Current through Register Vol. 63, No. 3, March 1, 2024
(1) An eligible
employee is entitled to up to a total of 12 weeks of OFLA leave in any one-year
period.
(2) In addition to the 12
weeks of leave authorized by ORS
659A.162(1),
a female eligible employee may take a total of 12 weeks of leave within the
same leave year for an illness, injury or condition related to pregnancy or
childbirth that disables the employee from performing any available job duties
offered by the employer. The employee may use all or part of the 12 weeks of
leave authorized by 659A.162(1) and all or part of the 12 weeks of pregnancy
disability leave in any order. The employee need not exhaust either type of
leave in order to use the other.
(3) An eligible employee taking the entire 12
weeks of OFLA leave authorized by ORS
659A.162(1)
for parental leave may take an additional 12 weeks of sick child leave within
the same leave year. If the employee uses less than 12 weeks of parental leave,
however, no additional sick child leave is available, except that the balance
of the 12 weeks of OFLA leave authorized by ORS
659A.162
may be used for sick child leave or for any OFLA leave purpose.
(4) A female eligible employee may take up to
36 weeks of OFLA leave in one leave year that includes up to 12 weeks of
pregnancy disability leave, 12 weeks of parental leave, and up to 12 weeks of
sick child leave.
(5) An eligible
employee may take up to 24 weeks of OFLA leave in one leave year under the
following circumstances:
(a) The employee
takes 12 weeks of parental leave, followed by:
(b) Up to 12 weeks of sick child
leave.
(6) An eligible
employee taking leave under ORS
659A.159(1)(e)
and OAR 839-009-0230(5) to deal with the death of a family member is entitled
to take up to a total of two weeks of OFLA leave for that purpose.
(a) An eligible employee is entitled to take
up to two weeks of OFLA leave upon the death of each family member of the
employee within any one-year period, except that the leave taken to deal with
the deaths of family members may not exceed the total in ORS
659A.159(1)
and subsection (1) of this rule.
(b) A covered employer may not require an
eligible employee to take multiple leave periods concurrently if more than one
family member of the employee dies during the one year period. If multiple
family members of an eligible employee die concurrently, an eligible employee
may take up to two weeks of leave for the death of each family
member.
(c) All leave taken under
ORS
659A.159(1)(e)
and OAR 839-009-0230(5) shall be counted toward the total period of OFLA leave
authorized in ORS
659A.159(1)
and subsection (1) of this rule.
(d) All leave taken for the death of a family
member must be completed within 60 days of the date on which the eligible
employee receives notice of the death of the family member. Notice of the death
of a family member may be by any means and from any source.
(7) Two or more eligible employees
who are family members of each other as defined in OAR 839-009-0210(9), working
for the same covered employer, may take OFLA leave at the same time with that
covered employer only under the following circumstances:
(a) One eligible family member needs to care
for another eligible family member who is suffering from a serious health
condition;
(b) One eligible family
member needs to care for a child suffering from a serious or non-serious health
condition while another eligible family member is suffering from a serious
health condition;
(c) Two or more
eligible family members are suffering from one or more serious health
conditions;
(d) The employer allows
family members to take concurrent leave; or
(e) The eligible family members are taking
leave for the death of a family member pursuant to ORS
659A.159(1)(e)
and OAR 839-009-0230(5).
(8) Unless the covered employer approves
otherwise, parental leave shall be taken in one uninterrupted period, and shall
be completed within 12 months of the birth, adoption or placement of the child.
Exceptions shall be made:
(a) To allow
intermittent parental leave to effectuate adoption or foster placement of a
child. Parental leave taken to effectuate adoption or foster placement of a
child is part of the total amount of parental leave available to the employee,
but need not be taken in one, uninterrupted period with any remaining parental
leave taken after the actual placement of the child.
(b) To allow parental leave to attend the
birth of or give birth to the employee's child. Such leave need not be taken in
one, uninterrupted period with any remaining parental leave taken after the
birth of the child.
(9)
The birth, adoption or foster placement of multiple children at one time
entitles the employee to take only one 12-week period of parental
leave.
(10) A covered employer need
not grant sick child leave to an eligible employee if another family member of
the child is willing and able to care for the child.
(11) A covered employer may not reduce the
amount of OFLA leave available to an eligible employee under this section by
any period the employee is unable to work because of a disabling compensable
injury as defined in ORS
656.005.
(a) If an employee uses OFLA leave for a
workplace injury pending acceptance of a workers' compensation claim, upon
acceptance of the claim any OFLA leave used for the workplace injury must be
restored to the employee. If the claim is denied, OFLA leave will be deducted
from the employee's entitlement.
(b) If a worker's compensation claim is first
denied and then accepted, the employer must restore any OFLA leave taken for
the condition covered by worker's compensation in the leave year in which the
worker's compensation claim is accepted.
(c) Notwithstanding this rule, the employer
may reduce the amount of OFLA leave available to an eligible employee under
this section by any period the employee is unable to work because of a
disabling compensable injury as defined in ORS
656.005 after the
employee has refused a suitable offer of light duty or modified employment
under ORS
659A.043(3)
(a) (D) or
659A.046(3)(d).
See ORS
659A.043(4),
659A.046(5),
659A.162,
OAR 839-006-0131(2) and 839-006-0136(4).
(d) An employee unable to work for an
employer because of a disabling compensable injury arising out of and in the
course of employment for that employer, but who is also employed by and able to
work for another employer, may be eligible and qualify to use OFLA leave under
the other employer.
(12)
For the purpose of intermittent leave, OFLA leave entitlement is calculated for
an employee by multiplying the number of hours the employee normally works per
week by 12. (For example, an employee normally employed to work 30 hours per
week is entitled to 12 times 30 hours, or a total of 360 hours OFLA
intermittent leave; an employee normally employed to work 50 hours per week is
entitled to 12 times 50 hours, or a total of 600 hours OFLA intermittent
leave.)
(a) If an employee's schedule varies
from week to week, a weekly average of the hours worked over the 12 months
worked prior to the beginning of the leave period must be used for calculating
the employee's normal work week. (For example, an employee working an average
of 25 hours per week is entitled to 12 times 25 hours, or a total of 300 hours
OFLA leave.)
(b) If an employee
takes intermittent or reduced work schedule OFLA leave, only the actual number
of hours of leave taken may be counted toward the 12 weeks of OFLA leave to
which the employee is entitled.
(13) An employee who has previously qualified
for and taken some portion of OFLA leave must requalify as an "eligible
employee" as defined in OAR 839-009-0210(8) each time the employee begins
additional OFLA leave within the same leave year. Exceptions:
(a) An employee who has been granted OFLA
leave for a qualifying serious health condition of the employee or family
member need not requalify under OAR 839-009-0210(8) each time the employee
takes leave for the same individual and the same serious health condition
during the same leave year.
(b) A
female eligible employee taking, in any order, some or all of 12 weeks of OFLA
pregnancy disability leave and some or all of 12 weeks of OFLA leave for any
other purpose, need not requalify under OAR 839-009-0210(8) each time she takes
OFLA leave within the same leave year.
(c) An employee who has taken 12 weeks of
OFLA parental leave, need not requalify under OAR 839-009-0210(8) for up to an
additional 12 weeks of leave within the same leave year when used for the
purposes of OFLA sick child leave.
(d) An employee unable to work because of a
disabling compensable injury as defined in ORS
656.005 need not
requalify under OAR 839-009-0210(8) in order to use OFLA leave following a
period the employee is off work due to the compensable injury.
(e) An employee who has taken serious health
condition leave to care for a family member who dies during the employee's
serious health condition leave, need not requalify under OAR 839-009-0210(8) to
take leave for the death of that family member.
(14) An exempt employee is a salaried
executive, administrative or professional employee under the federal Fair Labor
Standards Act (see 29 CFR § 541 through 541.315) or the state minimum wage
and overtime laws (ORS chapters 652 and 653).
(a) When OFLA leave is also covered by FMLA
and the employee takes intermittent leave in blocks of less than one day, the
employer may reduce the employee's salary for the part-day absence without the
loss of the employee's exempt status in accordance with OAR
839-020-0004(30)(a).
(b) When OFLA
leave is not covered by FMLA (e.g., the employer has 25 to 49 employees, the
leave is taken for a sick child, for the serious health condition of a
parent-in-law, for the serious health condition of a registered domestic
partner or for the serious health condition of a registered domestic partner's
parents or for the death of a family member), and the employee takes
intermittent leave in blocks of less than one day, an employer will jeopardize
the employee's exempt status if the employer reduces the employee's salary for
the part-day absence.
(15) The requirements of OFLA do not apply to
any employer offering eligible employees a nondiscriminatory cafeteria plan, as
defined by section 125 of the Internal Revenue Code of 1986, that provides as
one of its options employee leave at least as generous as the leave required by
OFLA.
(16) ORS
659A.150
to
659A.186
and these rules do not limit any right of an employee to any leave that is
similar to the leave described in 695A.159(1) and OAR 839-009-0230 and to which
the employee may be entitled under any agreement between the employer and the
employee, collective bargaining agreement or employer policy.
Statutory/Other Authority: ORS
659A.805
Statutes/Other Implemented: ORS
659A.150
- 659A.186, 659A.043 & 659A.046