Current through Register Vol. 63, No. 3, March 1, 2024
(1) Except in situations described in
sections (2) and (3) of 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 OFLA leave. The
employee is not required to specify that the request is for OFLA leave.
(a) An employee able to give advance notice
of the need to take OFLA leave must follow the employer's known, reasonable and
customary procedures for requesting any kind of leave, absent unusual
circumstances.
(b) An employer may
request additional information to determine that a requested leave qualifies
for designation as OFLA leave, except in cases of parental leave.
(c) 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.
(d) 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.
(2) When an employee is unable to give the
employer 30 days' notice but has some advance notice of the need for leave, the
employee must give the employer as much advance notice as is
practicable.
(3) When taking OFLA
leave in an unforeseeable situation, an employee must give verbal 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.
(4) When an employee fails to give notice of
foreseeable leave as required by sections (1), (2), and (3) of this rule or the
employer's policies:
(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. See ORS
659A.165(4).
(b) If the leave qualifies under FMLA only,
FMLA regulations apply:
29 CFR
§
825.302 (Employee Notice Requirements
for Foreseeable FMLA Leave) and
29 CFR §
825.304 (Employee Failure to Provide Notice).
FMLA regulation
29 CFR §
825.304 provides that an employer may delay
coverage until up to 30 days after notice was received and the employer may
take appropriate action under its internal rules and procedures for failure to
follows its usual and customary notification rules, as long as the actions are
taken in a manner that does not discriminate against employees taking FMLA
leave.
(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 (see ORS
659A.165(4)).
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, 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 (4)(a) or (4)(c)(B) of this rule may not limit OFLA leave under ORS
659A.159(e)
and OAR 839-009-0230(5) for the death of a family member.
(5) An employer may not reduce an employee's
available OFLA leave or take disciplinary action under (4)(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.
(6) Except in the case of sick child leave
and leave for the death of a family member, when an employee requests OFLA
leave, or when the employer acquires knowledge that an employee's leave may be
for an OFLA-qualifying reason, the employer must provide the employee within
five business days a written request for information to verify whether the
leave is OFLA-qualifying. Within five business days of receiving the requested
information, the employer must notify the employee whether or not the employee
is eligible and qualifies to take OFLA leave absent extenuating circumstances.
All OFLA absences for the same qualifying reason are considered a single leave
event and employee qualification as to that reason for leave does not change
during the applicable 12-month period unless the reason is no longer
qualifying. If an employer determines that an employee does not qualify for
OFLA leave for the reason requested, the employer must notify the employee in
writing that the employee does not qualify.
(a) The written notice that the employee does
not qualify must state that the employee is ineligible or the reason for
requested leave does not qualify for OFLA leave and at least one reason why the
employee is not eligible or the reason does not qualify for leave.
(b) If an employer determines that an
employee does not qualify for OFLA leave for the reason requested because a
medical verification is incomplete or insufficient, the written notice that the
employee does not qualify must state what additional information is required to
make the verification complete or sufficient, and the employee must be afforded
a reasonable period of time to correct the deficiency.
(7) An employer may not request medical
verification of the need for sick child leave until after an employee's third
occurrence of sick child leave in the same OFLA leave year.
(8) When an employee fails to respond to
reasonable employer requests for medical verification of the employee's
requested reason for leave to determine whether the leave is OFLA qualifying,
the employer may deny use of OFLA leave until medical verification is
received.
(9) An employer may not
request medical verification of the need for OFLA leave:
(a) For the death of a family member under
ORS
659A.159(e)
and OAR 839-009-0230(5); or
(b) For
the need for sick child leave due to the closure of a child's school or child
care provider under OAR 839-009-0230(4)(a).
(10) An employer may request verification of
the need for sick child leave due to the closure of the child's school or child
care provider in conjunction with a statewide public health emergency declared
by a public health official. Verification may include:
(a) The name of the child being cared
for;
(b) The name of the school or
child care provider that has closed or become unavailable; and
(c) A statement from the employee that no
other family member of the child is willing and able to care for the
child.
(d) 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.
(11) An employee who has refused a
suitable offer of light duty or modified employment under ORS
659A.043(3)(a)(D)
or
659A.046(3)(d)
and who otherwise is entitled to OFLA leave under 659A.150 to 659A.186:
(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 by this rule that the employee is commencing a
period of leave. See ORS
659A.162,
OAR 839-006-0131(2) and 839-006-0136(4).
(12) A covered employer may provide an OFLA
leave request form. An example of a form that includes information for
determining eligibility for OFLA leave as well as leave covered by OFLA and
FMLA is attached to this rule.
To view attachments referenced in rule text,
click here to view
rule.
Statutory/Other Authority: ORS
659A.805
Statutes/Other Implemented: ORS
659A.150-659A.186,
659A.043 & 659A.046