• Oregon’s New Bereavement Leave Benefit—What Every Employer Should Know
  • December 16, 2013 | Author: Sean M. Driscoll
  • Law Firm: Ogletree, Deakins, Nash, Smoak & Stewart, P.C. - Portland Office
  • Effective January 1, 2014, Oregon employers subject to the Oregon Family Leave Act (OFLA) must allow eligible employees to take up to two weeks of unpaid leave to deal with the death of a family member.

    Covered Employers and Eligible Employees

    Because bereavement leave is simply a part of OFLA, only Oregon employers with at least 25 employees within the state for 20 or more workweeks during the year of the leave request or the preceding year are subject to the law.

    An Oregon employee becomes eligible for OFLA bereavement leave after working 180 days, provided the employee has worked an average of at least 25 hours per week in the 180 days before the start of OFLA leave for this purpose.

    Reasons for Which OFLA Bereavement Leave May Be Taken

    Under the new law, eligible employees may take up to two weeks of OFLA leave to attend a funeral (or alternative ceremony), to make arrangements necessitated by the death of a family member, or simply to grieve the death of a family member. The broad scope of reasons for which leave may be taken guarantees employees the right to take off two full weeks upon the death of a family member.

    The OFLA definition of “family member” applies to bereavement leave. This means that employees may take leave following the death of a spouse, same-sex domestic partner, child (biological, adopted, foster, stepchild, or otherwise), parent, parent-in-law, grandparent, grandchild, or same-sex domestic partner’s parent or child.

    Nothing in the law requires this new form of OFLA leave to be paid, although employers may allow employees to use any available paid leave, and as with any other OFLA leave, employees can choose to use any available accrued paid leave for OFLA bereavement leave, including accrued sick leave.

    Amount and Timing of Leave

    The new law does not expand the annual amount of OFLA leave (usually 12 weeks, more in some situations). The two weeks of OFLA bereavement leave counts against the OFLA maximum. For example, an employee who uses two weeks of OFLA bereavement leave for the death of a family member then has 10 weeks of leave available during the leave year for other OFLA purposes. Notably, an employee is entitled to two weeks of OFLA bereavement leave for the death of each covered family member per year, so that an employee may be entitled to more than two weeks of OFLA bereavement leave in a single leave year.

    Importantly, OFLA bereavement leave must be completed within 60 days after the employee receives notice of the death of the family member. The law remains unclear as to whether bereavement leave may be taken intermittently, and the Oregon Bureau of Labor and Industries (BOLI) has been charged with enacting regulations on this subject.

    Another important feature of the new law is that if both spouses or registered domestic partners work for the same employer, they can take the OFLA bereavement concurrently. This is unlike most forms of OFLA leave.

    Best Practices—A Simple Policy and Basic Training

    To notify employees of this new form of OFLA leave and specify the required notice they, in turn, must provide to the company, Oregon employers should implement a simple written policy, either stand-alone or as part of an employee handbook, setting out these rules and the employer’s own requirements, if any (e.g., that employees must use all available accrued paid leave before taking unpaid OFLA leave).  In addition, employers should obtain and post an updated OFLA poster, which can be obtained at no charge from BOLI’s website.