Federal & State Regulations | FMLA - Oregon | J. J. Keller® Compliance Network

Summary of differences between federal and state regulations

In addition to leave under the federal FMLA, employers in Oregon need to be aware of state-specific provisions, such as the Oregon Family Leave Act (OFLA), sick leave, Paid Leave Oregon (PLO), and those for pregnancy accommodation, military family leave, domestic violence, and bone marrow donation.

Oregon Family Leave Act

The Oregon Family Leave Act (OFLA) applies to employers with 25 or more employees. The FMLA applies only to employers with 50 or more employees. There is also a worksite provision under the federal law.

Employee eligibility

To be eligible for OFLA leave, an employee must have worked at least 180 days to take leave to care for a newborn or newly adopted child. 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. In contrast, FMLA requires that employees work at least 12 months and 1,250 hours during the 12-month period immediately preceding the leave.

Employees may become eligible for OFLA with just 30 days of employment (rather than 180) during a public health emergency.

OFLA eligible employees who terminate or are laid off 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.

Leave entitlement - effective until July 1, 2024

Like the FMLA, an eligible employee is entitled to 12 weeks of leave within any one-year period. However, an employee with an illness, injury, or condition related to pregnancy or childbirth is entitled to an additional 12 weeks of OFLA leave.

Also, parents who have taken 12 weeks of family leave to care for a newborn are also entitled to take up to 12 weeks of leave to care for a sick child requiring home care. Employers are not required to allow both parents to take leave at the same time. The 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 or the employer allows them to take concurrent leave.

The OFLA provides that leave counted under the FMLA also is counted under the OFLA, but the employee would need to be eligible for both and the reason would need to qualify for both..

Leave entitlement - effective July 1, 2024

Also effective July 1, 2024, employers must use the measured forward method for tracking the “one-year” period for OFLA.

Eligible employees may also take an additional two weeks’ leave weeks to go through the legal process for placement of a foster child or adoption of a child, (this provision is temporary and lasts only until January 1, 2025, when it will fall under the PLO).

Employees must give employers 24 hours’ verbal notice before leave and three days after return to work.

Employees may also take up to two weeks of family bereavement leave for a family member’s death, not exceeding four weeks in any one-year period. This leave must be taken within 60 days of when the employee received notice of the death.

OFLA leave runs concurrently with FMLA leave if the employee meets the eligibility criteria and the reason qualifies.

Leave taken under the OFLA is in addition to, and may not be taken concurrently with, any leave taken under Paid Leave Oregon.

Employees could qualify for up to 14 weeks of PLO and 12 weeks of OFLA in connection with the pregnancy-related disabling condition, and also remain eligible for up to an additional 12 weeks of OFLA for another qualifying purpose in the same leave year (i.e., sick child leave or bereavement leave) and, at least until January 2025, for two weeks of OFLA to for the legal process for child adoption or foster placement.

Employees may take OFLA leave intermittently or on a reduced schedule.

Reasons for leave - effective until July 1, 2024

Although there are a few exceptions, the OFLA generally provides unpaid leave for the following purposes:

The employee's own condition (this does not include leave due to a workers' compensation injury);
Birth, adoption, or placement of a child (parental leave);
To care for a family member with a serious health condition;
For a pregnancy disability or prenatal care (pregnancy disability leave);
To care for a child of the employee who is suffering from an illness, injury or condition that is not a serious health condition but that requires home care or who requires home care due to the closure of the child’s school or child care provider as a result of a public health emergency; and
To deal with the death of a family member.

Employees are generally entitled to a maximum of 12 weeks of family leave within your 12-month year. There are exceptions, however:

An employee using pregnancy disability leave is entitled to 12 additional weeks of leave in the same leave year for any qualifying OFLA purpose.
An employee using a full 12 weeks of parental leave is entitled to take up to 12 additional weeks for the purpose of sick child leave.
Employees are entitled to two weeks of bereavement leave to be taken within 60 days of the death of a covered family member.
A spouse or domestic partner of a service member is entitled to a total of 14 days of leave per deployment after the military spouse has been notified of an impending call or order to active duty and before deployment and when the military spouse is on leave from deployment.

The OFLA does not include leave taken for employees who are unable to work because of a disabling compensable injury under workers' compensation. With this in mind, employers may not reduce the amount of family leave if the employee is unable to work because of a disabling compensable injury.

Under the OFLA, the definition of “family member” includes:

The spouse of a covered individual;
A child of a covered individual or the child’s spouse or domestic partner;
A parent of a covered individual or the parent’s spouse or domestic partner;
A sibling or stepsibling of a covered individual or the sibling’s or stepsibling’s spouse or domestic partner;
A grandparent of a covered individual or the grandparent’s spouse or domestic partner;
A grandchild of a covered individual or the grandchild’s spouse or domestic partner;
The domestic partner of a covered individual; or
Any individual related by blood or affinity whose close association with a covered individual is the equivalent of a family relationship.

Employees on OFLA leave are entitled to use any paid accrued sick leave.

Employers may require medical verification for leave other than to care for a child who requires home care due to the closure of the child’s school or childcare provider as a result of a public health emergency, only after an employee has taken more than three days of leave.

Employers may, however, request verification for the need for leave to care for a child who requires home care due to the closure of the child’s school or childcare provider as a result of a public health emergency. This verification may include:

The name of the child requiring home care;
The name of the school or childcare provider that is subject to closure;
A statement from the employee that no other family member of the child is willing and able to care for the child; and
A statement that special circumstances exist that require the employee to provide home care for the child during the day, if the child is older than 14 years of age.

Reasons for leave - effective July 1, 2024

Eligible employees may take OFLA leave for the following reasons:

To care for a child who is suffering from an illness, injury or condition that requires home care, regardless of whether the condition qualifies as a serious health condition.
To care for a child whose school or childcare provider has been closed in conjunction with a declared public health emergency.
To go through the legal process for placement of a foster child or adoption of a child, (until 1/1/25).
To deal with the death of a family member by:
- Attending a funeral or alternative,
- Making necessary arrangements, or
- Grieving.
For a pregnancy-related disability (this leave is in addition to other OFLA reasons).

Under the OFLA, the definition of “family member” includes:

The spouse of a covered individual;
A child of a covered individual or the child’s spouse or domestic partner;
A parent of a covered individual or the parent’s spouse or domestic partner;
A sibling or stepsibling of a covered individual or the sibling’s or stepsibling’s spouse or domestic partner;
A grandparent of a covered individual or the grandparent’s spouse or domestic partner;
A grandchild of a covered individual or the grandchild’s spouse or domestic partner;
The domestic partner of a covered individual; or
Any individual related by blood or affinity whose close association with a covered individual is the equivalent of a family relationship.

Employees on family leave are entitled to use any paid accrued sick leave.

The name of the child requiring home care;
The name of the school or childcare provider that is subject to closure;
A statement from the employee that no other family member of the child is willing and able to care for the child; and
A statement that special circumstances exist that require the employee to provide home care for the child during the day, if the child is older than 14 years of age.

Maintenance of health benefits

If the employee has group health insurance before leave began, he or she is entitled to continue that coverage during a period of family leave on the same terms as if the employee had continued to work. The employee must continue to make regular contributions to the cost of the premiums.

Job restoration

The FMLA states that an employee returning from leave is entitled to his or her former job or an equivalent job.

Under the OFLA, employees are entitled to job protection rights if they have been employed for at least 180 days and worked an average of 25 hours per week.

The OFLA requires that an employee returning from leave is entitled to his or her former job or to an available equivalent job if the former position has been eliminated. Employers covered under both the OFLA and FMLA must, therefore, allow the employee on leave to return to their former job, if that job still exists.

Effective September 3, 2023, if an employee’s position no longer exists upon returning from leave, employers must offer the employee any available equivalent position with the same pay and benefits at a job site located within 50 miles of the job site of the employee’s former position.

If equivalent positions are available at multiple job sites, employers must first offer the employee the position at the job site that is nearest to the job site of the employee’s former position.

Notice

Similar to the FMLA, the OFLA requires that employees give written notice to their employer 30 days in advance of the leave unless the leave is taken for an emergency. Employees who fail to give written notice may be subject to discipline by their employer.

Effective July 1, 2024, employees must give employers 24 hours’ verbal notice before leave and three days after return to work.

Paid sick leave

Oregon employers must provide for sick leave.

Employers with 10 or more employees (six or more for Portland employers) must provide up to 40 hours of paid sick leave per year.
Employers with fewer than 10 employees (fewer than six for Portland employers) must provide up to 40 hours of unpaid sick leave.

Employees are entitled to take up to 40 hours of sick leave per year. They accrue the leave at the rate of one hour for every 30 hours worked.

New employees may take sick leave beginning after their 90^th calendar day of employment. Employees are entitled to take leave in one-hour increments as it is accrued unless it would pose an undue hardship.

The 40 hours may be carried over to the following calendar year, unless employees receive an annual lump-sum allotment of at least 40 hours. The accrual may be limited, however, to 40 hours per year.

Employees may take the sick leave for the following reasons:

For an employee’s mental or physical illness, injury, or health condition, need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition, or need for preventive medical care.
For care of a family member with a mental or physical illness, injury, or health condition, care for a family member who needs medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition, or care of a family member who needs preventive medical care.
To care for an infant or newly adopted child under 18 years of age, or for a newly placed foster child under 18 years of age, or for an adopted or foster child older than 18 years of age if the child is incapable of self-care because of a mental or physical disability.
To care for a family member with a serious health condition.
To recover from or seek treatment for a serious health condition of the employee that renders the employee unable to perform at least one of the essential functions of the employee’s regular position.
To care for a child of the employee who is suffering from an illness, injury or condition that is not a serious health condition but that requires home care.
To deal with the death of a family member.
To seek legal or law enforcement assistance or remedies to ensure the health and safety of the employee or the employee’s minor child or dependent, including preparing for and participating in protective order proceedings or other civil or criminal legal proceedings related to domestic violence, harassment, sexual assault or stalking.
To seek medical treatment for or to recover from injuries caused by domestic violence or sexual assault to or harassment or stalking of the eligible employee or the employee’s minor child or dependent.
To obtain, or to assist a minor child or dependent in obtaining, counseling from a licensed mental health professional related to an experience of domestic violence, harassment, sexual assault or stalking.
To obtain services from a victim services provider for the eligible employee or the employee’s minor child or dependent.
To relocate or take steps to secure an existing home to ensure the health and safety of the eligible employee or the employee’s minor child or dependent.
To donate accrued sick time to another employee.
In the event of a public health emergency.

Public health emergencies include the following:

Closure of the employee’s place of business, or the school or place of care of the employee’s child, by order of a public official due to a public health emergency;
A determination by a lawful public health authority or by a health care provider that the presence of the employee or the family member of the employee in the community would jeopardize the health of others, such that the employee must provide self-care or care for the family member;
The exclusion of the employee from the workplace under any law or rule that requires the employer to exclude the employee from the workplace for health reasons;
An emergency evacuation order of level 2 (SET) or level 3 (GO) issued by a public official with the authority to do so, if the affected area subject to the order includes either the location of the employer’s place of business or the employee’s home address; or
A determination by a public official with the authority to do so that the air quality index or heat index are at a level where continued exposure to such levels would jeopardize the health of the employee.

Employers must provide written notification at least quarterly to each employee of the amount of accrued and unused sick time available for use by the employee. They must also provide written notice of the requirements to each employee.

Paid family medical leave (Paid Leave Oregon)

The Oregon paid family medical provisions (Paid Leave Oregon) were signed into law in August 2019. Contributions began January 1, 2023, and employees began taking the leave September 3, 2023.

Employer coverage

Employers are covered by the law if they have one or more employees working in the state.

Employee eligibility

Employees are eligible if they work in OR and have received at least $1,000 in wages during the year prior to claiming benefits.

Leave entitlement - effective until July 1, 2024

Employees may take up to 12 weeks of paid leave per year for family leave, medical leave, or safe leave. They may take another two weeks of leave for pregnancy/childbirth-related issues for a total of 14 weeks of leave. Employers with fewer than 25 employees are not required to pay the employer contributions to the paid leave.

The one-year period is calculated using the measured forward method.

Leave entitlement - effective July 1, 2024

Eligible employees may take up to 12 weeks of PLO leave for qualifying reasons within a 52-week period, with an additional two weeks for pregnancy disability.

Employers with fewer than 25 employees are not required to pay the employer contributions to the paid leave.

The 52-week period is calculated using the measured forward method.

Employers may cap the use of PLO benefits to the amount that gives employees 100 percent wage replacement.

PLO runs concurrently with federal FMLA if the employee meets the eligibility criteria and the reason qualifies for both.

PLO leave does not, however, run concurrently with leave under OFLA, with the possible exception of pregnancy disability.

Reasons for leave - effective until July 1, 2024

Employees may take paid family medical leave:

To care for a family member with a serious health condition,
For their own serious health condition,
To bond with a child, or
For domestic violence, harassment, sexual assault, or stalking.

Family members include:

The spouse of a covered individual;
A child of a covered individual or the child’s spouse or domestic partner;
A parent of a covered individual or the parent’s spouse or domestic partner;
A sibling or stepsibling of a covered individual or the sibling’s or stepsibling’s spouse or domestic partner;
A grandparent of a covered individual or the grandparent’s spouse or domestic partner;
A grandchild of a covered individual or the grandchild’s spouse or domestic partner;
The domestic partner of a covered individual; or
Any individual related by blood or affinity whose close association with a covered individual is the equivalent of a family relationship.

Reasons for leave - effective July 1, 2024

Eligible employees may take PLO leave for the following reasons:

Parental Leave:
- To care for and bond with a child during the first year after the child’s birth,
- To care for and bond with a child during the first year after the placement of the child through foster care or adoption, or
- To go through the legal process required for placement of a foster child or the adoption of a child (effective January 1, 2025).
Because of the employee’s own serious health condition.
To care for a family member with a serious health condition (including a sick child, but only if the child has serious health condition).
Pregnancy Disability; limitations related to pregnancy, childbirth, or a related medical condition, including but not limited to lactation.
Safe leave: For domestic violence, harassment, sexual assault, or stalking.

Family members include:

The spouse of a covered individual;
A child or the child’s spouse or domestic partner;
A parent or the parent’s spouse or domestic partner;
A sibling or stepsibling of a covered individual or the sibling’s or stepsibling’s spouse or domestic partner;
A grandparent of a covered individual or the grandparent’s spouse or domestic partner;
A grandchild of a covered individual or the grandchild’s spouse or domestic partner;
The domestic partner of a covered individual; or
Any individual related by blood or affinity whose close association with a covered individual is the equivalent of a family relationship.

Maintenance of health care benefits

Employers must maintain any health care benefits an employee had prior to taking leave, for the duration of a period of paid family medical leave

Job restoration

Employees have job protection rights as long as they have worked at least 90 days.

If an employee’s position no longer exists upon returning from leave, employers must offer the employee any available equivalent position with the same pay and benefits at a job site located within 50 miles of the job site of the employee’s former position.

If equivalent positions are available at multiple job sites, employers must first offer the employee the position at the job site that is nearest to the job site of the employee’s former position.

For employers with fewer than 25 employees, if the position no longer exists, they may, at its discretion based on business necessity, restore the employee to a different position with similar job duties and with the same employment benefits and pay.

Notice

Since January 1, 2023, employers are to provide employees with written notice of the employee rights under the law.

Employees are to provide 30 days’ advance notice of the need for leave when foreseeable. If not foreseeable, oral notice is to be provided within 24 hours of the beginning of leave and written notice within three days.

Pregnancy accommodations

Employers must provide accommodations to a pregnancy-related condition, including lactation.

Covered employers

Employers with six or more employees.

Employee eligibility

All employees or candidates with known limitations related to pregnancy, or pregnancy-related medical conditions including lactation. Unlike OFLA or even Oregon’s sick time law, there is no waiting period prior to becoming eligible for these protections.

Accommodations

A reasonable accommodation is not specifically limited, but may include:

Acquisition or modification of equipment or devices,
More frequent or longer break periods or periodic rest,
Assistance with manual labor, or
Modification of work schedules or job assignments.

In addition to the Oregon Family Leave Act, which provides up to 12 weeks of protected leave to eligible employees of covered employers for qualify conditions, in the case of pregnancy disability, an employee may also qualify for up to an additional 12 weeks of leave.

An accommodation is unreasonable if it would cause the employer an undue hardship. An undue hardship is an action that is significantly difficult or expensive in relation to the size of the employer, the resources available and the nature of the business. Undue hardship is not a bright-line test. An employer that refuses an accommodation based on undue hardship should be prepared to prove that the accommodation would in fact create an undue hardship.

Prohibitions

Specifically, employers are prohibited from the following:

Denying employment opportunities to an applicant or employee based on the need to make reasonable accommodation to the known limitations relating to pregnancy, childbirth, or a related medical condition, including but not limited to lactation;
Failing or refusing to make reasonable accommodation to these known limitations, unless the accommodation would impose an undue hardship;
Taking an adverse employment action or in any manner discriminate or retaliate against an applicant or an employee, with respect to hire or tenure, or any other term or condition of employment, because the applicant or employee has inquired about, requested or used a reasonable accommodation;
Requiring an applicant or an employee to accept a reasonable accommodation that is unnecessary to perform the essential duties of the job or to accept a reasonable accommodation if the applicant or employee does not have a known limitation; or
Requiring an employee to take family leave, or any other leave, if the employer can make reasonable accommodation to the known limitations.

Oregon Military Family Leave Act

The Oregon Military Family Leave Act provides for eligible employees to take unpaid time off for certain reasons involving a family member in the military.

Employee eligibility

Employees must have worked for an employer for an average of at least 20 hours per week. This does not include independent contractors. The employer must have at least 35 employees in the state for each working day during each of 20 or more calendar workweeks in the current year preceding year.

Leave entitlement

During a period of military conflict, an employee who is a spouse of a member of the Armed Forces, the National Guard, or the military reserves who has been notified of an impending call or order to active duty or who has been deployed is entitled to a total of 14 days of unpaid leave per deployment. This leave is to take place after the employee is notified of the call or order to active duty and before deployment, as well as when the military spouse is on leave from deployment.

Employees may elect to substitute accrued leave for military family leave. Leave taken under the Military Family Leave provisions is to be included in the total amount of leave under the Oregon Family Leave Act.

Maintenance of health benefits

Employees who take leave for a military spouse are entitled to the continuation of benefits as provided in the Oregon Family Leave Act.

Job restoration

Employees are entitled to be restored to a position of employment as provided in the Oregon Family Leave Act (OFLA).

Notice

Employees must provide notice of the intention to take leave within five business days of receiving official notice of a call or order to active duty or for a leave from deployment.

Leave for domestic violence, sexual assault, or stalking

Oregon law covers employers with six or more employees in the state for each working day during each of 20 or more calendar workweeks in the current or preceding year.

Employees are eligible if they are a victim of domestic violence, sexual assault, or stalking, or the parent or guardian of a minor child or dependent who is a victim of domestic violence, sexual assault, or stalking.

Covered employers must allow eligible employees to take reasonable leave from employment for any of the following purposes:

To seek legal or law enforcement assistance or remedies to ensure the health and safety of the employee or the employee’s minor child or dependent, including preparing for and participating in protective order proceedings or other civil or criminal legal proceedings related to domestic violence, sexual assault, or stalking;
To seek medical treatment for or to recover from injuries caused by domestic violence or sexual assault to or stalking of the eligible employee or the employee’s minor child or dependent;
To obtain (or to assist a minor child or dependent in obtaining) counseling from a licensed mental health professional related to an experience of domestic violence, sexual assault, or stalking;
To obtain services from a victim services provider for the eligible employee or the employee’s minor child or dependent; or
To relocate or take steps to secure an existing home to ensure the health and safety of the eligible employee or the employee’s minor child or dependent.

Covered employers may limit the amount of leave an eligible employee takes if the employee’s leave creates an undue hardship on the employer’s business. An undue hardship is a significant difficulty and expense to a covered employer’s business and includes consideration of the size of the employer’s business and the employer’s critical need for the eligible employee.

Employees must provide reasonable advance notice of the intention to take leave, unless giving the advance notice is not feasible.

Employers may require the eligible employee to provide certification that:

The employee or the employee’s minor child or dependent is a victim of domestic violence, sexual assault, or stalking; and
The leave taken is for an eligible purpose.

Employees must provide the certification within a reasonable time after receiving the covered employer’s request for the certification.

Any of the following constitutes sufficient certification:

A copy of a police report indicating that the eligible employee or the employee’s minor child or dependent was a victim of domestic violence, sexual assault, or stalking;
A copy of a protective order or other evidence from a court or attorney that the eligible employee appeared in or was preparing for a civil or criminal proceeding related to domestic violence, sexual assault, or stalking; or
Documentation from an attorney, law enforcement officer, health care professional, licensed mental health professional or counselor, member of the clergy, or victim services provider that the eligible employee or the employee’s minor child or dependent was undergoing treatment or counseling, obtaining services or relocating as a result of domestic violence, sexual assault, or stalking.

Employers are not required to grant leave with pay, unless required by contract or other agreement.

Employees who take leave may use any paid accrued vacation leave, any accrued sick leave, or personal business leave, or any other paid leave that is offered by the covered employer in lieu of vacation leave during the period of leave.

Bone marrow donation leave

Employers must grant already accrued paid leaves of absence to an employee who seeks to undergo a medical procedure to donate bone marrow. The total length of the leaves are to be determined by the employee, but must not exceed the amount of already accrued paid leave or 40 work hours, whichever is less, unless agreed to by the employer.

This provision applies only to employees who work an average of 20 or more hours per week.

Employers may require verification by a physician of the purpose and length of each leave requested by the employee to donate bone marrow. If there is a medical determination that the employee does not qualify as a bone marrow donor, the paid leave of absence used by the employee prior to that medical determination is not affected.

Employers must not retaliate against an employee for requesting or using accrued paid leave of absence.