As children are returning to school online, in person, a hybrid of both, or not at all, both the Oregon Bureau of Labor and Industries (BOLI) and the federal Department of Labor (DOL) have recently issued new guidance to employers regarding absences due to school and child care closures during the continuing pandemic. Here is a brief summary of the changes.
BOLI Issues New Permanent Rule Allowing OFLA Leave for Absences to Care for Children Whose School or Childcare Provider is Closed for a Public Health Emergency
As Oregon employers know, last Spring BOLI adopted a temporary rule to allow OFLA-eligible employees to use sick child leave if the child's school or place of care was closed because of Covid-19. On September 11, 2020, BOLI issued permanent changes to the rule providing guidance on permissible purposes for taking OFLA leave (OAR 839-009-0230). Specifically, sick child leave now permanently includes absence to care for an employee's child whose school or child care provider has been closed in conjunction with a statewide public health emergency declared by a public health official.
BOLI also issued new temporary rules clarifying the permanent change. For instance, "child care provider," for the purposes of the expanded sick child leave, means a place of care or a person who cares for a child, and includes both paid and unpaid childcare providers--from nannies, au pairs, and babysitters to grandparents, aunts/uncles, or neighbors. In addition, the rule applies to closures of day care facilities, preschools, before/after school care programs, schools, homes, summer camps, summer enrichment programs, and respite care programs. Further, "closure" includes a closure that is ongoing, intermittent, or recurring and restricts physical access to the child's school or child care provider. (Therefore, virtual school instituted because of the pandemic does count as a closure.)
Note that intermittent leave is available for sick child leave requiring an altered or reduced work schedule because of the intermittent or recurring closure of a child's school or child care provider due to the statewide public health emergency.
The new temporary rules also clarify that Oregon employers may request verification of the need for sick child leave due to the closure of the child's school or child care provider, which may include: (a) the name of the child being cared for; (b) the name of the school or child care provider that has closed or become unavailable; (c) a statement from the employee that no other family member of the child is willing and able to care for the child; and (d) with respect to children older than 14 years of age, a statement that special circumstances exist requiring the employee to provide care to the child during daylight hours.
DOL Also Issues Revised Families First Coronavirus Response Act (FFCRA) Leave Guidance and Regulations
On August 27, 2020, the DOL added several questions and answers to its website clarifying its guidance on FFCRA leave taken for school closures. In particular, the DOL clarified that FFCRA-eligible employees may take paid leave under the FFCRA on days when the employee's child is not permitted to attend school in person and must instead engage in remote learning, as long as the employee needs the leave to actually care for the child during that time and only if no other suitable person is available to do so. For purposes of the FFCRA and its implementing regulations, the school is effectively "closed" to the child on days that the child cannot attend in person. Therefore, employees may take paid leave under the FFCRA on each of the child's remote-learning days.
That said, if the school has offered a choice between in person and remote learning, and the employee has chosen the remote option out of a worry for the child's safety, that does not count as a closure for which paid leave under FFCRA is available.
As a reminder, Oregon employers subject to OFLA should be aware that, depending on the facts, employees may qualify for OFLA leave and FFCRA leave at different times. For instance, an employee may have taken OFLA-only leave to care for a grandparent during the applicable 12-month OFLA leave period for a full 12 weeks and then need and be entitled to closure of care leave under the FFCRA. Potentially, such an employee could then requalify for a new bank of OFLA leave when the new leave year begins. The different reasons for which leave is available will need to be tracked carefully and explained to employees.
Additionally, due to a ruling in a federal lawsuit in the Southern District of New York, as of August 3, 2020, certain provisions of the DOL's regulations interpreting the FFCRA were vacated--specifically, those relating to the work availability requirement, the provision requiring an employee to obtain his or her employer's approval before taking FFCRA leave intermittently, the provision defining "health care provider" for purposes of health care industry employees whose employers may exclude them from FFCRA leave, and the provision requiring documentation of a need for leave prior to taking leave. (The remainder of the FFCRA regulations were unaffected.)
After the ruling, the DOL considered the invalidated provisions vacated nationwide, and recently issued updated regulations that are effective September 16, 2020, through the expiration of the FFCRA's paid leave provisions on December 31, 2020. According to the DOL, the revisions accomplish the following:
- They reaffirm and provide additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them.
- The revisions also reaffirm and provide additional explanation for the requirement that an employee have employer approval to take FFCRA leave intermittently.
- For employers in the healthcare industry, the revised regulations also update the definition of "healthcare provider" (whom an employer may exclude from being eligible for FFCRA leave) to include only employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.
- The new regulations also clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable.
- Finally, the revisions also correct an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers.
Specifically, notice may not be required in advance, and may only be required after the first workday (or portion thereof) for which an employee takes paid sick leave. After the first workday, it is reasonable for an employer to require notice as soon as practicable under the facts and circumstances of the particular case. Generally, it will be reasonable for notice to be given by the employee's spokesperson (e.g., spouse, adult family member, or other responsible party) if the employee is unable to do so personally. Notice for taking expanded family and medical leave is required as soon as practicable. If the reason for this leave is foreseeable, it will generally be practicable to provide notice prior to the need to take leave.
If you have any OFLA- or FFCRA-related questions, please contact Trish Walsh, Kelly Tilden, or Kim McGair.