OAR 839-009-0210: OFLA: Definitions

As used in this Division 9: (1) “Alternate duty" means work assigned to an employee that may consist of: (a) The employee's same duties worked on a different schedule; or (b) Different duties worked on the same or different schedule. (2)(a) “Affinity” means a relationship for which there is a significant personal bond that, when examined under the totality of the circumstances, is like a family relationship. (b) The bond described in subsection (a) of this section may be demonstrated by, but is not limited to the following factors, with no single factor being determinative: (A) Shared personal financial responsibility, including shared leases, common ownership of real or personal property, joint liability for bills or beneficiary designations; (B) Emergency contact designation of the employee by the other individual in the relationship or the emergency contact designation of the other individual in the relationship by the employee; (C) The expectation to provide care because of the relationship or the prior provision of care; (D) Cohabitation and its duration and purpose; (E) Geographic proximity; and (F) Any other factor that demonstrates the existence of a family-like relationship. (3) "Child," means the eligible employee’s biological, adopted, foster or stepchild, the child of the employee's spouse or domestic partner or a child with whom the employee is or was in a relationship of in loco parentis. For purposes of child placement leave and sick child leave only, the child must be: (a) Under the age of 18; or (b) An adult dependent child substantially limited by a physical or mental impairment as defined by ORS 659A.104 (1)(a), (3), and (4). (4) “Child care provider” for the purpose of sick child leave during a statewide public health emergency declared by a public health official means a place of care or person who cares for a child. (a) A person who cares for a child includes but is not limited to individuals paid to provide child care, for example nannies, au pairs, and babysitters or individuals who provide child care at no cost and without a license on a regular basis, for example, grandparents, aunts, uncles, or neighbors. (b) 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. (5) "Closure" for the purpose of sick child leave during a statewide public health emergency declared by a public health official means a closure that is ongoing, intermittent, or recurring and restricts physical access to the child’s school or child care provider. (6) "Covered employer" means 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. (7)(a) "Eligible employee" means an employee described in ORS 659A.156 who is employed in the State of Oregon on the date OFLA leave begins. (b) To determine the number of days an employee has worked, the employer must count the number of days an employee is maintained on the payroll, including all time paid or unpaid. If an employee continues to be employed by a successor in interest to the original employer, the number of days worked are counted as continuous employment by a single employer. (c) To determine an employee’s average hours of work per week, the employer must count actual hours worked using guidelines set out pursuant to the federal Fair Labor Standards Act. (d) For eligibility of employees reemployed following a period of uniformed service: (A) The federal Uniformed Services Employment and Reemployment Act, 38 USC §43 (USERRA) provides that an employee reemployed following a period of uniformed service is entitled to the seniority and seniority-based rights and benefits that the employee had on the date the uniformed service began, plus any seniority and seniority-based rights and benefits that the employee would have attained if the employee had remained continuously employed. U.S. Department of Labor regulation 20 CFR §1002.210 provides that in determining entitlement to seniority and seniority-based rights and benefits, the period of absence from employment due to or necessitated by uniformed service is not considered a break in employment. The rights and benefits protected by USERRA upon reemployment include those provided by the employer and those required by statute. Under USERRA, a reemployed service member would be eligible for leave under OFLA if the number of days and the number of hours of work for which the service member was employed by the civilian employer, together with the number of days and number of hours of work for which the service member would have been employed by the civilian employer during the period of uniformed service, meet OFLA's eligibility requirements. In the event that a service member is denied OFLA leave for failing to satisfy the OFLA days and hours of work requirement due to absence from employment necessitated by uniformed service, the service member may have a cause of action under USERRA but not under OFLA. NOTE: USERRA also applies to leave under the federal Family and Medical Leave Act of 1993, 29 USC §2601-2654 (FMLA). (B) ORS 659A.082–659A.088 provides that an employee reemployed following a period of uniformed service is entitled to the seniority and seniority-based rights and benefits that the employee had on the date the uniformed service began, plus any seniority and seniority-based rights and benefits that the employee would have attained if the employee had remained continuously employed. In determining entitlement to seniority and seniority-based rights and benefits, the period of absence from employment due to or necessitated by uniformed service is not considered a break in employment. If a reemployed service member was eligible for leave under OFLA prior to the date uniformed service began, OFLA's eligibility requirements are considered met. (e) For the purpose of qualifying as an eligible employee, the employee need not work solely in the state of Oregon. (8) “Family member” means an individual related to an eligible employee by affinity or an individual who is an eligible employee’s: (a) Spouse or domestic partner; (b) Child or the child’s spouse or domestic partner; (c) Parent or the parent’s spouse or domestic partner; (d) Sibling or stepsibling or the sibling’s or stepsibling’s spouse or domestic partner; (e) Grandparent or the grandparent’s spouse or domestic partner; or (f) Grandchild or the grandchild’s spouse or domestic partner. (9) "FMLA" is the federal Family and Medical Leave Act, 29 USC §2601. (10) “Foreseeable leave” means OFLA leave that is not “unforeseeable leave.” (11) "Foster child" means a child, not adopted, but being reared as a result of legal process, by a person other than the child's biological parent. (12) "Gender" means an individual's assigned sex at birth, gender identity, or gender expression. (13) "Gender expression" means the manner in which an individual's gender identity is expressed, including, but not limited to, through dress, appearance, manner, speech, or lifestyle, whether or not that expression is different from that traditionally associated with the individual's assigned sex at birth. (14) "Gender identity" has the meaning given that term in ORS 174.100 (15) “Health care provider” has the meaning given that term in ORS 659A.150. (16) "In loco parentis" means in the place of a parent, having financial or day-to-day responsibility for the care of a child. A legal or biological relationship is not required. (17) "Intermittent leave" means leave taken in multiple blocks of time and/or requiring an altered or reduced work schedule including but 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 due to a statewide public health emergency declared by a public health official. (18) "OFLA" is the Oregon Family Leave Act, ORS 659A.150 to 659A.186. (19)(a) "OFLA leave" means a leave of absence for purposes described in ORS 659A.150 to 659A.186 or OAR 839-009-0230. (b) "OFLA leave" does not include leave taken by an eligible employee who is unable to work because of a disabling compensable injury, as defined in ORS 656.005, unless the leave qualifies as OFLA leave to which the employee is otherwise entitled and the employee refuses a bona fide offer from the employer of light duty or modified employment that is suitable prior to becoming medically stationary under ORS 659A.043 or 659A.046. (20) “Parent” means: (a) An eligible employee’s biological parent, adoptive parent, stepparent or current or former foster parent or a person who was or is the eligible employee’s legal guardian or with whom the eligible employee was or is in a relationship of in loco parentis; or (b) The parent of the eligible employee’s spouse or domestic partner who meets a description in subsection (a) of this section. (21) “Public health emergency” has the meaning given that term in ORS 659A.150. (22) “Spouse” includes: (a) Individuals in a marriage recognized under state law in the state in which the marriage was entered into; (b) Individuals in a marriage validly performed in a foreign jurisdiction; (c) Individuals in a common law marriage that was entered into in a state that recognizes such marriages; and (d) Individuals who have lawfully established a civil union, domestic partnership or similar relationship under the laws of any state. Individuals described in this subsection are not required to obtain a marriage license, establish a record of marriage or solemnize their relationship. (23) “Unforeseeable leave” means OFLA bereavement leave, child placement leave, pregnancy disability leave or leave taken as a result of an unexpected illness, injury or condition of a child of the employee that requires home care.