On March 18, the Oregon Bureau of Labor and Industries (BOLI) issued an emergency regulation amending the “sick child” leave provisions of the Oregon Family Leave Act (OFLA). The new regulations provide:
Sick child leave includes absence to care for an employee's child whose school or place of care has been closed in conjunction with a statewide public health emergency declared by a public health official.
Application and employee eligibility. For most, if not all, practical purposes, the Governor’s order closing all K-12 schools in response to the COVID-19 crisis will qualify employees for leave under the emergency regulation, provided the employee is otherwise eligible for OFLA “sick child” leave. For this purpose, an employee must have worked for a “covered employer” for an average of at least 25 hours per week during the 180 calendar days, immediately preceding the date OFLA leave begins.
Who is a “covered employer”? A "covered employer" is any employer employing 25 or more persons in the state of Oregon for each working day during each of 20 or more calendar work weeks in the year, in which the leave is to be taken or in the year immediately preceding the year in which the leave is to be taken.
Effective date and duration. The regulation is effective as of March 18, and remains in effect until September 13, 2020.
Is the leave paid or unpaid? Oregon employees may already use up to 40 hours of sick leave when needed to care for a child due to the closure of a school. Moreover, employees can ordinarily use other available paid leave for absences protected by OFLA. If employees have exhausted paid leave, the leave would be unpaid. However, as discussed in the next paragraph, paid leave may be afforded some employees under FFCRA.
Relationship to FFCRA Leave. Oregon employers covered by OFLA who are exempt from the protected leave and paid leave requirements of the FFCRA (i.e., employer with more than 500 employees), or employers who may be determined to be exempt (i.e., employers with less than 50 employees for whom payment of paid leave would jeopardize the viability of the business) will still be required to provide protected leave under OFLA, and to permit employees to use accrued paid leave provided under Oregon sick leave law, or an employer’s paid leave policies. Under FFCRA, the first 10 days of protected leave attributable to the closure of an employee’s child’s school or care provider are unpaid under federal law. Any paid leave available under state law or an employer policy would be available and payable during the 10 day period. Employers may not however, require an employee to use other paid leave, in lieu of federal paid leave, when federal paid leave becomes available. For information about FFCRA, see this update.
Updates and Questions? Lane Powell will continue to monitor developments and provide you with timely updates. Please contact us if there are any questions. For more information, consult Lane Powell’s COVID-19 Resource Center or contact Paul Ostroff.
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