Paid Leave Oregon Protections

Paid Leave Oregon (Paid Leave) is a program that provides eligible employees:

Up to 12 weeks of paid leave for family, medical, or safe leave
Up to two additional weeks of paid leave for limitations related to pregnancy, childbirth or a related medical condition, including lactation

Paid Leave pays employees a percentage of their base year wages (up to 100%) while on leave. Your base year is the first four of the last five completed calendar quarters before the start date of your Paid Leave benefit year.

Employees have the right to continue health care benefits while on Paid Leave.

Paid Leave generally protects an employee’s job and role when they take Paid Leave if they’ve worked for the same employer for at least 90 consecutive days.

Employers may not discriminate or retaliate against an eligible employee for invoking rights (meaning asking about or applying for Paid Leave) under the Paid Leave program.

While the Oregon Employment Department (OED) administers Paid Leave and should be your first contact for questions on filing or administering a claim, the Bureau of Labor and Industries (BOLI) investigates complaints regarding job protections, suspected retaliation, and discrimination.

If you think your employer is violating job protections under this law or you experience retaliation or discrimination, you can make a complaint or contact us at whd@boli.state.or.us to get help.

The law

ORS 657B

SB 1515 (2023)

OAR 471-070

Resources (Links)

Paid Leave Oregon website: paidleave.oregon.gov

Paid Leave Oregon workplace poster

Template letter to employees on the need to apply for Paid Leave Oregon benefits

For workers

Can I opt out of Paid Leave Oregon?

No. If you work for a covered employer, you cannot opt out of Paid Leave. A covered employer is required to withhold and remit a small percentage of your wages to support Paid Leave benefits. If you are not a covered employee, your employer does not withhold or remit contributions on your behalf and you cannot receive benefits.

The following workers are not covered:

A federal employee
A participant in a work training program as part of a state or federal assistance program
A participant in a work-study program that provides students in secondary or post-secondary educational institutions with employment opportunities for financial assistance or vocational training
A railroad employee exempt under the federal Railroad Unemployment Insurance Act
A volunteer
A judge
A legislator
A holder of public office

You can choose coverage if you’re self-employed or an independent contractor, and a Tribal government employer may opt into the program.

How do I request Paid Leave benefits?

Unless your employer provides an equivalent plan, the fastest way to apply for Paid Leave benefits is through the Frances Online platform. You can start an application for Paid Leave up to 30 days before you begin your leave or up to 30 days after your first absence (extended up to one year under certain circumstances).

For other questions on Paid Leave applications or benefits, contact Paid Leave directly by logging in to Frances Online. You may also call 833-854-0166 or message Paid Leave from their Contact Us form.

What notice do I have to give my employer?

Your employer may require you to provide written notice (including an explanation of the need for leave) up to 30 days before you begin leave. For unexpected events that create a need for family, medical, or safe leave, you must tell your employer within 24 hours of starting your leave and give your employer written notice within 3 days after starting your leave. If you don’t give notice required to your employer, Paid Leave may reduce your first full weekly benefit payment by 25%.

Can my employer charge for health care insurance while I am on Paid Leave ?

That depends. Your employer generally needs to continue providing any health care benefits you had before you began leave. That said, they may also require you to continue paying any portion of the premium you would have paid if you were working.

If you do not pay your share of the health care insurance, an employer may decide to terminate coverage, though they will need to reinstate coverage on your return. Alternatively, they may deduct your share of unpaid premiums from wages (up 10% per pay period) when you return to work. In some cases, they may pursue premiums paid on your behalf even if you do not return to work.

Paid Leave benefits don’t cover all the wages I would have earned. Can I draw down sick leave, PTO and the like to make up the difference?

Yes, Paid Leave benefits are in addition to any paid sick time under ORS 653.606, vacation leave, or other paid leave you may have earned from your employer. You have a right to use any of these leaves while receiving Paid Leave benefits up to full wage replacement. Additionally, your employer may choose to authorize paid leave beyond full wage replacement. Your employer generally gets to choose the order of use when multiple other paid leave banks are available.

Paid Leave denied my claim. Is my job still protected?

That depends. You have the right to appeal a denial of benefits and if your claim is ultimately approved, your job would be protected while taking Paid Leave benefts. But job protections under Paid Leave will not apply if your claim is ultimately denied.

Even if your claim is denied, applying for Paid Leave benefits is protected activity. Your employer cannot retaliate or in any way discriminate against ou because you applied for Paid Leave benefits.

Keeping your employer informed about your need for protected time is your best bet to making sure you don’t miss out on other protections that may be available to you. These include Oregon sick time, Oregon Family Leave Act, the federal Family and Medical Leave Act. If your condition qualifies as a disability, you and your employer should discuss whether reasonable accommodations, including schedule adjustments or periods of leave, may help you to perform the essential functions of your job.

My employer says they cannot hold my job open until I come back from Paid Leave. Is that legal?

In general, employers must restore you to the position you held before taking leave, even if they choose to fill your position with another worker in your absence.

If your position no longer exists following protected Paid Leave and your employer is a large employer (25 or more employees on average for the year), the employer will need to offer you any available equivalent position within a 50 mile radius of your fomer job site that provides equivalent employment benefits, pay, and other terms and conditions of employment.

A small employer (fewer than 25 employees on average for the year) will also need to restore you to the position you held prior to taking Paid Leave.,If that position no longer exists, they may offer you a position with similar duties (rather than equivalent duties) and the same benefits, status, and pay.

For employers

Who administers Paid Leave?

OED is charged with approving and administering your employees’ claim for Paid Leave benefits. Or, you can apply to OED’s Paid Leave program for approval to provide your own equivalent plan (or involve a third-party administrator).

If you have claim administration questions, call 833-854-0166 or message Paid Leave from their Contact Us form.

Paid Leave can also help with questions about quarterly contribution obligations and small employer assistance grants.

We have a newer employee who has already requested Paid Leave. Assuming their Paid Leave application is approved, they will only have been working with us for 80 days. Do they have job protections?

No. Your employee’s right to be restored to the position they held prior to taking Paid Leave applies to absences after the employee has been employed by you for at least 90 days. That said, an employee who begins Paid Leave on day 80 and takes continuous or intermittent leave until, say, day 95 would be entitled to their former position since they have been employed for at least 90 days when they return from Paid Leave.

Paid Leave law also provides protection from discrimination or retaliation to employees who invoke their rights under Paid Leave regardless of how many days they have been employed. Thus, treating an employee who asks about, applies for, or takes Paid Leave differently than other similarly situated employees creates room for legal complaints.

Finally, keep in mind that depending on the circumstances, other laws may provide job protections prior to 90 days of employment. For example, you may permit employees to take sick leave prior to 90 days. If the reason for leave was a workplace injury, reemployment or reinstatement may apply even for new employees. Likewise, there is not a 90-day waiting period for leaves or other reasonable accommodations extended as a result of a pregnancy or disability.

My employee applied for Paid Leave to care for an “aunt,” but I happen to know this person has no blood relation to the employee. Should I report this as fraud?

Referring to this person as their “aunt” is not necessarily fraudulent. Paid Leave has a broad definition of a “family member.” This includes someone related by affinity who shares a strong personal bond that is the equivalent of a family relationship.

Keep in mind that anti-retaliation provisions likely protect a good faith application for benefits or inquiry about Paid Leave rights.

My employee has requested to use PTO for time they will be getting Paid Leave benefits. Am I obligated to permit that?

Yes, Paid Leave benefits are in addition to any paid sick time under ORS 653.606, vacation leave, or other paid leave you may offer employees. Employees who take Paid Leave have a right to use any of those leaves while receiving Paid Leave benefits up to full wage replacement. Paid Leave can share the employee's potential weekly benefit information with employers so you can determine how much time from another leave bank to apply if capping the use of other leaves to supplement wage replacement benefits at 100%.

Additionally, you may choose to authorize use of other paid leaves beyond full wage replacement.

Finally, as an employer you generally gets to choose the order of use when more than one type of leave is available, unless a policy or collective bargaining agreement provides otherwise.

My employee has been approved for an intermittent Paid Leave Oregon claim. What notices does my employee need to provide?

For leave events that are foreseeable (for example, a planned surgery), an employee must give oral notice up to 30 calendar days prior to the leave event, or if your policy requires written notice, you may require this notice in writing.

For leave that is not foreseeable (for example, premature birth, unexpected serious health condition, an unexpected adoption or foster placement, or safe leave reasons), an employee, or someon on their behalf, must give oral notice within 24 hours of the start of leave and written notice within three days of beginning leave. An employee taking safe leave must give reasonable advance notice unless it is not forseeable.

If written notice is required by your policy, you can also require that the written notice include the type of leave (family, medical, or safe leave), an explanation of the need for leave, and the actual or anticipated timing and duration of leave.

While notice for consecutive leave only needs to be given one time prior to taking the block of consecutive leave, you may require that the employee advise you as soon as practicable if the dates of any scheduled leave change, are extended, or were initially unknown. Notice for intermittent leave shall be given orally within 24 hours of the commencement of each work day taken or earlier if known.

If your employee does not provide notice as required by ORS 657B.040 and OAR 471-070-1310, you may notify Paid Leave.

My employee was a no-call, no-show for a week. When we finally got in touch, they told us they were on Paid Leave. Shouldn’t I get notice for each use of Paid Leave? Can I discipline employees for not telling me they’ll be gone?

You may generally require written notice up to 30 days before Paid Leave begins. For unexpected events, however, employees must tell you of their need for family, medical, or safe leave, within 24 hours of starting their leave, and they need to give you written notice within 3 days after starting their leave. (Another person may provide this notice on behalf of the employee.) You may require that they include the type of leave (family, medical, or safe leave), an explanation of the need for leave, and the actual or anticipated timing and duration of leave.

The language of the Paid Leave statute prescribes the consequence if the employee fails to provide the appropriate required notice: Paid Leave may reduce the employee’s first full weekly benefit payment by 25%.

While nothing prevents communicating with your employee about the importance of providing as much notice as practicable, additional disciplinary action may push beyond the remedy in the law and create space for a claim of retaliation for taking Paid Leave.

The Paid Leave program staff can provide you with the information necessary to administer the leave (including the claimant's leave dates, frequency and duration of leave, and weekly benefit amount). Check Frances Online or call 833-854-0166.

My employee took leave suddenly and applied for Paid Leave benefits. My understanding is that the claim was denied, but the employee hasn’t returned to work (or my calls). Can I move forward with disciplinary action?

Proceed with caution here. The employee may appeal the denial of their Paid Leave benefit claim and that may take a long time. Meanwhile, other protections may exist for the employee, such as sick time, family leave laws and disability laws. It may be prudent to consult with counsel prior to taking any adverse action against the employee that has invoked a protected leave.

Does an employee who takes Paid Leave forfeit an attendance bonus?

No. Absences taken in conjunction with protected leave should not be held against an employee who would otherwise be eligible for the bonus.

I offer a production bonus to teams that hit certain goals. Can I prorate the bonus for an employee whose contribution wasn’t equal to that of their teammates because they were out on Paid Leave?

Yes, assuming you would do the same for employees taking other forms of leave. While employers generally need to maintain health care benefits during leave, an employee taking Paid Leave is not entitled to accrue additional benefits during leave unless an employment agreement or policy provides additional protections. This would include the accrual of additional seniority, production bonuses, or other non-health-care-related benefits that would have accrued as a result of the employee’s work.

An employee informed us that they must take several weeks off for a surgery and recovery in connection with a serious health condition. This employee qualifies for FMLA. May we require them to apply for Paid Leave benefits as well?

No, applying for Paid Leave benefits is the employee's choice. While you are required to let employees know that they have rights under Paid Leave (such as with the required workplace posting), an employer may not compel an employee to apply for Paid Leave benefits.

We have an employee who meets the definition of a “key employee” under the FMLA regulations, which limits our reinstatement obligations. This employee also applied for Paid Leave benefits, and they were approved for Paid Leave during the same period we designated as FMLA leave. They tell us that we must reinstate them to their former position after the completion of their Paid Leave. Are they correct?

Likely so. While OFLA and Paid Leave cannot, by law, run at the same time, an employee’s leave may be covered by other protections. Here, FMLA may not require reinstatement in every circumstance, but Paid Leave provides a more protective standard. In order to avoid violations under either law, you may need to comply with the standard that is most beneficial to the employee.

Disclaimer: This website is not intended as legal advice. Any responses to specific questions are based on the facts as we understand them and the law that was current when the responses were written. They are not intended to apply to any other situations. This communication is not an agency order. If you need legal advice, please consult an attorney.