employers in a variety of matters. Contact her at 503-276-2195 or aangel@barran.com.

Missy Oakley is an attorney with Barran Liebman LLP. She represents employers in a variety of matters. Contact her at 503-276-2122 or moakley@barran.com.

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 author nor the 91��Ƶ guarantees the accuracy or completeness of any information published herein.

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