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Oregon Family Leave Program Alignment Progresses in Salem

OBI and its partners have worked with legislative leaders this session to take initial steps to better align the Oregon Family Leave Act (OFLA) with the state’s paid family and medical leave insurance program, Paid Leave Oregon (PLO). OFLA allows people who work for companies with at least 25 employees to take up to 12 weeks of unpaid leave per year for qualifying reasons. Beginning Sept. 3, PLO, an insurance program, will allow people who work for companies of any size to take up to 12 weeks of paid leave per year for qualifying reasons. Without legislative changes, it will be difficult for employers to juggle the administration of these programs, which differ in important ways that include, among other things, their plan years, definitions, qualifying conditions and job protections.

Negotiations have produced a bill, SB 999, that would make some changes to both programs. Following an amendment adopted April 18, the bill is expected to pass both legislative chambers intact. Below are notable changes employers should know about, as most of them become effective Sept. 3:

Concurrence: PLO statutes stipulate that available leave under both PLO and OFLA is drawn down concurrently if people use it for purposes allowed under both programs. Such reciprocity does not exist under OFLA, however, creating the possibility of leave stacking. The amended SB 999 creates such reciprocity, ensuring that leave taken for purposes allowed under both programs is counted concurrently.

Benefit Year: The PLO benefit year, defined by Oregon Employment Department rule, begins the Sunday prior to the day on which an employee first takes leave. Currently, OFLA provides four options employers may use to set a benefit year. The amended SB 999 replaces OFLA’s four options with PLO’s definition of benefit year so that they align. Employers may use the new OFLA definition as soon as the law becomes effective but must transition to this new definition for OFLA not later than July 1, 2024.

Definition of Family: PLO uses a more expansive definition of family than OFLA. The amended SB 999 expands the definition of family in OFLA to that used in PLO so that they align. Because the definition of family used in Oregon’s sick time law is tied to OFLA definitions, the change would affect sick time usage as well. The expanded definition would add the following to OFLA’s definition of family: relationship by blood or affinity; siblings and stepsiblings and the spouse or domestic partner thereof; and the spouse or domestic partner of a child, stepchild, grandparent or grandchild.

Also, because affinity can be interpreted broadly, the bill directs both programs to establish clarifying factors. In doing so, the programs will use agreed-upon factors modeled after Colorado’s family and medical leave insurance program.

Job Protections: Both OFLA and PLO require employers with 25 or more employees to offer equivalent positions to employees returning from leave if their original jobs are no longer available at the same work site. OFLA requires employers to offer equivalent positions at a site within 20 miles of the original site. The amended bill would increase this range to 50 miles, stipulate that the offer must be for the nearest job within that range if multiple jobs exist and clarify that the offer would be dependent on a job being available. The bill would copy this language into PLO for employers with at least 25 workers so that the laws align.

The bill would make other changes to both programs relating to unpaid contributions, agency jurisdiction and other matters. OBI’s website will be updated with additional information.

The passage of this bill would represent an important step in better aligning these two programs. But plenty of work remains, and comprehensive alignment will best serve both workers and employers. Even with the passage of SB 999, the programs would contain different thresholds for employee tenure to qualify for benefits and job protections. Different agencies would still have roles in administration, appeals and enforcement. And leave would continue to be unpaid under one program and paid under another. OBI will continue to work toward complete alignment following the bill’s passage.


Legislative and Rulemaking Updates

The 2023 legislative session must end by June 25, which means lawmakers have eight weeks, at most, to complete a great deal of work. This includes the adoption of a budget, to which end the May 17 revenue forecast looms large. In the meantime, here’s what’s happening with a handful of significant bills:

Styrofoam Ban: On April 26, the House passed SB 543, which would prohibit food vendors – like restaurants, food carts and bars – from using Styrofoam and other polystyrene takeout containers. The bill is now sitting on the governor’s desk. Due to industry’s work, the bill was significantly narrowed, and its impacts on the supply chain, costs and complexity were mitigated. Problematically, DEQ will now be responsible for rulemaking related to this bill even though the agency is conducting rulemaking for the broader Recycling Modernization Act of 2021, which includes attention to Styrofoam and other polystyrene materials. The Legislature should let DEQ complete existing rulemaking and fully stand up the larger program before layering on new issues.

Right to Repair: SB 542, in a rare procedural move, has been referred from the Senate floor to the Senate Rules Committee. The bill did not have the 16 votes needed to pass the full Senate. OBI has consistently opposed the bill because it does not provide adequate intellectual property protection for original equipment manufacturers and because it contains a private right of action. A Senate majority deserves credit for standing together against this bill.

R&D Tax Credit: SB 5, which legislators are likely to amend to create an R&D tax credit, has been referred from the Joint Semiconductor Committee to the Joint Committee on Tax Expenditures. The -2 amendment, which is a “gut and stuff” (complete rework) of the base bill, seems to be the way legislators are leaning. It would create a maximum credit of $10 million for larger companies and $5 million for smaller companies (those with fewer than 150 employees); make credits fully deductible for companies with fewer than 500 employees, and 50% deductible for companies with 500-2,000 employees; and provide a credit of 25% for eligible research and development expenses. Despite these positives, the amendment does not provide for credit transferability, making it less valuable to firms with significant sales outside of Oregon. It also is limited to companies within the semiconductor industry. These flaws are short-sighted. The next public hearing is scheduled for May 5, from 8-9:30a.m.

Right to Rest: HB 3501, which proponents have dubbed a “right to rest” bill, is scheduled for a public hearing May 4 in the House Committee on Housing and Homelessness. The bill seeks to decriminalize homeless camping and would give homeless people a right to “reasonable privacy” without harassment, citation or limitation on the time they can camp in one location. Efforts to remove homeless campers would be deemed harassment, and homeless people moved from their encampment would have a right to sue municipalities for $1,000 for each incident of harassment. This is probably a courtesy hearing as, technically, the bill is dead (it needed to be passed by this committee earlier this month). And while procedural options around that deadline exist, the chief sponsor, Rep. Farrah Chaichi, D-Aloha, acknowledged the bill is unlikely to pass this session.

Interstate Bridge: On April 27, the Joint Committee on Transportation held a public hearing on the Interstate 5 bridge replacement funding bill, HB 2098. There was solid turnout from the business community, including OBI, with business interests supporting the heavily negotiated and bipartisan -2 amendment. This amendment approves $1 billion in general obligation bonds, affirms the importance of the Rose Quarter interchange project, expresses a desire for impartial and open competition in the procurement and contracting process, and conducts a cost allocation study to address the disproportionate cost burden freight users have borne through the weight mile tax. Two more amendments have been posted. Rep. Khanh Pham’s -3 amendment requires project labor agreements (PLAs), which could increase the cost of the bridge by upwards of $1 billion. The amendment also would force work on the interchanges to be scrapped if the project cost escalated beyond the estimated $6.3 billion—which it assuredly would do with a PLA. There are seven interchanges within a five-mile stretch of Interstate 5 and they must be updated to improve overall traffic flow. Two other Democrats, including committee Co-Chair Susan McLain, D-Hillsboro, introduced the -4 amendment, which removes the open competition section in the -2 but does not go so far as to add a PLA. Over the next week, we will see which proposals have the best chance of getting through the full Legislature.

OSHA Investigations: On April 24, the House Committee on Business and Labor heard testimony on SB 592, which would require Oregon-OSHA to conduct comprehensive inspections of workplaces when violations caused work-related fatalities. It also would increase the penalties the agency may impose. OBI dropped its opposition to this bill after joining with other stakeholders and negotiating substantial changes to circumstances leading to comprehensive inspections. The first version of the bill required such inspections virtually whenever a workplace death occurred, whether related to a violation or not. This bill is likely to become law this session.

Closed Captioning: On April 26, the House Committee on Early Childhood and Human Services heard SB 569, which would require half of all televisions in places of public accommodation to display closed captioning. OBI was able to ensure this bill would impose the same requirements as Washington’s law rather than create an entirely different set of requirements as originally proposed. OBI also helped ensure that the bill will not create a private right of action. This bill is likely to have a committee vote within the next week or so.

Energy and Environment: There continues to be little movement on energy and environment priority bills for several reasons. Many bills are sitting in the Joint Committee on Ways and Means awaiting action, some committees have cancelled meetings, and other committees are focused on holding informational hearings. OBI will provide updates when priority bills are scheduled for action.


Notable News

Secretary of State: Following extensive reporting by Willamette Week about Secretary of State Shemia Fagan’s involvement with a troubled cannabis company, Gov. Kotek has asked for an Oregon Government Ethics Commission investigation. Meanwhile, Republican legislative leaders have asked Fagan to resign. Fagan, Willamette Week discovered, agreed to work as a paid consultant to cannabis dispensary chain La Mota even as her agency was conducting an audit of the Oregon Liquor and Cannabis Commission’s cannabis regulations. Fagan recused herself only after the audit was substantially complete, the paper reported. The governor also has asked the Department of Justice to review the audit.

Knight Gift: Phil and Penny Knight pledged to give $400 million to the new nonprofit 1803 Fund to invest in Portland’s Albina neighborhood, Willamette Week reports. The 1803 Fund will be run by Rukaiyah Adams, former chief investment officer at the Meyer Memorial Trust and former chair of the Oregon Investment Council.

PLO Delay Authority: Following passage April 27 in the House, a bill that gives the Oregon Employment Department authority to delay implementation of the state’s paid family and medical leave insurance program – aka Paid Leave Oregon – heads to the governor’s desk. There is no indication that the authority will be used. However, The Oregonian reports, the employment department will have the option to use it if the agency is unable to collect enough money by August to fund the program adequately. PLO currently is scheduled to begin paying benefits Sept. 3.

Campaign Finance: The Oregonian writes about three bills that would restrict political donations. In addition, the story notes, the group Honest Elections plans to gather signatures to put a different proposal before voters in 2024.

Legislative Tension: In a letter to Democratic leaders, Oregon Republicans have asked for rule changes before the 2024 session that would eliminate the fast-tracking of controversial measures, The Oregonian reports. The practice to which Republicans object allows some bills to circumvent policy committees – and public hearings – in their second chamber.

Retail Crime: Elected leaders in the Portland area, including Multnomah County DA Mike Schmidt and Portland Mayor Ted Wheeler, plan to announce a pair of task forces to combat car and retail theft, The Oregonian reports. The effort is expected to involve the creation of deputy DA and investigator positions to focus on these areas.


Lawmakers Continue to Pursue Unworkable, $20B Health Plan

Oregon’s business tax burden has increased 45% since 2019, and marginal personal income taxes in Portland are now the country’s second highest. Yet legislators this session continue to pursue a state-managed universal health care system that would require roughly $20 billion annually in new taxes.

Not only is this a huge amount of money (it’s more than the entire current annual state budget), but it assumes state health officials can create, implement and then operate a complicated health insurance system unlike any other in the country. This would require a degree of administrative expertise far beyond the state’s capabilities. About 94% of Oregonians have some form of health insurance already, and OBI believes that the Legislature should focus more narrowly on ways to insure the remaining 6%.

Read more about this proposal and OBI’s opposition on OBI’s website.


CompSAFE Webinar: Heat and Smoke Rules, One Year In

Oregon’s workplace heat-exposure rules went into effect on June 15, 2022. Companion rules governing exposure to wildfire smoke went into effect weeks later.

Join experts from Oregon Occupational Safety and Health on Thursday, May 18 to learn how the first year under the rules went and hear about potential adjustments. The online webinar will provide a brief refresher on rule requirements, a look back at 2022 and a look ahead to 2023. State experts also will field questions from webinar participants.

The webinar is made possible by OBI’s CompSAFE program, which allows qualifying members to save on workers’ compensation insurance through OBI’s partnership with SAIF, Oregon’s not-for-profit workers’ compensation insurance provider.

The webinar will run from 10-11 a.m. and is open only to OBI members and to invited guests.

OBI members can register here.