This spring, Linn County Farm Bureau hosted two seminars about what employers have to do to comply with the new state paid sick leave law. Staff from OFB and the Oregon Bureau of Labor & Industries presented an overview and took questions from attendees. Based on conversations from that event, OFB and BOLI compiled the following list of Frequently Asked Questions by employers regarding the new law.
Myth 1: I do not have 10 employees, so I am not required to provide sick leave.
Fact 1: The only difference the employee count makes is that if you have 10 or more employees — or six or more if you have any operations in Portland — then sick time will be PAID. If an employer has less than 10 employees, or less than six if there are any operations in Portland, the sick time will be UNPAID.
Every employer, whether you have two employees or 200 employees, is required to provide Oregon sick time. If you are an employer outside of Portland with an average of 10 or more employees, then you must provide paid sick leave to all employees.
Myth 2: I already provide two weeks of vacation to my employees, so I am covered.
Fact 2: Oregon’s sick time law allows employers to provide policies that are substantially equivalent to the state’s law. However, those policies must be at least as generous as the Oregon sick time law and must follow the same notice, accrual, and usage requirements.
Myth 3: I have seasonal employees for harvest and five full-time employees year-round. If I count 20 consecutive weeks, I don’t think I qualify for 10 or more employees.
Fact 3: Look at your 20 busiest weeks (from an employment standpoint). Do you have an average of 10 or more employees over those 20 weeks? If so, you are required to provide paid sick time to your employees. All employees — including seasonal and part-time, and also employees not working due to vacation, workers’ comp leave, or OFLA/FMLA — count towards the total number of people employed unless an employee is officially terminated.
Myth 4: An employee tells me she is sick, but she doesn’t want to use her sick time. She asks for personal time instead.
Fact 4: If an employee tells you that he/she is taking time off for any of the Oregon sick time qualified uses, you must subtract those days from their sick time bank and pay that time no later than the next regular payday after the sick time was used. However, if he/she is absent without explanation, the employer should follow their absentee policy as described in the employee handbook.
Qualified absences include:
• Employee or employee’s family member mental or physical illness, injury, or health condition (includes preventative care or routine dental visits)
• Public health emergencies that result in school, work, or childcare closures
• Victim of domestic violence or sexual assault
Myth 5: An employee asks me for his sick time to be paid out at the end of employment.
Fact 5: The statute clearly states that an employer does not have to pay out for accrued, unused sick time.
Myth 6: BOLI isn’t enforcing this year, which is why I don’t have the sick time posters displayed or sick leave policy added to my employee handbook.
Fact 6: While BOLI considers 2016 a learning year, the agency is still enforcing against retaliatory actions by employers. Additionally, employers are not protected against civil actions by employees in 2016. It is important to get up to speed on the new sick time law.
Myth 7: I was told that I can require my employee to provide a doctor’s note to prove they are actually sick.
Fact 7: An employer can only require a doctor’s note after the employee misses more than three consecutively scheduled workdays; the employee has a foreseeable need for an absence that will last more than three regularly scheduled workdays; or if there is sufficient evidence to show the employee is abusing sick time. And in that instance, the employer must pay for any out-of-pocket costs incurred by the employee, including lost wages, in obtaining the doctor’s note.
Myth 8: I have an employee incentive program that provides a bonus to employees with a good attendance record.
Fact 8: An incentive program that disincentivizes an employee from taking his/her sick time could be viewed as “retaliatory” or obstructing the employee from using sick time. It is not allowed under the law to provide incentives to employees that would discourage their use of sick time. However, an employer may pay out any remaining sick time at the end of the year if this has been previously agreed to through mutual consent between the employee and employer. If you do decide to reward perfect attendance, any work missed due to a qualified use of sick time cannot be counted as an absence.