BOLI Permanently Expands OFLA for Eligible Working Parents Impacted by COVID-19

On the day that its temporary rule was set to expire, the Oregon Bureau of Labor and Industries (“BOLI”) issued a permanent rule to allow employees to continue to avail themselves of protected “sick child leave” under the Oregon Family Leave Act (“OFLA”) to care for a child whose school or childcare provider has been closed in conjunction with a statewide public health emergency, including COVID-19. We previously blogged about BOLI’s temporary rule here.

Based on public comment received during the permanent rule-making process, as well as the fluid nature of safety protocols with respect to childcare providers and school re-openings, the agency determined that its now permanent rule would benefit from additional, immediate clarifications to other OFLA rules.  Accordingly, BOLI simultaneously issued another set of temporary rules (effective September 14, 2020 through March 12, 2021) of which employers should be aware both with respect to implementing the expanded sick child leave and to the extent they want to provide input during the public comment period.

Under the temporary amendments, BOLI broadly defines “childcare provider” to include any “place of care” or person who cares for a child. “Place of care” includes 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.  A person who cares for a child includes nannies, au pairs, babysitters, and individuals who regularly provide childcare at no cost, for example, grandparents, aunts, uncles, or neighbors.

BOLI’s temporary amendments also explain that childcare leave may be taken intermittently, including on an altered or reduced work schedule because of the intermittent or recurring closure of a child’s school or childcare provider due to a statewide public health emergency.  It is important for employers to know that this is in contrast to leave for school and daycare closures under the Families First Coronavirus Response Act (“FFCRA”), where employers have discretion whether to grant leave on an intermittent basis.  In the event of a discrepancy between OFLA and FMLA, just like under any other leave qualifying situation, an eligible employee will receive the benefit of the most favorable law.

Further, the immediate guidance specifies what documentation an employer may require to verify the need for leave. Verification may include:

• the name of the child being cared for;
• the name of the school or childcare provider that has closed or become unavailable;
• a statement from the employee that no other family member of the child is willing and able to care for the child; and
• in the case of a child older than 14, a statement that special circumstances exist requiring the employee to provide care to the child during daylight hours.

Finally, BOLI has defined “closure” during a statewide public health emergency declared by a public health official to mean “a closure that is ongoing, intermittent, or recurring and restricts physical access to the child’s school or childcare provider.”  Under this broad definition, it is reasonable to conclude that periods of required distance learning fall within the statutory scope.  However, it is less clear whether an employee’s voluntary election to continue with distance learning once children return to the classroom would be covered, another potential difference between OFLA and FFCRA, which we blogged about here.  One thing that remains clear and that is not altered by the permanent or temporary rulemaking (and that is consistent with FFCRA) is the fundamental requirement that there is work available for the employee to perform.