Leave laws set rules for family members.

Byline: ON THE JOB by Dan Grinfas For The Register-Guard

Q: We have a female employee whose grandfather is seriously ill, and she's asking for a few weeks off work to help care for him. The employee's parents are both still alive, but they're out of town on vacation. Does the employee have a right to this time off under the Oregon or federal leave laws?

A: Not unless the grandfather is "in loco parentis" to your employee, meaning that he raised her when she was a child, providing day-to-day care and financial support. Since the employee's parents are still around, we're assuming it was they who raised her rather than the grandfather. You might want to confirm this with your employee before making the decision to grant or deny her leave request.

The Oregon Family Leave Act, or OFLA, and the federal Family and Medical Leave Act, or FMLA, each have a definition of "family member" for purposes of protected leave, but neither law includes grandparents or grandchildren in its definition.

Both laws do allow for leave when there is an "in loco parentis" relationship. This is the Latin phrase meaning "in the place of a parent."

Under OFLA and FMLA, the "in loco parentis" provision applies when your employee is "in the place of a parent, financially supporting and having day to day responsibility for the care of a child." It also applies when someone older (such as a grandparent) is in the place of a parent to your employee, because he or she raised the employee when the employee was a child.

No family relationship is necessary for an "in loco parentis" relationship to exist, nor is it necessary that the older individual have legal custody or guardianship to qualify as a parent for family leave purposes. If your female employee were to move in with her boyfriend and his 6-year-old son, she is in loco parentis to the child as soon as she takes on the joint responsibility of supporting and caring for him regardless of whether she marries the boyfriend or takes steps to adopt the child.

In your situation, even though it's unlikely that the employee's grandfather is a covered family member, you could still choose to allow some leave without pay or sick leave under your company's policies.

Q: Our insurance company is telling us they want us to send all of our employees over the age of 60 to take an annual physical exam. Our insurance rates could increase significantly if we don't go along with this. Would it be appropriate for us to require these employees to be evaluated annually?

A: There are two potential problems. First, the Oregon and federal disability laws say an employer may make medical inquiries or require medical examinations only when there is a job-related reason consistent with business necessity, and it's questionable whether you'd meet this standard based only on a potential increase in insurance rates. Second, employers can face age discrimination claims whenever company policies distinguish between employees based on an arbitrary age limit.

You should consult with your employment attorney as to how best to proceed here, and you might even consider switching to a different insurance plan.

Annual physical exams are probably a good idea for older individuals, but as an employer, your best bet is to leave it to an employee's doctor to decide when to schedule him or her for evaluations.

Q: Can we allow an employee who requests approval to work four 10-hour days instead of five eight-hour days? If so, can we do that without offering the same option to other employees?

A: This isn't a problem under Oregon or federal wage laws, but make sure that you document a legitimate, nondiscriminatory reason for distinguishing between employees in approving a compressed schedule. For example, you might allow a "four-10" schedule for your bookkeeper but not for your receptionist, who needs to be available Monday through Friday during your business hours.

On The Job is written by attorney Dan Grinfas of the Oregon Bureau of Labor and Industries. Contact BOLI at [phone], or BOLI, 800 N.E. Oregon St. No.32, Portland OR 97232.