Final Regulations Clarify And Expand Portland Sick Leave Law Requirements

Beginning January 1, 2014, private-sector employers doing business in Portland that have six or more employees will be required to provide employees with a minimum of one hour of paid sick leave for every 30 hours of work performed by the employee. Employers doing business in Portland that have five or fewer employees will be required to provide unpaid sick leave for every 30 hours of work performed by the employee.

The paid sick leave ordinance, unanimously passed by the Portland City Council in March 2013,1 directed the City Attorney to draft rules and procedures to implement the law. Regulations proposed by the City Attorney have now been adopted. In many instances the regulatory requirements mirror those contained in the ordinance. However, there are also regulations that clarify and expand ordinance requirements. Below we summarize the ordinance and the new regulations.

Covered Employees

A covered employee is an individual who works at least 240 hours in a calendar year in Portland and who is either an employee under state wage payment or minimum wage and overtime laws, an individual working as a condition of receiving public assistance, or a home care worker, as defined by state law. The regulations clarify that eligible employees may use accrued sick time on the 90th calendar day after employment began, if they have worked at least 240 hours for the employer.

Employment Situations

Generally, an employee who performs work in Portland is covered. Notably, employees who travel to Portland and make a stop as a purpose of conducting their work (e.g., to make pickups, deliveries, or sales calls) are covered for all hours worked in Portland. Employees who perform work for an employer by physically working in Portland via telecommuting are covered for hours that they telecommute in Portland. Temporary workers are covered if they perform work in Portland. However, temporary workers supplied by a staffing agency or similar entity are considered the agency's employees for purposes of the ordinance.

Employees who perform work outside Portland, even if the employer is Portland-based, are not covered for hours worked outside Portland. Additionally, employees who travel through Portland but do not stop in the city as a purpose of their work are not covered for the time spent traveling through Portland. Employees who travel through Portland and only make incidental stops (e.g. purchasing gas, eating a meal, or changing a flat tire) are not considered to be making a stop as a purpose of their work.

Accrual of Sick Time

Employees begin accruing sick time when the law takes effect on January 1, 2014. For businesses that exist when the law takes effect, the regulations clarify that accrual begins regardless of whether an employee has worked 240 hours. Regardless of whether an employee accrues unpaid or paid sick time, the accrual rate under the ordinance is the same - one hour for every 30 hours worked. The regulations provide that not only are an employee's regular work hours counted for accrual purposes, overtime hours are included in hours worked for employees covered by the federal Fair Labor Standards Act (FLSA) and/or state wage and hour law.

Paid or Unpaid Leave Depends on the Number of Employees

As noted above, some employees may be...