Or. Admin. R. 839-009-0240

Current through Register Vol. 63, No. 5, May 1, 2024

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

Except as specifically provided by ORS 657B.020:

(1) An eligible employee is entitled to up to a total of 12 weeks of OFLA leave within any one-year period.

(2) In addition to the 12 weeks of leave authorized by ORS 659A.162 (1), an eligible employee may take a total of 12 weeks of leave within the same leave year for an illness, injury or condition related to pregnancy or childbirth that disables the employee from performing any available job duties offered by the employer. The employee may use all or part of the 12 weeks of leave authorized by 659A.162(1) and all or part of the 12 weeks of pregnancy disability leave in any order. The employee need not exhaust either type of leave in order to use the other.

(3) An eligible employee taking the entire 12 weeks of OFLA leave authorized by ORS 659A.162 (1) for parental leave may take an additional 12 weeks of sick child leave within the same leave year. If the employee uses less than 12 weeks of parental leave, however, no additional sick child leave is available, except that the balance of the 12 weeks of OFLA leave authorized by ORS 659A.162 may be used for sick child leave or for any OFLA leave purpose.

(4) An eligible employee may take up to 36 weeks of OFLA leave in one leave year that includes up to 12 weeks of pregnancy disability leave, 12 weeks of parental leave, and up to 12 weeks of sick child leave.

(5) An eligible employee may take up to 24 weeks of OFLA leave in one leave year under the following circumstances:

(a) The employee takes 12 weeks of parental leave, followed by:

(b) Up to 12 weeks of sick child leave.

(6) An eligible employee may receive notice of the death of a family member by any means and from any source.

(7) Two or more eligible employees who are family members of each other as defined in OAR 839-009-0210, working for the same covered employer, may take OFLA leave at the same time with that covered employer for the same qualifying event only under the following circumstances:

(a) One eligible family member needs to care for another eligible family member who is suffering from a serious health condition;

(b) One eligible family member needs to care for a child suffering from a serious or non-serious health condition while another eligible family member is suffering from a serious health condition;

(c) Two or more eligible family members are suffering from one or more serious health conditions;

(d) The employer allows family members to take concurrent leave; or

(e) The eligible family members are taking leave for the death of a family member pursuant to ORS 659A.159(1)(e) and OAR 839-009-0230(5).

(8) Unless the covered employer approves otherwise, parental leave shall be taken in one uninterrupted period, and shall be completed within 12 months of the birth, adoption or placement of the child. Exceptions shall be made:

(a) To allow intermittent parental leave to effectuate adoption or foster placement of a child. Parental leave taken to effectuate adoption or foster placement of a child is part of the total amount of parental leave available to the employee, but need not be taken in one, uninterrupted period with any remaining parental leave taken after the actual placement of the child.

(b) To allow parental leave to attend the birth of or give birth to the employee's child. Such leave need not be taken in one, uninterrupted period with any remaining parental leave taken after the birth of the child.

(9) The birth, adoption or foster placement of multiple children at one time entitles the employee to take only one 12-week period of parental leave.

(10) 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.

(11) 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 leave for a workplace injury pending acceptance of a workers' compensation claim, upon acceptance of the claim any OFLA leave used for the workplace injury must be restored to the employee. If the claim is denied, OFLA 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 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.

(12) For the purpose of intermittent leave, OFLA leave entitlement is calculated for an employee by multiplying the number of hours the employee normally works per week by 12. (For example, an employee normally employed to work 30 hours per week is entitled to 12 times 30 hours, or a total of 360 hours OFLA intermittent leave; an employee normally employed to work 50 hours per week is entitled to 12 times 50 hours, or a total of 600 hours OFLA intermittent leave.)

(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. (For example, an employee working an average of 25 hours per week is entitled to 12 times 25 hours, or a total of 300 hours OFLA leave.)

(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 12 weeks of OFLA leave to which the employee is entitled.

(13) An employee who has previously qualified for and taken some portion of OFLA leave must requalify as an "eligible employee" as defined in OAR 839-009-0210 each time the employee begins additional OFLA leave within the same leave year. Exceptions:

(a) An employee who has been granted OFLA leave for a qualifying serious health condition of the employee or family member need not requalify under OAR 839-009-0210 each time the employee takes leave for the same individual and the same serious health condition during the same leave year.

(b) Except as limited by ORS 657B.020:

(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 she takes OFLA leave within the same leave year.

(B) An employee who has taken 12 weeks of OFLA parental 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.

(d) An employee who has taken serious health condition leave to care for a family member who dies during the employee's serious health condition leave, need not requalify under OAR 839-009-0210 to take leave for the death of that family member.

(14) An exempt employee is a salaried executive, administrative or professional employee under the federal Fair Labor Standards Act (see 29 CFR § 541 through 541.315 ) or the state minimum wage and overtime laws (ORS chapters 652 and 653).

(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(30)(a).

(b) When OFLA leave is not covered by FMLA (e.g., the employer has 25 to 49 employees, the leave is taken for a sick child, for the serious health condition of a parent-in-law, for the serious health condition of a registered domestic partner or for the serious health condition of a registered domestic partner's parents or for the death of a family member), 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.

(15) The requirements of OFLA do not apply to any employer offering eligible employees a nondiscriminatory cafeteria plan, as defined by section 125 of the Internal Revenue Code of 1986, that provides as one of its options employee leave at least as generous as the leave required by OFLA.

(16) ORS 659A.150 to 659A.186 and these rules do not limit any right of an employee to any leave that is similar to the leave described in 695A.159(1) and OAR 839-009-0230 and to which the employee may be entitled under any agreement between the employer and the employee, collective bargaining agreement or employer policy.

(17) When an eligible employee takes leave under ORS 659A.150 to 659A.186 to care for, or to deal with the death of, a family member who is related by affinity, 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. R. 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

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

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