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BOLI Clarifies Intersection Between Paid Leave Oregon and the Oregon Family Leave Act

April 14, 2023

Jordan Jeter - Tonkon Torp LLP

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Oregon

As the start date for Paid Leave Oregon (PLO) draws nearer, employers continue to problem-solve how to implement the new law within Oregon’s complex system of leave laws. One such question that has arisen is what to do about inconsistencies between PLO and the Oregon Family Leave Act (OFLA). Thankfully, BOLI has issued guidance to help employers, specifically when it comes to an employee’s use of paid time off (PTO) while on family leave.

As a reminder, PLO benefits begin September 3, 2022. Eligible employees can apply for benefits for certain qualifying events, and the amount of those benefits will depend on their income. For example, employees making less than the state’s average weekly wage will receive benefits closer to 100% of their income, while employees making more than that will receive benefits less than 100% of their income. Under PLO, employers “may permit” an employee to use PTO to supplement their income to 100%. This language is permissive; employers are not required to allow employees to use PTO while on PLO.

But PLO’s permissive language contradicts what OFLA requires. Under OFLA, employees are “entitled” to use any accrued PTO while on family leave. That language is mandatory; employers cannot deny employee requests to use accrued PTO while on OFLA.

Faced with that conflict, BOLI has clarified that employers must follow the rule most beneficial to the employee. Here, that means employees are entitled to use accrued PTO while on PLO, so long as that absence is also covered by OFLA.

Employers should keep in mind that not all PLO absences will be simultaneously covered by OFLA. The eligibility requirements for the two differ, as well as the qualifying events for taking leave. In scenarios where only PLO applies, employers are not required to allow an employee to use PTO to supplement their income, but may permit them to do so.

The intersection between PLO and OFLA will continue to evolve as we get closer to September 3 and beyond. There are, for example, bills currently pending before the state legislature to amend OFLA to more closely align with PLO’s eligibility requirements. We will continue to monitor developments in Oregon’s leave laws and help employers problem-solve each unique situation as it arises.

This update is prepared for the general information of our clients and friends. It should not be regarded as legal advice. If you have questions about the issues raised here, please contact any of the attorneys in our Labor & Employment Practice Group, or the attorney with whom you normally consult.

About Tonkon Torp

Tonkon Torp LLP is a leading business and litigation law firm serving public companies, substantial private enterprises, entrepreneurial businesses and individuals throughout the Northwest.  For more information, visit tonkon.com.