Q. What is Oregon Sick Time?
A. “Sick time” means time during which an employee is permitted to be absent from work, not subject to any attendance policies, for a reason authorized by the sick time law without a reduction in benefits that the employee earns from the employer. Beginning January 1, 2016, all employers that employ at least 10 employees in Oregon (6 if the employer has operations in Portland) must provide up to 40 hours of paid protected sick time per year. Employers that employ fewer than 10 employees (6 if the employer has operations in Portland) must provide up to 40 hours of unpaid protected sick time.
Q. How does Oregon Sick Time accrue?
A. Employees accrue 1 hour of sick time for every 30 hours worked or 1-1/3 hours for every 40 hours worked.
Q. When does sick time accrual start?
A. Oregon Sick Time accrual begins at 12:00 am, January 1, 2016, or after that date, when the employee starts working for employer. Although employees immediately start accruing sick time, new employees hired after January 1, 2016, can be required to wait until their 91st calendar day of employment to use Oregon Sick Time.
Q. What do I do if an employee accrues more than 40 hours of sick time over the course of a year?
A. If an employee works full-time throughout the course of a year, they will likely have worked enough to earn almost 70 hours of sick time. But, while an employer may provide for more, they are only required to provide up to 40 hours of sick time in a year to employees. Employers may also limit carry-over of unused sick time to up to 40 hours a year and use of sick time to up to 40 hours of sick time a year.
Q. Am I a covered Employer?
A. A covered “Employer” is as any person or entity that employs one or more employees working anywhere in the state of Oregon. This includes any employer located in the City of Portland (maintains any office, store, restaurant, operations, or establishment in the city), but does not include the Federal Government.
Q. Am I an eligible Employee?
A. An eligible "Employee" is defined as an individual who renders personal services at a fixed rate to an employer if the employer either pays or agrees to pay for the personal services or permits the individual to perform the personal services. This does NOT include employees who receive paid sick time under federal law, independent contractors, a participant in a work training program administered under a state or federal assistance program, a participant in a work-study program, railroad workers exempt under the federal Railroad Unemployment Insurance Act, and individuals employed by that individual’s parent, spouse, or child.
Q. What does the Oregon Sick Time law provide?
A. "Sick Time": time during which an employee is permitted to be absent from work without a reduction in benefits, including but not limited to health care benefits, that the employee earns from the employer; and "Paid Sick Time": time off that is compensated at the regular rate of pay and without reductions in benefits, including but not limited to health care benefits, that the employee earns from the employer at the time the employee uses the paid sick time.
Q. What are the qualifying uses for Oregon Sick Time?
- For an employee’s mental or physical illness, injury, or health condition, need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition, or need for preventive medical care;
- 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 preventative medical care;
- To care for an infant or newly adopted child under 18 years of age, or for a newly placed foster child under 18 years of age, or for an adopted or foster child older than 18 years of age if the child is incapable of self-care because of a mental or physical disability, completed within 12 months after birth or placement of the child;
- To care for a family member with a serious health condition;
- To recover from or seek treatment for a serious health condition of the employee that renders the employee unable to perform at least one of the essential functions of the employee’s regular position;
- To care for a child of the employee who is suffering from an illness, injury or condition that is not a serious health condition but that requires home care;
- To deal with the death of a family member by:
To seek legal or law enforcement assistance or remedies to ensure the health and safety of the employee or the employee’s minor child or dependent, including preparing for and participating in protective order proceedings or other civil or criminal legal proceedings related to domestic violence, harassment, sexual assault or stalking;
- Attending the funeral or alternative to a funeral of the family member;ttending the funeral or alternative to a funeral of the family member;
- Making arrangements necessitated by the death of the family member; or
- Grieving the death of the family member.
To donate accrued sick time to another employee if the other employee uses the donated sick time for an authorized purpose and the employer has a policy that allows an employee to donate sick time to a coworker;
- To seek medical treatment for or to recover from injuries caused by domestic violence or sexual assault to or harassment or stalking of the eligible employee or the employee’s minor child or dependent;
- To obtain, or to assist a minor child or dependent in obtaining, counseling from a licensed mental health professional related to an experience of domestic violence, harassment, sexual assault or stalking;
- To obtain services from a victim services provider for the eligible employee or the employee’s minor child or dependent;
- To relocate or take steps to secure an existing home to ensure the health and safety of the eligible employee or the employee’s minor child or dependent;
In the event of a public health emergency, including but not limited to:
- Closure of the employee’s place of business, or the school or place of care of the employee’s child, by order of a public official due to a public health emergency;
- A determination by a lawful public health authority or a health care provider that the presence of the employee or the family member of the employee in the community would jeopardize he health of others; or
- The exclusion of the employee from workplace under any law or rule that requires the employer to exclude the employee from the workplace for health reasons.
Q. Who qualifies as a "Family Member" under Oregon Sick Time?
A. A spouse, same-gender domestic partner, biological child, adopted child, stepchild, foster child, child of same gender domestic partner, parent, adoptive parent, stepparent, foster parent, parent in law, parent of same-gender domestic partner, grandparent, grandchild, and an individual with which an employee has or had an in loco parentis* relationship.
*Persons “in loco parentis” are those with day-to-day responsibilities to care for or financially support a child, or who had such responsibility for the employee when the employee was a child.
Q. How do I know if sick time should be paid or unpaid?
A. Employers that employ at least 10 employees working anywhere in the state of Oregon, or employers located in a city in Oregon with a population exceeding 500,000 (Portland), who employ at least 6 employees anywhere in the state of Oregon, shall implement a sick time policy that allows an employee to earn and use up to 40 hours of paid protected sick time per year. Employers that employ fewer than 10 employees working anywhere in the state of Oregon, or employers located in a city in Oregon with a population exceeding 500,000 (Portland), who employ fewer than 6 employees anywhere in the state of Oregon, shall implement a sick time policy that allows an employee to earn and use up to 40 hours of unpaid protected sick time per year.
Q. What if I have 11 employees but only for a short period of time as seasonal employees?
A. For counting
employees employed by the employer (full-time, part-time, seasonal, and temporary) must
be included for determining the number of employees. The number
of employees is calculated based on the average number of employees employed by
an employer per day during each
of any 20 workweeks in the calendar or fiscal year immediately preceding the
year in which an employee's sick time is to be taken.
If an employer had
20 weeks in which the daily average was 10 or more (6 or more in Portland), the
employer’s employees would be entitled to paid sick time. Employers should look
at the previous year and determine if there were any 20 weeks over the course
of that entire year when the daily average number of employees was 10 or more (6
or more in Portland).
Q. We had 8 employees in 2015, but we are expanding in 2016. When will we have to provide paid sick time to our employees?
A. The law places the calculation for number of employees employed by the employer in the previous calendar or fiscal year to when the leave is to be taken. If in the last year the average daily number of employees employed in any 20 workweeks was never 10 or more (6 or more if the employer has operations in Portland), the leave will be unpaid until the average goes to 10 or more (6 or more if the employer has operations in Portland) in any 20 of the workweeks in a fiscal or calendar year previous to the year the leave is to be taken. The leave accrued or front loaded will most likely be unpaid until the beginning of the next "year."
Q. What is meant by a "Year"? How is it measured
A. "Year" includes any consecutive 12-month period, such as a calendar year, a tax year, a fiscal year, a contract year, the 12-month period beginning on the anniversary of the date of employment, or any other 12-month period the employer customarily uses.
Q. How much is an employee paid for Oregon Sick Time hours?
A. Employees are required to be paid for sick time at their regular rate of pay.
Q. How does an employer calculate an employee’s regular rate of pay for paid sick time?
- Single hourly rate of pay employees:
Multiple rate of pay employees:
- The regular rate of pay means the same hourly rate the employee would have earned for the period of time in which sick time is used.
Salaried exempt employees:
- The regular rate of pay means either:
- The wages the employee would have been paid, if known, for the period of time in which sick time is used; or
- The weighted average of all regular rates of pay during the previous pay period.
Employees paid on commission:
- The regular rate of pay means the employee’s total wages earned during the pay period covered by the salary divided by the number of hours agreed to be worked in the pay period which the salary is intended to compensate. For an employee paid a salary whose hours of work vary from work week to work week, for the purpose of calculating the regular rate of pay to be used for the payment of sick time, the employee is presumed to work 40 hours in each workweek.
Individuals paid on a piece-rate basis or the basis of the number of operations accomplished or quantity produced or handled:
- The regular rate of pay means the rate of pay agreed upon by the employer and the employee. In the absence of a previously established regular rate of pay, sick time shall be compensated at a rate of no less than the applicable statutory minimum wage.
The regular rate of pay does NOT include: Overtime, holiday pay, bonuses or other types of incentive pay, tips, or other premium rates. However, where an employee’s regular rate of pay includes a differential meant to compensate the employee for work performed under differing conditions, such a differential rate is not considered to be a premium rate.
- The regular rate of pay means the rate of pay agreed upon by the employer and the employee. In the absence of a previously established regular rate of pay, sick time shall be compensated at a rate no less than the applicable statutory minimum wage.
Q. Is an employer required to pay for unused sick time when an employee leaves employment?
A. No, the statute is specific. An employer is not required to pay an employee for unused accrued sick time upon termination.
Q. What if an employer has an existing sick time or paid time off policy?
A. An employer may be deemed in compliance with the law if it has a sick leave policy, paid vacation policy, paid personal time off policy, or other paid time off program that is “substantially equivalent” to or more generous to the employee than the minimum requirements of Oregon Sick Time. In order for a plan to be “substantially equivalent,” the policy has to give employees at least: 1) the opportunity to accrue at least 40 hours at a rate of 1 hour for every 30 hours worked or 1-1/3 hours for every 40 hours worked that could be used for sick time, reported at least quarterly; 2) after their 90th day of employment, the opportunity for new employees to use up to 40 hours of earned time as sick time as it accrues; and 3) the opportunity to carry over up to 40 hours of unused earned time from one year to the next.
Q. I own a company that provides 40 hours of PTO to our employees every year on their anniversary date. My employees can use their accrued PTO for vacation days, absences due to illness, personal time, doctor appointments, personal appointments, etc. One of our employees used his 40 hours of PTO earlier in the year and he now wants to use 8 hours of PTO for an absence on Thursday that he claims was due to illness. He says we owe him 40 hours of sick time because the time he used was for vacation. Do we have to grant paid leave for this absence and other absences during his anniversary year?
A. No. If an employee of an employer with a policy for paid sick time, paid vacation leave, paid personal time off or other paid time off programs has exhausted all paid and unpaid leave available to the employee, the employer is not obligated to provide additional leave for paid or unpaid sick time. However, the employer may be obligated to provide paid or unpaid sick time under federal or state law that provides for paid or unpaid leave under state and/or federal family leave laws or other laws not related to the sick time statute.
Q. My business has a PTO policy that I believe is substantially equivalent to the new sick time law. I provide 40 hours of personal time off each year. Do I have to separately track the reasons for taking PTO based on whether the employee is taking it for vacation, for illness, or for some other reasons?
A. No, not if you only provide 40 hours of PTO. While there is a requirement in the sick time statute that requires an employer to track an employee’s PTO to ensure that he or she receives what is mandated by statute and to provide written notification at least quarterly as to an employee’s accrual and usage, the law only requires that an employer provide up to 40 hours of sick time per year. If you are only providing 40 hours of PTO, as long as your employee was able to use the time in the PTO bank, up to 40 hours for qualifying absences under the sick time statute, you have met your obligation and it is not necessary to differentiate between various reasons the employee may have used PTO. Essentially your employee’s PTO bank of 40 hours could have been available for sick time but for the fact that s/he chose to use it for vacation or a combination of reasons. However, best practice is to keep records of when employees call in sick.
Q. What if I choose to provide more than 40 hours of PTO to my employees, do I have to differentiate between time taken for qualifying sick time absences and for other reasons?
A. Yes, unless you allow an employee to use all 80 hours of PTO as sick time per year. Because the sick time law requires that employers provide written notification at least quarterly as to an employee’s accrual and unused sick time, it would be prudent to track those increments of time that were taken for qualifying reasons under sick time, or for other reasons, because otherwise you would be unable to provide notice to the employee as to how much time he or she has left to use specifically as sick time. For instance, if an employer provides 80 hours of PTO per year but only allows an employee to use up to 40 hours of that for reasons related to protected sick time. If an employee used 15 of those hours for sick time, the maximum amount of leave available to the employee for sick time would be 25 hours, but the PTO bank for any other use would be the balance of PTO remaining, or in this case, 65 hours. Because you are required to keep your employee apprised of sick time usage and balance at least quarterly, you would have to track it separately to notify the employee that s/he only has 25 more hours of PTO to use as sick time this year, even though the total PTO bank is at 65 hours.
Q. Can an employer require medical verification for the use of sick leave?
A. Yes, but only when:
- An employee takes more than three consecutively scheduled workdays of sick time;
- The need for sick time is foreseeable and is projected to last more than three consecutively scheduled workdays;
- An employee commences sick time without providing notice required by the
employer's sick time policy (never more than 10 days advanced notice for foreseeable use of sick time or notice prior to as soon as is practicable in the event of an unforeseeable use of sick time);
- An employer has sufficient evidence to suspect that an employee is abusing sick time, including engaging in a pattern of abuse, regardless of whether the employee has used sick time for more than three consecutive days.
NOTE: The employer shall pay any associated costs for providing medical verification or certification, including lost wages, that are not paid under a health benefit plan in which the employee is enrolled. An employer may not require that the verification or certification explain the nature of the illness or details related to the domestic violence, sexual assault, harassment, or stalking that necessitates the use of sick time.
Q. A multi-state employer has an employee who accrues sick time in Oregon and then transfers out of state. May the employee use the accrued time in the new state?
A. Oregon does not have jurisdiction to enforce the sick time law once an employee is no longer employed in Oregon. It is not known how another state’s laws might view an employer’s liability for sick time accrued under this law.
Q. What about temporary employees?
A. Temporary workers hired through a placement agency are most likely “jointly employed employees” under the law. Joint employers are responsible, both individually and jointly, for ensuring compliance with provisions of the sick time law and rules; however, in joint employment relationships, the “primary employer” is responsible for providing required notices and sick time to its employees. Temporary placement agencies that place temporary employees with client employers are most often considered to be the primary employer. If a temporary worker has been employed by a temporary agency prior to being placed with a client employer, the employee is entitled to sick time accrued during the employee’s employment with the temporary agency, as well as sick time accrued while employed by the contract employer, both as an employee of the temporary agency and as an employee of the contract employer, although the contract employer is only liable for sick time accrued while the employee was jointly employed by the temporary placement agency and the contract employer.
If a contract employer hires a temp on a permanent basis, the time worked by the employee for the contract employer as a temp must be counted as time worked for the contract employer for purposes of determining the amount of sick time accrued, and the contract employer will be liable for any accrued sick time taken by the employee after 90 days of employment with the contract employer, both as a temp and as a permanent employee.
Q. Is “frontloading” of Sick Time or PTO allowed?
A. Yes. If an employer decides to “frontload” (give 40 hours of Sick Time or PTO all at once at the start of the year or when the employee is eligible to use sick time) instead of using the accrual method to track Oregon Sick Time or PTO, they are allowed to do so.
Q. Can an employer use the front loading method for full-time employees and accrual for part-time employees?
A. Yes. An employer may award sick time on an accrual basis for certain classes of employees while front-loading sick time hours for other classes of employees, as long as any distinctions the employer makes in how it awards sick time to different classes of employees are based on customary employment classifications established by the employer for reasons unrelated to its obligation to provide sick time. An employer may award sick time on an accrual basis for part-time or temporary employees, while front-loading sick time for full-time employees, if it customarily maintains different employment classifications for part-time, temporary, and full-time employees.
Q. ORS 653.606(1)(c) of the sick time statute provides that an employer that front-loads sick time “need not comply” with the provisions of subsection (1)(a) or (3) of the section pertaining to accrual rates and carry over entitlements, and maximum accrual and usage limitations. Does this mean that an employer using the front-load system may not limit accrual to 80 hours?
A. An employer using the front-load system need only provide a certain number of hours (at least 40) to the employee at the beginning of the year. The employee will not accrue additional sick time unless the employer chooses to provide additional time.
Q. Do the provisions of ORS 653.606(4) that provide that an employer is not required to carry over unused sick time if the employee is paid for all unused paid sick time at the end of the year in which the sick time is accrued and the employee is “credited” (front-loaded) the required amount of sick time the first day of the subsequent year apply to employers that front-load sick time?
A. If an employer front-loads 40 hours of sick time each year, the employer is not required to carry over unused sick time from the previous year.
Q. ORS 653.601(5)(b) and OAR 839-007-0007(1)(b) provide that employers may front-load a number of hours of sick time that is the pro rata percentage of the hours a new employee would be entitled to for an entire year based on the number of hours the employee was actually employed by the employer for the year. Would 10 hours of front-loaded sick time be the correct number of hours (or half of what a full-time employee would be front-loaded) for an employee beginning work on July 1, or must a part-time employee be front-loaded 20 hours (half of 40 hours)?
A. No. OAR 839-007-0007(1)(b) provides that 20 hours of sick time would be the correct number of sick time to be front-loaded to an employee whose first day of employment is July 1. If an employer is using the front-load method, the hours may not be prorated based on whether an employee is part-time or full-time; but only if they have been newly hired. The pro-rated amount of front loaded sick time is the percentage of sick time equal to the percentage of the “year” left at date of hire.
Increments of Leave
Q. Under ORS 653.621(1)(b) of the sick time law, sick time is to be taken in hourly increments unless the employer permits the employee to use sick time in increments of less than one hour or the employer can demonstrate that to provide sick leave in hourly increments would pose an undue hardship on the employer, in which case the employer may require an employee to take sick time “in minimum increments of four hours” (and the employer must provide at least 56 hours of sick time per year). OAR 839-007-0025(2) modifies the minimum hour requirement to “increments of more than one hour but no more than four hours.” Why is that terminology different than the “minimum of four hours” terminology used in the law? I think the rules make sense but shouldn’t the statute state maximum increments of four hours rather than minimum increments of four hours if it intends to permit increments of up to four hours?
A. The rule was written to clarify the understanding of the rulemaking advisory committee and those involved in drafting the legislation that the law was intended to provide employers invoking the “undue hardship” exception with the flexibility to provide sick time in increments anywhere between one and four hours.
Q. May an employer credit any unused sick time accrued by an employee prior to January 1, 2016, the effective date of the sick time law, to time front-loaded to an employee under the sick time law? For example, if an employee was credited with 40 hours of sick time on July 1, 2015, the employee’s anniversary date, and has used 20 hours of sick time, may the employer apply these hours to the number of hours required to be front-loaded under the sick time law and add 20 hours of sick time on January 1 to meet the front-loading requirements of the sick time law?
A. The legislation is not clear. Best practice would be to front-load the pro-rated share of 40 hours of sick time under the state sick time law as of January 1 OR begin crediting the employee with sick time on an hourly accrual basis effective January 1 until the employee’s next anniversary date, at which time the employer may either front-load 40 hours of sick time for the following year or continue using the hourly accrual method.
Alternatively, an employer may front-load additional time to ensure that an employee has 40 hours of sick time at the start of the year, and resume the employer’s standard front-load calendar on July 1 or whatever date the employer’s year starts.
Q. If an employee is hired from the Employment Department and meets the other conditions in ORS 653.646 (the employee’s terms and conditions of employment are covered by a collective bargaining agreement and employment-related benefits are provided by a joint multi-employer-employee trust or benefit plan), does the exemption from the sick time law in ORS 653.646 apply?
A. No. The exemption in ORS 653.646 requires that the employee be “employed through a hiring hall or similar referral system operated by the labor organization or a third party.” The Employment Department is not a hiring hall or similar referral system operated by a labor organization or a third party.
Q. ORS 653.601(1)(c) of the sick time law indicates that participants in work-study programs that provide “students in secondary or post-secondary educational institutions with employment opportunities for financial or vocational training” are not “employees” for purposes of the sick time law. Does this exception apply only to federal work-study students (who receive federal financial aid)?
A. No. This exception applies to any student employed in a work-study program by a secondary or post-secondary educational institution or to a student in a qualified vocational training program.
Q. We provide our employees 40 hours of PTO each year that may be used for vacation or sick leave. My employee does not want to be paid when he is out sick because he wants to save time for vacation. Do I have to require the employee to take the day as paid sick time?
A. Best practice is yes, because protected sick time must be taken for qualifying reasons outlined in the law if the employee has the hours available. It is an unlawful practice for an employer or any other person to fail to pay sick time to which an employee is entitled under this law.
Q. We use the accrual system for sick time. What happens if an employee takes a day of sick time before any is accrued? Is this protected time? Does the unpaid day count toward the required 40 hours?
A. If a new employee takes sick time before he or she has accrued any or before his or her 91st day of employment, the sick time will not protected under the Oregon Sick Time Law and is subject to employer's regular attendance policies. Also, since the employee had not accrued any sick time yet, the time off does not count against this employee’s right to earn and use up to 40 hours of protected sick time for that year. Remember, though, even if sick time is not protected under this law, it may be protected under applicable OFLA, FMLA, or ADAA regulations.
Q. Is an owner counted for purposes of determining the number of employees?
A. There is no specific yes or no answer to this question. An employee is defined as “an individual who renders personal services at a fixed rate to an employer if the employer either pays or agrees to pay for personal services or permits the individual to perform personal services.” ORS 653.601(1)(a). A sole proprietor of a business will probably not be an employee, but many businesses are set up as employer entity corporations that often have owners actively working at the business who will likely be classified as employees. If the owner is more of a silent investor that does not provide any personal services for the business entity employer, then this owner will probably not count as an employee. The name on the paycheck is a good reference for who an employer is, but is not determinative. This is a question to be answered on a case by case basis based on the reality of the owner’s role in the business.
Q. Are the owner’s family members counted for purposes of determining the number of employees?
A. An individual employed by that individual’s parent, spouse or child is not an “employee” for the purposes of Oregon Sick Time. However, one should figure out who the employer really is; is it the parent, spouse, child, or the business entity corporation? Most businesses are set up as separate legal entities that employ the owners and other employees. If this is the case, then the owner’s immediate family would be counted as employees if they work for the business. Corporations may be "people," but they cannot have children, spouses, or parents... at least not yet.
Oregon Family Leave Act and Sick Time
Q. The state sick time law allows employers to limit the number of sick time hours accrued by an employee to 80 and the number of sick time hours used in a year to 40. OFLA allows eligible employees to use an unlimited amount of accrued paid sick time for any OFLA-qualifying purpose. Does OFLA require an employer to provide paid sick time accrued under the sick time law that exceeds that required to be paid under the sick time law for an OFLA-qualifying circumstance?
A. Although OFLA does not require employers to provide paid leave to employees, the law does provide that an employee eligible to take OFLA leave is entitled to use accrued paid sick leave, personal leave, vacation leave or any other paid leave that is offered in lieu of vacation leave during the period of OFLA leave. In order to avoid the requirement under OFLA to provide paid time that is not otherwise required to be provided under the sick time law, employers may choose to cash out any unused sick time (or other unused leave time that is allowed to be used for sick time) over 40 hours in a year and front-load 40 hours of sick time (or other paid time that may be used for sick time) at the beginning of the following year. Otherwise, the employer will be required to allow the employee to use up to 80 accrued hours of paid leave for OFLA-qualifying absences.
Nothing on this
website is intended as legal advice. Any responses to specific questions
are based on the facts as we understand them, and not intended to apply to any
other situations. This communication is not an agency order. If you
need legal advice, please consult an attorney. We attempt to update the
information on this website as soon as practicable following changes or
developments in the laws and rules affecting Oregon employers, but we make no
warranties or representations, express or implied, about whether the
information provided is current. We urge you to check the applicable
statutes and administrative rules yourself and to consult with legal counsel
prior to taking action that may invoke employee rights or employer responsibilities
or omitting to act when required by law to act.
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