Under Oregon Governor Kate Brown’s Executive Order 21-15, the state of public health emergency due to COVID-19 will continue in Oregon until December 31, 2021, unless the governor extends the deadline or terminates the state of emergency before the end of the year. Now that school is back in session in Oregon and most schools and students are returning to in-person attendance, the potential exists for school closures and/or student quarantining due to exposures to COVID-19. Employers may want to refamiliarize themselves with leave entitlements that may be available to Oregon employees under the Oregon Sick Leave (OSL) law and/or the Oregon Family Leave Act (OFLA) in the event that the children of employees are subject to quarantine orders or required closures of their schools or places of care.
COVID-19–Related Childcare Leave Under the Oregon Sick Leave Law
Under the OSL law, Oregon employees are entitled to use accrued OSL (or paid time off, if used to satisfy OSL requirements) to care for a child (as defined under the law) who is experiencing illness, including illness due to COVID-19. In addition, Oregon employees are entitled to use accrued OSL to care for their children during periods of quarantine or when their children’s schools or places of care are closed by order of a public official due to a public health emergency. This includes periods of quarantine or closure due to COVID-19, so long as the state of public health emergency due to COVID-19 remains in effect.
All Oregon employees (including full-time, part-time, and temporary employees) are eligible for OSL. OSL is paid if the employer has (a) “10 or more employees working anywhere in [Oregon]”; or (b) “at least six employees per day in Oregon,” if it has a location within the City of Portland “during each of at least 20 workweeks in the calendar or fiscal year immediately preceding the year in which an employee’s sick time is to be taken.” OSL is protected but unpaid for employees who work for employers that meet neither of the above qualifications. Employees begin accruing OSL on their first day of employment, and are eligible to use accrued OSL in 1-hour increments, beginning no later than their 91st day of employment. Employees may accrue up to at least 40 hours of OSL per year, at a rate of at least 1 hour for every 30 hours worked (“or 1-1/3 hours for every 40 hours” that an employee worked). Alternatively, employers may “front-load for employees at least 40 hours of [OSL] at the beginning of the year.”
COVID-19–Related Childcare Leave Under the Oregon Family Leave Act
Oregon employees who are eligible for leave under the OFLA are entitled to use available “sick child leave” under the OFLA to care for a child (as defined under the law) who requires home care due to illness or a closure of the child’s school or child care provider in connection with a statewide public health emergency declared by a public health official. This includes closures due to COVID-19, so long as the state of public health emergency due to COVID-19 remains in effect in Oregon.
For purposes of sick child leave due to a public health emergency, the Oregon Bureau of Labor and Industries (BOLI) has broadly defined “child care provider” and “place of care” to include “day care facilities, preschools, before and after school care programs, schools, homes, summer camps, summer enrichment programs, and respite care programs,” “individuals paid to provide child care” (e.g., nannies, au pairs, and babysitters), or “individuals who provide child care at no cost and without a license on a regular basis” (e.g., grandparents, aunts, uncles, or neighbors).
BOLI has also defined “closure” broadly to include “ongoing” or “intermittent” closures that “restrict physical access” to schools or child care providers and includes a shift to distance learning and hybrid learning models. BOLI has further posted informal guidance on its website stating that OFLA leave may also be available if a child is “under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine.”
Employers may not require employees to provide medical verification for sick child leave due to the closure of a child’s school or child care provider in conjunction with a statewide public health emergency declared by a public health official. However, they may require verification of the need for such leave, including
- “[t]he name of the child being cared for”;
- “[t]he name of the school or child care provider that has closed or become unavailable”;
- “[a] statement affirming that no other family member is willing and able to care for the child”; and
- for the care of a child older than 14, “a statement that special circumstances exist requiring the employee to provide care” for the child during daylight hours.
Under current law, the OFLA applies to any employer with 25 or more employees in Oregon. Employees of a covered employer are eligible for up to 12 weeks of unpaid OFLA leave per year for authorized reasons if they have (a) been employed by the employer for 180 days and (b) “worked an average of 25 hours a week” during the 180 days immediately before the leave begins (except for parental leave “to care for a newborn, newly adopted child or newly placed foster child,” in which case the employee need only satisfy the 180 days of employment requirement). Additional OFLA leave is also available in some circumstances when employees use OFLA leave for purposes of pregnancy and/or parental leave.
Under House Bill 2474, which Governor Brown signed into law on June 8, 2021, and which is effective on January 1, 2022, “during a period of time covered by a public health emergency,” all employees of a covered employer who worked for the employer for at least 30 days immediately before the leave, and who worked an average of at least 25 hours per week during the 30 days immediately before the leave, will be eligible to use OFLA leave. Thus, if the governor or a public health official extends the public health emergency due to COVID-19 into 2022, OFLA leave will be available to a much broader range of employees later this school year after winter break.
As the school year progresses, employers may want to review and update their policies and provide training or reminders to managers regarding the availability of paid and/or unpaid leave to employees who need time off to care for their children who are ill or quarantined, or whose schools or places of care are closed due to COVID-19. Employers may also want to keep in mind that both the Oregon Sick Leave law and Oregon Family Leave Act prohibit them from taking any disciplinary or retaliatory action against employees who have used, inquired about, or requested to use OSL or OFLA leave, or for exercising any rights under the OSL law or OFLA.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.