Or. Admin. Code § 839-009-0240

Current through Register Vol. 63, No. 8, August 1, 2024

Section 839-009-0240 - OFLA: Length of Leave and Other Conditions of OFLA Leave

(1)

(a) An eligible employee is entitled to up to a total of 12 weeks of OFLA leave, for sick child leave and bereavement leave, within an OFLA leave year.

(b) Notwithstanding subsection (a) of this section, an eligible employee is entitled to a total of two weeks of bereavement leave upon the death of each family member of the employee within an OFLA leave year, except that the eligible employee may not take more than four weeks of bereavement leave within an OFLA leave year.

(2) In addition to the 12 weeks of leave described in section (1) of this rule, an eligible employee may take a total of 12 weeks of OFLA pregnancy disability leave within the same OFLA leave year. The employee may use all or part of the 12 weeks of leave described in section (1) of this rule and all or part of the 12 weeks of OFLA pregnancy disability leave in any order. The employee need not exhaust either type of leave in order to use the other.

(3) In addition to the 24 weeks of leave authorized by sections (1) and (2) of this rule, an eligible employee is entitled to a total of two weeks of child placement leave within an OFLA leave year. This section (3) of this rule does not apply on or after January 1, 2025.

(4) The adoption or foster placement of multiple children at one time entitles the employee to take only one two-week period of child placement leave. This section (4) of this rule does not apply on or after January 1, 2025.

(5) A covered employer need not grant sick child leave to an eligible employee if another family member of the child is willing and able to care for the child.

(6) A covered employer may not reduce the amount of OFLA leave available to an eligible employee under this section by any period the employee is unable to work because of a disabling compensable injury as defined in ORS 656.005.

(a) If an employee uses OFLA pregnancy disability leave for a workplace injury pending acceptance of a workers' compensation claim, upon acceptance of the claim any OFLA pregnancy disability leave used for the workplace injury must be restored to the employee. If the claim is denied, OFLA pregnancy disability leave will be deducted from the employee's entitlement.

(b) If a worker's compensation claim is first denied and then accepted, the employer must restore any OFLA pregnancy disability leave taken for the condition covered by worker's compensation in the leave year in which the worker's compensation claim is accepted.

(c) Notwithstanding this rule, the employer may reduce the amount of OFLA leave available to an eligible employee under this section by any period the employee is unable to work because of a disabling compensable injury as defined in ORS 656.005 after the employee has refused a suitable offer of light duty or modified employment under ORS 659A.043 (3)(a)(D) or 659A.046(3)(d).

(d) An employee unable to work for an employer because of a disabling compensable injury arising out of and in the course of employment for that employer, but who is also employed by and able to work for another employer, may be eligible and qualify to use OFLA leave under the other employer.

(7) For the purpose of intermittent leave, OFLA leave entitlement is calculated for an employee by multiplying the number of hours in the employee's normal work week by the number of weeks for which the employee is eligible for each category of OFLA.

(a) If an employee's schedule varies from week to week, a weekly average of the hours worked over the 12 months worked prior to the beginning of the leave period must be used for calculating the employee's normal work week.

(b) If an employee takes intermittent or reduced work schedule OFLA leave, only the actual number of hours of leave taken may be counted toward the OFLA leave to which the employee is entitled.

(8) When an employee requests OFLA leave, or when a covered employer acquires knowledge that an employee's leave may be for a purpose that constitutes OFLA leave, the employer must notify the employee of the employee's eligibility to take OFLA leave within five business days, absent extenuating circumstances. Whether an employee is an "eligible employee" as defined in OAR 839-009-0210 is determined, and notice must be provided, at the commencement of the first instance of each purpose for leave listed in OAR 839-009-0240 during the OFLA leave year. If an employee is an "eligible employee" as defined in OAR 839-009-0210 for a purpose listed in OAR 839-009-0240, the employee's eligibility for that purpose does not change during the applicable 12-month period. In addition:

(a) An eligible employee taking, in any order, some or all of 12 weeks of OFLA pregnancy disability leave and some or all of 12 weeks of OFLA leave for any other purpose, need not requalify under OAR 839-009-0210 each time the employee takes OFLA leave within the same leave year.

(b) An employee who has taken two weeks of OFLA child placement leave, need not requalify under OAR 839-009-0210 for up to an additional 12 weeks of leave within the same leave year when used for the purposes of OFLA sick child leave.

(c) An employee unable to work because of a disabling compensable injury as defined in ORS 656.005 need not requalify under OAR 839-009-0210 in order to use OFLA leave following a period the employee is off work due to the compensable injury.

(9) When an employer is authorized by law to request additional information, other than information that constitutes medical verification, to verify whether leave is OFLA qualifying, the employer may provide the employee with a written request for information. The written request must be provided within five business days after the date on which the employee requests OFLA leave, or on which the employer acquires knowledge that an employee's leave may be for an OFLA-qualifying reason. Absent extenuating circumstances, the employer must notify the employee whether or not the employee is eligible and qualifies to take OFLA leave within five business days of receiving the requested information. If an employer determines that an employee does not qualify for OFLA leave for the reason requested, the employer must notify the employee in writing that the employee does not qualify.

(10) When the written notice described in section (8) or (9) of this rule indicates that the employee does not qualify for OFLA leave, the notice must state that the employee is ineligible or that the reason for requested leave does not qualify for OFLA leave and at least one reason why the employee is not eligible or the reason does not qualify for leave.

(11) An exempt employee is a salaried executive, administrative or professional employee under the federal Fair Labor Standards Act or the state minimum wage and overtime laws.

(a) When OFLA leave is also covered by FMLA and the employee takes intermittent leave in blocks of less than one day, if done in accordance with 29 CFR § 825.206, the employer may reduce the employee's salary for the part-day absence without the loss of the employee's exempt status in accordance with OAR 839-020-0004(32).

(b) When OFLA leave is not covered by FMLA, and the employee takes intermittent leave in blocks of less than one day, an employer will jeopardize the employee's exempt status if the employer reduces the employee's salary for the part-day absence.

(12) ORS 659A.150 to 659A.186 and these rules do not limit any right of an employee to similar leave to which the employee may be entitled under any agreement between the employer and the employee, collective bargaining agreement or employer policy.

(13) When an eligible employee takes bereavement leave under ORS 659A.150 to 659A.186 to deal with the death of an individual related by blood or affinity whose close association with the eligible employee is the equivalent of a family relationship, the employer may require the employee to attest in writing that the employee and the other person have a significant personal bond that, when examined under the totality of the circumstances, is like a family relationship. An employer that requires a written attestation must provide an attestation form to the employee. The form need not be notarized, must be in the language typically used by the employer to communicate with the employee and may include the following provisions:

I, (full name) _______________________, share a significant bond with (name of other person)_________________ and they are like a family member to me.

Any facts about your relationship can make it like a family. Common examples include:

(a) Shared personal financial responsibility, including shared leases, common ownership of real or personal property, joint liability for bills or beneficiary designations;

(b) Emergency contact designation of the employee by the other individual in the relationship or the emergency contact designation of the other individual in the relationship by the employee;

(c) The expectation to provide care because of the relationship or the prior provision of care;

(d) Cohabitation and its duration and purpose;

(e) Geographic proximity; and

(f) Other factors that demonstrate the existence of a family-like relationship.

Or. Admin. Code § 839-009-0240

BL 2-1995, f. 9-8-95, cert. ef. 9-9-95; BLI 5-2000, f. & cert. ef. 2-1-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 3-2005, f. 1-6-05, cert. ef. 1-7-05; BLI 44-2007, f. 12-31-07, cert. ef. 1-1-08; BLI 10-2010, f. & cert. ef. 2-24-10; BLI 16-2013, f. & cert. ef. 12-31-13; BLI 5-2015, f. & cert. ef. 5/18/2015; BLI 8-2015, f. & cert. ef. 6/24/2015; BLI 15-2022, minor correction filed 09/20/2022, effective 9/20/2022; BLI 14-2023, temporary amend filed 08/23/2023, effective 9/3/2023 through 2/29/2024; BLI 15-2023, temporary amend filed 09/06/2023, effective 9/6/2023 through 2/29/2024; BLI 9-2024, amend filed 03/01/2024, effective 3/2/2024; BLI 15-2024, amend filed 06/28/2024, effective 7/1/2024

Statutory/Other Authority: ORS 659A.805 & ORS 651.060

Statutes/Other Implemented: ORS 659A.150 - 659A.186, ORS 659A.043 & ORS 659A.046