“At some of the most difficult, stressful times of their lives, when the people they love need them the most, hundreds of thousands of Oregonians are forced to choose between their jobs and their loved ones,” Rep. Teresa Alonso Leon, D- Woodburn, said in a 2019 news release. “With this legislation, that will no longer be the case.”
Gov. Kate Brown held a public bill signing to celebrate with people who advocated for the law.
Since then, however, the program and preparations to launch it by January 2023 rarely came up in lawmakers’ check-ins during public meetings with the state employment agency assigned to do that work. And the glacial pace depicted during regular updates to Brown’s staff did not prompt any intervention to get the project back on track.
Now, tens of thousands of Oregonians stand to go without approximately $453 million in paid leave benefits they could have accessed in the first eight months of 2023. That’s because program officials said they could not launch it by the deadline in state law, so lawmakers and Brown moved the deadline to September 2023. And it remains unclear if the state will meet the new due date.
The Oregonian/OregonLive requested an interview with the governor to learn more about her staff’s oversight of efforts to launch the program. Brown declined. She also offered no comment on the situation.
Press Secretary Liz Merah wrote in an email that the governor “remains committed to ensuring this program is on track so that every family in Oregon can benefit from its protections.” Merah wrote that Brown’s administration always considered the original 3 ½ year timeline to launch the program “aggressive” and was aware as early as 2019 that the employment department might not be able to meet it.
Rep. Daniel Bonham, a Republican from The Dalles who was a chief sponsor of the paid leave law after working on the policy with other supporters since 2017, said no one told him the timeline adopted in 2019 was unattainable.
“To have anybody suggest they knew right away that would be a timeline they couldn’t meet is news to me,” Bonham said. “I certainly didn’t put my name on that law to say ‘I don’t actually think it’s going to happen when we say.’”
“The people of Oregon want it,” Bonham said of paid leave, and Oregon leaders should have found a way to get it done on time.
It was clear the program was off track by February 2020, when the Oregon Employment Department was supposed to deliver a report to lawmakers on the risks of setting up the new paid leave program at the same time it was carrying out the long-delayed replacement of its unemployment insurance technology system. The report might have given lawmakers an early opportunity to intervene.
Although agency leaders had known for more than six months that they were supposed to conduct the risk assessment, then-Director Kay Erickson told lawmakers they had just contracted with a vendor in January, so it was not yet done. She offered no expected date of completion. None of the seven lawmakers present at the meeting of the Democrat-led, bipartisan committee asked if the program was on track to meet launch deadlines.
The pandemic soon diverted lawmakers’ attention to distributing state and federal aid and public health funding, and they held three special sessions to help Oregonians impacted by coronavirus and pass police reforms.
Overwhelmed by the pandemic’s enormity and beset by technical failures, the employment department was simply unable to process tens of thousands of jobless claims in the first months after the pandemic hit or to respond to calls and emails from laid-off workers desperately seeking aid. Erickson refused to address the crisis publicly and prominent Oregon Republicans and Democrats united in calling for her ouster.
After Erickson made a pair of disastrous presentations to state lawmakers, the governor gave in to the demands, firing her at the end of May 2020.
Meanwhile, the pandemic renewed national discussion of the need for paid family and medical leave as people were forced to stay home to care for loved ones.
None of that prompted leaders in the majority Democratic Oregon Legislature to make sure their state’s program was on track.
Former Rep. Cheri Helt, a Republican from Bend who served through 2020, said she proposed legislation for the June 2020 special session to move oversight of the paid leave program to Oregon’s Bureau of Labor and Industries, led by Democratic Labor Commissioner Val Hoyle. “I think she had the staff and bandwidth to do it,” Helt said in an interview.
Helt, who was among three Republicans who signed on as sponsors of the 2019 bill to create the paid leave program, said Democratic leaders including House Speaker Tina Kotek decided which bills lawmakers could vote on in the extremely short special sessions and chose not to include her proposal aimed at keeping paid leave on track. Helt said she offered the idea up as a starting point and was open to any counter proposals that would achieve the goal of keeping paid leave on schedule. In a subsequent 2020 special session, Helt proposed creating a legislative committee to address paid leave delays but again the idea went nowhere.
Kotek declined an interview request and offered no comments on Helt’s legislation and critique of lawmakers’ oversight as weak.
Kotek’s communications director, Danny Moran, wrote in an email that Helt was incorrect to blame Kotek or any Democratic leader for preventing votes on Helt’s legislative attempts to keep paid leave on track. Minority Republicans had a say in determining what was considered in 2020′s special sessions, he said.
Helt did not know specifics of how far behind Employment Department officials already were with the project, but she assumed they would have a difficult time continuing paid leave implementation, given the hundreds of out-of-work constituents who sought help from her office in 2020 because it was taking months for them to access unemployment insurance.
“I’m incredibly disappointed,” Helt said of what happened with Oregon’s paid leave program. “How can you delay the family leave act when that’s what everybody needs during COVID? Yeah, it’s more difficult, but that doesn’t really matter. The path of least resistance isn’t always the best path for Oregonians.”
“Our Legislature does not hold high standards for accountability,” Helt added. “If you task an agency with something, you need to follow through and ensure that accountability is there. … As a legislative body, what needs to be done is to assist getting over the finish line as opposed to listen to the why nots.”
As Gerstenfeld’s boss, Brown had the authority to demand regular updates on the paid leave program — and supply help if needed.
Eventually, the employment agency did deliver the long overdue risk assessment to lawmakers. In December 2020, the legislative emergency board that meets between sessions was briefed on the consultant’s by-then-outdated risk findings, which predated the pandemic.
Kotek, the House speaker, said at the meeting that lawmakers “just need to have, I think, a better understanding of where things are.” Kotek said she knew that two of her fellow Democrats on the emergency board — Speaker Pro Tem Paul Holvey of Eugene and Sen. Kathleen Taylor of Portland — were tracking work to build the paid leave program.
But Taylor, who was involved since 2017 in researching and shaping the paid leave policy, said she’d kept in touch with Gerstenfeld and he’d been telling her everything was going well and on track.
“I really want to commend Mr. Gerstenfeld and his staff for the work they’re doing on paid family medical leave,” Taylor said. “He’s kind of led me to believe that things are really actually going quite well even though we’re in the middle of a pandemic and things are largely on track.” Gerstenfeld, who was present in the meeting, offered no comment.
Given that no major component of paid leave was on time by that point and Gerstenfeld had told the Senate Interim Committee on Labor and Business three months prior in September 2020 that timelines may need to be adjusted, The Oregonian/OregonLive contacted Taylor for an explanation. She declined to comment.
Holvey remained silent during the December 2020 legislative meeting. But in an interview he said Gerstenfeld kept him up-to-speed and by spring 2020 Holvey knew paid leave would be delayed because the employment agency was so overwhelmed by unemployment claims. “Paid family (and medical) leave had to take a back seat to that for awhile,” Holvey said. “It was an all-hands-on-deck to get money out to folks who were unemployed due to the pandemic. We knew that was happening.”
Holvey expressed broad sympathy for and acceptance of the employment department’s slow pace of completing projects, including the unemployment benefits system replacement that did not begin in earnest until 2017 even though the state received federal money to do the work in 2009. The delay in starting that project contributed to the lengthy timeline for paid leave, because employment leaders decided early on to link part of the technology for paid leave to the unemployment overhaul.
In contrast to some of his legislative colleagues who were outraged in 2020 when the severely outdated unemployment benefits system left thousands of Oregonians in the lurch, Holvey said earlier this month that there were “a lot of reasons, if you really delve into it, to understand that those monies that were allocated in 2009 weren’t able to be spent” until more recently.
Employment department communications director Rebeka Gipson-King suggested in an email to The Oregonian/OregonLive that state workers and political leaders alike always viewed the paid leave timeline as flexible. She pointed out the Legislature’s mandate for the agency to deliver the risk assessment in February 2020, noting that the findings could lead to “changes to anticipated implementation timelines.” Gipson-King said Gerstenfeld met with Taylor, Holvey, and Sen. Tim Knopp, R- Bend, before the 2021 legislative session to alert them to the need to push back the deadlines. Knopp confirmed Gerstenfeld kept him updated but declined to comment further.
In hearings earlier this year, lawmakers avoided pressing agency leaders for answers on what happened.
In February 2021, the program’s acting director Gerhard Taeubel, who was hired to backstop Gerstenfeld in Gerstenfeld’s old role, told lawmakers Oregon had a “compressed” and “aggressive timeline for creating an entire new program,” which is not accurate when compared to other states’ paces. Taeubel told lawmakers that state leaders were close to making key decisions that would determine if Oregon could still launch benefits by the deadline in state law.
Rep. David Gomberg, D-Otis, asked Taeubel, “What is the likelihood we’re gonna hit these targets?”
Gomberg never got a clear answer. Taeubel responded that given a pandemic and other challenges, it “isn’t the best of conditions for launching a new program. … It may be that the most reasonable conclusion is to revisit the timeline somewhat.”
Other states did manage to stand up paid leave programs much more quickly including states that were midway through preparations when the pandemic hit, but lawmakers have given no indication that they independently checked the claims that Oregon was on an “aggressive” timeline. Instead, they seemed to accept Oregon employment leaders’ claims that lawmakers had unreasonable expectations for a speedy launch.
Rep. Marty Wilde, a Eugene Democrat, said he was discouraged by his caucus from asking questions about how the program got off track.
“What I was told was, ‘Make all the noise you want, but they can’t catch up at this point,’” he said. Wilde said that House Majority Leader Barbara Smith Warner, D- Portland, was tracking the issue during the 2021 session and “she was seriously irritated with me for challenging the department.”
Smith Warner said Wilde had the opportunity as a member of the general government budget subcommittee to seek updates on any state agency’s work and she said it’s important for the Legislature to give the executive branch — which reports to the governor — ample opportunity to carry out programs.
“We pass the laws and then we turn it over to the agencies to implement,” Smith Warner said. “We are 90 (lawmakers) constantly poking at agencies … It is a fine line between oversight and overinvolvement and micromanaging.”
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