OAR 471-070-2205: Equivalent Plans: Declaration of Intent to Obtain Approval of Equivalent Plan

(1) Approved equivalent plans become effective on September 3, 2023, at the same time Paid Leave Oregon benefits may first be paid to eligible employees. However, the department is accepting equivalent plan applications beginning September 6, 2022. (2) No later than May 31, 2023, an employer who wishes to provide an equivalent plan with an effective date of September 3, 2023 must submit to the department an equivalent plan application that meets the requirements of OAR 471-070-2210. (3) Equivalent plan application: (a)To be exempt from paying required quarterly contribution payments to the Paid Leave Oregon program in accordance with ORS 657B.150 and OAR 471-070-3030(6), an employer that is going to provide its employees with an equivalent plan as of September 3, 2023, must receive approval of an equivalent plan application. The equivalent plan application must be submitted to the department by the following dates: (A) By November 30, 2022, to be exempt from paying and remitting the contribution payments beginning with the first quarter that starts January 1, 2023. (B) By February 28, 2023, to be exempt from paying and remitting contribution payments beginning with the second quarter that starts April 1, 2023. (C) By May 31, 2023, to be exempt from paying and remitting contribution payments beginning with the third quarter that starts July 1, 2023. (b) For equivalent plan applications submitted on or after June 1, 2023 and before July 1, 2023, the equivalent plan application, if approved by the department, will be exempt from paying and remitting contribution payments beginning with the fourth quarter that starts October 1, 2023. (c) For equivalent plan applications submitted on or after July 1, 2023, the equivalent plan application must follow OAR 471-070-2210, and the employer is liable for all contributions required to be paid or remitted in accordance with ORS 657B.150 prior to the effective date of the equivalent plan. (4) Declaration of Intent: (a) If an employer is unable to submit an equivalent plan application by the dates described in section (3)(a) of this rule, the department is allowing an interim solution under which the employer may submit a signed and certified Declaration of Intent acknowledging and agreeing to the following conditions: (A) Beginning January 1, 2023, and continuing until the department has approved the equivalent plan application, notwithstanding OAR 471-070-3040, the employer shall: (i) Deduct employee contributions from the subject wages of each employee in an amount that is equal to 60 percent of the total contribution rate determined in OAR 471-070-3010; or (ii) If the employer is making the employee contributions in part or in full on the employee’s behalf, place in trust for the State of Oregon an amount that is equal to 60 percent of the total contribution rate determined in OAR 471-070-3010. (B) The employer shall hold any moneys collected or to be contributed on behalf of the employee under this section in trust for the State of Oregon but will not be required to pay employer contributions or remit the withheld employee contributions to the department, unless the department does not receive an equivalent plan application as described in section (3) of this rule or the Declaration of Intent is cancelled as described in this subsection and sections (5) and (6) of this rule. If the equivalent plan application as described in section (3) of this rule is approved by the department, the money collected from the employees may either be returned to the employees or be used for administrative costs as defined in OAR 471-070-2200 and benefits under an approved equivalent plan and cannot be considered part of an employer’s assets for any purpose. (C) The employer must submit the Declaration of Intent to the department no later than November 30, 2022 to be exempt from paying and remitting contribution payments beginning with the first quarter that starts January 1, 2023. (D) The employer must submit an equivalent plan application no later than the May 31, 2023, deadline as described in section (3) of this rule. (b) If an equivalent plan application is not received by the department by May 31, 2023, the Declaration of Intent is cancelled and no longer effective. The employer is then liable for paying and remitting an amount equal to the sum of all unpaid employer contributions that were held in trust for the State of Oregon and all unpaid employee contributions due for periods beginning on or after January 1, 2023, and is subject to penalties and interest as described in section (6) of this rule. (5) An employer that submitted an equivalent plan application or a Declaration of Intent as described in sections (3) and (4) of this rule, may cancel the request for approval or the Declaration of Intent by contacting the department. The employer is then liable for paying and remitting an amount equal to the sum of all unpaid employer and employee contribution payments due for periods beginning on or after January 1, 2023 and is subject to penalties and interest as described in section (7) of this rule. (6) The department may cancel the approval of an equivalent plan or Declaration of Intent prior to September 3, 2023, for reasons that include, but are not limited to: (a) Misuse of employee contributions withheld or retained by the employer; (b) Failure to adhere to applicable Paid Leave Oregon program requirements, including but not limited to OAR 471-070-2220; (c) Withheld employee contributions that were greater than the employee contributions that would have been charged to the employees under ORS 657B.150; (d) Failure to respond timely to the department’s reasonable inquires for information about the equivalent plan or Declaration of Intent; or (e) Failure to submit an equivalent plan application or receive approval of the application by the department as described in section (3) of this rule. (7)(a) As of the date the equivalent plan approval or the Declaration of Intent is canceled or denied, the employer must pay and remit immediately to the department all unpaid contributions due for periods beginning on or after January 1, 2023, and is subject to penalties and interest in accordance with ORS 657B.320 and related administrative rules. (b) An employer that is required to pay or remit contributions, penalties, and interests, in accordance with this section or sections (4), (5), or (6) of this rule may remit employee contributions previously withheld, that were held in trust for the payment of employee contributions due, but the employer is prohibited from withholding additional contributions from employees retroactively to pay any other amounts due. Employee contributions may not be used to pay penalties and interest imposed on the employer. (8) An employer that has received approval of an equivalent plan application by one of the deadlines in section (3) of this rule may withhold employee contributions in accordance with ORS 657B.210 beginning January 1, 2023, but the employer will not be required to pay employer contributions or remit employee contributions in accordance with ORS 657B.150, unless the equivalent plan application approval is subsequently canceled as described in sections (5) and (6) of this rule. (9) Section (3) of this rule is in effect until September 3, 2023. [Publications: Contact the Oregon Employment Department for information about how to obtain a copy of the publication referred to or incorporated by reference in this rule.]