Portland Adopts Mandatory Sick Leave Law

by Perkins Coie
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Portland has become just the fourth U.S. city to require that employers provide sick leave.  The Portland ordinance goes into effect January 1, 2014.  Following is a brief summary of the ordinance.  As the effective date approaches, we will provide updates dealing with the many traps and reporting difficulties created by the ordinance.

Who Is Covered?

The ordinance covers any employee who works more than 240 hours per year in Portland.  This includes anyone who travels to the City of Portland to work, who works in an office in Portland or who makes a stop in the city.  However, an employee can use Portland sick time (PST) only for work in Portland. 

The employer does not need to be based in Portland or in Oregon for the coverage to apply.

Required Sick Time

Employers with five or fewer employees will be required to provide one hour of unpaid PST for every 30 hours worked.

Employers with six or more employees will be required to provide one hour of paid PST for every 30 hours worked.

Employees can accrue 40 hours of PST per year.  An employee may carry over the PST, but the total bank of PST cannot exceed 40 hours in a calendar year.

Accrued but unused PST does not need to be paid out upon termination of employment.  The ordinance does require, however, that employees be allowed to carry PST over to their new employer if the business is purchased and the employee continues to work in Portland.

Safe Harbor

Employers will not be required to provide additional PST under the ordinance if the employer already provides time-off benefits, such as sick time or paid time off, at least equivalent to those provided under the Portland ordinance.

In addition, unionized employers can negotiate a waiver of rights under the ordinance as long as the collective bargaining agreement provides for paid time off that is at least equal to the requirements of the ordinance.

Use of Sick Time

Employees will begin to accrue PST beginning January 1, 2014.  New hires after that date will begin to accrue PST 90 days after they begin employment. 

Any employee who has worked 240 hours in the City of Portland and has accrued sick time will be able to use that PST.  Employees may use up to 40 hours per year of PST in one hour increments.  PST may be used for:

  • Treatment of mental or physical illness, injury or health condition, including pregnancy, childbirth, postpartum care and preventive medical care, of an employee or the employee’s family member; 

  • Leave provided for domestic violence, harassment, sexual assault or stalking under Oregon law; and

  • Leave required because:
    • The employer’s business or an employee’s child’s school or place of care closes for a public health emergency;

    • A family member is determined to be a risk to the health of others and needs assistance; or

    • The employer is required by state law or regulation to exclude the employee from the workplace for health reasons.

Notice Requirements

Employers must create a contact protocol in the form of a telephone number or other reasonable means of communication through which an employee can give notice of a need for PST leave.  Employers also must post a notice of the requirements of the ordinance.

For unforeseeable leave, an employee must provide notice before the start of a shift or as soon as possible.  If possible, the employee should tell the employer how long the leave is expected to last.

For foreseeable leave, the employee should provide notice as soon as possible and make a reasonable attempt to schedule the leave in a manner that does not disrupt the operations of the employer.

Verification

Employers may require verification of the need for leave in order to investigate a pattern of usage of unscheduled sick time, such as taking PST on Fridays.

If an employee is absent for more than three consecutive days on PST, the employer can require documentation that the PST was used for one of the ordinance’s required purposes. 

What Do I Need to Do Now?

Employers should start planning for the ordinance even though it does not become effective until January 1, 2014.  This can include such things as:

  • Revisiting current paid time off policies to determine whether they meet the requirements of the ordinance.

  • Creating a contact protocol for leave purposes.

  • For unionized employers, outlining plans to negotiate with their unions regarding a potential waiver of rights under the sick leave ordinance. These employers may also want to seek legal guidance regarding the attempt by the City of Portland to regulate sick leave requirements in a collective bargaining agreement. 

Important Note:  This Update only highlights the Portland City Ordinance.  It is not a complete discussion of the potential compliance issues that a given employer might face.  It is also not intended to be, and should not be used as a substitute for, specific legal advice.  Legal opinions may be given only in response to inquiries regarding specific factual situations.  Subsequent legal developments may affect some of the legal standards and principles discussed.  If legal advice is required, the services of counsel should be sought.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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