ACCRUAL OF SICK TIME
Q: At what rate do employees accrue sick leave? (New on 12/24/13)
A: Both paid and unpaid leave are required to accrue at a rate of 1 hour of sick leave for every 30 hours worked.
Q: When does sick time accrual start? (New on 12/24/13)
A: Sick leave accrual for all employees begins on Jan. 1, 2014 or, after that date, when an employee begins work in the City. Employees are required to immediately begin accruing sick leave, but cannot take accrued leave until after 90 days of employment with that business. In addition, an employee who has not worked 240 hours inside the city limits in a year is not eligible to use accrued sick leave.
Q: What happens once an employee has worked for an employer for 90 days? (New on 12/24/13)
A: If you have worked a minimum of 240 hours for that employer, you are then eligible to take sick leave once it is earned. See questions/answers below that describe what you can take sick leave for (qualifying absences) and how you go about notifying your employer when such a
need arises. Employers can also do better than the law requires by instituting a policy that allows employees to use sick leave sooner then the 90-day waiting period.
Q. If an employee worked 240 hours in the City during 2013, does that satisfy the 240 hour eligibility requirement? (Revised Jan. 13, 2014)
A: No. An Employee becomes eligible to use Sick Time when he or she has worked for an employer within the geographic boundaries of the City for at least 240 hours in a Year, starting in Year 2014. (Revised Jan. 13, 2014)
Q: Do employees need to work 240 hours every year to be eligible for Sick Time? (Revised Jan. 13, 2014)
A: No. Once an Employee becomes eligible to use Sick Time (Has worked 240 hours in a Year) he or she remains eligible regardless of the number of hours worked for that employer in subsequent Years. Employees do not need to reestablish eligibility in subsequent Years unless they change employers or are separated from their employer for more than six (6) months. (Also see related 90 day eligibility requirement for new employees). (Revised Jan. 13, 2014).
Q. If an employee has not met the 240 hours requirement, can they apply hours worked in one year towards meeting the criteria in the next year? (Revised Jan. 13, 2014)
A: No. While all Employees begin accruing sick time on the first day of employment in 2014, they must have worked at least 240 hours in a Year (starting Year is 2014) within the City to be eligible to use Sick Time. The Ordinance does not allow employees to combine hours from multiple years to satisfy this requirement, though an Employer may do otherwise. (Revised Jan. 13, 2014)
Q: How does the 240 hour eligibility requirement work if our business operates our payroll and benefits on a fiscal year or anniversary date of the employee instead of a Calendar Year? (New - Jan. 13, 2014)
A: If an Employer works off of a Year other than Calendar Year (Based on Contract, Anniversary date of the Employee or Fiscal Year), then the Employer will need to calculate based upon the remainder of the Year to be completed in 2014 or any type of Year that begins in 2014. For example: if the Anniversary Date of the Employee is June 30th. The employee will either need to accrue 240 hours between January 1st 2014 and June 30th, 2014 to be eligible to take sick leave earned, or if the accrual is not met, must start again on July 1st 2014, which is the beginning of the Employee’s new Year. In any case, the Employer can otherwise do better than the law by frontloading the sick leave or allowing the Employee to take earned sick time prior to them meeting the 240 hour requirement. (New - Jan. 13, 2014)
Q: What happens if an employee earns more than 40 hours in a year?
A: For a full time employee, they will earn more than 40 hours of sick time in a year based on the ordinance accrual rate of 1 hour earned for every 30 hours worked. In fact in a year that is based on 2,080 hours worked that = 69.33 hours. While the employer can provide for more, they are not required to provide more than 40 hours of sick time in a year to employees.
Q: What if an employee does not use the sick time earned in the year, can they carry it over into the next or do they need to start over? (Revised 12/24/13)
A: They do not need to start over. The ordinance requires that the employee be allowed to carryover unused time into the next year. For example if an employee earns 40 hours of sick leave in year 2014 but does not use it, they can carry it over into the next year. They can also earn 40 hours of sick time in Year 2015 and carry that over into the next year, which means they have essentially earned 80 hours of sick time and have not used any of it. However they can only use 40 hours of sick time in a given year unless otherwise allowed by the employer. (Revised 12/24/13)
Q: What if the company has 6 or more employees but only one of them works in the City on a regular basis, does the company have to implement paid sick time?
A: Yes - it doesn’t matter where your business is located or where all the employees primarily work - if you have more than 6 employees then any employees working at least 240 hours a year within the City should accrue paid sick time.
Q: Does “staffing agency” include Professional Employment Organizations (PEO) and must they comply with the law if the receiving business leases the employee. Isn’t the receiving business the business now liable for the benefits?
A: Any organization that provides staffing services must also provide temporary leased staff with access to protected sick time. Provision for payment of sick time can be arranged through the receiving company but all records of hours of employment and use of sick time must be tracked by the staffing agency as the primary employer. Therefore, the staffing agency is the liable entity to ensure adequate access to time and pay for their leased employees. For example, the 240 hours is earned through the staffing agency and the 90 day requirement is also through the staffing agency. (Revised 12/24/13)
Q: Does Paid Time Off (PTO) count as protected sick time?
A: Yes, if an employer already has a PTO policy in place that meets the minimum requirements of this policy (e.g. allows employee to take leave for qualifying absences, provides employee ability to earn 1 hour for every 30 hours worked, allows up to a minimum of 40 hours in a year and allows use even when the need for sick time is unforeseeable), then the employer is already in compliance.
Q: If an employer offers 40 hours of PTO per year, which accrues at a rate equal to or greater than the requirement of the Ordinance, and if an employee exhausts all 40 hours for non-Sick Time purposes, does that employee still accrue and retain protected sick time for purposes of carryover into the following year?
A: No – if an employer offers 40 hours of PTO in accordance with the requirements of the ordinance and for the purposes covered by protected sick time, and an employee exhausts their PTO for other purposes allowed by the employer then they employer cannot be compelled to offer additional time. However, they can give the employee access to additional time, either paid or unpaid, if they choose to do so. (Revised 12/24/13)
Q: Is “frontloading” of protected sick time or PTO allowed?
A: Yes – if an employer decides to “frontload” – or give 40 hours or protected sick time or PTO all at once at the start of the year – in lieu of having them accrue on hour for every 30 hours worked throughout the year – they are allowed to do so. The employees must have access to the frontloaded time for sick leave purposes if needed.
Q: Does unused sick leave “roll over” from year to year or pay out upon termination?
A: Up to 40 hours of unused, accrued protected sick time can roll over to a new year, but an employer is not required to allow employees to take more than 40 hours of sick time in any one year. An employer is not required to pay employees for any unused sick time upon termination, resignation, retirement, or other separation from employment.
Q: Is an employer required to pay out unused sick time at the end of each year? (New on 12/24/13)
A: No, an employer does not have to pay out unused sick leave nor is an employer who uses the standard accrual method of 1 hour earned for every 30 hours worked allowed to pay out. Only an employer that front loads employees time at the beginning of each year, may choose to “cash out” unused sick time at the end of the year, though they are not required to do so.
Q: If an employee uses PTO or protected sick time for a qualifying reason on a day when the employee was not scheduled to work in Portland, is that usage counted against Portland’s Protected Sick Time requirements?
A: No, An employer is not required to allow use of protected sick time for work hours scheduled outside the City of Portland. Conversely, if the employer allows use of sick time (or PTO) for work hours scheduled outside the City, it should also not count against time accrued under the Ordinance for work conducted or leave taken inside the City. (Revised 12/24/13)
Q: Our union employees have “vacation pay”, which is money that is either deposited into their Vacation Pay Account or paid into their paycheck, per their election. Is this in compliance with the protected sick time rules?
A: Most likely. If the employees are represented by a collective bargaining agreement in the building and construction trades, this type of benefit is expressly defined as PTO in the Ordinance. However, vacation pay needs to accrue at a rate consistent with sick leave accrual rates at 1 hour sick time for every 30 hours worked up to a minimum of 40 hours allowed to be earned in a year. (Revised 12/24/13)
For Example: If an employee earns $20/hour then they should have $20 of pay contributed to their vacation pay account for every 30 hours they work. Or 1/30th of that amount for each hour they work ($0.66/hour) for up to 40 hours through the course of the year. To determine the hourly contribution necessary under the ordinance, take the base wage and divide by 30. The result is the minimum hourly contribution required by the ordinance ($20/30 = minimum hourly contribution) If the amount that goes into the account is as good as or better than this ratio then no changes are needed. If it does not meet this contribution rate then a correction to the agreement to reach that amount would be necessary.
Q: What happens when an employer has employees who work in Portland and other cities?
A: The law only covers employees who work 240 hours or more in the City of Portland. For those employees, only their hours spent working in Portland must be counted toward their accrued sick time. Additional hours spent working outside of Portland are not required to trigger sick leave accrual (but of course an employer can choose to include those non-Portland hours; the law is simply a minimum floor).
Q: What if the company has 6 employees but only one of them works in the City on a regular basis, does the company have to pay paid sick time.
A: Yes, it doesn’t matter where your business is located, if the employee works in the City then the employee can earn sick time for hours worked in the City. In this case the employee earns paid sick time because the business has 6 or more employees.