L&E Alert: Portland City Council Passes Mandatory Sick Leave Ordinance

Portland City Council Passes Mandatory Paid Sick Leave Ordinance

The Portland City Council, led by City Commissioner Amanda Fritz, just passed a paid sick leave ordinance. The new ordinance will take effect on January 1, 2014.

The ordinance mandates employers to offer one hour sick leave for every 30 hours an employee works within Portland city limits — up to 40 hours per year. The leave must be paid for businesses with more than six employees and would apply to any employee working more than 240 hours per year in the City of Portland. Businesses with fewer than six employees will be required to provide the same leave, albeit unpaid.

Portland employers who already offer paid sick leave or paid time off will still need to review (and may need to revise) their policies to ensure compliance with this new law.

The ordinance allows employees to use leave for situations that go beyond ordinary “sick leave.” Employees may use the leave for the following purposes:

• The diagnosis, care, or treatment of the employee or the employee’s family member’s mental or physical illness, injury, or health condition

• To deal with the consequences of domestic abuse, sexual assault, or stalking

• If a place of business, or a child’s school or daycare, is closed for a public health emergency

Sick leave begins accruing immediately upon hire, but may not be used in the first 90 days of employment, unless the employer’s policies otherwise allow for earlier use, and may not be used during times when the employee is not scheduled to work in the City of Portland.

This new law presents numerous administrative and practical burdens for employers, along with new liabilities for unlawful employment practices. These include:

• Stringent recordkeeping requirements − employers in Portland (and those outside of Portland who have any employees working in the city limits for any number of hours) must track all hours worked
by employees within the city limits in order to calculate sick leave entitlements. Employers must retain these records for at least two years and allow access to the records by BOLI.

• Employers cannot require a sick employee to search for, or find a replacement worker, when the employee uses sick time.

• An employer cannot require a doctor’s note unless an employee has been absent for more than three consecutive days, unless the employer suspects sick leave abuse. If a doctor’s note is requested to verify
that use of sick time is for an approved purpose (and not because of suspected sick leave abuse), the employer must pay for the cost of any verification that is not covered by insurance.

• The ordinance creates a new protected class of employees − any employee using, or attempting to use, sick leave. Interference with an employee’s right to take sick leave, retaliation, and discrimination are prohibited. The ordinance states that violations of the new sick leave law create a private right of action for employees to sue employers in State court, with the same remedies available under existing civil rights and employment non-discrimination laws.

• Employers must post notice of employee rights under the proposal.The city will be preparing a template. It is unclear whether employers outside of Portland–but with some employees working inside the city limits–would be required to post such notice.

The administrative rules governing implementation of the sick leave code must be adopted before August 31, 2013.

We will be actively monitoring this new law, including the publication of proposed administrative rules. Employers who have questions or concerns, or who need assistance in reviewing their current sick leave policies, are encouraged to contact one of our Labor & Employment attorneys.

Nothing in this communication creates or is intended to create an attorney-client relationship with you, constitutes the provision of legal advice, or creates any legal duty to you. If you are seeking legal advice, you should first contact a member of the Labor and Employment Team with the understanding that any attorney-client relationship would be subsequently established by a specific written agreement with Harrang Long Gary Rudnick P.C. To maintain confidentiality, you should not forward any unsolicited information you deem to be confidential until after an attorney- client relationship has been established.

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