OAR 839-009-0250: OFLA: Notice by Employee; Designation by Employer; Notice by Employer Regarding Eligibility or Qualification

(1) Except as otherwise described in this rule, a covered employer may require an eligible employee to give 30 days’ written notice of the need for foreseeable leave, including an explanation of the need for leave, before starting sick child leave. The employee is not required to specify that the request is for OFLA leave. (2) When an employee is unable to give the employer 30 days’ notice of the need for sick child leave but has some advance notice of the need for the leave, the employee must give the employer as much advance notice as is practicable. (3) An employee able to give advance notice of the need to take sick child leave must follow the employer's known, reasonable and customary procedures for requesting any kind of leave, absent unusual circumstances. (4) When taking OFLA leave in an unforeseeable situation, an employee must give oral or written notice within 24 hours before or after commencement of the leave. This notice may be given by any other person on behalf of an employee taking unforeseeable OFLA leave. The employer may require written notice by the employee within three days of the employee's return to work. (5)(a) Except as otherwise provided in OAR 839-009-0260 and subsection (e) of this section, an employer may request additional information to determine that a requested leave qualifies for designation as OFLA leave. (b) The employer may provisionally designate an absence as OFLA leave until sufficient information is received to make a determination. An employee who calls in “sick” without providing further information will not be considered to have provided sufficient notice to trigger an employer’s obligations under OFLA, unless the employer has reason to know the employee is attempting to invoke protected leave or the employer acquires knowledge that an employee’s leave may be for an OFLA-qualifying reason. (c) An employee on OFLA leave who needs to take more leave than originally authorized must give the employer reasonable notice prior to the end of the authorized leave, following the employer's known, reasonable and customary procedures for requesting any kind of leave. However, when an authorized period of OFLA leave has ended and an employee does not return to work, an employer having reason to believe the continuing absence may qualify as OFLA leave must request additional information, and may not treat a continuing absence as unauthorized unless requested information is not provided or does not support OFLA qualification. (d) An eligible employee may receive notice of the death of a family member by any means and from any source. (e) An employer may not request additional information to verify bereavement leave, except the employer may require the use of an attestation form described in OAR 839-011-0240 when the family member is related by affinity. (6) When an employee fails to give notice of foreseeable leave as required by sections (1) and (2), and (3): (a) If the leave qualifies under OFLA only and not under FMLA, the employer may reduce the total period of unused OFLA leave by an amount no greater than the number of days of leave the employee has taken without providing timely notice of leave. This reduction of leave may not exceed three weeks in a one-year leave period; and the employer may subject the employee to disciplinary action under a uniformly applied policy or practice of the employer. (b) If the leave qualifies under FMLA only, FMLA regulations apply. (c) If the leave qualifies under both OFLA and FMLA the employer may: (A) Delay FMLA coverage until up to 30 days after notice was received as permitted by the FMLA regulations at 29 CFR §825.304 (this applies only to leave to which the employee is entitled under FMLA); (B) Reduce the total period of unused OFLA leave by an amount no greater than the number of days of leave the employee has taken without providing timely notice of leave. This reduction of leave may not exceed three weeks in a one-year leave period. This applies only to leave to which the employee is entitled under OFLA; and (C) In addition to actions permitted under (A) and (B), the employer may also take appropriate action under its internal rules and procedures for failure to follow its usual and customary notification rules, absent unusual circumstances, as long as the actions are taken in a manner that does not discriminate against employees taking OFLA or FMLA leave. (d) A reduction of OFLA leave under (6)(a) or (6)(c) of this rule may not limit OFLA bereavement leave. (7) An employer may not reduce an employee’s available OFLA leave or take disciplinary action under (6)(a) or (c) of this rule unless the employer has posted the required Bureau of Labor and Industries Family Leave Act notice or the employer can otherwise establish that the employee had actual knowledge of the notice requirement. (8) An employee who has refused a suitable offer of light duty or modified employment under ORS 659A.043 or 659A.046 and who otherwise is entitled to OFLA leave: (a) Automatically commences a period of OFLA leave upon refusing the offer of employment; and (b) Need not give notice to the employer that would otherwise be required that the employee is commencing a period of leave. (9) A covered employer may provide an OFLA leave request form.