74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 2181
House Bill 2575
Sponsored by Representative ROSENBAUM; Representatives
DINGFELDER, GELSER, SHIELDS, TOMEI
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Creates Family Leave Benefits Insurance program to provide
benefits to employees taking family leave. Establishes Family
Leave Benefits Insurance Account. Requires employees to pay
premiums withheld from earnings into account. Continuously
appropriates moneys in account to Bureau of Labor and Industries
and requires bureau to administer claims for benefits.
Establishes qualifications for benefits. Creates unlawful
employment practice.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to family leave benefits insurance; appropriating money;
and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Sections 1 to 4 of this 2007 Act may be cited
as the Family Leave Benefits Insurance Act. + }
SECTION 2. { + (1) The Legislative Assembly finds that:
(a) Although family leave laws have assisted employees to
balance the demands of the workplace with their family
responsibilities, more needs to be done to achieve the goals of
workforce stability and economic security.
(b) Many employees do not have access to family leave, and
those who do may not be in a financial position to take leave
that is unpaid.
(c) Employer-paid benefits meet only a small part of this need.
(d) The establishment of paid family leave benefits will reduce
the impact on state income support programs by increasing the
ability of workers to recover from illness or provide caregiving
services for family members while maintaining employment.
(2) Sections 1 to 4 of this 2007 Act are enacted to allow an
employee:
(a) To care for an infant or newly adopted child under 18 years
of age, or for a newly placed foster child under 18 years of age,
or for an adopted or foster child older than 18 years of age if
the child is incapable of self-care because of a mental or
physical disability.
(b) To care for a family member with a serious health
condition.
(c) To recover from or seek treatment for a serious health
condition that renders the employee unable to perform at least
one of the essential functions of the employee's regular
position.
(d) To care for a child of the employee who is suffering from
an illness, injury or condition that is not a serious health
condition but that requires home care. + }
SECTION 3. { + (1) As used in this section:
(a) 'Application year' means the 12-month period beginning on
the first day of the calendar week in which an employee files an
application for family leave benefits and, thereafter, the
12-month period beginning with the first day of the calendar week
in which the employee files a subsequent application for family
leave benefits after the expiration of the employee's last
preceding application year.
(b) 'Employer' means a covered employer as defined in ORS
659A.150.
(c) 'Family leave' means a leave of absence described in ORS
659A.159.
(d) 'Family member' has the meaning given that term in ORS
659A.150.
(e) 'Health care provider' has the meaning given that term in
ORS 659A.150.
(f) 'Premium' means the payments required by subsection (10) of
this section to be made to the Bureau of Labor and Industries for
the Family Leave Benefits Insurance Account.
(g) 'Qualifying year' means the first four of the last five
completed calendar quarters or the last four completed calendar
quarters immediately preceding the first day of the employee's
application year.
(h) 'Serious health condition' has the meaning given that term
in ORS 659A.150.
(2)(a) The Bureau of Labor and Industries shall administer a
Family Leave Benefits Insurance Account and establish procedures
and forms for filing benefit claims. The bureau shall notify the
employer within two business days of a claim being filed.
(b) The bureau may require that a claim for benefits under this
section be supported by a certification issued by a health care
provider who is providing care to the employee or the employee's
family member, as applicable.
(c) Information contained in the files and records pertaining
to an employee under this section is confidential and not open to
public inspection, other than to public employees in the
performance of their official duties. However, the employee or an
authorized representative of an employee may review the records
or receive specific information from the records on the
presentation of the signed authorization of the employee. An
employer or the employer's duly authorized representative may
review the records of an employee in connection with a pending
claim. At the bureau's discretion, other persons may review
records when those persons are rendering assistance to the bureau
at any stage of the proceedings on any matter pertaining to the
administration of this section.
(3) Family leave benefits are payable to an employee during a
period in which the employee is on unpaid family leave if the
employee does all of the following:
(a) Files a claim for benefits as required by rules adopted by
the bureau.
(b) Establishes the employee's eligibility to take family leave
under ORS 659A.156.
(c) Establishes an application year. An application year may
not be established if the qualifying year includes hours worked
before establishment of a previous application year.
(d) Documents that the employee has notified the employer as
provided in ORS 659A.165.
(4)(a) An employee is disqualified from family leave insurance
benefits beginning with the first day of the calendar week in
which the employee files an application for family leave
benefits, and continuing for the next 52 consecutive weeks, if
the employee:
(A) Willfully makes a false statement or misrepresentation
regarding a material fact, or willfully fails to report a
material fact, to obtain benefits under this section; or
(B) Seeks benefits based on a willful and intentional
self-inflicted serious health condition or a serious health
condition resulting from the employee's perpetration of a felony.
(b) Benefits are not payable for any week in which compensation
is payable to the employee under ORS chapter 656 or other federal
or state workers' compensation program.
(c) An employee is not disqualified for benefits for any week
when there is a strike or lockout at the factory, establishment
or other premises at which the employee is or was last employed.
(5)(a) In an application year, family leave benefits are
payable for a maximum of six weeks.
(b) The first payment of benefits shall be made to an employee
within two weeks after the claim is filed or the family leave
began, whichever is later. Subsequent payments shall be made
twice a month thereafter.
(c) Family leave benefits shall be paid as follows:
(A) For family leave beginning before July 1, 2009, benefits
shall be $__ per week for an employee who at the time family
leave began was regularly working 40 hours or more per week, or a
prorated amount based on the weekly hours regularly worked for an
employee regularly working less than 40 hours per week.
(B) On or before June 30, 2010, and on or before each
subsequent June 30, the bureau shall calculate to the nearest
dollar an adjusted maximum benefit to account for inflation using
the Consumer Price Index for Urban Wage Earners and Clerical
Workers (CPI-W) as prepared by the Bureau of Labor Statistics of
the United States Department of Labor or its successor during the
preceding 12-month period. The adjusted maximum benefit takes
effect for family leave that begins after June 30 of the relevant
year.
(C) If an employee was regularly working 40 hours or more a
week at the beginning of family leave, and during family leave is
working less than 40 hours but at least eight hours a week, the
employee's weekly payment shall be 0.025 times the maximum
benefit times the number of hours of family leave taken in the
week. Benefits are not payable for less than eight hours of
family leave taken in a week.
(D) If an employee elects to have federal income tax deducted
and withheld from benefits, the Bureau of Labor and Industries
shall deduct and withhold the amount specified in the federal
Internal Revenue Code.
(d) If family leave benefits are paid erroneously or as a
result of fraud, or if a claim for benefits is rejected after
benefits are paid, the bureau shall seek repayment of benefits
from the recipient.
(e) If an employee dies before receiving payment of benefits,
the payment shall be made by the bureau to the surviving spouse
or to the child or children if there is no surviving spouse. If
there is no surviving spouse and no child or children, the
payment shall be made and distributed consistent with the terms
of the decedent's will or, if the decedent dies intestate,
consistent with the provisions of ORS chapter 112.
(6)(a) This section may not be construed to limit an employee's
right to take leave from employment under other laws or employer
policy.
(b) If an employer provides paid family leave or an employee is
covered by disability insurance, the employee may elect whether
first to use the paid family leave or to receive temporary
disability benefits. An employee may not be required to use paid
family leave to which the employee is entitled before receiving
benefits under this section.
(c) An employee who has received benefits under this section
may not lose any other employment benefits, including seniority
or pension rights accrued, before the date that family leave
commenced. However, this section does not entitle an employee to
accrue employment benefits during a period of family leave or to
a right, benefit or position of employment other than a right,
benefit or position to which the employee would have been
entitled had the employee not taken family leave.
(d) This section may not be construed to diminish an employer's
obligation to comply with a collective bargaining agreement or an
employment benefits program or plan that provides greater
benefits to employees than the benefits provided under this
section.
(e) An agreement by an employee to waive the employee's rights
under this section is void as contrary to public policy. The
benefits under this section may not be diminished by a collective
bargaining agreement or another employment benefits program or
plan entered into or renewed after the effective date of this
section.
(7)(a) An employer of employees not covered by this section or
a self-employed person may elect coverage under the Family Leave
Benefits Insurance program for an initial period of not less than
three years or a subsequent period of not less than one year
immediately following another period of coverage. The employer or
self-employed person must file a notice of election in writing
with the bureau. The election becomes effective on the date of
filing the notice.
(b) An employer or self-employed person who has elected
coverage may withdraw from coverage within 30 days after the end
of the three-year period of coverage, or at such other times as
the bureau may prescribe by rule, by filing written notice with
the bureau. The withdrawal shall take effect no sooner than 30
days after the filing of the notice.
(c) The bureau may cancel elective coverage if the employer or
self-employed person fails to remit required premiums or reports.
The bureau may collect due and unpaid premiums and may levy an
additional premium for the remainder of the period of coverage.
The cancellation shall be effective no later than 30 days from
the date of issuance of the notice in writing advising the
employer or self-employed person of the cancellation.
(8)(a) The bureau shall specify the forms and times for
employers to provide reports, furnish information and remit
premiums. If the employer is a temporary employment agency that
provides employees on a temporary basis to its customers, the
temporary employment agency is considered the employer for
purposes of this section. However, if the temporary employment
agency fails to remit the required premiums, the customer to whom
the employees were provided is liable for paying the premiums.
(b) An employer must keep at its place of business records of
employment from which the information needed by the bureau for
purposes of this section may be obtained. The records shall at
all times be open to the inspection of the bureau pursuant to
rules adopted by the bureau.
(c) Information obtained from employer records under this
section is confidential and not open to public inspection, other
than to public employees in the performance of their official
duties. However, an interested party shall be supplied with
information from employer records to the extent necessary for the
proper presentation of the case in question. An employer may
authorize inspection of the employer's records by written
consent.
(9)(a) When an employer quits business or sells out, exchanges
or otherwise disposes of the business or stock of goods, any
premium payable under this section is immediately due and
payable, and the employer shall, within 10 days thereafter, pay
the premium due. Any person who becomes a successor to the
business is liable for the full amount of the premium and shall
withhold from the purchase price a sum sufficient to pay any
premium due from the employer until the employer produces a
receipt from the bureau showing payment in full of any premium
due or a certificate that no premium is due. If the premium is
not paid by the employer within 10 days from the date of the
sale, exchange or disposal, the successor is liable for the
payment of the full amount of premium. The successor's payment of
the premium is, to the extent of the payment, a payment upon the
purchase price, and if the payment is greater in amount than the
purchase price, the amount of the difference is a debt due the
successor from the employer.
(b) A successor is not liable for any premium due from the
person from whom the successor has acquired a business or stock
of goods if the successor gives written notice to the bureau of
the acquisition and no assessment is issued by the bureau within
180 days of receipt of the notice against the former operator of
the business.
(10)(a) Each employer shall withhold from the earnings of each
employee a premium of one cent per hour worked up to a maximum of
40 hours per week. The employer shall pay to the bureau the
moneys withheld, in the manner and at such intervals as the
bureau directs for deposit in the Family Leave Benefits Insurance
Account established under section 4 of this 2007 Act.
(b) The bureau shall adjust the amount of the premium from time
to time to ensure that the amount is the lowest rate necessary to
pay family leave benefits and administrative costs and maintain
actuarial solvency in accordance with recognized insurance
principles.
(c) The bureau may adopt rules to permit an employee who has
multiple employers and the employee's employers to petition for
refunds or credits of amounts paid to the bureau for hours the
employee worked that are in excess of 40 hours per week.
(11) The bureau shall advise an employee filing a new claim for
family leave benefits, at the time of filing the claim, that:
(a) Benefits are subject to federal income tax;
(b) Requirements exist pertaining to estimated tax payments;
(c) The employee may elect to have federal income tax deducted
and withheld from the employee's payment of benefits at the
amount specified in the Internal Revenue Code; and
(d) The employee is permitted to change a previously elected
withholding status.
(12) It is an unlawful employment practice for an employer,
temporary employment agency, employment agency, employee
organization or other person to discharge, expel or otherwise
discriminate against a person because the person has filed or
communicated to the employer an intent to file a claim, a
complaint or an appeal or has testified or is about to testify or
has assisted in any proceeding under this section.
(13)(a) Family leave benefits are payable under this section
only to the extent that moneys are available in the Family Leave
Benefits Insurance Account for that purpose. Neither the state
nor the bureau is liable for any amount in excess of this limit.
(b) This section does not create a continuing entitlement or
contractual right.
(14) The bureau may adopt rules as necessary to implement this
section. In adopting rules, the bureau shall maintain consistency
with the rules adopted to implement ORS 659A.150 to 659A.186, to
the extent those rules are not in conflict with this section. + }
SECTION 4. { + The Family Leave Benefits Insurance Account is
established in the State Treasury, separate and distinct from the
General Fund. Interest earned by the account shall be credited to
the account. All moneys from premiums received by the Bureau of
Labor and Industries shall be credited to the account. Moneys in
the account are continuously appropriated to the bureau for the
purposes authorized by section 3 of this 2007 Act. + }
SECTION 5. { + Sections 1 to 4 of this 2007 Act are added to
and made a part of ORS chapter 659A. + }
SECTION 6. { + Notwithstanding section 3 of this 2007 Act:
(1) Employers shall first withhold premiums from employees'
earnings for hours worked on and after January 1, 2008.
(2) Employees may first file claims for benefits under section
3 of this 2007 Act on or after July 1, 2008, for family leave
taken on or after July 1, 2008. + }
SECTION 7. { + This 2007 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2007 Act takes effect on its
passage. + }
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