- 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 applies to employers with 25 or more employees in Oregon.
- 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 (26 weeks) (FMLA only).
- Because of a “qualifying exigency” arising out of a family member being on or called to active military duty (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.
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 (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 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. 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) are also entitled to take up to an additional 12 weeks leave to care for a child with a non-serious health condition requiring home care.
- 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 because of COVID-19, 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 during daylight hours, 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 COVID-19, 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 day 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 COVID–19. “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).
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.
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 or child of the employee).
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 care) 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 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.
- 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 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).
- Must the employer tell the employee that time off is being designated as family leave?
OFLA and FMLA require 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. 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. The United States Department of Labor provides employers with forms for these purposes. Call 503-326-3057 for more information.
- 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. OFLA states that an employee returning from leave is entitled to the former job, or to an available equivalent job 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. Yes, if it meets the definition of a serious health condition under OFLA or FMLA. 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, 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 may be required to engage in a meaningful interactive process with the returning employee to identify potential accommodations.
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 coming soon to a city near you.
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