Oregon Bureau of Labor and Industries

Rule Rule 839-009-0210
OFLA: Definitions


(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) “Child,” for the purposes of parental and sick child leave only (not for the purposes of serious health condition leave or leave for the death of a family member under ORS 659A.159 (Purposes for which family leave may be taken) (1) (e)), means a biological, adopted, foster or stepchild, the child of an employee’s same-gender domestic partner or a child with whom the employee is or was in a relationship of in loco parentis. 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 (Description of disability for purposes of ORS 659A.103 to 659A.145) (1)(a), (3), and (4).
(3) “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.
(4) “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.
(5) “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.
(6) “Domestic partner” means an individual joined in a domestic partnership.
(7) “Domestic partnership” for the purposes of ORS chapter 659A means two individuals of the same sex who have received a Certificate of Registered Domestic Partnership from the State of Oregon in compliance with ORS 432.173 (Mandatory submission and registration of reports of marriage and reports of domestic partnership) and rules adopted by the State Registrar of the Center for Health Statistics.
(8) “Eligible employee” means an employee employed in the state of Oregon on the date OFLA leave begins. For eligibility of employees reemployed following a period of uniformed service, see subsections (c) and (d) of this section.
(a) For the purpose of taking parental leave, an employee must be employed by a covered employer for at least 180 calendar days immediately preceding the date on which OFLA leave begins.
(b) For purposes of taking all other types of OFLA leave, including pregnancy disability leave, an employee must have worked for a covered employer for an average of at least 25 hours per week during the 180 calendar days immediately preceding the date OFLA leave begins.
(A) In determining that an employee has been employed for the preceding 180 calendar days, 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.
(B) In determining 25 hours average per week, the employer must count actual hours worked using guidelines set out pursuant to the federal Fair Labor Standards Act. (See 29 CFR §785).
(c) 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.
(d) ORS 659A.082 (Discrimination against person for service in uniformed service prohibited)659A.088 (Violation of ORS 659A.086 as unlawful employment practice) 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.
(9) “Family member” for purposes of serious health condition leave, sick child leave or leave for the death of a family member means the spouse, same-gender domestic partner, custodial parent, non-custodial parent, adoptive parent, foster parent, biological parent, step parent, parent-in-law, parent of same-gender domestic partner, grandparent or grandchild of the employee, or a person with whom the employee is or was in a relationship of in loco parentis. It also includes the biological, adopted, foster or stepchild of an employee or the child of an employee’s same-gender domestic partner. For the purposes of OFLA, an employee’s child in any of these categories may be either a minor or an adult at the time serious health condition leave or leave under ORS 659.159(1)(e) is taken.
(10) “FMLA” is the federal Family and Medical Leave Act, 29 USC §2601.
(11) “Foreseeable leave” means leave taken for a purpose set out in ORS 659A.159 (Purposes for which family leave may be taken) that is not “unforeseeable leave” as defined in OAR 839-009-0210 (OFLA: Definitions)(22).
(12) “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.
(13) “Gender” means an individual’s assigned sex at birth, gender identity, or gender expression.
(14) “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.
(15) “Gender identity” means an individual’s gender-related identity, whether or not that identity is different from that traditionally associated with the individual’s assigned sex at birth, including, but not limited to, a gender identity that is transgender or androgynous.
(16) “Health care provider” means:
(a) A person who is primarily responsible for providing health care to an eligible employee or a family member of an eligible employee, who is performing within the scope of the person’s professional license or certificate and who is:
(A) A physician licensed to practice medicine under ORS 677.110 (Scope and administration of examination), including a doctor of osteopathy;
(B) A podiatrist licensed under ORS 677.825 (Examination of applicants);
(C) A dentist licensed under ORS 679.090 (Issuance of license);
(D) A psychologist licensed under ORS 675.030 (Licensing of psychologists after examination);
(E) An optometrist licensed under ORS 683.070 (Issuance of certificates of licensure);
(F) A naturopath licensed under ORS 685.080 (Examination and reexamination of applicants);
(G) A registered nurse licensed under ORS 678.050 (Examining applicants);
(H) A nurse practitioner certified under ORS 678.375 (Nurse practitioners);
(I) A direct entry midwife licensed under ORS 687.420 (Standards for licensing);
(J) A licensed registered nurse who is certified by the Oregon State Board of Nursing as a nurse midwife nurse practitioner;
(K) A regulated social worker authorized to practice regulated social work under ORS 675.510 (Definitions for ORS 675.510 to 675.600) to 675.600 (Duties of board);
(L) A chiropractic physician licensed under ORS 684.054 (Issuing license), but only to the extent the chiropractic physician provides treatment consisting of manual manipulation of the spine to correct a subluxation demonstrated to exist by X-rays;
(M) A physician’s assistant licensed under ORS 677.512 (Licensure).
(b) A person who is primarily responsible for the treatment of an eligible employee or a family member of an eligible employee solely through spiritual means, including but not limited to a Christian Science practitioner.
(17) “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.
(18) “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.
(19) “OFLA” is the Oregon Family Leave Act, ORS 659A.150 (Definitions for ORS 659A.150 to 659A.186) to 659A.186 (Exclusivity of provisions).
(20) “OFLA leave” means a leave of absence for purposes described in ORS 659A.159 (Purposes for which family leave may be taken) and OAR 839-009-0230 (OFLA: Purposes for Taking Leave)(1) through (5). Except that “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 (Definitions), unless the employee has refused a suitable offer of light duty or modified employment under ORS 659A.043 (Reinstatement of injured worker to former position)(3)(a)(D) or 659A.046 (Reemployment of injured worker in other available and suitable work)(3)(d). See ORS 659A.162 (Length of leave), OAR 839-006-0131 (Injured Workers: Loss of Reinstatement Rights Under ORS 659A.043)(2) and 839-006-0136 (Injured Workers: Loss of Reemployment Rights Under ORS 659A.046)(4).
(21) “OFLA leave year,” for calculating the OFLA leave year entitlement, means a calendar year (January to December), a fixed 12-month period such as a fiscal year, a 12-month period measured forward from the date of the employee’s first OFLA leave, or a 12-month period measured backward from the date the employee uses any OFLA leave. The option selected must be applied to all employees. In the absence of an employer policy or collective bargaining agreement defining how an OFLA leave year will be measured, a calendar year will be used.
(22) “Serious health condition” means an illness, injury, impairment or physical or mental condition of an employee or family member:
(a) That requires inpatient care in a medical care facility such as a hospital, hospice or residential facility such as a nursing home. When a family member resides in a long-term residential care facility, leave applies only to:
(A) Transition periods spent moving the family member from one home or facility to another, including time to make arrangements for such transitions;
(B) Transportation or other assistance required for a family member to obtain care from a physician; or
(C) Serious health conditions as described in (b) through (h) of section (20) of this rule.
(b) That the treating health care provider judges to pose an imminent danger of death, or that is terminal in prognosis with a reasonable possibility of death in the near future;
(c) That requires constant or continuing care such as home care administered by a health care professional;
(d) That involves a period of incapacity. Incapacity is the inability to perform at least one essential job function, or to attend school or perform regular daily activities for more than three consecutive calendar days and any subsequent required treatment or recovery period relating to the same condition. This incapacity must involve:
(A) Two or more treatments by a health care provider; or
(B) One treatment plus a regimen of continuing care.
(e) That results in a period of incapacity or treatment for a chronic serious health condition that requires periodic visits for treatment by a health care provider, continues over an extended period of time, and may cause episodic rather than a continuing period of incapacity, such as asthma, diabetes or epilepsy;
(f) That involves permanent or long-term incapacity due to a condition for which treatment may not be effective, such as Alzheimer’s disease, a severe stroke or terminal stages of a disease. The employee or family member must be under the continuing care of a health care provider, but need not be receiving active treatment;
(g) That involves multiple treatments for restorative surgery or for a condition such as chemotherapy for cancer, physical therapy for arthritis, or dialysis for kidney disease that if not treated would likely result in incapacity of more than three days; or
(h) That involves any period of disability of a female due to pregnancy or childbirth or period of absence for prenatal care.
(23) “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.
(24) “Unforeseeable leave” means leave taken as a result of:
(a) An unexpected serious health condition of an employee or family member of an employee; or
(b) An unexpected illness, injury or condition of a child of the employee that requires home care;
(c) A premature birth or a placement for adoption or foster care the exact date of which cannot be previously determined with certainty; or
(d) The death of a family member.
Source

Last accessed
Jun. 8, 2021