Oregon Family Medical Leave Act

by Joel Christiansen

Oregon medical and family leave laws provide some, but not all, employees with rights to protected time for certain medical and family issues. This article summarizes the fundamentals of the Oregon Family Leave Act (OFLA).

In addition to OFLA, employees may be entitled to additional rights under related laws including but not limited to the federal Family Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA) and its Oregon counterpart, sick leave laws, and workers’ compensation law. Discussing all of these topics is beyond the scope of this article and application of these laws varies widely on a case-by-case basis. I encourage employees and employers educate themselves and seek qualified counsel for assistance when necessary.

The Oregon Medical and Family Leave Act (OFLA)

The Oregon Family Leave Act, commonly known as OFLA, is part of the Oregon Revised Statutes – ORS 659A.150 to 659A.186. OFLA addresses employee medical leave, family leave, and other related types of legally protected leave. Oregon Administrative Rules OAR 839-009-0200 et seq. and relevant case law further clarify OFLA’s meaning and application.

Below is a summary of OFLA’s fundamental provisions:

25+ employees

OFLA only applies to employers who employ 25 or more persons in Oregon “for each working day during each of 20 or more calendar workweeks in the year in which the leave is to be taken or in the year immediately preceding the year in which the leave is to be taken.” ORS 659A.153. This means some smaller employers are not legally required to provide protected medical leave to their employees. However, employees may still have protection under employer policies and other related laws, including disability, workers’ compensation, discrimination, and retaliation laws.

180 days of employment, 25 hours per week

In order to qualify for protected medical or family leave under OFLA, an employee must have: (1) been employed at least 180 days; and (2) worked an average of more than 25 hours per week during that time. ORS 659A.156(1). There is no 25-hour per week requirement for parental leave to care for an infant or newly placed adopted or foster child. ORS 659A.156(2).

Serious health condition

OFLA leave is available for:

(a) An illness, injury, impairment or physical or mental condition that requires inpatient care in a hospital, hospice or residential medical care facility;

(b) An illness, disease or condition that in the medical judgment of the treating health care provider poses an imminent danger of death, is terminal in prognosis with a reasonable possibility of death in the near future, or requires constant care; or

(c) Any period of disability due to pregnancy or period of absence for prenatal care.

 ORS 659A.150(6).

The Oregon administrative rules interpret OFLA in a manner that is broad and favorable to employees. See, e.g., OAR 839-009-0210(20).

Notice required

Employees must provide notice to an employer in order to take protected medical or family leave. Simply calling in sick without providing any additional information is not sufficient notice to trigger OFLA rights. OAR 839-009-0250(1)(c). Foreseeable medical or family leave (i.e., circumstances where the employee knows in advance that he or she will need leave) requires 30 days’ advance notice to the employer. ORS 659A.165. In unexpected cases, employees need not provide immediate notice. In those cases employees must follow up with oral and written notice. Id. Employees who fail to provide proper notice of their medical leave may jeopardize their protected status or subject themselves to reduced OFLA benefits. See, e.g., OAR 839-009-0250(1).

Employers must provide notice to employees regarding eligibility and qualification for leave within 5 days of an employee’s request for leave. OAR 839-009-0250(5). Employers must also provide employees with written notice if their eligibility for OFLA leave changes at any point. Id.

12 weeks of leave

OFLA-eligible employees may take up to 12 weeks of protected medical or family leave in a 12-month period. ORS 659A.162(1). Some employees may be entitled to more than 12 weeks in a 12-month period. Protected leave periods include: (1) twelve weeks of medical or family leave; (2) twelve weeks of leave for an illness, injury, or medical condition related to pregnancy or childbirth that disables the employee; and (3) an additional twelve weeks of sick child leave if the employee has already used all twelve weeks of parental leave. ORS 659A.162. Therefore, in certain situations a female employee may have 36 weeks of protected leave in a 12-month period and a male employee may have 24 weeks of leave in a 12-month period. See OAR 839-009-0240(2)–(3).

Intermittent leave

Eligible Oregon employees may take intermittent family and medical leave (e.g., leave used periodically in smaller segments of time) if medically necessary. Employees may take intermittent leave in increments as small as one hour.

Paid vs. unpaid leave

Family leave does not have to be paid. ORS 659A.174(1). However, OFLA allows an employee to use accumulated vacation leave, sick leave, or any paid time off that the employer offers during the period of family leave. OAR 839-009-0280(2).

Job protection following leave

Employers are legally required to reinstate employees to their former position following an OFLA-protected medical or family leave. Reinstatement is mandatory — “without regard to whether the employer filled the position with a replacement during the period of family leave.” ORS 659A.171(1). However, if the employee’s position no longer exists, the employee must be reinstated to “any available equivalent position” at the employee’s former job site. Id.

Denying leave, discrimination, and retaliation are unlawful

OFLA makes it an unlawful employment practice for an employer to deny family leave to which an eligible employee is entitled under OFLA. ORS 659A.183(1). OFLA also prohibits employers from “[r]etaliat[ing] or in any way discriminat[ing] against an individual with respect to hire or tenure or any other term or condition of employment because the individual has inquired about the provisions of [OFLA], submitted a request for family leave or invoked any provision of [OFLA].” ORS 659A.183(2).

Family leave

OFLA also provides protected leave to care for a family member with a serious health condition. By law, family members include “spouse, same-gender domestic partner, custodial parent, non-custodial parent, adoptive parent, foster parent, biological parent, parent-in-law, parent of same-gender domestic partner, grandparent or grandchild of the employee” or a “person with whom the employee is or was in a relationship of in loco parentis. It also includes the biological, adopted, foster or stepchild of an employee or the child of an employee’s same-gender domestic partner.” OAR 839-009-0210(7).

Children, both minors and adults, are covered by OFLA. However, a child’s age can impact OFLA eligibility depending on the basis for the leave request. In cases involving serious health condition leave, OFLA does not require that the child be less than 18 years of age. See ORS 659A.159(1). However, in sick child leave situations, the child must be under the age of 18 or have a substantial physical or mental impairment to qualify for leave. OAR 839-009-0210(2).

Medical verification

Employers may require medical verification of the need for medical or family leave. ORS 659A.168(1). Employer requests for medical verification must be in writing. OAR 839-009-0260(1). When the reason for the leave is foreseeable, the employer may require that the employee provide medical verification before the leave commences. ORS 659A.165. If the reason for the leave is not foreseeable, the employer may require that the employee provide medical verification within 15 days of the employer’s request for that information. OAR 839-009-0260(4).

An employer may not require medical verification in support of parental leave but may require the employee to provide documents evidencing the child’s birth or placement. OAR 839-009-0260(1). In sick child leave cases, employers may seek medical verification only after the employee uses more than three sick-child leave days on three separate occasions in the leave-counting year. ORS 659A.168(2); OAR 839-009-0260(13). Employers bear the cost of all required medical certifications not covered by insurance or another benefit plan, whether it is the initial certification, a fitness-for-duty certification, or subsequent certifications. OAR 839-009-0260(2).

Special rules for military members & teachers

Special rules apply to military members and teachers. Individuals who fall within these categories should contact the Oregon Bureau of Labor and Industries or a private attorney to make sure they understand their rights.