Sick time

For employers

Employers are required to give employees notice of sick time laws. Download the sick time poster from our required postings page.

Oregon's sick time law requires employers to notify all employees at least quarterly of their unused sick time balances.  Many employers simply include this on the regular paycheck stub, but more information and a sample template on quarterly notice can be found here.

What is sick time?

"Sick time" is protected time during which an employee is permitted to be absent from work without disciplinary consequences or a reduction in benefits, including but not limited to health care benefits that the employee earns from the employer.

"Paid sick time" is sick time that is compensated at the employee’s 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.

Which employers are covered?

Covered employers include any person or entity that employs one or more employees working anywhere in the state of Oregon. This does not include the federal government.

Who is an eligible employee?

An eligible "employee" is an individual who renders personal services at a fixed rate to an employer. This does not include employees who receive paid sick time under federal law, independent contractors, participants in a work training program administered under a state or federal assistance program, participants 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.

I see sick time protections change if I have 10 or more employees. What if I have 11 employees, but only for a short period of time as seasonal workers?

All employees employed by the employer (full-time, part-time, seasonal, and temporary) must be counted for purposes of determining the number of employees. The number of employees is calculated based on the average number of employees employed by an employer 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 (not necessarily consecutive) in which the daily average was 10 or more (six or more anywhere in the state for employers with operations in Portland), the employer’s employees are 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 (again, six or more for employers with operations in Portland).

Are the owners or the owner's family members counted for purposes of determining the number of employees?

For purposes of an employee count under Oregon’s sick time law, do not include an individual or the parent, spouse, or child of an individual who is:

• A director of a corporation who has a substantial ownership interest in the corporation;
• A member of a limited liability company who has:
  • A right to vote on or consent to any matter submitted to a vote or requiring the consent of the members of the limited liability company; and
  • A substantial ownership interest in the limited liability company;
• A partner of a limited liability partnership who has a substantial ownership interest in the limited liability partnership; or
• A sole proprietor of a business

How does sick time accrue?

Employees accrue one hour of sick time for every 30 hours worked or 1-1/3 hours for every 40 hours worked. Alternatively, employers may front-load at least 40 hours each leave year. Read on for details.

When does sick time accrual start?

Sick time accrual begins when an employee starts working for an employer. Although employees immediately start accruing sick time, new employees may be required to wait until their 91st calendar day of employment to use sick time.

What if an employee accrues more than 40 hours of sick time over the course of a year?

If employees work full-time throughout the course of a year, they will likely work enough hours to accrue approximately 70 hours of sick time. Under the sick time law, employers may include language in their sick time policy that limits an employee’s use of sick time to 40 hours in any given year. Similarly, employer policies may also limit carry-over of unused sick time from one year to the next to up to 40 hours a year and cap total accrual balances to 80 hours.

What is meant by a "year"?  How is it measured?

A "year" or “leave 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. 

Say more about “front-loading” sick time once per year as an alternative to crediting sick time based on hours worked.

Employers may choose to “front-load” at least 40 hours of protected time in lieu of crediting employees with sick time based on their hours of work. Under this method, a minimum of at least 40 hours of protected time is granted at the start of each leave year.

How many hours of sick time must be front-loaded for employees hired mid-year?

For an employee hired part-way through the leave year, an employer may front-load a pro rata percentage of the annual front-load amount that corresponds to the time remaining in the leave year. For example, a new hire starting July 1 would be front-loaded at least twenty hours of sick time (that is, 50% of the required 40 hours) to cover the balance of the leave year, assuming the employer uses a January through December calendar year for administering sick time.

I have employees who work only 20 hours per week. Am I able to front-load them with 20 hours?

No. Employers who front-load sick time hours must front-load at least 40 hours at the beginning of the leave year, unless the employee begins work partway through the leave year.

Is it permissible for an employer to use the front-loading method for full-time employees and the accrual method for part-time employees?

Yes. An employer may award sick time on an accrual basis for certain categories of employees while front-loading sick time hours for other categories of employees, as long as any distinctions the employer makes are consistent and unrelated to any protected class or characteristic of the employee, such as race, religion, or sex, among others. For example, 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 an employer is using the front-load method, are they required to track accrual rates, carryover entitlements, and usage?

No. An employer using the front-load method need only credit the required number of hours (at least 40) to the employee at the beginning of the year (or a prorated amount if an employee begins work partway through the year). Employers that front-load sick time are not required to carry forward unused time from one year to the next. Likewise, employers that front-load are not required to credit additional sick time to an employee based on hours worked.

For what purposes may an employee use sick time?

Employees are entitled to use sick time for the following:

• To care for the employee or the employee’s family member with a 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;
• 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 recover from or seek treatment for a 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;
•  Absences associated with the death of a family member by:
  • Attending 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;
• Absences related to domestic violence, harassment, sexual assault, bias or stalking
  • 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, bias or stalking;
  • To seek medical treatment for or to recover from injuries caused by domestic violence or sexual assault to or harassment or stalking or the commission of a bias crime against 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 bias or stalking;
  • To obtain services from a victim services provider for the eligible employee or the employee’s minor child or dependent; or
  • 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 the health of others; or
  • The exclusion of the employee from the workplace under any law or rule that requires the employer to exclude the employee from the workplace for health reasons; or
• Those not working as first responders may use sick time for
  • An emergency evacuation order of level 2 (SET) or level 3 (GO), if the affected area includes either the worksite or the employee’s home
  • A determination by a public official that the air quality index or heat index is at a level where continued exposure to such levels would jeopardize the health of employees. (Eligible employees may use sick time when the air quality index is at 201 or above, regardless of whether a public official has made a determination.)
• 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 donate blood.
  

Who qualifies as a covered family member under the sick time law?

A covered family member means an individual who is related by affinity to the employee or an individual who is the employee’s:

• Spouse or domestic partner;
  
• Child or the child’s spouse or domestic partner;
• Parent or the parent’s spouse or domestic partner;
  
• Sibling or stepsibling or the sibling’s or stepsibling’s spouse or domestic partner;
• Grandparent or the grandparent’s spouse or domestic partner; or
• Grandchild or the grandchild’s spouse or domestic partner.
  

Is there a minimum amount of sick time employees would need to take?

Sick time should normally be used by employees in hourly increments unless you permit the use of sick time in increments of less than one hour.

If an employee’s use of sick time in hourly increments imposes an undue hardship on the business, you may require employees to use sick time in increments of more than one hour (but not more than four hours). If you do, however, you must also allow the employee to accrue and use at least 56 hours of sick time per year instead of 40. Additionally, you will need to provide a notice to each employee saying what increments of sick time employees may use. A notice that complies with this requirement is available online here.

How much is an employee required to be paid for sick time used?

Employees entitled to paid sick time (based on the size of your business) generally must be paid for sick time taken at their regular rate of pay:

• Employees paid a single hourly rate of pay: The same hourly rate the employee would have earned for the period of time in which sick time is used if the employee had worked.
• Employees paid multiple rates of pay:
  • 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.
• Salaried employees : 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.
• Employees paid on a commission or piece-rate basis or on the basis of the number of operations accomplished or quantity produced or handled: The employee must be paid no less than the applicable statutory minimum wage.
• Employees paid an hourly, weekly, or monthly amount in addition to a piece-rate or commission: The rate equivalent to the employee’s hourly, weekly or monthly rate, or the minimum wage, whichever is greater.

The regular rate of pay does not include: Overtime, holiday pay, discretionary 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 particular conditions, such a differential must be included in the regular rate of pay.

Is an employer required to pay out unused sick time when an employee leaves employment?

No, the law is clear; an employer is not required to pay an employee for unused accrued sick time upon termination.

Can I meet sick time requirements with my paid time off (“PTO”) policy?

That depends on your policy. An employer may meet their obligations to provide sick time by way of a leave policy (such as a vacation or PTO policy) that is “substantially equivalent” to or more generous to the employee than the minimum requirements of the sick time law. In order for a plan to be “substantially equivalent,” the policy must provide employees (at a minimum) with the following:

• The ability to accrue up to 40 hours of leave time at a rate of one hour for every 30 hours worked or 1-1/3 hours for every 40 hours worked or at least 40 hours of front-loaded time at the start of the year that may be used for sick time;
• Quarterly reports on available leave balances;
• The ability for new employees to use up to 40 hours of earned time as sick time after their 90th day of employment for events that would qualify for protection under the state law; and
• The ability to carry over up to 40 hours of unused accrued time from one year to the next (unless the front-load method of providing sick time is used).

Absences that qualify for protection under the sick time law may not be the basis for discipline.

Our company provides 40 hours of PTO to our employees every year on their anniversary date. The time is available for whatever the employee chooses, meaning everything from sick time events to the great American road trip. One of our employees used his 40 hours of PTO on a vacation earlier in the year, and now he wants additional time for an absence he claims was due to illness. He says we owe him at least 40 hours of sick time each year. Do we have to grant leave for additional sick time absences?

Not necessarily. Employers are not obligated to provide additional paid or unpaid sick time if they have met their minimum obligation to provide sick time through an existing “substantial equivalent” policy, such as a PTO policy. Of course, the policy must provide protected time that is equivalent to or more generous than what the state law requires. While employers with a sick time policy or another substantially equivalent policy need only allow up to 40 hours in a given year, additional protected time may be required under other federal or state law, including FMLA, Paid Leave Oregon, or OFLA.

I offer a PTO policy substantially equivalent to the new sick time law, but I provide 60 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 reason?

Employers would not need to track the reason for PTO that is offered as a policy substantially equivalent to sick time. That said, it may be beneficial to track whether time used should be counted as leave under other leave laws (think Oregon Family Leave Act and the federal Family and Medical Leave Act, as well as the Paid Leave Oregon program).

May an employer require medical verification for the use of sick leave?

Yes, but only in these limited circumstances:

• 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 (which may not be more than 10 days’ advance notice for foreseeable use of sick time or more notice than is practicable in the event of an unforeseeable use of sick time); or
• An employer has sufficient evidence to suspect that an employee is abusing sick time, including engaging in a pattern of absenteeism, regardless of whether the employee has used sick time for more than three consecutive days.

An employer may not require medical verification in advance of sick time that is expected to last less than three consecutive scheduled workdays.

NOTE: The employer is required to 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 domestic violence, sexual assault, harassment, or stalking that necessitate the use of sick time.

How does the sick time law apply to temporary employees?

Temporary workers hired through a staffing agency are most likely “jointly employed employees” under the law. Joint employers are responsible, both individually and jointly, for ensuring compliance with the 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. See OAR 839-007-0005(1).

Staffing 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 staffing agency prior to being placed with a client employer, the employee is entitled to sick time accrued during the employee’s employment with the staffing agency, as well as sick time accrued while employed by the client employer, both as an employee of the staffing agency and as an employee of the client employer, although the client employer is only liable for sick time accrued while the employee was jointly employed by the staffing agency and the client employer. Neither the primary employer nor the client employer may discriminate against an employee for taking sick time.

If a client employer hires a temp on a permanent basis, the safest business practice would be to count all of the temp’s time worked for the client employer for sick time purposes. Many staffing agencies are negotiating agreements with their clients to have sick time accrued while employed by the staffing agency carry over to the contract employer.

I operate a manufacturing facility, and we have a collective bargaining agreement (CBA) with our workers. Are we exempt from the sick time law?

While signatory employers to a CBA may meet their obligations under the sick time law through a multi-employer-employee trust or benefit plan defined by a CBA, the agreement must also provide a sick leave policy or other paid time off program that is substantially equivalent to or more generous than the minimum requirements of ORS 653.601 to 653.661.

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?

No. Again, in this context, the employees are not “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.

Does the work-study exemption only apply to federal work-study students who receive federal financial aid?

No. ORS 653.601(1)(c) 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. 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.

We provide our employees with 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 the time for vacation. Do I have to require the employee to take the day as paid sick time?

Best practice would be to require the employee to take the day as paid sick time. When an employer uses an equivalent plan (here, a PTO policy), the sick time law requires employers to provide protection for at least the first 40 hours in a leave year. Of course, nothing prevents employers from offering additional paid or unpaid time after an employee has exhausted their first 40 hours of protected time. Your policy should indicate, however, the (nondiscriminatory) basis for granting any additional time.

We use the accrual system for sick time. What happens if an employee takes a day of sick time before any hours have accrued? Is this protected time? Does the unpaid day count toward the required 40 hours?

An employer is not obligated to provide protected sick leave prior to the employee’s 91st day of employment or to provide protected sick leave beyond what the employee has accrued. Your sick time policy should be clear about when or if employees will be able to take protected time they haven’t yet earned. Of course, the policy should be consistently applied. Finally, keep in mind that even if sick time is not protected under this law, it may be protected under applicable other laws or disability accommodation regulations.