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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.
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.
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.
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..
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 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.
Although there are a few exceptions, the OFLA generally provides unpaid leave for the following purposes:
Employees are generally entitled to a maximum of 12 weeks of family leave within your 12-month year. There are exceptions, however:
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:
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:
Eligible employees may take OFLA leave for the following reasons:
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:
Employees on family 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:
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.
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.
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.
Oregon employers must provide for 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 90th 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:
Public health emergencies include the following:
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.
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.
Employers are covered by the law if they have one or more employees working in the state.
Employees are eligible if they work in OR and have received at least $1,000 in wages during the year prior to claiming benefits.
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.
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.
Employees may take paid family medical leave:
Family members include:
Eligible employees may take PLO leave for the following reasons:
Family members include:
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
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.
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.
Employers must provide accommodations to a pregnancy-related condition, including lactation.
Employers with six or more employees.
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.
A reasonable accommodation is not specifically limited, but may include:
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.
Specifically, employers are prohibited from the following:
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.
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.
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.
Employees who take leave for a military spouse are entitled to the continuation of benefits as provided in the Oregon Family Leave Act.
Employees are entitled to be restored to a position of employment as provided in the Oregon Family Leave Act (OFLA).
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.
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:
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:
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:
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.
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.
Oregon Bureau of Labor & Industries
http://www.oregon.gov/BOLI/pages/index.aspx
Oregon Revised Statutes 659A.150 through 659A.186, The Oregon Family Leave Act,
OAR §839-009-0200, OFLA rules
https://secure.sos.state.or.us/oard/displayDivisionRules.action?selectedDivision=3834
Oregon paid sick leave, 653.601 through 653. 991
https://www.oregonlegislature.gov/bills_laws/ors/ors653.html
OAR 839-007 (paid sick rules)
https://secure.sos.state.or.us/oard/displayDivisionRules.action?selectedDivision=3832
Oregon Revised Statutes 657B Paid Family Leave Insurance (Paid Leave Oregon)
https://www.oregonlegislature.gov/bills_laws/ors/ors657B.html
OAR Chapter 471, Division 70 Paid Family Medical Leave Insurance (PLO rules)
Oregon Revised Statutes 659A .029 through 659A. 036; pregnancy accommodations.
https://www.oregonlegislature.gov/bills_laws/ors/ors659a.html#:~:text=659A.146%20Reasonable%20accommodation.
HB 2341 (https://olis.oregonlegislature.gov/liz/2019R1/Downloads/MeasureDocument/HB2341/Enrolled)
Oregon Revised Statutes, 659A.090 through 099, The Oregon Military Family Leave Act.
Oregon Revised Statutes 659A.270 to 659A.285; Oregon Victims of Certain Crimes Leave Act (OVCCLA)
Oregon Revised Statutes 659A.312; Bone marrow donation leave
https://www.oregonlegislature.gov/bills_laws/ors/ors659A.html
ContactsUS Dept. of Labor, Wage & Hour Division
Regulations
29 CFR Part 825, “The Family and Medical Leave Act of 1993”