Current through Register Vol. 63, No. 9, September 1, 2024
(1) "Active
duty or call to active duty status" means duty under a call or order to active
duty, or notification of an impending call or order to active duty, during a
contingency operation, pursuant to Title 10 of the United States Code.
"Contingency operation" means a military operation that:
(a) Is designated by the Secretary of Defense
as an operation in which members of the armed forces are or may become involved
in military actions, operations, or hostilities against an enemy of the United
States or against an opposing military force; or
(b) Results in the call or order to, or
retention on, active duty of members of the uniformed services under section
688, 12301(a), 12302, 12304, 12305, or 12406 of Title 10 of the United States
Code, chapter 15 of Title 10 of the United States Code, or any other provision
of law during a war or during a national emergency declared by the President or
Congress. (See
10
U.S.C. §
101(a)(13))
(2) "Covered employer"
means:
(a) The State of Oregon and a
department, agency, board or commission of the State of Oregon;
(b) A local government, including but not
limited to a county, city, town, municipal corporation, independent public
corporation or political subdivision of the State of Oregon; and
(c) A person, firm, corporation, partnership,
legal representative, or other business entity that engages in any business,
industry, profession, or activity in the state of Oregon and that employs 25 or
more individuals in the state of Oregon for each working day during each of 20
or more calendar workweeks in the year in which an eligible employee takes
OMFLA leave or in the year immediately preceding the year in which an eligible
employee takes OMFLA leave.
(3) "Domestic partner" means an individual
joined in a domestic partnership.
(4) "Domestic partnership" for the purposes
of ORS chapter 659A means two individuals of the same sex who have received a
Certificate of Registered Domestic Partnership from the State of Oregon in
compliance with ORS 432.405(1) and
rules adopted by the State Registrar of the Center for Health
Statistics.
(5) "Eligible employee"
means an individual who performs services for compensation for an employer for
an average of at least 20 hours per week and includes all individuals employed
at any site owned or operated in Oregon by an employer, but does not include
independent contractors.
(a) In determining
an average of at least 20 hours per week, the employer must count actual hours
worked using guidelines set out pursuant to the federal Fair Labor Standards
Act. (See 29 CFR § 785)
(b)
For the purpose of qualifying as an eligible employee, the employee need not
perform services solely in the state of Oregon.
(c) Eligibility of employees reemployed
following a period of uniformed service: 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 OMFLA leave 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 the eligibility requirements of these rules.
In the event that a service member is denied OMFLA leave for failing to satisfy
the 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 OMFLA.
(d) 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 OMFLA
prior to the date uniformed service began, OMFLA's eligibility requirements are
considered met.
(6)
"Intermittent leave" means leave taken in multiple blocks of time and/or
requiring an altered or reduced work schedule.
(7) "Period of Military Conflict" means a
period of war:
(a) Declared by the United
States Congress;
(b) Declared by
executive order of the President of the United States; or
(c) In which a reserve component of the Armed
Forces of the United States is ordered to active duty pursuant to Title 32 of
the United States Code or section 12301 or 12302 of Title 10 of the United
States Code.
(8)
"Spouse" has the meaning given in OAR
839-009-0210(23).
Statutory/Other Authority: ORS
659A.093(6)
Statutes/Other Implemented: ORS
659A.090 -
659A.099
