Paid Leave Oregon

Diana Moffat

“WE RECEIVED A DEMAND TO BARGAIN FROM THE UNION. WHAT DO WE DO?”

As most of you know, the Oregon legislature enacted what has come to be known as Paid Leave Oregon (PLO).

PLO is a new program/legislative scheme that allows employees in Oregon to take paid time off for some situations that impact their need to be away from work. It covers family-related leaves, medical leaves and safety leaves. These leaves are not in exact alignment with other leaves available under OFLA and FMLA, and they are PAID leaves.

Benefits under this program will begin in September of 2023, but the payments toward PLO began in January of 2023. (*This article will not cover which employers are required to participate, the process for withholdings, the availability of equivalent plans, what qualifies for leave under PLO, how you determine concurrent leaves under OFLA and FMLA, job protection upon a return from leave, etc. There is a lot of information available about those topics on https://paidleave.oregon.gov/).

So, let’s get to your question! What are you required to bargain/negotiate with your union about in regard to this new program?

The first and most common demand to bargain coming from unions is in regard to the EMPLOYEE required contribution toward the program, which sets a maximum rate of 1% of employee wages, up to $132,900 – with 60% of the 1% paid by the employee and the other 40% of the 1% being paid by the employer. (*Employers with less than 25 employees are NOT required to make their 40% contribution, but the employees are still required, through withholdings, to make their 60% contribution.)

If the union files a demand to bargain over the employee’s portion, do you have to bargain with the union? Yes and no. If you are mid-contract of your current Collective Bargaining Agreement (CBA), arguably you do not have to enter into mid-term bargaining. Why? Because under ORS 243.698 the union only had 14 days to file their demand to bargain once they became aware of the anticipated change. Obviously, more than 14 days has elapsed since the payment withholdings began in January of this year.

Now, on the other hand, once you are bargaining for a successor CBA, then you probably need to bargain over the employee portion of the payment, if raised by the union. But, remember, bargaining and agreeing are two different things. There are many “taxes,” contributions that employees are required to pay, such as their portion of social security, their contributions towards workers compensation, etc. The employer does not traditionally pay the employee’s portion toward those programs. However, on the other hand, it is not unusual for an employer to “pick-up” the employee’s 6% contribution toward PERS. In addition, during the legislative session which resulted in the Oregon Paid Leave program, unions openly agreed that their members would be responsible for their 60% of the 1%.

The second, frequently seen demand to bargain has to do with union requests to be able to “top off” their PLO benefit payments with their otherwise accrued leave so that they still receive a full paycheck. That is because PLO payments to an employee, who is out on a qualified leave, does not result in a “full paycheck.”

Most small to medium-sized public employers are willing to consider various top off proposals from the union. But you do need to consider the impact of allowing an employee to use accumulated sick leave prior to using banked vacation, holiday and compensatory time. It is also important to remember that PLO supplements, in a sense, your current paid leave program. So, if the PLO leave time also qualifies for your current sick leave paid leave time, both must be honored. In addition, BOLI is preparing to issue a letter opinion detailing use of employer paid leave time when that leave would also qualify for coverage under OFLA or FMLA.

If you receive a demand to bargain, your best course of action is to contact your labor attorney for additional advice.