Pregnant Workers Fairness Act Now in Effect

Effective June 27, 2023, the Pregnant Workers Fairness Act (PWFA) requires employers with 15 or more employees to provide reasonable accommodations for qualified employees affected by pregnancy, childbirth, or related medical conditions, unless the employer can demonstrate that providing an accommodation would impose an undue hardship on the employer’s business operations. Several state laws already provide similar protections and now federal law ensures similar protections in all states.

Generally, to qualify for protection under the PWFA, an employee or applicant must be able to perform the essential functions of the position, with or without a reasonable accommodation. However, an employee or applicant will still qualify under the PWFA if: (1) any inability to perform an essential function is for a temporary period; (2) the essential function could be performed in the near future; and (3) the inability to perform the essential function can be reasonably accommodated.

More specifically, the PWFA makes it an unlawful employment practice for employers to:

  • Fail to provide a reasonable accommodation for a qualified employee’s known limitation related to the pregnancy, childbirth, or a related medical condition (unless the accommodation would impose an undue hardship on the employer’s business operations);
  • Require a qualified employee to accept an accommodation without a discussion about the accommodation between the employee and the employer (i.e., without engaging in the interactive process);
  • Deny a job or other employment opportunity to a qualified employee or applicant based on the individual’s need for a reasonable accommodation;
  • Require a qualified employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
  • Retaliate against a qualified employee or applicant for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
  • Interfere with any individual’s rights under the PWFA.

This law is regulated by the U.S. Equal Employment Opportunity Commission (EEOC) and has a website dedicated to information and guidance about PWFA. Employers should also review their handbooks and related policies, as well as train supervisors, managers, and other responsible staff about how to handle PWFA.

Paid Leave Oregon Update

On September 3, 2023, the window for Paid Leave Oregon insurance claims is scheduled to open. The Oregon Employment Department continues to work diligently to provide guidance and information for employers and employees to consider.  Earlier this week an update was provided by the Oregon Employment Department. The highlights are below.

Benefit Amounts for July 2023- June 2024

Each year the Oregon Employment Department has responsibility to review the minimum and maximum weekly benefits amounts. These calculations are based on Oregon’s State Average Weekly Wage and are effective from July 1 through June 30 of the following year. The State Average Weekly Wage increased from $1,224.82 to $1,269.69. For Paid Leave Oregon, the minimum weekly benefit amount is 5% of the State Average Weekly Wage, and the maximum is 120%. This translates to a new minimum weekly benefit amount of $63.48 and the maximum weekly benefit amount is $1,523.63. For additional information about the calculation of an employee’s benefit please review the Employee Guidebook (pages 12-16).

Employee Guidebook

Oregon Employment Department has provided a guide to the important insurance coverage for employees. As with any new program there is a substantial number of questions, and this guide provides answers to those things employees need to know.

The topics covered in the guidebook are:

  • About this guide
  • About Paid Leave Oregon
  • Covered employees
  • Employer obligations
  • Equivalent plans
  • Covered types of leave
  • Paid Leave Oregon Benefits (leave amount, length of leave, benefits amount, job protection, difference from other leaves)
  • Benefit application
  • Receiving benefits
  • Paying taxes on benefits
  • Working while on leave
  • How to change your information
  • Your rights (appeal and complaints)
  • Contact information

We believe it is important for employers to read the information being shared as you are likely the first place employees will go for answers. This guide also directs employees to their employer for certain information that will be needed to file a claim, including the employee’s date of hire and usual work schedule per week.

Also, don’t forget your organization needs an internal policy to support the availability, use, and notification requirements of this employee benefit. We have developed a Policy Pack with background, policy sample, form sample, and other considerations. Find it here.

Oregon Family Leave Act (OFLA changes)

In our alert on June 16, 2023, we shared information about changes to the benefit year which would allow better alignment between PLO and OFLA. There was as error in the date. Effective immediately, organizations (after providing a 60-day notice) can change the benefit year to meet the PLO language (the 52 weeks beginning on the Sunday immediately preceding the leave) or it can be maintained as currently identified in your policies. However, by July 1, 2024, all organizations must change their benefit year to align with PLO. We apologize for the error.

We have updated our Paid Leave Oregon Policy Pack on our website. If you previously purchased the Policy Pack (or downloaded it as an Advantage Plan client), you should have received a separate email from us earlier today with the updated Policy Pack attached.

25 or More Oregon Employees, Keep Reading

The 2023 Oregon Legislative session will be ending soon. When it does, we will do a comprehensive report on the changes that each employer needs to think about. There is one piece of legislation that needs your attention quickly.  Many of you are aware of the benefits window opening for all employees to use their Paid Leave Oregon (PLO) insurance. The goal with that implementation was to align, as closely as possible, with the existing unpaid protected leave provided by the Oregon Medical Leave Act (OFLA). (Quick reminder: OFLA applies to all employers with 25 or more employees in Oregon.)  The alignment of these two requirements has not been easy.

Senate Bill 999 has amended OFLA and several of the effective dates to align with the opening of the PLO benefits window.  The changes are as follows:

  1. Effective 9/3/2023: The definition of “family” member is changing to include siblings and “any individual related by blood or affinity whose close association with a covered individual is the equivalent of a family relationship.” Both BOLI and the Employment Department are directed to write rules regarding factors that would establish an affinity. Each organization will want to review any forms they are using for the purposes of OFLA and amend them to include these additions.
  2. Effective 9/3/2023: Expansion of job protection to a role within 50 miles (rather than 20) of the former position (if their former position does not exist), and if multiple roles remain available then the closest role (to their former positions) must be offered first.
  3. Effective 9/3/2023: If the employer elects to cover any part of an employee’s health, disability, life, or other insurance coverage while the employee is on leave (since employers will not be able to take deductions from Paid Leave Oregon benefit payments), the employer may deduct this advancement upon the employee’s return to work, so long as the amount deducted per pay period does not exceed ten percent (10%) of the employee’s gross pay.
  4. Effective 7/1/2024: The one-year benefit period will include all of the options that have always been in place, and the addition of the same option we find in PLO which states “a) the 52 weeks beginning on the Sunday immediately preceding the date on which family leave commences.” Organizations are not required to change. Employers should consider changing if they want better alignment with PLO. If an organization chooses to change their one-year benefit period, they are required to give employees 60 days’ notice prior to the effective date of the change.

LGBTQ Inclusions

LGBTQ inclusion requires more than just openly celebrating Pride. Several recent reports indicate that LGBTQ workers look at an organization’s track record of equality and inclusion when considering a job. For example, a series of studies by HR consulting firm Veris Insights found that:
• Nearly 70 percent of LGBTQ women and 60 percent of LGBTQ men have disengaged with an employer due to perceived lack of representation in the workplace.
• 80 percent of LGBTQ candidates said perception of “an inclusive and equitable workplace” is highly important to the decision to accept a job offer.
• 44 percent of LGBTQ candidates have felt that an employer was primarily interested in recruiting them to achieve diversity hiring goals.

Jobs site Indeed conducted a survey of about 1,000 full-time professionals who identify as members of the LGBTQ community to better understand their current workplace experiences. According to the findings:
• 87 percent of survey respondents said they researched their company prior to applying to ensure it was LGBTQ-friendly.
• 71 percent said they checked the company’s social media accounts to make sure they were LGBTQ-friendly.
• 61 percent said they spoke to current and/or former employees.
• 45 percent reported that they checked employee benefits to ensure they were inclusive.
• 30 percent said they researched company leadership to gauge sentiment and inclusion.
• 24 percent reported they checked the company’s profile and/or mission to ensure their values aligned with their own.

Recovering Property from Remote Employees


What happens when a remote employee resigns or is terminated?


When a remote employee quits without notice or is fired, the difficult task of retrieving the worker’s laptop and other company equipment often falls to the HR team.
HR professionals might be tempted to withhold the employee’s last paycheck until the property is returned, but state laws forbid this. Some state wage-deduction laws also prohibit HR from pulling the value of the items out of the departing employee’s final pay, even if the worker were to somehow give written consent.
However, here are some actions HR professionals can take as they attempt to retrieve company equipment:
Put the terms in writing. Have employees sign an acknowledgment when they are issued any new company property. The acknowledgment should explain that the employee is responsible for returning the items when employment ends. This document can support an employer’s position if it becomes necessary to file a legal claim to recover the equipment. It can also remind employees that they should care for the property that belongs to the employer.
Ask to meet in person. If a termination meeting is necessary, ask the employee to come into the office and to bring any company-issued equipment. In some cases, managers will ask to meet with employees in the field. Some employers tell employees to bring the equipment because updates are needed; this is a dishonest tactic and should not be used.
Initiate recovery steps. If an employee refuses to meet in person, HR will need to begin a process to recover the equipment.
Send the individual a letter or e-mail showing the list of items that need to be returned. Include a copy of the acknowledgment form that was signed when the employee received the equipment, if such a form exists. Also, provide a prepaid shipping label, along with instructions on how to schedule pickup, in the event the person prefers not to deliver the items in person.
If two weeks pass and the individual has not taken action, then send a follow-up letter or e-mail stressing the importance of returning the property. The letter may mention what happens if the individual fails to do so.
If no response is received in 30 days, send another letter or e-mail informing the former employee that the organization will exercise its rights under the law for a criminal charge of theft, a civil action seeking the value of the items or both. Then, after seeking legal advice, determine whether to proceed with a claim after weighing the cost of the unrecovered items against the cost of legal action.
HR professionals may also want to consider how it might affect morale among the remaining employees if the organization takes legal action against a former employee.