October 2009

BOLI Proposes Regulations on OFLA

BOLI has published proposed regulations for OFLA following the 2009 amendments to the FMLA. The full proposed rulemaking can be found at http://www.boli.state.or.us/BOLI/LEGAL/H_Notices.shtml. There are some wording changes which are typical clean up amendments. In addition, BOLI did address some of the specific changes to FMLA. Below are the highlights:

Employee notice.

FMLA amendments require employees provide sufficient notice to trigger need for FMLA leave, and follow any specific call-in policies outlined by the employer. Proposed OFLA rule 839-009-0250 clarifies calling in sick without providing more information does not trigger the employer’s obligations under OFLA.

The rule further tightens the language of OFLA, making it mandatory (where previously recommended) that the employee give advance notice for foreseeable OFLA leave. The consequence of not doing so can include reduction of OFLA entitlement by 3 weeks, discipline action, or (as noted in FMLA) the delay of leave, whichever is most beneficial to the employee’s circumstances if both FMLA and OFLA apply.

Employer notice.

Consistent with the FMLA regulations, proposed OFLA rule 839-009-0260 requires an employer who finds an employee ineligible for leave to give at least one reason for the ineligibility. Further, if the employer finds medical verification provided by the employee to be insufficient, the employer must specify what further information is needed. OFLA leave may be delayed until sufficient verification is provided when the employee fails to response to the notice of insufficiency.

The FMLA amendments provide the employer can directly contact a medical provider for clarification if the employee, after ample opportunity, fails to provide sufficient medical verification. BOLI did not adopt a parallel provision under OFLA, and still only allows a health care provider to seek that clarification from the employer’s medical provider.

Electronic notice.

FMLA amendments allow electronic postings. Proposed BOLI rule 839-009-0030 specifically states electronic posting is not sufficient to meet the employer’s posting requirements under OFLA.

Attendance bonuses.

The FMLA amendments clarified that an employee on FMLA leave is not entitled to attendance bonuses if absent for leave. OFLA (839-009-0320) prohibits counting OFLA leave against an employee when determining attendance bonuses. Unfortunately, BOLI did not propose any amendment to this regulation and is not bringing its provision in line with the FMLA amendment.

Miscellaneous.

Proposed 839-009-0265 requires acceptance of medical verification from foreign medical providers and in foreign languages, although the employee must provide a written, translated version.

Proposed 839-009-0220, clarifies that similar provisions of FMLA and OFLA are to be construed similarly, but the most beneficial to the employee’s individual circumstances should be applied.

In addition to these amendments to typical OFLA leave, new regulations pertaining to Victims Leave and Military Leave have been proposed.

Victims Leave

BOLI has proposed amended regulations relating to Oregon Victims of Certain Crimes Leave Act. This Act sets out protections for victims of domestic violence. The regulations purport to provide leave, protect against discrimination or retaliation, and require employers to provide “reasonable safety accommodation.” The regulations outline that it is an unlawful employment action, enforceable by BOLI, to refuse leave or accommodation or to discriminate or retaliate against a qualifying employee.

Proposed rule 839-009-0340 defines a “reasonable safety accommodation” as “a transfer, reassignment, modified schedule, unpaid leave from employment, changed work telephone number, changed work station, installed lock, implemented safety procedure or any other adjustment to job structure, workplace facility or work requirement in response to actual or threatened domestic violence, sexual assault, or stalking.”

Military Leave

BOLI also proposed regulations under the newly enacted Oregon Military Family Leave Act (OMFLA). Coverage is similar to OFLA, applying to employers with 25 or more employees and employees who have worked 180 days for at least 25 hours per week. Proposed rule 839-009-0420 provides up to 14 days of leave per call to duty. Job protections parallel those under OFLA, and do not usurp protections under USERRA.