Current through Register Vol. 63, No. 9, September 1, 2024
(1) Except as
otherwise described in this rule, a covered employer may require an eligible
employee to give 30 days' written notice of the need for foreseeable leave,
including an explanation of the need for leave, before starting sick child
leave. The employee is not required to specify that the request is for OFLA
leave.
(2) When an employee is
unable to give the employer 30 days' notice of the need for sick child leave
but has some advance notice of the need for the leave, the employee must give
the employer as much advance notice as is practicable.
(3) An employee able to give advance notice
of the need to take sick child leave must follow the employer's known,
reasonable and customary procedures for requesting any kind of leave, absent
unusual circumstances.
(4) When
taking OFLA leave in an unforeseeable situation, an employee must give oral or
written notice within 24 hours before or after commencement of the leave. This
notice may be given by any other person on behalf of an employee taking
unforeseeable OFLA leave. The employer may require written notice by the
employee within three days of the employee's return to work.
(5)
(a)
Except as otherwise provided in OAR
839-009-0260 and subsection (e)
of this section, an employer may request additional information to determine
that a requested leave qualifies for designation as OFLA leave.
(b) The employer may provisionally designate
an absence as OFLA leave until sufficient information is received to make a
determination. An employee who calls in "sick" without providing further
information will not be considered to have provided sufficient notice to
trigger an employer's obligations under OFLA, unless the employer has reason to
know the employee is attempting to invoke protected leave or the employer
acquires knowledge that an employee's leave may be for an OFLA-qualifying
reason.
(c) An employee on OFLA
leave who needs to take more leave than originally authorized must give the
employer reasonable notice prior to the end of the authorized leave, following
the employer's known, reasonable and customary procedures for requesting any
kind of leave. However, when an authorized period of OFLA leave has ended and
an employee does not return to work, an employer having reason to believe the
continuing absence may qualify as OFLA leave must request additional
information, and may not treat a continuing absence as unauthorized unless
requested information is not provided or does not support OFLA
qualification.
(d) An eligible
employee may receive notice of the death of a family member by any means and
from any source.
(e) An employer
may not request additional information to verify bereavement leave, except the
employer may require the use of an attestation form described in OAR
839-011-0240 when the family member is related by affinity.
(6) When an employee fails to give
notice of foreseeable leave as required by sections (1) and (2), and (3):
(a) If the leave qualifies under OFLA only
and not under FMLA, the employer may reduce the total period of unused OFLA
leave by an amount no greater than the number of days of leave the employee has
taken without providing timely notice of leave. This reduction of leave may not
exceed three weeks in a one-year leave period; and the employer may subject the
employee to disciplinary action under a uniformly applied policy or practice of
the employer.
(b) If the leave
qualifies under FMLA only, FMLA regulations apply.
(c) If the leave qualifies under both OFLA
and FMLA the employer may:
(A) Delay FMLA
coverage until up to 30 days after notice was received as permitted by the FMLA
regulations at 29 CFR §
825.304 (this applies only to leave to which
the employee is entitled under FMLA);
(B) Reduce the total period of unused OFLA
leave by an amount no greater than the number of days of leave the employee has
taken without providing timely notice of leave. This reduction of leave may not
exceed three weeks in a one-year leave period. This applies only to leave to
which the employee is entitled under OFLA; and
(C) In addition to actions permitted under
(A) and (B), the employer may also take appropriate action under its internal
rules and procedures for failure to follow its usual and customary notification
rules, absent unusual circumstances, as long as the actions are taken in a
manner that does not discriminate against employees taking OFLA or FMLA
leave.
(d) A reduction
of OFLA leave under (6)(a) or (6)(c) of this rule may not limit OFLA
bereavement leave.
(7)
An employer may not reduce an employee's available OFLA leave or take
disciplinary action under (6)(a) or (c) of this rule unless the employer has
posted the required Bureau of Labor and Industries Family Leave Act notice or
the employer can otherwise establish that the employee had actual knowledge of
the notice requirement.
(8) An
employee who has refused a suitable offer of light duty or modified employment
under ORS 659A.043 or
659A.046 and who otherwise is
entitled to OFLA leave:
(a) Automatically
commences a period of OFLA leave upon refusing the offer of employment;
and
(b) Need not give notice to the
employer that would otherwise be required that the employee is commencing a
period of leave.
(9) A
covered employer may provide an OFLA leave request form.
To view attachments referenced in rule text,
click here to view
rule.
Statutory/Other Authority: ORS
651.060 & ORS
659A.805
Statutes/Other Implemented: ORS
659A.150-659A.186, ORS
659A.043 & ORS
659A.046
