The Oregon Bureau of Labor and Industries (“BOLI”) recently issued new draft rules interpreting and explaining Oregon’s sick time law. The draft rules, which are currently open for public comment, are available here and summarized below.
In some respects, the draft rules merely reiterate concepts that are already addressed in the statute itself but were not mentioned in BOLI’s initial set of associated regulations. On the whole, there are few surprises, and most employers will not need to make any changes to their current practices if the draft rules go into effect as currently written.
The Draft Rules . . .
*Define who is an employee/employer and who is not (tracking definitions already in the statute, which err on the side of covered status in most situations).
*Clarify that non-employees do not need to be counted in determining an employer’s size.
*Further define who is an employer operating in Portland and therefore subject to the lower employee count threshold for providing paid leave (in short, not those employers who are only operating in Portland on a seasonal or temporary basis and have a permanent location elsewhere in the state).
*Provide new standards for calculating sick time for piece-rate or commission-only employees. (Instead of paying minimum wage, employers must now divide the employee’s total earnings by hours worked in the pay period when sick time is used – or the previous pay period if no work was performed – and pay the employee at that rate for sick time, provided the resulting number is not less than minimum wage.)
*Offer new guidance for “secondary” employers (including employers who receive temporary workers on assignment from a primary employer such as a staffing agency). Secondary employers:
–Are jointly liable for any sick time earned only when the temporary worker is working for the secondary employer. (For example, if the temporary worker had other, previous assignments with the primary employer, the secondary employer is not liable for sick time earned while on those assignments.)
–Do not have to pay for sick time until the temporary worker has worked for the secondary employer for 90 days, even if the worker has been with the primary employer for longer.
–Cannot discriminate against a temporary worker for any absences qualifying as sick time with the primary employer.
*Explain when accrued and unused sick time must be restored to an employee who leaves and comes back (which is already covered in the statute, and requires restoration if the employee is re-employed within 180 days).
*Provide front-loading guidance to former secondary employers that hire temporary workers as regular employees. Those employers may:
–Front-load a prorated amount based on the sick time the employee would be entitled to for an entire year based on the number of hours the employee was actually employed by the employer for that year.
–Require a temporary worker who is hired as a regular employee to wait until 90 calendar days of employment with that employer (including any time jointly employed) to use accrued sick time.
*Give additional options to employers that claim undue hardship and require employees to take leave in more than one-hour increments. Those employers may:
–Permit employees to return to work earlier than the specified minimum duration of leave (for example, allow an employee who is required to take four hours of sick leave to return after one hour).
–Pay an employee sick time for the specified minimum duration, even if he or she returns early, along with time for any hours worked. In the example above, an employee who is scheduled to work eight hours and takes sick time, but returns one hour into the four-hour minimum, can be paid for four hours of sick time, along with seven hours of time actually worked. (Why might employers want to do this, you ask? We believe it’s so employers who qualify for the undue hardship exception can continue to draw down an employee’s sick time balance, even if they allow the employee to return early.)
Employers with comments or concerns about the draft rules must submit them no later than 5 p.m. on September 26, 2016 to Paloma Sparks, BOLI Legislative Director (at firstname.lastname@example.org), or to Marcia Ohlemiller, BOLI Rules Coordinator (at Marcia.L.Ohlemiller@state.or.us or via regular mail c/o BOLI, 800 NE Oregon St. #1045, Portland, OR 97232). If you have questions about the draft rules, or any other aspect of the Oregon sick time law, don’t hesitate to contact us.