Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On July 22, 2021, the Oregon Bureau of Labor and Industries (BOLI) issued a temporary rule that expands the reasons employees can use leave under Oregon’s paid sick and safe leave law during a public health emergency. Under the rule, effective immediately and through January 17, 2022, eligible employees may take covered 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; and 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.
Before the temporary rule, employees could use leave during a public health emergency for the following reasons: (a) 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; (b) 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; and (c) 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 expansion of protected leave rights comes after a series of public health emergencies over the past 18 months, including the COVID-19 pandemic and a surge of record-breaking temperatures and wildfires that prompted the evacuation of thousands of Oregonians as a result of dangerous air quality and extreme heat conditions. BOLI previously adopted a temporary rule to expand unpaid leave entitlements under the OFLA during COVID-19, which the state legislature and governor later permanently incorporated into the OFLA law itself (effective January 1, 2022). Whether this paid temporary sick and safe time rule will get similar “permanent” treatment remains to be seen, but BOLI’s temporary rulemaking activities demonstrate it is ready to regulate in real time when it believes there to be a pressing need to expand job-protected leave rights.