839-007-0015 Calculating the Number of Employees Employed (1) As used in ORS 653.606(2) and this rule, “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: (A) 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 (B) 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. (2) As used in ORS 653.606(2) and section (1) of this rule, “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 employer shall count all employees who perform work for the employer in the state of Oregon for the purpose of determining the number of employees the employer employs, including full-time employees, part-time employees, and temporary employees. (4) Employees jointly employed by two employers pursuant to OAR 839-007-0005 must be counted by both employers when determining the number of employees that each employer employs. (5) The number of employees employed by an employer shall be calculated based on the average number of employees employed by the employer per day during each of at least 20 workweeks in the calendar or fiscal year in which an employee’s sick time is to be taken, or in the year immediately preceding the year in which an employee’s sick time is to be taken. (6) The requirement to provide paid sick time shall apply to any employer employing an average of 10 or more employees per day in Oregon or an average of at least six employees per day in Oregon if the employer maintains a location in a city in Oregon with a population exceeding 500,000 during each of at least 20 workweeks in the calendar or fiscal year immediately preceding the year in which an employee’s sick time is to be taken. For example, if during 20 or more workweeks in a calendar or fiscal year, an employer employed an average of 10 employees per day or an average of at least six employees per day if the employer maintains a location in a city in Oregon with a population exceeding 500,000 the employer will be required to provide paid sick time in the following year. (7) An employer that has been in business for less than 20 weeks shall comply with the provisions of OAR 839-007-0032. (8) Employees jointly employed by two employers must be counted by both employers, whether or not they are maintained on one of the employers’ payroll, when determining employer coverage and employee eligibility. (a) An employee on leave who is working for a secondary employer is considered employed by the secondary employer and must be counted for coverage and eligibility purposes, as long as the employer has a reasonable expectation that the employee will return to employment with that employer. (b) In those cases in which a Professional Employer Organization (PEO) is determined to be a joint employer of a client employer’s employees, the client employer is only required to count employees of the PEO (or employees of other clients of the PEO) if the client employer jointly employs those employees. Statutory/Other Authority: ORS 653.601-653.661 & ORS 651 Statutes/Other Implemented: ORS 653.601-653.661 & OL Ch. 520 (2017) History: BLI 1-2018, amend filed 01/03/2018, effective 01/03/2018 BLI 16-2015, f. 12-9-15, cert. ef. 1-1-16