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Oregon: RSV Emergency Declaration Triggers Additional Protections Under Oregon’s Family Leave Act

Under Oregon’s Family Leave Act (OFLA) a “public health emergency” requires a proclamation by the governor to protect public health. Oregon’s governor declared a public health emergency on November 14, 2022, due to “a rapid increase in pediatric infections and hospitalizations from respiratory viruses including RSV” in the state. The declaration will remain in effect through March 6, 2023, unless it is extended or terminated earlier by the governor.

Those with RSV or flu were likely already covered under the Oregon Sick Time law but following the RSV and flu public health emergency declaration, employees may have expanded eligibility to seek leave under OFLA.

An employer is covered by OFLA if it employs 25 or more persons in the 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.

Under normal circumstances, employees of a covered employer were only eligible to take OFLA leave if they were employed at least 180 days and also worked at least an average of 25 hours per week during the 180 days before leave begins. In the case of OFLA parental leave, employees needed to have been employed 180 days regardless of the average number of hours they worked. However, during a period of public health emergencies, employees of a covered employer are eligible to take OFLA leave for any reason if they were employed for at least 30 days immediately before the leave begins and, also worked an average of at least 25 hours per week in the 30 days before taking leave during a public health emergency.

Of note, OFLA leave includes caring for a child “who requires home care due to the closure of the child’s school or childcare provider as a result of a public health emergency.” Due to the declaration, employees may now be able to seek leave during these public health emergencies for reasons related to their children. Employers may not require employees to provide verification of the need for the childcare/school closure leave but may request that employees provide a statement that no other family member is willing or able to care for the child, among other information including the name of the school or childcare provider subject to closure.

Next Steps for Employers

Employees now have a right to use OFLA for RSV or the flu. As a reminder, qualifying absences under OFLA are job-protected. As such, employers should review their current policy and ensure any language related to documentation for leave is consistent with what is permitted under OFLA.

HR Works will continue to monitor this topic and provide updated information as needed.

HR Works, Inc., headquartered in Upsate New York, is a human resource management outsourcing and consulting firm serving clients throughout the United States. HR Works provides scalable strategic human resource management and consulting services, including: affirmative action programs; benefits administration outsourcing; HRIS self-service technology; full-time, part-time and interim on-site HR managers; HR audits; legally reviewed employee handbooks and supervisor manuals; talent management and recruiting services; and training of managers and HR professionals.