Or. Admin. Code § 471-070-1310

Current through Register Vol. 63, No. 10, October 1, 2024

Section 471-070-1310 - Benefits: Employee Notice to Employers Prior to Commencing Leave

(1) Except as provided in ORS 657B.040(5) for safe leave, an eligible employee must give notice to their employer when commencing a period of family, medical, or safe leave.

(2) If the leave is foreseeable, an eligible employee must give oral notice at least 30 calendar days before commencing leave and an employer may require an eligible employee to give written notice at least 30 calendar days before commencing leave. Examples of foreseeable leave include, but are not limited to, an expected birth, planned placement of a child, or a scheduled medical treatment for a serious health condition of the eligible employee or a family member of the eligible employee.

(3) If the leave is not foreseeable, an eligible employee may commence leave without 30 calendar days advance notice. However, the eligible employee or another person on behalf of the eligible employee taking leave must give oral notice to the employer within 24 hours of the commencement of the leave and must provide written notice within three days after the commencement of leave. Leave circumstances that are not foreseeable include, but are not limited to, an unexpected serious health condition of the eligible employee or a family member of the eligible employee, a premature birth, an unexpected adoption, an unexpected foster placement by or with the eligible employee, or for safe leave.

(4) An employer may require a written notice to include:

(a) Employee's first and last name;

(b) Type of leave;

(c) Explanation of the need for leave; and

(d) Actual or anticipated timing and duration of leave.

(5) Written notice includes, but is not limited to, handwritten or typed notices, and electronic communication such as text messages and email that is consistent with the employer's known, reasonable, and customary policies. Whether leave is to be consecutive or is to be taken intermittently. Notice for consecutive leave only needs to be given one time prior to taking the consecutive leave, but the employee shall advise the employer as soon as practicable if the dates of any scheduled leave change, are extended, or were initially unknown. Notice for intermittent leave shall be given orally to the employer within 24 hours of the commencement of each work day taken or earlier if known.

(6) An employer that requires eligible employees to provide written notice before the eligible employee commences leave, must outline the requirements in the employer's written policy and procedures. A copy of the written policy and procedure must be provided to all eligible employees at the time of hire and each time the policy and procedure changes and in the language that the employer typically uses to communicate with the employee. If the employer requires the employee to provide written notice, the policy and procedures must include a description of the benefit reduction under section (10) of this rule that may be imposed by the department for not complying with the employer's notice requirements.

(7) An employee does not need to expressly mention the Paid Family and Medical Leave Insurance program when giving their employer written or oral notice under this rule.

(8) The department will notify the employer pursuant to OAR 471-070-1320(1) when a claimant has applied for paid family, medical, or safe leave benefits. The employer may respond to the notice from the department within 10 calendar days from the date on the department's notice to report if the claimant did not provide the required notice under this rule. The employer may respond to the department's notice either online or by another method approved by the department.

(9) If the employer does not respond to the department's notice as described in section (8) of this rule within 10 calendar days from the date on the department's notice, the claimant's application for benefits shall be processed using the information available in the department's records.

(10) If the department determines that the claimant did not provide the required leave notice to the employer, the department may impose a benefit reduction by issuing a decision and reducing the first weekly benefit amount payable under ORS 657B.090 by 25 percent. The first benefit payment issued will be reduced by the entire amount of the reduction. If the first benefit payment issued is less than the entire amount of the reduction, the subsequent benefit payment(s) will be reduced until the entire reduction has been subtracted.

Example 1: Sanomi did not provide the required notice to their employer about taking consecutive family leave. Sanomi's weekly benefit amount is $140. Sanomi is taking leave from work for family leave for all the work days within the first week. The 25 percent benefit reduction equals $35 ($140 weekly benefit amount x .25 reduction). Sanomi's first benefit payment would have been $140, but will be reduced to $105 ($140 benefit payment - $35 reduction). Because the first benefit payment is more than the amount of the reduction, the entire reduction is subtracted from the first benefit payment.

Example 2: Joy did not provide the employer with the required leave notice about taking intermittent medical leave. Joy normally works an average of six work days in a work week and is unable to work one of those days each week due to taking medical leave. Joy's weekly benefit amount is $600, which is prorated to $100 per work day of leave ($600 weekly benefit amount / 6 days per week). The amount of the benefit reduction is $150 ($600 weekly benefit amount x .25 reduction). Joy's first benefit payment would have been $100 because one day of leave from work during that week is taken. However, the first benefit payment is reduced to $0 after the reduction amount is subtracted ($100 first week benefit payment - $150 reduction). The second benefit payment would have been $100 but the second benefit payment is reduced to $50 after the remaining reduction amount is subtracted ($100 second week benefit payment - $50 remaining reduction). The third benefit payment is not reduced as the entire amount of the reduction has already been subtracted from Joy's benefit.

(11) The claimant may appeal the imposition of the benefit reduction in accordance with ORS 657B.410 and applicable administrative rules.

(12) The employee may request a waiver of the benefit reduction for good cause. Good cause will be found when the employee establishes, by satisfactory evidence, that factors or circumstances beyond the employee's reasonable control prevented the employee from providing the required notice to the employer. Good cause includes, but is not limited to, an incapacitating serious health condition or a situation related to safe leave, for which the employee provided notice to the employer as soon as was practicable.

(13) The department, in its discretion, may waive the imposition of the benefit reduction without a request for a waiver by the employee if the department determines that the employee had good cause for not providing notice to their employer(s) or applying the benefit reduction is against equity, good conscience, or administrative efficiency.

(14) If an employee receives their first weekly benefit payment, and the department subsequently determines that proper notice to the employer was not made by the employee, an amount equal to the 25 percent benefit reduction will be considered an erroneous overpayment, and that amount of the reduction may be collected from the employee in accordance with ORS 657B.120.

Or. Admin. Code § 471-070-1310

ED 9-2022, adopt filed 07/22/2022, effective 7/22/2022; ED 5-2023, amend filed 07/31/2023, effective 8/1/2023

Statutory/Other Authority: ORS 657B.340 & ORS 657B.040

Statutes/Other Implemented: ORS 657B.040