New State and Federal COVID-19 Revisions

Published Tuesday, September 15, 2020 1:00 pm

Temporary OFLA Amendments for COVID-19 Expanded

On Monday, Oregon’s Bureau of Labor and Industries (BOLI) issued a permanent rule to expand the reach of the Oregon Family Leave Act (OFLA) allowing eligible employees to continue to take “sick child leave” due to the closure of their child’s school or childcare provider due to a statewide public health emergency such as COVID019. The permanent rule took effect on September 14th, replacing a temporary rule that expired on September 13, 2020.

BOLI also issued temporary rules that are effective until March 12, 2021. The temporary rules are as follows:

  1. Child Care Provider includes:
    1. Persons: A person who cares for a child includes but is not limited to individuals paid to provide child care (ex. nannies, au pairs, and babysitters or individuals) who provide child care at no cost and without a license on a regular basis (ex. grandparents, aunts, uncles, or neighbors).
    2. Places: Place of care is a physical location in which care is provided for a child including but not limited to day care facilities, preschools, before and after school care programs, schools, homes, summer camps, summer enrichment programs, and respite care programs. The physical location does not have to be solely dedicated to such care.
  2. Closure means:
    1. Ongoing, intermittent, or recurring and restricts physical access to the child's school or child care provider.
  3. Intermittent Leave means:
    1. Leave taken in multiple blocks of time and/or requiring an altered or reduced work schedule. This includes but is not limited to sick child leave taken requiring an altered or reduced work schedule because the intermittent or recurring closure of a child's school or child care provider is due to COVID-19.
  4. Verification:
    1. 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 COVID-19. Verification may include:
      1. The name of the child being cared for;
      2. The name of the school or child care provider that has closed or become unavailable; and
      3. A statement from the employee that no other family member of the child is willing and able to care for the child.
      4. 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.

As a reminder, employers with 25 or more employees in Oregon are covered under OFLA. Oregon employees are eligible for OFLA if they work 180 days for the employer and average 25 hours per week. If an employee is diagnosed with a confirmed case of COVID-19 or the employee needs to provide care for a family member diagnosed with COVID-19, it may still qualify OFLA as a serious health condition for themselves or their family member. If so, employers should follow the normal family medical leave process.

Please don't hesitate to reach out if you have any questions. Our team is prepared to answer your questions.


On Friday, September 11th, the DOL issued revisions to the Families First Coronavirus Response Act (FFCRA). These revisions were in response to a federal court’s ruling that ended up invalidating several provisions of the FFCRA.

Specifically, the DOL issued the following revisions and clarifications:

  1. Reaffirmed that paid sick leave and expanded family and medical leave may be taken only if the employee has work from which to take leave.
    1. This means an employee cannot take FFCRA paid leave if the employer would not have had work for the employee to perform.
  2. Explained where intermittent leave is permitted, that an employee must obtain their employer’s approval to take paid sick leave or expanded family and medical leave intermittently and explains further the basis for this requirement.
    1. Intermittent leave, as stated by the DOL, “does not apply where employee’s child attends in-person classes for half of each school day or where the employee’s child attends in-person classes every other week and the employee takes FFCRA leave to care for the child during the half-days or weeks in which the child does not attend classes in person. This is different from the scenario where the school is closed for some period, and the employee wishes to take leave only for certain portions of that period for reasons other than the school’s in-person instruction schedule. Under these circumstances, the employee’s FFCRA leave is intermittent and would require his or her employer’s agreement even if the qualifying reason did not apply.”
  3. Revised the definition of health care provider to mean employees who are health care providers under traditional FMLA and other employees who are employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.
  4. Clarified that the information the employee must give the employer to support the need for their leave should be provided to the employer as soon as practicable and revised inconsistency regarding when an employee may be required to give notice of expanded family and medical leave to their employer.
    1. Information employee must provide: The DOL stated that an employee must give an employer enough information to support their leave.  Specifically, an “employer may require an employee to furnish as soon as practicable: (1) the employee’s name; (2) the dates for which leave is requested; (3) the qualifying reason for leave; and (4) an oral or written statement that the employee is unable to work.”
    2. As soon as practically possible: The DOL gave the following example of what “as soon as practically possible” may mean: “For example if an employee learns on Monday morning before work that [their] child’s school will close on Tuesday due to COVID-19 related reasons, the employee must notify their employer as soon as practicable (likely on Monday at work). If the need for expanded family and medical leave was not foreseeable—for instance, if that employee learns of the school’s closure on Tuesday after reporting for work—the employee may begin to take leave without giving prior notice but must still give notice as soon as practicable.”

If you have any questions, please don't hesitate to reach out!

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