OAR 839-009-0245: OFLA: Intermittent Leave and Alternate Duty

(1) An employer may transfer an employee on intermittent OFLA leave or a reduced work schedule into an alternate position with the same or different duties to accommodate the leave, provided the following exist: (a) The employee accepts the transfer position voluntarily and without coercion; (b) The transfer is temporary, lasts no longer than necessary to accommodate the leave and has equivalent pay and benefits; (c) The transfer is compliant with applicable collective bargaining agreements, as well as with state and federal law, including ORS 659A.146 and 659A.147 and all the employee protections found in FMLA regulations 29 CFR Part 825; (d) Transfer to an alternate position is used only when there is no other reasonable option available that would allow the employee to use intermittent leave or reduced work schedule; and (e) The transfer is not used to discourage the employee from taking intermittent or reduced work schedule leave, or to create a hardship for the employee. (2) An employee transferred, as provided in section (1) of this rule, to an alternate position for the purpose of a reduced work schedule must be returned to the employee's former position when the employee notifies the employer that the employee is ready to return to the former position at the end of the alternate duty leave. (3) OFLA leave time for an employee on intermittent leave or a reduced work schedule is the difference between the number of hours the employee normally works and the number of hours the employee actually works during the intermittent leave or reduced work schedule. When it is physically impossible for an employee using intermittent leave or working a reduced leave schedule to commence or end work during a shift, the entire period of work from which the employee is forced to be absent is designated as OFLA leave and counts against the employee's OFLA entitlement. (4) Days in which the employer's business is not in operation are not counted toward intermittent or reduced work schedule OFLA leave. (5) An employer may transfer an employee to an alternate position that accommodates OFLA pregnancy disability leave provided: (a) The employee accepts the position voluntarily and without coercion; (b) The transfer is temporary, lasts no longer than necessary and has equivalent pay and benefits; (c) The transfer is compliant with applicable collective bargaining agreements, as well as with state and federal law, including ORS 659A.146 and 659A.147 and all the employee protections found in FMLA regulations 29 CFR Part 825; and (d) The transfer is not used to discourage the employee from taking OFLA leave or to create a hardship for the employee. (6) An employee is not on OFLA leave if the employee has been transferred — as provided in section (5) of this rule — to an alternate position for the purpose of alternate work duties that the employee is able to perform within the limitations of the employee's pregnancy disability, but not requiring a reduced work week. An employee working in an alternate position retains the right to return to the employee's original position at any time during the employee’s OFLA leave. This section (6) does not impair the right of an employee to a reasonable accommodation or the application of any other state or federal law. (7) An alternate position may result in the employee working fewer hours than the employee worked in the original position. The employee's OFLA leave is the difference between the number of hours the employee worked in the original position and the number of hours the employee actually works in the alternate position.