Proposed Paid Family Leave Law Could Rattle Employers Statewide

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 Family paid leave is coming. To employers around the nation that statement may elicit the same level of fear as the phrase “winter is coming” did for the people of Westeros in Game of Thrones. Unlike the fictional world of Westeros, employer’s fear of paid family leave is very real and will not be resolved via a surprise attack.

In fact, unlike winter, the issue of paid family leave is here to stay. The state of Washington already has a paid family leave program in place, which goes into effect in 2020. Likewise, California Governor Gavin Newsom has voiced support for providing six months of paid family leave. This issue is even being discussed at a national level where the White House unveiled a budget proposal on March 11 calling for the establishment of a paid parental leave program. Meanwhile, leaders from both parties have recently unveiled their own plans to create sweeping federal paid leave programs—one that goes beyond parental leave.

It should come as no surprise that Oregon is trying to get in line with the other West Coast states, and ahead of the nation regarding paid family leave. However, in doing so, the Oregon legislature has proposed HB 3031, which would be one of, if not the most aggressive paid family and medical leave statutes in the country.

As currently drafted, HB 3031 proposes the following:

  • It would mandate up to 32 weeks of paid and protected leave for all Oregon employees. It would set up a state-run paid family and medical leave insurance program in the state, giving employees up to 12 weeks of paid leave to take care of themselves or a family member suffering from an illness, 14 weeks to care for a new baby, and 6 weeks for pregnancy and childbirth-related reasons.
  • Unlike Washington’s family leave program that requires 40 percent payment, HB 3031 would require Oregon employers to cover 50 percent of the cost of the benefit program.
  • The proposal would not require leave to be taken concurrently with Oregon Family Leave Act (“OFLA”). This means that an employee could still qualify for OFLA’s unpaid leave after that employee used up 32 weeks of his or her HB 3031-paid family leave.
  • HB 3031 would not allow an employer to exhaust the employee’s PTO, sick time or vacation concurrently with the paid family leave.
  • It would only require the leave to be taken in the first year after the arrival of a new child. This means an employee could use leave intermittently at any time within a year of the birth, adoption or foster placement of their child.
  • The bill would require an employer to maintain a job for an employee who is absent up to 32 weeks each year. It also would require the employer to maintain that absent employee’s non-wage benefits. This means, failing to continue to provide healthcare, vacation and other non-wage benefits would be deemed discriminatory. Employers would also be obligated to return an employee to the position of employment held when leave commenced, without regard as to whether the employer filled the position with a replacement during the 32-week leave. Failing to do so would be deemed discriminatory and retaliatory.
  • Finally, HB 3031 would require employers to submit quarterly reports of wages earned and contributions paid relating to the paid family leave.

Employers, especially small employ-ers, should be very concerned by HB 3031 in its current form. While the concept of paid leave may be a laudable goal and one whose time has come, the current version of the proposal would be problematic for many employers. Unlike OFLA’s 25 or more employee limitation, HB 3031 would apply to any employer with just one employee in the state. That means that all employers, no matter how big or how small, must navigate the aforementioned issues. As drafted, HB 3031 would create an administrative nightmare for small employers.

This raises the ultimate question — what should employers say about HB 3031 to the legislature? Carrying on with the Game of Thrones theme: “Not today — or at least, not as currently written.” Employers may want to seek out their representatives and express concern over the breadth of the statute as it is currently written, aiming for a more balanced piece of legislation that equally takes into the consideration the needs of all Oregon employers. If the recent negotiations over Oregon’s Pay Equity and Secured Scheduling Laws taught us anything, it is that the legislature will in some cases consider employers’ concerns and narrowly tailor legislation after it hears the real world impact it may have on the business community.

Stephen M. Scott is an associate with labor and employment law firm Fisher Phillips in Portland. He may be reached at smscott@fisherphillips.com.

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