OAR 839-009-0250
OFLA: Notice by Employee; Designation by Employer; Notice by Employer Regarding Eligibility or Qualification
(1)
Except in situations described in sections (2) and (3) of 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 OFLA leave. The employee is not required to specify that the request is for OFLA leave.(a)
An employee able to give advance notice of the need to take OFLA leave must follow the employer’s known, reasonable and customary procedures for requesting any kind of leave, absent unusual circumstances.(b)
An employer may request additional information to determine that a requested leave qualifies for designation as OFLA leave, except in cases of parental leave.(c)
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.(d)
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.(2)
When an employee is unable to give the employer 30 days’ notice but has some advance notice of the need for leave, the employee must give the employer as much advance notice as is practicable.(3)
When taking OFLA leave in an unforeseeable situation, an employee must give verbal 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.(4)
When an employee fails to give notice of foreseeable leave as required by sections (1), (2), and (3) of this rule or the employer’s policies:(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. See ORS 659A.165 (Notice to employer)(4).(b)
If the leave qualifies under FMLA only, FMLA regulations apply: 29 CFR § 825.302 (Service of process on nonresident carrier by serving the department) (Employee Notice Requirements for Foreseeable FMLA Leave) and 29 CFR §825.304 (Vehicle owner to be made party to certificate or permit enforcement proceedings) (Employee Failure to Provide Notice). FMLA regulation 29 CFR §825.304 (Vehicle owner to be made party to certificate or permit enforcement proceedings) provides that an employer may delay coverage until up to 30 days after notice was received and the employer may take appropriate action under its internal rules and procedures for failure to follows its usual and customary notification rules, as long as the actions are taken in a manner that does not discriminate against employees taking FMLA leave.(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 (Vehicle owner to be made party to certificate or permit enforcement proceedings) (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 (see ORS 659A.165 (Notice to employer) (4)). 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, 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 (4)(a) or (4)(c)(B) of this rule may not limit OFLA leave under ORS 659A.159 (Purposes for which family leave may be taken)(e) and OAR 839-009-0230 (OFLA: Purposes for Taking Leave)(5) for the death of a family member.(5)
An employer may not reduce an employee’s available OFLA leave or take disciplinary action under (4)(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.(6)
Except in the case of sick child leave and leave for the death of a family member, when an employee requests OFLA leave, or when the employer acquires knowledge that an employee’s leave may be for an OFLA-qualifying reason, the employer must provide the employee within five business days a written request for information to verify whether the leave is OFLA-qualifying. Within five business days of receiving the requested information, the employer must notify the employee whether or not the employee is eligible and qualifies to take OFLA leave absent extenuating circumstances. All OFLA absences for the same qualifying reason are considered a single leave event and employee qualification as to that reason for leave does not change during the applicable 12-month period unless the reason is no longer qualifying. If an employer determines that an employee does not qualify for OFLA leave for the reason requested, the employer must notify the employee in writing that the employee does not qualify.(a)
The written notice that the employee does not qualify must state that the employee is ineligible or the reason for requested leave does not qualify for OFLA leave and at least one reason why the employee is not eligible or the reason does not qualify for leave.(b)
If an employer determines that an employee does not qualify for OFLA leave for the reason requested because a medical verification is incomplete or insufficient, the written notice that the employee does not qualify must state what additional information is required to make the verification complete or sufficient, and the employee must be afforded a reasonable period of time to correct the deficiency.(7)
An employer may not request medical verification of the need for sick child leave until after an employee’s third occurrence of sick child leave in the same OFLA leave year.(8)
When an employee fails to respond to reasonable employer requests for medical verification of the employee’s requested reason for leave to determine whether the leave is OFLA qualifying, the employer may deny use of OFLA leave until medical verification is received.
Source:
Rule 839-009-0250 — OFLA: Notice by Employee; Designation by Employer; Notice by Employer Regarding Eligibility or Qualification, https://secure.sos.state.or.us/oard/view.action?ruleNumber=839-009-0250.