Changes to new paid-sick leave

Associated Oregon Industries
Oregon’s largest business advocate

In the ongoing process of implementing Oregon’s new Paid Sick Leave law (PSL), the Bureau of Labor and Industries (BOLI) released a third rule draft this week. Although BOLI made several of the changes that AOI and partner associations requested, the rules still present significant problems for employers.

Joint Employers: The new rule draft continues to require that joint employers (for example, a staffing organization and the client employer) be “jointly responsible, both individually and jointly, for ensuring compliance” with the PSL law. This is unduly burdensome for the client employer, who will have to keep records on temporary employees that may only work for them for a week or two. This joint responsibility also means that both employers must count the temporary worker when determining whether they meet the 10 employee threshold for having to pay for sick leave.

Substantial Equivalency: The original intent of SB 454 was that employers who provided at least 40 hours of paid time off (PTO) per year would be deemed to have “substantially equivalent” policies. Substantially equivalent policies were to be exempt from other provisions of the law. However, the rule draft essentially requires that a PTO will not be deemed to be substantially equivalent unless it meets not only the same number of hours as the law requires, but also “complies with all other minimum requirements, including but not limited to provisions related to when employees can use sick time, the rate of accrual, regular rate of pay provisions, qualifying absences, conditions of notice and documentation, and employment protections.”

As written, this definition of substantial equivalency means the exemption is of little value to employers, because a PTO policy will not be deemed “substantially equivalent” to a paid sick time policy unless it meets every requirement of the paid sick time law.

Undue Hardship: SB 454 provided that employers could apply to BOLI for an exemption from the requirement that leave be provided in one hour increments if those increments would impose an undue hardship on the employer. In such cases, employers could require that leave be used in increments of no less than four hours, as long as the employer allowed accrual of 56 hours/year instead of 40. AOI and other association partners requested that BOLI consider providing such exemptions to the entire industry sectors (for example manufacturing or logging), instead of on a company by company basis, in order to expedite the processing of these applications at the beginning of 2016. So far; however, no changes have been made to the rules’ requirement that companies apply for the exemption individually.

The next meeting of BOLI’s rulemaking advisory committee is scheduled for Friday, November 20, and final rules are expected in December. AOI will continue to advocate for changes that will benefit the business community.

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