Current through Register Vol. 63, No. 9, September 1, 2024
As used in this Division 9:
(1) "Alternate duty" means work assigned to
an employee that may consist of:
(a) The
employee's same duties worked on a different schedule; or
(b) Different duties worked on the same or
different schedule.
(2)
(a) "Affinity" means a relationship for which
there is a significant personal bond that, when examined under the totality of
the circumstances, is like a family relationship.
(b) The bond described in subsection (a) of
this section may be demonstrated by, but is not limited to the following
factors, with no single factor being determinative:
(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) Any
other factor that demonstrates the existence of a family-like
relationship.
(3) "Child," means the eligible employee's
biological, adopted, foster or stepchild, the child of the employee's spouse or
domestic partner or a child with whom the employee is or was in a relationship
of in loco parentis. For purposes of child placement leave and sick child leave
only, the child must be:
(a) Under the age of
18; or
(b) An adult dependent child
substantially limited by a physical or mental impairment as defined by ORS
659A.104 (1)(a), (3), and
(4).
(4) "Child care provider" for the purpose of
sick child leave during a statewide public health emergency declared by a
public health official means a place of care or person who cares for a child.
(a) A person who cares for a child includes
but is not limited to individuals paid to provide child care, for example
nannies, au pairs, and babysitters or individuals who provide child care at no
cost and without a license on a regular basis, for example, grandparents,
aunts, uncles, or neighbors.
(b)
Place of care is a physical location in which care is provided for a child
including but not limited to day care facilities, preschools, before and after
school care programs, schools, homes, summer camps, summer enrichment programs,
and respite care programs. The physical location does not have to be solely
dedicated to such care.
(5) "Closure" for the purpose of sick child
leave during a statewide public health emergency declared by a public health
official means a closure that is ongoing, intermittent, or recurring and
restricts physical access to the child's school or child care
provider.
(6) "Covered employer"
means any employer employing 25 or more persons in the state of Oregon for each
working day during each of 20 or more calendar work weeks in the year in which
the leave is to be taken or in the year immediately preceding the year in which
the leave is to be taken.
(7)
(a) "Eligible employee" means an employee
described in ORS 659A.156 who is employed in the
State of Oregon on the date OFLA leave begins.
(b) To determine the number of days an
employee has worked, the employer must count the number of days an employee is
maintained on the payroll, including all time paid or unpaid. If an employee
continues to be employed by a successor in interest to the original employer,
the number of days worked are counted as continuous employment by a single
employer.
(c) To determine an
employee's average hours of work per week, the employer must count actual hours
worked using guidelines set out pursuant to the federal Fair Labor Standards
Act.
(d) For eligibility of
employees reemployed following a period of uniformed service:
(A) The federal Uniformed Services Employment
and Reemployment Act, 38 USC
§
43 (USERRA) provides that an employee
reemployed following a period of uniformed service is entitled to the seniority
and seniority-based rights and benefits that the employee had on the date the
uniformed service began, plus any seniority and seniority-based rights and
benefits that the employee would have attained if the employee had remained
continuously employed. U.S. Department of Labor regulation
20 CFR §
1002.210 provides that in determining
entitlement to seniority and seniority-based rights and benefits, the period of
absence from employment due to or necessitated by uniformed service is not
considered a break in employment. The rights and benefits protected by USERRA
upon reemployment include those provided by the employer and those required by
statute. Under USERRA, a reemployed service member would be eligible for leave
under OFLA if the number of days and the number of hours of work for which the
service member was employed by the civilian employer, together with the number
of days and number of hours of work for which the service member would have
been employed by the civilian employer during the period of uniformed service,
meet OFLA's eligibility requirements. In the event that a service member is
denied OFLA leave for failing to satisfy the OFLA days and hours of work
requirement due to absence from employment necessitated by uniformed service,
the service member may have a cause of action under USERRA but not under OFLA.
NOTE: USERRA also applies to leave under the federal Family and
Medical Leave Act of 1993, 29 USC §
2601-2654
(FMLA).
(B) ORS
659A.082-659A.088 provides that an
employee reemployed following a period of uniformed service is entitled to the
seniority and seniority-based rights and benefits that the employee had on the
date the uniformed service began, plus any seniority and seniority-based rights
and benefits that the employee would have attained if the employee had remained
continuously employed. In determining entitlement to seniority and
seniority-based rights and benefits, the period of absence from employment due
to or necessitated by uniformed service is not considered a break in
employment. If a reemployed service member was eligible for leave under OFLA
prior to the date uniformed service began, OFLA's eligibility requirements are
considered met.
(e) For
the purpose of qualifying as an eligible employee, the employee need not work
solely in the state of Oregon.
(8) "Family member" means an individual
related to an eligible employee by affinity or an individual who is an eligible
employee's:
(a) Spouse or domestic
partner;
(b) Child or the child's
spouse or domestic partner;
(c)
Parent or the parent's spouse or domestic partner;
(d) Sibling or stepsibling or the sibling's
or stepsibling's spouse or domestic partner;
(e) Grandparent or the grandparent's spouse
or domestic partner; or
(f)
Grandchild or the grandchild's spouse or domestic partner.
(9) "FMLA" is the federal Family and Medical
Leave Act, 29 USC §
2601.
(10) "Foreseeable leave" means OFLA leave
that is not "unforeseeable leave."
(11) "Foster child" means a child, not
adopted, but being reared as a result of legal process, by a person other than
the child's biological parent.
(12)
"Gender" means an individual's assigned sex at birth, gender identity, or
gender expression.
(13) "Gender
expression" means the manner in which an individual's gender identity is
expressed, including, but not limited to, through dress, appearance, manner,
speech, or lifestyle, whether or not that expression is different from that
traditionally associated with the individual's assigned sex at birth.
(14) "Gender identity" has the meaning given
that term in ORS 174.100
(15) "Health care provider" has the meaning
given that term in ORS
659A.150.
(16) "In loco parentis" means in the place of
a parent, having financial or day-to-day responsibility for the care of a
child. A legal or biological relationship is not required.
(17) "Intermittent leave" means leave taken
in multiple blocks of time and/or requiring an altered or reduced work schedule
including but not limited to sick child leave taken requiring an altered or
reduced work schedule because the intermittent or recurring closure of a
child's school or child care provider due to a statewide public health
emergency declared by a public health official.
(18) "OFLA" is the Oregon Family Leave Act,
ORS 659A.150 to
659A.186.
(19)
(a)
"OFLA leave" means a leave of absence for purposes described in ORS
659A.150 to
659A.186 or OAR
839-009-0230.
(b) "OFLA leave" does not include leave taken
by an eligible employee who is unable to work because of a disabling
compensable injury, as defined in ORS
656.005, unless the leave
qualifies as OFLA leave to which the employee is otherwise entitled and the
employee refuses a bona fide offer from the employer of light duty or modified
employment that is suitable prior to becoming medically stationary under ORS
659A.043 or
659A.046.
(20) "Parent" means:
(a) An eligible employee's biological parent,
adoptive parent, stepparent or current or former foster parent or a person who
was or is the eligible employee's legal guardian or with whom the eligible
employee was or is in a relationship of in loco parentis; or
(b) The parent of the eligible employee's
spouse or domestic partner who meets a description in subsection (a) of this
section.
(21) "Public
health emergency" has the meaning given that term in ORS
659A.150.
(22) "Spouse" includes:
(a) Individuals in a marriage recognized
under state law in the state in which the marriage was entered into;
(b) Individuals in a marriage validly
performed in a foreign jurisdiction;
(c) Individuals in a common law marriage that
was entered into in a state that recognizes such marriages; and
(d) Individuals who have lawfully established
a civil union, domestic partnership or similar relationship under the laws of
any state. Individuals described in this subsection are not required to obtain
a marriage license, establish a record of marriage or solemnize their
relationship.
(23)
"Unforeseeable leave" means OFLA bereavement leave, child placement leave,
pregnancy disability leave or leave taken as a result of an unexpected illness,
injury or condition of a child of the employee that requires home
care.
Statutory/Other Authority: ORS
659A.805 & ORS
651.060
Statutes/Other Implemented: ORS
659A.150 -
659A.186, ORS
659A.043 & ORS
659A.046
