Jackson Lewis.com March 15, 2013
Following examples set by San Francisco to the South, and Seattle
to the North, the Portland, Oregon, City Council unanimously passed
Portland’s new sick leave ordinance. The new law imposes significant
burdens on employers in addition to mandating up to 40 hours of annual
sick leave. The new sick leave entitlements apply to all private-sector
employers, regardless of location of the employer’s primary place of
business. The law goes into effect January 1, 2014.

Under the leave law, private employers with at least six employees
will be required to provide qualifying employees up to 40 hours of paid sick leave per year. Employers with fewer than six employees still must provide up to 40 hours of unpaid sick leave per year.
All employees, regardless of whether they are temporary, part-time or
full-time, have the right to use protected sick leave if they work in
Portland at least 240 hours within a calendar year. Employees based
elsewhere, but who travel to Portland for business, accrue only benefits
for paid work hours within the city limits and are subject to the
240-hour threshold.
After the January 1, 2014, effective date, employees working in
Portland will accrue sick leave at the minimum rate of one hour for
every 30 hours worked. Newly hired employees accrue leave at the same
30:1 ratio from the outset of employment, but are subject to a 90-day
waiting period before accrued leave may be taken.
Unused sick time can be carried over to the following calendar year,
but an employee’s annual use of sick time accrued under the new law is
capped at 40 hours.
Employers may not require employees wishing to take leave accrued
under the new law to find a replacement worker, nor may employers
require employees to work an alternate shift to make up for time missed.
Conversely, if an employer permits shift trading and a shift is
available, employees must be permitted to trade shifts to avoid using
accrued sick leave.
The law extends well beyond traditional “sick” leave. As an initial
matter, the leave may be taken not only for an employee’s own illness,
injury or preventive medical care, but also for a qualifying family
member’s similar needs. “Family member” is broadly defined to include
the employee’s children, parents, parents-in-law, grandparents,
grandchildren and registered same-sex domestic partners. Additionally,
sick leave may be taken for absences resulting from workplace or school
closures, or for reasons related to domestic violence, sexual assault or
stalking that affect the employee or the employee’s family members.
The new law prohibits employers from taking any adverse action
against employees who take leave accrued under the ordinance. Therefore,
employers will find it difficult to enforce no-fault attendance
policies lawfully in light of these new requirements. Further, because
the new law mandates accrual and tracks usage on a calendar-year basis,
employers with Portland-based employees likely will find it too onerous
to implement time-off policies based on an employee’s hire date. In
addition to these and other systemic changes that may be necessary,
employers are required under the law to develop and disseminate policies
advising employees of the procedure for reporting absences. Adding
extra complexity, successor employers are required to recognize sick
leave accrued under the new law. Finally, covered employers will be
required to post a notice describing the new law.
Covered employers that fail to comply with the sick leave
obligations, including the new posting requirement, are subject to civil
penalties. Employees who believe their employer interfered with or
failed to provide them with the minimum benefits under the new law may
bring an action for injunctive relief and back pay, as well as
attorneys’ fees and costs.
Employers covered by the new requirements should review their
existing policies carefully. While employers currently providing leave
entitlements equal to or greater than Portland’s new requirements may be
exempted from providing additional leave, that exemption applies only
if the existing policies are co-extensive with the new requirements.
Consequently, many employers will need to modify their policies and may
need to negotiate changes in collective bargaining agreements to
integrate the law’s new requirements.
Jackson Lewis attorneys routinely work with employers of every size
throughout Oregon on compliance and implementation strategies, including
the many nuances of this new leave requirement. If you have any
questions about this or other workplace developments, please contact
Scott Oborne, OborneS@jacksonlewis.com, or Mark Crabtree,
CrabtreM@jacksonlewis.com, in our Portland office at (503) 229-0404, or
the Jackson Lewis attorney with whom you regularly work.

 

 


 

 

 

© 2013, Jackson Lewis LLP. This Update is provided for informational
purposes only. It is not intended as legal advice nor does it create an
attorney/client relationship between Jackson Lewis LLP and any readers
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