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
 
                           A-Engrossed
 
                         House Bill 2575
                   Ordered by the House May 3
             Including House Amendments dated May 3
 
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.
 
  Creates Family Leave Benefits Insurance program to provide
benefits to employees taking family leave. Establishes Family
Leave Benefits Insurance Account. Requires employers to pay
premiums withheld from employee 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.  { + Authorizes bureau to assess
civil penalties against employers for failure to comply with
withholding requirements.
  Establishes procedures and requirements for filing reports with
Department of Revenue. + }
  Declares emergency, effective on passage.
 
                        A BILL FOR AN ACT
Relating to family leave benefits insurance; creating new
  provisions; amending ORS 316.168 and 316.171; appropriating
  money; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + Sections 1 to 5 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 5 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 (9) of
this section to be made 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 five 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, 2010, benefits
shall be $250 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, 2011, 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 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) Every employer required to pay premiums under this
section shall make and file a report of employee hours worked and
amounts due under this section upon a combined report form
prescribed by the Department of Revenue. 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. The
report shall be filed with the Department of Revenue:
  (A) At the times and in the manner prescribed in ORS 316.168
and 316.171; or
  (B) Annually as required or allowed pursuant to ORS 316.197 or
657.571.
  (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.
  (8)(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
one year after receipt of the notice against the former operator
of the business.
  (9) Each employer shall withhold from the post-tax earnings of
each employee a premium of one cent per hour worked. The employer
shall pay the withheld amounts with the report required by
subsection (7)(a) of this section. All withheld amounts paid by
employers under this subsection shall be deposited in the Family
Leave Benefits Insurance Account established under section 4 of
this 2007 Act.
  (10) The bureau shall provide a tax form to each employee who
has received family leave benefits for the employee's use in
paying federal income tax on the benefits and 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; and
  (b) Requirements exist pertaining to estimated tax payments.
  (11) 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.
  (12)(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.
  (13) 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.
  (14) The bureau may assess a civil penalty not to exceed $5,000
against an employer that:
  (a) Fails to withhold premiums or fails to pay when due the
moneys withheld under this section; or
  (b) Fails to comply with this section or rules adopted under
this section relating to reports or other requirements necessary
to carry out the purposes of this section.
  (15) All civil penalties collected under this section shall be
applied first towards reimbursement of the costs incurred in
investigating violations, conducting hearings and assessing and
collecting penalties. All remaining amounts shall be paid into
the State Treasury and credited to the Family Leave Benefits
Insurance Account established under section 4 of this 2007
Act. + }
  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 Department
of Revenue 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.  { + (1) An employer that is not subject to section
3 of this 2007 Act or a self-employed person may elect to provide
benefits to the employer's employees or to the self-employed
person under section 3 of this 2007 Act for an initial coverage
period of not less than three years and subsequent coverage
periods of not less than one year. The employer or self-employed
person must file a written notice of election with the Bureau of
Labor and Industries. The election becomes effective on the date
the notice is filed.
  (2) An employer or self-employed person who makes an election
under this section may withdraw the election not more than 30
days after the end of the initial three-year coverage period, or
at such other times as the bureau by rule may prescribe. An
election to withdraw must be made by written notice to the bureau
and takes effect no sooner than 30 days after the filing of the
notice.
  (3) The bureau may cancel an election under this section if the
employer or self-employed person fails to remit required premiums
or reports. The bureau may collect unpaid premiums and may levy
an additional premium for the remainder of the coverage period. A
cancellation under this subsection becomes effective 30 days
after the issuance of a written notice of the cancellation to the
employer or self-employed person or such earlier time as
specified in the notice. + }
  SECTION 6.  { + Section 5 of this 2007 Act becomes operative on
July 1, 2010. + }
  SECTION 7.  { + Sections 1 to 5 of this 2007 Act are added to
and made a part of ORS chapter 659A. + }
  SECTION 8.  { + Notwithstanding section 3 of this 2007 Act:
  (1) Employers shall first withhold premiums from employees'
earnings for hours worked on and after January 1, 2009.
  (2) Employees may first file claims for benefits under section
3 of this 2007 Act on or after July 1, 2009, for family leave
taken on or after July 1, 2009. + }
  SECTION 9. ORS 316.168 is amended to read:
  316.168. (1) Except as otherwise provided by law, every
employer subject to the provisions of ORS 316.162 to 316.221
 { - , - }  { +  or + } 656.506  { + or sections 1 to 5 of this
2007 Act  + }  { - and - }  { +  or + } ORS chapter 657, or a
payroll-based tax imposed by a mass transit district and
administered by the Department of Revenue under ORS 305.620,
shall make and file a combined quarterly tax and assessment
report upon a form prescribed by the department.
  (2) The report shall be filed with the Department of Revenue on
or before the last day of the month following the quarter to
which the report relates and shall be deemed received on the date
of mailing, as provided in ORS 305.820.
  (a) The report shall be accompanied by payment of any tax or
assessment due and a combined tax and assessment payment coupon
prescribed by the department. The employer shall indicate on the
coupon the amount of the total payment and the portions of the
payment to be paid to each of the tax or assessment programs.
  (b) The Department of Revenue shall credit the payment to the
tax or assessment programs in the amounts indicated by the
employer on the coupon and shall promptly remit the payments to
the appropriate taxing or assessing body.
  (c) If the employer fails to allocate the payment on the
coupon, the department shall allocate the payment to the proper
tax or assessment programs on the basis of the percentage the
payment bears to the total amount due.
  (d) The Department of Revenue shall distribute copies of the
combined quarterly tax and assessment report and the necessary
tax or assessment payment information to each of the agencies
charged with the administration of a tax or assessment covered by
the report.
  (e) The Department of Revenue, the Employment Department and
the Department of Consumer and Business Services shall develop a
system of account numbers and assign to each employer a single
account number representing all of the tax and assessment
programs included in the combined quarterly tax and assessment
report.
  SECTION 10. ORS 316.171 is amended to read:
  316.171. Except as provided in this section and ORS 314.840,
316.168, 316.197, 316.202 and 657.571 { +  and sections 1 to 5 of
this 2007 Act + }, the statutes and regulations applicable to
each agency, requiring a report and imposing a tax, shall govern
the audit and examination of reports and returns, determination
of deficiencies, assessments, claims for refund, penalties,
interest, administrative and judicial appeals and the procedures
relating thereto.
  SECTION 11.  { + 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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