On March 18, 2020, only weeks after the first coronavirus cases were confirmed in Oregon, the Oregon Bureau of Labor and Industries (BOLI) issued Temporary Administrative Order BLI 4-2020, expanding the Oregon Family Leave Act (OFLA) to allow leave to be used during COVID-19 related school and daycare closures.
Specifically, the order amends the definition of “sick child leave” under the OFLA regulations to cover absences to care for an employee’s child whose school or place of care was closed due to a statewide public health emergency declared by a public health official, even if the child is not sick. This order is in effect from March 18, 2020 through September 13, 2020.
OFLA School Closure Leave is Available to Eligible Employees of Employers with 25 or More Workers
You may be wondering why this change is significant now that emergency paid sick leave and paid emergency family and medical leave under the federal Families First Coronavirus Response Act (FFCRA) can be used by employees to care for a son or daughter during the public health related closure of a school or place of care. Importantly, the OFLA is applicable to employers with 25 or more employees, whereas the FFCRA applies only to private employers with fewer than 500 employees and certain public employers of any size. Therefore, unpaid OFLA leave for school closures will be available to many employees who are not entitled to emergency leave under the FFCRA.
Existing OFLA eligibility requirements still apply to this new leave reason, including 180 consecutive days of service and an average of 25 hours per week worked in the 180 days prior to leave. In addition, the OFLA leave entitlement for “sick child leave” remains the same, namely 12 weeks of job protected, unpaid leave within a one-year period.
Employer Consent is Not Required for Intermittent Use of OFLA School Closure Leave
Consistent with other “sick child leaves” under the OFLA, leave to care for a child during a school closure may be taken intermittently. There is no requirement that an employer approve or agree to the intermittent use of leave. In contrast, under the FFCRA, an employee may use emergency paid sick leave or emergency family and medical leave intermittently “only if the Employer and Employee agree.” As a result, for an employee covered by both the FFCRA and the OFLA, if the employer prohibits intermittent leave usage under the FFCRA and the employee does not want or cannot afford to take a continuous leave at the FFCRA’s two-thirds pay rate, the employee may choose to use intermittent unpaid OFLA leave to achieve job protection during periodic absences necessitated by a school closure.
As you can see, the interplay between the federal FFCRA and state family and medical leave legislation can be complex and confusing. Layer on state and local paid sick leave legislation, such as Oregon’s state sick time law (which also allows paid leave usage in connection with school closures), and you may be left scratching your head.
What Employers Should Do
Employers should continue to work closely with their attorneys and third-party leave administrators to analyze requests for time off under the myriad of leave laws potentially applicable in the time of coronavirus. Employers also should review and update company leave policies to comply with recently enacted COVID-19 legislation, regulations, and agency guidance. Covered Oregon employers will need to extend OFLA leave to employees eligible for this new, temporary leave reason. Communication with employees is key so keep your workforce informed about these changes and make sure that managers and HR professionals know which leave reasons qualify for job protection.
What ReedGroup is Doing
At ReedGroup, we are updating our 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 was closed due to a statewide public health emergency such as COVID-19.
And as always, we will continue to provide timely updates as COVID-19 reshapes the leave law landscape. Be sure to follow our blog to stay abreast of new developments.
If you’re looking for assistance managing claims or to ensure compliance across your organization, ReedGroup has solutions for you. Check out our offerings here.
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.