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Employees may be entitled to unpaid, job-protected leave for a variety of reasons under the Oregon Family Leave Act (OFLA) and or the federal Family and Medical Leave Act (FMLA). It is critical to understand employee rights because violations can lead to employer civil liability.
Which Employers are Covered
The Oregon Family Leave Act (OFLA) applies to all Oregon employers that employ at least 25 employees during at least 20 workweeks in the current or preceding calendar year.
The federal Family and Medical Leave Act (FMLS) applies to all employers of at least 50 employees during at least 20 workweeks in the current or preceding calendar year when those employees are employed within 75 miles of each other.
In calculating the number of employees, all employees are counted: full-time, part-time, seasonal, and temporary.
The employee eligibility requirements vary between OFLA and FMLA as described below.
Who Qualifies for Leave?
An employee qualifies for OFLA leave as long as he/she has:
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Been employed for at least 180 days, and
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Worked an average of at least 25 hours per week (does not apply to parental leave).
An employee qualifies for FMLA leave as long as he/she has:
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Been employed for at least 12 months, and
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Worked at least 1250 hours.
Why May Leave be Taken?
Both parental leave and family leave are available to eligible employees.
Parental Leave is available to care for an infant or newly placed foster or adopted child.
Family Leave is available to: 1) care for a family member with a serious health condition, 2) seek treatment for or recover from an employee’s own serious health condition, or 3) care for a sick child (OFLA only).
A Serious Health Condition means: 1) physical or mental condition requiring in patient care, 2) condition that poses an imminent danger of death or reasonable possibility of death in the near future, or 3) disability due to pregnancy or absence for prenatal care.
How Much Leave?
In general, employees may take job-protected, unpaid leave for up to 12 weeks in a 12-month period.
Typically, FMLA and OFLA leave run concurrently. However, if an employee takes OFLA leave for a condition that does not qualify under FMLA (sick child, or a parent-in-law or domestic partner with a serious health condition), FMLA leave will not be reduced. Similarly, OFLA leave taken before FMLA eligibility kicks in (between 180 days and 12 months employment) will not reduce FMLA leave.
In addition, under OFLA, parents may use a full 12 weeks of medical leave, plus 12 weeks of pregnancy or childbirth disability leave, and still qualify for 12 weeks of sick child leave. That’s potentially 36 weeks for women and 24 weeks for men.
Notice to the Employer
OFLA
An employer may require up to 30 days written notice of the need for leave when that leave is foreseeable. However, for unexpected circumstances, such as a sudden illness or premature childbirth, the employer may only require oral notice within 24 hours after the leave begins and written notice within 3 days of returning to work.
FMLA
An employer may only require timely notice and enough information to make the employer aware that FMLA leave is anticipated and the approximate duration of the leave.
Under OFLA, the employer may discipline for failure to comply with the notice requirements by reducing the employee’s leave by three weeks, and or discipline under a uniformly applied discipline policy. Under FMLA the employer may only delay the taking of leave for up to 30 days or until the notice requirements are met. If the employer is covered by both FMLA and OFLA, then the employer may only apply the discipline that is most favorable to the employee under the given circumstances.
Common Violations
Be careful! The following are examples of common violations that can lead to employer liability:
- Failure to grant leave. When the leave is to care for a family member’s serious health condition that includes physical and psychological comfort.
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Direct contact with the physician. While it is okay to request medical verification of the need for leave (at the employer’s expense), an employer may not contact the physician directly for information regarding the employee’s need.
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Discipline for use of leave. Inquiring about leave, requesting leave, and using leave are all protected activities. Any discipline, including disciplinary use of an absenteeism policy, for any of the protected activities is unlawful.
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Failure to reinstate the employee to the same or equivalent position. FMLA requires only reinstatement to an equivalent position, but OFLA requires reinstatement to the same position
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