Grandparents Are Family Too

In the wake of the 2007 Oregon legislative session, employers must cope with a number of new burdens. Included among those burdens are changes to the Oregon Family Leave Act (“OFLA”). The one change that will likely have the most far reaching impact on employers is the addition of grandparents and grandchildren within the scope of “family” for the purposes of family and medical leave.

In the past, the definition of “family member” included the employee’s spouse, parents, children, and parents-in-law. The addition of grandparents and grandchildren under the new law greatly expands the number of situations where your employees will be eligible to take family leave.

WHAT IS OFLA?

OFLA requires that employers give an employee up to 12 weeks of unpaid leave if an employee or a member of the employee’s family (now including grandparents and grandchildren of the employee) has a “serious health condition.”

“Serious health condition” is broadly defined under Oregon law and need not be a life threatening condition. For example, a person who is admitted as an inpatient in a hospital will be deemed to have a serious health condition. An illness, such as the flu, has the potential to be family leave qualifying, so long as it results in incapacity for more than three days, visits to the doctor, or is treated with prescription medications.

Leave taken under OFLA is considered protected leave. That means that employers cannot discipline an employee for absences related to their use of OFLA leave. When disciplining or terminating an employee for absenteeism, these protected absences cannot be considered.

WHO DOES OFLA APPLY TO?

Employers with 25 or more employees must provide employees OFLA leave. Additionally, an employee qualifies for OFLA leave if the employee has been employed for at least 180 days works at least an average of 25 hours per week.

HOW WILL THE ADDITION OF GRANDPARENTS AND GRANDCHILDREN AFFECT EMPLOYERS?

You are likely to have a number of employees that wish to care for their family members with serious health conditions. Young children and older family members are more likely to experience a serious health condition. In many families, both parents work and grandparents are often called upon to care for their grandchildren. As a result, the new law may exponentially increase the number of situations where an employee will be eligible to take family leave.

This expansion in OFLA leave rights will require you to be diligent in ensuring that you give employees all of their protected leave. You have the burden of determining whether leave is protected. Failure to identify and provide employees their protected leave can result in costly litigation.

The addition of grandparents and grandchildren in the definition of family also complicates the calculation of leave for employers who are subject to the Federal Family Medical Leave Act (“FMLA”). FMLA applies to employers with 50 or more employees. Grandparents and grandchildren are not included in the definition of “family member” under FMLA. Therefore, although you can dock an employee’s OFLA leave bank when he or she cares for sick grandparents or grandchildren, you cannot dock an employee’s FMLA leave bank.

HOW CAN EMPLOYERS PROTECT THEMSELVES?

You can protect yourself by taking several steps to help ensure that you are in compliance with OFLA.

Regular Training: You should regularly train your management personnel to spot OFLA issues, and make sure that the person responsible for administering OFLA is thoroughly trained and has an up-to-date set of family leave forms and policies.

Establish Call in Procedures: You should establish call in procedures for absences. The person tracking absences should be trained as to how to lawfully determine whether an absence may qualify for family leave.

Leave Request Forms: You should use a leave request form, which provides family leave definitions and allows the employee to self-identify the nature of the absence. The form should be provided to the employee as soon as leave is requested.

Medical Certification: You may require a doctor’s note or other verification to determine the legitimacy of the absence. This verification process may help determine whether the leave is protected and can deter the fraudulent use OFLA leave.

Update Your Personnel Manual: Finally, you should review and update your personnel manual to make sure that your policies comply with all the new changes to Oregon leave law.

Prevention, through training and review of your current practices and policies, is the best way to help avoid costly and needless litigation down the road. If you have questions regarding the changes to OFLA or other leave laws or would like to have your personnel manual reviewed or updated, please contact a member of the firm’s Employment Law Group.