Oregon Bureau of Labor and Industries

Rule Rule 839-007-0000

As used in ORS 653.601 (Definitions for ORS 653.601 to 653.661) to 653.661 (Preemption) and these rules:


“City with a population exceeding 500,000” means a city with a population exceeding 500,000 located within the state of Oregon.


“Family member” means an employee’s spouse, same-gender domestic partner, custodial parent, non-custodial parent, adoptive parent, foster parent, biological parent, stepparent, parent-in-law, a parent of an employee’s same-gender domestic partner, an employee’s grandparent or grandchild, or a person with whom the employee is or was in a relationship of in loco parentis. “Family member” also includes the biological, adopted, foster child or stepchild of an employee or the child of an employee’s same-gender domestic partner. An employee’s child in any of these categories may be either a minor or an adult at the time qualifying leave pursuant to these rules is taken.


“Health care provider” means:


A person who is primarily responsible for providing health care to an eligible employee or a family member of an eligible employee, who is performing within the scope of the person’s professional license or certificate and who is:


A physician licensed under ORS chapter 677;


A dentist licensed under ORS 679.090 (Issuance of license);


A psychologist licensed under ORS 675.030 (Licensing of psychologists after examination);


An optometrist licensed under ORS 683.070 (Issuance of certificates of licensure);


A naturopath licensed under ORS 685.080 (Examination and reexamination of applicants);


A registered nurse licensed under ORS 678.050 (Examining applicants);


A nurse practitioner certified under ORS 678.375 (Nurse practitioners);


A direct entry midwife licensed under ORS 687.420 (Standards for licensing);


A licensed registered nurse who is certified by the Oregon State Board of Nursing as a nurse midwife nurse practitioner;


A regulated social worker authorized to practice regulated social work under ORS 675.510 (Definitions for ORS 675.510 to 675.600) to 675.600 (Duties of board);


A chiropractic physician licensed under ORS 684.054 (Issuing license), but only to the extent the chiropractic physician provides treatment consisting of manual manipulation of the spine to correct a subluxation demonstrated to exist by X-rays; or


A physician’s assistant licensed under ORS 677.512 (Licensure).


A person who is primarily responsible for the treatment of an eligible employee or a family member of an eligible employee solely through spiritual means, including but not limited to a Christian Science practitioner.


“Hours worked” means all hours for which an employee is employed by and required to give to the employer and includes all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed work place and all time the employee is suffered or permitted to work. “Hours worked” includes “work time” as defined in ORS 653.010 (Definitions for ORS 653.010 to 653.261)(11) as well as overtime hours worked.


“Regular rate of pay” means the regular hourly rate that an employee earns for the workweek in which the employee uses paid sick time and which is no less than the applicable statutory minimum wage rate. An employer must apply a consistent methodology when calculating the regular rates of pay to similarly situated employees. An employee’s regular rate of pay shall be determined as follows:


For employees paid on the basis of a single hourly rate, the regular rate of pay means the same hourly rate the employee would have earned for the period of time in which sick time is used.


For employees who are paid multiple hourly rates of pay, the regular rate of pay means either:


The wages the employee would have been paid, if known, for the period of time in which sick time is used; or


The weighted average of all regular rates of pay during the previous pay period.


For employees paid a salary, the regular rate of pay means the employee’s total wages earned during the pay period covered by the salary divided by the number of hours agreed to be worked in the pay period which the salary is intended to compensate. For example, if an employee is paid a weekly salary of $525 and it is understood that the salary is compensation for a regular work week of 35 hours, the employee’s regular rate of pay is $15 per hour ($525 divided by 35 hours). For an employee paid a salary whose hours of work vary from work week to work week, for the purpose of calculating the regular rate of pay to be used for the payment of sick time, the employee is presumed to work 40 hours in each workweek.


For employees paid on a commission or piece-rate basis only, the regular rate of pay means a rate of no less than the applicable statutory minimum wage.


For employees paid an hourly, weekly or monthly wage and also paid on a piece-rate or commission basis, the regular rate of pay means the rate of pay equivalent to the employee’s hourly, weekly or monthly wage or the applicable statutory minimum wage, whichever is greater.


The regular rate of pay does not include:


Overtime, holiday pay, or other premium rates. However, where an employee’s regular rate of pay includes a differential meant to compensate the employee for work performed under differing conditions (for example, a shift differential for working at night), such a differential rate is not considered to be a premium;


Bonuses or other types of incentive pay; and




“Spouse” includes:


Individuals in a marriage recognized under state law in the state in which the marriage was entered into;


Individuals in a marriage validly performed in a foreign jurisdiction;


Individuals in a common law marriage that was entered into in a state that recognizes such marriages; and


Individuals who have lawfully established a civil union, domestic partnership or similar relationship under the laws of any state. Individuals described in this subsection are not required to obtain a marriage license, establish a record of marriage or solemnize their relationship.


“Undue hardship” means significant difficulty for an employer’s business and includes consideration of the impracticability of permitting sick time to be taken in hourly increments. Factors to consider in determining whether the use of sick time in hourly increments imposes an undue hardship on the employer include, but are not limited to:


The number of persons employed or working at the particular worksite and their qualifications or ability to timely relieve the employee using sick time, given the employer’s operations; the total number of persons employed by the employer; the number, type and geographic separateness of the employer’s worksites; and


The effect of providing sick time in hourly increments on worksite operations involving: the startup or shutdown of machinery in continuous-operation industrial processes; intermittent and unpredictable workflow not in the control of the employer or employee; the perishable nature of materials used on the job; the perishable or live nature of products being harvested or processed; the time-sensitive or high-volume nature of the employer’s operations, if such operations have a direct impact on the public; and the safety and health of other employees, patients, clients or the public.

Last accessed
Jun. 8, 2021