Oregon Family Leave Act (OFLA)

If your employer has 25 or more employees, you could qualify for protected leave under the Oregon Family Leave Act. That means you are allowed by law to take protected time off to take care of yourself or family members.

All Oregon workers get sick time, but those who work for larger employers can qualify for OFLA or the federal Family Medical Leave Act (FMLA).

Right now, family leave is protected, but often unpaid unless you have vacation, sick, or other paid leave available to use. Paid family leave is coming to Oregon in 2023.

Under OFLA, you can take up to a total of 12 weeks^* of time off per year for any of these reasons.

Parental leave (either parent can take time off for the birth, adoption, or foster placement of a child). ^*If you use all 12 weeks on this, you can take up to 12 more weeks for sick child leave.
Serious health condition (your own, or to care for a spouse, parent, parent-in-law, child, grandparent or grandchild, same-sex domestic partner or parent or child of a same-sex domestic partner).
Pregnancy disability leave (before or after birth of child or for prenatal care). ^*You can take up to 12 weeks of this in addition to 12 weeks for any reason listed here.
Sick child leave (for your child with an illness or injury that requires home care but is not serious). You can also take OFLA protected time if your child’s school or childcare provider is closed due to a statewide public health emergency, such as COVID-19 pandemic school closures.
Military family leave (up to 14 days if your spouse or same-sex domestic partner is a service member who has been called to active duty or is on leave from active duty).
Bereavement leave (up to 2 weeks of leave after the death of a family member).

Your employer must continue to give you the same health insurance benefits when you’re on leave as when you are working. When you come back you must be returned to your former job or a similar position if your old job no longer exists.

To be eligible, your employer must have at least 25 employees. In addition, you must have worked an average of 25 hours per week for 180 days - just 180 days for parental leave.

ELIGIBILITY UPDATES: Effective January 1, 2022, OFLA eligible employees who terminate or are removed from the schedule but return to service within 180 days remain eligible for OFLA leave on their return. (Any OFLA leave taken by the employee within any one-year period continues to count against the amount of OFLA leave available to the employee.) Also, credit for days of employment prior to a break in service must be restored to the employee when the employee is reemployed/returned to service by the former employer within 180 days.

Finally, employees may become eligible for OFLA with just 30 days of employment (rather than 180) if they have worked an average of 25 hours a week in the 30 days before taking leave during a public health emergency. HB 2474 (2021).

Governor Brown declared a public health emergency November 14, 2022, in response to an increase in pediatric cases of respiratory syncytial virus, or RSV. The declaration extended to March 6, 2023.

(Oregon’s previous public health emergency declaration for COVID-19 was lifted April 1, 2022.)

If you think your employer is violating this law, you can make an employment discrimination complaint or contact us at BOLI_help@boli.oregon.gov.

The law

ORS 659A.150 - 659A.186

OAR 839-009-0200 - 839-009-0320

For workers

What does protected leave mean?

It means that you can take time off of work for certain reasons without having to worry about losing your job or being demoted. The Oregon Family Leave Act gives you the ability to take time off to care for yourself or others for a certain amount of time. Your employer must return you to your same (or similar) job when you come back from leave.

Right now family leave is protected, but often unpaid unless you have vacation, sick, or other paid leave available to use. Paid family leave is coming to Oregon in 2023.

When can I take protected family leave?

OFLA provides up to a total of 12 weeks^* of protected leave per year for any of these reasons.

Parental leave (either parent can take time off for the birth, adoption, or foster placement of a child). ^*If you use the full 12 weeks as parental, you can also take 12 more weeks for sick child leave only.
Serious health condition (your own, or to care for a spouse, parent, parent-in-law, child, grandparent or grandchild, same-sex domestic partner or parent or child of a same-sex domestic partner).
Pregnancy disability leave (before or after birth of child or for prenatal care). ^*You can take up to 12 weeks of pregnancy disability leave in addition to the 12 weeks for any reason listed here, including additional pregnancy disability leave.
Sick child leave (for your child with an illness or injury that requires home care but is not serious). You can also take OFLA protected time if your child’s school or childcare provider is closed due to a statewide public health emergency, such as the coronavirus pandemic school closures.
Military family leave (if your spouse or same sex domestic partner is a service member who has been called to active duty or is on leave from active duty).
Bereavement leave (up to 2 weeks of leave after the death of a family member).

Your employer must keep giving you the same health insurance benefits as when you are working. When you come back you must be returned to your former job or a similar position if your old job no longer exists.

To be eligible to take this time off, you must have worked an average of at least 25 hours per week for six months (180 days) beforehand for an employer with at least 25 employees. Termination, layoff or removal from the schedule of up to 180 days is not counted against you in determining your eligibility. Also, during a public health emergency, you may becom eligible after 30 days if you work at least 25 hours a week in the 30 days before taking leave.

What is sick child leave?

Sick child leave allows employees care for their child who has an illness or injury that is not a “serious health condition” but requires them to stay home. Sick child leave is also available when you need to care for your child because their school or child care provider is closed in connection with a declared public health emergency like the COVID-19 pandemic. NOTE: Additional sick child leave is also automatically available to employees who use 12 weeks of OFLA parental leave.

OFLA Sick Child Under Public Health Emergencies

My child’s school is implementing a partial or “hybrid” return to in person learning. My child will be attending school onsite three days per week for just two hours and participating in a remote learning program (so they will be at home) for the rest of the week. Am I eligible to take OFLA sick child for the two days my child will not be able to attend in person? Does that include the balance of partial days when they are not at school?

Yes, OFLA sick child leave is available on an intermittent basis for the times your child’s school or place of care is closed in conjunction with a public health emergency. “Closed” here includes ongoing or intermittent, full-day, partial-day and recurring periods during which your child’s physical access is restricted.

My child’s school is giving me a choice between having my child attend in person or participate in a remote learning program. I’d like to sign up for the remote learning alternative because I worry that my child might bring an illness home to the family. Since my child will be at home, may I take OFLA sick child leave under in these circumstances?

OFLA sick child leave is available when a child’s school or place of care is “closed” to your child in conjunction with a public health emergency. If your child’s physical access to the facility is not restricted, OFLA sick child would not be available.

That said, OFLA sick child may still be available if your child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine.

Can my employer require documentation for OFLA sick child leave?

Yes. Although your employer may not require medical verification of the need to take sick child leave because your child’s school or child care provider has closed in conjunction with a public health emergency, you should be prepared to provide:

The name of the child being cared for;
The name of the school or child care provider that has closed or become unavailable;
A statement affirming that no other family member is willing and able to care for the child; and
With the care of a child older than 14 during the day, a statement that special circumstances exist requiring the employee to provide care.

How much time is available for OFLA sick child leave?

Generally, OFLA provides up to a total of 12 weeks in a given leave year. Time you take off for other qualifying reasons will usually reduce the amount of time available to take for sick child leave. (Leave for pregnancy disability or parental leave are potential exceptions.)

Who is eligible to take family leave?

Oregon workers that work for an employer with at least 25 employees and have been on the job for at least 180 days are eligible for parental leave.

For all other OFLA leave benefits, workers must have been employed for at least 180 days and also work at least an average of 25 hours a week during the 180 days before leave begins.

As of January 1, 2022, OFLA eligibility rules have changed to allow for an interruption in employment or hours worked of up to 180 days without affecting eligibility. In addition, during a public health emergency, employees become eligible for OFLA leave if they have worked for a covered employer for at least 30 days and have worked an average of at least 25 hours per week in the 30 days before taking leave.

The Oregon Military Family Leave Act also requires covered employers to grant leave to employees who have worked an average of at least 20 hours per week, but the law does not specify a period of time for applying the average, nor does it require any particular length of service as do OFLA (180 days) and FMLA (12 months).

To be eligible for FMLA leave, an employee must have worked for a covered employer for at least 12 months (not necessarily consecutive) and during the 12 months immediately preceding the leave must have worked at least 1,250 hours. Also, the employer must have 50 employees within a 75 mile radius of the employee’s worksite for the employee to be FMLA eligible.

How is my job protected while I’m on leave?

Your employer must return you to your former job or to an equivalent job if the former position no longer exists.

How much leave can I take?

With some notable exceptions, employees are entitled to 12 weeks within any one-year period. That exhausts the FMLA leave entitlement except for military caregivers leave, which can extend to 26 weeks in one leave year. Under OFLA, an employee may take up to 12 weeks of pregnancy disability leave in addition to the 12 weeks available for any OFLA purpose. Either parent who has taken a full 12 weeks of parental leave (e.g., to care for a newborn, newly adopted child or newly placed foster child) is also entitled to take up to an additional 12 weeks of sick child leave to care for a child with a non-serious health condition requiring home care or to care for a child whose school or daycare is closed due to a public health emergency.

What kind of notice is required?

Your employer may require you to give written notice up to 30 days in advance of the leave unless it is impracticable to do so, or if the leave is taken for an emergency.

Note that Oregon's sick time law also provides leave for all OFLA-qualifying absences, including leave for an employee with a child whose school or place of care is closed by order of a public official. Under sick time regulations, employers may only require up to ten days' advance notice if leave is foreseeable, otherwise, as much notice as is practicable.

Am I paid for this leave?

There is no requirement that family leave time is paid by the employer (in 2023, paid family leave is coming to Oregon). However, you must be allowed to use any existing accrued paid leave, including sick leave, vacation leave or any paid leave offered in lieu of vacation leave.

Note: Employers can also require that employees use accrued paid leave during OFLA leave, and can dictate the order in which the leave is to be used as long as:

Prior to the commencement of OFLA leave, the employer provides written notice to the employee that accrued paid leave is to be used during OFLA leave;
Or within five (5) business days of the employee's notice of unforeseeable leave, the employer provides written notice to the employee; and
To do so is consistent with a collective bargaining agreement or other written agreement between the eligible employee and the covered employer or an employer policy.

If using Oregon Military Family Leave, you are entitled to use accrued paid leave and may dictate the order in which it is used.

What are the main differences between OFLA and FMLA?

OFLA applies to employers with 25 or more employees in Oregon in the current or previous year. To qualify for protected leave, employees must have been employed for at least 180 calendar days immediately preceding the date the leave begins (this includes all days the employee is maintained on the payroll) and have worked an average of 25 hours a week (except for parental leave, when no weekly average is required). Layoff, termination or removal from the schedule for 180 days or less does not affect eligibility. During a public health emergency, eligibility may also be established with 30 days of employment and working at least an average of 25 hours a week in the 30 days before taking leave.

FMLA applies to employers with 50 or more employees in the current or previous year. To be eligible for FMLA leave, employees must have worked for the employer for at least 12 months (not necessarily consecutive), and have worked at least 1,250 hours during the 12-month period immediately preceding the leave. Also, the employer must have 50 employees within a 75-mile radius of the employee’s worksite for the employee to be FMLA eligible.

FMLA has two unique categories of leave for military families: military caregiver leave to care for a seriously ill or wounded servicemember or veteran within 5 years of separation from service if the person became seriously ill or wounded on active duty in the line of duty, and if the person is the parent, spouse, child or next of kin of the employee (leave is for up to 26 weeks from the first use of military caregiver leave); and qualifying exigency leave if the employee has a parent, spouse or child deployed to serve in a foreign country and leave is needed pre- or post-deployment, for counseling, rest and recouperation, for financial or legal arrangements, for making arrangements for childcare or parental care, or for anything else the employer and employee agree is a qualifying exigency.

OFLA also has a greatly expanded list of “family members” compared to FMLA. FMLA only provides for protected time off for the serious health condition of the employee or his or her spouse, child or parent (or one standing in the place of a parent), plus next of kin for military caregiver leave. OFLA does not recognize 'next of kin,' but extends to grandparents and grandchildren, parents-in-law, same-gender domestic partners and children and parents of same-gender domestic partners.

OFLA (but not FMLA) has sick child leave (non-serious health condition requiring home care or closure of school or daycare in conjunction with a public health emergency) and the additional allotment of leave following pregnancy disability leave and sick child leave following 12 weeks of parental leave. FMLA (but not OFLA) has military caregiver leave and qualifying exigency leave.

OFLA (but not FMLA) has bereavement leave which is the leave to make funeral arrangements, attend the funeral or to grieve a family member who has passed away. This leave is limited to two weeks and must be completed within 60 days of the date when the employee learned of the death. Bereavement leave will count toward the total amount of OFLA eligible leave.

If my employer is covered by both OFLA and FMLA, does that mean they are required to give me 24 weeks of leave, instead of 12 weeks, in a year?

Generally, no. OFLA provides that leave counted as FMLA is also counted as OFLA if it is also an OFLA qualifying circumstance, if the employer was covered by both laws and if the employee was eligible under both laws at the time the leave was taken. Therefore, if an employee needs 10 weeks to care for a parent with a serious health condition, the 10 weeks are counted against both OFLA and FMLA leave entitlements, and the employee has two weeks of leave left in the year. There are a few situations, however, such as sick child leave, bereavement leave and leave to care for a parent-in-law, grandparent or grandchild with a serious health condition, in which OFLA provides for leave and FMLA does not, so it is not possible to count the leave toward the FMLA entitlement. In such cases, an employer might be required to grant more than 12 weeks of leave in a year. Conversely, some FMLA circumstances do not necessarily qualify under OFLA.

It is also common for an employee to become OFLA eligible after 180 days but still not be FMLA eligible until 12 months has passed. Any use of OFLA leave prior to becoming FMLA eligible will not count against the employee's FMLA entitlement. Less commonly, an employee may be eligible for FMLA leave but not OFLA leave (except parental leave) if too few hours were worked in the 180 days before taking leave, in which case the employee’s OFLA entitlement would not run.

Are both parents entitled to a full 12 weeks of parental leave?

Yes, under OFLA, but not under FMLA if the parents are married. OFLA employers are not required to allow both parents to take parental leave at the same time, but each can take the full 12 weeks. OFLA states that family members working for the same employer may not take family leave at the same time unless one or both of the employees is suffering from a serious health condition, the child is suffering from a serious health condition, or the employer allows the taking of concurrent leave.

Example: XYZ Corporation employs both the mother and father of a newborn child. Although parental leave can be taken any time within a year of birth, both parents would prefer to take parental leave during the 12 weeks immediately following the birth. The employer can require the parents to take leave consecutively instead of concurrently.

FMLA allows the employees to take parental leave concurrently, but limits married parents to a combined total of 12 weeks. In dual coverage situations, employers must apply the law most favorable to the employee, such that the married parents could take a combined total of 12 weeks concurrently (FMLA), after which they could take the balance of the 12 weeks each has remaining, but separately if the employer requires it (OFLA).

For employers

Which laws require employers to give family leave?

Both state and federal law require certain employers to provide family leave to their employees: the Oregon Family Leave Act (OFLA), the Oregon Military Family Leave Act (OMFLA) and the federal Family and Medical Leave Act of 1993 (FMLA).

OFLA and OMFLA apply to employers with 25 or more employees in Oregon. FMLA applies to employers with 50 or more employees in the United States, and to public employers and schools regardless of the number of employees.

When can an employee take family leave?

Although there are a few exceptions, OFLA and FMLA generally provide 12 weeks of unpaid leave per year and OMFLA provides for 14 days of unpaid leave per deployment for the following purposes:

For the birth, adoption or foster care placement of a child (parental leave).
To care for a family member with a serious health condition or the employee´s own serious health condition (serious health condition leave).
For pregnancy disability or prenatal care (pregnancy disability leave).
To care for a sick child who does not have a serious health condition, but requires home care, known as sick child leave (OFLA only).
To care for an employee's child whose school or child care provider has been closed in conjunction with a statewide public health emergency declared by a public health official.
To care for a seriously ill or injured service member or veteran (within 5 years of separation from service) who became ill or injured on active duty in the line of duty and who is the parent, spouse, child or next of kin of the employee (26 weeks) (FMLA only).
Because of a “qualifying exigency” arising out of a family member being on or called to active military duty in a foreign country (FMLA only).
Because of a spouse or same-gender domestic partner being called to or on leave from active military duty (OMFLA only).
Bereavement leave is two weeks of leave to make funeral arrangements, attend the funeral or to grieve a family member who has passed away (OFLA only).

Who is eligible to take family leave?

To be eligible for OFLA parental leave only, employees must be on the job at least 180 days.

For all other OFLA leave benefits, workers must be employed at least 180 days and also work at least an average of 25 hours a week during the 180 days before leave begins. Termination, layoff or removal from the schedule for up to 180 days is not counted against the employee’s eligibility.

During a public health emergency, such as COVID-19, employees are also eligible for leave after working for at least 30 days if they worked an average of at least 25 hours per week in the 30 days before taking leave.

The Oregon Military Family Leave Act requires covered employers to grant leave to employees who have worked an average of at least 20 hours per week, but the law does not specify a period of time for applying the average, nor does it require any particular length of service as do OFLA (generally 180 days - see above) and FMLA (12 months).

How is an employee's job protected during a leave?

With some subtle differences between OFLA and FMLA, employers must return employees to their former jobs or to equivalent jobs if the former positions no longer exist.

How much leave can an employee take?

With some notable exceptions, employees are entitled to 12 weeks within any one-year period. That exhausts the FMLA leave entitlement except for military caregivers leave, which can extend to 26 weeks in one leave year starting from the first use of military caregiver leave. Under OFLA, an employee may take up to 12 weeks of pregnancy disability leave in addition to the 12 weeks available for any OFLA purpose. Either parent who has taken a full 12 weeks of parental leave (e.g., to care for a newborn, newly adopted child or newly placed foster child) is also entitled to take up to an additional 12 weeks of sick child leave.

How much time is available for sick child leave?

Generally, OFLA provides up to a total of 12 weeks in a given leave year. Time taken for other qualifying reasons will usually reduce the amount of time available to take for sick child leave. (Leave for pregnancy disability or parental leave are potential exceptions.)

What kind of notice is required?

Employees may generally be required to give written notice to the employer up to 30 days in advance of OFLA leave. However, if the need for leave is unforeseen or an emergency, you may require notice as soon as it is practicable and not later than 24 hours after beginning leave. Employer may also require written notice by the employee within three days of the employee's return to work. Employees who fail to give appropriate notice may be subject to discipline under a uniformly applied leave policy. While you may discipline employees for failure to comply with your usual policy for providing notice of the need for leave, ensure that such discipline would also apply to employees requesting other types of leave (meaning, the policy does not discriminate against employees taking OFLA or FMLA leave only.) Care should be exercised whenever disciplining an employee in connection with the use of protected leave. When in doubt, best practice is to consult with legal counsel.

What documentation can we require from employees who request sick child leave?

OFLA generally allows employers to require medical verification of the need for sick child leave upon the fourth or any subsequent use of sick child leave in the year. If sick child leave is taken to care for a child whose school or child care provider is closed in conjunction with a public health emergency, medical certification is unnecessary, but you may require the employee to provide:

The name of the child being cared for;
The name of the school or child care provider that has closed or become unavailable;
A statement affirming that no other family member is willing and able to care for the child; and
With the care of a child older than 14, a statement that special circumstances exist requiring the employee to provide care.

For employees eligible for Oregon sick time, you should not request documentation until after the third consecutive scheduled workday of sick time leave, unless the need is foreseeable and anticipated to last beyond three work days. Sick time rules do allow for verification requests if there is evidence of abuse, including patterns of absenteeism.

My employee has a child whose school is moving to online instruction — students are expected to complete assignments at home. Is that “closed”?

Yes. If access to the physical location where the child receives instruction or care is closed to the child on account of a public health emergency, the school or child care provider is “closed” for purposes of OFLA sick child leave. This is true even if instruction is being provided online or whether, through another format such as “distance learning,” the child is still expected or required to complete assignments.

My employee's child’s school has moved to a “hybrid” model with some days of online instruction and other days of in-school instruction – Does OFLA sick child leave apply on the days the child needs to be home?

Yes, OFLA sick child leave is available on an intermittent basis for the times the child’s school or place of care is closed in conjunction with a public health emergency. “Closed” here includes ongoing or intermittent, full-day and partial-day and recurring periods during which physical access to their school or place of care is restricted for that child.

What are the principal differences between OFLA and FMLA?

OFLA applies to employers with 25 or more employees in Oregon in the current or previous year. To qualify for protected leave, employees must have been employed for at least 180 calendar days immediately preceding the date the leave begins (this includes all days the employee is maintained on the payroll) and have worked an average of 25 hours a week (except for parental leave, when no weekly average is required). Termination, layoff or removal from the schedule for up to 180 days is not counted against the employee’s eligibility. Also, during a public health emergency, an employee may establish eligibility by working for at least 30 days if the employee worked an average of at least 25 hours per week in the 30 days before taking leave.

FMLA applies to employers with 50 or more employees in the current or previous year and to pubic employers and schools regardless of the number of employees. To be eligible for FMLA leave, employees must have worked for the employer for at least 12 months (not necessarily consecutive), and have worked at least 1,250 hours during the 12-month period immediately preceding the leave. Also, the employer must have 50 employees within a 75-mile radius of the employee’s worksite for the employee to be FMLA eligible.

OFLA also extends to grandparents and grandchildren, parents-in-law, same-gender domestic partners and children and parents of same-gender domestic partners. OFLA (but not FMLA) has sick child leave (non-serious health condition requiring home or closure of school or daycare in conjunction with a public health emergency) and the additional allotment of leave following pregnancy disability leave and sick child leave following 12 weeks of parental leave. FMLA (but not OFLA) has military caregiver leave and qualifying exigency leave.

If I am covered by both OFLA and FMLA, which law do I follow?

As with all laws pertaining to employment, the employer must follow the law most beneficial to the employee.

Example: OFLA includes parents-in-law in its definition of family members, but FMLA does not. Employers covered by both laws must provide leave for employees who wish to care for their parents-in-law. Because this kind of leave is not covered under FMLA, the employer cannot count it against the employee’s FMLA entitlement, and the employee will still have an additional 12 weeks of FMLA leave.

If employers are covered by both OFLA and FMLA, does that mean they are required to give 24 weeks of leave, instead of 12 weeks, in a year?

Generally, no. OFLA provides that leave counted as FMLA is also counted as OFLA if it is also an OFLA qualifying circumstance, if the employer was covered by both laws and if the employee was eligible under both laws at the time the leave was taken. Therefore, if an employee needs 10 weeks to care for a parent with a serious health condition, the 10 weeks are counted against both OFLA and FMLA leave entitlements, and the employee has two weeks of leave left in the year. There are a few situations, however, such as sick child leave and leave to care for a parent-in-law, grandparent or grandchild with a serious health condition, in which OFLA provides for leave and FMLA does not, so it is not possible to count the leave toward the FMLA entitlement. In such cases, an employer might be required to grant more than 12 weeks of leave in a year. Conversely, some FMLA circumstances do not necessarily qualify under OFLA.

It is also common for an employee to become OFLA eligible after 180 days but still not be FMLA eligible until 12 months has passed. Any intervening use of OFLA leave will keep the FMLA entitlement intact pending FMLA eligibility. Less commonly, an employee may be FMLA eligible but not OFLA eligible (except for parental leave which doesn’t require a minimum number of hours worked) if the employee has worked an average of less than 25 hours per week in the 180 days before taking leave. In which case, leave would count against FMLA but not OFLA.

Are both parents entitled to a full 12 weeks of parental leave?

Must the employer tell the employee that time off is being designated as family leave?

FMLA requires employers to notify employees in writing of their eligibility to take family leave within 5 business days of a request for leave or the acquisition of enough information to determine that leave may be for a qualifying purpose. OFLA allows employers to request information to determine if it is qualifying leave (except for parental leave) and requires a notice of eligibility and qualification within 5 days of receipt of that information. FMLA requires notice of rights and responsibilities to be sent with the notice of eligibility. When the employer has enough information to determine whether the leave will qualify under FMLA, the employer must notify the employee in writing within 5 business days that it is designating the leave as FMLA leave. The United States Department of Labor provides employers with forms for these purposes. Call 503-326-3057 for more information. BOLI has not provided a template, but a letter will suffice notifying the employee whether they are eligible and whether the condition qualifies.

Must the employer compensate the employee during the leave?

There is no requirement that family leave be paid by the employer. However, the employee must be allowed to use any existing accrued paid leave, including sick leave, vacation leave or any paid leave offered in lieu of vacation leave.

Note: Employers can also require that employees uses accrued paid leave during OFLA leave, and can dictate the order in which the leave is to be used as long as to do so is consistent with a collective bargaining agreement or other written agreement between the eligible employee and the covered employer or an employer policy, and if (a) Prior to the commencement of OFLA leave, the employer provides written notice to the employee that accrued paid leave is to be used during OFLA leave; or (b) Within five (5) business days of the employee's notice of unforeseeable leave, the employer provides written notice to the employee.

OMFLA is the opposite. The employee is entitled to use accrued paid leave and may dictate the order in which it is used.

When the leave has been completed, is the employee entitled to return to his or her job?

FMLA states that an employee returning from leave is entitled to his or her former job or an equivalent job with the same pay and benefits. OFLA states that an employee returning from leave is entitled to the former job, or to an available equivalent job if the employee agrees or if the former job has been eliminated. Employers covered under both OFLA and FMLA must therefore allow the employee on leave to return to the former job, if that job still exists.

Can an absence due to a Workers´ Compensation claim also be counted as family leave?

Assuming the absence qualifies as a serious health condition, the answer is yes under FMLA. The answer is no under OFLA, unless the employee refuses a suitable offer of light duty or modified employment. In dual coverage situations, the employee’s FMLA entitlement will be reduced by the workers’ compensation absence, but the OFLA entitlement will remain intact unless the employee refuses a light duty position.

If an employer grants a family leave for a condition that is also a disability under the Americans with Disabilities Act (as amended) and Oregon disability law, is there any further accommodation required once the leave period has ended?

Very likely. Employers must reasonably accommodate an employee´s disability if it does not create an undue hardship. If an employee´s family leave entitlement has been exhausted for a serious health condition that is also a disability, or if the employee returns from intermitten leave, the reasonable accommodation obligation still remains. An example would be an employee who suffered permanent injuries to her back and, although able to return to work, needed special office furniture or equipment to allow her to perform the job after returning from family leave. Additional unpaid leave or an adjusted work schedule to accommodate therapy treatments may also be reasonable accommodations under the disability laws. The employer will be required to engage in a meaningful interactive process with the returning employee to identify potential accommodations, and should document those efforts.

Editor’s note: The state and federal family leave laws are intricate and complex. This information is designed to acquaint the reader with selected general topics and concepts only. Space limitations prohibit detailed treatment and nuance. For those who need a more detailed analysis of the law, we urge you to consider attending our one-day or two-day leave laws seminars or purchase a copy of our Leave Laws handbook.

Employer Assistance Seminar Schedule.

Helpful documents

Family Leave Tracking Form

Template for Certification of Serious Health Condition

Disclaimer: This website is not intended as legal advice. Any responses to specific questions are based on the facts as we understand them and the law that was current when the responses were written. They are not intended to apply to any other situations. This communication is not an agency order. If you need legal advice, please consult an attorney.