On February 1, 2000, the Bureau of Labor and Industries adopted a revised set of rules pertaining to the Oregon Family Leave Act (OFLA), ORS 659.470 to 659.494. The revised regulations, at OAR 839-009-0200 to 839-009-0320, are accessible at the Oregon State Archives website.
 
The amended OFLA rules contain numerous revisions made for purposes of clarification. Although most interpretations of the OFLA statutes remain unaffected, there are several significant changes.
 

Brief Summary of the Law
OFLA covers employers with 25 or more employees in Oregon. Employees are eligible to take 12 weeks of protected OFLA leave (and in certain cases more than 12 weeks) if they have been employed for the preceding 180 calendar days and for an average of at least 25 hours per week. Employees need not meet the hourly requirement to be eligible for parental leave.

 

Qualifying Leave Events
Events that qualify for OFLA leave include:

• The serious health condition (SHC) of the employee or the employee´s family member.
• Pregnancy disability, a form of SHC involving an incapacity related to pregnancy or childbirth, occurring before or after the birth of the child, or absences for routine prenatal care.
• parental leave taken to care for the employee´s newborn, newly adopted, or newly placed foster child.
• Sick-child leave taken to care for an employee´s child with a non-SHC requiring home care.

 
OFLA leave is unpaid leave, but in many cases the employee may access accrued paid leave, or the employer may require the use of paid leave. Unlike FMLA, OFLA does not require an employer to continue group health coverage during family leave. OFLA does, however, require that the employee be immediately reinstated with the same level of coverage that was in place when the leave began. Following an OFLA leave, the employer must reinstate the employee to the former position if the job still exists, or to any available, equivalent position if the job no longer exists.
 
Two OFLA-related bills proposed during the 1999 legislative session did not become law. HB 2486 would have permitted reinstatement of an employee to any equivalent job with "substantially similar" duties. SB 486 would have allowed up to 35 hours of leave per year for participation in school activities of the employee´s child.
 

Key changes in the OFLA Rules
Changes in the February-amended rules include:

• Definition of a "serious health condition" clarified.
  OFLA has always been interpreted to cover any serious health condition covered by FMLA, when the FMLA-eligible employee is also OFLA-eligible. The revised definition of an serious health condition at OAR 839-009-0210(14) more closely tracks the FMLA serious health condition definition. OFLA now specifically refers to all of the following types of serious health condition: inpatient care; terminal illness or imminent danger of death; constant or continuing care; incapacity plus treatment, i.e., an inability to perform at least one essential job function for more than three consecutive calendar days, coupled with two or more treatments by a health care provider, or one treatment plus a regimen of continuing care; chronic conditions causing episodic absences; long-term incapacity due to conditions such as Alzheimer´s disease or stroke; multiple treatments, such as chemotherapy or kidney dialysis, for conditions that if not treated would likely result in incapacity of more than three days; and pregnancy disability.

• Definition of "family member" further expanded.
  The OFLA definition of "family member," already more expansive than FMLA´s in that it includes parents-in-law and children 18 or over, now also includes the employee´s same-sex domestic partner, at OAR 839-009-0210(5). FMLA includes as covered family members only the employee´s parent, spouse or child. When OFLA and FMLA differ on what is a covered leave, there is the potential for more than 12 weeks of protected family leave in a single, 12-month leave year.

  Example: Bill takes 12 weeks of OFLA leave because his same-sex domestic partner has an SHC. Bill´s OFLA entitlement for the leave year has been depleted, but if Bill is FMLA-eligible based on the time period and number of hours he has worked, he is still entitled to take 12 weeks of FMLA leave later in the same leave year when he is involved in a car accident and has an SHC himself.

• Rule on length of leave revised.
  Like FMLA, OFLA allows an employee up to 12 weeks for any combination of qualifying family leave events in the 12-month leave year designated by the employer. There are two exceptions under which an employee may take more than 12 weeks of OFLA leave in a leave year. First, a woman who uses any OFLA leave for pregnancy disability may take up to an additional 12 weeks of leave for any other qualifying OFLA purpose-including a continuation of the pregnancy disability itself. Second, a man or woman using parental leave may take up to an additional 12 weeks for sick-child leave. The interpretive change covers the latter exception. Previously, BOLI interpreted OFLA to allow up to an additional 12 weeks of sick-child leave when any amount of parental leave was taken. Under the new interpretation, however, a parent must use the entire 12 weeks of parental leave to qualify for another full 12 weeks of sick-child leave, as explained in OAR 839-009-0240(1)(b).

  Example: John takes 10 weeks of parental leave for bonding with his newborn baby. John´s employer does not permit intermittent parental leave. Under the prior interpretation, John´s use of parental leave did not reduce his entitlement to take up to a full 12 weeks of sick-child leave during the same leave year. Under the current interpretation, however, because John did not use a full 12 weeks of parental leave, he is entitled only to access the balance of his 12 weeks (here, two weeks) for sick-child leave or any other type of OFLA leave. Had John chosen to take a full 12 weeks for parental leave, he would be entitled to up to another 12 weeks of sick-child leave, should that many sick-child incidents occur. This interpretation is based on a strict reading of ORS 659.478(2)(b).

  The rules also clarify the long-standing interpretation that a woman may potentially use both of the above exceptions, enabling her to take as much as 36 weeks of OFLA leave in one leave year. This can occur only when the female employee takes 12 weeks of pregnancy disability leave, followed by twelve weeks of parental leave, followed by 12 weeks of sick-child leave, as explained in OAR 839-009-0240(2).
  

• Intermittent leave tracking method described.
  Consistent with the FMLA regulations, OAR 839-009-0240(8) now explicitly states that when an employee uses OFLA leave intermittently, the leave entitlement is calculated by multiplying the employee´s normal weekly hours by 12. Thus, an employee who regularly works 30 hours per week is entitled to a total of 360 hours (12 times 30 hours) of OFLA leave during a leave year. An employer may count only the actual hours of leave taken, so that an employee who misses half of an eight-hour shift for an OFLA absence has used only four hours of leave, not one day of leave. See In re Centennial School District No. 28-J, 18 BOLI 176 (1999).

• Transfer to alternate duty permitted.
  OAR 839-009-0245 allows an employer to temporarily transfer an employee on intermittent leave to an alternate position to accommodate the leave. Such a transfer must be voluntary, and the employee must receive equivalent pay and benefits. The transfer to alternate duty is not counted as OFLA leave unless the employee actually works a reduced schedule.

• Medical certification rule amended.
  OAR 839-009-0260 permits an employer to require medical verification of the need for OFLA leave, but clarifies BOLI´s interpretation that, consistent with ORS 659.330, the employer must pay any out-of-pocket cost for the doctor visit or fitness-for-duty certificate. The OFLA rule now contains language similar to FMLA requiring an employer to make any request for medical certification in writing.

• Rule for white collar exempt employees updated.
  The salary basis rules in the federal Fair Labor Standards Act (FLSA) prohibit employers from docking an exempt employee´s salary for part-day absences-except in the case of a part-day FMLA absence. The Oregon wage laws do not provide a similar exception with respect to docking salary for part-day OFLA absences.

 
OAR 839-009-0240(10) provides options to employers when an executive, administrative, or professional white collar exempt employee requires intermittent OFLA leave. This rule applies to OFLA-only leaves (when FMLA does not concurrently apply) and distinguishes between situations when the exempt employee has or does not have accrued paid leave. The employer must allow an exempt employee with accrued paid leave to take OFLA leave in increments of less than a full day when a qualifying intermittent leave situation arises. The rule permits an employer to require an exempt employee without accrued paid leave to use intermittent leave in blocks of at least one day.
 
If the OFLA leave is also FMLA-covered, this rule does not apply, because FMLA prohibits the employer from requiring the employee to use more leave than is medically necessary. When a part-day absence is covered by both OFLA and FMLA, the employer may require the exempt employee to use accrued paid leave to cover the absence or may dock the employee´s salary if no paid leave is available. However, when a part-day absence is covered by OFLA only, then to preserve the exemption, the employer must pay the full day´s salary if the employee has no accrued paid leave.
 

 

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The Technical Assistance for Employers unit offers employer seminars, handbooks, and other materials covering a number of topics. For additional information, visit our website at www.oregon.gov/boli/ta  or call our Employer Assistance line.

 

Technical Assistance for Employers

Bureau of Labor and Industries

800 NE Oregon Street, Suite 1045

Portland , OR 97232

971-673-0824

www.oregon.gov/boli

These materials were prepared as a general summary and teaching guide. The mission of the Technical Assistance for Employers Program is to promote compliance with civil rights and wage and hour laws through education. Technical Assistance does not provide legal advice. In order to determine the legality of any matter or to protect your legal rights, you should contact an attorney. Check the yellow pages of your telephone directory or contact the Oregon State Bar Lawyer Referral Service at 1-503-620-0222 or 1-800-452-7636. THIS INFORMATION IS AVAILABLE IN AN ALTERNATE FORMAT.