Current through Register Vol. 63, No. 9, September 1, 2024
(1) The
protections provided under ORS
657B.060 and this rule apply
only to an eligible employee who was employed by the employer for at least 90
consecutive calendar days prior to taking Paid Family and Medical Leave
Insurance (PFMLI) leave. 90 consecutive calendar days include the days the
employee is not scheduled to work but is still employed with the
employer.
(2) An employer must
restore an employee returning from PFMLI leave to the employee's former
position, if the position still exists, even if the former position has been
filled by a replacement worker during the employee's PFMLI leave. The
employee's former position is the position held by the employee at the time
PFMLI leave commenced, regardless of whether the job has been renamed or
reclassified. (For example, a delivery driver must be returned to the same
route, at the same rate of pay and benefits, driving the same type of truck,
delivering the same type of goods, on the same shift, and working from the same
location as when the driver started PFMLI leave.)
(3) For the purposes of this rule, any worker
hired or reassigned during an eligible employee's leave to perform the same
work in the same position that the eligible employee held before the leave was
taken is a replacement worker. If the eligible employee on PFMLI leave notifies
the employer that they are ready to return to work earlier than anticipated,
the employer must give the eligible employee the opportunity to work any hours
that the replacement worker would otherwise have been scheduled to work
beginning on the second business day following the date the eligible employee
notified the employer they were ready to end their leave and return to
work.
(4) Notwithstanding section
(2) of this rule, an employee is not entitled to return to the former position
if the employee would have been terminated or reassigned from their current
position to another position if PFMLI leave had not been taken.
(5) Subject to section (6)(d) of this rule,
if the position held by the employee at the time PFMLI leave began has been
eliminated, and not merely renamed or reclassified, then:
(a) If the employer is a large employer as
defined in OAR 471-070-3150, the employer must
restore the employee to any available, equivalent position for which the
employee is qualified, within a 50 mile radius of the employee's former job
site.
(A) An available position is a position
that is vacant or not permanently filled.
(B) An equivalent position is a position that
is virtually identical to the employee's former position in as many aspects as
possible in terms of employment benefits and pay, and similar working
conditions, including privileges, perks, and status. It must involve
substantially the same or similar duties and responsibilities, which must
entail equivalent skill, effort, responsibility, and authority.
(C) If an equivalent position is available at
multiple job sites, and the employee is not able to return to the employee's
former position because it no longer exists, the employer shall first offer the
employee an equivalent position at the job site closest to the employee's
former job site.
(b) If
the employer is a small employer as defined in OAR
471-070-3150, the employer may,
at the employer's discretion and based on business necessity, restore the
employee to a different position. The different position must offer the same
employment benefits and pay, and similar working conditions, including
privileges, perks, and status as the employee's former position and must have
similar job duties and responsibilities as the employee's former
position.
(6)
(a) Unless the terms of a collective
bargaining agreement, other employment agreement, or the employer's policy
provides otherwise, an employee on PFMLI leave is not entitled to accrue
employment benefits during a period of leave. Employment benefits include but
are not limited to: accrual of seniority, production bonuses, or other
non-health-care-related benefits that would have accrued if the employee was
working;
(b) Benefits an employee
was entitled to and that accrued prior to starting PFMLI leave, including, but
not limited to seniority or pension rights, must be restored in full upon the
employee's return to work. The benefits do not have to be restored if such
benefits have been eliminated or changed for all similarly situated
employees;
(c) An employee is not
entitled to a right, benefit, or position of employment other than a right,
benefit, or position to which the employee would have been entitled, if the
employee had not taken PFMLI leave; and
(d) An employee is subject to layoff on the
same terms or under the same conditions as similarly situated employees who
have not taken PFMLI leave.
(7) During any PFMLI leave, an employer must
maintain any health care benefits the employee had prior to taking such leave,
for the duration of the leave, as if the employee had maintained their
employment continuously during the period of leave.
(a) An employer continuing health care
insurance coverage for an employee on PFMLI leave may require that the employee
pay only the same share of premium costs during the leave that the employee
would have been required to pay if not on leave.
(b) If an employee cannot or will not pay
their share of the premium costs, the employer may elect to discontinue health
care benefit coverage, unless doing so would render the employer unable to
restore the employee to full benefit coverage once the employee returns to
work. If coverage lapses because an employee has not made required premium
payments, upon the employee's return from PFMLI leave the employer must restore
the employee to coverage/benefits equivalent to those the employee would have
had if leave had not been taken and the premium payment(s) had not been missed,
including family or dependent coverage. In such case, an employee may not be
required to meet any qualification requirements imposed by the plan, including
being subject to any new preexisting condition waiting period, to wait for an
open enrollment period, or to pass a medical examination to obtain
reinstatement of coverage.
(c) If
the employer pays (directly or indirectly, voluntarily or as required by state
or federal statute) any part of the employee's share of health or other
insurance premium while an employee is on PFMLI leave, the employer may deduct
from their pay the employee's share of health or other insurance premiums paid
by the employer until the amount is repaid. The employer may deduct up to 10
percent of the employee's gross pay each pay period after the employee returns
to work until the health or other insurance premium amounts paid by the
employer are repaid.
(d) If an
employee fails to return to work - unless the failure to return to work is
because of a serious health condition or safe leave for which the employee
would be entitled to PFMLI leave or another circumstance beyond the employee's
control - the employer may recover the employee's share of the health insurance
premiums paid by the employer. The employer may use any legal means to collect
the amount owed for the employee's share of health insurance premiums paid by
the employer, including deducting the amount from the employee's final
paycheck.
(8) An employer
may require an employee to follow the employer's established leave policy
regarding reporting to the employer any changes to the employee's leave
status.
(9) If an employee gives
clear notice of intent to not to return to work from PFMLI leave, except as
required by other state or federal law, the employer's obligations under ORS
chapter 657B to restore the employee's position and maintain any health care
benefits cease on the date the notice is given to the employer.
(10) It is an unlawful employment practice to
discriminate against an eligible employee who has invoked any provision of ORS
chapter 657B or this rule. An employee who alleges a violation of any provision
of ORS 657B.060 or this rule may bring
a civil action under ORS
659A.885 or may file a complaint
with the Commissioner of the Bureau of Labor and Industries in the manner
provided by ORS 659A.820 unless a remedy is
provided under ORS 657B.410 or applicable
administrative rules.
Statutory/Other Authority: ORS
657B.340
Statutes/Other Implemented: ORS
657B.060, 675B.070 & Chapter
203, Oregon Laws 2023
