On March 21, the Oregon Bureau of Labor and Industries (BOLI) adopted a permanent rule, effective April 1, that expands the reasons employees can use leave under Oregon's paid sick and safe leave law during a public health emergency.
Under the permanent rule, eligible employees may take protected sick leave for absences connected to: (1) an emergency evacuation order of level 2 (SET) or level 3 (GO) issued by a public official with the authority to do so, if the affected area subject to the order includes either the location of the employer's place of business or the employee's home address; or (2) a determination by a public official with the authority to do so that the air quality index or heat index is at a level where continued exposure to such levels would jeopardize the employee's health.
BOLI's permanent rule expanding paid sick and safe leave is identical to its temporary rule in effect from Aug. 6, 2021, through Jan. 17, 2022. On Dec. 29, 2021, BOLI filed notice of the proposed permanent rule. In its rulemaking report, BOLI stated that it received no public comment during the four-week comment period or testimony at the public rulemaking hearing.
During a public emergency, eligible employees can also use protected paid sick leave for the following reasons: (1) closure of the employee's place of business, or the school or place of care of the employee's child, by order of a public official due to a public health emergency; (2) a determination by a lawful public health authority or by a health care provider that the presence of the employee or the employee's family member in the community would jeopardize the health of others, such that the employee must provide self-care or care for the family member; or (3) the exclusion of the employee from the workplace under any law or rule that requires the employer to exclude the employee from the workplace for health reasons.
Employers should remember that there are numerous other reasons employees can use leave under Oregon's paid sick and safe leave law, including but not limited to an employee or family member's illness, injury, or health condition, absences connected to domestic violence, harassment, sexual assault, or stalking, along with any reason in Oregon's Family Leave Act (OFLA), e.g., new child bonding, bereavement, or body part, organ or tissue donation.
BOLI's rulemaking activities relating to public health emergencies demonstrate that BOLI is ready to use its authority to regulate when it believes there to be a pressing need to expand job-protected leave rights. BOLI previously used its rulemaking authority to expand unpaid sick child leave entitlements under the OFLA during COVID-19, which the state legislature and governor later permanently incorporated into the OFLA law itself (effective Jan. 1, 2022).
Megan Crowhurst and Cristin Casey are attorneys with Littler Mendelson in Portland, Ore. © 2022 Littler Mendelson. All rights reserved. Reposted with permission.
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