It’s getting hard to come up with creative captions for articles about these new state paid family and medical leave laws. And darn it, can we say Oregon is the 10th state when one of the jurisdictions counted is the District of Columbia?

Well that’s my rule and I’m stickin’ to it.

You can see our tally of the states in our recent blog post on Connecticut’s leave law (we get to our number by including Hawaii, which has a paid medical/disability law but not aid family leave – yet!). What has Oregon passed, and how does it compare to other recent PFML laws? Glad you asked: read on!

The Best Paid Leave Law?

Recently, each new state to join the PFML bandwagon proclaims that it has just passed the “best” or “most generous” paid leave law, and Oregon is no exception. But how do you measure that? If it’s by the top percentage a low-wage worker can receive, then Oregon does take the cake, proposing to pay benefits up to 100% of earnings in the case of a worker who earns at or below 65% of the state’s average weekly wage. Just last month Connecticut had claimed that honor with a benefits formula that will pay some workers up to 95% of their wages during leave. (See our Connecticut blog post.) And based on the current AWW for Oregon at $1044.40 (through June 30, 2020), that puts Oregon’s maximum benefit at over $1250 per week – also beating out the competition by that measurement.

Duration of Benefits. But there are other ways to measure which state offers the “best” benefits to employees, such as length of paid leave and the reasons for which an employee can take paid leave under the law. Oregon will provide up to 14 weeks of paid leave per benefit year (12 weeks total for all leave reasons plus another 2 weeks if an employee is incapacitated by pregnancy or related conditions). That 2-week baby bump is becoming common – Connecticut and Washington are doing the same, for example. But Massachusetts beats Oregon overall with up to 20 weeks of leave for the employee’s own serious health condition; and both Massachusetts and Connecticut provide up to 26 weeks for care of an ill or injured servicemember.

Leave Reasons. Oregon is neck and neck with other states as to who offers the “best” benefit when measured by covered leave reasons. Oregon’s PFML will not cover leave specifically to care for an ill or injured servicemember (although that could form the basis for leave to care for a family member with a serious health condition, generally). Nor will it cover leave for military exigencies, although that type of job-protected but unpaid leave is available under another Oregon statute.

On the other hand, Oregon will provide “safe leave” for reasons related to the employee or the employee’s minor child being a victim of domestic violence, harassment, sexual assault, or stalking. Currently only New Jersey offers such paid leave (due to amendments to their law earlier this year, but with a very broad class of family members for whom the employee can take such leave – see our blog post here). Connecticut will also offer paid leave relating to family violence, but only when the employee is the victim.

Family Members. Finally, Oregon is on the forefront when it comes to the family members with a serious health condition for whom an employee can take paid leave. The latest trend (and there will be more states doing the same) is to include a broad list of the specific family relationships that are covered by the law (see the chart below) AND include coverage for someone who is “like a family member” to the employee. Under Oregon’s law this is defined as: “Any individual related by blood or affinity whose close association with a covered individual is the equivalent of a family relationship.” This is in recognition of the changing nature of families in the United States, but it will surely present some administrative challenges to both the state and an employer in trying to interpret and apply this language. Connecticut and New Jersey have similar covered relationships, and Colorado (expected to pass a PFML law next year) also included this broad category.

The Oregon PFML Law

Here are the key provisions of the Oregon PFML law. There are many more details, of course, but with contributions over 2 years out and benefits another year after that, we’ll take some time before burying you with all the nitty gritty (much of which we don’t even have yet). Following the chart are a few more observations, if you are still reading at that point!

Issue	Provision	Bill Sections
Employee Eligibility	During the Base Year or Alternate Base Year: Earned at least $1000 in wages AND Contributed to the state PFML Insurance Fund Base Year: first 4 of the last 5 completed calendar quarters preceding the benefit year (not yet defined) Alternate Base Year: Last 4 completed calendar quarters preceding the benefit year Other covered individuals include, under certain circumstances, self-employed individuals and employees of a tribal government	§§ 2(1), (3), (5), (8) & (11)
Covered Employers	All private employers	§§ 2(14)(a) & (b)
Total Leave Entitlement	12 paid weeks for all covered leave reasons in a benefit year 2 additional paid weeks for limitations related to pregnancy, childbirth, or a related medical condition (including lactation) 4 additional weeks UNPAID for any reason covered by Oregon Family Leave Act (employee’s SHC, family member SHC, mildly ill child, bonding, bereavement) MAXIMUM TOTAL: 18 weeks per benefit year (14 paid, 4 unpaid)	· §4
Leave Reasons	Employee’s own serious health condition Family member serious health condition Bonding (birth adoption, foster care) Safe Leave (matters related to employee or minor child being a victim of domestic violence, harassment, sexual assault, or stalking) Specifically excludes other leave reasons covered by OFLA (sick child, bereavement, military exigencies)	· §§ 2(17), (19) & (21)
Family Members	Spouse or Domestic partner The following relations to the employee or employee’s spouse or domestic partner (includes biological, adoptive, step, foster, legal ward/guardian, in loco parentis): Sibling Child Parent Grandparent Grandchild Any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship	· § 2(6), (18) & (20)
Leave Year Calculation Methods	“Benefit year” – a 12-month period to be defined by regulations	§ 2(5)
Leave Increments	Benefits payable for leave taken in increments equivalent to 1 work day or 1 work week Not clear if employee can take shorter increments and add them up to equal 1 day or 1 week Increments of 1 work day may be taken in nonconsecutive periods of leave	§ 12(3) & (4)
Employee Documentation	Not yet determined; Director will establish rules for submitting claims	§ 12(1)(a)
Employee Notice to Employer	Written notice 30 days in advance for foreseeable leave Less than 30 days’ notice if leave is not foreseeable (examples: unexpected serious health condition of employee or family member, premature birth, unexpected placement for adoption or foster care, or safe leave) If employee commences leave without prior notice, must give oral notice within 24 hours and written notice within 3 days Advance notice for safe leave not required if not feasible	§ 9
Employer Notices to Employees	Employer must provide written notice to employees of the duties and rights of an eligible employee Notice must be in the language the employer typically uses to communicate with the employee Director shall provide a model notice for employers’ use	§ 8
Employee Rights	For employees employed 90 days or more before leave, reinstatement to same or equivalent position Based on business necessity, employers with fewer than 25 employees may restore employee to a different position with similar duties and same benefits and pay Maintenance of health benefits during leave under same conditions as if actively working	§ 10
Employee/employer Contributions	Start January 1, 2022 Contribution rate to be set by Director of OR Employment Department Total rate for employer and employee contributions may not exceed 1% of employee wages Subject to maximum of $132,900 of employee’s wages, subject to annual adjustment Of total rate, employer pays 40% and employee pays 60% Employers with fewer than 25 employees are exempt from paying employer contribution But if a small employer elects to pay the employer contribution, is eligible for grants from the state	§§ 16, 42, 62
Benefits	Benefits start 01-01-2023 Maximum benefit = 120% of state AWW Minimum benefit = 5% of state AWW Employees who make 65% or less than the state AWW are paid 100% Employees who make greater than 65% of state AWW are paid: 100% of 65% of the state AWW – PLUS – 50% of the employee’s AWW over 65% of the state AWW	§ 7
Private plan	“Equivalent plan” that provides equal or greater benefits and protections	§ 43
Concurrency with Other Leave Laws	Leave taken under PFML is Concurrent with FMLA and OFLA In addition to paid sick time under ORS §653.606	§§ 5, 6
Interaction with Other Employer Benefits	Leave taken under PFML is in addition to paid vacation or other paid time off earned by the employee Employer may allow employee to use paid sick time, vacation leave or other paid leave earned by the employee to replace wages up to 100% of employee’s AWW	§ 6

Other Points of Interest

Here are some additional details that are laid out by the Oregon PFML law.

Localization of Employee Wages – §21. In some states an employee’s eligibility for PFML benefits is based in the first instance on whether the employee is employed primarily within the state (Washington, for example). Then other eligibility factors kick in, such as hours worked in the state or earnings of a specified amount. Under the Oregon law it is possible for an employee who only works a very small amount per year in Oregon to receive benefits. The statute addresses what employee wages are subject to contributions and count for determining eligibility and benefits:

An employee’s wages shall be used to make determinations under sections 1 to 51 of this 2019 Act if the wages are earned for service:

Performed entirely within this state; or
Performed both within and outside this state, but the service performed outside this state
is incidental to the employee’s service within the state.

As noted in our chart above, it only takes $1000 in earnings in a base year to be eligible for benefits, but of course benefits will be proportionally small as well.

Counting Employees – § 35. The method for counting employees for such purposes as the small-employer exemption for paying employee contributions will be determined by the Director. However, the law requires that the determination be based on the average number of employees employed by the e in the 12-month period immediately preceding the date on which the determination is made.

Equivalent Plans – §§ 43-48. The Oregon PFML law will allow employers to adopt an “equivalent” plan to provide benefits to employees rather than using the state mechanism. This option is called voluntary or private plans in other states. Here are some of the key provisions spelled out in the statute:

As is common, the plan must offer benefits that are equal to or greater than the state benefits.
The employer may impose a 30-day waiting period for a new employee before offering plan coverage.
Employee contributions collected by an employer with an equivalent plan must be used for
plan expenses and are not considered to be a part of an employer’s assets for any purpose.
An approved equivalent plan must remain in effect for at least one year. The employer must submit
an approved plan for reapproval annually for 3 years after initial approval.
Benefits for an employee who is covered under more than one plan will be prorated under each plan.
The Director must adopt rules to establish the process by which employers may apply for approval of
an equivalent plan by September 1, 2021.

Administration by a Third Party – § 34. Following a competitive bid process, the Director may engage a third party to implement the PFML law and to administer the program thereafter. This bodes well, as so many of the challenges with the programs in states like Washington and Massachusetts seem to be attributable to the fact that the state staff lacks leave of absence management knowledge and experience. Use of a third party is not mandatory, however.

MATRIX CAN HELP! It’s early days yet for Oregon PFML. As usual, we will be watching for developments and reporting on this blog as new information is available. In the meantime, you can find our prior blog posts about other state PFML laws by typing the state name in the search box – a wealth of articles about the pending Connecticut, Massachusetts, and Washington laws and the 2019 New Jersey amendments.

AND . . . If your company is interested in the private plan option for Washington or Massachusetts PFML, contact your Matrix/Reliance Standard account manager or send us a message at ping@matrixcos.com.