Mother helping daughter with homework during pandemic

Effective September 14, 2020, the Oregon Bureau of Labor and Industries (BOLI) made permanent an administrative rule expanding the Oregon Family Leave Act (OFLA) to allow employees to take leave to care for a child whose school or childcare provider is closed in connection with a statewide public health emergency. Eligible Oregon employees have been permitted to use OFLA leave for this reason since March 18, 2020 pursuant to an earlier temporary order.

The OFLA is applicable to employers with 25 or more employees, and existing OFLA employee eligibility requirements apply, including 180 consecutive days of service and an average of 25 hours per week worked in the 180 days prior to leave. The OFLA leave entitlement for “school closure” leave – which falls under the category of OFLA sick child leave – remains the same: 12 weeks of job protected, unpaid leave within a one-year period.

OFLA Sick Child Leave for Closures Can Be Used Intermittently to Accommodate a Reduced Schedule

BOLI issued a separate but related temporary rule on September 11, 2020, which revises the OFLA regulations to provide much-needed guidance for employers and third-party administrators (TPAs) administering OFLA “school closure” leave. The temporary rule, which will remain in effect until March 12, 2021:

  • Clarifies that a childcare provider includes a place of care (e.g., daycare, home, preschool) or a person who cares for a child, including a paid sitter, au pair, or nanny or an unpaid caregiver such as a family member or neighbor;
  • Makes clear that a “closure” can be ongoing, intermittent, and/or recurring, but must restrict a child’s physical access to the school or childcare provider; and
  • Emphasizes that intermittent OFLA leave is available for this leave reason and can be used to accommodate an altered or reduced work schedule needed due to the intermittent or recurring closure of a child’s school or childcare provider.

New Rule Clarifies What Employers May Request to Support Need for OFLA Sick Child Leave for Closures

Last but not least, the new temporary rule sets forth the verification/documentation that may be required from an employee to support the need for OFLA leave under these circumstances, which includes:

  1. The name of the child being cared for;
  2. The name of the school or child care provider that has closed or become unavailable;
  3. A statement from the employee that no other family member of the child is willing and able to care for the child; and
  4. With the care of a child older than 14, a statement that special circumstances exist requiring the employee to provide care to the child during daylight hours.

These elements may look familiar to public employers and smaller private employers, as they largely track the documentation that can be required from an employee seeking paid emergency family and medical leave under the federal Families First Coronavirus Response Act (FFCRA).  Remember that OFLA leave can run concurrently with leave under the federal Family and Medical Leave Act (FMLA), so employers covered by the FFCRA should be sure to consider eligibility for OFLA leave if an employee is taking emergency paid FMLA while caring for a child affected by a COVID-19 related closure. Employers would also be wise to seek employment counsel if they need advice on the interplay between the OFLA, FFCRA, and state and local sick leave mandates such as Oregon’s state sick time law.

What ReedGroup is Doing

ReedGroup has updated its leave management software and processes to ensure our clients’ employees in Oregon are reviewed for OFLA eligibility when requesting leave to care for a child whose school or place of care is closed due to a statewide public health emergency such as COVID-19.

We will continue to track COVID-19 related legal developments and keep our clients up to date on our blog and Coronavirus Resource Center.

If you’re looking for assistance managing claims or to ensure compliance across your organization, ReedGroup has solutions for you. Go here to see how we can help. Want to stay on top of changes to leave legislation and regulations? Subscribe to this blog.

 

Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.