On September 14, 2020, BOLI permanently adopted their temporary rule on the definition of “sick child leave” to include allowing employees to take OFLA protected leave to care for a child whose school or childcare provider is closed due to a state public health emergency like COVID-19. Previously, the state had instituted a temporary rule to provide protected OFLA leave for this reason and it was set to expire on September 13, 2020. The new rule makes the addition of this type of absence a permanent protected reason for leave under OFLA.
Full details of the new permanent rule can be found here.
In addition, BOLI adopted a new temporary rule, effective September 14, 2020 through March 12, 2021, which provides clarification on several terms and conditions of OFLA sick child leave including:
Definition of Child Care Provider:
The new temporary rule defines the scope of the term “child care provider” to include:
- 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.
- 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.
Definition of Closure:
“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.
Clarification on the use of Intermittent Leave:
“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.
Note that this differs from the federal FFCRA rules on employees’ intermittent leave requests which leaves the decision to provide intermittent leave up to employers. As is typically the case when federal FMLA and OFLA rules differ, the employee should receive the most generous option. Therefore, if an employee is eligible for both OFLA and FMLA, they should be granted intermittent leave upon request for this reason.
Clarification on the information employers can require to verify the need for leave:
For the need for sick child leave due to the closure of a child’s school or child care provider an employer may request verification of the need for sick child leave due to the closure of the child’s school or child care provider in conjunction with a statewide public health emergency declared by a public health official. Verification may include:
- The name of the child being cared for
- The name of the school or child care provider that has closed or become unavailable
- A statement from the employee that no other family member of the child is willing and able to care for the child
- With the care of a child older than 14, a statement that special circumstances exist requiring the employee to provide care to the child during daylight hours.
Full details of the new temporary rules can be found here.