Portland’s Sick Leave Ordinance, Eugene’s ordinance, and Oregon’s Sick Leave Law
In 2013 the City of Portland passed a city-wide sick leave law. Likewise, in 2015 Eugene passed a sick leave law that was to start July 1, 2015. However, with the passing of the Oregon Sick Leave law statewide, Eugene voted to repeal their sick leave law. The City of Portland’s sick leave law merged into the statewide law. Oregon’s new law preempts local laws, which prevents a similar maize of sick leave laws such as is found in Washington or California or New Jersey. Oregon’s sick leave law provides separate provisions for businesses in the City of Portland. Statewide any business with 10 or more employees (6 or more in Portland) must provide paid sick leave to their employees. Any employer with less than 10 (or less than 6 in Portland) must provide unpaid sick leave for their employees.
The Portland Sick Leave Laws took effect on January 1, 2016. Employees start earning sick leave upon the first date of hire. However, employers can restrict an employee from using accrued sick leave for the first 90 days of employment. Note, In July, 2017 Oregon clarified many questions that were unanswered in the sick leave law.
Overview of Protected Sick Leave Law
Employers must provide sick leave at the rate of 1 hour for every 30 hours of time worked. Employees can earn up to 40 hours of protected time in a year. If the employer is considered a small employer with less than 10 employees (or 6 in Portland) then the employee earns unpaid sick leave. Worked time includes overtime hours. Exempt employees are considered to work at the rate of 40 hours a week for the purposes of accruing sick leave. If employers require that an employee use sick leave in more than 1 hour increments, then the employer must allow the employee to earn up to 56 hours of sick leave in a year. (See the minimum usage section) Employees should also make reasonable efforts to schedule sick leave when it is less disruptive to their employer and to give proper notice of foreseeable sick leave usage.
Rate of Pay for Sick Leave
Employees who earn paid sick leave must be paid at their normal rate of pay. Employees who earn varying rates of pay can either be paid at the rate they would have been paid, or at a rate that is an average of their various rates of pay. Commission employees must be paid at least minimum wage for sick leave, but can be paid at a higher rate.
Regular Rate of Pay does not include overtime hours, holiday pay, or other premium rates of pay. It also does not include bonuses, tips, or other incentive pay. It does however include differential pay. Therefore if an employee was scheduled to work a night shift and receive differential pay, then that employee should be paid at either the average rate of pay, or should receive the differential pay that they would have received, had they worked the night shift.
Covered Employees under Oregon’s Sick Leave Law
Oregon’s Sick Leave Law applies to almost all employees who work in the State of Oregon in a year. That includes part-time and fulltime employees. It also includes salaried, commission, temporary, seasonal, piece-rate, and home care employees.
Exclusions to Earned Sick & Safe Time
The only exceptions to the Oregon Sick Leave law are independent contractors, and employees who receive sick leave under Federal law, which would include Federal Contractors.Some Railroad employees are excluded and most union-represented construction employees are excluded if they are employed through a hiring hall. Also excluded are children who are employed by their parents and employees who are working under a work training or work study program.
Allowable Uses for Earned Sick and Safe Time Leave
Oregon’s allowable uses for sick leave track under the Oregon Family Leave Act (OFLA). Leave may be taken for sickness, injury, health condition, or for a medical diagnosis. They can also use sick leave for preventative care.This includes the employee’s or their family member’s health condition, injury or illness.
Additionally, the employee may use sick leave for several other reasons. Employees can use sick leave to care for an infant or newly adopted or foster child. They can use it to care for a child who needs home care and to make funeral arrangements, attend the funeral, or grieve for a family member who has died. Employees can use sick leave to seek law enforcement assistance for themselves or a dependant. Obtaining counseling and other services from a victim service provider, relocation or taking steps to secure an existing home after being a victim of domestic violence, harassment, sexual assault, or stalking are also allowable usages for sick leave. Lastly, employees can use sick leave when there is a public health emergency or if the employee is excluded from the workplace for health reasons. The Oregon law also has a provision that allows employees to donate accrued sick time to other employees for allowable uses. However, employers have the option of allowing employees to donate sick time or not.
Allowable uses for Sick Leave
Family Member Definitions
Oregon provides for a broad definition of family relationships for qualifying sick leave usage. Family member includes both an employee’s spouse and a same-gender domestic partner. Parents, including custodial and noncustodial, foster, adoptive, biological, stepparents, parent-in-laws, and parents of a domestic partner are also included in the law. Additional allowed family relationships include grandparents, grandchildren, or in locos parentis. The law recognizes biological, adopted, foster, and step relationships. It also recognizes the family relationships through a same-gender domestic partner, including children and parents. Oregon does not allow for sibling or other extended family relationships not named above to be used for the sick leave usage. Children can be minors or adults at the time that sick leave is taken.
It is important to note that Oregon defines a spouse as any legal civil union, domestic partnership, or common law marriages based on the state or jurisdiction that it was entered into. Therefore, spouse would include legal common law marriages and does not exclude domestic partnerships of different genders, just because it specifically adds provisions for same-sex partnerships.
Sick Leave Bank and Usage
Oregon doesn’t require that employers pay out unused sick leave when employment is terminated. However, employees do retain a sick bank leave for 180 days after leaving an employer. If the employee restarts or rehires with the employer during that time, then the previously unused accrued sick leave must be reinstated back to the employee. If the employee transfers with the same employer within Oregon, then they retain their sick leave. Additionally, if the employer sells the company, then the employees also retain earned sick leave.
Front Loading versus Accrual Method
Employers are allowed to choose between the accrual and front loading method for providing sick leave. If the employer front loads sick leave, then they must front load 40 hours of sick leave at the beginning of the year. If the employer requires employees to take minimum sick leave in increments that are larger than 1 hour increments because of the hardship clause to the employer, then the employer must front load at least 56 hours of sick leave for their employees. Under the front loading method, employees do not carry over unused sick leave to the following year. Their sick bank is reloaded at the beginning of the year. New employees hired partway through the year would be front loaded at a prorated amount.
If the employer chooses the accrual method, then employees must be allowed to roll up to 40 hours of unused sick leave to the following year. Employers can cap the rolled amount to 40 hours a year and the total accrual to 80 hours a year (40 for the previous year and 40 for the current year). However, employers must be consistent in their policy for all employees.
Coordinating with Paid Time Off Policies
Employers who provide Paid Time Off (PTO) of at least 40 hours a year and who allow employees to use PTO in accordance with Oregon’s Sick Leave Laws are not required to provide any additional sick leave to employees. Therefore, it would be beneficial for employers who do provide PTO to examine their allowable uses of PTO and modify it in accordance with Oregon Law. If an employer provides less than 40 hours of PTO each year, then the employer can still use PTO toward the Oregon required Sick Leave, but must allow the employee to earn the remaining sick leave provided under state law for sick leave purposes. The key is if the PTO policy is ‘substantially equivalent or more generous” than the state law.
Employers can allow sick leave usage to be in any increments, but must not require more than a minimum of 1 hour increments to be used for sick leave. The exception to this rule is if 1 hour increments impose a hardship on the employer. If an employer requires more than 1 hour of sick leave to be used, then the employer should award 56 hours of sick leave to the employees. Additionally, employers cannot require more than a 4 hour minimum usage of sick leave. Employers must qualify and meet the hardship requirements for this to be an option.
Reasonable Documentation of Sick Leave
If an employee uses 3 or more consecutive days for sick leave, then the employer may require verification that sick leave was used in accordance with the law. The employer is required to pay all costs that aren’t covered by health insurance.
Employees who assert or who attempt to assert their rights under Oregon’s Sick Leave laws are protected from retaliation from their managers or employers. This includes any retaliative actions against an employee who legally uses sick leave or the withholding of benefits, promotions, or other incentives.
Notification and Records
Employers must provide each employee with a notification of the new Sick Leave Law. Notices must be provided in the language that the employer normally communicates with the employee. New employees must be notified by the first payday of employment. Notices can be distributed personally, by email, mail or in the paycheck. Lastly, notices must be incorporated into the employee handbook and must be posted in a conspicuous place. Notices can be found on Oregon’s website and a separate on on the City of Portland’s website.
Employers must also provide employees with a quarterly update of sick time accrual and usage.
Fines and Remedies provided by the Sick and Safe Time Ordinance
Oregon law assigns a series of civil penalties for violations of the sick leave laws. Violations include failure to provide proper notice to employees and a quarterly statement of sick leave accrual. Businesses who fail to allow employees to take sick leave or who don’t pay employees for the full amount of sick leave used, or who penalize employees for using sick leave will be found in violation of the sick leave laws. Businesses can be fined up to $1,000 for each violation.
Let SwipeClock Help
Businesses who have employees in Oregon and Portland will need to maintain accurate record to show compliance with the City and State’s sick leave laws. Electronic records are much more accurate and can be maintained for Additionally, these businesses have to also comply with Federal Overtime Laws, the Family Leave Medical Act and any other national or local laws that are enacted. SwipeClock provides a comprehensive array of workforce management and time tracking tools that can help businesses to more easily stay in compliance with local and national laws. Records are effortlessly kept for years and accrual is automatically tracked and reported to employees according the state and city laws. Additionally, with geo-timekeeping clocks, businesses can effortlessly track time worked in specific cities to ensure compliance.
SwipeClock is a leading provider of cloud-based integrated workforce management solutions that include automated time and attendance, advanced scheduling, and leave management capabilities. The company’s products, including TimeWorks Plus, Time Simplicity, and Workforce Management Clock enable employers to manage their most important and expensive asset-employees-by transforming labor from a cost of doing business to a competitive advantage. SwipeClock’s workforce management solutions are sold through over 850 partners that empower more than 26,000 businesses to lower labor costs, comply with regulatory mandates, and maximize their profits. For more information, please visit www.swipeclock.com
Written by Annemaria Duran. Last updated August 7, 2017