On March 15, 2021, the Oregon Bureau of Labor and Industries (BOLI) adopted rules allowing employees to use the Oregon Family Leave Act’s (OFLA) sick child leave to take time off to care for a child whose school or childcare provider is closed because of the COVID-19 statewide public health emergency.
Employers with 25 or more employees in Oregon must provide eligible employees with up to 12 weeks of unpaid OFLA. To be eligible, employees must have worked an average of 25 hours per week for 180 days. OFLA leave is unpaid, unless the employee uses other paid time off that is available to them. The leave is also job protected, meaning the employer must return an employee back to their former job, or an equivalent job if their former position no longer exists, when the employee returns. OFLA leave also requires employers to continue to give their employees the same health insurance benefits they had while they were working when they are on OFLA leave.
Under OFLA, an employee can take up to a total of 12 weeks of time off per year for any of the following reasons:
Up to 12 weeks for:
- parental leave (for either parent) to take time off for the birth, adoption, or foster placement of a child;
- employee’s own serious health condition or to care for a spouse, parent, parent-in-law, or child;
- pregnancy disability leave before or after birth of a child or for prenatal care;
- sick child leave for your child with an illness or injury that requires home care but is not serious;
- due to school or childcare closure.
Up to 14 days for:
- military family leave if your spouse is a service member who has been called to active duty or is on leave from active duty;
Up to 2 weeks for:
- bereavement leave after the death of a family member.
As noted above, the permanent rule also now permits Oregon employees to take up to 12 weeks of OFLA protected time off to care for a child whose school or childcare provider is closed due to COVID-19. Under the rules, an employee may take OFLA leave for a school or childcare closure when:
- access to the physical location where their child receives instruction or care is closed due to COVID-19, even if they receive instruction online;
- when the child’s school or place of care is closed because of COVID–19 and they attend a hybrid version of school but are home some days (the OFLA sick child leave applies the days they are required to be home).
What are Key Differences between OFLA and the Federal Family and Medical Leave Act?
OFLA applies to employers with 25 or more employees in Oregon in the current or previous year. FMLA applies to employers with 50 or more employees in the current or previous year.
To qualify for OFLA protected leave, employees must have been employed for at least 180 calendar days immediately preceding the date the leave begins (this includes all days the employee is maintained on the payroll) and they must have worked an average of 25 hours per week (except for parental leave, when no weekly average is required).
To be eligible for FMLA leave, employees must have worked for the employer for at least 12 months (not necessarily consecutive), and they must have worked at least 1,250 hours during the 12-month period immediately preceding the leave. Also, the employer must have 50 employees within a 75-mile radius of the employee’s worksite for the employee to be FMLA eligible.
Expanded List of Family Members
OFLA has an expanded list of “family members” compared to FMLA. FMLA only provides for protected time off for the serious health condition of the employee or his or her spouse, child or parent (or one standing in the place of a parent or child of the employee). OFLA includes the above but also extends to grandparents and grandchildren, parents-in-law, same-gender domestic partners and children and parents of same-gender domestic partners.
Child Sick Leave
OFLA provides sick child leave that can be used for non-serious health conditions that require home care, whereas FMLA is limited to care for a child with a serious health condition. Since some of the qualifying reasons do not overlap, there are a few situations (such as sick child leave and leave to care for a parent-in-law, grandparent or grandchild with a serious health condition) in which OFLA provides for leave and FMLA does not, so it is not possible to count the leave toward the FMLA entitlement. In such cases, an employer might be required to grant more than 12 weeks of leave in a year. Conversely, some FMLA circumstances do not necessarily qualify under OFLA.
Military Caregiver Leave
FMLA provides military caregiver leave and qualifying exigency leave. The OFLA only provides leave for deployment of a spouse.
OFLA (but not FMLA) offers bereavement leave, which is the leave to make funeral arrangements, attend the funeral or to grieve a family member who has passed away. This leave is limited to two weeks and must be completed within 60 days of the date when the employee learned of the death. Bereavement leave will count toward the total amount of OFLA eligible leave.
The interaction between federal, state, and local leave requirements is becoming more complex in light of the COVID-19 pandemic. Oregon employers are encouraged to reach out to their dedicated HR Business Partner with any questions.