According to data from the U.S. Bureau of Labor Statistics, 89% of all civilian workers in the United States had access to unpaid family leave as of March 2018. Employees working for employers in Oregon are part of that key statistic, due to the enactment of the Oregon Family Leave Act (OFLA), an important piece of state legislation in the field of employment law that seeks to provide job protection to employees.
What Are Oregon FMLA Laws?
The state law equivalent of Oregon FMLA laws is the OFLA. This state legislation enacted in 1995 requires employers of 25 or more employees to provide the latter with job-protected family leave (“OFLA Leave”) to care for themselves or their family members in cases of illness, injury, childbirth and adoption.
It is job-protected because employers are required to reinstate or return employees who take the OFLA leave to the same position that they held prior to taking the OFLA leave, or to an equivalent position if the prior position held by the employee no longer exists. Not only that: employers must also continue providing health insurance benefits to employees who take OFLA leave throughout the period of the leave, as if their employees are still rendering service during the same timeframe.
The OFLA leave is distinct and in addition to the sick time leave granted to workers under Oregon law, which is required to be paid by employers of 10 or more employees and is generally a paid type of leave. The OFLA leave is currently considered unpaid. However, paid family leave is reportedly coming to Oregon in 2023.
Purpose of an OFLA Leave
The OFLA leave serves to cater to a multitude of family-related needs of employees in recognition of the probability that, at some point along their employment, they may be required to leave their jobs in order to attend to a sheer number of possible emergencies.
The following are the allowed reasons recognized by law for taking OFLA leave:
- To attend to either: (a) birth, (b) adoption or (c) foster placement of a child, otherwise known as “Parental Leave”
- To take care of one’s self, one’s spouse, parent, parent-in-law or child, either or all of whom are suffering from a serious health condition
- To take care of one’s child who is sick but is not otherwise suffering from a serious health condition
- To attend to pregnancy disability for female employees, who are allowed to take an OFLA leave either before or after the birth of the child, or during prenatal care
- To take an Oregon military family leave, available to those employees whose spouse is a member of the U.S. military and has either been called to active duty or is on leave from active duty
- To mourn for the loss or death of a family member, otherwise known as “Bereavement Leave”
However, come January 1, 2022, new amendments to the OFLA will take effect, which adds public health emergencies (such as the COVID-19 pandemic) as one qualifying legal reason for entitlement to OFLA leave.
Who Is Entitled to Take OFLA Leave?
Entitlement to OFLA leave depends on whether the employee’s job tenure has reached the minimum period required by law, for each particular type of OFLA leave as described above.
- For the OFLA parental leave, the law requires that the employee must have been on the job for at least 180 days before they may be entitled to the said parental leave.
- For all other OFLA leaves (except for military leave), the law not only requires that the employee must have been on the job for at least 180 days, it also requires that the employee rendered work for on average of at least 25 hours per week during the 180 pays prior to when the OFLA leave availed of commences.
- For the OFLA military family leave, unlike that of the aforementioned OFLA leaves, the law does not require that the employee must have been on the job for a specified period. What is required is that the employee rendered work for an average of at least 20 hours per week, but without specifying a period of time for applying the average.
However, come January 1, 2022, new amendments to the OFLA will take effect which provides more liberal requirements for OFLA entitlement with respect to employees who are re-employed after separation from employment or returning from work within 180 days after temporary cessation of scheduled work hours. In these cases, while they may not have met the required 180-day job tenure requirement at the time of their return to work, these employees are still entitled to OFLA leave if they were so entitled at the time of their separation or temporary work cessation.
What Are the Duration of Leaves Under FMLA Laws in Oregon?
The length of OFLA leave is generally 12 weeks within any one year period, and thus not necessarily within a one year period. However, additional periods of leave on top of the 12-week period are allowed under the following scenarios:
- For an OFLA leave taken for the care of one’s child who is sick but is not otherwise suffering from a serious health condition, an additional leave period of up to 12 weeks is allowed if the non-serious health condition otherwise requires home care.
- For an OFLA leave taken for pregnancy disability, an additional leave period of up to 12 weeks is allowed.
- For an OFLA military family leave, an additional leave period of up to 26 weeks in one leave year is granted.
Note that when OFLA-eligible employees fully avail of the 12-week leave period under OFLA, they also fully exhaust their entitlement to 12-week leave under federal family leave laws, specifically the Federal Family and Medical Leave Act (FMLA).
[For more information on the FMLA, read “The Law of Compensation: What Lawyers Need to Know”.]
This means that employers in Oregon who may be covered both by the state law (OFLA) and federal law (FMLA) are not automatically required to give a total of 24 weeks of leave, or 12 weeks under OFLA plus 12 weeks under FMLA. The general rule, therefore, is that the employees of such OFLA- and FMLA-covered employers are only entitled to 12 weeks of family-related leave. Once an employee consumes their entire 12-week leave during the year, whether under OFLA or under FMLA, he or she will no longer have any OFLA and FMLA leave credits for the remainder of the year.
There are exceptions, however, to this general rule. Among the exceptions is when the employee avails of OFLA leave to take care of a family member with a serious health condition. Because this kind of leave is only available under OFLA and not under FMLA, the employee who avails of the same OFLA leave for 12 weeks in a year does not lose his or her entitlement to FMLA leave because such OFLA leave may not be possibly counted toward the FMLA entitlement. In such a case, the employee continues to retain his or her 12-week FMLA leave entitlement.
Other Conditions of OFLA leave
Using OFLA leave in conjunction with accrued paid leave
Under the law, while OFLA leaves remain to be unpaid leaves, employees eligible must be permitted to use any existing accrued paid leave, including sick leave, vacation leave or any paid leave offered in lieu of vacation leave. This means that an employee need not avail of the OFLA leave to attend to an OFLA-related reason when other forms of leaves are available.
However, despite that option, it is generally the employers who are given the discretion as to what type of leave must be availed of. Thus, under the law, employers can require that employees who want to avail of OFLA leave use instead their accrued paid leave. Moreover, employers can also dictate the order in which the leave is to be used as long as it is consistent with a collective bargaining agreement or other written agreement between the employee and the covered employer or is consistent with an employer policy. Nonetheless, to protect the employee who is subjected to this discretion by the employer, the law requires the employer to provide written notice to the employee that they are to take accrued paid leave during the planned OFLA leave.
This discretion, however, is not available to employers with respect to employees availing of the OFLA military family leave. In this case, it is the employee, not the employer, who may dictate the order in which the leaves are to be used.
OFLA with respect to married couples with children
Under OFLA, each of both parents may avail of the full 12-week OFLA leave. However, with respect to OFLA parental leave, employers are not required to allow both parents who work for the same employer to take said leave at the same time, unless the reason for the leave is that either of the parent or any of their children is suffering from a serious health condition.
The law allows employers to require employees who wish to avail of an OFLA leave to give written notice up to 30 days prior to the day when the OFLA leave is to commence. However, the 30-day notice may not be required if the OFLA leave is taken as a result of an emergency or unforeseen event, in which case the employer is still entitled to notice but only as soon as the giving of notice is practicable but not later than 24 hours after the OFLA leave commenced.
Employers are also allowed to require a separate notice to be given within three days when the employee is to return to work after having availed of OFLA leave.
Finally, the law also allows employers to undertake disciplinary measures against employees who fail to give the required written notice as discussed above.
Medical verification for OFLA sick child leave
The law gives employers the right to require medical verification as to whether there really exists a need for OFLA leave taken for the care of an employee’s sick child. This right to have a medical verification on the part of the employer kicks in when the same employee has availed of the OFLA sick child leave for the fourth or any subsequent time within the same year.
The OFLA leave is one of the most important laws in the state of Oregon, as it provides ample protection to job security of employees and gives employees the gift of protected time off to take care of themselves and their family members.