ORS 653.606: Employee count; paid and unpaid sick time; rules; accrual, use and carryover amounts.

(1)(a) Employers that employ at least 10 employees working anywhere in this state shall implement a sick time policy that allows an employee to accrue at least one hour of paid sick time for every 30 hours the employee works or 1-1/3 hours for every 40 hours the employee works. Employers may limit the number of hours of paid sick time that employees may accrue to 40 hours per year. (b) Employers that employ fewer than 10 employees working anywhere in this state shall implement a sick time policy that allows an employee to accrue at least one hour of unpaid sick time for every 30 hours the employee works or 1-1/3 hours for every 40 hours the employee works. Employers may limit the number of hours of unpaid sick time that employees may accrue to 40 hours per year. (c) Employers that employ at least 10 employees working anywhere in this state and front-load for employees at least 40 hours of paid sick time or paid time off at the beginning of each year used to calculate the accrual and usage of sick time or time off need not comply with subsections (1)(a) and (3) of this section. (d) Employers that employ fewer than 10 employees working anywhere in this state and front-load for employees at least 40 hours of unpaid sick time or unpaid time off at the beginning of each year used to calculate the accrual and usage of sick time or time off need not comply with subsections (1)(b) and (3) of this section. (2)(a) The number of employees employed by an employer shall be ascertained by determining that the per-day average number of employees is 10 or greater for each of 20 workweeks in the calendar year or the fiscal year of the employer immediately preceding the year in which the leave is to be taken. (b) If the business of the employer was not in existence for the entire year preceding the determination made under paragraph (a) of this subsection, the number of employees shall be based on any 20 workweeks preceding the request for sick time, which may include workweeks in the current year, the preceding year or a combination of workweeks in the current year and the preceding year. (c) As used in this subsection, “employee” does not include an individual or the parent, spouse or child of an individual who is: (A) A director of a corporation who has a substantial ownership interest in the corporation; (B) A member of a limited liability company who has: (i) A right to vote on or consent to any matter submitted to a vote or requiring the consent of the members of the limited liability company; and (ii) A substantial ownership interest in the limited liability company; (C) A partner of a limited liability partnership who has a substantial ownership interest in the limited liability partnership; or (D) A sole proprietor of a business. (d) As used in paragraph (c) of this subsection, “substantial ownership interest” means a percentage of ownership equal to or greater than the average percentage of ownership of all owners, but not less than 15 percent. (3) An employee shall begin to earn and accrue sick time on the first day of employment with an employer. The employee may carry over up to 40 hours of unused sick time from one year to a subsequent year. However, an employer: (a) May adopt a policy that limits an employee to accruing no more than 80 total hours of sick time; and (b) May adopt a policy that limits an employee to using no more than 40 hours of sick time in a year. (4)(a) An employer is not required to carry over unused sick time if, by mutual consent, the employer and an employee agree that: (A) If the employer has 10 or more employees working anywhere in this state, the employee will be paid for all unused paid sick time at the end of the year in which the sick time is accrued and the employer will credit the employee with an amount of paid sick time that meets the requirements of this section on the first day of the immediately subsequent year; or (B) If the employer has fewer than 10 employees working anywhere in this state, the employer will credit the employee with an amount of sick time that meets the requirements of this section on the first day of the immediately subsequent year. (b) The Commissioner of the Bureau of Labor and Industries shall adopt rules for the determination of the number of employees employed by an employer. (5)(a) An employee is eligible to use sick time beginning on the 91st calendar day of employment with the employer and may use sick time as it is accrued. (b) An employer may authorize an employee to use accrued sick time prior to the 91st calendar day of employment. (c)(A) An employer that employs 10 or more employees working anywhere in this state shall pay an employee for accrued sick time used at the regular rate of pay of the employee. (B) For an employee who is paid on a commission or piece-rate basis by an employer that employs 10 or more employees working anywhere in this state, the employer shall pay the employee for accrued sick time used at a rate equal to at least the minimum wage specified in ORS 653.025. (C) For an employee who is paid an hourly, weekly or monthly wage and is also paid on a piece-rate or commission basis by an employer that employs 10 or more employees working anywhere in this state, the employer shall pay the employee for accrued sick time used at a rate equivalent to the employee’s hourly, weekly or monthly wage or equal to the minimum wage specified in ORS 653.025, whichever is greater. (6) An employee who is exempt from overtime requirements under 29 U.S.C. 213(a)(1) of the federal Fair Labor Standards Act of 1938 is presumed to work 40 hours in each workweek for the purpose of accrual of sick time unless the actual workweek of the employee is less than 40 hours, in which case sick time accrues based on the actual workweek of the employee. (7) Nothing in ORS 653.601 to 653.661 requires an employer to compensate an employee for accrued unused sick time upon the employee’s termination, resignation, retirement or other separation from employment. (8) An employer may not require an employee to: (a) Search for or find a replacement worker as a condition of the employee’s use of accrued sick time; or (b) Work an alternate shift to make up for the use of sick time. (9) Upon mutual consent by the employee and the employer, an employee may work additional hours or shifts to compensate for hours or shifts during which the employee was absent from work without using accrued sick time for the hours or shifts missed. However, the employer may not require the employee to work additional hours or shifts authorized by this subsection. If the employee works additional hours or shifts, the employer must comply with any applicable federal, state or local laws regarding overtime pay. (10) An employee retains accrued sick time if the employer sells, transfers or otherwise assigns the business or an interest in the business to another employer. (11)(a) An employer shall restore previously accrued unused sick time to an employee who is reemployed by that employer within 180 days of separation from employment with the employer. (b) If an employee leaves employment with an employer before the 91st day of employment and subsequently is reemployed by that employer within 180 days of separation from employment, the employer shall restore the accrued sick time balance the employee had when the employee left the employment of the employer and the employee may use accrued sick time after the combined total of days of employment with the employer exceeds 90 calendar days. (12) If an employee is transferred to a separate division, entity or location of the employer but remains employed by that same employer, the employee is entitled to use all sick time accrued while working at the former division, entity or location of the employer and is entitled to retain or use all sick time as provided by ORS 653.601 to 653.661. (13) Employers located in a city with a population exceeding 500,000 shall comply with ORS 653.601 to 653.661, except that: (a) If an employer located in a city with a population exceeding 500,000 employs at least six employees working anywhere in this state, the employer shall implement a policy consistent with this section as it applies to employers with at least 10 employees working anywhere in this state. (b) If an employer located in a city with a population exceeding 500,000 employs fewer than six employees working anywhere in this state, the employer shall implement a policy consistent with this section as it applies to employers with fewer than 10 employees working anywhere in this state. [2015 c.537 §3; 2017 c.520 §2]