Author: Laurie Grenya

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.

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.

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.