With a mere few months before they are scheduled to go live, both Oregon and Colorado are in the final stages of implementing their paid family and medical leave (PFML) programs, but these states continue to review and refine their leave programs with the passage of Oregon’s Senate Bill No. 999 and Colorado’s Senate Bill No. 17. Here’s what you need to know:
Oregon Family Leave Act
Since 2019, when Oregon passed its PFML program, employers have been asking how PFML will coordinate with the state’s existing unpaid leave program, the Oregon Family Leave Act (OFLA). The big question has been: if an employee is covered and eligible for both OFLA and PFML, does that mean they get 24 weeks of leave, instead of 12 weeks, in a year? The new law addresses this issue directly. It expressly states that if family leave taken under OFLA also qualifies under the federal Family and Medical Leave Act (FMLA) or PFML, the OFLA leave must be taken concurrently with, and not in addition to, any leave taken under the federal FMLA and under PFML. This means that an employee cannot stack leave entitlements under FMLA, OFLA, and PFML.
(Employers should note that the eligibility and usage requirements under OFLA, OR PFML, and FMLA are not identical. Therefore, it is possible that leave could qualify under one or two programs but not all three, ex. care for a sibling with a serious health condition. This could result in more than 12 weeks of leave being available to an employee. With some caveats, the law does provide that an employee is limited to an overall maximum of 16 weeks between OFLA and OR PFML.)
The new law also aligns the list of covered family relationships (including an affinity relationship) under OFLA with that under PFML, which means that an employee can take a job-protected absence under both OFLA and PFML to care for the same family member. The new law also clarifies the employer responsibility to offer an “equivalent position” when it is no longer available where the employee used to work; the employer has to offer the employee an equivalent position located nearest the previous work site, or within 50 miles.
While these amendments are effective on September 3, when the PFML program goes live, there is one exception spelling out the available method of determining an OFLA leave year. Effective immediately, the law adds a “period of 52 consecutive weeks beginning on the Sunday immediately preceding the date on which family leave commences.” Starting July 1, 2024, this will be the only available method of determining an OFLA leave year.
Oregon Paid Family and Medical Leave
Legislators made other changes with the new law to align PFML with OFLA when the programs go live. One of these alignments is the concept of maintenance of benefits. The employee must continue to make regular contributions to the cost of the health insurance premiums. Additionally, if the employer pays for the employee’s share of disability, life, or other insurance coverage while they are out on PFML that should have been paid by the employee, the employer can deduct these amounts from the employee’s pay when they return to work, but the deductions should not exceed 10% of the employee’s gross pay each period.
The new law also introduces employer responsibility under OFLA to offer an “equivalent position” when it is no longer available where the employee used to work, which is identical to that under the PFML program.
Additionally, now that both PFML and OFLA include an affinity relationship in the list of covered family members, the employer must consider whether there exists a significant personal bond attributable to factors that, taken together, resemble a family relationship. Lastly, an employee cannot bring a civil action or file a complaint with the Commissioner of the Bureau of Labor and Industries without first appealing the alleged violation of the PFML law with the Director of the Employment Department for state plans, or the appeal process for equivalent plans.
Colorado Paid Sick Leave
Starting on Aug. 7, Colorado’s paid sick leave law will include more reasons for which an eligible employee can take leave. The additional leave reasons now include bereavement leave for the death of a family member, care for a family member due to an inclement weather-related school or place of care closure, and the need to evacuate one’s own residence due to inclement weather.
FINEOS can help keep your state leave programs up to date
FINEOS will be ready to administer these new and amended state leave programs. Using modern insurance technology solutions like the FINEOS Platform can help insurance carriers remain compliant and competitive when leave legislation is revised and new products are authorized by governing jurisdictions. Learn more about how a modern, integrated disability and absence management (IDAM) solution can help your organization adapt to this rapidly evolving market and remain in compliance.